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The Pamphlet Collection of Sir Robert Stout: Volume 80a

Governor Sir John Young to the Secretary of State for the Colonies

Governor Sir John Young to the Secretary of State for the Colonies.


Government House, Sydney,

In accordance with the request of Mr. William Forster, late Colonial Secretary, I have the honour to forward the letter* in which he tendered the resignation of his office, for the reasons therein stated.

It will only be necessary, I think, to give an outline by way of narrative of the circumstances which led to and accompanied his resignation; for although they bear on the manner in which the issue of the question was brought about, they still have little to do with the question itself.

About a fortnight previous to the meeting of the present Parliament, Mr. Martin, the Premier, mentioned to me his wish to nominate two gentlemen to the Legislative Council. I at once stated the objections which occurred to me, and which I will presently refer to, and after some conversation I parted with Mr. Martin under the impression that the appointments would not be seriously pressed.

About a week later, however, it appeared that Mr. Forster was not satisfied, but insisted on the appointments, and on my definite refusal, his letter of 23rd January 1865, was handed to me.

It will be observed that, in insisting, Mr. Forster had not the support of his colleagues: they had yielded to the gravity of the objections which I urged. I now pass on to the grounds on which my refusal was based.

The Legislative Council at the time consisted of 32 Members, three being absent in England, one on his passage out from England, and one on the eve of departure from the Colony, so that there were present in the Colony 27 Members available for service. Nine of this number, i.e., one-third, had been appointed since the accession to office of Mr. Martin's Ministry, in October 1863. The minimum number of Members for the Legislative Council prescribed by the Constitution Act is 21. It appeared to me that the creation of nine new members in so short a period was a large addition to the Legislative Council, and would have been so considered even with reference to so large a body as the House of Lords in England; how much greater, then, to so limited a Chamber as the Legislative Council of this Colony.

But was there any imperative reason assigned or existing for the proposed addition or for these appointments? No attempt was made to justify the addition on the ground of public policy or public exigency.

It was not alleged that the due representation of political parties or of any great interest required it. No special or public reason was adduced in its favour. The construction and actual state of the Council afforded no such reason.

As to the gentlemen proposed I desire to say very little, because my refusal was not based on any real or supposed unfitness on their part, but I was not pressed to appoint either of them on the grounds of any peculiar claim or of any public service.

The position in which the Ministry stood at the time that these appointments were proposed was another consideration which had weight with me.

In October 1864, they had met Parliament. In a few days after the Minister for Works had resigned, an Amendment to the Address in the form of a Vote of want of confidence was carried. A dissolution was asked for, and I gave my consent. I could not but observe that the general result of the elections appeared to be adverse to their hopes. The vacancy in the office of Ministers of Works had not been filled, and the Finance Minister had failed to secure a seat.

The Ministry were, as far as it was permitted me to judge, in extremis, and so it proved; for, on the day the new Parliament was opened, Mr. Forster's resignation was announced, and an hour after an Amendment on the Address, in the form of a Vote of want of confidence, was carried against the Ministry by a majority of 42 to 14.

For the reasons I have stated, I felt that at the time when these appointments were suggested I might not unreasonably have urged that the action of the Ministry should be limited to the ordinary administration of the Government.

All Mr. Forster's colleagues appeared to feel the weight of ray arguments.

So far I have mentioned objections which apply only to the case in hand. I come now to more general considerations, which may be viewed as applying equally to this and to other future proceedings in reference to the Legislative Council.

page 76

By the Constitution Act, the number of Councillors is unlimited, subject only to a minimum of 21. But it needs no argument to prove that if every Minister determines to push his advice to the same issue as Mr. Forster, the dignity and usefulness of the Council would be destroyed. On Mr. Forster's principle every Ministry in turn might insist on any number of fresh appointments, to gratify their friends or to secure a majority. If the Governor refused they would resign, and he would in the end be left without the means of forming an Administration; while, if he yielded, there would soon be an end of the Upper House, or at least of its independence, or of any effect or utility which it might have as a deliberative body. Theoretically, in the written Constitution, there is no limit, but practically, to give life to the Constitution, there must be a limit.

Putting aside, therefore, exceptional cases and special exigencies, it appears to me that a limit ought to be observed; and, with a view to its observance, and, indeed, as the only mode that occurs to me of insuring such observance practically, weight should be allowed to attach to the opinion of the Governor as to any proposed increase of the Members, as well as to the propriety of individual appointments. Any increase of numbers should first be formally proposed, and sanctioned by the Governor, before the consideration of particular appointments is entered upon.

At both stages the Crown, or Governor acting in lieu thereof, should have a recognised independent discretion, and no offer of a seat should be made until it has been formally sanctioned by the Governor and Executive Council. The nominations to the Upper House ought not to be viewed as mere ordinary appointments, the refusal to sanction which might justly be considered an interference with proper ministerial action and responsibility.

It seems to me that, by the Constitution Act, Her Majesty's Government and the people of this Colony are entitled to hold the Governor responsible in the exercise of the power conferred on him for the preservation of the Legislative Council as an efficient branch of the Legislature.

But how can this end be attained unless successive Ministries consent to exercise moderation in pressing advice on this point, and recognise the power and responsibility of the Governor in giving or withholding assent?

At the time of the reconstruction of the Legislative Council in 1861 these difficulties were much and anxiously considered, and an effort was made to suggest what might be, subject to exceptional cases, a convenient limitation to the number of the Upper House, to which Mr. Forster takes exception. He appears to misapprehend what took place when he says that a limit was arbitrarily fixed by me to the number of the Legislative Council in concert with his predecessors.

At the time of the reconstruction of the Council I consulted the leaders of the Liberal Party on the one hand, that is, the Ministers then in office, and also with their cognizance I availed myself of the advice of gentlemen of social standing and of leading political position in other sections. In fact, I called into counsel, under the auspices of Mr. Wentworth, the framer of the Constitution Act, several gentlemen of various political opinions who were at that time prominent in Parliament, or in possession of much general influence.

It was understood that Mr. Wentworth was to be the President of the new Legislative Council, and I appointed him to the office as soon as it was formed. After many interviews and much deliberation it was the general opinion of these gentlemen that 27 Members might, with advantage, be considered a convenient usual limit of the Council, and with this view I concurred.

Mr. Cowper and his colleagues recommended that seats should, in the first instance, be offered to 27 gentlemen accordingly. Several declined on various grounds, and eventually 23 only were gazetted. That number was not subsequently augmented beyond 26—during that Administration, which lasted nearly two and a half years afterwards.

Of course it was never contemplated that the Constitution Act could be set aside, or that any succeeding Ministry could be bound by the opinion of their predecessors, although by common assent the convenience of some usual limit might be recognised; neither was it ever contemplated that the Governor could relieve himself of responsibility, by giving beforehand his assent to any unvarying course of action. But I thought that what was then done might with advantage be referred to thereafter by myself and others, not as an absolute guide, but as giving the assistance of the opinion of able and impartial men, who were all equally anxious for the permanent stability of the Constitution.

The recollection of these circumstances weighed, I admit, with me to some extent in arriving at the conclusion that no further addition should be made to the number of the Legislative Council at that time. I thought it unwise, in the absence of any particular reason, to deviate from a course which I had then approved of, and which, if constantly pursued, might gradually be confirmed by usage, and serve to maintain the strength and usefulness of the Council.

Notwithstanding the general views I took of this matter, I showed my willingness to meet the wishes of Mr. Martin's Ministry by increasing the number of the Legislative Council to 27 actually present in the Colony.

I met the wishes of the Ministry, of course, so far as I conscientiously could do so.

Thus I have stated the reasons, both general and particular, which guided me in the performance of the duty and in the exercise of the power intrusted to me by the page 77 Constitution Act—reasons which I believe justify the course I have pursued. You will observe from Mr. Martin's letter to Mr. Forster, that the Ministry, with the exception of Mr. Forster, did not meet my refusal by the resignation of their offices.

I hardly feel called upon to notice Mr. Forster's charge of partiality. I am utterly unconscious of any such bias as he has attributed to me, and I deny that there is any foundation for this accusation, which he, and he alone, has so unjustifiably preferred. I read for the first time Mr. Forster's letter a few minutes before I attended a meeting of the Executive Council, and I at once appealed to the Ministers, all of whom, except Mr. Forster, were present, to state openly, in my presence, whether there was, in their judgment, any foundation for such an imputation. They, one and all, on the spot, assured me that they considered the charge unjustifiable and untenable. This disclaimer is repeated in the Premier's letter to Mr. Forster, and if further justification were necessary, I could rely on the verdict of public opinion which Mr. Forster's charge against me called forth, and which, having being contradicted by his colleagues, did not find a single voice of support in the Assembly, and was met with general approbation by the public press of all shades of opinion.

I feel, therefore, that I need do no more than record this, my protest, against an accusation so ignoble and unfounded.

In conclusion, I must add that the position which Mr. Forster has assumed is unfortunate in this respect—that it lessens the safety of the Upper House by seeking to establish the evil precedent that the refusal of the Governor to add to its numbers when urged on no public grounds, but merely for the satisfaction of a Minister or Ids private friends, may be considered as a legitimate ground for the abandonment of office. The right of a Minister to resign when his advice is not taken is unquestionable, but the right should be exercised in the public interest sparingly and upon sufficient cause.

I have reason, however, for hoping that no difficulties will arise on this question. I sincerely trust that such may be the case, and that the moderation and wisdom of the leading men in the various sections may induce them to exercise with a cautious sense of their responsibility the powers which the Constitution places in the hands of the holders of office for the time being.

I have, &c. (signed)

John Young.