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The Pamphlet Collection of Sir Robert Stout: Volume 80a

(Enclosure.) — The Colonial Secretary to Governor the Earl of Belmore


The Colonial Secretary to Governor the Earl of Belmore.

Memorandum.—Your Excellency's Memorandum accompanying the Despatch of the Right Honourable the Secretary of State for the Colonies, dated 18th December 1868, No. 2 (M. 2190, B), is marked "private"; and all that your Excellency therein appears to desire at my hands is, my concurrence in an assurance to Lord Granville, that the addition made by the late Ministry to the number of the Legislative Council, as then existing, was not in fact politically material as altering the balance in any important degree in favour of the Ministry by whom it was suggested to your Excellency; and I should, I beg to say, be most glad to concur in such assurance and make no further comment, did I not conceive that the Despatch was based on a misapprehension which it is very important in the true interests of this Colony that I should endeavour to remove.

I presume, from the tenour of His Lordship's Despatch, that he is under the impression that a maximum number of the Legislative Council has been defined or implied; and that the Responsible Ministers of your Excellency may not in their discretion advise your Excellency to exceed it. If such be his Lordship's meaning, I am compelled, with all deference for so high an authority, to say that this cannot be admitted by the Members of the present Administration of this Colony.

The 2nd section of the Act 17 Victoriae, No. 41, enacts that it shall be lawful for Her Majesty, by an Instrument under the Sign Manual, to authorise the Governor, with the advice of the Executive Council, in Her Majesty's name, by an Instrument or Instruments under the Great Seal, to summon to the said Legislative Council of the Colony such persons, not being fewer than 21, as the Governor and Executive Council shall think fit.

In the third paragraph of your Excellency's Instructions, to which I trust that I may be permitted to refer, attention is particularly drawn to the terms above quoted; and the paragraph ends with the following words, but without any intimation, implied or expressed, of a limit to the number of Members to be appointed by your Excellency with the advice of the Executive Council:—" We do, therefore, by these Our Instructions authorise you from time to time to summon to the said Legislative Council such persons as you and Our said Executive Council shall think fit"

It is thus, I submit to your Excellency, abundantly clear that the law fixes no limit to the number of the Legislative Council of the Colony, and that the determination beyond the legal minimum of 21 rests in your Excellency with the advice of your Ministers. There is no warrant in law for a contrary conclusion, and it follows, therefore, that it is to be hardly imagined that the Secretary of State for the Colonics would, unless under some misapprehension, have used the terms "increase the number of the Legislative Council," or expressed a regret that an addition has been made, or that it was likely to be used as a precedent for further additions. The fact is, that additions have been made from time to time, and no question has ever been raised as to the legality of such additions, or of the right of Ministers in their discretion to advise them. I think, therefore, that the Right Honourable the Secretary for the Colonies will scarcely deem it proper for him so to question or comment on the advice offered, or that may be offered by the constitutional Ministers of Her Majesty's Representative in a British colony having a Representative Assembly and Responsible Government, as to practically have the effect of nullifying without law in a material respect a most important constitutional principle, such as the right of extension of the Legislative Council. His Lordship will no doubt remember that even British Parliamentary Legislation "on any subject of exclusively internal concern "in any such Colony, has been pronounced, as a general rule, unconstitutional, and only to be exercised in extreme cases in which necessity at once creates and justifies the exception. Parliamentary Paper, 1839, No. 118, page 7:—May's Constitutional History of England, vol. 2, folio 371.

In the Colonial Debates during the passage of the Constitution Act (see "Sydney Morning Herald," 22 December 1853—an extract is enclosed), Mr. Went worth, who is page 80 the author of that Act, substantially advocated a nominee Upper House because of its flexible and expansive character, and he saw therein the safety of the Constitution. His remarkable words were, that an Elective Upper House would lead to a revolution; that it would control the Lower House, and trample on the rights of the people.

The recent "deadlock" in the neighbouring Colony of Victoria has shown some of the difficulties of a fixed number. With such a principle established, and with Members, like ours, holding their seats for life, our difficulties would not only be equal to those of Victoria with Members chosen under the elective principle and for a short term of years, but would be likely some tunc or other to overwhelm the Colony with anarchy and bloodshed. Mr. Wentworth was in favour of a nominee Upper House, which, he asserted, would give way rather than excite a revolution, and also because he felt assured that the Responsible Minister of the day would compel it to give way in such an exigency.

I may perhaps, in this view of the Constitution Act under which this Colony is governed, urge the right of any Ministry, having what they believe a great national measure to carry through the Legislative Council, to see in its importance, if obstructed therein, a reason to advise the Governor for the time being to summon such a number of additional Members as may secure the safety of the measure. His Excellency of course would possess as perfect a right to refuse to act upon such advice and to call other Advisers to his aid. Whether or not it would be proper in a Minister to advise so extreme a course, or in a Governor to refuse compliance therewith, would, I take it, depend on the justice and importance of the measure involved,—on the amount and length of continuance of the obstruction of the nominated Legislative Council, on the proportionate number and importance of the majority of the colonists demanding it, and on the depth and fervour of their determination in doing so. In other words, the wisdom of the course could only be determined by the effect which compliance or refusal would have on the prosperity of the Colony and the welfare and happiness of its people.

I desire, therefore, to convey to your Lordship, not only from myself, but from my Colleagues in the Government, that we would consider any action of ours, having a tendency, however remotely, to limit the number of the Legislative Council as at present constructed, as an unwarrantable abandonment of our duty as Ministers alike responsible to your Excellency, to the Parliament, and to the people of the Colony.

Colonial Secretary's Office, Sydney, (signed) John Robertson.