CHAP. XXII POSITION OF THE QUESTION 207 ing change in the constitutional documents of the period. The Imperial statute which authorised the assent to the Constitution Act makes no reference to it. It is believed that the word "Cabinet" occurs nowhere in the text of the Act, and that the word "Responsible," as applied to Ministers of the Crown, only occurs once, viz. in Schedule D, part 7.1 The implied references to the change in the Constitution Act are very scanty. They occur in the 17th section, which provides that members of the legislature accepting offices of profit under the Crown during pleasure, though thereby vacating their seats, may be re-elected if otherwise eligible; the 18th, which provides that, of certain officials named, at least four shall be members of the legislature; the 37th, which enacts that appointments to public office under the Government of Victoria shall be in the hands of the Governor and Executive Council," with the Exception of the appointments of Officers liable to retire from Office on Political Grounds, which appointments shall be vested in the Governor alone"; the 48th, which authorises the Governor (alone) to abolish certain political offices (mainly Cabinet offices); the 50th, which provides pensions for the existing incumbents of certain offices who "on political grounds may retire or be released from any such Office;" and the 51st, which provides pensions for future Cabinet Ministers. If we turn from the legislative to the executive side of the change, we find that the new arrangements occasioned the issue of a new Commission and Instructions to the Governor. But yet the difference between these documents and those which they replace is exceedingly small to the lay mind. In the Commission, the Governor is empowered himself to appoint the members of the Executive Council, merely transmitting notice of the appointments to the Colonial Office, instead of, as formerly, making temporary appointments till the pleasure of the Home government is known. But the appointments are still to run in the Queen's name, and during her pleasure.2 The grants of waste lands are to be made with the advice of the Executive Council, and conformably to colonial legislation. 1 The word occurs also in the margin of §§ 18 and 51. 2 The word in the original, "Our," is the result of an erasure. The actual form of appointment to the Executive Council is by letters-patent under the seal of the colony, attested by the Governor, and countersigned by a Minister. In the event of the incapacity of the Governor, and of any Lieutenant-Governor who may have been appointed, the Senior Military Officer is to take the first place.1 These are almost the only changes in the Commission, and though they are really important, it requires a trained eye to see why they are important. In the Instructions which accompanied the Commission, almost the only material change is the power given to the Governor to appoint a member of the Executive Council to preside during his absence, the old rule being that the senior member presided as of course.2 With these somewhat scanty guides, it is not surprising that the persons upon whom the task of effecting the change was cast should find some little difficulty in carrying it out. On the 23d November 1855, a Government Gazette Extraordinary proclaimed the coming into operation of the Constitution Statute and the Waste Lands Acts Repeal Act, the former having been (as the proclamation stated) received in the colony at 10 P.M. on the 23d October preceding.3 In due course, on the motion of the Attorney-General, the proclamation was ordered to be entered upon the journals of the existing Legislative Council, and a duplicate sent to the Registrar of the Supreme Court for enrolment.1 But before this happened, troubles had begun. 5 The Governor had consulted his officials with regard to the meaning of the new Act very shortly after its arrival, and we find that on the 31st October 1855 the law officers, in answer to His Excellency's questions, had advised— 1. That according to the provisions of the Constitution Act four of the officers referred to in the 18th section must, from the time of the return of the writs to the first election under the new scheme, or 1 This was contrary to the old rule, which gave the position to the senior member of the Executive Council. But, under the old régime, executive councillors were Imperial officials. 2 Copy of Commission and Instructions in G. G., 1855, ii. p. 584. 8 G. G., 23d November 1855. The announcement of the date of arrival was made to satisfy the 5th section of the Constitution Statute. Cf. opinion of law officers in V. and P., 1855-6, ii. p. 575. 4 V. and P., 21st December 1855. 5 On the 30th October, at a meeting of the Executive Council, the Governor had decided, contrary to the wishes of his Ministers, to summon the Legislative Council for the 21st November, in order that it might be in session when the Constitution Act was proclaimed. (Minutes of the Executive Council, sub date.) CHAP. XXII POSITION OF THE OFFICIALS 209 at least from the meeting of the legislature, be members of one House or other of the legislature. 2. That to a certain extent the officers mentioned in that clause have always been responsible to the existing Council; nor, indeed, with the exception of the necessity of a certain number being elected members under the 18th clause, do the new Acts make any legal change in their responsibility, though practically they may henceforth be more liable to be removed and called to account according to the feelings of the legislative bodies than heretofore. 3. That their responsibility to the existing Council legally remains unaltered.1 With due deference to the opinion of so high an authority, it may well be questioned whether these opinions are sound. The confusion is between moral and legal responsibility. Hitherto the responsibility of the executive officials to the Legislative Council (it is clear that it is to the Legislative and not the Executive Council that the law officers are referring) had been wholly of the former character. The legislature might oppose the policy of the officials as much as it pleased, but it could not force them to resign, and the constituencies had no chance of expressing their opinions; for the seats of the officials were nominee, not elective, and a dissolution, whilst it might strengthen the Government, could not defeat it. Practically speaking, an official could only be dismissed for personal misbehaviour or incapacity, and the Governor's dismissal of him was always liable to review by the Home authorities. But the new Act made a substantial difference, for not only did it abolish all nominee seats, and subject Ministers accepting office to re-election, thereby giving the constituencies a voice in their appointment, but it guarded against the attempt to carry on the government by a Ministry independent of the legislature, by providing that at least four members of the Ministry must be members also of the legislature. Acting, however, upon the advice of his law officers, the Governor summoned a meeting of the existing Executive Council for Tuesday the 6th November to frame the Estimates to be laid before the legislature. But when the Council met, instead of proceeding to business, the members handed in a protest, in which they stated that they felt unable to commence unless 2 Ibid. p. 577. 1 V. and P., 1855-6, ii. p. 576. Р they were informed whether they were expected to act "as Responsible Officers under the Constitutional Act, or as Officers responsible to His Excellency for carrying out the policy which he may indicate." The protest further stated that "as the responsibility of the Government to the country commences on the day upon which the Council is summoned, such Estimates as may come before the country will have to be defended by a Responsible Ministry, although they may not have been prepared by them in that capacity." And the protesters decline to state what in their own opinion is the right course.2 The Governor promptly replied that the responsibility of officers would commence from the date of the proclamation, and that no departure from the existing form of government or routine would be allowed till then; but at the same time he offered either to allow the officers to postpone framing the Estimates, if they wished, or to take upon himself the responsibility of them when laid before the Council.3 At this point our sources of information become traditional only until the issue of the proclamation and the assembling of the Legislative Council on the 23d November, up to which date the protesting officials continued to occupy their posts.* On the following day the Colonial Engineer stated to the Legislative Council that four members of the government, the Colonial Secretary,5 the Attorney-General, the Collector of Customs, and the Surveyor-General,s had tendered to the Governor the resignation of their offices, which had been accepted.9 The announcement was so startling that Mr. Fawkner, having procured a suspension of the Standing Orders, moved and carried a resolution that the Council should resolve itself into a committee of the whole to consider the state of the colony.10 After a very short sitting the committee reported that the Governor should be addressed to afford the 1 I.e. (obviously) the Legislative Council. 2 V. and P., 1855-6, ii. p. 577. 3 Ibid. 4 Cf. notices signed by them in G. G., 6-23 November 1885. Captain Lonsdale's resignation of the office of treasurer had been accepted at a meeting of the Executive Council held on the 22d November. 5 Mr. W. C. Haines. 6 Mr. Stawell. 8 Captain Andrew Clarke. 7 Mr. H. C. E. Childers. 9 V. and P., 24th November 1855. CHAP. XXII DETAILS OF THE CHANGE 211 Council full information respecting the dismissal or resignation of the officials, and the Council promptly adopted the recommendation.1 'The Governor immediately promised compliance with the request, but before he could fulfil his promise another startling announcement was made to the House, by letter from the acting Colonial Secretary, Mr. Moore, to the effect that the Governor had been pleased to release from office, " on political grounds," the four officials previously announced as having resigned, and that thereupon their nominee seats in the Council had become vacant. The acting Colonial Secretary also informed the Council that the Colonial Engineer and the acting Solicitor-General had resigned their nominee seats.2 Following immediately upon this announcement came the further information that the Speaker had received letterspatent, dated the same day, appointing Mr. Haines (as Chief Secretary), Mr. Stawell (as Attorney-General), Mr. Sladen (as Treasurer), Mr. Pasley (as Commissioner of Public Works), Mr. Childers (as Commissioner of Trade and Customs), Mr. Clarke (as Surveyor-General), and Mr. Molesworth (as Solicitor-General), to nominee seats in the Legislative Council pending the signification of Her Majesty's pleasure. The members named then entered and took their seats.3 Immediately afterwards, the papers requested by the Address of the previous day were laid before the Council.1 These papers, when produced, showed that, in addition to the facts before enumerated, the following had been the course of events which had led up to these results. On the 23d November, apparently before the opening of the session of the Council, the Governor had sent to the Colonial Secretary (Mr. Haines) a "Minute transmitting his views regarding the Future Administration of the Government of the Colony." The Minute is expressed to be " for the information and guidance of the responsible officers," and it is probable, therefore, that at the time of penning the letter of enclosure the Governor regarded his existing ministry as "responsible." Apart from this point, the document is of the highest importance as expressing the views of a colonial official of 1 V. and P., 27th November 1855. 2 Ibid. 28th November 1855. 3 Ibid. They were sworn in afresh on the 30th November. (Minutes of Executive Council of that date.) 4 Ibid. |