OF CALIFORNIA S ANGELES ..■'■. :H-> .-'-;> >?<': ^;^"*V■':^'4^'■'H'•^■^'■V■^'^i^'■'^■'■:■ hr^:''^'^^mMm m / A MEMOIR OF GEORGE HIGINBOTHAM A MEMOIR A MEMOIR GEORGE HIGINBOTHAM AN AUSTRALIAN POLITICIAN AND CHIEF JUSTICE OF VICTORIA EDWARD E. MORRIS Uontion MACMILLAN AND CO. AND NEAV YORK 1895 Richard Clay axd Sons, Limited, LONDON AXD BUNGAT. k PREFACP] My picture is finished, and I can add no n^ure little ■^touches to it. No longer can I paint out this bit nor * j)aint in that, nor can I add brighter colours to the back- ground to make the central figure clearer. Probably every paintei-, when he reaches this point, recognises in , himself a mixed feeling, — pleasure that his work is ^n completed, and doubt whether it expresses all that he *, wished it to ex^Dress. With me the doubt is the stronger feeling. I know that I have not accomplished Avhat I ^ wished and that I shall not satisfy friends and admirers ; but yet I trust that the portrait is like and that the ^ surroundings are made clear. I have done what I could. ^ I wish heartily to thank the man\' friends Avho have ^, helped in my work. The names of some are given at A*' various points in the ]:»ook : the names of others are with- held at their own request. Without this help, which Avas ^ readily given, I could not have done as much as I have. 4J thank all who have helped me with sympathy, with Widvice, with information. The following letter, which was not addressed to me but to another, from the veteran .Sir George Grey of New Zealand, will be read with interest : — 2427^4 ^ vi I'KHFACE I entertained a great admiration for the late Chief Justice Higinljotham. On one occasion when a difficulty had arisen with the Mauris, at ni}^ suggestion he was invited l)y the Government to come to New Zealand to act as arbitrator, and at gi'eat inconvenience to himself he had consented to come. Political changes unfortunately' put an end to the proposal. But it is my belief that, if that good man had come to New Zealand, much bloodshed would have been avoided, so highly was he respected by all parties. It is a matter of regret to me to add that I have not been able to discover the date or any details of this matter. The two likenesses in this book — one of Mr. Higin- botham as Attorney-General, the other as Chief Justice — are reproduced from photographs by Messrs. Johnstone O'Shannes.sy and Company, Limited, of Collins Street, Melbourne. Edward E. Morris. Januar}/ ].">. 1 S!)."j. TABLE OF CONTENTS CHAP. PACE INTRODUCTION ix I. FAMILY HISTORY 1 II. SCHOOL AND COLLEGE 7 IIL JOURNALIST IN LONDON 17 IV. CALL TO THE BAR, AND EMIGRATION 27 V. EARLY LIFE IN MELBOURNE 30 VI. THE EDITOR OF THE " ARGUS " -t-t VII. EDITORIAL VIEWS 55 VIII. M. L. A 61 IX. .VTTOKNEY-GENERAL 75 X. THE "SHENANDOAH"' So XI. TARIFF AND TAGK 94 XII. ELECTION OF 1866 AND END OF DEADLOCK 104 XIII. judges' RIGHTS 11- XIV. RECALL OF SIR CHARLES DARLING 117 viii TABLE OF CONTENTS 'I'AP. PAGE xv. SPEECH ON darling's tkeatment 123 XVI. THE DARLING GRANT 133 XVII. THE EDUCATION COMMISSION 144 XVIII. THE RESOLUTIONS 158 XIX. LATER POLITICS 190 XX. LATER DEVELOPMENT OF VIEW ABOUT THE COLONIAL OFFICE ] 90 XXI. POLITICIAN 223 XXII. ORATOR, AND REMINISCENCES BY A REPORTER 239 XXIII. BARRISTER 251 XXIV. PUISNE JUDGE, AND THEN CHIEF JUSTICE 2oS XXV. THOMAS HIGINBOTHAM 269 XXVI. THE LAST TWELVE YEARS 274 XXVII. CONSOLIDATION 287 XXVin. A DAY IN DECEMBER, 1890 297 XXIX. THE END 306 XXX. THE MAN 314 INDEX 327 INTRODUCTION It has long been an object of my ambition to write the life of George Higinbotham. It was my good fortune to know him intimately during the last fourteen years of his life, and with perfect freedom to discuss with him political, social and literary topics as they arose. Though I have been told that he hesitated to discuss religious questions with the same freedom lest he should hurt my feelings, I never noticed this hesitation, and I am inclined to claim that I knew his whole mind better than any one who is now alive. Yet, I never ventured to mention my project to him, for there was not a little reason to fear that he would have forbidden it. He was a very modest man, and could not be brought to believe that others were interested in him or in his views. He was shocked at the indiscreet revelations in some modern biographies, and left behind him a memorandum dated April, 1874, requesting that all his manuscript books and accounts should be destroyed without being read or examined by anv one but his wife. Ten years later the request was renewed in another memorandum : — " All my M8. books and old diaries," " all political and professional remains and papers," "■ without delay," were " to be burnt." These are strong words, and the wish expressed in them was I'eligiously carried out. With the wish to write the life strong within me, 1 assisted in the burning, knowing that I was destroying X IXTllOUUCTION material wliicli would hav^e been of priceless value to a biographer. Then came the question whether, under such circumstances, it was right for me to undertake a biography at all, and this question caused me great searching of heart. It was (juite certain that a life or lives would appear. More than one was planned, and in three cases I was consulted, in two applica- tion was made to me for assistance. By several, I might almost say by many, friends, I was urged to undertake the work, because, as they said, I was the most fit from my knowledge of Mr. Higinbotham's life and views to perform it. As his son-in-law, I had to consider whether it was better that the life should be written by a member of the family or one not connected with it. After due reflection, I decided to accept the office at the same time painful and pleasant, and to do my utmost to give to the world a true picture of one who was much misunderstood, who was often praised on wrong grounds and blamed on wrong grounds, but whose name and memory have a fascination for many Australians. One very able and enthusiastic notice of George Higin- botham's life that appeared immediately after he was taken from us Avas headed "The Greatest of Australia's Dead." Without any comparison with other eminent Australians, the mere fact that this view is widely entertained makes it right to face the question whether the natural modesty of a great man, even if it had expressed itself in a wish that his life should not be written, is a sufficient reason for obedience to that wish. In Mr. Higinbotham's case no such wish was ever expressed, and perhaps for the sufficient reason that the idea never occurred to him as likely ; but if it had been, ought it to command obedience 1 Thackeray one day in dis- gust at a biography which was all adulation and undeserved praise, tapped the book, and said to his daughter : " When I am gone, I hope nothing like this will be written about me.' IXTKODR.TIOX xi That tiaughtor is a singulai-ly eapal)le writer, and has Avritten delightfully of others, gracefully and with due i-eticencc, but love-loyal to Ihm- father's least wish she has refrained from writing his life. Unauthorised biographies have of course appeared, but through that remark of the novelist English Literature is tlie poorer. It would not be right that biographies should onl}'^ l)e written of those who were not modest and retiring. ^Ir. Higinbotham had much to do with the early days of constitutional government in the Australian colonies. He was connected with more tlian one important controversy as to political principles, and as to the relations between the mother-country and the colonies. These con- troversies are important as history, and, as according to the proverb, history rejDeats itself, they may some day be important again in politics. His work in consolidation of the statute law on two separate occasions, once when he was Attorney-General, once when he was Chief Justice, deserves to be duly recorded, as well as his views on the further subject of codification. But the influence and character of the man were more important than acts or views, and it seems to me a solemn duty to strive as far as in me lies to set these forth for the admiration of those who did not know him as I did, and for the coming generations. I asked one of his sons, now in Dublin, what he thought about my undertaking this memoir, and his answer runs : "I am quite certain that to suppose it would be against my father's wishes to Avrite and publish his life is quite erroneous, and arises from not understanding him. If he could be asked, my father would say : 'If the peo];)le of Victoria wisli it, I do not withhold my consent.' " Tfik University, Melbourne, Ortolwr, 18i»;>. MEMOIR OF GEORGE HIGINBOTHAM CHAPTER I FAMILY HISTORY The name Higinbotham — Of Dutch Origin^ — Ancestor at the Battle of the Boj'ne — Quai'termaster Thomas Higinbotham — His Estate — Andrew — Henry — Miss Vei-ner — Tlie Father, Henry Higinbotham — The Mother, Sarah Wilson, and her Father, Joseph Wilson, a Friend of (leorge Washington. Throughout Australia the name of Higinbotham has been so long well known, and those who have borne it so highly respected, that it does not excite in Australian minds the same feeling of oddity that the name produces in the minds of others when they hear it first. Though not spelt and not pronounced exactly in the same way, it is practically the same name as that which the authors of the Rejected Addresses Ijestowed on the dauntless fireman, and to which they found so quaint a rhyme. It is one of the names that in his first Essajj in Criticism the fastidious Mr. Matthew Arnold mentions as showing, on the part of our English stock, an "original shortcoming in the more delicate spiritual percep- tions." The origin of the name is not absolutely certain, but it is probably a popular corruption of a Dutch name. English soldiers in India made the pecvdiarly English-looking Hobson- 'lobson out of the native ci-ies Hosein, Hassan. In the same way the Irish of the Pale made a name which assumed some- thing of an English look out of the patronymic of a Dutch- man, who came to Ireland in the army of William III. The Dutch name corrupted is probably Hoogenboom, which Avould I B -> MKiMOlR OF GEOROE HIOINIJOTHAM < iiai-. mean " lofty tree," though there are some who hold that the Dutch wox'd is Eikenboom, answering to the German Eichen- liaum, an oak-tree.^ Headers of Motley's histories, or those who from other sources know the qualities by which the Dutch won their independence, will recognise the same qualities in George Higinbotham, whose grandfather's grandfather was a Dutchman. This Dutch ancestor came over to Ireland with William of Orange — William the Liberator, as some prefer to call him — and was present at the Battle of the Boyne. Information comes from a relative that the " spot is still shown on the banks of the river where he, with two others of his comrades, drew Schomberg out of the water." A monument has been erected where Schomberg fell. Macaulay, in his famous account of the battle, tells us that " Schomberg gave the word. Solmes's Blues " — a regiment of Dutch infantry — " were the first to move. They marched gallantly, with drums beating, to the brink of the Boyne. Then the drums stopped ; and the men, ten abreast, descended into the water." A little later Macaulay tells us that '' Schomberg, who had remained on the northei'n bank, and who had thence watched the progress of his troops with the eye of a general, now thought that the emergency required from him the personal exertion of a soldier. Those who stood about him besought him in vain to put on his cuirass. Without defensive armour he rode through the river." This must be the occasion referred to in the family tradition, but it is a little difficult to vmderstand how the three soldiers helped the general out of the water if he was still on horse- back. The incident occurred but a short time — only a few minutes indeed — before the gallant Schombei'g was killed. 1 The member of the family who has studied the sul)ject most closely holds that other families, spelling the name with double g, though settled in Ireland, were of English and further back of German origin. In 1665, five years after the Restoi-ation, the Mill was proved of a certain Hiknebotham "trooper in Captain Staples' regiment." According to this theory there are two names of distmct families, somewhat attracted to each other, and the change is thus indicated : — Old German. Ickenbaum. Hiknebotham. Higginbotham. Dutch . . Hoogenboom. Hogenboham. Higinbotham. In the earlier documents the name is frequently spelt Higinbothoni. r FAMILY HISTORY' 3 The family tradition speaks of three brothers who came over with "William of Orange, and declares that one of them settled in Co. Cavan, one in Dublin, and one in Cork. It is not liowever possible to verify all the details of the tradition, which moreover is confused and divided as to the capacity in which any of the three brothers served in William's army. A diligent search amongst the wills in the Dublin Record Office gives us " Thomas Higinbotham, (.(Quartermaster." The quartermaster is an officer in the army whose duty it is to look after the quarteriny of the' troops, the supply of their provisions and similar matters ; but the exact rank does not stand clear from the title. In the present day the quartermaster-general is an officer of high rank. It is not however known whether " Quartei'master Thomas Higinbotham " — the title is thus used of him in official records — held that office at the Boyne, nor indeed whether he was actually the wari'ior of the Boyne or his son. The will of Thomas Higinbotham was proved in 1737, the year in which Gil)bon was liorn, George II. having been ten years on the throne. Between the date of the battle and the death of Thomas there is an interval of nearly fifty years, and in the interval lie all Marlborough's campaigns. It is tantalising to be unable to fill such gaps in history. If Thomas be the Dutchman, the probability is that in the memorable battle he was either a junior officer, or that he fought in the ranks, and that later in life he was jjromoted to this half civil, half military appointment of quartermaster. The right to a coat of arms attached to his will seems to prove that he was a man of some family position, at least of gentle birth. He is the brother who settled in County Ca\'an, where he held an estate called Tullymaglowny or Tanamaghlounan, the mean- ing of which Erse or Keltic name was the shorter English Nutfield. The five-syllabled name is spelt in various ways, and by the middle of the century it had been superseded by the English equivalent. The present importance was not attached to spelling in earlier times, even in the case of proper names, the best instance being the variety of shapes given to the name Shakspeare. No estate was granted to Thomas Higinbotham after the Williamite confiscations, nor does his name stand upon the list of purchasers of confiscated estates, which had been sold bv 1702 — 1703. Nutfield was B 2 4 MEMOIR OF GEORGE HIOINBOTHAM cjcap. first leased and then bouglit by the family. The estate, which is situated in the parish of Drung, Co. Cavan, was about sixty acres in extent, together with four acres of bog- land. No house now exists ; only a single arch shows where once the house stood. Thomas liiginbotham of Tanamaghlounan was the groat- great-grandfather of George Higinbotham. The quarter- master had five sons and three daughters. He must have been Avell off, for each of his sons has house and lands, and in his will he leaves Nutfield to his youngest son Andrew, since the others were already provided for. Andrew Higin- botham is described as " of Nutfield, Co. Cavan, gent. " ; and his will was proved in 1765, the year in which the Stamp Act for the American colonies was passed. Henry, the second son of Andrew, settled in Dublin, where he lived in Linen Hall Street. His will is dated and was proved in 1789, the date of the beginning of the French Revolution. This Henry married a young widow lady named Dobbs, whose maiden name was Jane Verner. Married to Mr. Dobbs in the last week of January 1773, she was a widow by the end of June. Miss Verner's maternal grandfather was a captain of cavalry at the battle of the Boyne. She was an aunt of Sir William Verner, a lieutenant-colonel under Wellington in the later battles of the Peninsular AVar, and severely wounded at Waterloo, who did not die until 1871 at the ripe age of eighty-nine, having for his political services to the Conservative party been made a baronet in 1845. His place of residence was Church Hill, Armagh, where this lady, George Higinbotham's paternal grandmothei-, was brought up, but she was married a dozen years before her nephew was born. Mr. Heniy Higinbotham had three sons and three daughters. Two of the sons Avere employed at Dublin Castle, one, if not both of them, in the Secretaryship. The youngest son, Henr}^ Higinbotham, was for many years a merchant of the City of Dublin. His town residence was at 4, Mountjoy Square, then the fashionable part of Dublin. In his political views and sympathies Mr. Henry Higinbotham belonged to the old-fashioned Conservative school : he was a strong loyalist of the Church and State type. One who knew him well desci'ibes him as possessing the same charm of manner and sweetness of character that distin- I 1•.\MII>^ HISI'OR.V f) guished his son. He had six sons unci two daughters ; and the youngest of his eight children is the subject of the present memoir, born in DubHn on April 19, 1826. Heredity, however, must not be traced only on one side. George Higinljotham's mother's maiden name was Sarah Wilson. The Wilsons were of Scotch oi'igin and mostly "children of the manse." They moved into Ireland with the wave of Presbyterian emigration from Scotland, and belong rather to Ulster than to any more southeni part, of Ireland. Towards the end of the last century, about the time of the French Revolution or a little before, Mr. Joseph Wilson married a Miss Rose Anne Moore, a great beauty known in her day as the " belle of the noi'th." This Mr. Joseph Wilson liad travelled far, and had resided in Philadelphia for some years. There he was acquainted with George Washington, with whose political aspirations he was in strong sympathy. After the War of Independence he became an American citizen, and when afterwards he returned to live in Dublin, he was for some years the American Consul in Dublin, and when he died his son succeeded to the position. According to the doctrine that a mother's qualities pass to the sons and a father's to the daughters, George Higinbotham inherited much from his maternal grandfather. Mr. Joseph Wilson is described as a man of strong common sense and fine judgment. His religious sympathies were Unitarian, and his political principles sti'ongly Liberal at a time when, owing to the violent recoil caused by the French Revolution, Liberal- ism was most unpopular. So recently had he been hostile to Great Britain that his sympathies are said to have been with the Irish Rebellion of the end of the last century. Of course as an American Consul he could not do moi'e than give his sympathy to the defeated cause. On this latter point, however, it is advisable to add a caution. His grand- son's views on the Irish Rebellion are not reported, but his views upon the present struggle with respect to the govern- ment of Ireland wei^e clear and distinct. A warm friend to Ireland, he was strongly in faA^our of the Union, and opposed to Home Rule, especially feeling the strongest disapproval of the means adopted by the followers of Mr. Parnell. Mr. Joseph Wilson died in 1809, and two years later his only daughtei- married Mr. Henry Higinbotham. (i MEMOIR OF 0KOK(iK HT(41NB0THAi\l niAr. i Mr. Wilson's family possess u portrait of George Wasliing- ton, and the family tradition runs that Washington stood for the picture to please his friend. Washington is repre- sented standing in a blue coat with brass buttons, wearing a sort of military'' headgear. In his hand he holds the scroll of American independence, whilst the British flag lies prosti-atc, if not exactly at, yet near his feet.^ As Mrs. Henry Higinbotham was the only daughter of this American Consul, it is natural to think that she called her youngest son after the great American, " first in war, first in peace, and first in the hearts of his countrymen." This, however, is only surmise, and not based on evidence. 1 I regret to iind that no mention is made ot lliis ])iiture in tin- careful account of Washington portraits at tlic end of .liistin ^\'inso|■■s HiMory of America, vol. vii. CHAPTER IT SCHOOL AND COLLIXiE Royal School of Dungannon — Its History-^The Headmaster, Rev. J. R. Darlej' — His Farewell Speech — Testimony of Sir F. Darley — Thrashing of a Bullj^ — Queen's Scholarship — Trinity College, Dublin — Higiul)otham's Record — It Lacks its Crown — Mrs. Brougham- — Reminiscences of Dean of Lismore. Enviroxmext and education are factors in the production of a man as important as heredity. We have now to consider the formal parts of the education of George Higinbotham. Having received a very careful early training at home, he went to school at Dungannon and then to college at Trinity, Dublin. The Royal (School of Dungannon was founded on April 20th, 1614. This is claimed on the prospectus of the school ; but characteristically enough it was not founded at Dungannon, but at another place, Mountjoy, on the shores of Lough Neagh. It seems that at the Plantation of Ulster in the reign of King James? I., when the greater jjart of six counties was parcelled out amongst English and Scottisljj^ettlers, some of the confiscated estates which had escheate^™pthe Crown in that province were conveyed to the Archbisl^^^f Armagh in trust to maintain grammar schools for the emication of youth in learning and religion. Four schools were founded, ever after- wards known as the Royal Schools, all situated in Ulster and all exclusively Protestant. The school at Mountjoy continued there for over a century, and w^as transplanted to Dungannon, in 1720. The present school buildings were erected about 1790. There have been considerable additions to them of late years, bringing the school up to the level of modern 8 MEMOIK OF (lEORGE HIGINBOTHAiM ohaj-. requirements, but the principal parts of the buildings were the same during tlie first half of the present century as they are now. One of the modern requirements of a school with any pretension to be a public school, is the keeping of records ; but apparently in those days it was not thought to be import- ant. No record of admissions has been preserved, but from a private source it has been ascertained that his years were between thirteen and fourteen when George Higinbotham entered the Dungannon Hchool. In December, 1841, his name occurs in a prize list as having obtained "10 Premiums," but unfortunately the exact meaning of a " premium " is not recorded. At an English public school ten would be con- sidered a large number of prizes, but as many as nine boys in the Dungannon list obtained more than ten, amongst whom is "Douse, 15." In spite of the variation in spelling this schoolfellow was afterwards the humorous M.P., and later Chief Baron Dowse. From the oi-der of names in the list it would appear as if Higinbotham, then aged 15J-, was drawing nigh to the head of the school, for only five names are printed before his. The headmaster of the Royal School, Dungannon, from the beginning of 1831 for a period of neai-ly twenty years, was the Rev. John Richard Darley,^ himself a pupil of the school. Mr. Darley after giving up the school was a parish clergyman for neai^ly a quarter of a century, and then he was elected Bishop of Kilmore, being the second Irish bishop elected after the Disestablishment of the Irish Church. Under Mr. Darley the Royal School of Dungannon, some- times incori'ectly called Dungannon College, held a very high reputation, and was considered to be the first of all Irish schools. He was evidently a good schoolmaster of an old- fashioned type, and published works on the Grecian drama and on Homer. On the present prospectus of the school, beneath a coat of arms bearing a castle gate, there hangs a laurel-crowned bundle of books, which are labelled respectively Horace, Geometry, Xenophon, and English Literature. The last is certainly a modern addition to the bundle. In the two decades when Mr. Darley was headmaster the curriculum 1 Born 1799, and died 1884. II SCHOOL AND COLLECK H consisted chiefly of the classics, tempered by a little mathe- matics. Education was in the pre-Arnoldian era, though the hero of this memoir was sixteen when Arnold died. It was not until after Arnold's death that the new influence spread to other schools than Rugby, and it was naturally some time before it crossed St. George's Channel. Tt is not attaching blame to Mr. Darley to say that he was of his own period. The following quotation from the speech which he made to the boys when he left ]3ungannon conveys an image of the man he was : For twenty-four years, foui- at Dundalk and twenty at Dungamion, the Lord has prospered my work. My school lias been uniformly successful. The greatest love and affection have existed between my pupils and myself. Never have they done anything intentionally in word or deed to give me the slightest pain or annoyance. Their conduct has been most exemplary, their success in college most distinguished. Many are now distinguished members of the church, of the bar, of the armj;. Many have fallen asleep in the Lord and are now happy members of the church above in glory. And to what do I attriliute this great success ? Not to any peculiar talents or acquirements of my own, but simply to this, that I have ever based education on the Word of God, that I have made the circulation of Gospel truth of paramount importance and that I have daily instructed my dear pupils in the Holy .Scriptures. It is natural that when a man is abandoning a work in which he has spent many happy years, his heart should be open, and that he should perhaps exaggerate a little. A well- known English schoolmaster on a similar occasion said, that recently with one pen he had signed 500 reports, and not one that was not good ; whereupon the comment rises — then they could not all have been true. The doctrine of the corruption of human nature held by both these clergymen, or even the law of average requires that there should be some naughty boys. 8ir Frederick Darley, the Chief Justice of New .South Wales, was under his uncle at the Royal School, Dungannon, and being asked for his memories of the school at the time when his brother Chief Justice was there, kindly Avrote : I was at Dungannon College with the late Chief Justice, liut for a short time only. I regret to say that my recollection of that time, over fifty-two years ago, is rather dim. When I went to Dungannon in October, 1840, the Chief Justice had been there for some time, and had 1<» .MKMOJi; OK (iEOHliK H1(;IXI5()I"H AM . ii ai-. ucquii'od a good position and obtained mucli iniiuonce in tlic .sciiool. 1 recollect I entertained for hiin the most profound respect, and altliough there were older boys there he then appeared to me to stand head and shoulders over all others in every good and manly quality. He was a great favourite, particulai'ly Avith the j'ounger boys. School life in those days was a rough one, and I well recollect tlie Chief Justice on more than one occasion interfering for the protection of little boys when bullied. I was then a little fellow al)out ten yeaj-s of age, and I know he frequently befriended me. There is one story which can, I believe, be atithcnticated. A little boy appeared in the school in a garment of which he was very proud, because it was remarkable for a great display of buttons. It occurred to a big boy that it would lie humorous to remove the buttons, and much to the little boy's distress he carried out his joke, wheiTupon George Higinbotham intervened like one of Homer's avenging deities, and thrashed the big l)oy. It is said that in after years all three of the persons of this little drama were in Australia, but they did not meet to renew their memories of it. Having heard the story, I told it to my father-in-law ; but he would not acknowledge it, and put it aside with a laugh. At the Pjxamination for Queen's Scholarships, recently held in the University, Mr. George Higinbotham, a Pupil of Dmnjainion School, was awarded fir^t place among the Candidates from all tlie Royal Schools, to which such Scholarships are attached. The following Pupilx of Dunf/annon School ol:)tained — Mi\ Higinbotham — A Qiieen"s Scholarship of £.50 ]ier annum for five years. Mr. MacSorley — A Queen's Scholarship of £80 per annum for five years. Mr. Armstrong — A Queen's Scholarship of £30 per annum for two years. The above is an extract from an old advertisement, dated 27th December, 1843. It will be observed that "the University " means Trinity College, Dublin ; there was then no other in Ireland, and the English Universities were out of the question. A copy of a letter from the headmaster is preserved, in which he congratulates the winner of the scholarship, and adds, " By beating the three who gained first places at July, October, and November (Examina- tions), you have brought me more ci'edit than any boy ever yet did." It seems, however, that there was some little II SCHOOL ANT) COLLEOK 11 (lifficiilty about tlie award of the scholarship, on the ground that the winner had not gone up direct from school to the examination. The regulations of the Board of Education required that there should be no interval. In this case there was an interval of nine months, during which the candidate had been reading pri\ately or coaching in Dublin with a view- to improving his prospects of success. " It was found, however," wrote the Secretary of the-lloaid ov some member whose letter has been preserved, "that tlie regulation has not been always enforced with perfect regularity, and it Mas a sincere gratification to me, and I believe to every member present at a well- attended meeting yesterday, tliat upon that ground we could admit to the enjoyment of a scholarship one whose answering had been so distinguished as that of your young friend w;is leported to iuive been by his examiners at the late examination."" This was a brilliant commencement to a university career, the technical particulars of which are subjoined in a list compiled from official sources in Trinity College, Dublin. 1844. As a .lunioi Fi-eslnnaii. /// Littri'^ Hnmaninrihii''. First Rank. Hilary Term Second Place. Trinity Term .... Tiiird Place. Michaelmas Term . . . Second Place. 1845. As a Senior Freshman. Iv Literin Humaniorihiis. First Pank. Hilary Term First Place. Trinity Term l*"'oiirth Place. Michaelmas Term . . . Second Place. In the examination for admission to the Rank of Sophister whicli is called the " Little go"' and is a general exanunation. Fiftli Placu. 1-j mejMoji; of (;k()H(;|'; nKiiNHoriiAM .hap. 1840. As .lunioi- So])hister. In Literis Humanioribim. First Rank. Hilary 'I'enii Second Place. Ill the two later terms he was evidently preparing for the ap})roacli- iii,H' Sc]iolai'siii]j, M'hicli he obtained. 1 S47. As a .Senior Sophister. Ill Litn-is llumaiiiorUiiis. First Rank. Hilary Term Trinity Tei'm The only Honour man. Probably all the rest were M'orking for degree. 1848. B.A. degree at the first commencement of Michaehnas '{"erm. 1st Grade. Respondent. .Srd Place. Each universit}^ has its own phraseology, and tliere are several of these university expressions which will not be familiar even to men of other universities. The term " respondent " means a pass-man "who does exceptionally well, and answers to the "honorary fourth" of contemporary Oxford. This much seems clear from the record, that this is a good university career, though not of exceptional brilliance, but that it did not receive its crown and finish. In the mind of every one who understands the record would rise the expectation that it would end in Senior Moderatorship, that is, a First Class in Honours in the Degree Examination, and possibly in a Fellowship. What is the reason for this seeming failure at the close ? To this inquiry a near relative of his own time makes answer : " After the achievement of the above collegiate successes ' a change came o'er the spirit of his dream.' " A train of providential events during the middle of the forties, 1843-1847, brought about the turning-jooint in George's life of prosperity. That "tide in the affairs of men, which taken at the flood leads on to fortune," had come for hi,m. He was one of the comparatively few who, whether consciously or otherwise " take it at the flood," and in the end 11 SCHOOL AND COLLEOK 13 realise the prediction. With a characteristic energy of mind which loves to translate itself into action he resolved to exchange the lettered ease of a University career for one which should bear at once more immediately and practically upon the profession for which he was destined. Amongst George Higinbotham's books are two prizes gained at Trinity Coll e'ge— Midler's History of Grecian Literature, and Butler's Analogy and Sermons. The latter is nmch marked, and evidently has been closely studied. The subjects for wliich the prizes were given are not recorded in them. The Historical Society is the great debating society of Trinity College. It is rightly famous, as nearly every Irishman of note has had some connection with it. George Higinbotham not only belonged to it and took part in the debates, but he sei'ved on the General Connnittee for a year. It was in this society that he first won his spurs as a debater. A contemporary testifies that his speeches were " very much to the point." A mere record of success in university examinations after all gives but little insight into a student's life at the university. The regular \\ork of a univei-sity, what may l^e called its legitimate business, is, in the case of hard-working- students, such as George Higinbotham certainly was, a very important element in their mental history, but it is almost more important to know about companionship and similar influences at that seminal period of life. It is in a sense characteristic of George Higinbotham that his most im- portant friendship was with a lady some twenty years older than himself, who influenced him greatly. Mrs. Brougham was the widow of a clergyman, and the daughter of Sir •John Macartney, Bart., a member of the old Irish Hous(; of Commons before the Act of Union. Left a widow very young with two sons, she had settled in Dublin for the l)enefit of their education, to which she devoted herself with complete singleness of purpose. Education at schools did not. in those days cover so wide an extent as at present, and this lady tried to supplement the teaching of her sons by introducing them to the Ijeauties of English literature. As the boys grew up, she cultivated friendshi^js for them, and her brother, that venerable man the Dean of Melbourne, has told me that amongst the young men of licr acciuuintance she 14 :MKM0TR OP^ (}Kf)Rf!E HTfiTNHOTHA M chap. picked out Roljeit iind George Higinhotliam as the two with whom she was most pleased to see her sons intimate. The (^Ider of tliesc sons, tlie Dean of Lismore, was George Higiul)othani's chief friend amongst liis college contem- jioraries. In the following letter the Dean has kindly written his leminiscences of the old days. His letter includes one written in the last six months of the Chief Justice's life, containing a warm appreciation of the late Mrs. Brougham, who jDassed away but shortly l^efore him. It may he well here to state that he was not given to exaggeration in the use of language. When he wrote he Avrote calmly, and language which from the lij^s of some might appear extreme expressed his deliberate feelings. Even if he had not written the words himself, all who knew him intimately knew that Mrs. Brougham was " the oldest, the most steadfast and the most revered " of his friends. 8he was a woman of singular liberality of thought, openness of mnid aiid greatness of character. Dkankkv, Lis.moke. JIarch 22nd, 1898. My DEAR Mk. HlCilNBOTUA.M, — I cannot now remember whether I first met your father when we were reading for entrance in T.C.D. in 1843, or for the Hilary Term Examination in 1844. We entered on the same day and got fifth and sixth places ont of 105 candidates. After this, we read together for nearly three years, at first with Mr. Rutledge, who was afterwards a Fellow, and subsequently by ourselves. Your father had been educated at Dungannon, and got a Royal Exhibition soon after he entei'ed college. He got first Honours in Classics at every examination in his Freshman years, and then an University Scholarship. So far, lie and I had v\\i\ side by side, l)ut, in the beginning of our Senior Sophister year, just when we were beginning to think that it was time for us to see about our Classical (Jokl Medals, he was unexpectedly obliged to go to London and ])revented from going on with his College work, so that he did not take his degree for some time after. He and I read together for some examinations, without a " grinder " (as the ecpiivalent to an Oxford "coach," is called in T.C.D.) Fluent translation was then thought a great deal of, and we used to translate aloud to each other for liours together, and I Avell remember your father translating page after jiage of Greek and Latin historians, poets, orators, and dramatists steadily and literally, without pause or hesitation, just as if he was reading an English author. He took a great interest in the " Historical Society," and often took part in the debates, and in the private business which folloAVcd them. Games and athletics were not much in vogue in the "forties," but Ave II SCHOOL AND COLLEGE 15 had a good deal of boating, and though yoiir father never rowed a race, he often came down to the Rowing Chil), and pulled his oar sturdily, with the same determination that he showed in everything he under- took. Some of my College friends used to come once a week to spend the evening at my mother's house. Amongst them were — J. Y. Rutledge, afterwards a F.T.C.D., H. Fleming, now Dean of Cloyne, and his brother Becher, W. St. J. Clerke, a mathematical (!old Medal man, — your father, and his brother Robert, a Gold Medallist in Logics and Ethics. Amongst other things, we used to write papers in prose or verse, with iictitious signatures, which my mother used to read aloud, and then they were discussed and criticized. I have two of your father's papers still, and I send them to you as they are probably some of his earliest attempts at English comjjosition. He was a great admirer of Dickens, and I think you will see some traces of that author's style, in the paper on "The Historical Society." I also send you a couple of •' Honour papers on Homer and Aristojjha- nes," which were given at the first and third examinations he and I went in for, as they will show you the class of questions which were given to Freshmen half a century since. After our university course was ended, your father A\ent to Loudon, and I went to a country parish, where they thought — perhaps rightly — that a gold medal for a yearling shorthorn at the spring show was a far higher distinction than one awarded by the university'. I did not hear directly from jour father for many many years, but he and my mother used regularly to correspond, sf) that we often heard of each other indirectly. My mother was the Dean of Mell^ourne's onl}' sister, and when she died in January, 1892, at the age of eighty-seven, I wrote to tell your father, and leceived the following answer : •\Tiihj 17, 1892. " Mv Di;.\R Henry, — " I lateW received your kind letter of May 17th. I had previously learned from my sister-in-law and b}' newspaper the death of j'our mother. She was the oldest and the most steadfast and the most revered friend I had the unmerited happiness to possess in this world. Neither time, nor long separation, nor the known diversity of our thoughts and interests appeared to change her kind disposition to me, fi'om the time I first had the privilege to kaiow her more than forty- live years ago. Her memory will be jnecious to me as to you for the rest of my life. Her tlioughtfuluess at the sujireme moment was very characteristic. I do not remember giving her a ring, but I shall be glad to receive it back with her last message, and to keep it, with many tokens she has sent to me from time to time. " There are some Trinity men, not many, in Victoria, and they have been interested in the Tercentenary Celebration in Dublin. Our action, [ fear, will be justly thought ignominious, if, unhappily, it be noticed at all. The times are so bad that onlj^ about £150 could be raised. That ^\•as oiu* misfortune, not our fault. But the majority decided that this sum. instead of being given to Trinity to help to erect the ucav hall 16 MEMOIR OF GEORGE HIGINBOTHAM cn.u-. ii there, should be applied to found prizes in our own University of Melbourne ! The Venerable Dean of Melbourne, with whom I was proud to find myself in company on this point, said that our sympathy with Alma Mater uould only be described in (Toldsmith's lines : — ' ' ' Her generosity was such It almost seemed divine,— She fed the hungry every day When — she sat down to dine. ' " Please give, &c., &c. " I remain, " Youi- old friend, "George Higinbotham.'' This was the last communication I received from him, and like our earliest, it referred to " old Trinity."' I remain, Yours very faithfully, Henry Brougham. Of the documents which the Dean transmits, it is perhaps not necessary to print examination papers in Homer and Aristophanes. Those who have dealt much with examination papers know the i-emarkable family likeness in those necessary, but not interesting, products of human ingenuity. Nearly fifty years ago they were not very different from what they are to- day. Of the two essays one is on the Historical Society and the other on the theme, " Is a strong sense of the ridiculous a desirable quality, or not ? " The essayist answers the question in the negative, and chiefly on moral grounds. Ridicule " never conferi-ed a single l^enefit, averted a single ill, dried a single tear, or imparted one single atom of real and permanent pleasure." The Tercentenary of Trinity College, to which allusion is made in this letter, took place in 1892. Delegates from other universities far and near attended at Dublin, the two Australian universities of Sydney and Melbourne being represented. Many honorary degrees were conferred on visitors, and some in absentia on distinguished sons of Trinity. It was a matter of regret that tlie university did not offer the com- phment to the Chief Justice of Victoria, who had brought honour to his Alma Mater. It is not certain that he who refused knighthood from his sovereign would have accepted the offer, but it is certain on account of the love that he bore towards his university he would ha\'e liighly ap]ireciated the compliment. chaptp:r ttt JOURNALIST IX LONDON Loiulon — Tlie Jlorninij Chronide — Its history — Woodfall — Perrj- — Black — Dickens leaves the Chronicle — Its new Proprietors, Peel- ites — Peel's proud position — Events of period, 1848 to 1854 — Social articles in the Chronicle — Hei'o-worship of Reporter — Review of Tenn3'son's poem in Keepsake — Of the Court Album — Literature of period. In 184:7, at about the time when he came of age, George Higinbotham went to London. It was a natural thing to do. For many yeai^s Ireland, like Scotland, has pi'oduced more men of brains and education than were needed to fill the positions open to them at home, and the}^ naturally swarmed into England, India, and the Colonies. The two years 1845 and 1846 were the yeai's of the Irish Famine that followed on the failure of the potato crop. The famine was followed Iw wholesale emigration from Ireland, so that the population of that country was I'educed from eight millions to five. Young men with bi'ains seeking to make their way in the world are attracted to London. Higinbotham's plan was to support himself by journalism until he could be called to tlie bar, and then to practise as a barrister. Shortly after liis arrival in London he joined the stafi" of the Morning Chronicle, at first as a genei'al reporter, and after he had learnt shorthand he became a parliamentary reporter. Through- out life he always found the knowledge of shorthand of great value to him, though of late years his system (an earlier form of Pitman's) was looked upon as old-fashioned, for in forty years great improvements were of course introduced into the art. On the margin of books he wrote shorthand notes ; of an c IS MIOMOTK OF (iKOHCK H K ilXlUTrHA ,M mw. important letter ho made a shorthuiul draft ; liis judgments on the bench were composed in sliorthand. If old-fashioned, his shorthand was neat and accurate, and he could always read his own notes. In February, 1848, the Morning Chronicle passed into the hands of a new proprietary, and was placed under a new editor. It is not possible to ascertain whether Mr. Higinbotham was Avorking for the paper during the few months that immediately preceded the transfer. The paper was then nearly eighty years old, and had certainly a brilliant history. It was first established in 1769, about half-way between the Seven Years' War and the American War, in the very j^ear in which the first of the Letters of Junius was published. Its first editor and in part i:)roprietor was William Woodfall, a man of importance in the histor-y of the press. To force of will and literar}^ ability he added a wonderful memory, which enabled him to report debates in Parliament without taking a note. His favourite attitude in the Visitors' Gallery is described as leaning on a stick with his eyes closed, and this position he only varied when a new speaker addressed the house. Woodfall's time was just al)out the close of the long struggle between Parliament and the Press, and though Woodfall was permitted as a stranger to hear the debates, he would not have been allowed to take notes. Twenty years latei', in 1789, the year famous for the beginning of the French Revolution, Mr. James Perry became editor of the paper in Woodfall's place, and after a while a half-proprietor. He possessed a genius for newspaper editing, and during his long reign of over thirty years the Morning Chronicle became the leading English newspaper. In 1850 Mr. Knight Hunt published a book on the history of newspapers under the title The Fourth Estate. His account of the Morning Chroiiicle closes with words here repeated on Byron's principle that " l^right names do hallow song." The Morninri Chronicle must not be dismissed without remembering that Sheridan speaks of it in his Critic ; that Canning linked it into one of his poems; that Byron honoured it with a " Familiar Epistle " ; that Hazlitt Avrote for its columns some of the finest criticisms in our or any other language ; and that for it also were the first ' ' Sketches by Boz " prepared. in .JOURNALIST IN LONDON U) This list of the distinctions of the paper might have been made much longer. Charles James Fox was intimate with Mr. Perry, the editor. Samuel Taylor Coleridge, just before enlisting in the cavalry under the name of Silas Titus Comberbatch, sent a poem to the editor, soliciting " the loan of a guinea for a distressed author" — himself. Mr. John Campbell, afterwards Lord Campbell, wrote for it the remark- able criticism of Romeo and Juliet : " It is too long for these days ; and we would recommend the author, before he puts it again on the stage, to cut it down." Another and more poetic Campbell, Thomas Campbell, the poet, tried journalism in the Morning Chronicle, but not being successful therein settled down to the Poets' Corner, to which he contributed as many as twenty poems in a year. Porson, who was Perry's brother-in-law, probably wrote for him. Sir James Mackintosh also assisted Perry with contributions. Mr. James Grant, a later newspaper historian, is right in saying — " It is due to the memory of i\Ir. Perry to state that he raised the moral, social, and intellectual character of the 2Iorning Chronicle to an elevation to which no newspaper, whether English or foreign, had ever before attained." Mr. Perry died in 1821. The third editor of the Chronicle, Mr. John Black, was also a remarkable man. Scotch of the Scotch, a lover of meta- physics, addicted to elaborate essays rather than sparkling leaders, he was a man of capacity and rare judgment. James Mill was an intimate friend and trusted ally of Black, of whom his son, John Stuart Mill, speaks with strong pi^aise in his Auto- biogrcvphy. The most characteristic story about Black is told in the Gentleman's Magazine for 1855 (p. 213). He was calling on Lord Melbourne, who in his abrupt way said, " Mr. Black, you are the only person who comes to see me who forgets who I am. You forget that I am Prime Minister." Black was stammering out an apology, when Lord Melbourne continued, " You never ask me for anything, and I wish you would." " I am truly obliged to you," answered Black, " but I don't want anything. I am editor of the Morning Chronicle, I like my business, and I live happil)' on my income." " Then, by God, I en\y you," exclaimed the Premier, '' and you are the only man I ever did." Black is said to have prided himself on being a judge of men, and he certainlv secured the assistance of able con- c 2 •20 MEMOIK OF OEOR(iE KKJINBOTHA.M ciiAi-. tributors, amongst whom the most important was Charles Dickens. In 1835 and 1836 Dickens was reporting for the Morning Chronicle in the gallery of the House of Commons. The statement made by Mr, Knight Hunt about the first " Sketches by Boz " is not strictly correct. Some of the later sketches were published in the Evening Chronicle, which was not a sepai'ate paper but a later edition of the Morning Chronicle, with later news and livelier articles. Dickens had a great regard for Black, and in common with other friends was indignant and distressed when a new proprietor dismissed the experienced editor from his post to make room for a son-in- law. For a space of seventy-four years, from 17G9 to 1843, the Moriiing Chronicle had only had three editors, all able men, of whom as a journalist Perry was the greatest. The paper lived for nineteen years more ; but for the most part it was like a vessel in chopping seas. The defection of Dickens was more important than would at first appear, for it led to the establishment of a formidable rival. Dickens was angry that the new editor, on the score of expense, refused an ofier of cer- tain articles to be written as travel-pictures of Italy. On his return from Italy he conferred with his publishers and others, and the result was the Daily News. Of the new paper Dickens was the first editor — a racehorse between shafts — but in less than three weeks he discovered his own complete unfitness for the post, and retired in time to prevent the utter ruin of the paper. The Daily News represented advanced Liberalism, whilst the Chronicle still continued Whig, or very moderate Liberal, but its days of Whiggism were nearly over. In February, 1848, the paper was bought by the Peelites. Four names are mentioned amongst the new proprietors, the Duke of Newcastle, the Earl of Lincoln, Sidney Herbert, and Mr. W. E. Gladstone. Sir Robert Peel, whose devoted followers these were, had been out of office about twenty months. In the middle of 1846 the Repeal of the Corn Laws had been carried. But on the very day that the third reading was passed in the House of Lords, a bill for the better government of Ireland was thrown out in the Commons, and in consequence of that defeat Sir Robert Peel resigned. In the teeth of many of his former followers Peel had succeeded in repealing the Corn Laws in JOURNALIST IN LONDON 21 through the assistance of the Opposition, but the members of the Opposition did not feel l:)ound to support him on any other matter than Free Trade. They thought his Irish measure too stringent and voted against him. Lord John Russell succeeded Peel as Prime Minister, with Lord Palmerston as Foreign Secretary, the latter being the special favourite of the Morniny Chronicle. The Ministr}'^ was at first in an actual minority in the House of Connnons, but received the support of Peel and his immediate followers the Peelites. On leaving office Peel was in an extraordinary political position. Sitting on the Opposition benches, he had more real influence than the ministers themselves. To a man of smaller moral worth such power might have been dangerous, but Peel had won the esteem of the great body of his countrymen by his candid and manly confession that he was wrong about Protection, and in or out of office he was the most influential man in the country, except the Duke of Wellington. After the Repeal of the Corn Laws, the Conservatives hardly dared to avow themselves as Protectionist, but many of the party felt so bitterly against those who had brought about the change, that tlie Peelites gradually drew more and more away from them, until at length they were absorbed into the Liberal party. Mr. Grant says that "the Morning Chronicle, under its new proprietors and editorship, became the organ of the Peel party in politics, and of the Puseyite party in the Church." The latter clause is of course an unfi-iendly criticism. The nickname " Puseyite " is only used by those who are hostile : a friend would have said "high church." From 1848 to 1854 the paper remained in the hands of its new proprietors, and then it was sold, because the separate existence of the partj^ was almost at an end, but partly also because the paj^er was being conducted at a serious loss, estimated at <£! 0,000 a year. In an obituary notice of Chief Justice Higinbotham in the London Graphic we are told that he Avas " one of that clever and accomplished band of literary men who then formed the Parliamentaiy staff of the Morning Chronicle — a journal that was, in the days of Mr. Beresford Hopes managing proprietorship, Mr. John Douglas Cook's editorship, and Mr. Philip Harwood's assistant editorship, the most perfect ' daily,' in points of literary form and style, and never 22 MEMOIR OF GEORGE HIGINBOTHAAJ chap. yet surpassed." Higinbotham's connection with the paper was nearly coincident with the period thus described. He may have joined it a httle earlier ; he certainly left it a little before its close. Let us briefly run through the events of that time. The year was one of revolution in many countries of Europe. The Smith O'Brien trouble in Ireland and the Chartist Movement in England were milder forms of the same agitation. In 1850 a fall from a horse removed the great Sir Robert Peel from the scene. In 1851 came the Great Exhibition of All Nations in Hyde Park, together with a general expectation of universal peace. In December of the same year took place the Couj) iVEtat in France, by which Louis Napoleon, President of the Republic since 1848, made himself Emperor of the French, an event which affected English political history. Lord Palmerstou felt a strong sympathy for the Emperor, and wrote despatches compromising the Ministry which had determined to be neutral. Lord Palmerston was therefore dismissed from the Foreign Office, and a little later took his revenge by voting against the militia bill of his former leader. In February, 1852, therefore, a Conservative ministry came into office under the Earl of Derby, with Mr. Disraeli as Chancellor of the Exchequer. During the year the Duke of Wellington died ; and the new Houses of Parliament were opened. In December the Earl of Aberdeen came into power, and in his Cabinet many Peelites found place, Mr. Gladstone being Chancellor of the Exchequer. It was this ministry which a little later " drifted " into the Crimean War, It was not, however, until March, 1854, that war was declared, and by that time the subject of this memoir was either in Australia or drawing near to its shores. In that year the Mornincj Chronicle, with an average daily circulation of only 2,500, was sold once more. Thencefox'ward, until its death in 1862, the paper dragged on a miserable existence, quite unworthy of its former liistorj'. It may almost be said that it ignobly ended as a vassal slave of France, for the new proprietor accepted a subsidy from the Emperor of the Fi'ench to make the Morning Chronicle liis organ in the English press, and actually sued the French Government in the French law-courts for non-payment of a part of his hire. Meanwhile Mr. Beresfoi'd Hope established Ill JOURNALIST IN LONDON 23 the Saturday Review^ and appointed Mr. Cook the first editor, while many of the brilliant writers of the Morning Chroniclers penultimate period helped to make the early years of the Saturday Revleiv famous. The Saturday Review may be said to liave sprun,!^ from the ashes of the Peelite Morning Chronicle. The managers of the Morning Chronicle during its Peelite period were anxious not to confine their attention to politics, but to give the paper weight on social questions, of the day. The Great Exhibition furnished an admirable opening, and no paper took such elaborate pains to describe every part of the great show and draw fi'om it all conceivable lessons. A series of exhibition supplements aj^peared, which were deservedly admired, but they did not lead to a permanent improvement in the circulation. Articles also appeai'ed on the condition of the poor in town and country, of which the most important were contriljuted by Mr. Heniy Mayhew, and formed the basis of the well-known book London Laboiir and the London Poor. It is not known whether Higinbotham was engaged in any of these articles. Indeed, but few stories of his journalistic work are preserved. On the day of the Duke of Wellington's funeral he was on duty as a reporter in Piccadilly. It was a melancholy duty, fox- Higinbotham was a warm admirer of his countryman the Iron Duke, who had the same qualities that he had — prompt decision and resolute will. A story is repeated that as a young man he was told off to report a Waterloo dinner, but that when the Duke rose to speak, the spirit of hero-worship was so strong upon the young pressman that, gazing with admiration on the Duke's face and drinking in his words, he forgot his duty as a repoi'ter, and took no notes of the speech. The report of the speech in the Morning Chronicle had to be furnished by the kindness of a less ardent reporter belonging to some other paper. As illustrating hero- worship, the story is hen trovato ; but the Duke never spoke at any length, and the interest in his words would probably have helped out even a memory that was perhaps never very good. A very similar story Higinbotham used to tell himself about a speech by Mr. Gladstone, which it was his duty to report from the gallery in the House. The interest which the reporter felt in the speech was so intense that his short- hand notes became confused, and ultimately were so incom- plete as to be worthless. 24 MKMOU: OF (JKORUK HKilNlUJJ'HAM chap. Some writers for the press, perhaps not many, keep copies of the articles that they write, neatly pasted into a book. When Mr. Walter Besant came to prepare the life of Professor Palmer, the Orientalist, who fell a victim to Arab ferocity, he found his journalistic activity represented by several volumes of extracts. The only copy of the Morning Chronicle that Mr. Higinbotham left behind him is that for November 30, 1850. On it is written in a hand, something like his, "Reviews of the Iiee2Jsake and Court, Album." As they are probably his, a couple of short extracts may be given. The Keepsake was edited by Miss Power, a niece of " the late Lady Blessington," and contained contributions b}"" Sir E. B. Lytton, A. Tennyson, Walter Savage Landor, R. Monckton Milnes, besides other writers of less permanent repute. There is a full account of certain stories from the Keepsake, and then a short comment on Tennyson, who had been appointed Poet Laureate eleven days before the review appeared. No allu- sion whatever is made to the fact, and it is possible the review was written befoi'e the appointment was made. The Princess had been published three years liefore, and In Memoriam that veiy year. The poetiy of the present \()huue of the Keejisake is, ou the whole, scarcely equal in merit to the prose contributions. Yet liere are three stanzas by Tennyson, which, if we mistake not, will be welcome as flowers in spring to all who can find in the abrupt irregular verse of " The Two Voices" a deep current of great thoughts and the massive elements of a noble faith, enveloped though they be in speculative doubt and an intellectual darkness " that maj^ be felt."' " What time I wasted youthful hours. One of the shining winged powers Showed me vast cliffs, with crowns of toMcrs. " As towards that gracious light I bowed. They seemed high palaces and proud. Hid now and then with sliding cloud. " He said, ' The labour is not small ; Yet wiiids the pathway free to all — Take care thou dost not fear to fall I " " The Court Album contained a series of fourteen ladies' portraits. The review is written in a courtly tone of admir- ation. Two sentences onlv shall be quoted, wliich will shn\\ iiT JOURNALIST IN LONDON 25 that the author "s style was t'ornied before Macaulay and short sentences caixie in. Nor are we forgetful of the dictuiu of Lord Bacon (.sh"), " that that is the best part of beauty which a picture cannot express," and we fear that in addition to having our judgment " disabled," which since the days of Paris, has always been the result of any expression of opinion on the claims of rival beauties, we should lay ourselves open to the cliarge of presumption in venturing to come to any conclusion at all on so momentous a subject from the necessarily inadequate and imperfect testimony of an engraving. We cordially recommend this volume to those who wish to possess themselves of really good specimens of the engraver's bnrin, and still more to all who have the higher wish of implanting in their hearts and memories the bright glances and sunny smiles of those whose presence is the fairest ornament of an Englishman's home, and whose remem- bered image constitutes, in their absence, one of the best and pxirest of his pleasures. This high and chivah'ous appreciation of women was always a note of George Higinbotham's mind. It remains to be said that the Instrnm during which CJeorge Higinbotham was reporting in London, chiefly in the gallery of the House of Commons, was a famous time in literature. Among the new books then appearing that were likely to help in forming a young man's mind, were many which are counted among the permanent treasures of English literature. Dickens, whose newspaper enterprises have been mentioned in this chapter, Ijegan his work young, and had already pub- lished seven of his most famous novels. David Copjyerjield is his only novel of the time. Thackeray, w^ho was tempted to wi'ite occasionally for the Morning Chronicle, made his reputa- tion as a novelist by Vanity Fair, in 1847, which he followed quickly by Pendennis, Esmond, and the English Humourists. Vanity Fair, and Charlotte Bronte's Jane Eyre, are the greatest novels of 18-i7, but in that year Disraeli's Tancred also appeared. Charles Kingsley was dabbling in deep waters with Alton Locke and that strange book Yeast. Lord Lj^tton published, in two consecutive 3'cars, Tlie Caxtons and Harold. Tennyson was not the only poet before the public, though he was probably the most read. A. H. Clough and Matthew Arnold each gave forth a volume of poems in 1848. Hood's Pnem>i of Wit and Hiimovr belong to the previous year, 26 MEMOIR OF GEORGE HIOTNliOTFTAM chap, iit whilst in the following, Robert Browning's Poems, and in the year after Easter Eve and Christmas Day found audience fit though few, probably very few, and his wife's Sonnets from the Portuguese showed how poets can love. Amongst writers of prose other than fiction Carlyle, whose influence was strongest, is represented by the Latter-Day Pampldets, and the Life of Sterling. The first two volumes of Macaulay's History of England, really the history of the English Revolu- tion and its results, appeared in the year when all countries, other than England, seemed to be in the throes of revolution. In the same year Mill's Political Economy found ready ac- ceptance ; whilst John Ruskin, who in after life often girded on his armour to attack what is known as the orthodox Political Economy, that is, the teaching of Mill and his followers, is only represented by the Seven Lamj)s of Architecture and the first volume of the Stones oj Venice. His friends and allies rather than followers were in 1850 issuing The Germ, a small magazine, the organ of Pre-Raphaelitism. In all these books there were many influences at work, thought was fermenting in many minds, and no generous young man can altogether escape the inspiration of his time. CHAPTER IV CALL TO THE BAI! AND EMKiHATlOX .Studeut-al-law at Liiicoln'.s Inn, April •JOtli, 1S4S — Call to the IJar, .Tune 6th, 1853 — Mode of entrance to profession — Block at English Bar — Discovery of gold in Australia — George Higin- bothani emigrates in order to dig, but hiings wig and goAvn — Effect of discovery of gold on Australia — Australia before gold — Separation of Victoria, and discovery of gold at Chines, July 1st, I80I — The Rush — Character of tlie ininiigrant.s — The shij) Brfseis sails from Liverpool December 1st, 18o3, arrives in Hobson"s Ba}-, March lOtli, 1854 — Admission to Victorian Bar — First brief. FoiiTV years agu a change was made in the method of admis- sion to the learned profession of barrister. Since that change some knowledge of the law has been regarded as a condition preceden.t, Imt in the earlier period, to which George Higin- botham's call belongs, it was not thought necessary that future lawyers should be taught law. On April 20th, 184:8, George Higinbotham, having then been about a year in London, entered himself as a student-at-law at Lincoln's Inn. No one required of a student-at-la^- that he sliould study. If he so desired, he studied. A friend, Avhoso call at Lincoln s Inn was a little earlier, \vrites : — In my time the only requirement before call was the ridiculous one of having eaten so many dinners in so many terms, and the having presented yourself before the senior barrister at the Bar table, and having read one or two lines of a mock opinion prepared, as I believe, by the butler, whicli would run somewhat as follows: — "I am of opinion that the widow was entitled to dower out of Blackacre,"' at which point the senior barrister would bow, and the candidate walked away, thinking what a farce the wliole thing was. I forget 28 MEMOIR OF (^KOR(iK HIGINBOTHAM chap. the technical name given to the farce, but it -was admittedly done for the purpose of presenting every candidate for call Ijeforc his Inn, so that the Bar of the Inn could inspect him and see whether he was fit to be called. Well, we were all called. Then we were sujjposed to have wine and dessert in a room, I think, underneath tlie hall, where we invited those Bencliers who dined on that day at the Hall to par- take of our feast. The rascals came in numbers, because we were required to present every Bencher, who honoured us thus, with two bottles of Madeira and three bags of "comfits" to take home with them, the latter being notoriously looked after b}' the Benchers' children, who kept their fathers up to the mark on call-day M-itii a view to the lollies. The use of this last wuitI proves that tlie friend was resident in Australia. There was at that time no examination ; but in February, 1852, a scheme was px'omulgated to provide for lectures and examinations. The first lecturers were appointed in January, 1853 ; and on June Cth of that year George Higinbotham was called to the Bar. It is easy to imagine with what feelings he went through the farce above described, and how warmly he welcomed the prospect of reform. When a man is called to the Bai', unless he has interest amongst solicitors, an interval ensues before briefs come to him. Of course, if lie has private means sufficient to keep him, he can wait until an opportunity may ofl'er. The delay, if not too long, will do no hui-t ; fclie young barrister will continue to read law ; he will frequent the courts and become acquainted with their practice. Some day a barrister will be absent, and a solicitor w-ill turn to the briefless one, or a judge will assign counsel to an undefended prisoner ; then he has his opening. The liigher branch of the law is still a pi-ofes- sion in which A few by wit or furlune led May lieat a ])athway out to wealth and fame. The number of nominal barristers in England is very large, much larger than present or prospective litigation needs. Many who are called never mean to practise. Their role in life is different — perhaps to be country gentlemen ; and the future justice of the peace qualifies for his work by being called to the Bar. E\en when all these nominal barristers are deducted, the IV (V\LI. TO THK MAR AND HMKUiATlON "JO number is too large. Earl iStanhope tells that once in con- versatioii Macaulay illustrated this excess by pointing out to him that " the ancient device of the Templars had been two knights upon one horse, to indicate the original poverty of their order ; and he observed that the same device might be as aptly applied to the modern members of the Temple — two bar- risters at least to one cause ! " Tf the newly-called barrister has no private means and has to work at on6e for daily bread, there is no doubt that the chance of an opportunity offering itself is greatly diminished. The law is a jealous mistress, and if a man takes to teaching or to joui'nalism, he may not be at hand when wanted. He is in the position of one trying to combine incongruous things. The solicitor at any rate will fancy that he is not whole-hearted in his legal work. Even to be known as a cricketer has before now damaged a young barrister's chances. To the man without family connections amongst solicitors, who happens to be what the song describes as "an impecunious party," the Bar of all professions offers the worst outlook. George Higinbotham having been called to the Bar, on looking I'ound him saw little reason to hope for advancement in his profession, or even for any work at all in it. What is that which I should turn to, lighting upon days like these ? Every door is barr'd with gold, and opens but to golden keys. Every gate is throng'd with suitors, all the markets overfloAv. It may be that thoughts like these ran through his mind ; it may be that they were expressed in these very words, for Locksley Hall had been published eleven years, and the volume that contained the poem was in its eighth edition, and was the favourite reading of young men. If gold was the metal that barred the door and gold the metal that would open it, another and apparentl}'^ shorter way to obtain the key was being ever5rv\^here spoken about. Two years previously gold had been discovered in Australia, and the bold and ven- turesome were hurrying to Australia to dig for it. For no special qualifications were required, no training as a miner. These diggings were alluvial, and any man who had strength to dig might, if he were fortunate, find in a few weeks enough to make him rich for life. The principal outfit needed was a »» MEMOIh; OK (iKOHdK f^KilNlJCTl'HAM oiai-. stout heart, and there is no doubt that George liiginbothaui was equipjjod with that. Once in later years I asked him why ho came out to AustraHa, and ho said : " T was in despair about making my way at home." To those who in after years knew the dignified judge tliere seems something almost humorous in the idea of his digging, rocking the cradle, eagerly panning out, and mixing in all the rough-and-ready life of the gold-fields. To those who knew his indifference to gain, willingness to give rather than receive, and strong aversion to speculation, there seems something incongruous that he should care to seek gold at all. But the difference of age must be remembered. At twenty- seven the need was borne in upon him that something must be done, a path chosen and entered upon, and the spirit of venture was strong within him. As a matter of fact he never did dig. A friend in London gave him the wise counsel to pack his wig and gown, and take them with him, as there would be need of lawyers in Melboui^ne quite as much as of diggers on Ballarat. Almost from the moment of reaching Victoria, work in journalism and at the Bar offei^ed itself in abundance. The attraction of digging for gold was not strong enough to draw him from the work in town thus immediately present, and very soon all idea of digging was abandoned. There is reason to believe that Mr. Higinbotham never regretted his resolution to come to Australia. He did once say to me that if he had his life over again he would choose country pursuits in preference to a town life ; but it is difficult to determine whether this was a deep-seated feeling in his mind, or a passing fancy. Whether it be true or not that, as the ancient poet says, gold is best unfound and left in the earth, there is no doubt that the discovery of gold made an enormous diffei'ence in the history of Australia. A writer in 1854 told how an admiral whom he had known had said to him that he was a midshipman serving in the Channel Fleet when the first ships carrying convicts to New South "Wales passed down the Channel, that his captain put a hand upon his shoulder and said, " Mark those ships, youngster ; they are going forth to found a new empire." Ei-asmus Darwin, grandfather of Charles Darwin, a year or two later was writing vei'ses that IV I'.WA. TO THK liAf; AND lOMK^KATlON ni prophesied the future greatness of iSydney. Jn one of his latest poems Campbell wrote of Australia : — As in a cradled Hercules we trace The lines of empire on thy infant face. It seemed, however, as if the infant were growing but sloAvly. In 1850, sixty-two years, or nearly two generations, after the arrival of Governor Phillip and his slii'ps at Botany, in spite of transportation and immigration, the whole white population of Australia did not reach a quarter of a million. In 1891 it was over three millions. Very soon after the middle of the century gold was discovered, and the discovery acted as a magnet to population. The question whether it was better for Australia that its development should be thus hastened by the discovery of gold need not here be considered, nor the question whether population is in any way an index to prosperity. About the importance of the discovery no two opinions can be held. It changed the face of society in Australia. Hitherto flocks and herds were the chief, and almost the onl}'', source of wealth. Of agriculture there was comparatively little. There were a few merchants, and a few- professional men. But the former were engaged in the exportation of wool, and the supplying of necessaries to squatters ; the latter may be said similarly to have depended on the staple product of the country. The price of wool regulated the welfare of the community. Gold brought population, created variety of industries, and gave work to many more to furnish supj^lies necessary for this larger population. In 1850 the law passed the Imperial Parliament creating the Colony of Victoria, by separating the district of Port Phillip from New South Wales. On the 1st of July, 1851, it came into force. In that very month it was announced that gold had been discovered in Victoria. Scientific men had held that there must be gold in Australia ; shephei'ds had here and there found lumps of the precious metal. Officials, apprehensive of the consequences, had tried to conceal such discoveries, and had actually concealed them for a while. But the discovery of gold in the neighbourhood of Bathurst, made the people, in wdaat was soon to be called Victoria, dui'ing all the winter of 1851 anxious to discover gold in 32 MKMOIR OF CKOl^CiK H K ;TXI',()'ni.\ M < iiap. tlioir own district. A Gold Committee was appointed, and during July gold was reported in various parts of the colony. At Clunes it was discovered by a strange coincidence on the very day on which the colony began its separate existence. The rich gold-field of Ballarat was discovered in August. There had been a rush to Bathurst, and there was now a rush to the various gold-fields of Victoria. This rush was for about a j^ear confined to people in the colonies, but within the colonies it was for a time almost universal. Men left thoii" ordinary occupations, and went to dig for gold. The least desirable of the new arrivals in the colony came from Yan Diemen's Land, and an outbreak of crime and lawlessness was the result. Meanwhile the news of the discovery reached Europe. It is certainly surprising to find how slowly the news must have travelled, for it was not until September, 18.52, that the first detachment from Great Britain arrived. Those who were near at hand had thus at least a year's start. There was no telegraph, no steamer even ; but the letters and papers that told of the new El Dorado were conveyed by sailing ship round the Horn. The would-be diggers had then to come out in a sailing ship, and it was not at all uncommon for a voyage to take four months. This calculation leaves about four months for the making up of minds. Probably the first accounts were only partially believed, and men waited until the gold-ships arrived in England with large cargoes of the precious metal. Then the stoiy spread and began to influence imaginations. Then came ship after ship crowded with passengers, from Liverpool, from London, from Southampton, from Glasgow. It is stated that nearly L50,000, mostly men, came to Victoria within twenty months. To this extent it is possible to be more precise. On March 2nd, 1851, a census was taken, and the population amounted to 77,34.5. On Api'il 26th, 1854, the population was enumerated at 236,798. No doubt many of these immigrants, like Mr. Higinbotham, never went to the gold-fields at all. This sudden influx of population upset all existing arrange- ments. Almost all of the new-comers went to Melbourne ; but that was only a small town, and in a very short space of time its population was doubled, and trebled. There were not houses enough to receive all the new-comers, wherefore IV CALL TO THE BAR AND KMIU RATION :« Canvas Town sprang up. A large piece of ground, about two miles by one, lying to the south of the river Yarra, was entirely covered with tents. Emphasis has oft(ni been laid on the lawlessness of the diggers. There is rather room for surprise at their law-abiding character. The danger of simple lawlessness and crime was greatest at first, the danger of rebellion at a later time, but the latter might have been entirely avoided by a little tact on the part of the authorities. Amongst the first attracted to the gold-fields were many convicts from neighbouring colonies. Their numl^er has indeed been estimated at 10,000, but it was probably not so large. Some of these men were only to(j pleased to mix with the general people, and took great care not to come again within the clutches of the law. Many were guilty of out- rage and violence, of which the robbery of the gold-ship, Xel.son, was the worst example. It is probable that nothing was known of many deeds of violence wrought in lonely gullies far from the eyes of fellow-men. The character of the later immigrants, from Europe, was very different. As a rule pei-fectly law-abiding, they were strong, self-reliant, and courageous men, and most of them made admirable colonists. The ship Briseis 1,141 tons. Captain .1. R. Brown, left Liverpool on December 1st, 1853. This classical name was afterwards given to a famous racehorse in Melbourne, and was pronounced in very strange ways. The wonder rises whether the ship's name involved any allusion to the colour of the sails — usually more white in pictures than in reality. It was with her snow-white hue ^ that the captive maiden took the fancy of Achilles. Mr. Higinbotham might easily have found a larger ship, as many larger sliijDS were then making the voyage to Melbourne. The vessel, described as belonging to the Eagle Line of Packets, brought out ten cabin passengei's and thirty-nine in the second cabin.- Some of the passengers had been transferred from the ship Sapphire, which was wrecked a few weeks before, soon after 1 Serva Briseis niveo coloie Movit Achillem. - The names of the ten were thus given in the papeis on arrival in Hobson's Bay : " Mr. and Mrs. Robinson, Mr. and Mrs. Robertson, D 34 MEMOIIl OF GEOROK HKilXBOTHAM njw. commencing tlio voyage to JMelbournc 'Jlie Jiriftnis through- out her passage had very Ught winds : only one day did she make over 300 miles, and the whole voyage from Liverpool to Hobson's Bay lasted 100 days. Even forty years ago that was a long passage ; in the present day so swift and con- venient are steamers that the time then taken on the single voyage would be sufficient for a trip to Australia and back, including a sojourn of more than a month. The passenger by the Jifisein best known to fame, according to the testimony of a fellow-passenger, was " greatly respected by all on board for his uniform courtesy to each." He brought witli him a quadrant, and taught himself how to take the sun so as to ascertain the ship's position. It is said that the captain had no sympathy wdth this thirst for knowledge on the part of a landsman, and looked on the passenger's conduct as an intrusion on his own province. Mr. Higinbotham studied astronomy on the voyage, and of course kept a diary. In later life he sometimes commented on Bacon's shrewd remark " that in sea-voyages, where there is nothing to be seen but sky and sea, men should make diaries ; but in land-travel, wherein so much is to be observed, for the most part they omit it, as if chance were fitter to be registered than observation." The account of the J^riseus and her voyage furnished to the two Melbourne morning paj^ers winds up with the following eulogy : — " When her cargo is discharged, we understand her lines will bear comparison with the finest clippers, and the neatness and order on board does credit to her commander." The ship was heavily laden, her cargo amounting to 1,600 tons — nearly half as much again as her register. The cargo may well be described as miscellaneous. The heavy articles included 400 tons of coal, 8,000 bricks, and a good deal of iron ; but the list also includes large quantities of food, such as butter and cheese, of beer, and, most characteristic of all, 324 cases of champagne, the favourite drink of the lucky digger. When, in 1878, a building was being erected in a suburb not far to the south of Melbourne, the builders reported to me that a little below the surface the soil seemed to consist of sai'dine tins and broken champagne bottles. Misses Redmond (2), Messrs. Graham, Higginbotham, Clayton, and Kidston. " The name Redmond should have been Redmayne. TV CALL T() THE I'.AR AXD EMIGRATIOX 35 It was on tlie J Otli of March, 185-i, that tlie Briseis cast anchor in Hobsoiis Bay. On the 27th of the same iiionth Mr. George Higinbotliani, l)arrister of Lincoln's Inn, was admitted to the Victorian Bar. The fact is not recorded in the daily pjipers, but it will be found on " Y" Rolle of Y*^ Utter Barristers in y'^ Supreme Court of Victoria," jireserved in the ]ilji-ar\' C)f the Law Courts. Mr. Higinbotham's name stands forty-ninth. It is unfortunate that the record was not written up at the time ; it is still in pencil, and is inaccurate as to the date of the Lincoln's Inn call, but the Victorian admission is in all })robability correctly dated. It was pretty (juick after landing. The intervening time must have l)een rather an exciting fortnight in a new and wild place such as was the Melljourne of that day. The friend who advised the l)i'inging of the wig and gown was light. Legal work in Court came almost at once after the admission to the Victorian Bar, for barristers were wanted. The first brief was m the County Court, and was for the plaintiff in an action brought to recover money due upon a promissoiy note. The action was undefended, and the new barrister Avas ignorant of the procedure. He used to tell with a smile how relieved he felt when the judge, a kindly middle-aged man, who spoke with a lisp, said, " I think, Misthei' Higin- botliani, if you will justh put in the note, that will do.'" An intimate friend says that either l)efore or after this Ijrief there came an interval of something very like despair, when all funds were exhausted and no woi'k came in. The interval must ha^e been short, and suddenly the tide turned, and the particular turn of tide is characteristic of the state of the colony. One court day a l^arrister in large practice was drunk and incapable of work. Five of his briefs werv l;)rought in a hurry to Higinbotham, who acquitted himself well with them, and never afterwards lacked work. CHAPTER V KAULV LIFK IX MELBOURNE Canvas Town — Maniage — EmeiaM Hill, now South MellM)iirne — Exercise — Higinl^otham a volunteer — Story of camp — Testimony of Rev. R. B. Dickinson — Arrival of Thomas Higinbotham — Xews of death of Rev. Rol^ert Higinbotham — A sh(jrt notice of his life — Bishop Alexander's lines. On his first arrival in the euluny jNIr. Higinbotham hved for a short time in Canvas Town. A lady now living in Melbourne vividly remembers his helpfulness as a neighbour ; but he could not have remained very long in tents, for he afterwards lived at a boarding-house in Fitzroy long enough to form lifelong friendships. On the 30th of 8eptember, 1854, within seven months of his arrival in the colony, he was married. At Christ Church, St. Kilda, by the Rev. David Seddon, George Higinbotham, native of Dublin, was married to Miss Margaret Foreman, spinster, native of Kent. It was to a cottage on Emerald Hill that he took his bride home. This house, which was his residence for seven years until he moved to Brighton, is situated in Montague Street, al)out fifty yards south from Banks Street. In appearance this cottage with its roof of shingles was most unpretending, Init it was more comfortable than its appearance promised. An engagement with the Argus, of which more is said latei\ began in August, 1856. Up to that month Mr. Higinbotham 's time was occupied with work at the Bar, and it is said that he wrote occasionally for the J/ornitir/ Herald, a paper which then disputed with the Argus the position of leading journal of the colony. The house in Emerald Hill was conveniently situated foi- his Argiis work, which often detained the editor niAr. V KARI.V LIFK TX M KLIJOURXK 37 until a late hour, when he usually i-ode home. Tt is a little (litHcult to conceive, but 1 have it on the authority of an entirely credible witness who had every op2)ortunity of knowinij, that Mr. Hi^■ LIKK l\ .MKIJ'.OURNE 39 could easily ruid I'urty. A 3'ouiig Ijricklayer aud a young labourer came readily forward, but they could not persuade. " Budd, they want to relieA-e us of this work because it is disagreeable. What do you say 1 " A resolute " No " was the answer. And the best-educated men in the company mai'ched to the butcher's, waited for the meat, and brought it back skewered on their ramrods. The othcer who then commanded the compan}', when telling the story finished with the words : " He was the very best soldier that I ever had in the ranks.'" By the side of this military testimony may be placed the following brief sketch of early days by the Rev. R. B. Dickinson, incumbent of .St. Luke's Church : — Mr. George Higiubothaiu was a Trustee of 8t. Luke's for some years, from \S'}~ oRMarcLs. He was conspicuous for his regular attendance at chui'ch, and the conscientious discharge of all the duties appertaining to his othce. He contributed lilierally to the erection and mainten- ance of the church ; and whenever there was any deficiency in the funds, supplied it himself. He was always the same — modest, unob- trusive, and painstaking. Of course parochial affairs afforded very little scope for his fine intellect and philosophical turn of mind. But in many private conversations with him, I found how deeply settled his faith Avas, so "far — and so far only — as it could be reconciled Avith reason. Not that he was so shallow as to supjjose that faith did not often — and infinitely — transcend reason ; but he felt, and felt tiuly, that it must never contradict it, or any of those great moral verities which the collective mind of Christianised humanity has accej^ted as real and right. This, necessarily, led him to reject many of the so- called orthodox views of the Gospel ; but I am sure that, in those days at least, he never rejected that Gospel itself. As a private friend he was a model of considerateness and courtesy, and to spend an evening with him, and with his equally friendly and generous brother Thomas, was, on a small scale, a kind of symposium — a social and intellectual treat that could rarely be enjoyed in colonial life. If it is not out of place, I should like to be allowed to add my tribute of respectful aftection for his most gentle and Christian wife. As one of our district-visitors, and as a most sympathetic helper of the poor in all their troubles, I have never known her superior, and rarely her equal. The i^resence and assistance of these kind friends supported and cheered me, as a young clergyman, amidst the stress and strain of the pioneer work of those days ; and their worth will never be forgotten by me. In October, 1857, Mr. Higinbotham was joined by his brother Thomas, afterwards very well known as the Engineer- 40 MEMOIR OF (iKORCK HI0IN150THAM chap. in-Chief of Victorian Railways, an office which he held for eighteen years uninterruptedly. In the ^Minutes of Proceed- ings of the Institution of Civil Engineers,^ vol. Ixiii., Ijeing the volume for the session of 1880-81, there is an obituary notice of Mr. Thomas Higinbotham, who died in September, 1880. It is from the pen of his brother George, and may be quoted as an example of restrained biogra])hy. The early part is given here : — Mr. Thomas Higinbotham was born in Uul>lin, in the year 1819. He was the third son of Mr. Henr}' Higinbotham, a merchant of that city. He received a sound general education at Castle Dawson school, near Blackrock, and he afterwards attended the MKMOll! OK OKOINiK il K MX I'.o TIIAM . ii\i-. influences are noiseless, like the beneiiccnt agencies of nature, which are forgotten because they are unobtrusive, and remind us of their utility most eloquently when they are sus|)ended. To our departed friend Providence had assigned the faculties of reflection rather than those of observation. He Avas a beautiful and judicious thinker rather than an accomjjlished rhetorician. In liis collegiate career he had achieved the highest university distinction in the moral sciences. The influence of these earlier studies had coloured the whole complexion of his mind. We do not mean that his sermons were those of an " ape of P^pictetus,"' as the moral essayists of the pidpit in the last centm-y liave been severely designated. They were pureh' and truly evangelical. His ethics were liaptised in the "fountain opened for sin and for iniclean- ness." The moral strokes which he delighted to draw were copied from the lineanrents of crucified love, as they are exhibited in the pages of the inspired evangelists, who held the pencil of the Holy Ghost. His favourite sermons in his favourite Bishop Butler, were those on the love of (xod. Hence his pulj^it discourses were, perhaps, of too pensive and refined a cast for general appreciation. The feathered fall of his Christian ethical teachings might not often startle or surprise ; but we know that they found audience "fit," if "few." They awakened echoes in congenial sjiirits ; while no attentive listener could fail to perceive that the preacher had steeped his thoughts in his heart — that he spoke because he believed. Such of his sermons or lectures as have occasionallj' appeared in our columns, were character- ised by chastened and thoughtful brevity', lucid arrangement, and much delicacy of illustration. An aged clergyman of this diocese, distinguished for the extent of his scholarship and the acuteness of his judgment, pronounced Mr. Higinbotham's lecture on the Greek Revo- lution to be a jjeiformance of the highest order. But his ministry found the peculiar field for its richest developments beside the bed of sickness, and in the house of mourning. There was a sympathy, there was a lefinement of tenderness in his manner, on such occasions, learned in heavenly meditation and in communion with Him who " can be touched with tlie feeling of our infirmities." To use a favourite expression of his own, " the human sj'mpathies of the Redeemer " had touched the sympathies of - his heart into life and music. His disposition Avas naturally pensive ; he had what the great poet calls "the quiet heart"; yet he brought with him into every society a noble and tender gaiety, M'hich made I'eligion lieautiful in the eyes of the j'oungest and most thoughtless. His conversation had nothing forced or conventional. It was like a sweet and natural air that winds into itself many threads of harmonj' ; but it always revolved round two kindred notes — the character of Christ, and the bliss of Heaven. He was eminently formed for friendship. No cloud of envy or jealousy ever seemed to dwell upon the serenity of his renewed nature. Within two years preceding his death ]Mr. Higinbotham had been married to Josephine, daughter of Colonel Jones, V KARLY LIFK IX M KLi;( )n!XK 4:i of the 12th Regiment, ;uk1 great sympathy was felt with his young widow. ]Mrs. lloliert Higinlx)thani, who hved for many years of lier Hfe at Bournemouth, wrote a memoir of her sister, INIiss Agnes Jones, who liad made a name for herself in connection witli nursing, especially in workhouse liospitals. To this book an article by Miss Florence Nightingale is prefixed as an introduction, and the l)ook has been translatefl into many European languages.^ 15ishop Alexander wrote several poems upon the death of his friend. The best known of these is the epitai»h grav(^n on a mural tablet on the walls of Derry Cathedral : — DoAvii thiouyli our erowdeil lanes, and closer air. O friend, how beautiful thy footsteps were : When through the fever's waves of fire they trod, A form was with thee like the Son of God. "Twas liut one step for those victorious feet From their day's walk unto the golden street ; And they who watch'd that walk, so bright and brief. Have mark'd this marble with their hope and grief.'' A scrap from a relative's letter, dated December, 1862, offers a comment on the lines : — 1 have received word from a clergyman to-day that in the late summer visit paid by the Bishop of Oxford (Will)erforce) to Derry, on the occasion of his accompanying the Bishop of Derry to see the cathedral, he said, after reading Mr. Alexander's /// t/ienwriaiii lines on darling Robert's nuual tablet, "I would willingly give my Oxford mitre to have been the composer of those lines." ' London : Sti'ahan and Co. 1869. ■- St. AiKjii.idne's Holiday, and Other Poodk, by William Alexander, Bishop of Derry and Raphoe. London : Kegan Paul, Tiench, and Co. 1886. CHAPTER YI THE EDITOR OF THE " AR(;US " "I am in the place where I am demanded of conscience to speak tlie truth, and tlierefore the truth I sjjeak, impugn it whoso list." p]arlier history of the Ai-(jii--< — Established June 2nd, 1842 — Mr. Edward Wilson buys it — Absoi^ption of other papers — Some ac- count of Mr. Wilson — His views of the policy of the paper — Mr. Wilson needs rest, and, appointing Mr. Higinbotham as editor, leaves the colony — On his return leaves the editor iindisturbed — Relations between owner and editor — Mi-. James Smith's reminis- cences of his former editor — One personal reference, Mr. Higin- 1 )otham"s a])pointment as J. P. — A^'as the editor over-carefid ? — Letter to Mr. Hugh (ieorge. When Mr. Higinbotham became editor of the Argus, that newspaper was a little over fourteen years old, for it came into being on the 2nd of June, 1842. In the old world fourteen years may not seem long in the life of a newspaper ; yet in London many papers have earned fame, and have disappeared within a smaller span. There is no analogy between the life of an individual and the existence of a paper, which need not have a childhood ; and there is no reason why a paper should not, especially in a young countr}', " flash into fiery life from nothing," and establish influence l^efore it is a month old. As compared with its later self, the Aryus may be said to have had a childhood and a period of adolescence. Its childhood was in the days when the whole community was not only young, but small. In 1842 the estimated population of the colony was (to use the accurate figures of Mr. Hayter) 23,799. In the census of 1857 the enumeration was 410,760. .u.u'. VI THE EDITOR OF THE -ARGUS" 4o In 1847 the Ai'gii.s was bought by Mr. ICdward Wilson, who shortly afterwards also bought, in ordei- to absorb it, the Patriot, the newspaper l^elonging to Mr. John Pascoe Fawkner, often called the " Father of Victoria," because of the expedition that he organised in Tasmania, which, however, on arrival, found John Batman in possession. Fawkner was a public-spirited citizen, and certainly established the first paper in the settlement, of which the Port Phillip Patriot may fairly l)e considered the legitimate descendant. In 1(S.32, after the gold-fever had Ijegun, another rival paj^er, or in a sense two rival papeis, were incorporated with the Aryus, for Mr. Wilson bought the Daily News, which had previously absorbed the Times. Even the owners of these last two papers would hardly have claimed for them the importance that their names suggest. The gold-fever must have been a terriljle time for the managers of a newspaper. Tidings would come of a "rush." Writers, reporters, and printers, would start oft' for the diggings on the shortest notice. In Port Jackson and Port Phillip thei'e were frequently ships without sailors. The bishop and the governor groomed their own horses, as they were without servants. All heads were turned, and for a while Melbourne was almost deserted, yet subscribers wanted their daily paper, and the Argus never disappointed them. The man at the head of the afiairs at the Argus office, part owner, editor, manager, and chief writer, energetically pushing his own lousiness, vigorously fighting for the public good, was Edward Wilson, who was not a ti\ained journalist, Init one who had almost by chance stumbled upon this, his true A'ocation. Edward Wilson was born at Hampstead, almost within the sound of BoAv Bells, in 1814, the year before the Battle of Waterloo. He was educated at a private school in Hampstead, and amongst his schoolfellows were several whom he met again in Victoria. Amongst others is mentioned Mr. William Clark Haines, first Premier of Victoria ; but Haines must have been a big boy when Wilson was a small boy, for he was seven years older. Commerce was at first intended to be Wilson's line in life, and he entered a house of l)usiness in London, but the high stool and the desk were utterlv distasteful to him ; he longed for a more adventurous 4(i MKMOT1! OFTiKOTirjE I1T( iTXlumiAM ciivr. life, wliei'ct'oi'c he (loUH-iniiied to (Miiigrute to Australia. His (lestiuatioii was Sydney, but the ship, on which he was, put into Port Phillip, and he was so pleased with all he heard about the infant settlement and its future prospects, that he promptly determined to cast in his Jot with it. This was in the year 1842, the very year in which the Arr/us was established, but five years befoi'e Wilson had anything to do with it. Sheep and cattle, or some occupation subsidiary to the rearing and shearing of sheep and the raising of cattle, engrossed the attention of every one connected with Port Phillip, except the few officials ; and Mr. Wilson bought a cattle station near Dandenong, but the young man (he was twenty-eiglit when he arrived) took a great interest in puljlic affairs. Like the Irishman of the story he was " agin the government." Some letters violently criticising the actions of Mi-. C. J. Latrobe, the superintendent of Port Phillip, appeared in the Argus signed " Iota." They were from Wilson's pen, and these letters may be said to have revealed Wilson to himself : his thoughts were turned towards journal- ism. Then came the purchase of the Arr/us in 1847, and though partners were admitted later, Mr. Wilson remained all his life the chief proprietor of the Argus, and through ten eventful, crowded, vigorous years, he was editor and the life and soul of the paper. In these ten years there came in quick succession — first, separation fi'om New South Wales, or the beginning of the colony of Victoria ; secondly, the discovexy of gold, and consequent influx of population ; and, thirdly, the establishment of responsible government. The Argus under Wilson was keenly in favour of the first and third ; was hostile to the unwise administration that led to the conflicts with the diggers ; resisted the influx to the diggings of convicts from across the Straits ; and was strongly ojDj^osed to the continuance of transportation to Australia. As long as he was editor, Mr. Wilson was always on the popular side. Squatter though he had been, he desired to settle the people on the land : and the policy connected with the phrase " Unlock the lands " was the policy of the Argus ; indeed it is said -"^ that it was Wilson who formulated the demand contained in that famous watchword. The nine years of arduous labour at length affected Wilson's 1 Blair's Cyclopcedia of A u-s(rala.iin. VI thp: editor of the "ARrajs'^ 47 liealtli, and especially his eyesight. His fortune was made, and he desired i-est, which his doctors also recommended that he should take. Therefore he determined to revisit England, which he had left, aged twenty-eight, to seek his fortune. Fifteen years had passed and he was returning a wealthy man. With the full consent of his partners Mr. Wilson selected Mr. Higinbotham to take the editorial chair. It- is true the new editor was only thirty, but young men were filling many of the important positions in the colony. The London Times has had a younger editor, and Mr. Wilson himself was , as its recipient was of the opinion of John Stuart Afill, that much of our modern social intercourse M-as a slieer waste of time. From that time forward Mr. Higiiilxitham never went into society. Having formed the rule and appre- ciated its advantages he did not find any difficulty in adhering to it afterwards ; and he told me he f(nnid the hal)it of utmost value during his political life. Mr. James Smith, one of Mr. Higinhotham's friends and fellow-workei's on the Argus — himself now, after thirtv-seven years' connection with that journal, the (hujcn of Mell)ourne journalists — has written the following interesting account of his former editor : — My recoUeclicns of Mr. Higinbothain as an echtor are exceeding pleasant ones, ami are not darkened Vjy the shadow of a single cloud, however transitory. His colleagues felt that they were associated with a gentleman who was eminently capable, inflexiljly just, iniiformly courteous and considerate, and animated bj' a dignity and delicacy of feeling which were exhibited no less towards tlie contributors whom he made liis personal friends, than towards the messengers and office Ijoys who fetched and carried proofs. He inspired a sentiment of ati'ectionate lo3'alty in tlie minds of those wlio worked with him, and his own example of assiduity and devotion in the service of the Ari/ta called forth an emulation of zeal and ability on the part of those who con- stituted what may be called his staff' officers. He knew how to stimulate their efforts by a few words of judicious praise, and he introduced a system of remunerating his leader-Mriters according to his own estimate of tlie (puality of their work — the maximum honor- arium being fifty per cent, above the minimum — which had the effect of calling forth all their b§st powers in whatevei- they were engaged upon. His own position was a thoroughly independent one ; so much so, that I have known views put forward Ijy one of the principal j)i-o- prietors of the paper, in tlie shape of a letter addressed to the editor, criticised and controverted in the leading columns of the same or a subsequent issue. But while ]Mr. Higinbotluim was resolute and un- yielding in the assertion and defence of his own opinions on the political and social questions of the day, he scrupulously respected tlie opinions of his colleagues. He never expected tliese to be modified, much less changed so as to bring tliem into liarmony with his own. And herein, it sliould be added, he was faitliful to the conduct and rx) MK.MOli; OK CKOHCE FTK ilNliOTHAM niAi'. policy of every editor of the Aryits, from Mr. Eihvarcl \Mlson dowii- M'ards. When Mr. Higiubotham discussed with a contributor some topic of the day which seemed to call for immediate comment, if that contributor differed from his chief upon any essential point, the subject was passed on to another writer whose views might hajjpen to be more thoroughly in accordance with those of the editor. In general, he was remarkable for the grave suavity of his manner and the amenity of his disposition. The expression of his countenance was naturally serious, but when it broke into a smile, it was like a ray of sixnshine playing over his face. A tale of wrong stirred him to the quick, a narrative of injustice roused a fierce feeling of indignation within him ; and when his sympathies were excited, he displayed an almost womanly tenderness of emotion ; for, as it seems to me, he combined a masculine vigour of intellect with a feminine warmth and goodness of heart. At the time of which I write, when my opportunities of studying so remarkable a personality were of daily occurrence, and when our relations were of a peculiarly intimate and confidential character, it struck me that his views of hiiman life and of mankind taken in the mass, were somewhat optimistic, and not such as are generally enter- tained by older thinkers, "Full of sad experience moving toward the stillness of their rest." For, just as many men are in the habit of projecting a gigantic shadow of themselves upon a Brocken mist, and misnaming it God ; so I think he saw in " the people " a multiplication of his own image, an aggregation of beings as intelligent, as honest, as disinterested, as enlightened, as affectionate, and as incorruptible as himself. And a commonwealth composed of Higinbothams would render it compara- tively easy to realise the dreams of a Plato, a More, a Campanella, or a Charles Renouvier. But men, being what they are, have to be reasoned witli and instructed through the columns of a newspaper, with a constant regard to the hard facts of human nature, and with a due allowance for the large element of stupidity, ignorance, i^rejudice and selfishness to be met with in all connnunities. And herein lay the weak point, as I take it, of Mr. Higiubotham as a journalist. He addressed himself to an ideal public, — a public which, as I have said, was a multiplied reflection of himself. He gave it credit for an amount of intellectual capacity, a moral elevation of purpose, a purity of motive, and a nobility of patriotism, which it certainly did not pos- sess ; while the absence of these qualities in the average newspaper reader, caused a good deal that was addressed to him to fall upon his eyes and ears either unregarded or uncomprehended. In a word, Mr. Higiubotham was a solitary thinker, and not a man of affairs ; and I think that, catching the infection of his influence and example, some of us occasionally talked over the heads of our audience. Mill's Essay On Liberty was first published during his editorship of the Ari/iis, and it devolved upon myself to write a series of articles expository of the principles laid down in that book ; and I well re- member the enthusiasm they inspired in his own mind, and the echo VI THE EDITOR OF THE "ARGUS" 51 which the wonU of the philosopher supplied to his own thoughts. But in our conversations on the subject, I noticed that the idealist always predominated over the practical politician when discussing it. He seemerl loth to admit that that beautiful abstraction which stood for " the people" in his own mind, would be liable to abuse unlimited freedom, or that the despotism of a multitude might become even more odious and intolerable than the arbitrary power of a single tyrant. And being enamoured of liberty, Mr. Higinbotham was, of course, an ardent upholder of the theory and practice of free trade,' which no one at that time dreamt of assailing ; for almost every adult Victorian had emigrated from the mother country, and we had all too vivid a recol- lection of the evils and miseries which had been inflicted upon it by protection, to contemplate the possibility of the hydra-headed monster lifting up its head in a Britisli colony. I had many opportunities, both at the jieriod I speak of, and in later j-ears, of conversing with Mr. Higinbotham on religious and psychological questions. In the a])sence of any more I'igorous defini- tion, I should be disposed to regard him, at that time, as a Christian theist, entertaining a profound belief in the Unity of the Godhead, and an ecpially profound admiration and veneration for the life and work of the Son of Man. Like most original and independent thinkeis, he was not ortliodox, and his ideas with respect to the hereafter seemed to me to present a remarkable similitude to those which find expres- sion in //( Mtinoriam ; as if he had been conducted by a train of reflection and reasoning, personal to himself, to the same conclusions as those arrived at by the poet. The key to, and the explanation of, his own religious faith and ])ractice were to be found, as it appears to me, in his reverent appreciation of the words, " If a man love not his brother whom he hath seen, how can he love God whom he hath not seen ? '' and in his acute perception of tlie fact that the second of the "two great commandments" comprehends the first. And his reli- gious belief was no barren assent of the understanding to certain theological propositions, but flowered out in deeds of practical and unostentatious benevolence, inspired by motives of tender sympathy and humane compassion, and performed, whenever practicable, in such a way as tliat they might not be ol)served and praised of men ; for no one felt more strongly than himself that "the best portion of a good man's life " is made up of " His little, nameless, umemembered acts Of kindness and of lo\-e."" Only once was reference made in the paper to any matter personal to the editoi". On June 14th, 1857, Mr. Higin- botham's appointment afs Justice of the Peace appeared in the Government Gazette. As it was known that he was editor of the Aryus, suspicions were at once entertained that the appointment was made by the Ministry to placate the Arc/ us. E 2 52 MEMOIR OF OEORCiK HKilNBOTHAM chai-. Some two months later the editor insc^rted the following brief explanation : — Early in tlie year ISoG the present editor of tlii.s journal was a resident of Emerald Hill, following professional iiursuits and wholly unconnected with the colonial Press. At that time he liad the honour to receive an invitation, unsolicited on his pai't, that he would allow his name to be placed in the commission, the want being in the district in which he resided and the selection falling on him. ^Yllilst appreciat- ing the compliment, though not anxious to enter upon tlie discharge of new duties, he intimated his willingness to accept the proposal. This was in the month of March, 1856. Subsequenth' some delay took place in gazetting the new appointments to the magistracy, and it was explained that the arrival of Sir Henry Barkly was waited for. Thus matters stood until the month of August, wlien the first engagements with this journal were entered into At the commencement of the year his Excellency landed,^ and the editor of the ArguH deeming it jjrobable that the commission would be now issued, and feeling that the new relations upon wlaich he had entered would in the state of political feeling in the colony render his acceptance of proposals made under diiferent circumstances lial)le to misconception, wrote to the Attorney-Ueneral (the present Chief Justice),'^ requesting that his name might be withdrawn from the list of proposed Justices of the Peace. His letter was dated and forwarded on the 16th of Janiiary. It was written without any thought of any circumstances ever calling for its jiublication. The following are its ipaistiima verba, omitting only the superscription and the signature : The Editor of the ^' Argus" to the Attorney-General. '' An/m Office, January 16th, 1857. " My dear Sir, — You informed me some time ago, in conversation, that the offer which I had the honour of receiving from the late Acting Governor, in the early part of last year, of appointment to a Justiceship of the Peace woultl not be fulfilled until the arrival of Sir Henry Barkly, when my name, and those of others wlio had accepted a similar offei', would be gazetted. " Since my interview with you I have accepted tlie editorship of tlie Argus newspaper. Considering the relations which are supposed to exist between the C4overnment and tliis journal, I fear that my ap- pointment would give rise to rumours injurious as well to the Govern- ment as to the Argus, and no explanation would wholly counteract their effect. " I have, therefore, come to the determination — though I own it is with some regret — not to ask for a fiilfilment of the promise made to ^ As a matter of fact it was December 26th, 1856, 2 Sir William Stawell, vr THE EDITOR OF THE "ARGUS" 53 me by the lato Acting Govei'iior ; and I now address you, as the first Law Officer, for the j)urpose of requesting that you will have my name removed from the list of intended magistrates. "I have also to retiuest that you will be so good as to write to mc, to state that it is at my own recjuest the appointment will not be made. " The editor regrets that in tliis instance he has found it necessary to depart from the rule by which the conduct of the Arr/H-< is ordin- arily guided. But it appeared to him proper to pulilish this statement in order to vindicate the political independence of this journal, — an independence the great mass of the public will give it credit for having sustained until now, and which whilst it remains in the hands of its present conductor shall not be compromised. The following criticism is taken from an ol)ituary notice in an English paper ^: — Alike as joiu-nalist, barrister, and judge, he was exceedingly con- scientious. Wlien he was editor of the Me/honnic Atyiis he so care- fully corrected the proofs, and so sti'cnuously insisted on reading and verifying everything that went into type, that sometimes the paper did not come out until six and even seven in the morning, with the result that early trains were missed, much to the disgust of up-country subscribers. It is no doubt true that the editor was conscientious, and even fastidious, nor was he ever a quick writer ; hut close inquiry on the spot elicits no memories of such a mischief- working conscience. Tlie delay mentioned ^vas due to badness of machineiy and perhaps to the trouble in the jirinting department of the paper, alluded to in the letter here given, written by Mr. Higinliotham about Mr. Hugh George, in which the former bears testimony to the good work done by the latter at the Argus office. I think it was in the year IHoV) that Mr. George and I first ))ecame acquainted. It was about that time that Mr. George came out from the London Time-^ office to take charge of the mechanical arrangements of the An/wi newspaper, of wliich I was then the editor. Prior to his arrival, there was considerable discontent and trouble in the printing department of the paper, which involved much anxiety and additional and longer laboiu' in the editor's branch. I well remem- ber the extraordinary and instantaneous effect produced by Mr. George. Thorougldy acquainted with his business, he at once ascertained the causes of discontent. He readily yielded to those demands of the ' The PaU Mall Budyet, January i5th, 1893. 54 MEMOIR OF GEORGE HIGINBOTHAM thai-, vt printers which lie found to he just ; ;iiiil ]>y mingled firmness and moderation, guided hy consunnnate discretion, lie at once restored discipline, order, and contentment, which were never afterwards dis- turbed during the time I was connected with the paper. In a few days after his arrival, some of us in the editor's department were enabled through his aid to go home from our work at one o'clock, or two o'clock, or three o'clock in the morning, instead of at four o'clock, or five o'clock, or six o'clock, or even as late as seven o'clock, the hours we had kept for some short time previously. My first feelings, there- foi-e. towards Mr. George were those of high respect, and a sense of official and personal obligation. They became stronger as daily intei-- course made us better acquainted, and I have always had a lively pleasure in believing that our friendship was not even interrupted for a moment, when long afterwards it became my painful duty to have Mr. George committed to the custody of the kSergeant-at-Arms for a contempt of the Legislative Assembly, connnitted by him as the pub- lisher of the Arcjufi. I should not omit to state that the Argus under Mr. Geoi'ge was the first Victorian newspaper to acquire tlie appeai-- ance and arrangement of matter that distinguish a first-class London newspaper. CHAPTER VII EDITORIAL VIEWS Short History of Period, three yeiua froiii August, IS.ili — Burke and W ills Expeilitiou — A Possible War with France — State Aid to Religion — Education — Women — Capital Punishment — Aborigines — Unemployed — Land Policy — Labour — Vote by Ballot — Demo- cracy — Party (Government — Leaders of Democi-acy. The period during which Mr. Higinljuthaui was editor of the Aryns lasted for i-ather less than three years, beginning in August, 1856. Responsible government had been intro- duced in Victoria in November, 1855, and the new S3rstem w^as therefore less than nine months old, when he began his work. Whilst he sat in the editoi-'s chair there were no fewer than three clianges of ministry ; universal suffrage and vote bv ballot became the law of the land. Sir Henry Barkly arrived to l)e Governor of the colony and Sii' William Stawell was appointed Chief Justice. They were stirring times, but there is little to chronicle with respect to them. Population was increasing rapidly by innnigration : most of the immigrants were adventurous and energetic ; and, as is evident from the newspaper, life was rough, whilst a certain degree of lawlessness prevailed. One of the most important incidents during the period was the offer made through th(> Aryiis, by an anonymous cor- respondent, of the sum of £1,000 towards the promotion of a judicious scheme of exploration in the interior. "With a modesty and unobtrusiveness which doubly enhanced th(> value of his munificent offer, he desired that his name should remain unknowm." The editor of the Arc/us religiously kept the secret, until Mr. Ambrose Kyte allowed his name to be 5f) MENrOIR OF riKORCE HICTNBOTHAM chap. revealed. Tt was this ofFcrthat led to tlu' famous lUirke and Wills expedition. Many .subjects were discussed in the colunnis of the Aryus. It is known that the editor wrote a gi'eat deal himself. Of course he was responsible for everything in the paper, and a few passages selected almost at random may serve to show the sentiments that found favour with the editor. In August, 185S, there seemed some probability of a war with France. Honour and duty should iiu)}L'l us to remain stauncli and loyal to tlie mother-country in her hour of trial. [August 30th, IS.IS.] The relations of the Htate to religion and to education find fr(H[uent treatment. From an article in favour of .State Aid the following is extracted : — Looked at from the general and social and not fronr the individual point of view we apprehend that all forms of religious belief which acknowledge and enforce the rules of moral duty are " equally useful" to society. [June 2nd, ISoT-] Ultimate withdrawal of (State Aid is expected, when the churches should be ready to run alone. But that the State Aid should be withdrawn immediately is M'hat few even of the conscientious objectors to the present system can actually desire, [duly 27th, 1859.] Meanwhile complete equality of all the churches is advocated. [Novendier 9th, 18.38.] The connection of CliiU'ch and State in educational matters cannot last much longei'. . . . The school must no longer Ije a mere adjimct of the church. [Sejttember 27, 1858.] The position of women is discussed, and the paper is in favour of changes in the law, which have been since made, as well as of a degree of freedom hardly yet reached by the sex. Here is one excerpt : — A model woman according to a very prevalent conception of the character is little Ijetter than an amialjle idiot ; and any woman who evinces strength of mind ami vigour of intellect becomes an object of derision and a butt for the feeljle sai'casm of the mentally destitute of the other sex. [.Tune 25th, 1858.] The editor's strong feeling of humanity is revealed in the following : — VII EDITORIAL VIEWS 57 The treatment of the Aborigines has from the commencement of the settlement of tlie continent been a standing reproach against colonists. [Fcbiuarj- Jh'd, ISoO.] Here follows ;i statement of a view, which later experience caused Mr. Higin])othain to change : — We are con\incetl that the abolition of capital punishment should at least l)e tried, were it only for a time. It would be easy to revert to barljarism should amelioration appear to l)e premature. [December loth, ISoS.] The " I'nemployed " difficulty was felt early in the colony's history. Its solution is found in settlement upon the land. In the meantime, pending the j^reparation and adoption of legislative measures for encouraging the settlement of population on the soil, and for converting idle consumers into active producers, the painful fact of the present existence of much actual and severe destitution must be dealt with and cannot In-ook delay. For the sake of humanity, for the credit of the colony, and out of regard to the interests of society, the (Tovei'ument must not suffer such an anomaly and reproach to continue. It is not with alms that we would supply these homeless and destitute men. We woidd neither destroy their self-respect nor recognise ])auperism as one of the normal conditions of any industrious section of the community. [Decemljer 7th, IS.-jS.] Here is a Land Policy well nigh in a nutshell : — It lies in a general tax on alienated land, whethei- cultivated or not cultivated. The man who lives upon the produce of his land can afford to i)ay a small annual charge upon it, whilst the man who merely occupies, and whose occu})ation actually constitutes a l)arrier against cultivation, deserves to pay it. [August 2 1st, 1858.] The ecHtor writes stronglv upon the just rights of honest labour, including the right of combination to I'aise wages : — We have an anxious desire to see a high rate of wages prevailing here, and we regard the ])rosperity of the great mass of the jieople as more important than almost any other considei'ation. Hut we neither feel, nor are prejjared to simulate, the smallest sympathy for the loud drones who tr}- to discourage others from honest work, in order that they may be able to live on the wages of agitation, without honest work. [September 8th, 1857-] In the eai-ly days (jf the country's politics it is natui-al that the sufirage, the true principles of representation, and the 58 MEMOIR OF (iEORGE HIOINBOTHA.M ru.w. ballot should be iVequently discussed, as they are tVoin the point of view of the mother-country as well as of Victoria It was on such subjects that controversy arose, honourable to both, between Mr. Edward Wilson, the proprietor, and Mr. Higinbotham, the editor. The ballot is defended against the cliarge of cowardice :■ — These men, in their country's crisis, would act nobly, we doubt not, as their ancestors did. The mistake of the Timex is to assume that the country is always in a crisis of a nature to develo]) ordinaiy men into heroes. [A\igust 18tli, I808. ] But the ballot, electoral districts, and the incidence of the suffrage are more or less matters of machinery. Democracy is the principle that underlies them all. Longer extracts are given to set forth the teaching of the Argvs "leaders." The influence of M. de Tocqueville is strongly marked in them : — The form of government to M'hich the condition of a new' and progressive society such as ours naturally gives rise is essentially demo- cratic. . . . We may therefore accept democracy as a fact wliich, with whatever feelings we may regard it, we can neither resist noi- neglect. Like all tlie forces of Nature it is an enormous power either for good or for evil. It comes ujjon us with the overwhelming might of a ])hysical law, and it brings with it the tremendous sanctions with which such laws are invested. If we be content merely to direct its action, it is able to render us good service : but if we resist it, it will destroy us: the stone which the skilful builder makes the supjiort of his whole fabric will crush to powdei' the rash or the unwary, wlio l)ro^•oke and withstand its fall. [February 13th, 18.58.] We hold tliat the great end of all electoral systems is as far as possible to secure justice and good government to every individual ; that no amount of wealth gives any one an extra claim as to these matters ; that a community is not a commercial company, in which a man should have a voice potential to the nund)ei' of shares he is able to buy ; that the claim to be well governed rests u])on something ((uite ;ipart from one's power of paying the expenses of government ; that Lazarus has as much right to be considered in legislation as Dives ; and that all men who live in a country have as large an interest in its good government, and as equal a stake in it, that their mere pecuniary posses- sions are l)ut as dust in the balance. . . . What C'arlyle calls the "mere counting of heads *" is no doubt at all times a most fallilde method of arriving at the truth, but in some form it ie an essential of all electoral systems, nay, it is the electoral .system itself, and defective as it is, human intelligence has as yet devised no better mode of picking out mankind's proper governors. . . . We cannot, so long as the electoral sj'stem endures, a^'oid the evil of subordinating the will of some men to that of some others. If there is a contest one side must be l^eaten in order \n EDITORIAL VIEWS 50 that there may be a conclusion. In other W'ords the minority must give way to tlie majority, and this evil is imposed upon the former unavoidably and in the very nature of tilings. . . . Extension of the suffrage to its utmost conceivable limits could mean nothing more liberal than ade(juate rei)resentation of the majority, and how to secure justice to the minoritj' may even ah-eady have become the more critical question. [May ISth. 1857.] The following is on Party Government. In fact one of the strongest arguments which can be employed against government l)y party in all the colonial possessions of (Jreat Britain is this — that it leads to the constant exclusion fi-om the executive of a portion of the veiy few men wlio are pecidiarly (jualified for ])ublic life, and renders impossible the formation of a Cabinet which shall include all those who are eminent for their administrative capacity. . . . Under the existing state of things, not only is such a combination of the counsels and efforts of the best men for the service of the .State effectually precluded, but they are arrayed in hostility towards each other, the giounds of difference being more fre([uently personal than political, and half the time and all the zeal of the disputants arc expended in a conflict utterly barren of advantage to the country, rarely productive of honour to the disputants, and frequently offering the most injurious impediments to the necessai-y transaction of public- business. [April 14th, l.S.jt).] Matthew Arnold athnin's in Edmund Burke the fletacli- ment which ena])led him to see the second side of a question. Hei'e, from the pen of one who had imbibed much from Burke's teaching, is a statement <»f the true corrective of Democracy which he accepts as the will of God. It is the last quotation from the Argnx articles that need l)e reproduced. We recently called tlie attention of those who aie alarmed at our career of political change to the fact that these changes inevitalily result from our social condition and that the (piestion of their comple- tion is merely one of a little longer or a little shortei- time. In such circumstances resistance becomes folly, if not worse. It is therefore incumbent on all enlightened men who love their country and desire to aid its real progress, to consider well what part tiiey are henceforward to take in political life. The path of dut}- is distinct and l)road : tlie educated classes, so far from shrinking from pul>lic affairs, must now bej'oiid all times be found at their posts. Their influence is as legiti- mate and its foundations are as deeply laid as those of Democrac^■ itself. [Here follows a quotation from Edmund Burke on natiu'al aristocracy.] Every society must contain the element of Conservatism and the element of progress. In our case the development of the latter element is unusually rapid. If the growth of the Conservative 00 MKMOTll OF riEOKOK HICTNBOTHAM cuav. vn cUniient do not hear sonic proportion to this ra))i(l (levult>])inent, if the relation between the two elements be destroyed, that development will ])ecome moi-bid, and the symmetry of the entire social body will be destroyed. . . . The people must liave leaders : it is fi-oni the very nature of thinL;s impossil)le that they should continue witliout some guidance. If then tlieii' natural leaders desert them, to wliom are they to look ? Who will till the vacant places which the natural aristocracy have abdicated ? 'J'lie answer to the question is plain. Then will be the time for the political quack, for the trader in sedition, for all that obscure l)rood that, too idle and too worthless to live by honest industry, fatten upon popular ignorance and credulity ; such men rejoice in civil commotions and in the divisions of society. These divisions are to them not merely a source of pr-ofit, but the actual condition of their existence. These are the men who by their senseless clamour would gladly scare from pul)lic life all men of cleaner hands and no1)ler aspirations. These and these only are the men who, amid the gi'cat detriment of the public, would der-ive an advantage from that der-eliction of duty, against which we I'aise our warning voice. Let, then, our independent men look to it. The question for their considera- tion is whether they will be the leaders of the people or whether they ■will resign that position to the most unfit and the most dangerous Irarrds. On their condirct more than on that of any other class the futirre welfare of the colony depends. [Febr'uary 17th, 1858.] " So spake the prophet centuries ago. Is irot his prophecy a history now ? " Are not his words trunipet-tongued to stir the educated to their duty iu poHtics CHAPTER VIII Klecteil fui' Brighton without opposition, May, 1801 — The Hon. C. H. Ebilen his Predecessor — Views in Speech — for Universal Suffrage : against Party Government ; on the Land Question ; on Education ; on State Aid to Religion ; on Payment of Members, and on Protec- tion — Short Time in the House — Supports Heales' Government — It is defeated — General Election — Too independent and therefore defeated, August 2nd — Re-elected April 8th, 18t>2 — Rising into prominence in the House — Defeat of O'Shanassy rum Haines Government. Mr. Higinbotiiam's political career began in ISGl. In the April of that year he was thirty-five, and many members of the Legislative Assembly were younger. He was a barrister in good practice and much respected by his neighboui\s ; and it was not unnatural that, when a vacancy occurred in tlie representation of Brighton, where he and his brother had recently come to reside, a considerable number of the electors should have invited him to come forward for that constituency. The vacancy was caused by the resignation of the Hon. Charles Hotson Ebden. Thirty years previously Mr. Ebden had emigrated to New 8outh Wales, and had engaged in squatting pursuits on the Murray, and afterwards in that part of the colony which became Victoria. Formany years he had taken a prominent part in politics. In 1843 he had been elected one of the first four members who represented the Port Phillip district in the Legislative Council of New South Wales. When the five years for which he had been elected elapsed, he declined to be nominated a second time. He told the electors that " he could not any longer lend himself to the perpetration of M-hat was only a farce. Port ()2 MEMOIR OF OEORGE HIGINBOTHAM chai". Phillip was not, in fact, repi'esentcd ; she was misrepresented.'" It was on that occasion, and in order forcibly to arrest attention in England, that Earl Grey was elected member for Melbourne. This whimsical proceeding had the desired effect and the separation of the colony followed. When Victoria was made into a separate colony, Mr. Ebden was appointed Auditor-General ; but after holding that office for a little over a year he resigned. At a little later date he was Treasui'er of the colony under responsible government, being a member of the third administration foi'med. Mr. Ebden resigned his seat in May, 1861, and went to England. He is perhaps best remembered now for his own remark that he was growing "disgustingly rich." On 7th May, 1861, the Speaker announced that he had received a letter from Mr. Ebden resigning his seat for Brighton. Four days later Mr. Higinbotham addressed the electors. It is evident that considerable interest was excited in his candidature, for the Argus gave a verbatim report of this speech. In it the candidate's views are stated freely and without reserve, and the subjects treated are the following : universal suiFrage, party government, the land question, education, and State aid to religion. The candidate was questioned as to his views on protection and payment of members. After a few opening remarks Mr. Higinbotham answered those who contended that universal suffrage was the cause of all the woes of the colony. From the time tliat 1 was able or that I attempted to form an opinion on political matters, I accepted with hearty satisfaction, and I have since always retained a belief in, the sound constitutional doctrine — or at least a doctrine which has been adopted by the soundest consti- tutional writers — that every individual in a free country who contri- butes to the taxes of the State ought to enjoy a vote iir the selection of those who legislate for the State ; and except where a strong political necessity intei'feres — a necessity which modifies abstract opinions as well as controls events — that that suffrage, that right of voting, ought to be withheld from none. Noa\-, I admit that, under certain circum- stances and in certain countries this necessity may exist at the present time. I believe it does exist in England. The ground for this necessity was then set forth — the pauperism that is to be found in England. I think there might be \-ery great danger in extending the suffrage indiscriminately in a coi;ntry where so large a pauper class exists. I VIII M. L. A. 63 admit it may be a considerable time before universal suffrage can be restored to England. I say " rostoied," because I believe there is sound historical and constitutional authority for believing that imiversal suffrage existed in Kngland l)cforc a property qualification was heard of. The speaker then set forth " another ground founded on necessity which, I think, would justify a limitation of the fran- chise," total ignorance. " But," he added, " I think it would be a very great disgrace to a free country if that ground of disqualification were long permitted to exist." The State should see that such ignorance was removed. A proper system of registration of voters should require that no man should be registered as a voter who could not write his own name. Universal suffrage may be regarded as the foundation-stone of democracy ; and the inspection of the foundations was thus put into the first place in the speech, which then passed on to the duties of a member, and the question of party government. Mr. Higinbotham's views on this are of greater importance and interest than on all the questions of the day put together. He was always a vigorous advocate for strong government, and held that frequent changes of ministry weakened govern- ment itself. Afterwards he became a member of the strongest ministry that ever held the reins of office in Victoria, strongest in talent and strongest in the support that it received from the people. It was also the ministry that enjoyed the longest po- litical life. It is interesting to hear Mr. Higinbotham's views at the beginning of his political life, and they may be compared with similar sentiments that he expressed towards the close. During the last half-centurj' of English political history, the power of the representatives in the House of Commons over the government of the day has been steadily increasing, and the interference of repre- sentatives in Parliament with the government of tlie day has been more frequently exercised. During the tiftj' years that preceded the passing of the first Reform Bill there were ten changes of government in England. Each government lasted, on an average, five years, and every change was produced by a cause totally unconnected with the action of the House of Commons. During the thirty years that have elapsed since the passing of the Reform Bill, there have been eight or nine changes of government in England, and every one of those changes, with one 04 MKMOIR OF (;EORf!K HI(iINHOTi[AM ciiAi-. exception, was jji-oduced by the action and direct vote of the Honwe of Coninions. And when we come to onr own cokjny wc find that, dnring the six years which have ehipsed since tlie passing of the Constitution, there have been six changes of government, each government lasting, on an average, one year, and that every one of those clianges, witli the exception of tlie first, has lieen produced by the action and the direct interference of tlie Legislative Assembly. Now this, I think, is a very significant fact. It sliows that the power of the representatives in Parliament over the govei'ument of the day is steadily increasing, and I am afraid that the direct power of the constituencies over members of Parliament has not increased in the same propoition. I wish that it did. If constituencies were more frequently to ask them- selves and tlieir representatives, for what reason, for what motives, from what impulses they seek to overthrow governments one after another — were the attention of constituencies directed to the conduct of their representatives in that way — I think the changes of government in this colony would be less frequent. I believe there is a genei'al ten- dency of public opinion to this point — that these frequent changes of government are a source of unmixed injury to tlie public interest. Almost every successive government that has gone into office during the last six years has l>een weaker in every respect than its pi'ede- cessoi- — weaker in point of Paidiamentai'y influence ; weaker in the confidence of the majority in Parliament ; weaker, if it be not in- vidious to refer to it, in the personal composition of its members — vmtil it has come to this, that government often exists, not so much through the confidence of Parliament as through the contempt of a Parliamentary majority. There is another serious e\il. These frequent changes practically have the effect of placing the government of this colony in the hands of persons who are not responsible to Parliament. When a Minister who has not been in office previously enters office he is necessarily unacquaiiited with the duties and details of his department, and so long as he remains ignorant of these diities and details he is necessarily the pupil of the chief clerk of his depaitment. Well, what is the result ? A gentleman is installed in office. He is supposed by Parliament and the country to be responsible for tlie affairs of his department. In point of fact it is not so. After he has lieen in office a few months, and has begun to discharge the duties of his office and to manage his department efficiently, some fresh Parliamentary cabal ripens against the government, and he gives place to another as ignorant as he formerl}' was of the duties of his office, and destined, in all pro- bability, to become also the pupil of a subordinate. Now, I think you will agree witli me, that it is both mischievous and deplorable for the government to be vested in the hands of persons who, whatever their capacity maj- Ije, are not responsible to Parliament or the country. But, if these changes have been injurious to government, both in com- position and action, I think they have proved no less injurious to Parliament itself. The Parliament of Victoria, since the inauguration of the Constitution, has passed a large number of acts — some 120, I believe, in six j'ears. But if you examine them, you will find that the importance of them bears a very small proportion to the number, and viiT ^]. L. A. G5 even their munber bears no pro])ortion at all to the lengtli of public time occupied in discussing them. If we were to ask ourselves what are the most important subjects which ouglit to occupy the earliest attention of the Parliament of a new country, I think we should be inclined to say that the education or instruction of the youtli of the countiy and the settlement of the question relatiiig to the public lands are the two subjects which claim the first and second places on the statute-book. Now, of these two (juestious, one has been only partialjy disjjosed of by the Legislature, and, although vaiious attem])ts have been made to settle it, not a single act has been ])assed on tlie subject of the other. And while this neglect of the most nnportant suljjects of legislation lias been taking ])lace, we find that the frequent changes of government have so exasperated the minds of members of Pailiament against one anothei-, and so distracted tlieir attention from the business of legisla- tion, that legislation in the House of Assembly, as admitted l»y most persons, is, in fact, at the present time at a stand-still. And all this results from a system, defended by some persons, very mistakably I think, on the ground of English precedents — the system of govermnent by party. I have heaid this system defended on the ground of necessity — that legislation can be carried on only by means of a party government. If I felt myself compelled to come to that conclusion, I should entertain the most gloomy prospects as to the operation of representative institutions in this country. But I do not believe it is necessary; nay, moie, I do not believe it will long be found to be even possible. It is ])erfectly true that there have been occasions in English history, within the memory of most of us, when government by party was necessaiy. There have been occasions when the public mind of Englaiul has been agitated on some great question — a question the discussion of which has lasted for many years, dividing the whole country into two adverse parties. When it was a question whether the Roman Catholics should be admitted into Parliament oi' kept out — when it was a question whether the first Reform Bill should be passed into law or not — when it was a question whether the tax on foreign corn should be retained or not, not merely was a Parliamentary party formed, but the whole nation was divided into two parties. I recollect the last of those events sufRciently to know that private friendshijis were sometimes formed, and private friendships were even sometimes sundered, by agreement or difference, as the case might be, on the absorbing topic of the day ; and of course it follows, as a necessary consequence, that when a whole people is divided on one particular subject, and when that disagreement forms a question which is debated and agitated for many years, Parliament must be divided into two parties, differing in opinion, according to the people whom they represent. Differences of opinion of that kind do not exist here. They do not even now exist at home. If a person were to take any one of the questions discussed here, I think he would not say it was of such a nature that two men of similar character and personally friendly to one another might not fairly and honestly ari-ive at different conclu- sions about, and two persons of dissimilar character and unfriendly to one anothex" might not arrive at the same conclusion and combine. 66 MEMOIR OF GEORGE HIGINBOTHAM chap. Aaid tliat being bo, I say you have not the materials of party, and unless you have the materials, if you attempt to construct a Parlia- mentary party, you simply succeed in creating a faction — a faction which has no motive except its own interest to pursue, or its own animosities to gratify. Now I was desirous to say so much on this general topic, because I wislicd to show what my conduct as n member of Parliament would be in this respect, if you do me the honour to elect me your representative. 1 will not join in any organised oppo- sition to any government in which Parliament may have confidence, or the existence of which Parliament may be disjjosed to tolerate. If any individual member of a government acts in such a manner as to deserve and call for the censure of Parliament, I sliould endeavour to direct the censure so deserved against the offending individual member of the government, and wherever possible not to vote a sweeping censure, such as is now usually practised, on the whole government, most of the members of which maj' be wholly mideserving of it. It seems almost intolerable, becaiise one member of a government may have acted in a way to call for the censure of Parliament, that, there- fore, the country should be thrown into confusion for six weeks or two months, and that anarchy should exist in the legislature and the govern- ment. Why should we not maintain the government as a consistent and continuous body, altering its structure from time to time as occasion may require ; turning out, as occasion may require, those members calling for censvire, or who may prove themselves unfit for office ? I do not deem it necessary, on every occasion when a cause of complaint arises, to pass a sweeping vote of censure upon the whole of the members of a government ; and, therefore, whenever I can possiblj' avoid joining in it, I shall certainly refrain from doing so. I shall endeavour to direct censure to that particular quarter where censure is called for ; and I believe if that course were adopted by members of Parliament, more would be done than can be done by other means to effect tlie desire we all have at heart — the establishment of a really strong government — strong in the support of Parliament, and at the same time closely watched, and carefully, though liberally and fairlj', criticised by the representatives of the people. Mr. Higinbotham's views on immediate questions of the day may be briefly stated. He was in favour of assisted immigration on two conditions — the first, that the immigrants assisted should be those able to support themselves on arrival in independence, and by preference those whose I'elatives in the colony send for them ; the second, that no money should be spent to benefit one or more classes, and at the same time pro- duce a directly and largely injurious influence upon any other class, for instance, low^ering the wages of the labouring class. The assistance of the unemployed by the government except in case of absolute necessity was a very serious blow^ inflicted vm M. L. A. 07 upon the cause of government. Then followed a long passage on the land question, and the claims of the squatters. The speaker was anxious that these claims should be publicly made and settled. If the .s(jualtcis have rights, and if the State has broken its engagements, let the squatters go into a court of law and prove tlieir rights, and let them be paid the legal damage which they can prove they have sustained by a Ijreach of the contract. . . . Waste lands of the Crown ought to be held as property by individuals and not in commonage. . . . There ought to be security of tenure. . . . The runs ought to be let by tender. Next came the subject of education. Mr. Higinbothani drew a distinction l)etween education and instruction. Education, both in its grammatical meaning and ordinary acceptation, means something more than mere instruction in the nulimeuts of knowledge. It means the development of all the faculties of the child — the spiritual and moral, as well as the intellectual faculties ; and when we have arrived at the conclusion that it is the interest and duty of the State to educate the children of the country, we necessarily conclude that that duty is verj' imperfectly fulfilled if we only succeed in teaching the child to read and write. I think that, in all cases, the duties of a state are limited bj- the powers of the State ; and I tliink it requires very little reflection to show us that in a community like this, where differences of opinion of the highest nature, both in religion and morals, all stand on an equal footing in the eye of the State, it is wholly beyond the power of the State to educate the children in the proper sense of the word " education." I believe the most the State can do — and, therefore, all that the State ought to attempt to do — is to instruct the children. From the subject of education to that of religion is an easy- step. Mr. Higinbotham was in favour of the continuance of the- grant in aid of religion, though entirely opposed to the union of Church and State. There is no conclusion which I have drawn from the study of history more confidently, or \\-hicli has stood the test of experient^e and observation more permanently, than this — that nothing has ]>een so injurious, either to the State or the Church, as the union between the Church and the State. In all European countries, for instance, excejit in the earliest times, when the Church was able certainly to render valuable assistance to literature and liberty by means of its connection with the State, the union of the Church and State has tended to make the State despotic and the Church tyrannical. Now, if the grant of £50,000 in aid of the different denominations recognized in any way F 2 68 MEMOIR OF (;E0R(;E HTCTXROTHAM ciiAi'. the union Ijctwocn Chinch and State, if it were even ;i lelie of that union, 1 shoulil miiiesitatingly oppose it. Rut I do not tiiink it docs. I do not tliink tlie State ac(|uire.s the sliglitest possiV)le power from any religious denomination l)y means of tliis State grant, n(jr do I tliink that any religious denomination acquires any intluenee fi-om the State by means of its acceptance of the grant. In the c()urs(> of liis speech Mr. Hi<4iiil)()tli;iin luul iiiiule no allusion to two (juestions of the day, tlieii only l)egiiining to become burning (juestions, payment of members and protection. He was mildly " heckled " about them. Witli respect to the former he thought there was something to be said in favour of recompensing those who had to leave the place where their business was carried on and remain a large portion of the year in Melbourne, l)ut at the same time he saw overwhelming objections to the principle of payment of members by the public at large. Some one called out, " Let those who send them pay them ! " and Mr. Higinbotham added — " I was just going to make that suggestion." He then stated his objection to payment of members by the public at large — A perpetuation of the worst Parliamentary evils that exist at present. Instead of having sittings for nine months in the year, you will have sittings all the year round ; and party wai'fare will be carried to a degree that it has never been carried before. When an elector asked " Are you in favour of protection 1 '" direct came the answer — I am not. I am a fi-ee trader. At the same time I believe the question of protection has not deserved the contempt which has been thrown upon it in some quarters. I believe it is an arguable question, and ought to be entertained and discussed. On the nomination day, five days later, Mr. Higinbotham 's proposer took the opportunity to advocate a protectionist policy, whereupon the candidate further expounded his views on free trade. I certainly do not share the opinions he has expressed on the subject of protection, and if my friend will permit me to refer to one of the passages in the article in Black u-ood'n Mcuiazinc, from which he has quoted, I think I will be able, from a single word by Lord Overstone, to point out the fallacy of the doctrine of protection. This is the passage : Lord Overstone says — and the passage is quoted by VIII M. L. A. 69 M'Culloch — "It is important that a country sliould clearly understand the true meaning of free trade. It means trade freed, not from those necessary duties which are raised only for the purposes of revenue, hut trade freed from all charges or duties that arise either from an ignorant jealousy of other countries, or from an equally foolish impression that it is our interest to fostei' unnatural productions in our own country rather than receive them from other countries." Now I think that clearly points out what fiee tiade is, and for what purposes only duties ought to be levied. Where duties are for Jthe purposes of reveniie thej' may be imposed, and raised or lowered as necessity demands, but in no case should duties be imposed for the mere purpose of conferring a benefit on any jJarticular interest as against every other interest in the community. I am a free trader, but I have not hastily or theoretically, or simply fi-om the I'eading of books only, as my friend Captain Cole seems to think, formed my opinions on free trade. I have certain!}' given my attention to the writing of some eminent political writers on the subject of free trade ; but I have also sought to correct my views by the results of free trade as represented in the vast progress England has made from tlie time slie unhesitatingly adopted the system. So I am strengthened in my views not only by the abstract opinions of eminent thinkers, but as far as the practical experience of our country is concerned it justifies me in holding that the principle of free trade is beneficial to the countrj' at large. There was no other candidate. On May 1 7th according to Hansard — The new member for Brighton was introduced by Messrs. MoUison and Martley, and was duly sworn at the table. The honourable and learned member was ■v\'armly congratidated by the occupants of the Treasury benches, including the Chief Secretary, the Attorney-General, and Messrs. Grant and Brooke. He then took his seat below the gang- way on the Opposition side of the House. INlr. l\ic-hai-d Heales was Cliief Secretary and Premier, and Mr. 11. D. Ireland Attorney-General : and their government was in office altogether a year. The middle of its somewhat troubled course had just heen reached. On the whole it may be described as a Democratic cabinet with one or two members of a more Conservative tendency. The Second Parliament of Victoria was drawing nigh unto its close. Parliament was prorogued on the 3rd and dissolved on the 11th of July. So that INIr. Higinliotham was not seven weeks in session, and not eight a member. In his first division he voted y\\t\\ the Government. It was proposed to increase the salary of a geodetic surveyor then in tempoxvary charge of the observatory. The Government opposed the 70 MEiMOlR OF CKOItCK II K aNI'.O'l'll AM ir ground ])y fui-ty votes to thirty. » .June 13th, 1862. 74 MEMOIR OF flKORGE HIGINBOTHAM chap, viii In a debate on a Partnership Bill he said : — " They should keep their legislation on the same footing, and as far as possible adopt the same acts as those put in force in England." Several times he spoke in committee on a long Local Government Bill. During the first half of the year 1863 he was prominent in tlie House. Having brought forward a grievance he accepted the Minister's explanation with the utmost frankness. He spoke against pulilic nominations on the hustings, and in favour of an educational test for voters. He carried a motion about mail subsidies in favour of the Cape I'oute, the journey not to exceed forty -five days. He opposed an Immigration Bill which seemed to favour em- ployers of labour. One of those strange but not uncommon contests breaking out, in which a minority uses the forms of the House to delay a measure — a process known in later times as " stonewalling " — Mr. Higinbotham agreed with the objections taken to the clause by the members on the Opposition side, bnt he deprecated the manner in which those hon. gen- tlemen were endeavouring to attain their end. Speaking against time and threatening to protract the debate until ten o'clock in the morning Avere unseemly proceedings. ... It was evident discussion was at an end, and it appeared to liini that the influence and character of the House were not raised by a contest as to which side possessed the greater jiower of physical endurance. That sitting of the House terminated at 4.20 a.m. In June of that year, 1863, the O'Shanassy cum Haines administi'ation was defeated. The previous year it carried its Land Act by a majority of twenty-two ; in November it carried its Address by ten. But the feeling against the administration of the Act, if not against the Act itself, was increasing, and in June, 1863, the ministry was defeated on a motion in connection with that subject. The Governor sent for Mr. McCulloch, who forming a new ministry offered the post of Attornej'^-General to Mr. George Higinbotham. CHAPTER IX ATTORNEY-CiENERAL Mr. Rusdeu's Conimeiits criticised — Colleagues in the new Calnnet — Ministry of All the Talents — Mr. McCidloch, Mr. Verdon, Mr. Francis — The Cement of tlie Ministry — Legal opinions — Consoli- dation — Queen's Counsel — Letter to Mr. Ireland. The most important Ilistorij of Anntrdlia liitherto pul)lished is that written by Mr. George W. Rusdeii, who was for a long time Clerk of the Parliaments in Victoria. His work is the history composed on the largest scale and with most literary pretensions. Probably the author would not claim to be an impartial historian. He claims to tell the truth, and always takes a side vigorously, after the pattern of Macaulay rather than after that of Hallam. Even he must be awai'e of the bitterness of tone that he has infused into many parts of his book. The particular portion of his History of Ausfrrdia which deals witli the tariff, the tack, and the Darling grant in Victoria is especially full and violent, opening almost witli ilu' following accf)unt of Mi-. Higin- botham : — A theoretical enthusiast, steeped in a mixture of the ideas of .John Stuart Mill and the French iconoclasts of 1789. His personal character was so much respected that the Cascas of Victoria sheltered themselves under his name, knowing that what would appeal' offence in them, "his countenance, like richest alchemy, would change to virtue and to worthiness." The imputation against friends and supporters robs the personal eulogy of its honey, but the details of tlu^ blame should be examined. During the eighteenth eenturv and the 76 MEMDIll OF (iK()R(iI-: HKilNBOTHAM chap. first half of this the word " enthusiast " was used in a dis- paraging sense, from which some writers have tried to rescue it. No l)a(l force is attached to " tlie enthusiasm of humanity." Mr. Higinbotham, whilst a member of the ministry, developed a remarkable power of influencing others by the persuasive- ness of his speech and the fire of his oratory : but, unless all inspiring orators are to be condemned as enthusiasts, it is an open question whether he was an enthusiast at all. He had a legal mind, and loved precedent. It is true that he had an enthusiast's objection to any form of compromise, and when certain he was right, nothing could make him give way. Is it wise to oppose theory and practice 1 They must go hand in hand. An opponent is usually called theoretical, if he has thought out the reasons of his opinions. Practice unless based on reason is empiricism. Unless theoiy will bear to l)e carried into act, it is mere foolishness and idle dreaming. The word theoretical is used in the sense of unpractical. The volumes of statute law twice consolidated, five years of excellent administi'ation of office, twelve and a half years of judicial life j)rove that it would be i-idiculous to call Mr. Higinbotham unpractical. Nor is Mr. Rusden more happy in tracing the source of Mr. Higinbotham's political ideas. Most thinking men in the middle of the century were more or less influenced by the writings of John Htuart Mill. Pi'obably Mr. Rusden's refer- ence is not so much to the Elemods of Lofjic as to Free Trade views in the Political Economy, or perhaps to the work on Repi'esentative Government and On Liberty. When England adopted Free Trade, Mill's treatise became the text-book of Political Economy, superseding Adam Smith and Ricardo ; and now, as is natural, a later generation turns to newer books. Mr. Higinbotham certainly began political life as a free-trader, but he was hardly a disciple of INIill, and later he drew away from Mill's individualism, as indeed the w^orld seems to have drawn. The other fountain of influence is not very judiciously selected. It may be doubted whether there were French iconoclasts in 1789. Writers on the French Revolution distinguish the ideas of 1789 from the ideas of 1792. " ]>liss was it in IIimI (l;u\n to l)c alive, But to be young was very heaven," IX ATTO R N K V - ( J 1>: N lO R A L 77 wus Wordswoi'th's descriptiuii (^f tlie feelings of the eai-lier period. " Liberty, fraternity, equality " were the ideas of the time, — the abolition of serfdom, a new social spirit, and equality before the law. At first there was very little of hostility to existing institutions, and the new importance attached to the States-General was brought forward as a re- vival rather than as a novelty. No doubt iconoclasm was not unnaturally developed out of these ideas, and went to fearful lengths, but Mr. Higinbotham was never an iconoclast. Did the Fri'uch Revolution influence him greatly? Unless all democracy l)e due to the French Revolution, — a pro]3osition that can hardly be maintained, — there are but slight traces of such influence in his speeches or writings. It is far more true to say that his mind was saturated with the teaching of the great opponent of the French Revolution, Edmund Burke. The British Constitution, precedents di^awn from English })olitics and from the practice of the House of Commons, not aljstract principles, were always on his lij^s. If any French wi'iter has had a special influence on him, it is M. de Tocqueville, whose great analytical work on Democracy in America was much read and carefully studied for at least a quarter of a century after its appearance in 1(S;54. It is our misfortune that the Ijook is not studied still. M. de Tocqueville was assuredly not an iconoclast. Mr. Rusden is as hostile to Mr. Higinbotham's colleagues ; indeed he is more offensive in describing them, but his I'emarks may now be put on one side. This ministry has been called a " ministry of all the talents," and it certainly comprised many aljle men. The Premier was Mr. James McCulloch, who took the office of Chief Secretary. He was of Glasgow ])irth, — a Melbourne merchant, shrewd, hard-headed. Twice over — in two previous ministries — he had had a year's experience of office: once as Commissioner of Trade and Customs, the second time as Treasurer. Few politicians in Victoria had enjoyed a longer experience, for it must be remembered that responsible govern- ment was still young, being not yet eight years old. Mr. George Verdon, the Treasurer, was the son of an English clergyman, educated at Rossall under Dr. Woolley, afterwards the first Professor of Classics in the University of Sydney. Mr. Verdon came out to the colony in 1851, and engaged in commerce. In November, 1857, the following eulogy of him 78 MEMOIR OF (xEORGE HIGINBOTHAM ciiai-. appeared in tlie Aryus, perhaps t'ruui tlie pea of liis new colleague : — *' Mr. Verdon deserves some expression of appro- bation as presenting a spectacle too rare in these colonies, that of an energetic, young and educated gentleman, who has stea(Hly devoted hiniself to ijulilic affairs, without suddenly pushing himself into undue prominence, hut with the apparent determination of winning his way step by step to an honouraljle position." Such a position certainly came to him early. Having graduated in the Municipal Council of Williamstown, in 1860, being not twenty-seven years of age, he became Treasurer of the Colony. He was noAv a second time at the Treasury. Mr. Yerdon was the diplomatist of the new Cabinet. Mr. Richard Heales, the Premier under whom Mr. Verdon had been Treasurer, was now one of his colleagues, having accepted office as President of the Board of Land and Works. The versatile and witty Mr. Michie was Minister of Justice. One of the most remarkable men in the Cabinet was Mr. James Goodall Francis, Commissioner of Trade and Customs. Like Mr. McCulloch he was a successful Melbourne merchant. He had been four years in the House and once before in office. An extraordinary speaker, he would invent w^ords on the spur of the moment, would blunder in his grammar, would begin a sentence and, weaving in clause after clause and parenthesis upon parenthesis, would never complete the unfortunate sentence. The reporters were however very kind to him, and dressed his grammar, for his meaning was never far to seek. From his first entrance into politics he had convinced himself that some measure of protection to native industry was advisable. When the present author was new to the colony, he ven- tured with all the rashness of a " new chum " on a corre- spondence with Mr. Francis on fiscal matters ; and he can remember the following passage from Mr. Francis' reply : " I am neither a Protectionist, nor a Free-trader, but a citizen of a young country." The reply seems at first sight ridiculous, but its meaning is quite clear. It is eminenth^ the voice of the practical man. " As an abstract doctrine, I support neither Protection nor Free Trade, but I am prepared to accept a certain measure of protection for a time, to establish industries whilst they are young — such protection at a later pei*iod to be withdrawn." IX ATTORNEY-GENERAL 7 One of the ablest of the ministers soon left the ministry. Mr. Thomas Howard Fellows was afterwards so vigorous an opponent of the INIcCiilloch ministry that it is often forgotten that for the first five months of its existence he Avas Post- master-Genei'al. The question naturally arises, what was the connecting' bond of this Cabinet 1 In England, where there are generally two well-defined parties facing each other, homogeneous cabinets are the rule. In the colonies, parties are not so well defined ; and, as Mr. Higinbotham said over and over again, there is hardly the material for party government. For this reason, in every ministry men of widely different views are included. The McCulloch ministry was no exception. Thei^e were in it both Protectionists and Free-traders, Liberals and Conservatives. If parties had been sufficiently definite, the Cabinet might have lieen called a coalition. It was formed to create a strong government, ability and fitness for office lieing more considered than similarity of views. In spite of all differences this ministry held together. Previous to the formation of this Cabinet, there had been seven ministries in less than eight years — an average life of a vear and a month. This ministry remained in power for nearly five years. Never in the history of the colony since has a ministry been so long in office. There must have been some strong cement to keep together men who differed so widely ; and it is probably no exaggei-ation to say that a powerful element in that cement was the admiration felt for the character of George Higinbotham. Sir George Verdon thus speaks of him as a colleague : — For those who knew Mr. Higinbotham by his speeches in Parliament or from public platforms, it would be difficult to realise the kindness, gentleness, and forbearance which marked his conduct towards all those with A\hom he had to do in close personal association. These qualities were specially shown in Cabinet and in his depart- ment. His colleagues regarded him not only with the deep respect which his great capacity, acquirements, and integrity of purpose com- manded, but with a personal affection seldom bestowed upon any man by his associates. He made allowances for others which he never would make in his own case, and his unselfishness, devotion to duty, and kindness, gained for him the love of his colleagues and the devotion of all who served imder him. 80 MKMOIll (JK (iKOItCK II K ;l Xi:() TIIAM ciiai-. During the early part of the ht'c of the ministry, the Attorney-Gcnei'al does not seem to have taken an especially prominent part in the Covernment, though he worked very hard in his own office. Many points of practices were unsettled, and the Attorney-General was cjften called u])on foi" his legal opinion. A record of these opinions is preserved at the Crown Law Offices in Melbourne ; and it is quite evident that Higinbotham had harder work to do than his successors. Very soon also, he began the heavy woi-k of consolidation of the statutes, wliieli occupied a great deal of time. " What are ye fear'd on, fools? 'o, fur five and a half years earlier, when Mr. Fellows was Solicitor-Ginieral, he had prepared regulations for the appointment, which are here given : — Regulations to be observed on the appointment of Queen's Counsel : (1) Except in the case of barristers who shall have held the office of Attorney — or SoIicitoi--(!enera], no barrister sliall be appointed Her Majesty's Counsel except on the recommendation of the Chief Justice to the Governor in Council. ("2) On every such appointment the usual fee of five guineas shall ])e paid for tlie patent at the office of the Cliief Secretary. (3) For every license to appear against the Crown in cases in which tlie services of any of Hcf Majesty's Counsel may be dispensed with, a fee of one guinea shall be paid at the same office. (4) That a copy of these regulations be forwarded by the Attorney- General to His Honour the Chief Justice. These regulations were submitted for the approval of His Excellency the Governor in Council, by Thomas Howard Fellows, on December 5th, and approved by the same on December 7th, 1857. No appointments had however been made, until the date of Mr. Higinbotham's letter to Mr. Ireland, which, as entering more into detail than the letter to Mr. Michie, is here appended : — Ckiiwx Law Offices, July ISf/i, 1863. My dear Sir, — Will you do me the favour to inform me whether you would l)e ilisposed to accept the office of Queen's Counsel in the event (jf the (iovernor in Council Ijeing advised to confer the distinction on you upon your retirement from the office of Attorney-General ? No Queen's Coimsel have hitherto been nominated in this colony. I believe that such appointments woidd Ije acceptable to the profession, and would ]nove beneficial to the Bar l)y l)ringing it into closer corre- s])ondence with the state in which the jirofession exists at home. But if Queen's Counsel are to be introduced heie, I think that care nuist be taken that the oificc shall exist in reality as well as in name ; and that the conditions which arc undei'stood to be attached to the office, and which may in some cases be felt to be onerous, shall be accepted 82 MEMOIR OF OEOROE HldNBOTHAM niAT-. ix together witli the title ol (Ustiiiction. A silk gown is, 1 l)elicve, alwayis given at lionie on the undeistandiiig that it is to be retained for life, or given lip only under s))ecial and unforeseen circumstances. A Queen's Counsel, nioreovei-, is foibidden Ijy ))rofessional usage to pi'aetise in in- ferioi' courts, to draw pleadings, and generally to inidertake business which commonly falls to the sliare of the junior members of the pro- fession. I am aware that tiieir Honouis, the Judges of tlie Su))reme Court, concur in the ojjinion that these and all other obligations at- tached to the office f)f Queen's Counsel in Englaml and Ireland, ought to be observed and enforceded, tlu^ issues became clearer, and the falsity <^f tlie English statesman's epigram, " The North are lighting for empire, the South for fi'eedom," was more and more recog- nised. Many English thinkers and leaders of public opinion were convinced that the cause of the Union was the cause of humanity, and that whatever may have been the original intentions of the Northern States, their victory in the struggle meant the extinction of slavery. When the war broke out, Great Britain and France le- cognised the Southern States as a belligerent power, but decided to observe the duties of neutrality between the hostile parties. A proclamation signed by Earl Russell, Minister for Foreign Affairs, was sent round to the Governors of all colonies, setting forth the rules of neutrality, which may be reduced to the three following : — (rt.) No ship of war, privateer, or other armed vessel l)elonging to either of the belligerents which shall anchor in any British port shall he allowed to quit her anchorage Avithin twentj'-four lionis after any vessel belonging to the adverse belligerent, whether armed or unarmed, shall have left the same poit. {h) In any other case every shij) of war or privateer shall be required to depart and to put to sea within twenty-four hours after entrance into any British port, roadstead or waters, except in case of stress of weather, or of her requiring provisions or things necessary for the subsistence of her crew, or repairs, in which case she must de])art as soon as possible afterwards. {(■) Such ship may take in no supjilies, except provisions and such other things as may be lequisite for the subsistence of her crew, and so much coal only as may be sufficient to cairy such vessel to the nearest port of her own country, or to some ncaier destination. The commander of the SheiKOidoah said he liad come to have some machinery repaired, and to procure coals and provisions. This was what he wrote to the Governor of Victoria : — X THE "SHENANDOAH" 85 C. S. Stcaincr of War, Shenandoah, I'OKT PiliLLii', '15th Janvary, 186.'. Sir, I have the lionour to aiinoimcc to \(>ui' Excellency tlio arrival of the (.'(jufederate States steamer Shciuiiidoah, under my commuml, in Port Fliillip, this afternoon, and also to connnnnicate that the steamer's machinery requires repairs, and that I am in want of coals. I desire yonr Excellencj' to grant permission that J may make the necessaiy repairs and supply of coals, to enable me to get to sea as quickly as possible. I desire also your Excellency's permission to land my prisoners. I shall obsei've the neutrality. I liave the lionour to 1)0, very respectfully, Voiu' obedient servant, Jas. J. Waddell, Lieutenant-Commanding. The Governor of Victoria and liis advisers did their utmost to observe the rules laid down for the observance of a strict neutrality. A board was appointed to inspect the ship and see what repairs were necessary. These repairs were permitted, and eifected. The Governor pressed the captain to name a day for his departure. The Shenandoah took on board the necessary supplies of provisions, coals, etc., but no munitions of war ; and she tliereupon left the port of Melbourne, and passed througli Port Phillip Heads on the 18th of February, 186.5. Whilst the Governor and liis ministers observed sti'ict neutralit}^, many of the citizens of Melbourne, especially those belonging to " good society," were anxious to show their sympathies with the Confederates. The}^ left cards on the captain and officers ; they entertained them. At the Melbourne Club a dinner was given to the officers of the ship ; the Mayor of Melbourne paid them some attention. But, of course, a dinner at the Melbourne CIulj is a private, not an official entertainment, and tlie Mayor is a municipal officer altogether independent of the Government. The day after the arrival of the Shenandoah, the Consul of the United States forwarded a protest to the Governor. It ended thus : — I avail mj'self of this opportunity^ to call upon j'our Excellency to cause the said Shenandoah, alias S(-a KUkj, to be seized for piratical acts, she not coming Avithin Her Majesty's neutrality proclamation, 86 MEMOIR OF (iKORGK HIOINBOTHAM chap. never having entei'ed a port of the ao-Htyled Confederate States of America for the purpose of neutralization, and conHequnntly not entitled to belligerent rights. Table service, ])late, etc., on board said vessel haiu- tlic mark iSea Kinij, and the cajjtain should bring evidence tn entitle iiiin to belligerent rights. I therefore protest against any aid oi- comfort being extended to said piratical vessel in any of tlic ports of this colony. The Consul followed this letter up with other and more detailed letters to the same effect, and with affidavits from prisoners who had escaped from the Shenandoah. All the letters were referred to the Crown Law Officers, Mr. Higin- botham and Mr. Michie, who advised that there was no evidence of any act of piracy committed by any person on board the Shenandoah, that this vessel purported to be, and they thought she should be treated as, a ship of war belonging to a belligerent j^ower. The histor}^ of the ship as detailed by the American Consul was as follows, and the facts are undisputed : — In October last, the Sea K'nuj cleared from England, ostensibly for Bombay, loaded with coals, and further equipped Avith guns, sails, stores, etc., for a long voyage ; crew am])le, and besides the regular officers of sncli a vessel, a lieutenant in the so-called Confederate service. Proceeding upon her cruise, she, after a few days, by a preconcerted arrangement, falls in with the Laurel, also from England, and receives from her upon the high seas a further armament, munitions, etc., and the remainder of her officers. This being done, the Sea King hauls down the British flag, and hoists that of the so-called Confederacy, assumes a new name, and commences more active liostilities upon the commerce of the United States. Continuing her cruise, after the destruction of several vessels ^ she enters this port, the first one since clearing from England, and drops anchor in Hobson's Bay, flying the so-called Confederate flag, and styling herself the Shenandoah , a Confedei'ate vessel of M'ar. The Government of Victoria was called upon to seize the Shenandoah as a pirate, and was told that if it failed in this duty the consequences, that is to say, all later depredations caused by the ship, would be visited on the British Govern- ment. The Government of Victoria, acting chiefly upon 1 Nine, seven of which were destroyed and the others ransomed. Century Company's War Booh, vol. iv. , p. 599, x TMK 'SHKN.W'DOAH " 87 till' ;ulvit'c ot' iMr. 1 1 ii;iiil)()t liiiiii, (Iccliiicd. Allot lior mattor complicated the case. It is contrary to the hiw of England tliat any of her subjects should enlist under an alien flag, the particular statute that forbids this being called the Foreign Enlistment Act, dating, like the poet Jkirns, from " the hindmost year but ane "' in good King George's reign ; but this George is George the Third, whereas Burns spoke of the -Second. The Act is "59 George Til., cap. 69." The jShenrmdoah wanted men, and there were plenty of adventurous men in ]\[elljourne only too anxious, if the pay or chances of jirize-money wei'e good enough, to enlist under the Confederate flag. It was the duty of the Government and the police acting under its orders to prevent any enlistment of British subjects. Information having been laid before a magistrate that a British subject had enlisted, a warrant for his arrest was issued. Captain Waddell refused to allow the police oflicers to search for him. He said, " I pledge you my word of honour as an officer and a gentleman that I have not any one on boai'd, nor have I engaged any one, nor will I while I am here." Further pressed, he said he would " fight his ship rather than allow it." This was on the 14th of February; and in consequence of Captain Waddell's action, permis- sion to repair and take supplies was cancelled. In reply, he asserted the inviolability of the deck of a man-of-war, and positively denied that any one had been enlisted since his arrival in the port. The night of the day on which he wrote, four men were seen stealthily leaving the shijD, were follo\ved, and arrested by the water police. One declared he was an American subject ; another was a young lad about fifteen ; but the two others were tried for a breach of the law, and sentenced to a short imprisonment. Waddell's friends maintained these were " stowaways " who had been discovered. There were many rumours of enlistment, but though the police authorities were vigilant, no other breaches of the law were discovered. The Government claimed to have exercised watchfulness to the fullest extent in its power. After the departure of the Shenandoah the Government received infor- mation confirming in a manner the truth of the rumours. There is very good reason to believe that as many as forty-two recruits went in another vessel, and joined the 88 MEMOIR OF OEOKCE IIIOINBOTHAM niw. Slu'iKUiilonli outside llic llciids. Tliis \\(jul(l scciii to lijive been Captain Waddell's intention, fm- he wrote a hiief letter to the Attoi'n(>y-Genofal : — I>c pleasod to inform me if the Crown claims the .sea to l)e lliitisli waters three miles from the Port Philij) [sir) Head liglits, or from a straight line drawn from I'ort (v/V)' Lonsdale and Cape Sehank ? At the last munient the American Consul tried to stop some of these men by laying an information and obtaining warrants against them. Unfortunately, instead of going before a magistrate, he went to the Crown Law Othces ; l)ut the Attorney-Genei^al was not there, and the Consul meeting the Crown Solicitor was told — apparently abruptly — to go to a magisti-ate. When the Consul did go to a magistrate he found difficulties still. Complaint was made that the CroAvn Solicitor had insulted the Consul. This is the answer of the former : " I positively assert that neither in language or {sic) inanner did I insult him. I was in a hurry to catch the train, and may perhaps have left more suddenly than I other- wise should have done." An American gentleman, who accompanied the Consul, described his manner as sneering and insulting, his words being, " T don't care ; I want my dinner." It has l)een remarked that the Crown Solicitor's dinner cost his nation dear, for the Shenandoah, when she passed through Port Phillip Heads, by no means passed out of history, Vic- torian or British, with the same rapidity with which the Crown Solicitor hurried away to his dinner. Before the 2nd of August this Confederate privateer captured and destroyed many Federal vessels, especially whalers, near Behriug Straits. The number of ships is estimated at thirty, and the most were captured after the close of the war. Lee surrendered on the 9 th of April, and the last Confederate general on the 26th of May. On that date the war ended ; but it was not until the 6th of November that Captain Waddell brought his ship into Liverpool, where he surrendered her to the British Govei'nment, and stated that he had not heard of the close of the war until August 2nd, and had then 1 The letter is copied from the American Blue Book : " Papers relating to Foreign Affairs accompanying the Annnal Message of the President." Washington, 1S66, p. 504. Philip should be Phillip, and Port, Point Lonsdale, X THE "SHENANDOAH" S9 liastenod to Liverpool. Tlic vessel w;is llieii luuuleil nwv Id the Consul of the United States. The most striking- evidence that the Governoi- and his advisers, in their eftbrts to ol)serve neutrality, wei-e nioviiii;- in a diagonal between two extreme^ views was the faet that neither party was pleased. On the one side the American Consul %vas iVequent and loud in protest. Meanwhile the more fiery spirits amoni;- the Americans in Mellxnirne were plotting to scuttle the ship whilst in Hobson's l>ay, or to blow her up wdiilst she was still upon the slip. According to one story a contrivance with this design was actually fastenetl to the ship ; a train was to b(> fired by a pistol, but the ])istol missed fire. On the t)ther side Captain Waddell considered the tone of one letter " remarkably disrespectful and insulting to the Government I have the honour to I'epresent, and I shall take an early opportunity of forwarding it to the Richmond Government." Three months later that Govern- ment ceased to exist. Meetings of sympathisei's Avith the Confederates were held in Melbourne, and some strangely ignorant speeches made. With one marked exception ^ the members of both Houses of Parliament \\e\v strongly with the Confederates. The Secretary for the Colonies was satisfied : DowNiNfi Street, 26^/t A2Jf!f, ISG.'). Sir, I have to acknowledge the receipt of your despatches of the munbers and dates noted in the margin, with their several enclosures, lelativo to the visit at the Port of Mell)ourne of the (Jonfederate States Steamer, Shetiandoah, and the alleged enlistment of British subjects to serve on board tliat vessel. Tliese papers liave received the fulle=it consideration of Her Majesty's Government and the Law Ofticers of the Crown ; and I have much pleasure in inforniing you, tliat Her Majesty's tiovernment are of opinion, that under the circumstances stated, you acted with propriety and discretion, and that there does not appear at present to be a necessity for any action on their part. With regard to your request, that j'ou may receive instructions as to the propriety of executing any warrant untler the Foreign Enlist- ment Act on board a Confederate (public) Ship of War, Her Majesty's Government are of opinion, that in a case of strong suspicion you 1 Mr. (now Sir) Graham Berry. nt) MKMOIR OF (iEOR(;K HIOINBOTHAM chai-. ouglil to ic(ju(st tlic. jienuissioii of the coiniiianclei' ot the .sliip to execute the warrant, and tliat if this request be refused you ought not to attempt to enforce the execution ; but that in tliis case the coni- HKinder siiould be approves — It was not Captain ^\'addel^s respect for English hospitality, but the vigilance of the Colonial Government, that alone prevented a gross l)reach of our laws when the Slttnandoah lay in Australian waters. — The Time.% September 11,1 865. But the Government of the United States was not so well satisfied, and when the war was at an end, summed up its frequent protests to the British Government " against armed vessels being permitted to issue from British ports to cruise against the commerce of the United States." Feehng in the United States ran very high against England. Mr. James Russell Lowell, in his well-known essay " On a Certain Con- descension in Foreigners," written in the full tide of this irri- tated feeling, wdiich he himself afterwards did so much to soften, has the remark, " I never blamed her [England] for not wdshing well to democracy — how should she? — but Alabama/^ are not wishes." The mischief done by the Shenandoah was decidedly smaller than that done by the Alabama, which ship was built in Birkenhead and sailed from the Mei\sey under a false name in July, 1862. She was sunk by a Federal iron- clad, the Kearsarge, off Cherbourg in June, 1864. Three officers in the Alabaina on that occasion were in Melbourne with the Shenandoah. For two years the Alabama had preyed on American commerce, destroying nearly a hundred ships, and almost sweeping it from the sea. The American Government contended that the English Government was criminally negligent in allowing the Alabama to sail. Indeed, the Government meant to interfere, but postponed inter- ference until it was too late. Under pretence of a trial X THE "SHENANDOAH" !»l fcrip the ship escaped. lu tlie cast- of both ships, as well as of others of less importance, the English Government claimed to have done all that was incumbent upon it, but in this view tlie (TO\ernm<'nt of thc! United States refused to concur. Over and o\er again representations were made : much diplomatic correspondence was interchanged. At length in 1871, the Treaty of Washington was signed, by which the mattei' was referred to arbitration. Lord Cariterbur}', the Governor of A'^ictoria, was then requested to have a state- ment of the facts with respect to the Shenandoah transmitted to England. A paper was drawn up, cliiefly by Mr. Higin- botham, with all the correspondence appended, and printed. From this paper, which curiously enough bears no imprint, the above narrative has been mainly compiled, its very language being empk)yed without quotation marks. In 1871 Mr. Higinbotham was working at the Bar, no longer even in the Assembly ; but he positively refused to accept any fee for his work, although payment was pressed upon him by Lord Canterbuiy. The completed statement was signed by James McCulloch, .1. (t. Francis, Archibald Michie, and George Higinbotham. iSy the Treaty of Washington (8th May, 1871), it was agreed that the Tribunal of Arbitrators should consist of five, nominated — one by Her Britannic Majesty, one by the President of the United States, one by the King of Italy, one by the President of the Swiss Confederation, and one by the Emperor of Brazil. Sir Alexander Cockburn, Lord Chief Justice of England, was arbitrator for Great Britain. Mr. Charles Francis Adams, who had been ambassador for the United States in England through the whole time of trouble and knew every turn of the negotiations, represented liis country. The King of Italy nominated Count Sclopis ; the President of Switzerland, M. Jacques Staempfli ; and the Emperor of Brazil, Viscount d'ltajuba. Count Sclopis was elected President of the Tribunal. The Conference, which met on the 15th of December, 1871, at Geneva, sat on thirty-two days, and the last day was the 14th September, 1872. The "decision and award " is published in the Supple- ment to the London Gazette oi Friday, the 20th of September. It occupied five pages, and is signed by four of the arbi- trators, Sir Alexander Cockburn stated at great length his 02 .MKMOIR OF CKOIICK UK iTXl'/ri'HA.M tiiap. reasons for dissentin.ij tVuiii the award. Thes(! icasuiis oc'cui)y 254 pa^cs. JNIr. Adams' statciiiciit occupies forty pauses, and a similar space is covered by the statements in French of the other tlii'ee arl)iti-ators. This is not tlie place for setting fortli the wliolc of tlic interest ini,^ histoi'V of tlie Geneva Conference, and the cases, counter-cases, documents, and evidence brought forward. The general decision was in favour of the United States, and tlu; award was 15,500,000 dollars in gold. The decision in the Alabama case and in several others was by a majority of four voices to one. But in tlie Shpnandoah case the ultimate decision was by three to two. One of the two was Sir Alexander Cockburn,^ wlio can find nothing in all that took place in JNIelbourne to justify the charge against the colonial authorities of negli- gence. Two jjassages from his statement may be quoted. It closes as follows : — I cannot agree that Mhere the goveiinnent of a colony is lionestly desirous of doing its duty and maintaining neutrality, the fact that men anxious to ship on board a belligeient vessel eliule the vigilance of tlie police in the night time, is to make the i)arent state liable for all the damage such vessel may afterwards do. And I protest, resjjectfully but emphatically, against a decision based on grounds to my mind so wholly untenable.- The other quotation is : — The honour of the commander of the ship having been pledged, ought the search of the ship to have been further insisted on ? By the comity of nations the word of a commissioned officer is held to be sufficient guai'antee for the truth of anything to which it is officially pledged. The rule is a sound one.^ The violation of his word by Captain Waddell sti'ikes all the judges ; and to excuse him the doctrine that " all is fair in war " must be widely stretched so as to include false swearing to a neutral. The second dissentient was Viscount d'Itaju])a, and these are his words : — Considerant, Que, si d'un cote, de tons les faits relatifs an sejour du Shnimndoah dans le port de Melbourne, il ressort qu'il y a eu quek[ues 1 It is a little distressing to find the Lord Chief Justice of England speaking of " the (xovernor of Melbourne." - P. 4334. •" P, 4327. X THE "SHENANDOAH" - M.'i irn'gularites commiscs, telles siirtout que raugiiientation dc rt'quipagc — (run autre uott', il u'est pas prouve que ces irregularites puiKsent etre iiiises a la charge du Gouverneinent de Sa Majcste Britannique ct iiuputees ;i la negligence des autorites anglaises, mais qu'elles ont ete la consecjuence dc la violation de la parole d'honneur donnee par le Conmiandant Waddell, et des difficultes exceptionelles de surveillance (|ue presentait la conformation du port ; Considerant en outre, Que le (louvcrneur de la Colonic, ayant appris apres le de2:)art du Shoirnidoah la violation de neutralite dont ce navire s'etait rendu coupable, decida dc, refuser doi'cnavant Tliospitalitc au Lieutenant Waddell et aux autres otliciei's du S/wiiniii/nah, et ecrivit dans ce sens aux autoritcs navales et civiles de TAustralie en les jjriant d"agir de menie, ce cpii coutribue a dcgager la responsabilite du (iouvernement de 8a Majeste liritannique, est d'avis, Que la (Irande Bretagne n'a pas manque aux devoirs prescrits dans les regies ctablies pas 1' Article vi. du Traite de Washington, et que ))ar consequent elle n'est pas responsable des faits imputes an ei-oiseur Confedere le Shoimidoah.^ Not only was th(> Shevninhmlb case decided Ijy a bare majority of one, but from tlie statement of Count Sclopis, it is very clear that he was long in doubt and very near voting on the other side. He stated his difficulty to his fellow- arlntrators, heard what they had to say, took a day to think it over, and then voted against the British view. Mon o])inion, chancelante avant-hier, arretee aujourd'hui par suite dc la discussion que j"ai soulevee et que vous avez su rendre feconde et decisive par vos lumieres.''^ It is advisable to remember these facts in considering the (luestion whether the advice of the Attorney-General to Sir Charles Darling was Ijlameworthy because of its conse- quences. 1 r. 4-ill. - P. 4-1.39. CHAPTER XI TARIFF AND TACK The Govei'nor's Speech — The Budget, January llJth, 1865 — Higinbotham's Speech in the Debate — Is this I'rotection? — The Legislative Council — The Tack — Was it Premature ? — Was it a true Tack ? — The Bill is '• laid aside " — Bitter Contest — Conference on AVater Works Bill — Resolutions of Assembly — Collection of Customs on Resolution of Assembly declared illegal — Agreement with London Chartered Bank — Mr. Cardwell censures the Governor — The Tack is removed, and Legislative Council rejects the Tariff. A NEW pai'iiament, the fourth in the history of Victoria, met at the end of November, 1864. In the ministerial programme, as declared in the Governor's sjoeech, was included " a measure having ft)r its purpose the readjustment of the tarifi"." The next paragraphs in the speech explained as follows : — It is proposed by my advisers that the revenue to be collected through the niedium of the Custom House shall be levied partly Ijy reduced duties upon objects already chargeable, and partly by duties, moderate in amount, on various commodities which as yet have been altogether exempt from taxation. The effect, it is conceived, of this proposed measure will be to decrease the burden of taxation hitherto borne by the mining and other industrious classes, and to distribute it more equitably among all classes of society. This was generally interpreted as foreshadowing a measure of Protection. Many advocates of Protection had been returned at the General Election, and there were some in the Cabinet. On the tariff question the members of the Cabinet had met with open minds. Some were Free-traders CHAP. XI TARIFF AND TACK 95 and sonu,' Protectionists, though the latter were liardly to be counted extreme, and mostly under the influence of Mr. Mill's exceptional case, viz., granting protection in a new country to rising industries for a limited time. The Budget was submitted on the 19th of January, and contained proposals that the duty on tea, sugar, and opium, as well as the export duty on gold, should be reduced, and that a duty small in amount should be imposed on a great many articles hitherto duty-fi'ee. The Treasurer, Mr. Verdon, avowed that, revenue being needed, the Ministry liad " selected those articles which compete with our own articles rather than those which do not." The debate on the Budget lasted a dozen nights, all of which fell (January 24th — February 1 5th) dux'ing the time that the Shenandoah was in port. In committee of the whole, members can speak more than once ; and Mr. Higinbotham spoke several times in the course of the long debates, but his views are most fully expressed in the si^eech of January 3 1 st. . . . He spoke of " the intellectual puzzle " — \Vas the taiitl a Free-trade or a Protectionist one / One member for Ballarat, speaking as a Free-trader, objected to the tariff as Protectionist, wliile his colleague, a Protectionist, objected to it as a Free-trade tariff. Again, the member for Kilmore told the Protectionists that the tariff wouhl not carry out their views. They found the meml:)er for CoUing- wood also speaking of the tariff as a Free-trade one, and yet declaring that although a Protectionist he would support it. He confessed that he was lost amidst these conflicting views, but he felt bound not to maintain a lUsingeniious silence. . . . Unless members were prepared for direct taxation, they had no light to complain of the present as a Protectionist tariff. . . . An hon. member had given a definition of l*rotection he could readily accept — a system of Customs duties not necessary foi- the purposes of revenue, and delibei'ately imi^osed foi- the purpose of excluding or of discouraging the introduction of foreign commodities in cases where the same commodities could be introduced at liome. ^Vell, if that were a true description of Protection, could tiie tariff on any ground whatever be called a Protective one ? He maintained that it could not come A\'ithin that classification. For what purpose then was the change made ? . . . He believed that although the tariff would not meet the views of those who desired to foster native industry, it would help to cast the burden of taxation upon classes who had not hitherto borne tlieir fair share of it. The conclusion of the speech was a defence of Protection from the intellectual scorn uf its opponents, coupled with m MEMOIR OF OKOrUMC IIl(iINi;01"HAM ciiAl'. ;i ivpiuliiition of the policy ;is iiiischicvous and only loading to disappointnicnt and disaster. In the Pitucli of the day the; "intellectual puzzle" is put in a dill'erent way : the Treasui'er is represented as shifting the pea from thimble to thimble, and the three thimbles are labelled Protection, Free Trade, and l-le\onuo. It was cer- tainly a llevenue tariff, but there was also a small measure of Protection, which was regarded by the meirantile connnunity with the utmost disfavour. "Thin end of the wedge"; " it is the nature of the beast to grow," were the familiar answers given to those who urged that the Protection was very small. The stronghold of the Free-traders and of the mercantile class was the Upper House, the Legislative Council. At that time the members of the Council were elected on a strictly limited franchise, and it was pre-eminently the house of the ^\•ealthy. When the Tarilf passed the Assembly, its enemies, about a third of that house, were thanking God that there Avas an Upper House, which would know how to do its duty. By the Constitution Act the Upper House is assigned the privileges of the House of Lords, the Lower House those of the Commons. It is a commonplace of English politics that the power of the purse rests with the latter, who would never dream of allowing the House of Lords to throw out a Tariff Bill. In England these are matters of unwritten law. Un- fortunately in the Victorian Constitution Act it was put down in Ijlack and white that the Upper House might reject though not amend a Money Bill. Mr. Higinbotham admitted that they had the light to reject, it — • so had the Queen oi" His Excellency ; but the legal right and the con- istitutional exercise of that right were dift'erent questions. It was admitted over and over again that the Lords had the legal light to reject the Paper Duty Bill, but yet the Commons continuously denied their right to do so. — Hansard, March !)//;, 1865. The Legislative Assembly was determined that the Council should not exercise this legal but unconstitutional right, and tacked the Tariff to the Appropriation Act. In the first place it is doubtful whether this iiction was not pi'emature — jumping before coming to the leap. The Council had not thrown out a INIoney Bill. Perhaps it would have been wiser not to have listen d to the vapouring talk of the lobby, the XI TARIFF ANT) TACK 97 library, and the refreshment-room, for in the colonies tlie two Houses have these conveniences in common — wiser to have waited until the Tariff was thrown out. On the other hand it is a question whether the tack was a real tack at all. A tack is where two distinct matters ai"e united in one bill. A popular illus- tration used to be given, when the last clause of a Turnpike Bill in England ran — " And that the Warden of Wadham College, Oxford, be permitted to marry." The Appropriation Act deals with money just as a Tariff Act does, and it might fairly be contended that the two subjects were at least germane. The talk that the Tariff Bill would be thrown out by the Council was met by the threat of the tack. Before the tacked bill, if it was a tacked bill, reached the Council, that body had appointed a committee, and, as a result of its report, had determined on resisting any encroachment on its rights. The Appropriation-c?6??i-Tariff Bill was sent to the Council, and by it on the 25th of July — after a single night's debate — " laid aside." Sir Charles Darling, when reporting the matter to the Secretary of State for the Colonies, wrote :— The difficulty has been broiight about by an overstrained exercise of then- powers on the part of both the deliberative chambers, which appears to me to be at variance with the true spirit of a consti- tution, based and modelled in its main features upon that of the mother country ; concession on either side adopted in that spirit will imme- diately remove the difficulty and remove the course of legislature to its accustomed channel. But there is a homely proverb which says that if two men ride on one horse, one must ride in front. If two houses have powers in all respects equal, sooner or later a deadlock must ensue. The House of Lords alters and rejects many of the less important measures that have passed the Commons. It can delay a measure of chief importance ; but if the nation is resolved on any measure, it is well known that the Lords will and must yield. It is specially true that the Commons will not brook the least interference with money matters. Could the Legislative Council of Victoria, because elected on a narrow franchise, expect to be stronger than its prototype, the House of Lords 1 H OS :\IKMOTR OF CKORCK TIICTXP.OTTIAM ruAr. W'lioii coiistitutioiis were given to tlii' colonies, it was thouglit good to model them on the British pattern. The House of Commons it was easy to imitate, but the Upper House was a difficulty. It was generally agreed to be absurd to introduce hereditary legislators, and the choice lay between nominated life peers and some form of representation. The nomination system was adopted in several colonies ; election on a limited franchise, in Victoria. But it was always con- tended by those oj^posed to the claims of the Upper House that election was merely a method of apjiointinent. The number of those represented by the Council was less than 10,000, out of a population of 600,000; so that a contest between the two Houses, if the Assembly was supported by the constituencies, meant a conflict between the will of the people and the -will of the moneyed class. The contest that began with the laying aside of the bill in July was a very bitter contest. It and its direct effects lasted for three years. The first part of it lasted nine months, and was simply an obstinate struggle between the Houses. If two obstinate men have a difficulty, each maintains that the other is obstinate and he himself firm. The firmness is not blamed for unpleasant consequences, the obstinacy is. Both Council and Assembly were so desperately in earnest that it was not proposed that an attempt should be made to remove the difficulties by the obvious expedient of a conference. But, curiously enough, there was an analogovis question at issue between the Houses at the very time, called the Water Works Bill, as to which a conference was held. The report, being a summary, though hardly a short summarj'^, of the views on each side, is very instructive reading ; for it is quite evident that although the conference seemed to be concerned with the power of the Legislative Council to make amend- ments in a bill that imposed a rate, the graver question of the deadlock was really in the minds of the six members of each House who met on six days in August in the Parliament library. Without mentioning the Appropriation-cwm-Tariff" Bill the whole matter as to the privilege of the Assembly was both ably and amicably discussed. Mr. Higinbotham was one of the six champions of the Assembly, but Mr. Michie, the Minister of Justice, seems to have been the Protagonist. A short extract from Mr. Higinbotham's first speech may be quoted : — XI TARIFF AND TACK 99 The secoml principle in England is that tlie House of Commons is the author of all taxation and the grantor of all supplies to the Crown. It has always claimed the right — the sole right — to impose taxation upon the people. That power too appears to be, to some extent at all events, intended to be conferred by these sections of the Constitution Act upon the Legislative Assembly. That right of the House of Commons is a limitation of the power of the House of Lords, which has, in practice, been always submitted to by that body, that it shall not alter or reject either bills, the main purpose of which is to impose taxation, or bills in whicli taxation is pi'oposed as an incidental part. That is to say, the House of Lofds would not reject either the Tariff or tlie Water Works Bill. One cannot but wonder whether a conference on the former might not have opened out some way by which the coming troubles might have been avoided. In the case of the Water Works Bill the Council practically gave way ; and a little later it, or rather a modified edition of it, became law. When the news that the more important bill had been laid aside reached the Lower House, the Prime Minister, Mr. McCulloch, moved four resolutions, — drafted, it was generally thought, by the Attorney-General — and they were adopted without a division. L That the right of granting aids and supplies to the Crown is in the Legislative Assembly alone. 2. That the jjower conferred by the Const it ut ion. Act on the Legislative Council to reject bills for appropriating the revenue and bills for improving any duty, rate, tax, rent, return or impost, is justly regarded l)y this House with peculiar jealousy, as affecting the right of the Legislative Assembly to grant and approj^riate supplies and to provide the ways and means for the service of the year. The third and fourth resolutions wei-e of similar purport, closing with the detennination not to entertain any further or other bill for the appropriation of supplies for the service of the year 1865 initil the rightful control of this House over taxation and supply shall have been acknowledged by the adoption by the Legislative Council of tlie Tariff approved of by this House. So now the two Houses stood " like cliffs that had beeii rent asunder." The Treasury had money, w^hich could not legally be paid for services that had been rendered to the State. There were certain special appropriations under other H 2 ino MEMOIR OF (JEORCE HIGINBOTHAM ciiAr. nets wliicli do not roquivc^ the pjissiiig of tlic A])))ro|)ii;ition Act — tlie salaries of the (Tovernoi-, the Judges of the Supreme Court, the Miiiisteis, and certain higli officials, as well as sundry pur})oses, including th(! interest on the loan, and amounting in all to £1,133,502. But the civil servants could not he paid ; contractors could not be paid. The head of the Executive was " without funds," he said himself, " to keep up the gaol and police establishments, to pay the pledged allowances to the Queen's troops." The cruelty of the situation lay in the fact that innocent people were suffering whilst the Houses fought. Those who read the story will differ, as those who then lived in the colony differed warmly, on the question who was to blame for this dangerous state of things. The Upper House had no constitutional right to reject the Tariff. The Lower House was coercing the Council by the tack, and it is natural that coercion should be resisted. Honourable citizens might fairly side with either party. The problem that arose for the consideration of Ministers was to find some means of carrying ont he Queen's Govern- ment. Revenue was raised on the resolution of the Assembly. To explain this, an English precedent should be adduced. The moment that the Chancellor of the Exchequer has finished his Budget speech, and told the world what are to be the changes in the duties, the House of Commons passes resolutions to protect the revenue, and at all the ports the increased duties are collected from the next morning. The propriety of this course is self-evident. If any delay were permitted, merchants could import large stocks at the lower duties, and gain from the public some at least of the profit of the higher rate, whilst the revenue would lose. A similar practice has prevailed in the colonies. On January 19th, 1865, on the occasion of the Treasurer's Budget speech introducing the Tariff which caused all the trouble, Mr. Francis, the Commissioner of Customs, said : — At that moment an officer of the Customs was in attendance at the House, ready to send off by telegram to the outports any alteration made in the Tariff ; and the Customs Department was ready to make the necessary ari'angements for Melbourne in the morning. The Customs Department, on the one hand would at once proceed to the XI TARIFF AND TACK 101 collection of the new duties ; and on the otlier, reduced duties would be received on a l^ond being given that the money would be refunded in the event of tlie Tariff not being granted by Parliament. Mr. Francis was not a clear speaker, but his final clause probably means that in the case of reduced duties, the smaller amount would be collected on a bond that the balance would be paid by the importer, if Parliament retained the higher rate. On January 19th it w^as not possible for Ministers to foresee what would be the fate of the TariiF. The new duties were collected and brought in revenue, described by the Governor in one despatch as " overflowing." No one protested. It is difficult to say exactly at what point the collection of these i-evenues became illegal. They were all collected subject to a pledge that they would be returned if the law were not passed. The term used by the Legislative Council had been that the bill should be "laid aside." It was not finally rejected. Much later it was explained that laying aside was equivalent to rejection. The collection continued for nearly six months. Petitions were filed by merchants in the Supreme Court, where the judges decided that "the demanding of duties under the mere resolutions of the Legislative Assembly was illegal." And yet similar demanding is continued in the colony, as it is in Great Britain, to this day. Another device for raising money is thus described in one of the Governor's despatches : — One of the six banks in Melljourne, with which the public revenue is by law deposited, had agreed to make advances equal to the amount at the credit of the colony, upon no other security than the pledge of the Government that the amount advanced would he repaid under the Governor's authority whenever the existing dispute between the Council and Assembly should be arranged. The bank was the London Chartered Bank of Australia (reconstructed in 1893 as the London Bank of Australia, Limited), and its only resident director was Mr. McCuUoch, the Prime Minister. Any man to whom the Government owes money can, in the Law Courts, sue the Government for payment as he can any other debtor. If the Court decides that the 102 MEMOIR OF GEORGE HIGINBOTHAM chap. money is due, it must be paid independently of any Appro- priation Act, for the Law Courts must be obeyed. The London Chartered Bank brought its action for the money due to it; the Attorney-General confessed judgment, so that the case never came before the Court at all, but the effect was just the same, and the money was paid. Thus for the I'emainder of the year 18G5 all claims upon the Crown were met, and salaries paid. His Excellency the Governor sent despatches to Downing Street detailing these steps. In reply, he was told by the Secretary of State for the Colonies that he had been conniving at breaches of the law. The despatch is dated Downing Street, 27 th November, 1865. A paragraph near the end may be said to sum up Mr. Cardwell's view : — I am of opinion that in these three respects — in collecting duties without sanction of law, in contracting a loan without sanction of law, and in paying salaries without sanction of law — you have departed from the principle of conduct announced by yourself and approved by me, the principle of rigid adherence to the law. I deeply regret this. The Queen's Representative is justified in deferring very largely to his Constitutional Advisers in matters of policy, and even of equity. But he is imperatively bound to withhold the Queen's authority from all or any of those manifestly unlawful proceedings by wliich one political party, or one member of the body politic, is occasionally tempted to endeavour to establish its prepondei'ance over another. I am quite sure that all honest and intelligent colonists will concur with me in thinking that the power of the Crown ought never to be used to authorise or facilitate any act which is required for an immediate political purpose, but is forbidden by law. The comment on this that naturally rises is that it was very easy for INIr. Cardwell in the safe distance of Downing Street to criticise the means adopted to carry on the Queen's Government. He condemns what Sir Charles Darling did ; he does not show how else the desired end could have been attained — how the Queen's Government could have been carried on. During the contest it was often said that the whole trouble was due to the obstinacy of the jNlinistry and its supporters in the Lower House, who persisted in the tack, thereby coercing the Council. Some of those who held this view acknowledged that, according to constitutional pre- cedent, the financial policy of the Colony should Ije regulated XI TARIFF AND TACK 103 by the Lowei' House, and by it alone. In the month of November the Ministry decided to retrace its steps as far as the tack was concerned, and to try now what should have been tried earlier. On November 7th, a Tariff Bill was in- troduced into tlie Assembly and read a first time. On the next day the second reading was carried by thirty-nine to fourteen (without pairs), and the measure was passed through its remaining stages. Eight days later the Upper House rejected it by a majority of fourteen, only five being- reckoned as " Contents." The Upper House uses the phraseology of the Lords. It was now quite clear that it was not the tack which was standing in the way : and in order to make it equally clear that the colony was behind them, Ministers advised the Governor to grant a dissolution. In the Governor's speech at the prorogation (28th November), there came the clause — it is easy to imagine from whose pen — The vital pi-inciple of representative institutions is the enlightened will of the comminiity. As the Speaker, on I'etux'ii from the Council, read the speech at the table, this clause was received with cheers and counter-cheers. And thus they made them ready for battle. CHAPTER XII ELECTION OP 1866 AND END OF DEADLOCK Excitement over General Election — Election at Brighton — Opponent, Mr. J. Wilberforce Stephen — Mr. Higinbotham's address — Extract from Mr. McCulloch's — Charge of inconsistency — Legislative Coimcil again rejects Tariff Bill — Case of Mr. Hugh George — A new session of Parliament — Conference and settlement of contest • — The trouble begins anew. Over the Genera] Election held early in 1866 the excitement was tremendous. For months the colony — it has been said, like one large debating society — had been discussing the crisis, which had been acute as well as prolonged. Every- where men took sides with the Council or with the Assembly. Hardly any one was neutral or prepared to allow that truth could lie between the extremes. Now an opportunity was given at the polling-booth and the ballot-box to make opinions felt. Hardly a constituency was without a contest. But the interest culminated in the places where the Ministers were contending, especially in Mornington, Richmond, St. Kilda, and Brighton. The Chief Secretary, Mr. McCulloch, was opposed at Mornington, but had not much difficulty in securing his seat. Mr. Francis, the Commissioner of Customs and reputed author of the Protectionist element in the Tariff, had still less trouble at Richmond, for many of his constituents were, as he himself was. Protectionist. Their desire was not so much for the thin end of the wedge, as that the wedge should be driven further in. Mr. Michie, the Minister of Justice, suffered defeat at St. Kilda, for the residents in villas were, as usually. Conservative. It is perhaps no exaggeration to say that eyes were more closely fixed on the Brighton election than on any other. CH. XII ELECTION OF 1866 AND END OF DEADLOCK 105 Mr. Higinbotham was personally very popular, and in accounts of the elections in many constituencies it is recorded that the proceedings were interrupted, when his name was mentioned, by the proposal to give " three cheers for the Attorney-General." The candidate selected to oppose him at Brighton was a foeman worthy of his steel. Mr. James Wilberforce Stephen, barrister-at-law, was a member of the well-known family of Stephen that has for sevel-al generations given distinguished lawyers and judges, not to mention men of letters, to various parts of the Empire. Conspicuous ability, legal and literary, has been combined in them with a sturdy independence of character. Mr. Wilberforce Stephen was a son of Sir George Stephen,^ knighted in 1837, the year of the Queen's accession, after taking a prominent part in the suppression of slavery thi'oughout the British Dominions. At this Brighton election Mr. Stephen came forwai'd as a strong supporter of the Legislative Council, but he made much of the Protectionist element in the Tariif, whilst his opponent would only argue the constitutional question. Hence the simplicity of the following : — To THE Electors of the District of Briohtox. Gentlemen, — In compliance with a requisition, numerously signed, of electors of Brighton, I have the honour to offer myself again as a candidate for the representation of your district in the Legislative Assembly. I thank you for the approval of my past conduct conveyed by this requisition. In the event of your again electing me, I will give my support to all measures which the Legislative Assembly or the Govern- ment may find it necessary to adopt for the pui-pose of maintaining and securing for the Assembly the exclusive control of the public finances and taxation, which I believe it to have been the intention and the effect of tlie Constitution to confer upon that body. The first of tliese measui'es will l^e the Taiiff, in the same form in wliich it has been already adopted Ijy the Assembly, and unconstitutionally rejected by the Council. After the rights of the Assembly shall have been vindicated by the enactment of the Tariff, and conditionally upon that event, a proposal for tlie reform of the Legislative Council will receive my support. ^ iSir George Stephen was a brother of Sir James Stephen, long Under-Secretary for the Colonies, Professor of History at Cambridge, father of Sir James FitzJames and Mr. Leslie Stephen. 106 MEMOIR OF fJEORfiK HKilNlJOTHAM chap. I am unwilling to diveit your aUenlion from tliese questions of para- mount importance liy alluding to other to))ics. I desire tiiat my success or failure at this election sliould turn upon your approval or disapproval, as well of my past acts as of my views and intentions with respect to the (]Ucstion of tlie constitutional lights of tlie Legis- lative Assembl}'. It is my earnest wish, in the event of my being again leturned to Parliament as tlie member for Brighton, to be assm-ed that I shall liavc the approval and suppoit of your Conservative district in reference to a question whicli, in my opinion, vitally con- cerns public riglits and ])ublic liberties. I have the lionour to be, (ientlemen, "^'our obedient servant, (Jko. Hkjinbotua.m. Brigliton, lith Den mho; ISO'). 8ide by side witli this it may be as well to Sergeant-at-Arms. It was on the motion of the Attorney-General that Mr. George was committed, and when the imprisonment became a farce, " a means of personal recreation and enjoyment," the Attorney-General called for stricter discipline. A piquancy was given to these facts by the knowledge that Mr. Higinbotham and Mr. George were personal friends. The dissolution of Par- liament gave Mr. George his release. On an earlier occasion, the case of Mr. Dill, also printer of the Argus, Mr. Higin- botham had warned the Assembly not to exercise its privileges against perfect freedom of the Press. No doubt the latter case was worse, both in the strength of the language employed and in the fact that the head of the Government was assailed. But in contests between Parlia- ment and the Press, which are perhaps inevitable, it is more dignified for the former not to assert privileges unshared by citizens at large. There are law courts where eveiy citizen has his remedy. In the new session a conference was held between the two Houses. Amongst the seven members rejDresenting the Assembly, Mr. Higinbotham was not included, evidently for the reason that he was not prepared to make concession. The seven consisted of two members of the Government, the Premier and the Treasurer, three gentlemen who joined the Government a few months later, one who succeeded Mr. Higinbotham as Attorney-General in the next McCulloch Ministr}^, and another. After some debate concessions were made on both sides ; both sides claimed a victoiy, and taunted their opponents with defeat. In matters of form it may be said the Upper House won, in substance the Lower. How far in such cases form can be separated from substance is another question. To help to decide the question with which side the honours of victory lay, the report of the Conference as laid before the Legislative Assembly is here given : — xiT ELECTION OF 1800 AND END OF DEADLOCK 111 Your Conmiittee have conferred with the Coniniittee of tlio Legis- lative Council on the subject of the said differences, which youi- Committee ascertained from the Committee of the Legislative Council were comprised under three heads, viz : 1. 'Die form of the Preamljle. 2. The inclusion of the repeal of the Duty on the Export of C4old in a Bill imposing Duties of Customs. 3. The limited duration of the measure. And your Committee have now the honour to make the following recommendations to your Honourable House : — 1. That the Preamble be as follows : Most Gracious Sovereh;n, — Whereas w^e Your Majesty's most dutifid and loyal subjects, the Legislative Assembly of "\"ictoria in Parliament assembled, did on the eleventh day of April in the year of our Lord one thousand eight hundred and sixty-six freely and voluntarily vote that a .Supply be granted to Youi' Majesty and -H'hereas towards raising such Supply we did on the said eleventh day of April vote that the several duties hereinafter mentioned be charged. We do therefore most humbly beseech Your Majesty that it may be enacted and be it enacted, &c. 2. That so much of the last clause of the Bill as limits the duration of the Bill be omitted. After much deliberation upon the subject, the Committee of the ijcgislative Council stated that they would "no longer insist upon their objections to the inchision of the repeal of the Gold Export Duty in the Bill of Supply, upon the assurance of your Committee that it was inserted in the Bill as a tax, and not as territorial revenue, and upon your Committee disclaiming any intention on the part of your Honourable House of tacking it, with the view of coercing the Council to pass it " ; to this proposal of the Committee of the Legislative Council, your Committee acceded. In accordance with this report matters were settled. On 17th April, 1(S66, a new hill with the jireamble agreed upon was introduced, and although the debate did not lack taunts and acrimony, a Supply Bill and an Appro- priation Bill at length passed both Houses. It seemed as if the strife in the colony were at an end, and the healing process might begin ; but on that very day, 17tli April, the Premier announced in the House that a despatcli had been received from Mr. Cardwell, recalling Sir Charles Darling. That recall led to a renewal of the strife, and to the second deadlock. CHAPTER XIII JUDGES RIGHTS Sir R. Barry takes leave of absence — Views of the Attorney-General — An Order in Council — A Divorce Case, and Consequent Inter- ference — Consolidation Bill — "Supreme Couit Statute" — Has Executive power to suspend Judges ? — Petitions to Parliament — The Judges petition for the Decision of the Judicial Committee of the Privy Council — This cannot be given — Opinion of Imperial Law Officers — Comment of Attorney-General. The affair with the Judges is frequently mentioned in con- nection with Mr. Higinbotham's Attorney-Generalship, chiefly because of one expression often quoted, and also because he was afterwards a Judge himself. It is of im- portance chiefly as indicating his strong and clear views on Responsible Government. The controversy began with a brief note from Sir Redmond Barry to the Governor : — "January 4th, 1864. I do myself the honour to inform your Excellency that I leave Melbourne this day for Sydney and Brisbane, to enjoy a short holiday trip." The Governor referred the letter to the Attorney-General : "I presume the Judges have a legal right to take the step adopted by Sir R. Barry. C. H. D." The Attorney-General gave his opinion that they had not a right to take leave, nor to report it to the Governor direct. Moi'e letters ensued. Sir Redmond Barry asserted his right, and I'efused " to acquiesce in submission to the authority of the Executive Council." Then (April IGth, 1864) came a minute from the Attorney-General, in which occurs the famous expression about the " officer in his Department." This paragraph of the minute is quoted unabridged : — CHAP. XIII JUDGES' RIGHTS 113 The Attorney-General begs leave to inform His Excellency that it has been tlie practice since the coming into force of the Conxtitulion Act for all judicial and other officers in the public service of Victoria to communicate ii))on all (juestions aftecting their official rights or responsibilities with the Minister of the Crown who is charged with the duty of advising the Governor in each particular case. Neither the principles on which the independence of the Judges is secured l)y law, nor (so far as the Attorney-General can learn after careful enquiry) the usage which has hitherto prevailed, authorise a departure from this practice in the case of the Judges of the Supreme Court. The Attorney-(>eneral is not aware that the Jiulges of England enjoy the right, beyond the other subjects of Her Majesty, of submitting their claims to the cognizance and decision of the Queen in person. The Jiulges of tlie Supreme Court do not possess higher rights in this respect than the Judges of England, and the Attorney-General cannot permit an}' officer in his Department — no matter how eminent the position of the officer may be, or however independent the law ma}' have made him in the exercise of his official functions — to place himself outside the limits of the system of responsible government, and communicate with the Attornej^-General on an official subject by means of letters addressed to the Governor in person. The Attorney-General does not know whether Sir Redmond Barry intends to assert a right of this nature as belonging to himself and the other Judges of the Supreme Court, Init the Attorney-General feels that he shouhl give a tacit assent to an unconstitutional and an inconvenient practice if he were to submit an opinion to His Excellency founded on His Honour's letters in refer- ence to the important subject which has been brought under Sir Charles Darling's attention by Sir Redmond Barry. He has felt bound, there- fore, to regard His Honoi;r"s communications as private and unofficial, and in the absence of a command from His Excellenc}' he has no observation to offer on the subject of the right of the Governor and the Executive Council to suspend a Judge of the Supreme Court. More letters followed, 8ir Redmond Barry continuing to claim the right for Judges to communicate direct with the Governor, and not through a Minister. At length on August 22nd, another minute from the Attorney-General was forwarded to the Governor setting out the views of the Members of the Cabinet. This minute was accompanied by a joint opinion of the Attorney-General and the Minister of Justice ; and as a result of the minute the Executive Council made an order, which was formally communicated to each of the Judges of the Supreme Court : — That the Governor and Executive Council direct that all official communications by their Honours the Judges of the Supreme Court, respecting the rights, privileges, or duties of their offices, and in- tended to be brought under the consideration of the representative of I 114 MKMOIIl OF (JKORCK HKJINBOTHAM chai-. the Crown, or the Cloveninient, or Executive Council, shall in future he addressed to the Attorney-Ceneral, as tlie Rcs])onsil)le Minister at the head of the Department to wliich tlie Su))renie Couit is attached. J. H. Kav, 5lh Scptenihtr, l,S(i4. Clerk of the Council. Sir Redmond iJarry, on behalf of liis l)fotlH'f judges iuid liimself, then oncL' more wrote direct to the Governor askin<^ that the question might be submitted to the Secretary of State for the Colonies, and the hiw point referred to the Judicial Committee of the Privy Council. He was informed that any documents would be forwarded if sub- mitted in accordance with the order of the Executive. That ended the first act. The second is more painful. One of the Judges was petitioner in a divorce suit, and puljlic feeling was strong as to the retention of his office of judge in such cases. Expecting that questions would be asked, or a motion made in Parliament, the Attorney-General wrote to him to suggest that the Divorce and Matrimonial causes jurisdiction should be administered by a brother judge. The answer that came was twofold, — a denial of any right to interfere, and a statement that the judge had already done what was suggested. The thii'd act is connected with a Consolidation J HI I. In an Act, 15 Victoria, No. 10, section 5, there was a clause giving the Executive power to suspend judges. The Judges of the Supreme Court maintained that this clause was not in force. The law advisers were of opinion that it was. When the consolidation came on, the Attorney-General included the clause in his " Supreme Court Statute " ; but the Chief Justice on behalf of the judges claimed that he ought not so to do. That was a very pretty controversy. An al)le communication from the Chief Justice (Sir William Stawell) closes the correspondence for the year 1864. The bill came befoi-e Parliament, and the Judges of the Supreme Court petitioned both Houses. The Legislative Assemlily, as was not unnatural, took the view of the Attorney-General, and passed the clause ; the Legislative Council took the view of the judges, and amended the measure in accordance thex'ewith. The Assembly refused to accept the amendments, and when the bill returned to the Council xiil JUDGES' RIGHTS Ho it was thrown out. Tn one of the debates in the Assembly the Attorney-General commented on the much-quoted phrase in a manner which, whilst the phrase has clung to memory, has been completely forgotten : — He would say that an expression used by him in the correspond- ence before the House was one the use of which he regretted. He meant the expression in whicli the judges were designated "officers in the department of the Attorney-General." He regretted it, not l)ecause lie did not believe it to lie a strictly accurate expression, and one easily to be defended as appropriate, but because he believed the use of it had tended to strengthen the impression or prejudice that there was some covert design on the part of the Executive, either in this bill or in the proceedings on which the correspondence had arisen, to interfere with the independence of the judges. A more unfounded impression never existed, and he believed that it was one which had V)een sedulously cultivated in order to disguise and conceal the true relations of this question. He wished to express a desire in which all united, that the judges should be, in the exercise of their judicial functions, independent. ' The linal act of this little drama was a petition signed by the four Judges of the Supreme Court to the Queen's Most Excellent Majesty, asking that the point at issue should be referred to the Judicial Committee of the Privy Council. This petition was forwarded to England with many documents at the end of September. 1865, and the reply was received in the following Mai'ch. The Judicial Committee is a law court, and English courts will not pronounce an opinion on abstract questions of law ; to which efFest wrote Mr. Henry Reeve, "Reg. P.C."- to Sir F. Rogers of the Colonial Office: "The question raised by the judges is as yet entirely of an abstract and theoretical character." The Secretary for the Colonies obtained an oj^inion from the Law Officers of the Crown in England (Sir Roundell Palmer and Sir R. P. Collier), and this opinion coincided with that of the Law Officers in Victoria, and was not in accordance with the claim put forward by the judges. Abbreviated it runs : — 1. The Governor and Coimcil can still "amove" Judges under the Imperial Statute, 22 George III., cap. 75. 1 VIc/oriaii Haiisnrd, vol. xi., p. 779. (May 18th, 1865.) - Registrar of the Privy Council. I 2 116 MEMOIR OF GEORGE HIGINBOTHAM chap, xiii 2. We also think it is the hettei- opinion that they can still suspend Judges under the Local Act, If) Vic, No. 10, section 5, the power of suspension for the causes tliercin mentioned being not inconsistent wit h the tenure of the office during good behaviour. The question was now practically set at rest. Since tliat time the Judges of the Supreme Court have without demur corresponded with the Attorney-General's department, and not with the Governor. But there is a characteristic con- clusion to the controversy, a memorandum by the Attorney- General, dated April 25th, 1866, objecting to the interference of the Imperial Law Officers: — Neither the Judges of the Supreme Court nor the Government of Victoria expressed a desire to submit the legal points at issue to the determination of the Law Officers of England. The opinion which has been given, while it is unfavourable to the claim of the Judges, is in no way liinding upon their Honours. If on the other hand the opinion had been favourable to the claims advanced by the Judges, the Law Officers of the Crown in Victoria could not have permitted it to influ- ence their advice on the conduct of the Government towards the Judges, unless the reasons l)y which it was supported were siifficient to convince the judgment of His Excellency's legal advisers. This is dated one week after the recall of Sir Charles Darling was known. CHAPTER XIA^ RECALL OP SIR CHARLES DARLING Despatches — Mr. Carchvell on Free Trade in the Colony — Position of Governor undei' Responsible (Joveinment — How far is it compatible with Instructions — Sir Charles Darling's despatches — The petition of twenty-two Executive Councillors, and his comments on it — Unwise Clause 74 — His consequent recall — Address of Legislative Assembly — Proposed grant to Lady Darling. It has always been and still is the custom for the governor of a colony to send numerous despatches to the Colonial OflGice, in which he narrates the history of the colony. The Secretary of State for the Colonies comments on these des- patches, approves or censures the conduct of the governor, and frequently expresses an unfavourable comment on the conduct of the Legislature or of the constituencies. In the year 1865 Mr. Cardwell was Secretary of State for the Colonies. At the end of November, 1864, Sir Charles Darling wrote a despatch reporting the General Election, in which he said he thought Protection to native industry was in favour with the constituencies. At the end of February, Mr. Cardwell says in reply : — It will be a subject of sincere regret to Her Majesty's Government if the result of the new elections shall lead, as you appear to anticipate, to any desire, on the part of your prosperous and intelligent com- munity, to depart from those princii)les of commercial freedom which have been so universally adopted and so successfully applied in this country. I trust that the Legislature of Victoria will see that nothing would be so much calculated to ol)struct tlie progress of the colony as the enactment of laws having it for their object to induce the colonists to desert more profitable for less profitable branches of industry. 118 MEMOIR OF r4E0Rf;E HIOINBOTHAM chap. Nothing c'oiikl he iiioi-c true nor more calmly expressed, and yet it was a ])eri'ectly gratuitous, and in the sti-ict sense of the word, impertinent, remark. When the English Parliament established Responsible Government in the colonies, it abandoned all right to inter- fere in the le to accept that doctrine. I have always recognised the double position of Governor in this colony. I have recognised his opinion as subject to be l)ound at once by the written instructions he receives from the Secretary of State in connection with imperial interests, and at the same time by his duty to the Parliament and people of this country as a responsible Governor. I have always believed tlie (iovernor of this colony to be under an obligation to obey first of all his written instructions, provided — and this is matter for the considera- tion of Parliament and the people of this country — that those written instructions do not interfere with the public liberties of the people ; and in the absence of written instructions he is bound, only in refer- ence to internal affairs, by the advice he receives fi-om his Ministers. Now, it is not pretended that the written instructions Sir Chai-les Darling received were departed from. The acts complained of by the Secretary of State are acts not covered by his instructions. The substantial ground of complaint against Sir Charles Darling is, not that he knowingly violated the law, but that he did not anticipate the views of the Secretary of State in reference to the law. ( ' ' No, no.") I am aware that the Secretary of State has founded Sir Charles 126 MEMOIR OF OKOPtOK ITICIXI'.OTTTAM cum: Darling's recall on a sentence— it may be an impolitic sentence — in one of the despatches i-elative to the petition of the Executive Councillors. I think I am not expressing an unfair view when I say tiiat that sen- tence has heen made the occasion, and that it was not the cause, of Sir Charles Darling's recall. I recollect that, Ijefoie tlie sentences reached the eyes of Mr. Cardwell, it was publicly stated in this colony that reliable infoi'mation had been received that Sir Charles Darling's I'ecall had then been determined upon. I heard the honourable and gallant member for West Melljourne declare last night, by way of excul])ating a subordinate member of the (lovernment to which jVlr. (Jardwell belongs, that the gentleman, although supposed to be one who influenced Sir Charles Darling's recall, had not, in fact, exercised any inlluence in that direction; but the honoura))le and gallant member did not go on to say, as I expected he would, that that gentleman, who enjoys a pension from this colony, had not been the channel of information respecting the intentions of Mr. Cardwell, in reference to Sir Charles Darling's recall. Now, if I am not misinformed, the statement pul)licly made in this city of the intention to recall Sir Charles Darling, was made on the authority of that gentleman ; and I say, if there be any foundation in the report, published in a journal Avhich claims credence for not publishing statements without foundation, it is not the fact that Sir Charles Darling has been recalled in consequence of a sentence which, at the time the report was published, had not reached the eyes of Mr. Cardwell. I am bouml, therefore, to assume the real cause of Sir Chai'les Darling's recall is to be found in the series of acts which are made the subject of complaint in Mr. Cardwell's despatches — that Sir Charles Darling is recalled really because he assented to acts of his Ministers which Mr. Cardwell declares to be illegal. Well, Sir, I accept that view, and I again ask upon what principle of justice can honourable members defend the treatment which Sir Charles Darling has received, inasmuch as those acts, which are made the ground of his recall, are acts for -which he is no more responsible than the honour- able and gallant member for West Melbourne himself. Nay, more, they are acts which, according to the usage and practice of government in this colony, there Avas no necessity for Sir Charles Darling to be made acquainted with before they were done ; with many of which he was, in fact, not made acquainted, and for none of Avhich, except one, I believe, was his authority, consent, or permission asked. If that be so, what is the position of those persons in this country who have devoted their energies to effect the recall of Sir Chai'les Darling ? The honf)ura1)lc and gallant mend)cr for West Mell)oui-nc endeavoured last night, I thought, to excuse the memorial of the Executive Council- lors, to which he had been a party. He said that the avowed object of that memorial was not to effect Sir Charles Darling's I'ecall. I was glad to observe that the honourable and gallant member seemed to feel a touch of shame for the act to which he had been a party; but I failed to find in the i-emarks of the honoural>le and gallant member any explanation of the fact that the memorial had been sent home at all. With what purpose was it sent, except to procure the XV SPEECH ON BARLING'S TREATMENT 127 recall of Sir Charles Darling ? What other object iiad it ? What other object could it have ? (A Member. — To have the law maintained.) But the law, according to the honoui-able member's view of law, can only be maintained in this case by the recall of the (Tovernor ; and the only way to effect that object was to petition for the recall of Sir Charles Darling. The honourable member appears to differ from the honourable and gallant member for West Melbourne, and though no party to the memorial, appears to assent to the proposition that the necessary effect, if not the object of that memorial, was to procure the recall of Sir Charles Darling. But is my recollection deceived when I say that, in another place, when a similar memorial was under consideration, the object — to effect the recall of Sir Charles Darling — was openly avowed ? Well, Sir, the oliject has been successful. Sir Charles Darling is recalled. Mr. Card well has made himself a party to the designs of those jiersons in this country who wished his recall ; and now we are asked to express an opinion upon the suljjcct. 1 think we are entitled to express an opinion. I think whatever may ))e the dependence of a colonial governor ixiion the Colonial 0th ce in England, those over whom he presides have at least a right to be permitted to express their opinion of his conduct. In some respects a governor is intimately connected with the peojile of the colony over which he presides. They are charged with the expense of pro- viding the governor's salary. They are deeply interested in the character of the governor — more deeply, I am inclined to think, than is commonly known, for upon the personal character of the governor, particularly in a colony like this, the piiblic interests vitally depend. We are called upon, I say, to express an opinion. It was suggested by the honoural;)le and gallant member for ^Vest IVIel- boui'ne that this motion of the honourable member for East Bourke had a further oliject, which does not appear' on the face of it — that not merely would it be proposed to this House, to pass a vote of conti- dence and of thanks to Sir Charles Darling, but that probably the House would also be invited, ))y the leport of the committee, to compensate Sir Charles Darling for the heavy pecuniary loss which, in addition to his injured reputation, he will have to endure in consequence of his recall. I hope. Sir, that the suggestion of the honouralile and gallant member is well founded. I hope the honom-able mend)er for East Bourke is prepared to assume the responsibility of suggesting to the committee, and that the committee will not shrink from recom- mending to this House, the adoption of that course. 1 believe. Sir, it will be a course that will speak in significant tones, not only to the people of this country, Imt also to those persons at home who take an interest in our aff'airs. I think we have a right, and that it is our interest, to place side by side with the imjust condemnation of Mr. Cardwell, the expressed opinion of the people — an opinion wliich once expressed b^' us, I take leave to say, may, if anybody has the power to represent the voice of the people of this country, be taken to express the views of this community — and, in addition to that, I think we slmuld do ourselves honour, and wc should oidy 1)0 doing justice to Sir Charles 128 MEMOIR OF GEORGE HIGINBOTHAM chap. Darling, wc should only be giving a proof to the whole woikl tliat we were detcnnincil to be not merely generous, 1)ut jnst, if we say, " Sir Charles Darling sliall not leave these shores ruined in fortune or in repu- tation, so far as it is in the power of tlie people of this colony to prevent it." I am sorry at tliis late hour to occupy tiie attcntifni of lionourable members, but I must l)c permitted to ask tiie indulgence of the House for a few minutes longer. Inhere is one aspect of tlie case which I cannot overlook, wliicli I confess preoccupies my mind, even to a greater extent than tiie personal aspect of the case. I feel deeply the injury done to Sir Charles Darling ; I sliould be sorry to be Ijehind any honourable niemljers in exjiressing, as distinctly as I can, my personal sympathy with that gentleman in liis present position ; but I believe that the (juestion disclosed by these despatches has an interest more permanent and deep than ev^en the personal question connected with Sir Charles Darling. I think, Sir, and I would say it in a word — I think these despatches threaten danger to the public liberties of this people. (Dissent from the Opposition.) Will honourable members allow me to ask them whether they are ])repared to accept the doctrine that, on all questions relating to tlie internal affairs of this colony, the Secretary of State is to be permitted to pass an opinion upon tlie legality or illegality of the acts of the Colonial Government ? (Several Hox. Members. — Certainly.) I asked the (piestion from some curiosity, and I am glad to have the answer of honourable members. I think the views of honourable members opposite, as expressed l)y that answer, differ altogether from the views which most persons in this colony entertain of their position as a people living under a system of responsible govern- ment. I find that Mr. Cardwell instructs the Governor of this colony as to the illegality of acts of the Crovernment — acts relating purely to domestic and internal affairs, not in any way involving imperial policy, not in any way connected with English interests. On affairs purely domestic and internal, Mr. Cardwell instructs the Ciovernor — that is the expression — that the acts of the Government are illegal ; he begs the Governor not to permit a continuance of those acts ; and he states what a future Governor should do if an occasion arose in which it would be "clear to his judgment" — I ask honourable members ojiposite to mark the words — "clear to his judgment," apart from all advice, free from all control, responsible to no authority, " that the advice of his Ministers for the time being would involve a violation of the law." Do I rightly interpret the views of honourable members on the other side if I suppose that, in their opinion, it is the duty of the Governor, in all cases, to form a personal opinion of the legality of the advice presented to him ? The previous answer implies that it is the opinion of honourable members. But that is not my opinion. I do not Ijelieve that it is consistent with the bare existence of responsible government; and I confess I look, under present circumstances, with very serious alarm upon the expression of the opinion of the Secretary of State in this direction. We were told last night by the honourable and gallant member for XV SPEECH ON DARLING'S TREATMENT 129 .West Melbourne, who furnishes us with information, not derived from any public sources — for I l)elieve the information has not been com- nuinicated to the public journals — that the Imperial Parliament is alwut to untlertake an investigation of our afifairs, and to inquire into the condition of responsible government in this colony. When, Sir, we arc informed of this, upon the private authority of the honoural)le and gallant member, who receives his communications on this subject, I have no doubt, from I'eliable sources at home ; and when we take this infor- mation in connexion with the opinions of the Secretary of State, as expressed in these despatches, I say it is time for the people of this colony to consider under what form of government they are living. I should not fear either a parliamentary inquiry or the hostile A'iews of a Secretary of State, if we were a united people among ourselves. I should view with utter unconcern the illilieral or harsh views of a Secretary of State, provided that we ourselves fully understood and duly valued the principles of responsible government. If we were a united people, bound to the soil and to the constitution of this country, V)y a lengthened enjoyment of both, I should not care what opinion the Seci-etary of State held. But, unfortiinately, that is not the case. Unfortunately we are a divided people, with hostile interests against one another. There is in this country a large class — large, not, indeed, in the numbers of those who belong to it, but large in varied influence and ill great power — which, I believe, is now hostile to tlie continuance of responsible government in this colony. The general mass of the people — the mass that never take a proiiiinent part in politics, that are not heard of in public life, that cannot easily be designated b}' any special name, except it be one of those opprobrious terms Avhich vile persons sometimes attach to them — terms which only recoil in shame and dishonour upon those who use them — this general body of the people are, I believe, jierfectly satisfied with the system of govern- ment under which we live. I believe more. I believe — and I say it without flattery — that there is not a community on the face of the ers to exi)laiu on what grounds, and for what reason, the traders of this city got up a petition to Her Majesty against the (iovernor anil his (Jovernment? How are we to explain the fact that a legislative body has followed the same course ? — that twenty-two gentlemen occupying the highest position in this country, and likely at any time to be called upon to take part in the affairs of government, can be found so far forgetful of their duties to responsible government here as to seek to create an appellate jurisdiction in the mother country ? If honourable members will explain these facts to me, I shall be pi-epared to recon- sider my opinion. And (addressing the Opposition) how can you explain this additional fact, that for many months past the press of this country — the press which exercises a great influence over human intelligence, and a far greater, and even an awful influence over the larger mass of human ignorance — has teemed with articles and letters which, under the guise of political speculation, have been nothing else but sedition and disaffec- tion ? I observe that every writer who has just sufficient capacity to misunderstand l)e Tocqueville, and to misquote Mill or Hare, pours forth speculations, in newspaper articles and letters, which I cannot distinguish from rank sedition ; which manifest a persistent hatred of free government, and an anxious desire to establish an inequality of political rights. If this be so, I say it is a subject for grave reflection to find a Secretary of State willing to lend himself to aid and to abet this class of opinion in the country. It is a subject not merely of regret but alarm, because, I frankly admit, the party inwdiose interests this is done is a most powerful party — a party which has all the power that wealth can confer. I am speaking of the party which consists of every discontented class, interest and official. I am speaking of the class which includes the Melbourne merchants. I believe at this moment — and I hope I do them no injustice — that the Melbourne merchants would gladly purchase a continuance of their importing monopoly by the surrender of our civil government. I believe the pastoral class would gladly, on the same terms, effect the defeat of the agricultural interest. I believe there is not a discontented official, from the judge on the bench of the Supreme Court — (" Oh, oh " and " Shame " from the Opposition). I will justify the observa- tion. One of the most significant circumstances, though not one of the most prominent, which has occurred within the last twelve months, is the fact — a fact, important from the quarter whence it came, and from the bad example which it set — that these officials, of whom I XV SPEECH ON DARLING'S TREATMENT 131 speak, actually presumed to disobey the Government of this country, and to appeal to the Home Government upon a question of mere official routine. And I say tliat, as witli the mercliants and squatters, so with the officials. There is not in tliis coinitry at the present miniite a dis- satisfied official wlio would not procure the redress of his grievances, whether I'eal or imaginary, by the sacrifice of all puljlic rights, and by the destruction, personal and political, of every public reputation. (A Me.mbkk. — That is a libel.) It may be a libel. Tlie honouraljle member for the Wimmera says so ; but if so I regret that close observation of public affairs has led me to a state in which libel and my mintl are itlentical. I cannot think, except I tliink a libel. Your party (addressing tlie OjDposition) is a powerful one ; you have all the power that money can give you ; you iiave all the power that the jiersistent influence of continuing interest can give you ; you liave all the power that the English Government can give you ; and, if you have not been completely successful in your designs upon the public lilierties, the reason is to be found in the fact, not that we are strong, not that you are weak, but that you have not yet evinced the capacity to use yoiir superior power in sucli a way as to lead to success. On this occasion, as I undertand it, we are asked to expx'ess personal sympatliy with an injured man. We are also asked to put on the records of this House an expression of opinion which will indicate the views of tliis House, speaking in the name of the people, on the subject of our public rights under resjjonsible government. I believe that this is a most important occasion, and that an opportunity rarely offered, and certainly not to be liglitly used or thrown away, is now presented to us. We have now the opportunity, and I liope we shall use it, of setting riglit those who liave suffered wrong tlirough you. I refer not merely to the Governor, but to liis family, and all who are dependent on him. We have the power, at all events, to declare our opinion on this matter — to declare that, whatever the opinion of Mr. Cardwell may be, Sir Charles Darling will be held in grateful memory by the people of this country; and further, we have it in our power — a power that cannot be interfered with — mark tliat — of doing wliat an honoui'able and learned member has said we had formerly disavowed — namely, of making a grant of public money to Sir Charles Darling. We also have it in our power to place upon record not in violent or menacing language, but by a significant act, our firm determination to maintain in their integrity the self-governing rights of independence in this country. I trust. Sir, that this Assembly Mill know tlie value of the opportunity which it now possesses, and will use it to the uttermost. In the debate that followed, one member spoke of " the highly treasonable and traitorous speech made by the Attorney- General. (A laugh.) Honourable members may smile, but I think that he ought to be denounced as a traitor. I denounce him as such." There is absolutely nothing treasonable in the speech. Nonsense about separation was talked in connection K 2 132 MEMOIR OF (lEORCE HIGINBOTHAM (ii.\r. xv with it. Tlicre is nothing aljout separation from tlic Empire in the speech. If a minister interfered with another minister's department in England there would be nothing treasonable in the latter crying " Hands off." The view here adopted is that, llesponsible Government once unequivocally estaljlished, the Secretary of State for the Colonies has nothing to do with the internal affairs of the colony. That is logical or illogical ; but talk of treason does not touch it. CHAPTER XVI THE DARLING (iRANT Sir C. Darling's departure — Petition to the Queen — Lord Cainarvon's desi)atcli — The new (Jovernor, Sir J. H. T. Manners Sutton — Sir C. DarHng quits the Queen's service — The Legislative Assembly passes and tacks the Darling Cirant — The Council rejects the Ap- propriation Act — A second session — Council rejects it again — Short Duke of Edinburgh session — Alcock r. Fergie — Dissolution — Brighton Election — A " disloyal man " — The Duke of Bucking- ham and his two despatches — (irovernor acting on instructions, Ministers resign — Parliament meets, but no speech is leady — At- tack on Duke of Edinburgh — Sir Charles Sladen's ministry —The grant about to pass, untacked — Sir C. Darling re-enters — The great stiain and the relief — Nineteen months later death of Sir C. Darling — Letter from Mr. Higinbotham. On the 5th of jMa}^ 1866, Sir Charles Darling left the colony amidst many expressions of regret. His departure was made the occasion of a demonstration on the part of his personal and political admirers. It was more like a triumphal pro- cession than the retirement of a governor in disgrace. Crowds attended to the wharf, cheering. A very general feeling was entertained throughout the colony that Sir Charles was an ill-used man ; but in all the crowds and throughout the colony no one held that view so strongly as the Attorney-General, late his chief legal adviser. Sir Charles Darling went first to Sydne}', whence he addressed a letter to the Secretary of State, enclosing a petition to the Queen, in which he asked that a tribunal might be appointed to inquire into the whole of his conduct as Governor of Victoria. On his return to England he found that a new^ Secretary for the Colonies, Lord Carnarvon, 134 .MEMOIR OF OEORCE HIOINBOTHAM ohai-. had succeeded to Mr. Cardwcll. lUit the new Secretary d(>cision of the ti^upreme Court, in the case of Alcock r. Fergie. When judgments were confessed, the cases did not appear l)efore the Court ; but the barristei's, who wished to embarrass the Government, arranged that a case should be brought into court which indii'ectly involved the question of the legality of tliese judgments. The decision of the Court in this important case was that the recovery of a judgment against the Crown did not authorise the jiayment of the amount of such a judgment unless Parliament had previously voted the amount. The year 1868 opened with the fierce excitement of a General Election. The only result was that the Ministerial majority in the Lower House was made a little larger. Before the election, Ministers commanded fifty-eight votes, and after it sixty. An incidental result of the election was that the opposition in the Assembly was strengthened by one strong champion. Mr. Fellows resigned his seat in the Council and was elected to the Assembly. So decidedly was Mr. Higinbotham looked upon as indispensable to the party, that a jjroposal was made to him to stand for Collingwood, a sure seat, as well as for Brighton. Standing for two places, in order to secure a leader's return, is not uncommon in England, as Mr. Gladstone's par- liamentary history shows ; but after consultation with friends Mr. Higinbotham declined the offer from Collingwood. The selected opponent at Brighton was Mr. K. E. Brodribb, younger brother of the Mr. Brodribb who defeated Mr. Higinbotham at the second election in 1861. On 14th February, 1868, at a meeting of the electors in his con- stituency, Mr. Higinbotham made a speech which occupies six columns of the papers. An elector moved that Mr. Higinbotham had forfeited the confidence of the electors, whereat the latter's supporters were so angry that, in spite of his own urgent appeals to hear the speaker, the meeting howlcnl him down. After this it is recorded that the Brighton i:W .MEMOIR OF GEORGE TriCINI'.OTirAM .map. <'l('c'tioii piiss(>(l oft" (mi«'tly on tlii' "-'Olli. 'Iln' ((iiirKlciicc ot" tlie electors was lliiis sliowii : — Higinl)otham . . . .468 r.io(lril)l) 378 90 A characteristic utterance at the declaration of the poll has been preserved : " I have been told, gentlemen, that I am a disloyal man. Well, gentlemen, I congratulate the electors of Brighton on being also disloyal men." It would seem well- nigh impossible tliat this remark could be misunderstood, l)ut it has been by one of the Brighton opponents. Having often denied the disloyalty the speaker means, " You know that the accusation of disloyalty is so ridiculously unjust that you are willing to shai'e it with me." Meanwhile the master of the Colonies, the man whose province it was to instruct governors and tell them how to I'ule, had been changed. His Grace the Duke of Buckingham and Chandos had succeeded to Lord Carnarvon. The ditiiculty of attempting to govern a colony by despatches that took about two months to come, and started at intervals of a month, written by some one at a distance from the scene of action, who could hardly be fully informed, could not be better illustrated than in the two despatches, penned, or, it would be more correct to say, signed, by his Grace on the 1 st of January, and on the 1st of Februaiy 1868. The fonner said : — Yoii ought not again to reconiiiiend the vote to the acceptance of the Legislature . . . except on a clear understanding that it will be brought before the Legislative Council in a manner wliich will enable them to exercise their discretion respecting it without the necessity of thi'owing the colony into confusion. If I refrain from giving you a, positive instruction to this effect, it is only because I am unwilling to bind you irrevocably to a specific course of conduct under circumstances which may have materially changed before this despatch reaches you. The latter said : — The proposed grant, whatever opinion may be formed of its policy or propriety, is not so clear and unmistakable a violation of the exist- ing rule as to call for the extreme measure of forljidding the Governor to be party, under the advice of his responsi))lo Ministers, to those XVI THE DARLING GRANT 139 formal acts \\ liicli aio iiccossary to bring the giant under t!ie considera- tion of tlie local Parliament. The second despjitcli went on to suggest that the Legislative Council should no longer continue to oppose itself to the asceitained wishes of the community. His Grace had no right to advise the Council. Had the despatches changed places — and there seems little reason why they should not — the Darling Grant would probably have passed as the Ministers wished. The first of these was handed to Ministers shortly after the General Election ; and as it told the Governor that " he ought not again to recommend the vote to the acceptance of the Legislature," Ministers resigned. The Governor again did his best to fill their places. When the time came for meeting Parliament an-angements were not completed, and seldom did any Parliament meet under stranger circumstances. Mr. McCulloch, the Premier who had just resigned, was ill, and Mr. Higinbotham acted as leader of the House. The Speaker was elected, but no Governor's speech announcing a policy was ready. How could Ministers, only holding oftice until their successors were appointed, prepare a speech 1 It reads like a parody of popular govei'nment that a Ministry commanding sixty votes should yet be powerless. The evening before the meeting of Parliament news had arrived that Prince Alfred had been shot by a Fenian at Clontarf, on the Sydney harbour ; and Mr. Higinbotham, after congratulating the Speaker on his i-e-election, pro- posed that, as the House could not constitutionally do business, a meeting of members should be held to adopt an address expressing horror at the outrage. The " disloyal " member for Brighton spoke of " the outrage — the cruel outrage — inflicted upon his Royal Highness the Duke of Edinburgh by the hand of an assassin. I believe, Sir, that that event will have excited in the mind of every man in all these colonies one universal thi'ill of horror and indignation." For two months, whenever the Houses met, there was merely a motion for adjournment. In the Lower House it was moved regularly hj Mr. Higinbotham. Many of the members were recalcitrant against the delay, and tried to oppose the adjournment or to shorten the period over which 140 MKMOTH OF CKORCK HKHNBOTHAM ciiai-. it was askod. It is a rule of Parliainciit that ikj Ijusinoss can be proceeded with until tliere is a speech from tlie Tlirone, «>r in the colonies from the Governor. Such speech is impossible unless there is a ministry to be responsible for it. Mean- while the Governor was doing his utmost to obtain ministers. At length on May Gth a ministry was formed, under tin; Hon. Mr. Sladen, afterwards Hir Charles tSladen. And let it be said here that there never lived a more loyal, honest, upright gentleman. All shadow^ of self-seeking was far from him. He was only anxious that the Queen's government should be carried on, and for that reason alone he accepted the uncom- fortable task of trying to govern supported only by a minoi-ity in the Assembly, so small in numbers that the Government and all its supporters actually could not form a quorum of the House. On May Gth the Sladen Ministry accepted office ; but its members had to go before their constituents for re-election, when two, including one of the ablest, that is two out of seven, were defeated. The Governor's speech on the opening of Parliament was read on the 29th of May. Dui'ing June Mr. Fellows, Minister of Justice, the leader of the Ministry in the Assembly, for Mr. Sladen sat in the Council, offered to introduce the Darling Grant in a separate bill ; and it had been ascertained that, if it were presented in that shape, a majority of the members of the Upper House were prepared to accept it. It is probable that this solution of the ditHculty might have been accepted, when news arrived from England which caused the swords to drop, the fight to cease. Sir Charles Darling had re-entered the service. His Excellency the Governor had striven in eveiy way to be impartial ; but he was becoming very anxious. The great majority of the inhabitants of the colony desired to make the grant, and the question was how long the Council and Downing Street would be permitted to stop it. The strain was very severe. Ten years later in a similar crisis some confidential despatches from the Governor were published. A summary of them is given in Todd's Parliamentary Govern- ment in the Colonies : ^ — The Governoi' could not but confess that, without undervaluin the status of the Legislative Council, they were, in their persistent Edition of 1880, p. 121. XVI THE DARLINC! GRANT 141 opposition to this grant, asserting a claim which the House of Lords, under simihir circumstances, wouhl not have preferred. The legitimate exercise of the legal rights of a Legislative Council should be defined by the practice, rather than by the abstract claims or iindefined powers, of the House of Lords. It might almost l>e imagined tliat this last sentence was written by Mr. Higinbotham rather than ])y Governor Manners 8utton. The severity of the strain was duly i*epresented to the Colonial Office, with the prayer that some way should l)e found out of the trouble. Sir Roundell Palmer has in the colony the credit of finding the way out. When in the House of Commons he tabled his motion, 8ir Charles Darling entered into correspondence with him. Then Darling forwarded a copy of the same to the Secretary of the Colonies, with a letter in which he said that the suggestion he should leave the Government service had been made by the Colonial Office. To this an answer came amounting to this — " Was it all a misapprehension 1 Will you re-enter the service uncondition- ally 1 " Sir Charles Darling wrote : "1 learn I have been under a misapprehension as to the views entertained by Her Majesty's Government. Under that misapprehension I was led to relinquish the Colonial Service, and I have now^ to ask the permission of Her Majesty's Government to withdraw my relinquishment upon the ground that it was made under the misapprehension referred to." This was sent off by the mail ; a final declaration by Sir Charles Darling of his inability to accept the proposed grant to Lady Dai'ling being telegraphed to the Consul at Alexandria, and forwarded Ijy the mail. Sir Charles Darling, upon his return to the fold, received certain lapsed emoluments from the Victorian Government, and a pension of £1,000 a year from the Colonial Office, dated back from October 24th, 1866. In January, 1870, he died at Cheltenham. It is creditable to the good feeling of the former opponents of the grant that, immediately on the news of the late Governor's death being received, a Ijill was passed through both Houses, conferring a pension of .£1,000 a year on Lady Darling, together with a sum of £5,000 for the education of her children. UJ MKMOIII OF (iKORCK HIOINUO'I'MAM (Iiap. A copy of the following letter has been kindly sent by Lady Darling :- — • MELBoruNK, Vjctokja, Api-I/ 22ny the Legislative Assembly. It will be gratifying to you to know that the wisiies and intentions of Sir Charles Darling's former ministei-s were anticipated by one who had been a political opponent, and that the pionipt and generous action of Mr. Fellows was the means of averting all ditliculty and delay in the passing of the l)ill. Permit me to assure your ladyship that the memory of Sir Charles Darling will be cherished in the hearts of many persons in this country — certainly in mine, and, I hope, in those of my children, with honour and aifection. Believe me to remain. My dear Lady Darling, Your faithful servant, Geo. Higinbotham. It is extraordinary in how. many accounts of the contest, professing to be historical, it is stated that the contest was closed by the death of Sir Charles Darling. As a matter of fact he lived for nineteen months after its conclusion. Though when he died he was nearly sixty-one, thei'e can he little doubt that his death was hastened by the worry of the long- continued crisis. When the deadlock was brought to an end there was naturally a general feeling of relief in the colony, but in this feeling Mr. Higinbotham did not share. A characteristic story, told in a footnote to Mr. Rusden's i^istor?/ of Australia, evidently applies to him. Amongst these a recent colleague of McCuUoch (too amiable to de- sire to injure any one unless to serve a political purpose) must be in- cluded. The equally amiable Mr. T. T. ;i Beckett hastened to congratu- late him on the happy termination of the crisis. They were in public view on a railway jilatform. " Are you not delighted ? " said the Councillor, who had so vainly striven to form a conciliatory ministry. He shrank back from the countenance by which he was confronted. In deep XVI THE DARLING GRANT 143 emotion, the adviser of Sir C. Darling ejaculated, " Mr. a Beckett, I can't speak to yon," and moodily turned away. "Can you understand that ? " said Mr. h Beckett to a friend. " Quite," replied he ; " and also that you do not understand it." George Higinbotluim was a man who, when principle was involved, was never willing to admit of compromise. The matter in dispute was not settled, it was only avoided ; and that to his logical mind was eminently unsatisfactory. If this be a blemish, let it be openly stated. George Higinbotham of all men would prefer to be painted with his warts. CHAPTER XVII THE EDUCATION COMMISSION Royal Commission appointed JSepteml^er 4th, 1866 — Mr. Iliginbotliam, chairman — The members — Celerity — Statistics of meetings — Testi- mony to the work of the Chairman — A Draft Bill — Framework of Report — Recommendations — Compared with present law — Rejec- tion of Bill through influence of denominations — Higinbotham's support of national system of education — His attack on the sects. (By Mr. David Blair) Herculean — The Roman Catholics stand aloof — The Five Years' Truce — Bishop Perry — Chairman strongly in favour of religious education — Report written by Chairman — "Of whom the world was not worthy." In the interval between the two deadlocks — that whicli led to the recall of Sir Charles Darling and that which was caused by the recall — the Attorney-General was busily engaged upon the question of Public Education. He had always taken an interest in the subject, and in his first speech to the electors at Brighton had dwelt upon its importance. On Septemljer 4th, 1866, a Royal Commission was appointed " to inquii'e into and report upon the opera- tion of the system of Public Education " in the colony of Victoria. Of this Commission ]\lr. Higinbotham was appointed chairman. It consisted of eleven members, of whom three, including the Chairman, were members of the LegislatiAe Assembly, wdiilst a fourth was elected during the sitting of the Commission, and anotlier had former^ been a member of that Ijody and was still an Executive Councillor, two were members of the Legislative Council, one was a County Court judge, and three had practical knowledge of education, being the headmasters of the Church of England Gi-ammar School, of the Scotch College, and of the Wesley College. CHAP, xvii THE EDUCA'I'lON COMMISSION 145 The terms of the Commission commanded the Com- missioners to report " with as Httle delay as possible." These words were taken very literally. The celerity with which the work was begun and carried through offers a great contrast to the proceedings of sundry other Royal Com- missions. From the date of the Commission to the day when the Report was submitted " under hands and seals " (Januaiy 29th, 1867) is a period of less than one hundred and fifty days. Within this time the Commission held fifty- two meetings, and examined thirty-seven witnesses, questions being put only by or through the Chairman. The examina- tion of witnesses occupied exactly half the number of meetings, and in several cases the meetings were held on two successive days. The Chairman never missed a meeting, and was well supported, as there was an average attendance of eight members of the Commission. After the Chairman, the schoolmasters attended best. The five months of the time occupied may be thus divided : three weeks, preparing ques- tions for circulation amongst teachers and others ; two months, taking evidence, and, after three weeks interval, three more days of evidence ; the last six weeks, preparing and considering Report. The Report is signed by all eleven Commissioners without a single dissent as to even a single clause. One of them told me that he thought most of the members entered upon the work with a prejudice against the Chairman. His courteous charm of manner and his earnestness were such that they all ended with enthusiastic admiration. The President of the Legislative Council, Sir J. F. Palmer, who, it is easy to believe, could not have loved the chief opponent of certain claims of the Council, spoke publicly about a year later of the remarkable imaniiuity of the eleven commissioners, and the con- fidence witli which they recommended fundamental changes. . . . I should not do justice to those gentlemen who composed it, nor to my own strong convictions, if I did not bear testimony to the assiduity and indefatigable zeal which they displayed, and especially to the con- spicuous talents of the gentleman on whom, as chairman of the Com- mission, the labour of the inquiry principally devolved. Some comments on the work of the Commission have been kindl}^ supplied by Mr. David Blair, who was Secretary I. 146 MEMOTR OF riEORCE TTTC fXROTHAM rifAi-. to the Coiiiinissioii, and an; piiiitcd as an appendix to this chapter. The i*e])()rt was (h'aftcd l)y the Ciiairnian, and its main features must be stated here. Annexed to the report is a Draft Bill, ready to be presented to Parliament. This is an example which may well be followed as a part oi common practice. Every Royal Commission of inquiry should be allowed the services of a draftsman, nor should its work be regarded as complete until a Draft Bill em- bodying the recommendations forms a part of the Report. This is much more important than the printing of all the evi- dence. Independently of the Bill and the Evidence, the Report itself occupied some forty-five folio pages, ten of wliich are occupied with the question of religious instruction. The following is the framework of the Report : — /. Present Extent : — ( 1 ) Number of children under instruction. (2) Edvication in Town and in Rural Districts. (3) Compulsory Ediication. (4) Aborigines and C!hinese. //. Nature and Quality : — (1) Religious and Secular Instruction. (2) Mixed Schools, and Amalgamation of Schools. (3) Examination under Standards and Payment by Results. (4) Higher Class Instruction in I'ublic Schools. (5) Physical Training. ///. Machinery : — (1) Governing Body and Officers. (2) Local Committees. (3) Teachers, Assistants, and Pupil Teachers. (4) Training School. (5) School Lands and Buildings. (6) Cost and Revenues of Public Instruction. The following is a brief statement of the Recommendations: — (1) Enactment of a law making instruction of children com- pulsory upon parents. (2) Appointment of a Minister of Public Instruction. (3) Establishment of Public Schools from which sectarian teach- ing shall be excluded by express legislative enactment, and in which religious teacliing shall be in like manner sanctioned and encouraged. THE EDUCATION COMMISSION 147 (4) Local committees to be partly nominated by ratepayei's and l)arents. (5) Teachers to be under local committees, sul)ject to authority of Minister. (6) Payment by results to be retained, but modified. (7) Establishment of a training school for teachers. (8) Annual exhibitions at grammar schools to be given to pupils of public schools. (9) For five years capitation grant to be continued. (10) Encouragement to be given to denominations to surrender their schools. (11) Separate grant for aiding instruction in rural districts, to aborigines and Chinese, and for ragged schools. (12) Levying a rate in aid of public instruction upon land. The Commission was unanimous that education should not be gratuitous. Five of these recommendations (the 1st, 2nd, 6th, 7th, and 8th) are now part of the national system of education, though owing to retrenchment training at the Training College has been, to the great danger of future education, for a while suspended. Three (9, 10, and 11) are temporary. The 4th and Oth form an attempt to preserve local control, but have not been carried out, for the so-called Boards of Advice are practically powerless. The colony has a highly centralised system of education, and many would gladly see a reversion to some larger degree of local control. In the last recommendation a wrong word has been employed, as it is usual to keep the woi'd " rate " for local as opposed to general taxation. The Commission recommended a land tax, and cannot be quoted in favour of the proposal to follow England in throwing part of the burden of the schools on the i-ates. When the Draft Bill, which had received the unanimous support of the eleven commissioners, was l)rought into Parlia- ment by the Chairman, in spite of admiraljle argument and oratory, it was decisively rejected. The reason is to be sought in the third recommendation. The Report received the approval of all wlio canid more for education than for the success of the denominations. But the more influential religious bodies would have none of it. They practically said in defiance of the experience of teachers that it was impossible to have religious teaching which was not sectarian, and that the Christianity which is common to all the sects cannot be taught. L 2 14S MK.MOIR OF CKOKUE HIGINBOTHAM cjiai'. The churt'lu's wore successful in tlirowiiif; out tlic incasuro ; but with whnt I'csult, iuid with wliat cost ^ Half a dozen years hiter an Act was passed making education in Victoria compulsory, gratuitous, and secular. The Commission would have given Victoria religious instruction such as that imparted in the schools under the Irish National Board, or in those under the London School Board. Dr. Perry, the Anglican Bishop of Melbourne, opposed the Commission's Bill. His successor, Dr. Moorhouse, was ready to purchase just such religious teaching as it offered Ijy consenting to a separate grant to the Roman Catholics. This however was what the colony would not accept. Remembering the past, it will not permit a return to denominational education in any foi-m or shape. That in the language of the Report is " anti-social." The affection for the present system, in spite of its expense, is based on the fact that it is national and not sectarian. Strongly preferring religious to secular education, Mr. Higin- botham felt so keenly against any I'eturn to the broken-up, divided, and imperfect education given by the churches and sects, that a near prospect of the repeal of the present Education Act, or its modification in the denominational direction, would have caused him to resign his seat on the Supreme Court Bench and return to the political arena. He said this definitely to two of his former colleagues in the Cabinet. Even after the unanimity of the Commission Mr. Higin- botham could hardly have expected that the country would accept his measure. Too well he knew the power of the denominations, and spoke strongly about it in his opening speech : — I believe that the denominations really deal with the naatter of edu- cation as a simple question of propei'ty. They have received certain lands ; they have been assisted, partly by private contributions and partly by State aid, to build schools upon these lands ; they desire to keep these schools chiefly as nurseries of their sects, and as proofs and marks of their prosperity ; they attach the highest possible value to the material property which they collect, and they are animated by such in- tense rivalry and bitterness that they cannot bear their property to be reduced, unless the pi'operty of other sects be reduced in the same pro- portion. Each sect clings closely to its property, and, at the same time, desires the assistance of the State in order to maintain that pro- perty. Each sect desires to retain its school buildings in its own hands, ^nd also desires to extract assistance from the State in order to keep its XVII THE EDUCATION COMMISSION 149 schools in operation. This conclnsion will not be fomid to be very dis- tinctly and expressly avowed by the clergymen of different denomina- tions in their evidence. 1 confess that the reserve with which the different clergymen sjDoke on the subject appeared to me even more eloquent than their words ; l)ut while they showed a natural reluctance to trace the evil to its true source, they were induced, in some instances, to refer to the true cause of the defects in our system of education. In one case in particular, a clergyman — a gentleman of very large ex- perience and very enlightened views — put the matter shortly, and, as it seemed to me, most pithily and truly. He said — "The truth is, we don't like — the denominations don't like — to give up our little bit of land." That seems to me to contain in itself the real explanation of this difficulty. These religious sects desire to keep their lands. And it is not merely in the matter of education, but in other respects, that we see the mischievous effects of this deadly rivalry that exists among religious sects in this country. I own that I do not think a more melancholy spectacle can be presented than that which is presented by these religious bodies, when viewed merely as competing companies or corporations. Whether you look to the spirit in which they work, or the objects which they desire to attain, their existence appears to me to be one of tlie darkest blots on our civilization. These sects are ani- mated, I am compelled to say, by a spirit of intense bitterness and hostility to one another — a bitterness and hostility which is usually in inverse proportion to the extent of the differences by which they are separated. And when you look to the objects which they seek to accomplish, the spectacle is e(|ually melancholy. They seem to me to be desirous merely of collecting real and personal jjroperty ; and they seem to measure their prosperity by the amount which they can show on their annual balance-sheets as comjDared with rival sects. They call themselves cliurches, and, no doubt, they Ijelieve that the pestilent energy which they dis])lay in collecting pi-opei'ty is a proof of vitality. They do not know, and tney will not learn, that they have not, and that they cannot have, as sects — for sects they are — anything of the organic life of the Christian community, of which they are the self-dismembered fragments. Their proceedings are not only injurious to the cause of education, but a disgrace to our social and political system ; and the matter of education, which does concern the State, these sects must not be permitted to regard as their exclusive property. This is the problem we have to consider : how we may get rid of the sects in deal- ing with education. The State in this country has dismissed from its service the sect which, in the mother country, still is willing to occupy that humljle position. It has admitted all sects in this country to a position of perfect equality. It has admitted them to its tal)le, if I may so say, and distributed in ecpuil amounts, and with a most liberal hand, the bounty of the State. And the real ])robleni which the State now, after ten or twelve years, has to address itself to is — how to get rid of these turbulent intruders npon the peace and welfare of the State household ? This conclusion was arrived at by the Commissioners of Education. It was a conclusion arrived at not merely by laymen, but also )jy gentlemen who occujjy the position of clergymen in some of irjO MEMOIR OF GEORGE HIGINBOTHAM chap. the largest sects in this country. The Commission were unanimously of opinion tliat, until the connection which now exists between tlie I'c- ligious sects in this country ami the State is absolutely, finally, and for ever put an enil to, j'ou camiot estaljlisli in this country a sound or suc- cessful system of public education. This, Sir, is the ])rimary principle of the report of the Commissioners, and of the Bill which I have to ask leave to introduce. Tlie Sects however are very powerful, and much of the bitterness with which Mr. Higinbotham's name has been in certain quarters regarded was due to his denunciation not of religion but of the denominations. So strong was the oppo- sition to the measure, sliown in the debate on the Second Reading, especially by the Roman Catholics and the Church of England, that the Attorney-General with the consent of his colleagues withdrew the Inll. (By Mh. David Blair.) A personal association with the late Chief Justice Higin- botham, extending over the whole period of his political career, was made still more intimate Ijy my appointment as Secretary to the Royal Commission on Education in 1867. He was then Attorney-General, and the time had come, by universal admission, for the institution of a uniform system of primary instruction. Of that Commission Mr. Higin- l)otham was the originator, as he was suljsequently its very life and soul during its existence. He had evidently bent all his intellectual and moral energies — it may even wdth propriety be added, all his physical energies as well — to the accomplishment of what may fairly be termed a Herculean task of statesmanship. My own appointment, 1 may be allowed to explain, was due to no impulse of political favour- itism, but came to me as the natural sequel to many years of public advocacy in the press, in the Assembly, and on the open platform, of a general system of free education for the children of the State. Such a system is one of the indispens- able requirements of a free democratic constitution like our own. The perHonnd of the Commission was selected with the greatest carefulness. It included every one of the leading practical authorities upon Education, as well as lay XVII THE EDUCATION COMMISSION 151 representatives of the various religious denominations, with the exception of the Roman CathoHcs. This marked omission, as I learned, was owing to the point-blank refusal of the head of the Roman Catholic denomination to name a representative from the laymen of the body to sit on the Commission. As soon as I entered upon my duties as Secretary, I found that Archbishop Goold maintained to the last the same attitude of disdainful rejection of all overtures from the Government to enter into friendly and wholly impartial deliberation on the subject. My letters as Secretary were either left unanswered, or were replied to by the Archbishop's Secretary with sarcastic, even contemptuous brevity. The Archbishop, it was intimated, disowned the authority both of the Commission and the Government in relation to the instruction of the children of the religious communion of which he was head. He was sole guardian of faith and morals for the Roman Catholic Church in Victoria, and the action of the Government in this matter, in so far as it included the children of that Church, was simply an insolent and unwarrantable intrusion upon his exclusive domain of power. The work of the Commission proceeded, therefore, without reference to the Roman Catholic denomination. The Chair- man, I observed, was in no manner or degree influenced Ijy the Archbishop's refusal. But, in spite of it, when the general heads of the Report came to be considered, he proposed a clause embodying what was tei'med around the table "the Five Years' Truce." This was a proposal that the Roman Catholic body should be allowed to maintain their own schools separately for that period after the passing of the new Act, and should receive a capitation grant for each pupil passing the Government Inspector's examination, equal to the sum paid for each scholar in the State schools, mimis 20 per cent. This offer was duly embodied in the Report, and was rejected with silent contempt by the Archbishop. When, a couple of years afterwards, I went up to stand for re-election in my old constituency at Stawell, I found the Roman Catholic electors in furious hostility. I had been guilty of the unpardona]>le sin of conspiring with the Attorney-General and others in the design to throw their Church overboard in the matter of State-supported education, l,")i> MKMOIi: OFCKOHCK MlCINIiOTHAM ( Ji.\i-. to deny thorn their fair share of tlie public eiidownioTit, and to subject them to the glarin<^ injustice of taxing them for the education of Protestant children ! They had never learned, I found, of the proposed Five Years' Truce, never seen a page of the Connnissicmers' Report, and wen? as ignorant of the real facts of the case as if they were still in JNlunster or Connaught. Of course I lost my election, but that was a very small matter, since the long-standing conflict for the principle of free State education had been at length pi'actically ended. To the close of his life Archbishop Goold repeated, with monotonous persistency, in his periodical pastoral letters, the version of the story held by the Roman Catholic electors of Stawell. And the Attorney-General was held up to public reprobation as the instigator of a measure of flagrant injustice- to the Roman Catholic body — a measure which, whether it deserved to be so characterised or not, he was the first to provide against, and which he would have been just as incapable of framing, or supporting, as he would have been of proposing the exclusion of Roman Catholics from all the rights of free citizenship on the ground of religious disqualification. If the heads of that body still hold the opinion that their Church is suffering from a grievance inflicted on it by the passing of the present Education Act, they may at least console themselves with the reflection that the evil arose solely and exclusively from the rejection by Archbishop Goold of the (then) Attorney- General's friendly and generous overture of the Five Years' Truce. A second incident in the history of that memorable Conunission must, in the interests of justice, be recorded. When the question came on whether any elements of specially religious instruction should form part of the daily teaching in the new schools, it was unanimously resolved in the aflirmative. The decision that the religious teaching should be distinctively Christian was similarly given, but with the reservation of a conscience clause, to save the rights of parents objecting to Christian teaching for their children. It was at first assumed as certain that none of the religious denominations, not excepting even the Roman Catholics, would raise objection to the adoption of lesson books similar to those used in the Irish National schools when the Protestant Archbishop Whately XVII THE EDUCATION COMMISSION 153 and the Roman Catholic Archbishop Murray were colleagues, in complete official accord, on the governing Board. But the appeal to the denominations on this point proved that this supposition was quite unwarranted. A conversation held by the Secretary with the Rev. Dr. Bleasdale, the Archbishop's Secretary, on the matter simply ended in nothing. The head of the Roman Catholic Church would listen to no proposals or overtures from the Commission, repudiated -its authority, and denied its right to concern itself with the education of the children of his communion in any way whatsoever. At the same time he firmly maintained the right of that body to its full proportion (in respect of population) of the State subsidy in aid of elementary education, but without Govern- ment inspection or control of any kind. The heads of the Protestant denominations were, with one marked exception, unanimously and earnestly in favour of a common system of simplified religious instruction drawn from the Bible. That exception was the Protestant Bishop Perry, who pointedly declared his inability, as head of the Church of England in the colony, to join with any religious bodies outside his own communion in this important matter. Without going so far as Archbishop Goold in the assertion of his episcopal claims and responsiljilities, Bishop Perry was equally firm in his refusal to meet on grounds even of common citizenship, in respect of this all-important question, the members of religious denominations not connected with his own Church. I well remember the shock of painful surprise that the Bishop's statement of his final and unalterable decision on this point gave to the members of the Commission, especially those of them who were adherents of the Church of England, including the Chairman himself, the late Rev. Dr. Bromby, and the late Judge Pohlman. And I also well recollect the grave solemnity of tone — the passionate earnestness of pleading — which the Chairman evinced, while, with his exquisite gentleness of manner, he questioned the Bishop closely, evidently with the hope of winning his assent to some form of honourable compromise. The effort was vain, and the Commissioners were therefore reduced to the last resource of allowing the clause embodying the Five Years' Truce to remain in the Report, and framing a clause providing that all i-('as()nal)l(^ pennissiou should be given to ministers of 154 MEMOIR OF (5E0RGE HIGINBOTHAM chap. religion to visit the schools at certain hours daily for the purpose of giving religious instruction to the children of their sevei'al communions. As a matter of course, I had many private conversations with the Chairman on this subject, and J can hear testimony to the intense earnestness of his convictions upon tlu^ (juestion of the supreme importance of education for all the children of the State in a free democracy like our own, and upon the para- mount necessity of giving to that education a distinctively religious and Christian stamp. No man who ever called himself a Victorian colonist worked longer or more strenuously to gain those inestimable ends. He failed, as to the second of them, despite his quite heroic labours to accomplish it. The fact may appear incredible, but it is true all the same, that the Attorney-General was declared to be mainly responsible for the exclusion of the specific religious element from the State system of education ; and his accusers were the very men through whose resolute impracticability that omission (not exclusion) became imperative ! I suppose the case is rare in history that a particular class in the State will put forth all their energies to prevent the accomplishment of a certain high State object, and then, when their opposition has proved effective for its purpose, turn round on the party they have successfully opposed, and charge them with the serious political crime of deliberately plotting and working to bring about the result which their own opposition has produced ! Yet this is exactly what has taken place in relation to the secularisation (as it is termed) of the State school system in Victoria. The name of George Higinbotham is still linked with an accusation which has precisely the same foundation in truth as would have the charge against Mr. Gladstone, if brought by the Peers themselves, that to him was owing the rejection of the Irish Home Rule Bill by the House of Lords. These two incidents in the history of the Commission on Education are deserving of permanent record, because it is within my personal knowledge that they both deeply and permanently affected the Chairman's views and convictions upon certain questions of the first importance. And I may add, for myself, that his conclusions were well sustained by evidence. Amongst these questions the following may be XVII THE EDUCATION COMMISSION 155 mentioned : ( 1 ) The difference between the two leading religious denominations is final, precluding the possibility of their ever combining for any common purpose of moral or spiritual advancement. (2) The clergy of all denominations are, as a class, passively indifferent to the obligation of pro- viding education for children outside their own communion. (3) Even within those limits their exertions for the promotion of education are, as a I'ule, reluctantly given. ,(4) To share liberally in the State endowments for educational objects is, with them, a far more powerful motive than the promotion of education itself. (5) In the case of the clergy of some denominations the spread of general education is rather dreaded as an evil than regarded as a benefit and blessing. In support of these conclusions, it may be mentioned that the evidence before the Commission abundantly established these two facts : first, that under the old denominational system there were maintained by the various denominations, in small country townships, from two to half a dozen small and inefficient sectarian schools, all kept rigorously apart, where one good school would have sufficed for all the local requirements ; but each set stood stoutly upon its claim to a share in the State suljsidy, and its right to a separate grant of land ; and, secondly, that i-eligious instruction in the schools under their own control, and situated close by their own dwellings, was seldom or never given by the clergy. These facts, which had become grave public abuses, made the public demand for the abolition of the denominational system imperative and irresistible. After an existence of more than twenty yeai's, the State system of education is still roundly denounced by the clergy as a fruitful cause of pagan ignor- ance, godlessness, and immorality, amongst the juvenile population ; but in no instance have these denunciations been accompanied with even the most remote acknowledgment that the effort to remedy those evils rests, at least in some degree, with the churches and the clergy themselves. The Commission sat for five months, and in that time held fifty-two meetings, some of them from six to eight hours of unbroken length. This was an amount of work two or three times greater, within the time, than is usually performed by lloyal Commissions. Tlie unremitting zeal of tlieir Chairman acted like a charm on the Commissioners. Not so short an i5G MEMOIll OF CEORCE HKJINBOTHAM ciiaI'. interval as five minutes was lost through want of a quorum, delay, or confusion, durin) That the Legislative Assembly will support Her Majesty's ministers for Victoria in anj^ measures that may be necessary for the ])urposes of securing the recognition of the exclusive right of Her Ma- jesty and of the Legislative Council and Legislative Assembly "to make laws in and for Victoria in all cases whatsoever,'' and putting an eaily and final stop to the unlawful interference of the Iinperial ({ovei-nment in the domestic affairs of tliis colony. The history of these resolutions in committee is worth following. The Chief Secretary, Mr. Macpherson, proposed an amendment to the first making its terms milder. He was beaten by forty-five to fifteen. He proposed an amendment to the second, to insert the words " in concert with the Imperial authorities." He was defeated l)y forty to twenty- one. The third was passed without comment. The fourth was opposed by the Government, but was carried by forty to eighteen, or, if we change a mistaken vote, thirty-nine to nineteen. The proposer offered to withdraw the fifth, if any one desired it to be withdrawn. It was then carried without comment. These five resolutions thus adopted by the Legislative Assembly of Victoria sum up Mr. Higinbotham's views on Downing Street interference. In the face of the second it is ridiculous to call him a separatist, or to say that he favoured the disruption of the Empire. The best hope for the con- tinuance of the Empire is that each part should mind its own business, and the special business of the Colonial Office is not to touch the internal concerns of the different colonies, but to reserve its strength for the great questions that affect the Empire as a whole. Mr. Higinbotham's speech is long, but it is full and very explicit. To omit parts of it would hav(> the effect of muti- lation. M 162 ^rE>rOTr. of (!E0R(;E TTTCTXROTHAM .MiAy. It was my intention to Ijring the question icfcrretl to in tliese resolu- tions under the attention of the House at the commencement of the present session. But a consideration of the state of public afifairs induced me to refrain from doing so at that time, and the same con- sideration would now have induced me again to delay asking the House to deal with this subject, had it not been for the despatches from the Agent-Oencral and the .Secretary' of State for the Colonies, which have been laid upon the table, and the invitation contained in the letter of certain colonists resident in London addressed to tlie Chief Secretary. Sir, that invitation compels the House, or at least compels the Government — -who will, I apprehend, be glad to be assisted with the opinion and advice of tlip House upon this most important question — to return a distinct answer, and also to express an opinion upon the subject referred to in that invitation. The letter of the Agent-General, which I may say, in passing, evinces a very commendable discretion on the part of that gentleman, calls attention not merely to the invita- tion, but also to the difficulties that may arise in the colony on the subject of that invitation. I believe there are very few members of this House, if there be any, who entertain any doubt as to the answer which should be given to that invitation. I think there are hardly any members of this House who are of opinion that we should accept an invitation, which is virtually a request to transfer the seat of govern- ment from this country to England. Melbourne is the seat of govern- ment of this country, and of the legislation of this country — not London ; and Her Majesty's Ministers for Victoria and the legislative bodies elected for Victoria are the only powers known to me who have legal authority to deliberate, to consult, and to decide as to what shall be the political position which this coiintry shall hold, either in rela- tion to the mother country, or in regard to its own domestic and internal relations. I apprehend there will be no difference of opinion that the ansM'er to be returned to this invitation is an answer in the negative. I confess it appears to me that this invitation is one that indi- cates, on the part of those who have made it, either very lament- able ignorance, or something which I cannot help designating as very gross presumption — lamentable ignorance of their own position, and of the estimation in which they are held in this colony and in the neighbouring colonies, or gross presumption, if knowing their position, and knowing the rights of this country, and the estimate in which they themselves are held by this country, thej' presume to ask the Govern- ment and the Legislature of Victoria to send a delegate to London, invested with plenipotentiary powers, to alter or arrange, in his dis- cretion, and in concert with the Colonial Office, the basis of government in this colony. Sir, I am glad the names of the persons who have made this invitation are not appended to it — it might then be an invidious task to criticise the terms in which the letter is framed — but, although we do not know the names of those persons, we know, at all events, the class to which they belong. We know who they are. Sir, the gentlemen who send this invitation are persons who have made all the fortune they possess — and in many instances it is a large fortune — XVIII THE RESOLUTIONS IG.T ill these colonies. They are men wlio have abandoned their duties to the country to which they owe their prosperity. And it appears to nie to be a surprising and marvellous tliiny that persons should take up a permanent residence in a foreign country, and then venture to ask tlie people of the country from which tlicy come, and which they have deserted, to surrender into their hands the government and legislation on fundamental matters which belong to that people. I do not envy those persons who liave deserted tlie sphere of their natural duties, in order that tliey nuiy have an opportunity of hunting tufts in the neiglibourliood of the Palace Hotel, at Westminster, or who conceive that they achieve the proudest moment of their lives when they are pei'mitted to sit down to a sul>scription dinner at the London Tavern in company with half-a-dozen English noblemen ; and yet I cannot help fearing that the persons who have sent this invitation are persons, many of whom, at least, can be actuated l^y no other motives and no other ambition in life. The answer to their invitation is prompt and easy. It is not necessary to discuss that at length ; but I must say that the honourable gentleman to whom this invitation is addressed will, I think, lose an opportunity which does not often fall to the lot of the Chief Secretary of a colony if he fail, in his reply, to point out to these persons what is their true position, and what are their real duties. Sir, the Chief Secretary has now a legitimate occasion presented to him of telling persons who are constantly in our thoughts — of whom we are perpetually thinking, with the view, if we can, of, if not recalling them, at least retaining in these countries a part of the property which thej' improperly withdraw from it — what are their duties to these countries, and what these countries expect of them. In reply to this invitation, the honouralde gentleman may tell these absentee colonists that he invites them to return to their colonial homes, and there discharge their colonial duties. He may tell them also that, if they return, they will enjoy, in common with all their fellow colonists, the legitimate, natural, and individual share of political power which belongs to all persons who have property in, or who belong to these countries ; and he may hold out to them the hope that they may yet have the opportunity of atoning in some degree, during the rest of their careers, for the misspent time, the ill-used wealth, the low and vulgar tastes, and the vagabond habits of their past lives. These persons have, however, raised a (question which we cannot refuse to con- sider, nor, I think, to express an opinion upon. It is proposed to hold a conference in London, in the beginning of next j'ear, on the subject of the relations between these Australian colonies and the British Empire. The House will remember the occasion and the circumstances which have given rise to this proposition. A neighbouring colony has been recently exposed to great danger, from which it is not yet relieved. I do not propose to discuss tlie causes of the unhappy circumstances in which our countrymen in New Zealand now find them- selves, further than to say that I believe in the opinion that our countiymen themselves may at a future time be constrained to admit that the contentions which now expose them and their families and their fortunes to great and imminent risk are not entirely free from M 2 1(U .MKMnil>v OF CEORCK TIIfllNnOTHAM riiAP. oonucxiou with their own defiiults. I believe that the rising of the noblest race of uncivilized men known in tlie world against our New Zealand fellow countrymen has been, at least in part, occasioned by the crimes of English civilization. But this it is unnecessary tle. It must be remembered that both Houses of Parliament based their application for aid to the English Govern- ment expressly upon the fact that, while we were willing to defend our own shores from aggression, -we thought the English Govern- ment were bound to make a contribution to the defence of English commerce in our waters which might be affected in the case of war. Sir, any danger to this colony, in time of war, will result from our connexion with England. If English merchants send English ships to this colony, and if this colony, in consequence of its connexion with the mother country, be involved in war with any foreign country, it is surely not unreasonable to ask that England should defend from foreign aggression not Victoria, biit her om'u shi])s, while they are in our waters ; and any concession made by the English Government in this direction is not a concession in violation of the principle now advanced l)y the English government, and which Ave have expressly and impliedly admitted to be true, but it is an admission of the obliga- tion of the emjjire to defend the interests of British connnercc, so far as those interests may be affected l^y their position in our A\aters in a time of war with foreign countries. Now if this principle be accepted, there is only one condition by which it should be limited ; and that is xvm THE RESOLUTIONS 169 that either tlie land force or the naval force which is created and called into existence by our own means, and maintained at our own cost, should be kept under our own control. I do not think there is any one who can raise a rational objection to that limitation. It is a limitation jjrescribed by prudence. It is prescribed also, I tliink, by self-respect. Certainly it is prescribed l)y prudence, for I do not know what advantage this or any of the neighbouring colonies can gain by paying in time of peace for either a military or naval force which may be with- drawn in time of war. If a regiment or a ship of war kept here in time of peace be withdrawn in time of war, of what earthly use is it to us ? And, if it is outside our own control, it may be withdrawn, and probably will be withdrawn. In time of peace, so far as I liave been able to observe, the presence of Knglish troops here has not l)een of the advantage which the presence of troops in any of the older countries of the world confers upon the people. Soldiers in time of war are a defence ; and, in time of peace, it is supposed they are an ornament. But I must say that the soldiers which the British (iovernment have sent us have not served the purposes of ornament. The regiments sent to this country in later years have been amongst the most undis- ciplined and ill-conducted regiments in Her Majesty's service. In another respect we have just reason to take offence at the management of the military force in these colonies. In all the old countiies of the world, including England, the soldiers who are an oinament in time of peace are so apjjlied that they may appear to be an ornament, not merely to the head of the executive government, but also to all the highest offices of the public service. Tlie gates of Her Majesty's palaces are guarded by soldiers, and so are the high ottices of Her Majesty's Government. In this country I have observed, and I liave not been able to guess at an explanation of the fact, that while the house of the rejiresentative of the Colonial Office is guarded and ornamented by the presence of Her Majesty's troops, that ornament has always l)een withlield from the chief offices of Her Majesty's Government. Now I think it will be an advantage to us to alter the system, so far as that either tlic military or the naval defences wliich may be necessary for the protection of this countiy shall be wholly under the control of Her Majesty's Government for Victoria. I believe that tlie defences which we can create and maintain ourselves will be abundantly sufficient for the purpose. We are situated at a lemot corner of the world, and certainly no land force which could attack this country could attack it in such power as to be able to resist the weakest of our colonial defences upon land. I believe that our police force woidd be able to annihilate any land force that might land and attempt to take possession of this countiy. But, if our land forces are not sufficient, we should increase them, but increase them upon this condition, and for this express piirj)ose — that they be kept under our own control, as tliey are paid for by our own money. This question is one which I hope will not escajje the vigilant attention of the Chief Secretary at the present time. I fear that a great mistake was made 170 MEMOIR OF GEORGE HIGIN130TJ1A.M ciiai-. when the Xe/.^on ship was accepted upon the terms tliat she shouhl be commanded by English officers. I mention the matter now for the piir))ose of asking the Chief Secretary to take care that we do not commit that mistake a second time in the case of the Cerherm. It is said that the Admiralty are exceedingly desirous to appoint their own officers to tlic conunand of that vessel. I \\o\)e the Chief .Secretarj' will not accept that condition — that, rather than accept it, lie will be ])rei)ared either to leave the CerhcriiH in the hands of the Englisii (Jovernment, and ask them to take it over into their own possession and apply it to their own uses, or to pay to the English (iovernment the amount contril)uted by them to the building of the vessel, so as to obtain her and place her entirely under our own control, and leave no trace of foreign dominion in tlie matter of our naval defences. Now, sir, it appears to me that this frank and full acceptance of the duty of self-defence is one that our fellow countrymen at home may reasonably exjject from us. On the other hand, we have a right to demand from our fellow countrymen at home another condition- — the condition on which the English Government has based this demand that the colonies shall protect themselves — namely, that we shall possess the absolute and entire right of self-government. .Sir, I am prepared to show by facts, which I believe no one will be able to dispute, that while we possess by law, in this country, almost absolute and entire powers of self-government, we do not possess, and never have possessed, self- government in fact. What is the constitution of this country ? I suppose it might be most shortly and fitly described by saying that we possess, by our constitution and by law, almost all of what are known as the absolute rights of independent states, subject to certain qualifications ; and that we possess none at all of what are known as the relative rights of independent states. We possess virtually, according to law — though not in fact — independence. We possess also the right of legislation, subject to a verj' anomalous condition, not accepted by ourselves, but imposed upon us by the Englisii Government and the English Parliament, which enables an English minister — a foreign minister, I will say for this pui-pose — to advise the Crown either to accept or to reject any of our legislative measures. That, no doubt, is an anomaly — it is an anomaly which exists in law, and can be corrected only by the joint action of the governments and legislatures of these colonies. Again, we possess the right of property, which is also one of the rights ordinarily conceded to be the rights of independent government. We have power to dispose of our own lands, of our own mines, and, in fact, of all the abundant property with which Providence has blessed this country. This we possess in absolute measure. On the other hand, we don't jDossess what are known as the relative rights of nations. We cannot send an embassy that will claim official recogni- tion, even to a neighbouring colony. We cannot make a peace or proclaim a war. These are relative rights outside ourselves, and we have no power to exercise them. Sir, it seems to me that this dis- tinction between absolute and relative rights forms the clearest and most distinct description of the rights of self-government which this xviH THE RESOLUTIONS 171 and the neighbouiing colonies enjoj' under their Constitution Acts ; and the form of this government, according to law, the House is of course acquainted with. It is the form known as the form of responsi- ble government. Under this form there is a head of the executive government, who is absolutely independent of all foreign and external control, except in the particular case in which power is reserved by our Constitution Act to a minister to instruct the governor in respect to the reservation of bills. With that single exception, I venture to assert — and I challenge contradiction from any person acquainted witli constitutional law, or who is prepared to argue points of constitutional law — that, in all the internal affixirs of Victoria, the head of tlie Executive enjoys tlie same freedom and independence with regard to A^'ictoria that Her Majesty does in Great Britain. Sir, this is the very keystone of the system of self-government under our system. If you take that away you destroy the whole edifice. If you make the governor dependent upon any one except his responsible advisers for advice, what ])ecomes of the power of self-government of the people ? The responsible advisers are responsil)le to whom ? To the representa- tives of the people. The head of the executive, according to the principles of this system of government, is bound to listen to no suggestions, much less instructions, and still less censure, from any one else except his advisers : and if you place the head of the execu- tive in such a position that he is constrained to listen to advice, or suggestion, or instruction or censure, from any external autliority, you so far supersede the advice of his responsible advisers, and just in tlie same proportion, strike at the very root of self-government in this country. There has been a despatch qiioted, once at least, I think, in this House, which, with the permission of the House, I should like to ((iiote again. It is a despatch very remarkable not only from tlie high authority from which it proceeded, but from the remarkable circum- stances under which it was written, and the still more remarkable subsequent acts of the person by whom it was written. I refer to the despatch of Lord John Russell addressed to Mr. Poulett Thompson, in the year 1839, on this very question of the nature of responsible government. At that time Canada asked for a system of responsible government. The House of Commons expressed an opinion that it should not be granted. The English Government, through Lord John Russell, wrote to its representative in Canada, telling him that it should not be granted, that it could not be granted, and forbidding him even to entertain any application that it might be granted. And he wrote in these words : — • " The Constitution of P]ngland, after long struggles and alternate successes, has settled into a form of government in which the preroga- tive of the Crown is undisputed, but is never exercised without advice. Hence the exercise only is questioned, and however the use of the authority may be condemned, the authority itself remains untouched. This is the practical solution of a great problem, which, from 1640 to 1090, shook the monarchy and disturbed the peace of the countiy. 172 MEMOIR OF GEORaE HIGINBOTHAM chap. " But if wc scok to apply such a principle to the cohju cs, wo bhall at once find ourselves at fault. The power for which a minister is re- sponsible in England is not his own power, but the power of the Crown, of which he is for the time tiie organ. It is obvious tliat the execu- tive councillor of a colony is in a situation totally different. The go- vernor luider whom he serves receives his orders from the Crown of England ; but can the colonial council be the advisers of the Crown of Englanil '/ P^vidently not, for the Crown has other advisers for the same functions, and witli superior authority. " It may happen, therefore, that the governor receives at one and the same time instructions from the Queen, and advice from his executive council, totally at variance with each other." Sir, we have had a very lemarkable illustration of that fact. We now know what it means — to what results it may lead. Lord John Russell proceeded to say — "If he is to obey his instructions from England, the parallel of constitutional responsibility entii'ely fails. " No doubt it does. The writer added — " If, on the other hand, he is to follow the advice of his council, he is no longer a suboi'dinate officer, but an independent sovereign." Well, Sir, the Governor of Victoria, in I800, became, upon the recom- mendation of Lord John Russell, addressed to the English Parliament, an independent sovereign in and for Victoria, subject to the condition which I have mentioned. Lord John Russell, who, in 1839, refused to any colony the gift of responsible government — who maintained that it could not be granted — granted it, in the year 1846, to the very colony whose governor he instructed not to entertain an application that it might be granted ; and in 18o-i he received, accepted, and proposed to the English Parliament the constitutions forwarded from these various colonies by which the governors of these colonies were established in a position which he describes as one which a governor could not occupy, namely, the head of an executive government under a system of re- sponsil)le government. I think that is a very remarkable expression of opinion, considering the quarter from which it came and the circum- stances under which it was uttered. And now. Sir, I will venture to assert that although this principle of the existence of responsible government has been admitted by the English Parliament in our various Constitiition Acts, and has been admitted by various leading English statesmen, yet, from time to time, from that time to the present, that principle has been denied, as a principle, by the Colonial Office, and the application of the principle has been in practice, persistently, steadfastly, and assiduously disregarded. Sir, I assert that the principle of the existence of responsible government, although it is now convenient to state tliat principle and to enforce it against oui' unhapjiy fellow- xviTi THE FESOLUTTONS 173 colonists in New Zealand, lias been denied in terms by those wlio represent the policj' of the Colonial Office in England. And, in proof of this, I will invite the attention of tlie House to a debate in the House of Lords wliich took place so recently as tlie 8th of May, lS(iS. It was a deliate upon a question which lean assure honourable members it is not my wish to revive the rememljrance of in this Assembly at the present time. I only refer to the debate in the House of Lords for the purpose of showing what tlie principles avowed by the Colonial Office in reference to the rights of colonists in these colonics were, and not for the purjjose of i-eviving any old animosities. It was a debate upon the question of the grant to Sir Charles Dai'ling. .Seven members took part in that debate. Six of them — six members of the House of Lords — denied the existence of responsible government in this colony, and four out of the six have been either Secretaries of State for the Colonies or Under-Secretaries. The seventh — the only meni])er of the House of Lords who asserted on behalf of these colonies tlie right of self-government, and traced to its full and legitimate conclusions the effect of those rights — was tlie Lord High Chancellor of England, a man who is not only the head of the law, and a most able and dis- tinguished lawyer, but who has also been a very eminent politician. I refer to Sir Hugh Cairns. The debate was opened by Lord Lyveden. Lord Lyveden is a new nobleman. He formerly, under the name of Mr. Vernon Smith — which, it is believed, he very painfully endured — was Under-Secretary of State for the Colonies. I remember it was said to be the ambition of Mr. Vernon Smith to change his pati'onymic. I be- lieve that any person who has either seen or heard Mr. Vernon Smith will not be curious to learn what may be the opinion of Lord Lyveden on any subject of human interest ; but, at the same time, as Mr. Vernon Smith was Under- Seci-etary of State for the Colonies, his opinion upon a topic of this nature, inspired as it must be by Colonial Office feeling and opinion, is not destitute of interest. Lord Lyveden gave an opinion lapon the meaning and effect of the 57th section of oiir Constitution Act, a section, as honourable members will recollect, which directs that no grant of money can be made by the Legislative As- sembly unless it is recommended by message from the governor. It is almost a copy of a standing order of the House of Commons, and is known, I believe, to nearly every schoolboy. Now this was the opinion of Lord Lyveden as to the meaning and intention of that section of our Constitution Act : — " The object of the o7th clause of the Constitution Act was to pre- vent the governor — whoever he might be — doing exactly what Sir Henry Sutton had done, proposing any vote of money against the opinion of the Legislative Council and the Secretary of State." Sir, I commend this opinion to the wondering attention of those grave and reverend gentlemen who framed oiir constitution, and especially would I commend it to the attention of the learned Chief Justice of this colony. The next time that learned functionary is called upon to give a judicial decision of the meaning and intention of the framers and 174 MEMOIR OF CEDROE HKIINBOTHAM enw. (Iniftsincu of our Constilutioii Act, I venture to think tliat he will find in Lord Lyveden's opinion a source of the most new and wonderful views of our constitution, liut Lord Lyveden was not alone in his opinion ; Lord Lyveden had been, in the time of his manhood, little more than a political friljblc, hut lie did not stand alone in the opinion he expressed about tliis clause of our Constitution Act. The then Secretary of State for the Colonies (the Duke of Buckingham) was un- willing, in deference to the \iews of his office, to abandon any advantage that might be gained from that opinion. The Duke of Jhickingham said — " Now it may be said that, under the operation of that clause, the o-overnor could have withheld his assent altogether from the vote reconmiended by his responsil)le advisers, and he was not prepared to contend that such a power might not exist. It was not, however, a ])uwer which had been used in the way in which it had ])een suggested it might liaA-e been used in the present instance."' That is the opinion of one Secretary of State for the Colonies as to our constitution — that tliis clause of our Constitution Act was inserted for the express purpose of enabling the Colonial Office, as well as the Legislative Council, to prescribe what grants of money shall be made by the people of Victoria for the public service. The Duke of Argyle, another ex-Secretary of State, was the next sjieaker. The Duke of Argyle is a nobleman of very great and cultivated intelligence, and, considering that he is a Scotchman, his cultivation has considerable breadth. Now hear what this most intelligent and highlj'-cultivated nobleman — the author of the Rtiijii of Laic — thinks and knows of the law that reigns in Victoria : — " The statement of the noble duke had narrowed the ground of difference to a point of the higliest importance as regarded the adminis- tration of the Crown over colonies enjoying constitutional government. The position of the noble duke was that, in dealing with a colon}' pos- sessing a full constitutional sj'stem, it was impossible for the Ci'own to resist the colony if such a vote were proposed to a governor acting in accordance with the wishes of the Assembly. That was a very dan- gerous jninciple to lay down ... If the nol^le duke felt so sti'ongly the unconstitutional form of attack, why had he not advised the governor to insist, in the event of the vote being introduced, on its being proposed in the form of a Bill, so as to place no unconstitutional duress on the Legislative Council ? These M'ere matters entirely under the control of the Colonial Office." This was a very frank avowal. He was followed by a nobleman who had very recently filled the position of Secretary of State for the Colonies — Lord Carnarvon — a nobleman who twenty 3'ears ago enjoj'ed, I remember, the very doubtful reputation of carrying a very old head on very young shoulders, and who, as is not uncommon in such cases, xviTi THE RESOLUTIONS 175 now that his shoulders are no longer very young, carries on them a head not much wiser than when he was a "boy. Lord Carnarvon said — " When a superior officer informed his subordinate that he could not take a certain course without certain eiiects resulting, it could not be said that lie thereby gave him an option as to which course he could pursue. He agreed with the noble duke that, at so great a distance as we are from Australia, it was imi)ossible for the Colonial Office to regu- late every minute detail in the conduct of the (iovernor of the colony ; but, at the same time, they should give him such genei'al directions as would serve to guide him in the course he should pursue."' Sir, those who are advocating increased facilities for communication with England should, I think, reflect upon this. Possibly, in addition to a bi-monthly mail, we may have the inestimable advantage of havhig the conduct of the Governor of this colony regulated " in every minute detail " by the Colonial Office. That is the advantage which Lord Carnarvon holds out to us from increased facilities of communication. His lordship proceeded to remark : — " The noble duke said that, whatever theoretical right the Colonial Office might have to interpose in such a case, such a right had practically ceased to exist. He begged to express his entire dissent from that view. The right of the Crown to interfere in such a case not only existed in theory but in practice ; and, if the advisers of the Crown were assured that any constitutional principle were being violated, it would be their duty to interpose the veto of the Crown." Nothing can be more distinct than that. He went on to say — " In view of all this correspondence, he must bear witness to the ex- tremely difficult position in which colonial governors often found them- selves. Questions must from time to time arise which required not merely general knowledge of constitutional law, but of technical and professional details, which few could command. Their advisers were taken out of their own governments, and pledged to one political party in the colony. It was his fixed determination, had he remained in office, to strive as earnestly as possible for the appointment of some one permanent and impartial legal adviser, who might be in a position to advise a colonial governor as emergencies arose." Sir, I am not quoting I would remind the House, from the speech of some schoolboy, upon a public speech day, but I am quoting the words of a nobleman who had recently been the Secretary of State for the Colonies, and who was expressing opinions professedly deliberate, in the highest and noblest assembly in the world. I suppose that if the Chief Secretary of this colony were to get up in his place and say that, in view of the very difficult circumstances in whicli Her Majesty was placed, he must testify to the necessity that existed for some further advice and assistance beyond tliat offered by Her Majesty's Ministers ; 176 MEMOIR OF (!EOR(lK HIGINBOTHAM rirAP. that unfortunately Her Majesty's Ministe7-.s in Englantl were .selected out of the British Empire ; tliat they were taken from one political party in the Britisli Empire, and that it was his (tlie Chief Secretary's) 11x6(1 determination if he remained in office, to re([uest the Agent-(Jeueral of Victoria to act as a pei'iiianent adviser of Her Majesty in all matters relating to the colony as emergencies might arise — I suppose, Sir, if that declaration were made by the Chief Secretary in this House to- night, it would be received with a peal of laughter ; and yet I venture to assert that it would not be a nioie preposterous, nor a more illegal or absurd doctrine than that wlueh Lord Carnarvon laitl down in tins speech. Tlie Lord Chancellor ^ followed in the debate ; and he shortly enlightened tlie ignoiunce of the learned lords who preceded him as to the meaning of the oTtii section of our Constitution Act. He showed them that it was merely a transcript of a standing order of the House of Commons, devised for entirely different purposes than tliey imagined. He pointed out that, if these colonies had in reality and in law the right of constitutional government, the Colonial Office had no power to interfere with them, except so far as that constitutional law permitted ; and he added these remarkable words : — "If it was to be laid down, as a rule, that the Secretary of State at home was to hold in leading-strings the Ministry of the colonj% then the pretence of free colonial institutions was simply a delusion and a mocker}'." Tlie Lord Chancellor was followed l)y Lord Salisbury, an exceedingly- able man, and wlio was exceedingly wroth with the Lord Chancellor for rebuking his own colleague, the Secretary of State for the Colonies, and for informing the Lords of the true nature of responsible government in these colonies. Lord Salisbury said : — "I, for one, cannot concur in the estimate of a colonial governor's position which my noble and learned friend appears to have formed. He seems to regard a go\'ernor of a colony as a mere mute person — as a gentleman who is to have no will of his own, and who is to do, with a certain amount of obsequiousness and servility, whatever the Ministers who happen to be seated in his council chamber may bid him. " Sir, the Lord CJliaiicellor might have replied to Lord Salisbury that he had advanced nothing in behalf of the independence of a colonial governor beyond that which might be advanced, and would be advanced, by Minis- ters of the Crown in England on behalf of the Sovereign. The representa- tive of the Sovereign in a colony of this kind is not a more mute jierson, is not a more subservient person, than the Queen of England M'ithin the P^mjiire of England. Certainly, Lord Salisbury had not had, at the time he spoke, a long opportunity of acquainting himself with the real position of tlie Sovereign of his own country. That noble lord had for thirteen ^ Lord Cairns. xviii THE RESOLUTIONS 177 years been undergoing, with his party, an education at the hands of a political leader whose true character he had himself only recently dis- covered, and during that period of thirteen years, while he had uncon- sciously been receiving an education, lie and his party had few opportuni- ties of learning what the jjosition of a Sovereign of England was. ]3ut. Sir, witli further experience no doul)t Lord Salisbury will learn the fact that, while neither tlie Sovereign nor the representative of the Sovereign in a constitutionally governed country has any power to wag the little linger officially, except l)y advice, l)oth Sovereign and representative have very large powers, not merely social but political, in the adminis- tration of the affairs of a country — large powers, which are co-exten- sive with the capacity of the Sovereign and the repi-esentative, and with his or her ability to use them as a means of most legitimate influence. Lord Salisbury added that : — " There is a large class of cases with regard to which it might be the distinct duty of a governor to impose a veto on the proposals of his constitutional advisers, and the duty of the Secretary of State to enforce the adoption of that course." The last speaker in the deliate was Earl (Jrey, who of course maintained the position of the Colonial Ottice in support of tlie views of other speakers. However, I must do Earl Grey the justice to observe that he at all events has been sincere and out-spoken in his views upon colonial government. From the very first he dissented from the notion of responsiljle government in the colonies. He always admitted that parliamentary government might be granted : and by parliamentary government Earl Grey intended that a Parliament or an assemblage of political factions nught be established in these colonies, who should exhaust their time and enei'gies in lighting over the spoils and plunders of otttce. That was his idea of parliamentary government ; but, at the same time, he desired and counselled that tlie real power should be retained in Downing Street. Therefore, although he was one of the speakers in this debate, it is only due to that noble, aged, and able man to say that he only expressed opinions which he had always consistently avowed. Well, now, I think that these declarations by secretaries and under- secretaries of state clearly show that the Colonial Office, from whom all of them derive their inspiration, deny to us absolutely the existence, in principle, of responsible government in this country. I cannot my- self conceive how responsible government, in an Englishman's sense of the word — responsible government in which tlie head of the Executive shall be independent of all intluences, except the advice of his ad^'isers, who shall be responsible to Parliament — is to exist, or how it can lie maintained at all, if it be asserted that a foreign and irresponsible person is to have the power of control over the acts of the lepresenta- ti\e of the Crown, While this principle has been disavowed by the {Colonial Ottice, when occasions re(|uired, and also asserted by the Colonial Office, as we have seen within the last few months, when occasion served, the Colonial Ottice lias always in practice, steadily, persistently, and designeiUy disregarded the existence of responsible N 178 MEMOIR OF (lEOKfiE HIGINBOTHAM cha!'. government. It does so in vaiious ways. It does so first in legisla- tion, relating to the colonies, by the Imperial Parliament. The legislation in reference to the colonics is entirely prepared and passed l»y tlie influence of the Colonial Oihcc. 'I'lie single statement in the declai'ation of the views of the colonists which seems to accoi-d with the facts is a statement not relating to the colonies but to England, with whicli these colonists arc better ac(|uainted than they are witii their own country. They say : — " Tiie constitution of the Colonial Office is ill adapted for carrying on friendly intercourse with colonial governments or representing their wants and wishes, whilst the attention of the British Parliament is absorbed in affairs of immediate concern to the mother cotmtry." It is perfectly true. Tlie Colonial Office prepares all meaaui'cs passed l)y the English Paiiiament, relating to the colonies, and, by an ingenious device, they confound and mix together not only those colonies which are imder the control of the Colonial Office, but colonies which enjoy the right of self-government under a responsible system. There is usually, I observe, in all these colonial measures a clause defining what a colony or a colonial possession shoidd be, and having lumped the forty- three colonies or colonial possessions of the Britisli p]mpire under one distinctive title, they pass one sweeping clause which shall l>e applicable to them all. There is a little colonial dependency of England called Heligo- land, inhabited principally by (rcrmans, who visit it from the mainland for the ilouble purpose of gambling and bathing. That colony is governed by a governor who is, happily, perhaps, for himself, free from the enciimbrance of a Parliament, and who receives his instructions (which he is to carry out witli authority) directly and ex- pressly from the Colonial Office. The position in wliich sucli a go\ernor as that is placed is one free from all difficulty. He knows the ])iu"i)ose for which he is sent, he knows the authority which created him, he knows that it is his sole duty to obey that authority ; and the dis- tinguished Crimean officer who is now tlie the Governor of that colony can never, I am sure, feel any sense of degradation and disgrace in obeying heartily and loyally the instructions he receives from the Colonial Office. I think, however, that the ease must be very diflerent indeed with gentlemen who have the ill fortune to preside over colonies possessing i'esponsil>le government. But the effect of measures applicable to all colonies without distinction is that the English Parlia- ment, at the instance of the Colonial Office, and in its disregard and inattention to colonial affairs, passes measures which really it has no constitutional right to pass at all. These colonies have been given the power to make laws " in cases wdiatsoever " in and for the colonies. Now wdiat does that mean ? I do not dispute the mere power of the British Parliament to pass any law it pleases. It may pass a law making us all helots if it pleases. It has the jjower to do it. It may pass a law abrogating our constitution — it has the power ; but I deny its right to jiass any law affecting the intei'nal affairs of these colonies XVIII THE RESOLUTIONS 179 without the consent of the colonies themselves, sunply because the English Parliament has already surrendered that power to the repre- sentatives of the people in tliese colonies. I do not believe that the English Parliament has any design or intention of interfering with our rights, but simply in its indifference, in its absorption in imperial affairs, it does not pay attention to these colonial bills. The result is that the Colonial Office may projDose any bill it pleases in relation to colonial affairs, and it is passed. I verily believe that if it were to prepare a bill abrogating the constitution of all these colonies, ^:hat bill would have a very good chance of passing tlirough both Houses of Parliament without a question being asked. But that is certainly something of which we have a right to complain. If we look back to the legislation of several recent yeai-s, we shall find abundant instances of this uncon- stitutional interference by legislation with our affairs. Why last year there was a bill passed by both Houses of the Imperial Parliament enabling the Governor, individually, with the consent of one of Her Majesty's Secretaries of State, to register any ships in any of these colonies, and to appoint inspectors of those ships. Where is our right of legislation in that ? No doubt English legislation is entitled to provide for British ships ; but are we to have no power over colonial ships ? Here is an express power given to the Governor individually to do an act which he has no power l^y law in this colony to do individu- ally, namely, to register ships himself, appoint inspectors of those ships, and, I presume, to pay them Ijy fees. I vejiture to say that this inter- ference, directed by the Colonial Office, although it may be within the power of the Imperial Parliament — it is said there is nothing beyond the power of the Imperial Parliament — is certainly beyond the consti- tutional rights which they have conferred upon this colony, and outside the limits of their own constitutional rights. But it is not by legislation, wholly or chiefly, that the Colonial Office denies, in practice, the right of self-government in these colonies. Its chief interference — the interference which we have most to complain of, and whicli I think we ought at once endeavour to put an end to — is the interference by instructions addressed to the Governor. If the proposition I have submitted to the House be well-founded in constitutional law, these instructions, except so far as they are authorized by terms of express legislation, are beyond the power of the Secretary of State to give. He has no right to give them. They are exercised in two ways. The Governor lirings out with him to this colony a code of instructions under Her Majesty's sign-manual. These are to serve for his directions during the entire period of his government. I had some time since prepared a paper showing the different changes that have been made from time to time in these permanent instructions given to the Governor, and if time permitted I think I could amuse the House by reading some of the alterations which have been made in the Governor's instructions. They are really some of thena difficult to understand. Some of them are absolutely trivial and literal. In some places words are introducetl , in subse<[uent instructions the words are omitted, and afterwards re- introduced. They are very numerous, and they seem almost to be the N 2 180 MEMOIR OF GEORGE HIGINBOTHAM chap. result of a aort of education for the Ijoys of the Cject of colonial policy ? What is to prevent them ? I dare say the Colonial Office would consider it a slight and an indignity to be called upon to communicate directly Avitli their brother Ministers of the Crown in this colony ; but the Covernment of this colony would not entertain that feeling. What is to pi-event that course being adopted ? And, if there be nothing to prevent it, would not its adop- tion cure all the evils of wliich we have now to complain ? I sujjpose that if Her Majesty's Ministers for Victoria were in direct and immedi- ate communication, on equal terms, Avith the Ministers of the CroAA^n in England, on matters of colonial interest, it would be impossible for xvTTT THE RESOLUTIONS 185 there to be any intcrfciciK'C witli the independenec of the i'C))iescntative of the Crown by the English (iovcrnnient. And if there eonhl be no interferenee upon ordinary occasions, still less conld thei'e be any npon extraordinai'y occasions ; still less, I apprehend, could a crime like tliat which was perpetrated two 3'eai-s ago, when an honourable gentleman who desired to do his duty to his Sovereign, and who, unfortunately, in the endeavour to do it, incurred the vindictive displeasure of a Seci'etary of State — it would be im])ossible, I say, that a crime of that kind, yet unavenged, could ever be repeated. ' Sir, the Chief Secretary can do this if he please, once he obtains the assent of this House. \Vithont the assent of the Legislative Assembly, of course nothing can be done in the matter, and nothing ought to be done ; but I venture to assert that if the Legislative Assemlily, this evening, passes these resolutions, the Chief Secretary can at once, at the cost only of a delay of three months and of a sheet of foolscap paper, effect this object. What is to prevent him sitting down to-morrow morning and writing directly to Earl (Tranville, communicating to him the resolutions of this House, and informing him that Her Majesty's Ministers for Victoria intend to give effect to them, and offering to enter into a correspondence directly with any member of the Englisli (Tovernment on subjects affecting Victorian interests or afl'airs, and also telling him that, after a day to be named, no official commimication addressed to Her Majesty's repi"esentative on any sulijects relating to Victorian affairs, except the reference of bills home, woxdd be entertained l)y Her Majesty's advisers, would be received by them, would Ije permitted to have official publi- cation in this country, or would be laid on the table of either House of Parliament ? If that were done, I think it would settle the question. I have thought over the matter for some time, and the longer I think the more it appears to me that it is easier to do this thing than to say it should be done. What conceivable ditficulty is there in the way of doing it ? Perhaps it may be said that the Colonial Office woidd not consent to this coi-respondence. I have not the least doubt that the Colonial Office would stronglj' object to it. I am sure the clerks of tlie Colonial Office would be dis- mayed at the idea of their chief corresponding on equal tei-ms with Her Majesty's Ministers for Victoria. I have heard it said that the Chris- tian humility of an Englisli bishop cannot resist the temptation of snuljbing a colonial bishop, if he meet him liefore a club window in Pall Mall ; and I have not the least doubt that the Colonial Office clerks would be dismayed at the idea of the Colonial Minister in England corresponding on terms of perfect equality with Ministers of the CroMii in Victoria, and that they would resist it as far as possible. Now I should like to know if there would bo anj- practical difficulty or objection to the suspension of diplomatic relations between these countries for one, two, or five years ? I venture to assert that this country would suffer absolutely nothing from sucli a suspension. I re- member only three occasions during the period I held office on which this country desired, in view of Victorian interests, to communicate with ISfl MEMOIR OF CEORGE HIGINBOTHAM vu.w. the English Govcninicnt. One was the occasion on whi'.'h the Chief Secretary desired to inform Mr. Cardwell that, if the promise given by the Englisli Oovernment to stop transportation to the Australian colonies were not fulfilled, tlie grant for the mail service would be withilrawn. That was stated to be a threat — and a threat it was ; and I will add that a threat is the only language that an Englishman, in his coarser nature, can luiderstand. ^VeU, Sir, that communication was instantly attended to. The promise, given in 1851 I think, was renewed immediately, and it has since been, I believe, faithfully kept. The other two occasions were occasions on which conferences of mem- l)ers of the various Australian colonies, assembled in Melljourne, desired that the Colonial Office would introduce into the English Parliament a bill extending the powers of extradition of criminals between these colonies — a measui-e which we could not pass ourselves. That sugges- tion was not, of course, accompanied by any threat ; and on both occa- sions when that suggestion was made, to the best of my memory, no acknowledgment of the suggestion was sent. And yet we were able to survive the want of it. Now 1 think that shows that, so far as we are concerned, we have no immediate or urgent interest in carrying on communication with the Government of England. But it is very different with the English Government. The interests of English com- merce necessitate — as the Chief Secretary already knows, fi'om his short expei'ience of office — frequent communication M'itli the (xoverninent of this country. The Board of Trade, the Customs, and various other departments of the English Government, make suggestions to the Co- lonial Olhce, which require to be conveyed to the Government of this country, and to be acted upon and published. Now if di]>lomatic rela- tions be suspended, I think it is the English (Tovernment that will first feel the inconvenience of it. I think that if a similar despatch to that sent out at the end of last 3'ear, in which the Customs department in England, recommended the Colonial Secretary to instruct the Governor to instruct his customs officers to inspect the cargoes of ships for par- ticiUar purposes of interest to the commercial community in P^ngland, were not given effect to in this colony, we should probabh* find a (pies- tion asked in the House of Commons, of the Uiuler Secretary' of State, as to why the suggestion had not been carried out ; ami tlie only answer that could be given would be that Her Majesty's Ministers for Victoria could only conespond with Her Majesty's Ministers for the Empire, and that the latter Ministers really could not find it in their hearts to condescend to communicate with their brother Ministers in the colonies. I should like the British Ministry brought to the pass of giving an answer of that kind to a question. An answer of that kind would not be given without the immediate renewal of diplomatic rela- tions. Perhaps, also, it may be said that the English Government would go further. Perhaps they might send out insti'uctions to their servant to dismiss his advisers. I wonder whether they would go as far as that. That is al)otit the furthest point to which they could go. I think, if thej' did that, the result would be rather gratifying — grati- fying, I mean, to the honourable gentleman ^\•ho now holds the position of Chief Secretary, as well as the general body of his countrymen, for I XVIII THE RESOLUTIONS 187 venture to tell him that, if that ^vcl■e done, he would be permanent Minister for an indeiinite time afterwards. The representative of the Crown would not be able to find seven other gentlemen than those now occupying the Treasury liench, wlio would be endured in office. Let him dismiss you — [addi'essing Ministers] — and you are there for a permanence. These are the only practical inconveniences that we need anticipate, and neither appears to me to have any weight or force. I am sure, after the best consideration I have given tq tlie subject, that this scheme is absolutely without flaw, provided the House autliorize it, and provided that Her Majesty's Ministers can Ije induced so far to assert their own position, so far to feel an interest in the pro- tection of the representative of the Crown, and so far to desire to vindicate tlie rights of the peojile of this country tliat they will not shi-ink from attempting it. At the same time I abstain from seeking to enforce it ujjon them. I only desire to convince them that by no other means could they so eft'ectualh' secure for themselves the I'espect and gratitude of the whole peoi^le of this country- — and not merely of this countr}-, for if this colony take the lead in this matter we set an example to all the neighljouring colonies, and they will be sure to follow. Not merely will that be done, l)ut I Iselieve, liy removing this real grievance which is now connnunicating a large and growing discon- tent to thinking men in this country, they will be securing the grati- tude of the people ; and, above all, will be estal^lisliing, on a basis of firm and lasting friendly union, the relations between this colony and the mother country. Indeed this whole subject presents itself to my mind not so much in view of present events and circumstances, nor I hope — though no doubt they are not altogether absent — in view of past feelings or susceptibilities. I look at tliis subject in reference chiefly to the future relations of this country witli the mother country, and it is from a desire to establish those relations on a permanent and lasting foot- ing of friendly union that I desire tliat the (iovernment of tliis country should assert its I'ights. There is one thing which I hope the Govern- ment will not do. I hope thej' will not argue or remonstrate. Let them do anything but that ; let them postpone action — Ijut don't let tliem reason. The present Ministers of the Crown are young and in- experienced in office, and perhaps they will let me tell them that, if they venture to argue or remonstrate with the Colonial Office, they will be thoi'oughly and most humiliatingly defeated. If — [addressing Ministers] — you merely send home a despatch piesenting a statement of your grievances, and inviting the Colonial Office to consider them, the Colonial Office will consider them. The Colonial Office will consider them until you, and half-a-dozen sets of your successors, have gone "the way to dusty death,"" politically. There is nothing that the Co- lonial Oflice would so much desire — j\ist as it would desire exceedingly that this self-constituted conference of delegates in London should enter upon the vast international question of the rights of colonies to be exempted from the natural consequences of war in case of war bet'ween England and other countries. But if you desire really to settle the question you will deal with it only as a matter which you have the right, by law, to deal ^\ ith — that you will assert your own legal posi- ISS MR^TOTR OF DEORCIK TTTOTNBOTHAM niAr. lion, and that Ity yovir own unassisted acts. W'liat is lliis (-'olonial Office system ? It is a mere straw image of f)fH(ial intrigue, and un- lawful arbitrary interference. If you reason with it, you degrade yourselves. If you go to it, and strike it in the face with the })ack of your gloved hand, you will see it tumble in a heap at yf)ur feet, and the morrow after you have done so 3^011 will be establishing in this country a government which has never yet existed. I i-ecently saw an extract from a liook \\rittcii l)y a very intelligent memlicr of tlie House of Connnons, describing the conclusions that lie (bcw from a visit to all parts of the American Union, including some of the most distant of the western states ; and he mentions a very remarkable fact. It is this — that the dislike and hatred of the British Empire and people, which he found everywhere, instead of diminishing with time, appeai'cd, so far as he coiild judge, to grow with each successive generation of Irishmen, at all events, who inha))ited that countr\'. To me this is one of the most mournful and one of the most extraordinary statements that I have ever read. I could not have believed it unless I had seen it stated on the most respectable authority, that the remend)rance of po- litical grievances, and the memory of undeserved taunts, instead of wearing out by time, increased by time. He adds that he V)e- lieves that, in the event of a war with England, hundreds of thou- sands of men would come thronging from the far western states of America to the shores of the Atlantic, animated by a tlesire to take an active personal part in a war with that hated countrJ^ Now I see, in this countiy, the elements of the very same results which exist in America. But not to be manifested in our day. We, the adults of this generation, have ourselves come from the mother country, and are still so closely allied to it Ity family and social and personal feelings and interests that nothing can shake our affection and respect for our countrymen and country. It matters little to us what the British press or a department of the British Government may do to insult our feelings, to injure our interests, or to encroacli upon our rights ; but that will not be so perhaps with the next generation. The next generation will not have a feeling of kindred for England such as we have ; and perhaps, if this strange featiire which has been I'emarked in American life by this author (Mr. Maguire) has operation here, we shall find, in one or two generations, that the Australians, who will then be counted not by hundreds of thousands but by millions, will be a power not merely estranged and alien from the mother country, but hostile and inimical. Surely it is our interest to prevent, if possible, this most unhappy consequence. Surely we should endeavour, if we can, so to adjust the rights of both countries, so to remove all cause of complaint on the part of our countrymen at home, anil all cause of complaint that we have for ourselves, that in future the union of these colonies may be not only formal but leal, and that in all time to come we may have not only a common language and a common history, but a connnon sense of nationality that will bind all English communities on the face of the earth in one common lirotherhood. I believe that by these resolutions — if the House will adopt them, and if the Govern- xvni THE RESOLUTIONS 189 ment can see their way to act upon them — wc shall be doing something moi'e than merely estaljlishing our own liberties and rights ; I believe we shall be establishuig the rights and liberties of all these Australian colonies. I believe we sliall be doing more than tliat. I believe we shall be tending to miite the feelings of all British communities on the face of the globe ; and in doing that, if we should do it, I believe we shall be doing something also in the distant futuie towards the advancement and well-being of mankind itself. Sir, I thank the House for the attention witli which it has listened to me, and I-beg to submit these resolutions to its consideration. CHAPTER XIX LATER POLITICS Defeat at Brighton, March 17th, 1871 — Election for East Bourke Boroughs, May, 1873 — The Norwegian Sclieme — Answer to an Address — Payment of members — History of events that led to withdrawal from politics — Last speeches in the House — Address to Electors. At the General Election of 1871 Mr. Higinbotliani received liis release from the electors of Brighton in antique fashion liy a slap in the face. The opponent chosen was Mr. Thomas Bent, who was well known in the constituency, for he had been rate-collector, and was a market-gardener. There can be no doubt that Mr. Higinbotham's supporters made the fatal mistake of undervaluing their foe. The Brighton electorate may be roughly divided into two parts — those who dwell in villas, and the market-gardeners. At previous elections the opponents of Mr. Higinbotham, Mr. W. A. Brodribb, Sir William Clarke, Mr. Wilberforce Stephen, Mr. K. E. Brodribb had been the chosen of the villas. In 1871 it seemed as if a great quiet reigned amongst the villa folk, for there was no very stirring question before the colony, and wherefore should they trouble 1 As a matter of fact this section had been diligently but quietly canvassed. Mr. Higinbotham's old opponents did not attend Mr. Bent's meetings, but none the less they were prepared to jioll for him. Meanwhile in the more democi'atic portion of the constituency, Mr. Higinbotham's stronghold in the fighting days, a much more vigorous and open canvass was being carried on. The line taken was something like this : " We know that Mr. Higinbotham is a great gentleman, but 3'ou CHAP. XIX LATER POLITICS 191 know little of him, and he knows nothing of you. What ]3righton Avants is not a gi'eat orator, but one who knows our local needs. ]Market-gardeners should be represented by a market-gardener, one of yourselves." Many of Mr. Higiii- botham's supporters thought that he was quite certain of victory until within a few days of the election. Waking up they then found it Avas too late. A week before the poll Mr. Higinbotham made a speech which was well received. It was the speech of a statesman, thinking of principles and looking far ahead. He revived the questions that arose out of the Darling Grant, and asserted that the supremacy of the Assembly as the people's House must be vindicated. He stated plainly that he believed the views of the Protectionist party to lie wrong, but on that point he was jDrepared to give way should that party be in the majority. AVhen heckling time came on, an elector asked the late member's view on some small local question. Mr. Higinbotham did not under- stand him, and the matter had to be explained to him there and then. The questioner was the other candidate's brother. Careless contempt for their opponent on the part of supporters, undisguised localism amongst some of the electors, and a thii'st for paying off old scores amongst others pi'oduced the surprise of that General Election. Thus stood the poll : — Bent Higinbotham . . 400 . . 386 Majoritv . . . U " Well, how went the election 1 "' was the question asked at home. " I am just fourteen votes on the wrong side of the ledger," was the quiet reply. Freedom, even though some- what roughly given, was yet not an unwelcome gift. Mr. Higinbotham was not so well pleased with the turn that political life was taking, as greatly to regret that for a while he should be a spectator rather than a sharer in the fray. Since he had ceased to be Attorney-General he had taken i;p his work at the Bar. Even his political opponents allowed that he was a good barrister, and for a little more than two years lie was only that and notliing more. After this interval an opportunity was given to him to 19-J MK.MUIK OF CKORfiE HIC;iN150THAM ciiAi-. outer the political field a|^aiii. iSiuce the General Election Lieut.-Colonel Cliaini) had been member for the East B(jurke Boroughs. It was his second exjierience of political life, for he had been the first Premier under Responsible Government in Tasmania, but he had abandoned that position in 1857; and coming over to Melbourne had succeeded Colonel Price after the hitter's murder by convicts. For eleven years he had been Inspector-Genei'al of Penal Establishments in Victoria; then after his resignation, he was tempted in 1871 to make another incursion into politics, but the taste for it soon palled on him, and in May, 1873, he resigned. Mr. Higinbotham was invited to stand for Colonel Champ's vacancy. After a little hesitation he consented, and addressed the electors on several occasions. At Alphington he sti'ongly condennied assisted immigration, to which twelve years previously he had given a guarded support. The circum- stances of the colony had changed. The population had so increased that now the assistance thus given by the State would tend to reduce the wages of the working classes. At Bruns- A\ ick he strongly defended the doctrine that a members first duty was to represent and attend to the requii'ements of the country generally, and only his secondary duty to attend to the needs of his constituency. At another meeting he expressed himself against any reduction of newspaper postage. The polling took place on INIay 2Gth, Avith this result : — Higinbotham , . .710 Allan Staley . . . .178 Majority . . .238 The principal measure before Parliament was Mr. Francis' proposal, known as ■" the Norwegian scheme," that if the Council rejected a measure twice passed by the Assembly, the two Houses should sit together and decide its fate. Mr. Higinbotham was not strongly enamoured of the proposal, but was prepared to support it as an experiment on the sole condition that all money ])ills should be exempted from its opera- tioii. His vote Avas thus given for the second reading of the measure; l)ut the amendments that he desir(>d not ])eiiig made in committee, on the third reading he and six others over XIX LATER POLITICS 193 whom liis influence was stro7ig voted against tlie 1)111. This gave the Ministry only tliirty-five votes against thii-ty-thre(! foi' the third reading. According to the Constitution Act an absolute majority of the House was required for any measure effecting an alteration in the constitution of either Council or Assembly, wherefore the bill expired of insufficient support. At the General Election in April, 1874, Mr. Higinbotham stood his last election, and secured his largest majority. The polling was on April 22nd : — Higinbotham . . .757 Captain Dane . . .422 Majority . . .335 In July, 1875, an address Avas presented to Mr. Higinbotham thanking him for his statesmanlike conduct, and attacking the Legi^slative Council, and glancing at a certain weakness in the Assembly. The following was part of his reply : — Yonr observations aljout the present attitude and condition of the Legislative Assembly claims a word in I'eply from one who is proud of the honoui' of being a member of tliat body. Permit me, then, to say to you, the Legislative Asseml)!}' has no faults and no shortcomings which are not also political faidts and shortcomings of yourselves, and of all other adult men in this conmiunity. The Legislative Assembly is just what the people of Victoria have made it ; and although it niay not be better, it is assuredly not worse than the source from which it luis sprung. If the weakness and subserviency and demoralisation which you seem to think are oljservable in the Chamber which repre- sents the people should lead the general body of electors to reflect on the like defects in themselves, who are largely responsible as politicians for the consecpiences they notice and lament, your censure, though it be severe, and even harsh, maj- woik good residts ; while its more equal distrilnition will render it less unjust than, I venture to tell you, it nows appears to me to be i:i its application exclusively to the Legislative Assembly. A question which frequently occupied the attention of Parliament and created discord between the Houses was the payment of members. The view of the Upper House and of Conservatives in the Lower was that members should serve from a sense of public duty as in England, and that paid members would be professional politicians. The view of the 194 ^IE^r^[R of (;kotm:e iTTCTxr.oTTiAM chai-. other side wliicli ])n'\;iilt'(i in the Jjower }lous(i was that there wiis not a sutlicicnti}' lari^e k'isurc class in tlic colony to provide members as in I'^n^land ; that working men ought to be represented by men of their own class; and that payment of members would liclp the stability of government. If a government has the power of dissolution, members who care for their salary are reluctant to push it to use that power. The frequent jiroposal of a vote of want of confidence is the curse of colonial legislatures, and it must be allowed that in Victoria the remedy has been effective partly, but only in part. It is not necessary hei'e to give the history of the struggle. Mr. Higinliotham did not like payment of mem])ers, but he voted for it on the grounds just stated, to strengthen the hands of Government, and to increase the power of the working men. Although he voted for the pa3'ment, he would never accept it. The money due to him accumulated in the Treasury in his name, until an act was passed sweeping it back into the common stock. Early in 1H76 Mr. Higinbotham withdrew from politics altogether. To understand his reason it is necessary to go back over the history of the preceding six months. Because of ill-health Mr. Francis had retired from the position of Premier, and had gone to England. He was succeeded by Mr. Kei'ferd, with Mr. James Service as Treasurer. Towai'ds the end of July, 1875, this Ministiy gained a victory which seemed no better than a defeat. In a division on an important item of the Budget the Government had a majority of one only in a very full House. Hereupon Mr. Kerferd asked the Acting-Governor, Sir William Stawell, for a dissolution ; but he refused on the ground that the possibilities of the House had not been exhausted, for this was practically the same Ministry as that of Mr. Francis, which had been in power at the time of the General Election fifteen months earlier. On receiving this answer Ministers resigned, and His Excellency sent for Mr. Graham Bei'ry. This Ministry remained in power less than eleven weeks, and left oifice very indignant with the Acting-Governor because to it also he had refused a dissolution, on the strange ground that it would be unfair to grant it after having declined to do so to the preceding Ministry, as there did not seem sufficient difference between them. Sir William Stawell XIX LATER POLITICS 195 must liave afterwards ref^retted this decision, for the sujjporters of Mr. Berry Ijegaii to show the ditfereiice that he had sou^'lit in vain. The new Premier was Sir James McCulloch, now Premier for the fourth time ; but time had wrought a change, and Sir James was now the leader of the Conservative or Constitutional party. The country thought that Mr. Berry had l)een badly treated ; and when the new Ministers sought re-election two of them were defeated by large majorities, in large and important constituencies, and the Premier himself had to fight for his seat. Moreover at the General Election in the following May Mr. Berry's supporters swept the con- stituencies, and he returned to power with an enormous majority. In the interval between October and March, as a protest against the action of the Acting-Governor, the " Stonewall " policy was invented and carried out. The Opposition determined not only that the Government should not carry its measures, but that no business should he done. The stonewall that they would erect was to strain with the forms of the House, and to talk against time. No true lover of Parliamentary institutions could see this unmoved ; and Mr. Higinbotham, after ten weeks of it, resigned his seat, telling his constituents what he had done in a dignified letter. The question may be asked why Mr. Higinbotham did not go with his former leader, Sir James McCulloch, and help to lireak down the stonewall. He had always avowed that his policy was to improve governments by support. Why did he not support and improve this 1 The answer is that there had been a breach between the two. When Sir James was about to form his Ministry after defeating Mr. Berry, Mr. Higinl)otham spoke strongly on a constitutional question, finding fault with Sir James. Even his friends thought his remarks injudicious. Sir James was irritated, and in reply attacked his former colleague, accusing him of "placing sham motions on the notice paper to bring about an unsatisfactory state of matters with the Imperial Government." This reply sent Mr. Higinbotham into opposition to the new govern- ment, for it was not only unsatisfactory in substance, but offensive in manner. A member who was present says that the language as reported in the calm pages of Hansard conveys but little idea of what took place. The impression left on Mr. Higinbotham's mind was that the former leader q3 ini; MKMOTR OF (iEORCE HTGINBOTHAM ciiai-. liad ceased to Ije true to tlie principles of his own side in tlu^ earlier contest. On the last day (January 20th, 1876) on which Mr. Higin- Lotham spoke in the House, he spoke twice. He urged the Government to appoint a commission, or take some other means, to collect information which is obtainable in respect to school books, school furniture, and the training of teachers, for the purpose of applying that information for the benefit of the State schools of Victoria. Later he joined in the debate on the dissolution, speaking especially upon the conduct of the Attorney-General in taking office when his previous advice kad not been accepted by the representative of the Crown. The concluding words have a pathos of tlieir own, and a warning note that deserves attention : — The fact is we have all been at it for the last twenty years. We have all been straggling for office — all of lis — and in that struggle we have forgotten everything. We have foi'gotten our duty as legislators; we have forgotten our riglits as a Legislative Assembly ; we have for- gotten our duty to the representative of the Crown — to keep him and maintain him in the place where the law has put him ; and ha\ing for- gotten all these things, why now we have nothing else to do, l)ut to recriminate upon one another. (Hear, hear.) Oh yes, we are all guilty. We are all like common scolds in this House ; and I think the sooner we go back to our constituents and confess the grave ofi'ences that, individually and collectively, we have been guilty of, the better." It takes away from the sting of a reproof if the speaker includes himself among those reproved. But in this case the orator did himself injustice. It is quite true that thei^e had been, and there continued to be, much office-seeking and much contention for that end, but the bitterest opponent of Mr. Higinbotham, as a politician, could never say that he had fought to obtain office or struggled to retain it. He loathed such struggling, and never ceased to protest against it. When the House next met the Speaker announced that he had received the resignation of Mr. Higinbotham. Next morning the following letter was published : — To THE Electors of the District of East Bourke Boroughs. Gentlemen, — 1 beg respectfully to acquaint you that I have this day conveyed to the Speaker of the Legislative Assembly the resignation of my seat as the member for your district. XIX LATER POLITICS 197 I have been constrained to take this course through the present state of affaii's in Parliament and my own position as your member in relation to them. A contest invohing a single and now unalterable issue has been commenced between tlie Opposition in the Legislative Assendily and tiie (lovernment, and the course of public business and the progress of legislation are in consei^uence suspended. I concur with the Oppo- sition in its desire that tliere should be an innnediate dissolution of Parliament and an ajjpeal to the people, but I am unable to approve the course which it intends to pursue for the puipose of attaining that object. That a minority in a deliberative liody shorUd employ the forms which have been adopted to aid and guide its deliberations in such a manner as to defeat or coerce a hostile majority, appears to me to be a course inconsistent with the principles which lie at the founda- tion of all deliberative action and of political society itself, and to be one that may only be resorted to, if at all, for a limited time, and in very extraordinary circumstances, such as do not, in my opinion, exist at ])resent. I am therefore unable to co-operate with the Opposition. I have now as little difficulty in determining on the other hand that I ought not to join the side of the Government in this quarrel. The explanations which the Administration at present in power has given, and the far more necessaiy explanations respecting its own origin, its party engagements, and its legislative policy, which it has persistently withheld from the puldic representatives, have convinced me that a (iovernment so constituted and so supported is wholly undeserving of the conlidence of Parliament. My own feeling towards it is one of distrust so deep and confirmed that I cannot permit myself, as a repre- sentative, to follow its guidance for even the shortest time, or in order to effect the most legitimate purpose. It is not ijermitted to a member of Parliament to l)e a mere onlooker in Parliamentary war. It is his first duty to take his place and liear his part in the strife on the one side or the other, and the weight of this obligation increases in exact proportion to the importance of the issue. I find that it is impossible for me, in the present emergency, to fulfil this duty by joining the ranks of either side, and I think that I should be doing a wrong to you if I continued at this time to hold the office, while I abstained from performing the duties of a representative. I have therefore resigned my seat. Allow me to retuiii you my sincere acknowledgments for the confi- dence you have reposed in me, and to express my grateful sense of the forbearing and generous consideration you have displayed towards me during the time I have had the honour to represent yoii in Parlia- ment. I remain, fientlemen, Your faithful servant, (tEo. Hioinbotiiam. l>rightoii, '24fli Jaiuiari/, 1.S76. Witliin ji week of liis rcsignutioii, Mr. Higinbotham ex- plained his conduct to his constituents at Brunswick in an interesting speech, which occupied six columns of next morning's 198 MEMOIR OF (lEOROK HIGINBOTHAM (iiai>. xix papers. There is not room enough for it here, and the gist of it is contained in the above letter. One passage has been often quoted, but as it has been usual to stop the quotation too soon, the whole is given : — Ever since I became a pf)liticiaii, if I disliked one thing more than another, was dissatisfied with one thing more than another in politics, it is what is called by the name of party government, which has assumed and has been assuming for years, the position of mere frantic struggles of conflicting factions. It matters little or nothing to the people of this country at this time, who is in the (lovernment. I protest to you, gentlemen, that if you sent out the liellman into the sti-eets, and let him select fifty men from whom to choose by Ijallot nine Ministers of the Crown, I believe that nine Ministers would be elected who would be quite as well deserving of the confidence of the people of this country as any of those Ministers who have been competing for power for years past. And I say that with no personal disrespect to those wlio have been competing for office, but for the purpose of expressing my con- viction that otficial life does not demand the possession of those extra- ordinary qualities which are not to be found in the mass of our fellow- citizens. Several later attempts were made to persuade him to come forward for different constituencies, but he declined all overtures. Even until in July, 1880, four and a half j^ears latei', he took his seat on the Bench, some of his admirers entertained a hope that he would come forward and lead a united Liberal party, but it was not so to be ; and the last day of January, 1876, witnessed his final retirement from the domain of practical politics. CHAPTER XX LATER DEVELOPMENT OP VIEW ABOUT THE COLONIAL OFFICE The Morgan case — As to tlie Prerogative of Mercy — Three times put aside from acting as Governor — (1) Sir William Stawell appointed Lieiitenant-(iovernor — Correspondence with Lord Knixtsford — Is the first letter confidential ? — Correspondence with Sir Henry Loch — (2) Sir William Robinson appointed — (3) Commission appointing Mr. Justice Williams — True Work of Colonial Office — Letter to Mr. Richardson — Letter to Lord Knutsford. On leaving Parliament Mr. Higinbothaui never would allow that he had ceased to l^e a practical politician. When he became a judge he still declared himself a politician first, not of course a party politician, but he claimed also and with justice, that he never had been that. The unlawful inter- ference of the Colonial OHice he resented from the Bench as from a seat in Parliament. When offered a judgeship he made it a condition with the Government that he was not to be called upon to obey instructions that seemed to him an illegal interference with responsible government. The ditf^iculty that he had anticipated occiu-red in the Morgan case. A man named Henry Morgan, who had committed a murder, was tried in May, 1884, at the WaiTnambool Assizes befoi^e Mr. Justice Higinbotham, and received sentence of death. The instructions were very explicit as to the course a Governor was to pursue in the case of capital sentences. He was to require the judge " to make to him a written report of the case," and to cause the judge to be specially summoned to attend a meeting of the Executive Council, and to produce his notes. Finally, he was to decide either " to extend or to withhold a pardon or reprieve according to his own tleliberate judgment." In other words '-'00 MKMOIll OF CKOIUIK HICINBOTHAM cii.U'. lie was not to play the part of a constitutional sovereign. Mr. Justice Higinbothani was perfectly willing to attend the Executive Council, to produce his notes, and to furnish a report, if he w^ere required so to do by " lawful authority," — that is, by Her Majesty's Ministers for Victoria. The correspondence between the judge and the Attorney-General was published. The judge's wish was respected, and no mention of the instructions given as the reason for his attendance ; but the Attorney-General was thought to have " scored " in the following passage which seems a reminiscence of the famous " officer in my department " : — In my opmion it would be disastrous in the exti'eiue if a government allowed any officer of the State, however highl}' placed, unasked, to indicate to the (liovernment its duty, or to request an assurance that it had adopted a specific course. I respectfully but firmly submit that as a judge of the Supreme Court you are entitled to assume that Her Majesty's Government would make no improper request, and that tlie Attorney-General, in communicating with you officially, is doing so with a full knowledge of his constitutional responsibility. On this point however the judge could easily allow the Attorney-General to score, for on the main point he had won. In no later summons to him were the instructions ever quoted. The offending instruction has since been cancelled, and the point for which Mr. Higinbotham contended, wholly ceded ; but as late as September, 1885, in what is known as the Wantabadgery case, the Governor of the neighbouring colony of New South Wales, pardoned a criminal contrary to the advice of his Executive Council. Such an exercise of the Prerogative of Mercy would, in Victoria, have led to the resignation of Ministers. In the middle of 1884 Sir Henry Loch arrived as (governor, and it is no breach of confidence to say that his manly, soldierly character soon attracted Mr. Higinbotham, whilst the undisputed charm of the latter's society gained the affectionate regard of Sir Heniy Loch. A little after Sir Henry's arrival, Mr. Higinbotham became Chief Justice, but the late Chief Justice, Sir William Stawell, was appointed Lieutenant-Governor. At the time, it was made to appear that this was only a suitable coinplimeni to pay to so old ;ind trusted a public sei'vant as Sir William Stawell, and the new XX VIEW ABOUT THE COLONIAL OFFICE 201 Chief Justice quite acquiesced in the appointment. In New South Wales a similar compliment had been paid to Sir Alfred Stephen. It should be stated here that it is usual in the colonies fur the name of the Chief Justice to stand in the Dormant Commission. In other words, if the Governor were suddenly to die, the Chief Justice would become Governor'; and if the Governor goes out of the colony, unless for a very brief holiday, his place is taken by the Chief Justice. But this rule is by no means without exceptions, and then a Lieutenant- Governor is appointed. After a while it became evident that Sir William Stawell's health would not allow him to hold the appointment and that if by any chance the governorship came to him, his medical attendants would have to recommend his immediate resig- nation. Sir Henry Loch, in the course of conversation with the Chief Justice, asked him if he would mind writing out for Sir Henry Holland, then Secretary of State for the Colonies, the grounds of his complaint against the Colonial Office. This Mr. Higinbotham consented to do, and he forwarded through the Governor a paper, which discusses the whole question with great fulness. After an interval of nearly two years it was published by the Chief Justice in the Aryux, but no copy of the number of the newspaper in which it was printed can now be procured, and as the paper is of importance and has achieved results, it is given as an appendix to this chapter. Nearly a year passed before any notice was taken of the letter, although in the interval an offer of knighthood was made to the Chief Justice, and covirteovisly declined. When Lord Knutsfoxxl — under which title Sir Henry Holland had been raised to the peerage — did reply, he spoke of the letter as a " confidential report." Now this was the last thing in the world that the writer intended it to be. Correspondence then ensued, chiefly turning on the question whether the letter should be treated as confidential. The writer of a letter has the right to claim that it be confidential, but has the recipient 1 In a later letter by the Chief Justice occurs a passage in which his A'iews about the Colonial Office are summed up in the words, "the sinister and clandestine policy which the office o\er which you preside has successfully pursued fur the third part of a century."' In the same letter 202 MEMOIll OF CMOIKJK IflUINBOTHAM chai'. lie remarked, " no doul^t you may probably consider the subject quite insignificant." Lord Knutsfoi-d replied: ^Vhel■c, or how, liave I shown that I considered the subject " insig- nitieant." ? Ho vei y much the reverse is the case that after consulting the hiw officers, I have redrafted " instructions,' witli a view of meeting many of the points wliieli you brouglit under my notice, and of bring- ing them more into confornuty with the existing state of things. I regret the use of such plirascs as " clandestine " and "sinister " with respect to the policy of the Home Government. It is only right to say that the phrases were applied not to the Government, strictly so called, but to the permanent officials of the Colonial Office. Before this correspondence had closed, another connected with it was commenced by the Governor, Sir Henry Loch. He had tried to remove difficulties by asking the Chief Justice to express his views to the head of the Colonial Office. It was quite evident, however, this i^emoval (^f difficulties was to be a matter of time, if it could be done at all. The Colonial Office does not move rapidly. In July, 1888, Lord Knutsford had redrafted instructions. He went out of office in 1892, and one of his last official acts was the issue of the new instructions. The new edition appeared in the Melhout-ne Government Gazette in September of that year. The improve- ment was enormous. For the first time Responsible Government is recognised. For the first time the Governor is instructed to accept the advice of his Ministers, whereas all earlier editions seem to imply that he is to be careful about accepting such advice and ready to oppose them. The object of the new correspondence was chiefly to ask the Chief Justice whether, if he became Acting-Go\eriior, he would be willing to communicate with the Colonial Office by despatches upon matters of domestic policy, as the English Law Officers maintained that such cori'espondence was not illegal. The Chief Justice said he would not correspond ; and the Colonial Office decided that he was again to be superseded. Sir Henry Loch was anxious to visit England partl}^ for a holiday, partly on public and private business. It should be added that the Colonial Office acted with delicacy in selecting an Acting-Governor from outside the colony. The tei^m of office of Sir William Kobinson as Go\'eruor of South Australia XX VIEW ABOUT THP] COLONIAL OFFICE 203 was drawing to a close. It was tlierefoi*e decided that when Sir Henry Loch went, Sir WilHani Robinson should take his place. When this decision was made known, the Chief Justice published the correspondence. He never for a moment dis- puted the riglit of the Colonial Office to appoint a Governor or an Acting-Governor, but he wished the pulilic to know for what reasons his appointment Avas distasteful to the Colonial Office. Towai'ds the end of 1892 the case was repeated. Lord Hopetoun wished to go away for a holiday to visit New Zealand. His wish l)eing made known to the Colonial Office, a connnission appointing the Senior Puisne Judge, Mr. Justice (now Sir Hartley) Williams, to the position of Acting-Governor, was sent out. Loi'd Hopetoun's tour was to begin in January, 1893, and before that month opened the Chief Justice died, and his successor Ijecame Acting-Governor. ]\Ir. Higinbotham had made arrangements to swear in jNIr. Justice Williams, to whom, as to Lord Hopetoun, he explained that he entertained no personal feeling whatever about being superseded. George Higinbotham had not the smallest desire to be Governor of the Colony ; but he resented the insult to his office of Chief Justice in Ijeing put aside, solely because he was resolute to uphold his view of the constitutional law. A remark to this effect was almost the last I ever heard from his lips. It is sometimes said that ]\lr. Higinbotham wished to abolish the Colonial Office. Nothing would be further froin the truth. He wished to confine it to its proper work, and believed, it is (piite evident, that this proper work would be better done if it abstained from encroachments. In November, 1888, the Government of Queensland pro- tested against the appointment of Sir Henry Blake as Governor, and claimed that colonial ministries should be consulted before the appointment of a Governor. Colonial opinion varied on the suliject ; but INIr. Higinl)()tliam, as well as all the Victorian statesmen, held that the Colonial Office was perfectly I'ight in resisting this claim. The Times said : " If the right be once conceded to Colonial Ministei's of laying objections to any appointment before the Secretaiy of State, it is almost inconceivable that a duty will not 1)e inferred on the part of the Secretary of State to yield to those objections whether •2(4 MEMOIR OF CKORGE HIGINBOTHAM chap. reasonable or unreasonable." Against this, Mr. Higinbotham wrote in the margin, "Kight." J]ut on the Colonial Office's true position on lliisand similar (juestions, there is more definite evidence tlian a word scril)l)led on a chance-preserved fragment of newspaj)er. In 1885, when many in the colonies were eager and angry on the New Guinea cjuestion, how discriminatingly ]\Ir. Higinbotham reviewed tlie pt)sition is seen in the following letter to a Victorian politician : — Brighton, MKLiiuuKNE, A2'rU 6th, 1885. My dear Mr. Richardson, — I think it is probable that yoii have paid closer attention tlian I liave Jone to the conrse of events connected with the subject on which 3'ou ask nie for my opinion, and I fear thei-efore that I may not l)e able by communicating my views to aid yon much in removing or lightening your difficulties. I am sensible that for more tlian a year ))ast my sympathies have become more and more estranged from the claims and opinions whicli have been generally regarded as the pre- vailing claims and opinions of Australian politicians. At the meetmg in the Town Hall in July, 1883, to which you refer, two views were put forward by the speakers, and wei'e cordially received and adopted by the meeting. One was a ])rf)test against the proposal of the French Government to send criminals in increased numbers to New Caledonia. With regard to that question I may say that I think that the Impeiial Governjnent, stimulated bj' the able and zealous Agents-General of the Australian Colonies, has done all that could fairly be expected of it. It remains for us, if the Jiccidiriste Bill should become law, to meet it by legislation of our own in the nature of quarantine legislation. We should be clearly within our rights in taking that course, and I hope that Victoria, if she sliould stand alone, will not shrink from taking it. The unauthorized annexation of New Guinea by the Queensland (Jovernment was also dealt with Ijy the meeting. The speakers endeavoured to excuse that clearly illegal act, and to induce the Impeiial Goveinment to ratif^• it in view of the importance of establishing a more effectual control by England over the so-called labour traffic, and of preventing the slave traffic and slavery (we need not mince words) fiom becoming an Australian trade and gaining a footing on Australian soil. In view of tliese two objects, and these alone, the Town Hall meeting expressed its desire, which then and ever smce has been the desire of all Victorians, that the Imperial Go\ernment should aid us in guarding against two great dangers, and that, if it should be found consistent with Imi)eiial engagements and the maintenance of friendly relations with other European powers, it shoidd annex or extend the protection of England to Ixjth New Gumea and the New Hebrides. The lesolutions, su))- scqueiitly passed at the Australian Convention held in SydncN' in November and December, 18S3, and afterwards appro \'cil of by the XX VIEW ABOUT THE COLONIAL OFFICE 20.-) Victorian Ooverniucnt, were passed upon the same lines, and while praying for annexation or the establi.sliment of control for similar reasons, tliey e.\i)rcssly recognised and admitted the fact that tlie responsibility of extending the boundaries of the Empire belonged to the Imperial (Government. Up to tins point no exception conld be taken to our aims or to our expressed wishes. Subsequently a marked change took place. We have heai'd \evy little for a long time past of the measures to be taken to control the labour tratiic. It even seems doubtful whether the colonies will faithfully carry out the limited promises of peciuiiary contributions which were cautiously and somewhat grudgingly gi\'en to the Imperial Government. Writers in the public press after a time ceased to advocate merely, and began, frequently in intem- perate language, to demand annexation. Claims have l)een repeatedly and puljlicly made in and on behalf of all the Austialian Colonies of an alleged right in these colonies to insist upon Great Britain annexing Xew (iuinea and all the islands of the Western Pacific, founded upon our prior possession of this Australian Continent. Not very long ago regret was expressed in the leading columns of the Anjus that Queensland had not kept, by its own authority, possession of New Guinea, which it had taken in the name, but without the sanction, of Her Alajest}'. The New Zealand Government, 3'ou nuvy remember, avowedly made preparations for annexing Samoa. Now these claims and acts are one and all of tliem open outrages upon the public law, international and municipal, which binds all these colonies. The seizure and occupation by a civilized nation of the territorj' of uncivilized men is a wrongful and a criminal act, certain to result in the debasement and ultimately in the extinction of the weaker people, and only to be excused by the very pressing needs of the occupying state. In this work of annexation all civilized nations alike are robbers ; but law holds its place even amongst robbers, and it is clear that according to this law no civilized people has a right to claim for itself without occupying a country unoccupied by civilized men to the exclusion of another civilized people who desire and intend to occupj- that countiy. Priority of possession constitutes the sole title as between civilized nations. Yet this is the claim which we Australians in view of our own supposed future interests have pre- sumed to put forward on behalf of England, and thanks to the imbecility of the Colonial Office we have been allowed to do so with- out a word of rebuke or disclaimer by the Imperial (iovernment. Two courses were ojien to the Colonial Office ; one was to accede promptlj- to the wishes of Australia, and to annex or take under the protection of Great Britain the whole of the Eastern part of New Guinea. If that had been done Germany woxdd have made no complaint because she had then advanced no claim. The other course was to tell us kindly but firmly and with all plainness that while our wishes shoidd he con- sidered favourablj', they must be subordinated to the general policy and also to the existing special engagements of tlie Crown of England ; that we could not be jjermitted to advance claims and to commit un- authorised acts for which England miglit be held responsible bj' other 20fi MEMOIR OF fiEOROE HTOTNBOTHAM ru.\r. Powers, and tliat if wo insisted upon aclin<^ inflcpfiidontly in extra- territorial questions without the sanction of tlie ]ni])erial ( lovcrnnient, we nnist accept tiie responsiliilities of complete inde|)cndeiice and sul)niit to l)c dis-annexed from tlie parent state. Frank languiige of tliis kind miglit iiave l)een addressed, I believe, without fear of ill con- secpiences, to tlicse conununities. It woidd not have incensed the general Ijody of tlic ])eople in any of tliem. It would have opened the e\'es of our politicians and awakened in them some sense of inter- national responsil)ility and some recognition of the ol)ligations of pul)lic law. Above all it woidd have anticipated and prevented tlie disaster which tile arrogant words and acts of colonial politicians and i)ublie writers have brought al)0ut, namely, the just irritation and estrange- ment from England of that great kindi-ed power whose cordial friend- ship and co-operation in everj' part of the world it sliould ))e England'.s constant policy to secure. I think it is now demonstrated that our ill-advised and reckless acts and language, not corrected but tacitlj' encouraged by the vacillation and panic fears of the English Colonial and Foreign Ottices, have con- tribute.3, and about the same time in the other leading colonies of Australia, by tlie introduction of responsibility to Pai'liament of Ministers of the Crown, in addition to Representative Government, which all tlie colonies had previously possessed. By the terms of the Victorian (Jonstitution Act power is given to the Crown, the Legislative Council, and the Legislative Assend)ly to make laws in and for Victoria in all cases whatsoever. Ministers chosen l>y the representative of the Crown advise him in all things relating to the conduct of the ordinary domestic affiiirs of State and the executive administration of existing laws, with the single exception created by statute law of the giving or withholding of the Royal assent to, or the reservation of, bills. Questions involving Imperial interests, including the control of Her Majesty's militaiy anil naval forces, and (]uestions affecting relations witii foreign states, do not come within the purview of the Constitiition Statute. As legai-ds all such questions, the Go- vernor is still an officer of the Imperial Cilovernment, and is bound to obey the instructions given to him either directly from the CroMu or through the Secretary of State. With respect to the same (juestions and interests. Her Majesty's Ministers for Victoria cannot tender responsible advice. They may, if they think fit — they will, so long as rational and friendly relations exist Ijetween the two Governments — assist the Imperial officer by all means in their power to perform his duties to the Imperial Government. But with respect to local affiiirs, subject to the single exception above mentioned, the case is wholly different. The statute docs not by express grant convey any powers or XX VIEW ABOUT THE COLONIAL OEFTCE 21 S pi'erogativcs to tlie Oovernor. IjuI tlic creation )jy statute of the system of Responsible Uovernnient necessarily involves the vesting in the representative of the Crown, npon his appointment and l)y viitueof the statute, of all powers and prerogatives of the Crown necessary in the conduct of local affairs and the administration of law. Allow nietore- (juest your special attention to this point, that it is by virtue of the Constitution Acts themselves of the Australian colonies — assuming those acts to have created in each of tiie colonies the system of Responsible (lovernment — that the prerogatives and powers which are necessary for carrying tiiat system into eti'ect and operation are transferred from the Sovereign, and are vested in the representative of the Sovereign. lam aware tliat it has been urged by those who have desired to uphold the (iovernment by the Colonial Office of these colonies, and who liavc therefore su])])oiteil the (Jovernor's instructions in their present form, tiiat, although Responsible (iovernment has been created in the Anstralian colonies by the Imperial statutes, prerogatives and powers are from time to time conferred on the Oovernor by the Crown, accord- ing to its pleasures bj' a separate instrument, and not by force of the .\.ct of Rarliament. If the policj' whicli the Colonial Office has steadily ])Uisued for the last thirty years has sprung from a leal bnt mistaken belief in this doctrine, and not, as has been more probably conjectured, from the natural but very censurable desire of irresponsible snljordinate officei's to retain for their department bj' stratagem a power which they know has been taken away from it by law, it is to be deeply deplored that the Colonial Office has not during that long period sought com- petent legal advice npon a subject which concerns so nearly its own duties as well as the highest I'ights and interests of these Australian comnnmities. As a legal proposition, I venture to affirm that the doctiinc is wholly untenable and false. If it were true, all the colonial Constitution Statutes would be a dead letter, and all public rights of these connnunities would depend not upon the grant of Parliament, but upon the will or caprice, exerted from day to day, of the Imperial Minister. Responsible Oovernment cannot exist iniless some powers and prerogatives are vested in the representative of the Ciown, for the exercise of which Ministers of the Crown, appointed by the Crown, are responsible to Parliament. Hence it follows that the law which creates this system of government itself also conveys such powers and preioga- tives as are necessary for carrying into effect the oljjects for \\'liich the system has been created. Qiiaiido lex cdiqnid coiircdit, coiiredere videfur tt illud .sine quo res i]>sa esse non j)Otest. This is a legal maxim founded on necessity, which, with slight variations of form, is of almost univer- sal application in the construction of grants, of rights and powers, and of propertj'. It applies to statutes as well as to deeds and other instru- ments. It applies not onh' to the subject, but also to the Crown, in all cases of statutes passed for the public good, or in which the prerogative is included by necessary implication. And the necessity which compels the application of this rule also supplies the limitation of the rule. The representative of the Crown has vested in him, by force of the Constitution Statute, and by virtue of his appointment as Govei-nor, such powers and prerogatives of the Crown, and only such, as are 214 MEMOIP. OF (JEORGE HIC4INB0THAM .hat. necessary in llu- toinlnct of tlio ordinary duties and fuint ions of govern- ment and the adniinistiation of existing laws %sitliin tiie colony. Tlie (lovernor, in this character of the Queen's representative, and exercising tiie ])o\vcrs and ])rerogatives of the Crown vested in Idm l)y statute, is legally indejjendent of allexternal infiueiute and autliority, and can he law- fully guided only l)y the advice of his responsible nunisters. The Ci-own cannot resume to itself, or to its Imperial advisers, anj' j)owers which have been withdrawn from it or from them by a statute to wliich the Crown has been a part}'. Neitiier can the Crown oi' tlie Secretary of State lawfully impose any restriction npon the cxeicise of the (Tovernor's inherent powers, (iovernment by means of advisers re- 8])onsible to J'ai-liament exists in England by common law. In the Australian colonies that same system of government has been created ))y statute. Thei'e is a difference of historical origin, l)ut with this exception, and the limitation to local affairs, and the exception of the reservation of bills passed by the Australian Parliaments, the analogy between the British and the colonial sj'stems of govermnent, and between the Sovereign in England and the representative of the Sovereign in England, is, I believe, comjilete. 4. The i-adical vice of the Governor's letters jiatent, commission, and instructions, both jjidjlic and jirivate, appears to me to be this — that the}' studiously and 2>ersistently refuse to take note of the funda- mental cliange made in the public laws of the Austialian colonies by the Constitution Acts of 18.')4-."). In particular, they pretend to confer powers and authorities which have been already conferred with others I)}' the Constitution Statutes ; they decline to recognise the dual character of the Governor, and, ap])lying a misleading title to the advisers of the Governor in one of liis two characters, they affect to ignore altogether the existence of Responsible Government. I will refer to particular clauses which ])resent the most striking illustrations of a violation in these respects of constitutional law. Clause II. of the letters patent — " We do hereby authorise, empower, and conmiand our said Governor and Commander-in-Chief (hereinafter called the Governor) to do and execute all things that belong to his said office, according to the tenor of these our letters patent, and of such commission as may be issued to him under our sign manual and signet, and according to such instruc- tions as maj' from time to time be given to him under our sign manual and signet, or by our order in our Piivy Council, or by us through one of our principal Secretaries of State, and to sudi law s as are now or shall hereafter be in force in the colony." This purports to grant, subject tolinutations, certain authorities and powers already vested in the Governor by the Constitution Statute. The grant is, in my opinion, void, and the limitations and the com- mands founded thereon are also void and illegal. Clause VI. of instructions — "In the exercise of tlie powers and authorities gi anted to the Governor by our said letters patent, he shall in all cases consult with XX VIEW AP.OUT THE COLONIAL OFFICE 215 the Executive Council, excepting only in cases wliich are of such a nature that, in his judgment, our service would sustain material pre- judice by consulting the said council thereupon, or when the matters to Ije decided are too unimjiortaut to require their advice, or too urgent to admit of their advice being given by the time within which it may be necessary for liim to act in respect to an}' such matters — in all such urgent cases, he shall, at the earliest practical period, communicate to the said Council tiie measures which he may so have adgpted, with the leasons thereof." This is an instruction wliich a Governor ttoes not, and cannot, obey. The Executive Council, in the pi'oper sense of this expression, has never been conveneil in Victoria. Like the Privy Council, it could not be convened except by the direction of the Victorian Premier. If by the words "Executive Council" the "Cabinet" is intended to be referred to, this instruction is unmeaning and void. It is, doubtless, the duty of the representative of the .Sovei'eign to consult his advisers, and it is their duty to advise him in all matters connected with local affairs, but the duty in neither case sjjrings from this Royal instruction. If it be intended to dii-ect the Governor to consult his advisers in matters connected with his duty as an ofHcerof the Imperial (irovernnient, this is an indirect instruction, offensive in form and without either legal authority or means of enforcement to Her Majesty's Ministers to do something which they are not i-equired by their duty as Ministers of the Crown to do. Clause VII. of instructions — "A Governor maj- act in the exercise of the powers and authorities granted to him by our said letters patent in opposition to the advice given to him by the members of the Executive Council, if he shall in any case deem it right to do so, but in an}' such case he shall full}' report the matter to us by the first convenient opportunity, with the grounds and reasons of his action." I think that this instruction can only be characterised as a distinct denial of the fundamental principle of the existing public law of Victoria. As a direct instigation to Her Majesty's representative to violate that law it offers a grave indignity and conveys an unmis- takaljle menace to him and to his advisers, who are here and elsewhere misnamed the Executive Council. Clause XI of instructions — "Whenever any offender shall have been condemned to suffer death by the sentence of any court, the (ioveruor shall call upon the judge who presided at the trial to make to him a written report of the case of such offender, and shall cause such report to be taken into considera- tion at the first meeting thereafter which may be conveniently held of the Executive Council, and he may cause the said judge to be specially summoned to attend at such meeting and to produce his notes thereat. The Governor shall not pardon or reprieve any such offender unless it 216 MEMOIR OF (IROROK HTOTNP.OTHAM citap. shall appear to him cx]>C(liciii so to do upon receiving tlie advice of tlic said ]']xeeulive Council tluMcon ; but in all such cases he is to decide either to extend or to withhold a jiardon or a icprieve accoi'diiig to his own deliberate judgment, whether the members of the JOxecutivo Council concur therein or otlierwise ; entering nevertheless on tlie minutes of the said Executive Council a miinite of his reasons at length, in case he should decide such action in o))position to the judgment of the majority of members thereof." This instruction presents a glaring instance of not less flagrant illegality. The ])rerogative of mercy is a prerogative essentially neces- sary to the administration of criminal la%v. The exercise of it in Victoria is therefore a matter in which the representative of the (Jrown can and ought to act solely upon the advice of his responsible adviseis, and neither the Crown nor the Crown's Imperial advisers aie legally competent to dictate or advise upon his action. By this instruction the Governor is jiersonally ordered to call upon the judge to make to him a written report — an order which, if it were convej'cd otherwise than through and by the advice of the Minister, it would be, I conceive, the duty of the judge to refuse to comply with. The Governor is further required to decide "either to extend or to withhold a pardon or reprieve, according to his own deliV)eiate judgment, whether the members of the Executive Council concur therein or otherwise." This unjust and cruel as well as illegal order is not obeyed, and could luit be obeyed, by any tiovernor in the only cases to which it could a]>ply. It has been attempted to excuse this instruction on the ground that it is virtually obsolete, yet on two sepai-ate occasions long subsefjuent to the passiiag of the Australian Constitution Acts, the Colonial Oilice has expressed its appioval of this instruction, and has lepeated the injunction to the Governor to obey it. Clauses VIII. and X. of instructions — "VIII. In the execution of such powers as are vested in the Governor by law for assenting to or dissenting from or of i-eserving for the signification of our pleasure, bills which have been passed by the Legislature of the colony, he shall take care as far as may be practicable that in the passing of all laws each different matter be provided for by a different law without intermixing in one and the same laAV such things as have no proper relation to each other ; and that no claiise be inserted in or annexed to any law which shall be foreign to what the title of such law imports, and that no perpetual clause be part of any temporary law." "X. The Governor is to take care that all laws assented to in our name, or reserved for the signification of oui- pleasure thereon, shall, when transmitted by him, be fairly abstracted in the maigins, and be accompanied, in such cases as may seem to him necessarj-, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such laws ; and shall also transmit fair copies of the journals and minutes of the proceedings of the legislative bodies of the colony, which he is to require from the XX VIEW ATIOUT TTTE COLOXIAL OFFTPE 217 clerks or otlici inojici' oliiicis in tlial licluilf of llif .said legislative bodies. " These clauses are not illegal because they relate to the reservation of bills for the signification of Her- Majesty's pleasiu-e. I i-efer to them only as showing tlie almost conteniptiious (lisres2)ect and want of con- sideration displayed b}' the Colonial OfHce towards Australian Parlia- ments and Imperial othcers in Australia. To order a gpvernor to take care that in the passing of all laws each different matter shall be pro- vided for l)y a ditt'erent law may at one time have been proper and not uimecessary. Addressed, as the order indirectly is, to Legislatures consisting of two Houses of Parliament like the Legislative Council and the Legislative Assendjly of the various Australian colonies, it is an insult to all of those bodies. And it has proved on one occasion, at least, a cause of actual enibarrassment to Her Majesty's (iovei-nment in Victoria. When the (Jovernor is ordered to require from the clerks in Parliament fair copies of the journals and minutes of the ^jroceedings of the Legislative bodies, he is humiliated Ijy being needlessly' instructed to make a requirement which, if disputed, he could not enforce, and for the fulfilment of which he is in any and in every case indebted to the aid (which is, of course, never withheld) of a Minister of the Crown. 5. I cannot allow you, Hiv, to suppose that I waste time and atten- tion upon the obscure phraseology of documents which do not in fact possess most real influence, and have not been and are not attended with important practical consequences. It has been alleged by way of excuse for tiie culpal)le inattention of all Australian (4oyernments to this (piestion that the instructions to a governor are, as a whole, obsolete, and that they are not intended l)y the Colonial Othce, winch continues to issue them, to have effect, or to exercise controlling influ- ence on the action of the representative of the Cro\\'n. If such be the views of the Colonial Ottice, infinite relief would be afforded by an offi- cial and jnxblic intimation of them. I have a confident assurance that the Colonial Office entertains no such views, and that it will not, unless it is compelled, give such an intimation. I entertain no doubt whatever that the published instructions have been maintained by the Colonial Office in their present form for the last thirty yeais solely for the pur- pose of asserting, and with the intention of enforcing whenever it is deemed possible and prudent to do so, the claim of this department of the Imperial (government to control the lepresentative of the Crown in the exercise of all his functions and authorities alike, and that it is the wish and intention of the Colonial Office that the (Jovernor shall always and in everything fulfil the oath which he has taken to obey his instructions, whether they be legal or illegal, up to the point, l)ut no further, at which compliance with his instructions and disol)edience to the law of the land consecjuent thereon might involve the risk of comment, followed by exposure and rejection of the illegal claim of the Colonial Office. But whatever may be the views or intentions of the irre- sponsil)le officers who fiom time to time, as permanent heaer of persons ])elieve, in accordance with the doctrine of the eleventh clause of the instructions, that tlie (Jovernor, without or in opposition to the advice of liis Ministers, can exercise the Royal prerogative of mercy. Hence it has followed that the representative of the Crown is sometimes exposed to tlie gross indignity and the very painful endjarrassment of being compelled on the eve of the execution of a criminal to apologise — at one time to a crowd collected from the street, at another time to an equally ignorant crowd of clergymen and laj-men — for his Ministers in allowing the law to take its course, and refusing to transfer to incompetent and irresponsible jjersons the most delicate and responsible duty connected with the exercise of this prerogative. Illustrations of the continuing influence of the policy underlying the instructions to (Jovernors might be multijdied indefinitely. 7. The systematic violation of the public law by the Colonial Office has recently led to more extended consequences, and is likely to involve new dangers. These Australian conmumities have external as well as internal interests of the highest importance. The}' all are interested in Itanishing from the Southern Hemisphere tiie injurious system of transportation of criminals from other parts of the world. It is the opinion of many persons — in which I do not myself concur — tliat these Australian colonies have a species of right to exclude other civilised nations from the islands remaining unoccupied in this part of the Pacific Ocean, and that they are entitled to demand Imperial aid in asserting that right. Upon both questions these colonies are un- doubtedly justified in claiming to be heartl Ijy the Imperial Govei-n- ment. Their views and arguments should receive patient, earnest, and sympathetic consideration, and, if Imperial interests concur and the rights of other nations permit, the wishes of these colonies should be carried into effect by the prompt, open, and feailess action of the British Government. To more than this the Australian colonies are not and cannot be entitled so long as they remain parts of the British Empire, and are unable or unwilling to assume to themselves the burdens and the responsibilities of national independ- ence. But Australian communities ai'e at present almost totally ignorant of the existence of any legal or constitutional limit to their freedom of speech and action. The line at which the self-governing 220 MKMDTR OF CKORCE TTK HXIIOTIIAM ( iiap. powcis of a colony end ;inetween the Imperial and the Colonial (Governments for the purpose of joint action in all matters of common interest. 9. Before I conclude this letter I shall be glad if I can gain your Ijrief attention to a subject not entirely iniconnected with that to which you have invited mine. I mean the bestowal by the Crown of titles of honour upon Australian citizens. The existing practice in this matter by which tlie Imperial Government advises the Crown is not open to objection on legal or constitutional grounds. The exercise of this prerogative is not absolutely necessary in the conduct of local affairs, and consequently the prerogative is not vested in the representa- tive of the Crown by force of the Aiistralian Constitution Acts. But the present mode of exercising this prerogative is regarded in Australia with only cold indulgence. It does not and cannot in any case express spontaneous national sentiment. It may sometimes, through mistaken representations conveyed to the Imperial Minister, have residted in giving offence to the public judgment. I do not think that it has hitherto had tlie effect of increasing the just influence of those Austra- lian politicians who have lieen objects of the Royal favour in this respect with the connnunities to which their services have been rendered. It is not quite certain, perhaps, that public opinion, if it could ])e ascertained, would favour the continuance in any form of the system by which titles of honour are conferred upon Australian citizens. But, assuming tliat the existing practice ought iji some form to be main- tained, it might prol)ably be asserted with confidence that the great preponderance of opinion in Victoria -would 1)e decideilly adverse to the grant of any hereditary titles of honour whatever, as l)eing opposed to the spirit of our laws and to the principle of equality which is the founda- tion of the theory of our political system. Life titles of honour, on the other liand, are not open in an equal degree to this objection. And if life titles of the higlicst lank coidd be awarded l^y the Crown in such a way as to express the public sense of honour for meritorious pulilic services, while at the same time they should be effectually guarded against becoming the prize of personal or party intrigue, it is probable, I think, that they would be regarded in Australian communi- ties Avitii cordial welcome instead of with coldness, and that they might become important and most valuable factors in the formation of national character, MJiiie they would also l)e an object of the most legitimate individual ambition. It appears to me to l)e a suggestion tliat deserves the attention both of English and colonial politicians, that it would l>e greatly for the advantage of tiiese colonics if Her Majesty should be advised to vest this jirerogative in the representative of tiie Crown in each Australian colony, to be exercised upon the advice of colonial 222 MEMOIR OF GEORGE HIGINBOTHAM (Iiai-. xx advisers of the Crown, ami upon the reconuuen(hitionof botli Houses of the Colonial I'arlianient. 10. I have marked this letter "confidential,"' in accordance with what I have understood to be your wish. It would be nioie agieeable to my own inclination if no such restriction w'ere imposed on either of us, and you have my permission to make any use you may think proper of this letter. If you should deternune not to regard it as strictly confidential, I shall, of course, claim a like discretion. I shall be glad to learn and willing to comply conditionally with your decision upon this point, and for the present I will observe a strict confidence. I have the honour to be. Sir, Your faithful servant, (Signed) George Higixijotua.m. CHAPTER XXI POLITICIAN Conservative tendency of liis mind — Not a demagogue — Belief in his kind — Tlie rat-cateher — He lamented decline of authority — His hatred of tlie power of money — " Wealthy lower orders " — Irony of fate making him a party leader — Disapproval of party — \Vould he have been a good leader for the Liberal party ? — Faithful private member — Was his political career a failure ? — Lower House still jealous of its rights in finance — The altered instruc- tions — Higinbotham's influence as a parliamentarian analysed. The ti'ainiug of a lawyer certainly gives a liias towards Conser- vatism. An English lawyer, at any rate, is taught not to settle questions upon a general principle, but to seek for pi'ecedent. The result is that comparatively few law^^ers have been really Kadical in politics. Fortunately English precedents make for freedom, and therefore many and distinguished English lawyers have been on freedom's side in the political strife. To those who have merely a superficial acquaintance with Mr. Higinbotham's character and career, the remark that his mind was essentially Conservative may seem paradoxical ; but it is true. History — the history of political struggle — was the gi-eat armoury whence he took his weapons. The influence of general principles was also strong upon liiui, us it must lx> upon all reasoning men. Precedents may usually Ijo (pioted on Ixjth sides, and in his precedents INIr. lliginbotham sought for those that were guided and decided l)y the general principle. More than most men, he possessed the faculty to discern " the law within the law." In politics his instincts were opposed to the arts of the demagogue. He hated humbug, shams, and charlatanism as •2-24 MEMOIR OF GEORGE HIGINBOTHAM chap. strongly as Carlyle, but, Ijelioving more strongly in the liuman race,^ he was not so ready to discover them. He certainly held a strong belief in man as man, stripped of all trappings, class distinctions, and artificial differences, what Carlyle calls " clothes." These, with Carlyle, he despised. Geoi'ge Higin- botham measured others by himself, and this made him a democrat. Chaucer speaks of those " who demen gladly to tlie Imdder ende " ; that is to say, always look on the worst side of their neighbours. Higinbotham was rather accused of an incurable optimism : he always looked on their best side. Of this an amusing illustration may be quoted. One day at his table an officer of a ship was describing how, when the ship came into port, there were so many rats on board that rat-catchers were sent for to clear it. " But it is my belief," he added, " that they leave a few rats on board so that there may be work for them at the end of the next voyage also." " Oh ! do not say that," said Higinbotham, in a pained tone. " He means," was the comment of one at table who knew him well, " that he would not do it if he were a rat-catcher ! " Higinbotham certainly should be written " as one who loved his fellow-men." One reward of this l>elief in and lo^'e for his fellow-man was that he possessed the gift of gauging popular feeling in a degree which did not come to many who prided themselves on knowing the world far better than he did. Higinbotham would have been as willing as Carlyle to have the world governed l)y its best, but his experience of public life, especially in a colony, convinced him that there was no short and easy road of discovering who were tlu; best. The fascination of politics was not so great that he W(,)uld n(_)t willingly have buried the whole of it, if with perfect certainty some system of government could have l^een evolved Avithout it that could not fail to l)e just. Oftentimes Higinbotham lamented the decline of authority throughout the world ; he valued authority so highly that he would gladly have made sacrifices to retain it, or to induce it to return to earth. The fact that everything has gone into the melting cauldron — ^ He could never have eliuekled over Friedrieli's Diem ixrdammtc liace, as Carlyle did. XXI POLITICIAN 225 theology, philosophy, science, art, even grammar — distressed him. But in a young colony no reasonable method of government, except democracy, seemed possible, unless it were to assign political power to money ; and from that he shrank with unmixed loathing. In a new colony birth has no power ; education, unless it will take trouble to persuade, very little. Money soon lifts up its head, soon asserts itself, and claims a right to govern. All the teachers oi religion and philosophy tell men to despise money. George Higinbotham carried out their precepts. Of all the phrases that he coined none had more point and sting, none has had more life, than the phrase the " wealthy lower orders." ^ It is a phrase worth thinking about. Poli tical opponents acknowledged its power ; though only b}' misunderstanding can they say that it was " somewhat ludi- crously applied to the professional and educated classes who were his opponents." ^ Granted that the professional classes in Victoria, as elsewhere, were Conservative, the phrase was never intended to apply to all the opponents, but to some. Its truth was the very reason of the epigram's sting. Those who had made money in Victoria were not as a rule edu- cated, and the stronghold of the Council lay in the moneyed men who had risen. The airs of the local aristocracy in the early days — not best {dpt(7Toi) at all, but solely wealthiest — excited Mr. Higinbotham's contempt ; their claim to control and rule the colony, his indignation. These feelings gave quite a marked V)ias to his political thought ; and the phrast^ about the " wealthy lower orders " is a key to it. How high Higinbotham's standard of political purity was inay be seen from the following extract. There was a railway for which his constituents were anxious, and they wanted tn know why their member had not supported it. He said : — I now wish to tell you the motives of my silence, in order that you, having heard them, may judge whether you approve or not of my conduct. That i-oute was first suggested to the Government by an officer in the railway department who is a relative of mine, and who is something more than a relative — who, and I say this in order 1 Speech at Brighton, October 22nd, 1804. No notice was taken of the phrase at the time. It has stuck like a bur. - Timotheus, in Anjv-^, .Tanuary 7th, 1893. t2i2(i MKMOIi: OF CKOIICK UK MXI'-OTIfAM ciiai-. that yovi may fully uiiderstaiKl my motives, who is a very dear and lifelong, intimate friend of mine, a man of whose judgment upon (juestions of this natuie, and upon not a few other subjects of a like kind, my own judgment would be greatly influenced, if not, indeed, controlled. 1 have always known oi' l)elieved it to lie a rule of l)arliamentary prudence and propriety, that a member should not be forward to speak or vote upon subjects or (juestions on which he may ])e, or may i-easonably be supjjosed to l)e, subject to private influences, or controlled by personal feelings or intei'ests. And if he do so, gentle- men, he will soon find that when lie speaks his voice lacks the inthience that every man who speaks in public should seek to have, and that every man who represents otiiers should insist upon maintaining. In accordance with that rule — an unwritten rule, I admit I have from the time I first entered I'arliainent down to the present time, both as a private member and as a Minister of the CroM^n when 1 was one, abstained altogether from interference, direct or indirect, in any mat- ter or question connected with the railway department of the Uovern- ment. There was also another feeling in my mind. 1 was jealous of the honoiir of one whose good name is quite as dear to me as my own, and no man in this community can say, no man shall ever with just cause be able to say, that the professional opinion or official interest of the Kngineer-in-Chief of Railways has received political sup- port or aid from liis relative who happens to have the honour of a seat in Parliament. It was under the influence of these feelings tiiat I deliberately abstained from speaking or voting as your member. The fights in which Mr. Higinliotham was engaged were the most bitter party fights in the history of the Colony of Victoria. Strange irony of fate that the leader in thes(> party fights was one who deprecated party altogether ; wlio on entering politics declared that Victoria had not the material for party government ; who always would have w^oi^ked for its annihilation. He simply loathed the constant struggle for oftice. In a speech on the Education question (May 30th, 1867) he spoke of the accepted system of government by party or faction, as I jjrefer to call it. . . . There has always been in the country, and in a less offensive form in the mother country, a political part}' who are endeavouring at all hazards to eject a government, in fact to " iipset the coach," to " stab the man at the wheel, and throw his body over- Ijoard.'" . . . The British public generally view political struggles in the same way that they view prize-fights ; they look upon them either with feelings of stolid apathy, or with a sense of brutal enjoyment. On November 30th, 1875, speaking on a very different subject, he spoke of the XXI I'OLITTCIAN •_>•_>: acoui-scd system under which llie party on this side of tlie House are always striving to murder the reputation of tlie ))arty on tiie other side, in order to lea]) over the deail hodies f)f tliose reputations inlo tiie seats on the Treasury Heneii. Those are two stroiii;' instances ; there are many more. His ideal for tlie State was that witli certain limitations every man and e\'ery woman should have an equal vote, the whole colony be one constituency, and that the Executive should be selected ([uite without reference to party, or faction, as with truth he used to call it. Of this ideal Mv. Hii^inljotham never lost sight, l)Ut tlu^ desire to take sides, and the clinging together of allies in one combat, when they came to another and different fight, proved too sti'ong for it and him. Protest- ing against party he entered politics ; and protesting against ])arty he quitted the political arena. Strongly convinced as lu! was that the intrusion of party lowered politics, he never accepted the excuse tliat it was the fault of the politicians. The House is what the electors make it, and the electors cannot screen themselves Ijehind unworthy representatives. If these prove unworthy, it is tlu' duty of the electors to find worthier. For a while at least he was a party leader. As to his merits in that capacity this distinction must he drawn. To excit(! enthusiasm on his own side it may l)e doubted whether any one was (ner his superior. In a battle, or in a campaign, he was like a dashing leader of cavalry, and none hesitated to follow where he led the way. For several years after he had left ortice many hoped that he would organize and lead the Liberal jiarty, not for one political object biit for many- headed reform. These have since regarded him as a " lost leader " ; l)ut it may well be doubted whether he was adapted for such a position, where tlie need is not so much for a grasp of principle and vigorous support of it as for the political tact which makes concessions in one place, whilst it is firm in another. In politics you must l)e politic. There are those who say that compromise is the very essence of political life. Now Higinbotham abhorred compromise as a thing in itself evil. Like one who was in many respects his master in politics, he was Too fond of tlie right to pursue the expedient. L>S MEMOIR OF OKOHliK HICINBOTIIAM ( iiM-. With all his greatness, EdnnuKl Burke could not have led a party for a continuance. One cannot l>ut tliink the same about George Higinhothani. As a member of Parliament he was impelled by a strong sense of duty to constant and regular attendance. When Attorney-General he was regularly on the Ministerial bench, ready to answer (juestions and to take his part in all the work of the House. As a private member he was equally regular in his attendance, though much of that attendance must have been irksome to him. It is contrary to the strict rule of the House to read a book, but the rule was seldom enforced, and Mr. Higinbotham when a private member read frequently. When attention was needed, the book was quickly laid aside. No work was too much for him. The phrase, " There were giants in the land," springs to the mind con- fronted with the work he eagei'ly undertook. It has sometimes been said that Mr. Higinbotham's j^olitical career was a failure, by which is meant, not that his political influence in raising the tone of public life was unavailing, but rather that the causes for which he cared were not gained. His influence is written on every page of the Victorian statute book ; even independently of his work in consolidation, there is no legislator who has done so much for legislation. But if attention be confined to the two main political questions for which he cared, opposition to the interference of the Upper House in financial matters, and o|)positi()n to the interference of Downing Street in colonial aftairs, and if thus only the main position be considered, has his influence been for nought 1 A career is not a failure because the extremest victory has not yet been won. In 1893 the Government prepared a small measure to enable the Trustees of the Melbourne Public Library to fine for default in returning books on loan. As the Legislative Council had not much to do in the early part of the session, the measure was introduced in the Council. On its reaching the Assembly, the Speaker proclaimed that it was an infringement on the rights of the Assembly, and the bill was at once thrown out. The Speaker, it may l)e mentioned, was Mr. Thomas Bent, member for Brighton since 1871. The Lower House is as jealous of its financial rights and of the power of the purse as ever. XXI I'OLl'nciAX 229 The measure of the victory with respect to Downing Street is to be found in the altered instructions. The Home Law Officers told Lord Knutsford that it was not illegal for Governors to correspond with the Colonial Office ; but the tone of that Office is not now the tone of Mr. Cardwell, nor of the Duke of Buckingham, but rather this "involves no (juestion calling for the intervention of the Imperial Govern- ment ; it is nut (me on which it seems to me incumbent to express an opinion." Contrast the Instructions to Sir Charles Darling, signed "V. Kg.," of June 23rd, 1863, with those published in tlie Victoria (Tovprnmcvl Gazette of September L'nd, 1892, signed, July 9th of that year, "V. R. I." The difference is enormous. The Victorian newspapers of that September commented (m the change, and praised the wisdom of the Colonial Office in making it ; but no one remembered the Victorian politician whose persistent efforts were at last successful. That number of the Gazrtte was published only four months Ijefore his death. But even if it had to be granted that on his two main contentions the people's champion was defeated, there remains liis intluence. " I was almost always opposed to him," said a liigh authority, whose Parliamentary experience was of the highest ; " but from the day lie left the House it began to descend." The following is an analysis of Mr. Higinbotham's influence in Parliament, written by a leading meml)er of the Victorian Legislative Assembly : — TIr- ))C'ciiliar intluciuc which ( leorge Higinbothani exercised upon m\v politics was connected with the two (piestions of resisting the interference of Downing Street anrincii)les so that the readings of the Constitution Act miglit be coherent, and that any (|uestional)le occurrences might be tested not merely by reference to the letter of tlie Act, but by that letter read in the light of broad constitutional doctrine. His great knowledge of the ])rincij)les of Constitutional Law awoke many echoes, some of which still remain. Again, those principles require for their ajjplication constant historical reference, and heie too a tendency was imparted which left a distinct mark upon the Assembly, and forced even members of the Council to seek for precedents to justify their claims. In one sense the smallest of the avenues in which his influence was exercised most discovered it. This was in knowledge of the forms of the House and pious adherence to them. Some of the checks upon individual license imposed by them are severe, and many of the ])ro- visions relate simply and solely to what might l^e termed the baic ceremonial of jirocedure. Nevertheless as laws of the House they were sacred to Crcorge Higinbothani, and through him a sense r)f their sanctity passed to those wlio surrouniled him. In all these i-espects his was more or less a legal influence, l>ut it was gained uj)on wholly extra-legal grounds. His jiopularity arose as a chamjjion of the rights of the people and of their chamber, but this M'as built upon Ids charac- ter. It was his individuality which im))ressed all, — not only his bril- liant oratorical powers, but the almost overwhelming weight and foice, which were exjnessed in his elo(pient words with perfectly natural ))ut maivellously telling deliberation and precision. Even in his most tiery passages there was everywhere a judicial element, in the back- ground perhaps for the moment, Imt pi-esently I'easserting itself, — a thoughtfulness and thoroughness betokening the l)alance of o])inions in a ripe judgment and the careful preliminaiy survey of a wide field and fiom a high standpoint of the whole situatif)n of which he was dealing only with a passing phase. This intellectual rectitude and capacity, supported l)y the blameless jjolitical and private record (soj/.s jifiir (it ,s-«H.s- rcjjroch'), made him by right of (piality and strength the natural leader of his pai-ty and an irresistibly dominant personality. Hence he was imitated consciously or unconsciously^ l)y the most dis- similar men. ^Vhat breathed through the whole and I'cndered it liarmonious was the keen and al)iding sense of the importance of the woik of Parliament, the dignity of its ]>ractice, the magnitude of its opportunities, the loftiness of its authority. Fully ind)ued with the wisdom and supremacy of the Commons, the antiquity of its rights, and the majesty of its achievements, he contrived to pour into the shallowest and meanest minds some of the overflowing reverence and pride with whicli he regarded the People's House. This influence was moi'al rather than legal. It gave a graA'ity of tone to our debates which lias l)een steadily lowered since his de])arture His contenqit for mere wealth, disdain for class prejudices, and unconcealed dislike XXI POLlliCIAK' '2M for the unciiitivatc(i noiircaiix ridiex, were based on moral grounds also, adding the spice and hiwh of invective, which contrasted so forcibly with his expressions of almost religious awe for constitutional princi- ples and popidar rights. His loyalty to the throne and liis feeling for Imperialism were but imperfectly iinderstood in his political days, and were an occasion of astonishment to some who confused his resistance to the Colonial Office with resistance t(j the mother country, than which nothing was further from his feeling. It has to^be remembered that a great struggle such as was waged here in the sixties always has an elevating eft'ect in politics. It has also to l)e remembeied that in New South Wales and other colonies the U])per Chamber is nominee. Only South Australia resembles Victoria in its Upper Chamber. But making all allowance for these facts, I believe that, during (leorge Higinbotham's term of office, and indeed for some time afterwards, the Victorian Assembly was distinguished from its fellows by a higher standard of discussion, a better demeanour of members, a stricter sense of tlie value of the forms of the House, and a far superior grasp of all constitutional issues. Even in the Convention of 1891 it was noticeable that the relations of the two Houses were discussed coldly and on mere academic grounds by all the representatives of the other colonies, with perhaps two exceptions, while the Victorians one and all Hung themselves into the discussion coti amort:, and with the readiness of men experienced in the question. This knowledge, es]3ecially essential in young Parliaments, and the iiigher class of debate and higher sense of i-esponsibility in members and in Parliament, I attril)ute almost solely to the immense pei'sonal influence of (^eorge Higinl)otham. I believe the able men of his time were abler than those who fill their places, and certainly more individual and more \arious ; biit I know lujne of them to wlioni can be attributed the prf)])agation of the ideal which Higinl)otham held except himself. Some were brilliant soldiers of fortune, some had l)risk, keen, and able intellects, sf)me had a grij) of ])rinciples, but none of them ajj])roaclied Higinbotham either in intellectual or moral stature, or in the training which made him par r.vfi Ihriirv tiie Parliamentarian, the re])resentative of the re])resentative {)rinci])le, spirit, and method, mIio im])arted to that jjei'iod of our ])<)liti- cal history a certain gieatness of style which has lieen sadly wanting since, ;ind is cons])icuously wanting now. It in;iy l)e added tliat Mr. Hiyinl)()th;un"s ])ntt"()uiid belief in the House of Coininoiis was due to his study of liistory, l>ut his kii()\vledi;-e of the \ cry forms and Hfe of that great assembly may rather be traced to liis early experience as a reporter in tlie gallery. It may naturally be asked what were Mr. Higinbotham's views on certain prominent (juestions of modern ])oIitics, that word ]>eing used in its widest sense. In English ]R)litics he was a Lilxn-al Unionist, strongly op})osed to granting Home Rule to Ireland. With respect to the connection betw^eeu ■2-A-2 MEMOIR OF GEORGE HIGIXJ5()TH.\ M .hap. England and the colonies, he was strongly avei'se to the idea of separation, but prepared ^ to ti(hiiil that if there was no very active feeling in favoui' of se))aration there was no very strong sentiment amongst tlie younger generation in favour of eontinuing the Jiritish connection. 'I'his he attiibuted to the ignorance of Enghind anu)ngst the young colonials, wlio, he thought, wouhl look at matters dili'erently if they could all have the advantage of a trip to the old country. Whilst deploring this ignorance, which he spoke of as the main cause c)f misa))prehension between nations, he attributed it veiy much to the neglect and seliish- ness of the older generation of emigrants, who had devoted all their energies to juoney-making, and had taught their children neither loyaltj^ to the old country nor an enlightened patriotism in regard to the new. . . . His idea was that the colonies should be told that they could "cut the painter" at any time they liked, with the certain I'esult, as he contended, that they would pause long before terminating a connection involving so many practical atlvantages and so much valuable prestige. To the idea of Imperial Federation he was also opposed, fancying that it would lead back to rule by Downing Street, and " government by despatches." He had fi)Ught too much and too bravely against this to see any advantage in schemes of closer connection. And yet every scheme of Imperial or Britannic Confedex'ation implies complete self-government of each part as to its own atiairs. " The future can take care of itself," was his answer, when pressed as to what wouki l)e the state of affairs when the colonies had a population equal or neai'ly equal to that of Great Britain. Australian Federation he suppoi'ted, but not so warmly as many. He told the visitor who reports the above opinions on the English connection that he " saw no necessity for hurr}- in the matter of Federation, and would consent to any postponement rather than see Responsible Government in the J3ritish sense weakened in the least by its adoption. On this jjoint I found him as Conservative as the most true-blue Constitutionalist could desire." Lastly, his attitude toward socialism. On this point a personal reminiscence may be permitted. A friend had once been talking t(j me, and had tleclared that in future the ])olitical world would not be divided between ' An interview describe 1 in the Briti'^li Austra/asinii, .lanuary lith, 1S!»3. XXI POLITICIAN 233 Liberals and Conservatives, but between Individualists and Collectivists. I said I could not make up my mind which side I should then take, and I carried my difficulties to Mr. Higin- botham. I pointed out how my early Liberalism had been fed upon Mill On Liberty, imd on the book to which Mill owed so much, Humboldt Oh the Splievp and Duties of Government ; that I still believed the individualist system would produce the finer type of man, the self-reliant ; but that in many later matters I had seen the good effected by collective action, and wavered in my allegiance ; even Mill allows that the State should undertake education, but that persoiiallv T should be sorry to limit the State's action where Mill difl. Higinbotham said he thought we had all passed through the same struggle, that he had left the Individualist camp with regret, quite seeing its merits, but that now he hoped more for humanity from collective action. A few more words may be (juoted from the same conversa- tion with his visitor from England : — The greatest tloiil)ter al)out human perfectibility could not be faint-hearted as to tlie future of laliour after he liad been for a few minutes under the optimistic spell of tlie Victorian Chief .Justice. He revelled in the fact of the growing sf>lidarity of labour, wliich served to checkmate the grasping emploj'ei- when he sought to call in the glutted weahli of one part of the world to aid him in crushing the rising tide of Morking-class emancipation at another. APPENDIX. A. THE 0].I) INSTKCCTIO.NS. I. [Very long and formal. Here omitted.] You shall tlicn and tlierc take the oath. II. And We do authorize and require you from time to time, and at any time liereafter, by yourself or by any other person to l.)e authorized by you in that behalf, to administer and give to all anil every sucli person or jiersons as you shall tlnuk ht, who shall hold any office or place of trust or jirotit, or who shall at any time or times pass into Our said Colony, or l)e resident therein, the said oatii of allegiance, save only in cases wherein any other oath or oatlis is or are prescribed by the Statutes in that l.iehalf made, or by any of them, in which case it is •_';u MKMoii; OF (;K(H{(;i-; uicixiiorii am ciiai-. Our pleasure, and W'edo lK'rel)y dircrl, llial you do ;idiiiinislcr, oi' eau.se In l)e administei'esequently, and at the earliest practicable jjcriod, eonnuiuiicate to the said Executive Council the measures which you may so have ado])ted with the reasons thereof. VIII. And We do authorize you, in your I.\. Ami whereas it lias lieen aijpoiiited by I'arliaiueut that siicli of tho ])r()visi()iis of the Act of the fourteenth year of Our reign, chapter tifty-uine, and of the Act of the fifth and sixtli years of Our reign, cha])ter seventy-six, which relate to the giving and withholding Our assent to Bills, the reservation of Bills for the signitieance of Our ])leasurc thereu))on, and the instructions to be conveyed to (Governors for their guidance in relation to the matters aforesaid, shall ajjply to and be in force in Our said t'olony : We do, in the exercise of the ])owers in Us vested, bj' these Our instructions under Our Sign-Manual and Signet, declare Our pleasiu-e to be, that until further orders shall be made by Us in that liehalf, j'ou do, in the exercise of the j)owers vested in you, of assenting to or dissenting from, or of reserving foi- the signification of Our pleasure such Bills as may be passed by the Legislative Council and House of Assembly of Our said Colony, guide yourself, as far as may be practicable, by the following rules, directions, and instructions (that is to say) : — X. You are, as much as possible, to observe, in the passing of all laws, that each different matter be jirovided for by a different law, without intermixing in one and the same Act such things as have no proper relation to each other ; and you are more es]3ecially to take care that no clause or clauses l)e inserted in or annexed to any Act which shall be foreign to what the title of such Act imports, and that no ))er])etual clause be ])art of any temporary law. XI. If any Bill of any one of the clauses hereinafter specified should be ])resented to you for Our assent, you are (unless yo\i think ])ro]j('r to withhold Our assent fi-om the same) to reserve the same for the signification of Our ])leasure thereon ; subject, nevertheless, to your discretion in case you should be of opinion that an urgent necessity exists reijuiring that such Hill be brought into immediate operation ; in which case you are authorised to assent to such Kill in Our name, transmitting to Us, Ijy the earliest opportimity, the Bill so assented to, together with your reasons for assenting thereto (that is to say) — [The reservations are practically the same as in the new instructions.) XII. You shall take care that all laws assented to by you in Our name, or reser\ed for the signification of Our Royal pleasure thereon, shall, when transmitted by you, be fairly al)stracted in the margins, and accom])anied with exj)lanatory observations u))on ca(.'li of them, exhibiting the reasons and occasion for pi'oposing such laws ; and you shall also transmit fair ('opies of the Journals and Minutes of the Pro- ceedings of the said Legislative Council and House of Assemldy, which you are to recjuire from tlie Clerks oi' other ]n'oper officers in that behalf of tjie said Legislative Council and House of Assend)ly. XIII. And whereas We have, by Our said C'ommission, a.'thorised and cmjiowered you, as you shall see occasion in Our name and on Our behalf, to grant to any offender, convicted of any crinie in any court, f)i' before any judge, justice, or magistiate within Our said Colony, a pardon, either free, or subject to lawful conditions. Now, We do hereby direct and enjoin you to call upon the judge presiding at the trial of any offender who may from time totimc be condenmed to sutler dcatJi liy the sentence of anv court witliiii Our said Colonv. tomakct(j •33fi MIvMOli; OF (lEOHCK UK MXIIOTH AM <\\\y. yon a written report of the case of sucli offender, and .sueli rejjort of tlic said judge sliall by yon l>e taken into consideration at tiie first meeting thereafter which may he conveniently hehl, of Our said Executive Council, where the said judge shall l)e specially summoned to attend, and yon shall not ])ardon or reprieve any such oti'ender as aforesaid un- less it shall appear to you expedient so to do upon receiving the advice of our Executive Council therein, l)ut in all such cases you are to deciresidc at the meetings of the XXI INSTRUCTIONS 237 Executive Couucil, unless preventeil by some necessarj- or reasonable cause, and in his al)sence such member as may be appointed by him in that behalf, or in the absence of such member the senior member of the Executive Council actually present shall preside ; the seniority of the memliers of the said Council being regulated according to the order of their respective appointments as members thereof. V. The Executive Council shall not proceed to the despatch of l)usiness unless 4-2 MKMOll: (H" CKOIICK II K ; IXIIOTIIA M . n m^. l^]nu;lisli " clcnu'iit of inir speech, iiur is ho so scTi))tiiriil in his inustratioiis. In the huild of liis sentences, certainly in Ills wiitini(s and to some extent in liis spe(Y^hes, he might rather l)e compared to ]\lr. (iladstone. Elsewliere ^ a speecli is given in full upon the ti-eatment of Sii- Charles Darling. It was selected by a great admirer who ha(i heard all the great speeches. Tliis gentleman, then a member of the House, corrected and sup)plementcd Hansard by describing the action of a part near the close, where the speaker said that' the officials of Victoria cared so little for the px-inciples of I'esponsible government tliat in violation of them they would always like to appeal to Down- ing Street, and a member opposite interjected " It's a libel ! " " A libel," repeated the orator in a silvery voice little more than a whispei', but a whisper that could be heard in every part of the chamber. Then he drew himself up until, short as he was, he seemed to tower over everybody, and stepping forward to the table Hung forth both hands with a gesture of contempt. " I declare to God, I cannot think of them with- out thinking libel." At the close of the speech an astute opponent moved the adjournment of the debate upon the ground that the House was too excited to do business. " We are still under the wand of the enchanter," he might have (juoted from the words that Pitt used after Sheridan's gi'eat speech in the House of Commons upon the Begums.^ There is no doubt that as a speaker Mr. Higinbotham owed much to the clearness and the nmsical tone of his voice. Yet " beautiful as was his oratory," said a strong admirer to me, " it Avas not the manner but the matter that made the speeches valuable. What he said was so sound and true, that I was often reminded of what the Yankee said of Daniel Webster : ' His words were so weighty. Each of them weighed a pa-ound.' " One word moi'e. The language that fell from Mi-. Higin- botham's lips was couched in perfect grammar. He never " broke Priscian's head." Every sentence was completely formed. The reporters all testify that they had nothing to 1 Chapter xv. - Not to be confused with the later speccli on the same topic in Westminster HaU. XXI r REMINISCENCES BY A REPORTER 243 do ])ui to vopoi't. The kind offices that ihry perform for many another speaker were never needed. Mr. W. V. Roljinson, Clerk of the Legishitive Assembly has kindly contributed the followin — well, Sir, its iiitclliifciu'c, I su])|)()sf', is fitly represented by li<)n()ural)le nuMiibers F see opposite. Tliat party, Sir, it will not l)e denied even b}' its nienil)ers tlieiiiseJves in their calmer moments, has been a party more l)asely subservient to external intluences, more hypocritical in its professions, more unprincipled in its acts, moic oulrai^-eous in its language, both printed and spoken, than any jiarty by ssliidi this countiy has ever been cursed.' " Mr. Higinbotham's defences of Sir Charles Darling, after the latter had been recalled from the (iovernorship of Victoria, was as eloquent a tribute to the good qualities of the unfortunate Governor as nuo man could possibly pay to the merits oi another.' " ' I l)elieve,' said Mr. Higinbotham, ' that the feeling of this countr}", now as then, is one of sincere respect and sympathy for Sir Charles Darling. In one respect, Sir, I believe the feeling has changed. I believe that a reflection on the undeserved misfortunes of that gentleman has altered the sentiments of mau}^ towards him, that it has made many, even of his enemies, to be at peace with him, and to l)e willing that this vote should be passed even though they were opposed to his policy. The opinions of his friends and admirers — and they, I believe, are nine-tenths of the people of this country — remain unchanged. . . . T assert that the despatches show demonstratively that Sir Charles Darling was removed from ottice on account of an expi'ession which may have been incautious, but which was never charged with being illegal. . . . Sir, I do not believe that a want of caution — and that is the only offence which has ever been charged against Sir Charles Darling by his ill-informed critics in England — I do not believe that an incautious expression will outweigh the sense of other and greater merits. Caution and prudence in a person holding the high office which he filled are qualities of a high order, but they are not the highest qualities. They may not be incompatible with higher qualities, but they do not often — they certainly do not always — accompany them. Sir Charles Darling possessed qualities with which caution and prudence are not always associated, but which are far higher qualities. He wrr REMINrsCKNCKS r.V A IJKIV^RTKR 247 possossod intense hatred of wrontf ; lie possessed a profound contempt for the persons who conspired against tlie pul)lic law ; and lie possessed tlie greatest determination to resist their designs at all hazards and risks.' " This last sentence very felicitously expresses some of the traits of the character of the late George Higinhotham, as well as of Sir Charles Darling. " Some observations made on different occasions by Mr. IIiginl)otham about the press are noteworthy, especially as proceeding from one at one period of his career a dis- tinguished journalist. Addressing the Legislative Assemlily on a motion for committing to the custody of the Sergeant- at-Arms, Mr. Hugh George, for publishing an article which the House declai'ed to l)e a scandalous breach of its privileges, Mr. Higinbotham remarked : — " ' A person who asserts, when endeavouring to explain such a statement as that a person's speech " bristles with falsehood," that he mei-ely intended to state that the speech was "not consistent with truth," endeavours to avail himself, as it seems to me, of the next least offensive expression that he could possibly use ; and in making use of that less offensive, but still highly offensive expression, I say he aggravates the original offence. It is also declared by Mr. George, "in vindi- cation of the liberty which the press of right enjoys, that, as thus understood, the article referred to is no more than a fair criticism upon a statement made by a servant of the Crown in his public capacity, and in a public place." That is to say, that the press of right enjoys the liberty of assert- ing of a public man that his words uttered in a public place, and on a public question, " bristle with falsehood." If that be the liberty of the press, I say the liberty of the press must be suppressed.' " While supporting the action which the House was resolved to take on that memorable occasion, Mr. Higin- botham clearly showed that personally he cared nothing for any calumnies which the press uttered against public men. "'For my own jmrt,' he said, 'I am quite habituated to the use of such terms as " chicanery," " lawlessness," "revolu- tionary," and so forth, whether applied to this Ministry or to any other ; for it has become the habit of the degraded press which now exists in this colony — it is simply a form in which •_>4S MKMOli; (»K CF.ORCK UK UXIUri'HAM ciiai-. porsonal passion, iin^uulcd cillicf hy rciisoii of consoioncp, fifives vent to its own l)as(Mi('ss. ... t do not liesitato to say that if the language which has lieen complained of liad Ix'on applied to nie, instead of the Chief Seci'etary, T should not have dreamt for a nionicnt of appealing to this House. ... 1 believe there is n(» epithet of \ililication in the whole gamut of calunuiy, from the top to the bottom, that T would not allow to be used with ivspect to myself, for the simple reason that I agree with the lion, member for the Ovens, that these things do no personal harm to any one.' "On one occasion, speaking of the attitude of a section of the press towards 8ir Charles Darling, Mr. Higinbotliani evoked tlie humour of the House Ijy saying that — " ' In another country a Government warns the press — once, twice, thrice ; but here. Sir, the press warns the Governor, and only gives him the benefit of a single warning.' " Many of the memorable utterances of Mr. Higinbothain, l)oth in Parliament and on the platform, were very epigram- matic. His reference to a certain section of politicians as the ' wealthy lower orders ' is still as familiar in the mouths of the people of Victoria as household words. On one occasion, seeing that members made words spoken at one time apply to different and unsuitable circumstances, he characterised Han- Hiird (the authorised version of the Victorian Parlianieutary Debates) as a ' barren and mischievous pul)lication.' " In 1867, during a debate cm a motion by Mr. JMacpherson, against a contemplated dissolution of the Legislative Assembly, Mr. Higinbotham referred to the English Con- stitution as ' a constitution which has l)een described as a democracy in disguise, and which seems at the present time in England very much disposed to strip off that disguise.' " Some of Mr. Higinbotham's expressions have l)een mis- quoted so often, or quoted apart from their context, as to convey a very erroneous notion of the sentiments he really intended to convey by them. One conspicuous examjDle is the well-known allusion to Sir Fredei'ick Rogers, sulisequently Lord Blachford. The quotation is almost invai-iably given as ' the man Rogers.' '' [The whole speech is given elsewhere,^ and it will be seen that the exact words are " a person named Rogers.' 1 Chap, xviii. p. 183. XXII RHNfTXTSCENCES RV A RErORTKT; L>4f) Pooplo often say Mr. Hipjinbotliam '' used to speak " of him as the man Rogers. He only aUuded to tlie gentleman on this one occasion.] " A very simple remark made early in the first session of the Parliament elected after the McCulloch (rovernment apjiealed to the country on the Appropriation-r//>^/-Tariff Bill has been singularly })ei'verte(l. A well-knowji writer has credited Mr. Higinbotham with declaring on one occasion that 'members were I'etui'iied to vote, not to discuss," and substantiallv the same thing has been asserted times out of number ; but bv quoting ^[r. Higin])otham's own language it will l)e seen that liis words have ])een gi'eatly distorted. /faiisanl reports him thus : — " ' The Government, if he rightly understood the efiect of the elections, came into Parliament not to discuss the tariff, but to pass it. . . . As soon as that House passed the tariff, and as soon as it was laid aside and after- wards rejected in another place, all the members of the As- sembly, excepting a small minority, were agreed on this— whether the tariff was protective or free trade, whether it contained within it a vicious system of financial policv or a wise one, the interests and rights of that House were bound up in that Tariff, and that if an appeal were made to the country at all — if the members of the Assembh'' were put to the trouble and expense, and the indignity, under the circumstances, of having to go to the country, they would go for the pui'pose of carrying this tariff into law. They were now in the House for that pui-pose, and they were not thei'e to discuss the character of the tariff." "As far back as A2:>ril 18G9, Mr. Higinbotham felt ct)n- strained to speak from his place in Parliament in these terms : — " ' It sometimes seems to me that political life is, 1 would almost say, a sort of pandemonium, in which a number of lost souls are endeavouring to increase one another's tortures." " It is not surprising, remembering the sensitive nature of the man, and how many things occurred between that time and 187G to shatter his political hopes and aspirations, that in the latter year he resigned his seat in the Legislative Assembly and retired altogether from political life.. '2.-HI ^rT^^^OTT; Ol" CI'IOIICI". IIICIXI'.O'IIIAM (H. wn " I will close tli('S(> I'cniiiiiscencos hy iiioniioiiin^ ;ui incidcnl wliirli cuiiscd some junusoniont ;it tlie tinu> it occui'i'cd. r>('si(l(»s the hicmislics on |iolitic;il life iiidicati'd in the ([uutatioii just jLjivcn, the time of I'juli.uncnt Wiis frctjueiitly wasted in Mr. 1 liuinl)otliani's day l)y futile discussions arising out of some misunderstanding between tlie two sides of the Assembly — a state of affairs not wholly unknow n even now. A debate, already somewhat ])rolonged, would l)e adjourned to some future evening on the assui'anoe given to tlie Government that it would be finished at an eai'ly houi' on tlie night appointed for its resumption. Almost invari- ably, when that -night arrived, a eonfliet of testimony ensued as to the precise nature of the agreement, the i-esult l)eing irritation and stpiabbling. With wisdom l)egotten of experience, Mr. Higinbotham on one occasion, in consenting to the adjournment of a debate, (juietly i^marked, more in sorrow tha,n in anger, ' Let it be clearly understood that there is no understanding.'" CHAPTER XXI TT lU KRISTER Practising Twenty Years — As Attorne}--Oeneral he took no Practice — Pleadings — Leader of the Bar — 'llioroughness — Care — Not too Fast — Very Certain — Barrister's Double Duty — Manner Towards Others — Corni-fh ami Brncc^-Y owng Jiushranger — Hiipple's Case -—Not so lucrative to him as to otliers — State-paid Advocates. (tEORGE Hkunuotiiam \v;is a practising barrister for nearly twenty years. From the date of liis admission to the Vic- torian Bar to his acceptance of a seat on the Supreme Court Bench is more than twenty-six years, but from this number must be deducted part of the time when he was editor of the Ar<*us iind the time when he was Attorney-General. Of course as Attorney-CTeneral he was not al)sent from the Courts, l)ut lie would only appear in his official capacity. He regarded his salary as a retainer which entitled the Crown to the whole of his services. Before his time barristers in the position of Attorney-General took outside work as in England, but since liis time the example wliich he set has been generally followefl. When a barrister conmiences work, he naturally is unable to choose the kind of practice that he would prefer. He takes the briefs that come to him, now in the County Court, now in Chambers, now in the Supreme Court, civil cases, criminal cases ; l)ut soon, if he be even moderately successful, the \vork has a tendency to sort itself, and tlie kind that fell to Mr. Higinbotham in his eai'lier years \\;is chiefly ))leadings. One who was often his junior speaks of the result of this work shown in '' his profound knowledge of pleading and of the law of evidence." When Mr. Higinbotham emerged from office in May, 18GS, ■2^-2 ^[KM^TT; of cKOKCK IIICIXI'.O'IIIAM ciiAr. \\itli ;i ,1,'rpat I'cputatioii as an orator, the coast was clear for him. iNfany of the lirilliant advocates and able lawyers were gone who made the fifteen years of the Victorian Bar following the discovery of gold famous in its forensic annals. Mr. Higin- hotham at once stepped into large practice. His able political opponent, i\[r. Fellows, was the recognised leader of the Bar ; and when in ISTli Mr. Fellows accepted a judgeship MV. ]-tiginlj()thain certainly filled that position,^ until on the death of Mr. Justice Fellows, thougii not immediately thereon, Mr. Higinbotham succeeded that distinguished judge upon the Mench. A man naturally takes into his ])rofession the characteristics that mark him as a jnan. The qualities that mark Mr. Higinbotham the barrister are conscientious thoroughness, a high sense of honour, love of justice, courtesy in word and deed. Nothing was more characteristic than the elaborate {Jains with which he studied every case, and this careful prejjai'ation guai'ded him against surprises in the court. One who was often his junior speaks of his invariable and thorough study of both the facts and the law of the cases in which he was retained. His study was minute and accurate. On more than one occasion he has asked me to work out some point M'hicli might possibly arise at the trial, and more than once this working-up was fruitless, as the opponents did not take the i^oint. Another writer says, " he was certainly one of the most minute thinkers and workers that ever gi'aced the Victorian Bar. To such an extreme was this carried that his briefs were invariably expanded and epitomised in the form of a genea- logical tree, the arguments being committed with immense care to paper." The adverb "invariably"' and the epithet " immense " push this statement to an extreme ; docked of those two words, it is true. This carefulness was so natural to him that it may be said he was never in a hurry. The same former junior says that Higinbotham was frequently afraid that evidence would be given too fast to allow of its being full}' grasped not only bj' the jury but by the jiidge. Often and often, 1 On December 12th, 1870, a general retainer was given to Mr Higinbotham as Standing Counsel for the Corporation of the City o{ Melbourne. XXIII BARRISTER 253 both ill court and in private conversation, he would chide me for liurryiug on the answers from a witness, and no doubt he was right. Later comment will be made on the development of this feeling in his judicial work. Mr. Higinbotham was slow in making up his mind on legal as on other questions, but when once he saw his way clear it was difficult, if not impossible, to shake him. When certain he was very certain. The following story is told by a political opponent,^ and, as he acknowledges, is probably apocryphal. It is however eminently characteristic, and it may be added that the trait is exactly what we are called upon to admire in AtJiana.iius contra muiidum. An insurance director in Parliament used to tell tlie story that a judge and jury decided against the companj" in an action in wliich Mr. Higinljotham had advised. " Well," said counsel, " the judge and jury are wrong." On this tlie company went to the Full Court, which was against them. " Well,"' said Mr. Higinbotham, " the Full Court is wrong." The comjjany therefore went to the Privy Council, wliich was unanimously adverse. " Well," said Mr. Higinbotham, as his final word, " the Privy Council is wrong." Probably the tale is apocryphal, but it exemplifies the firmness and fervour of the hon. gentleman M'hen lie had made up his mind. 80 high was Mr. Higinbotham's sense of honour that he would never take up a case unless he was satisfied that it was right. Attorneys in consequence naturally refrained from bringing him doubtful cases. Instance after instance (writes the same political opponent) could be mentioned in which he refused l)riefs because he was by no means satisfied with the equities of the case. The pi'ofessional man who abuses liis client out of court, and his client's advei'sary in court, was not his type. On the contrary, a business interview, or a friendly chat about a case would reveal to tlie most obtuse the inherent probity and the essential delicacy of his cliaracter. The doctrine that a barrister owes a double duty was held by him in contradistinction to Erskine's view that the advocate has a duty only to his client. Higinbotham held that a barrister was bound to believe his client until the evidence was too strong against him, but he also held that truth and ^ " Timotheus " in the Anjtus, Jauuaiy 7th, 1898. ■2o4 MKMOli: <)!•' (M'IOIk;!'; IIICINIIOIIIAM < mai-. riglil should limit and guide his cmiduct. This JaLLer view indi'cd he pushed, as some would tliiiik, almost to an extreme. A logical mind combined with courage leads to extreme views. Once when Higinhotliam was defending a hank cleik, evidence of a convincuig nature heing given, he persuaded his client to withdraw liis plea of " not guilty," and tliose who held the opposite view of an advocate's duty were shocked. Yet another case may ])e ipioted. " An illustration of liis lofty view of the responsibilities of an advocate was afforded during the progress of a case of great magnitude in which he was enaasred. After the case had been on for some weeks Mr. Higinbotham suddenly discovered that certain steps had been taken on behalf of his clients of a more tlian doulitful nature. He at once demanded an explanation, and none satisfactory being t)ffei-ed he at once resigned liis lirief."' The ethical tone of the Bar on such points is not very certain. Since Courvoisier's case most barristers repudiate the extreme doctrine of Erskine, but they certainly refrain from the opjDosite extreme. George Higinbotham "s iulx»ni courtesy was as reniarkalile as his lofty sense of honour. His manner towards other counsel was most just and pleasing, gentleness with pei-fect firmness towards his opponents, and a delicate and kindly sjnnpathy towards juniors. «i A'ic onineb- ! A suggestion from a junior (writes the same friend aheady quoted) lias often brought doM n on me a snub from my leader in court ; but Mr. Higinbotham, on hearing the suggestion, Avould either adopt it, and in open court give me the praise for it, or woidd (juietly lay his hand on my shoulder to imply that he understood, but did not agree with my idea. Anything that approached discourtesy to women disgusted him. There was one case in which he was second counsel with a leader (since dead) and a junior. His client, the defendant, was being examined by the leader, and in his evidence used a vulgar expression of the plaintiff, a lady. Higinbotham made an exclamation of disgust, and said to the attorney opposite, " I really think that I had better return my brief." The attorney pacified him as well as he could till the client got out of the box and took a seat at the table. Higinljotham glared at him, aiilendid specimen of forensic elo(|uence. Tfe spoke with extreme pathos, and at times was so much a|}'eatants on both sides. Your words fortify me in the belief that I have not erred in accepting work when it A\'as offered to me in the narrower Ijut yet honourable sphere of judicial duty. But I shall never cease to be a politician, in the sense in which you and I have understood the term, to my life's end, and as a Victorian ))olitician I sluiU continue to M^atcli your course in Parliament with close attention and interest, and witli the warm sympathy wliicli springs from feelings nearly identical, I believe, in reference to matters of tlie highest concern. Believe me. Yours very faftlifuUy, (Signed) George Higinbotham. In September, 1886, Sir William Foster Stawell, who had been Chief Justice of Victoi'ia since 1857, retired. Mr. Justice Higinbotham, although only six years on the Bench, was the Senior Puisne Judge. During the six years there had been many losses. In November, 1880, Sir Redmond Barry, after nearly twenty-nine years of judicial life, had died. In the following year fell the death of Mr. Justice Wilberforce Stephen, who was a judge for seven years only. In 1886 tw^o veterans retired in the persons of Sir William Stawell and Mr. Justice Molesworth. The latter had been thirty years a judge, and was close upon eighty years of age Avhen he determined to s^Dend the remainder of his days in well-earned rest. On his retirement (May 6th, 1886) he was knighted, and as Sn* Robert Molesworth lived until October, 1890. Thus Mr. Justice Higinbotham became the Senior Puisne Judge ; and the Ministry of the da}^ the Coalition under Messrs. Gillies and Deakin, hesitated not an instant to s 2 2«0 MKMOli; OF (iKORCH TTK IIXP.OTTTAM cilAi'. ;i}t])()iiit liiiii Cliict' Justiut'. (Jiicc more ])ul)lif ()])iiii(»ii and the goodwill of the profession ratified the ai)])oiiitnient. As a judge Mr. Higinl)othain sliowed the same charactiu-istics that he displayed as a barrister, the same qualities that he had as a man. He was conscientious, painstaking, and filled with a high sense of duty. A charge is often madi^ that he had the defect of his (juality. Tt was said that he took too great pains, that his elal)orate note-taking, even though for criminal cases in shorthand, w^as the cause of delay, and that justice should not be delayed. In cases where other judges would say " Are the affidavits right 1 " he would say " Read the affidavits." There is something in the charge, and certainly it is true that the slowness increased in the last year or two of the Judge's life. Not that there w^as any mental failing ; against this he was, and he charged his medical attendant to be, ever on the watch ; but it is true that the delil^erateness gi'ew more deliberate and the slowness increased. His judg- ments were long, chiefly because he liked to set out all the facts of a case for the Reports. There can be no doul)t that he worked too hard. The work of the second consolidation by itself would have taxed the strength of a younger man. The Chief Justice added it to his judicial woi'k, from which he was never absent. At a time when he needed more rest, he would work at reserved judgments late into the night. The custom of the Bar is that when at a consultation there is substantial agreement upon an opinion the junior counsel writes it out. Juniorea ad lahores,^ is within limits a sound doctrine in life. Mr. Higinbotham never held it. When he was Chief Justice, if the judges agreed on an opinion, he would write it. His colleagues were most ready and willing to help him, but such was his appetite for work he preferred to do it himself. Once, about three months before the end, when a cold detained him a day from the courts, three of the Puisne Judges called in the after- ^ "When, twenty-fi^■e years ago, I was a master at Radley, I rode one morning to Cuddesdon to let the Bishop of Oxford know that the floods would not prevent his crossing the river at Sandford to a confirmation. The Bishop (Wilberforce) and his chaplain rode back with me. They talked high and not interesting theology. When I dismounted to open a gate, the Bishop called out, " Juniores ad labores." "Yes," said his companion, afterwards also a bishop ; ' ' but the eldest pays the turn- pike." xxiv PUISNE JUDdE, AND THEN CHIEF JUSTICE 201 noon begtfiiig each fur himst'lf that he might he permitted to take an approacJiing circuit for the Chief, who, however, would not hear of it. Indeed it is not too much to say that he was beloved by his brother judges and by all who came into contact with him at the courts "on this side idolatry." No man could be more careful of the reputation of others, of county court judges and police magistrates, from whose decisions an appeal could come to him. If he thought a mistake had been made, it was in the gentlest terms rectified. "How do you like the work?" he asked once of a judge who was new to the Bench. " I feel the responsibility," was the natural reply. " It is so hard to be sure that I am doing what is right." "You are not here to do what is I'ight," was the seemingly strange answer ; and to the look of astonish- ment the Chief continued, " You are here to do what you believe to be right." "Thank you; that is very helpful," said the younger judge. Was Higinbotham a great lawyer 1 Where there is certainly a difference of opinion, it is difficult for a layman to decide. One who had the capacity and some opportunities for judging wrote : — If I had ever been before Higinbotham as a litigant, I should probably have felt a doubt as to his law. I often did. I think he was too great a man to he a great technical lawyer. He could not lose sight of the object in the instrument. But I should have had no feeling of soreness. From , (and here a name is given which must not be printed) a decision in my favour' would be only one degree less unsatisfactoiy than a reverse, because I should suspect the process by whicli he arrived at it. Upon the other hand a l)i-other judge declares that Higin- botham's knowledge of the law, especially case-law, was profound, whilst few could doubt that the consolidator of the statutes knew the statutes, and that laws were familiar to the legislator who had borne his part in making many laws. It cannot be denied that as a general rule Higinbotham's decisions gave satisfaction to suitors, and it is not altogether easy to give satisfaction to suitors. His painstaking and manifest desire to decide aright impressed them. The Chief Justice was a great believer in judicial dignity, insisting upon the etiquette of the courts and all due observ- ance of external foiinalities. Surprise has not seldom been 202 MI:M()II; OF CKOIMIK IlKMMJO'rilAM cuAr. expressed that one wlio was acknowledi^cd a (rue dciiiocrat should insist on such matters. Surely tlie suipiise is shallow : but the feeling is so common that it needs an answei'. Democracy does not mean anarchy ; it literally means govern- ment by the people ; that is, it finds the basis of government in the popular will, and it is little moi-e than i-idiculous to suppose that this means the abolition of form and ceremony. So far from meaning the removal of government the danger of democracy I'ather lies in the contrary direction, too mucli interference. The ideal of a true democi'at is perfect sim- plicity in private life, a simplicity that is in strict accord with dignity, and in public life everything tliat wins respect for the power and authority that the people have given. The Associates have told me that the Chief Justice was very particular that the oath sh(juld be administered carefully and solemnly to juries and to witnesses. There was to be no gabbling over so serious a business ; but the jur^^man or witness was full}' to understand its sacred import. In his Court eveiything went smoothly, and there was an atmosphere of calm and dignity. Not only did the Chief shrink from slang, but he never used colloquial language in a judgment. When the Chief was summing up, the barristers would crowd into the court. He was always clear and lucid, and frequently eloquent. Believing that respect is due to a court of law, the Chief Justice would never permit a witness to adopt a lounging attitude in the witness-box, and the more highly placed such a witness was, the more likely he was to be called sternly to attention. One story is told about a medical man, one of the leaders of his profession, being suddenl}' checked when the attitude he adopted was free and easy, " Take your hands out of your pockets, sir." There is another story about a less eminent doctor in an assize town, who ventured to be flippant in his answers. My informant was so seated in the Court that he could not see the Chief's face, but in the doctor's he saw a look of abject terror suddenly succeed the flippancy. No word had passed, but afterwards my friend heard the doctor explain how he had meant to brazen it out, when "suddenly a lightning flash darted from those clear blue eyes," and he was overpowered. In the Chief's presence ever " the flippant put himself to xxiv iTisxK .iri)(;i:, and tfikx cuikf justice •_>().•} school." If in court lio ii('4 >[EMOTR OF f;KOR(;E HT( ITXP.OTTfAM chap. of a witness should be visible. From deiueanour it is often necessary to judge whetlu'r witnesses art^ speakin<( truth. The false witness fidgets, is uneasy, and sliuHlcs his feet ; thei'efore let legs be visible. The manner of the Chief Justice towards counsel was ever a model. Studious politenass and unwavering courtesy )narked it. It cainiot by any means be said that he did not interrupt counsel during the course of an argument. He knew that sometimes an interru2:)tion by showing to the barrister the direction of a judge's thought may be of great assistance. On the other hand he I'ecognised that the practice should be rigorously kept in check, as it is unfair to a counsel to take him off the main line of his argument on to a by- way, where perhaps there is no thoroughfare. All judges know this, but they are sometimes carried away, and the Chief Justice used to confess that he interrupted too much. Alter- cations with counsel Higinbotham would carefull}^ avoid, though sometimes his patience was sorely tried, but barristers knew the limits. There was no storm, but the symptoms that preceded trouljle. The voice sank lower but gained in intensity. Never was it then disobeyed. Courtesy to women was so natural to Mr. Higinbotham and went so far with him that some thought he attached too much weight to the evidence of a female witness, indeed that he was soft to the sex. Here is counsel's opinion : — I thought so fornierl}% but I had once to appear before him in Chambers on behalf of a very charming client who had some property but would not pay her debts. The case was heard in his own room, and lie was courtesy itself. He stood when she entered. I think she dropped her handkercliief, and he left his seat to pick it up. Nothing could be gentler than liis manner, and I was congratidating myself on an easy victory ; but when the facts were heard, came the decision that my client must pay or spend six months in prison. The Chief Justice in the colony of Victoria receives in salary £500 a year more than the Puisne judges. So strongly did Mr. Higinbotham hold the doctrine that the Chief was only pritniis inter jKtres, necessary as a chairman, and representative of the Bench, and to make othcial arrangements, but with no other authorit}'^, that he regularly set apart the extra .£500 as if that sum was not part of his XXIV PUISNE JUDGE, AND THEN CHIEF JUSTICE -ICr, private income. Witli it he used to entertain the nieniljers of the profession at one of the Melbourne hotels. At the beginning of each legal year he gave a series of four dinners, to one of which he invited all the judges — County Court as well as Supreme Court — all the chief officers of the Court, and before amalgamation all the barristers, and an equal number of solicitors. After amalgamation all the lawyers were of necessity placed on a single list, liuj; it was then impossible to invite them all every year. All who were privileged to be present on these occasions testify that the Chief was one of the best and kindest of hosts, that all judicial stiffness thawed, and the full geniality of the man came out. They testify further that the dinners served the purpose which the host desired, and brought men together in a friendly way. It is even said that feuds, perhaps more than one or two, were healed at these dinners. The case of Ah Toy forms a sort of link between Higinbotham, C. J., and Higinbotham the practical politician. It was a law case famous at the time, involving political issues. As it was not ultimately decided on the main questions raised, the case is not important from a lawyer s point of view, but the judgment of the Chief Justice was so typical that some account of 7\>i/ v. Mnftyyovp must l)e given here. On April 27th, 1888, a British ship named the AJyhan arrived in the Port of Melbourne, having onboard some 268 Chinese immigrants, amongst the number being one Chun Teeong Toy. Having regard to the provisions of certain Acts which were then in force, and hatl l)een passed by the Victorian Legislature with the view of restricting the immigration of Chinese, this number was 2.") 4 in excess of what the Afyhan could lawfully bring into the port. Previously to the arrival of the ship, Mr. Musgrove, the collector of customs, received instructions from the Com- missioner of Trade and Customs, the responsible Minister of the Crown for Victoria, in whose department la}' the administration of the laws relating to immigration, that no Chinese, other than such as were British subjects, should be allowed to enter Victoria. Mr. Musgrove acted in accordance with his instructions, and Chun Teeong Toy was one of those who were not ju'i-initted to land. In order to •2m MF.MOIR OF CKOI^CK Fl K : I Xr.O'l'irAM ( ii\i'. test tlie legality of this exclusion of himself and of his fellow- countrymen, Chun Teeong Toy proceeded to bring an action in the Supreme Court of Victoria, alleging that he had Ijeen wrongfully prevented fioni landing, and claiming damages from Mr. Musgrove. To this claim Mr. Musgrove's first defence Avas a denial of the jui'isdiction of the Court to entertain the action, asserting that his acts were, as being acts of State, ratified and approved by the responsible Minister, and by Her Majesty's Government of Victoria. The second defence was that the acts complained of were lawful, having been done by virtue of the power or prerogative of the Crown of England to exclude aliens ; that this power as to Victoria was vested in the Governor of Victoria, to be exercised by him bj'^ and through. Her Majesty's responsible Ministers for Victoria ; and that this power had been so exercised. This latter defence it will be observed involved the consideration of the question whether the colony of Victoria has or has not what is known as responsible government. At the outset the parties agreed that the result of the action should be determined bj'' the decision of the Full Court on the argument of the questions of law raised by the pleadings, suljjeet to either party's right to appeal to the Privy Council. A strong Bar was retained by each side, Mr. (now Sir Henry) AVrixon, who at that time held the office of Attorney-General, being the leading counsel for the defendant. And on account of the special importance of the questions to be decided, the case was heard by all six judges of the Supi-eme Court. At the conclusion of elaborate arguments, wdiich had lasted several days, the judges reserved their decision, and after the lapse of some weeks delivered their considered judgments. All were agreed that the Court had jurisdiction to entertain the action, and that the acts of the defendant were not acts of State. As to the second defence, however, they were divided in opinion, the majoi'ity consisting of Mr. Justice Williams, Mr. Justice Holroyd, Mr. Justice a Beckett, and Mr. Justice Wrenfordsley being in favour of the plaintiff, while the Chief Justice and Mr. Justice Kerfei-d decided in favour of the defendant. The Chief Justice in his judgment held that the right to exclude aliens is a continuing prerogative of the Crown of \-\iv iH'isxK ,ii'1)(;k. axd thkn ciiiMK .irsTicK -jg: lMi<>'l;ind, iiiul tliat a power equivalent to this 2)rerogative has hecii Nested by law in the representative of the Crown in Victoria, and can be exercised l)y the representative of tlie Crown, upon the advice of his responsible Ministers. The argument upon this part of the case, he said " raises for the first time in this Court, constitutional questions of supx'eme importanc(\ We are called upon for the purpose of adjudicating upon the rights of the parties in this case to ascei'tain and determine what is the origin and source of the constitutional rights of self-government belonging by law to the people of Victoria, and, if such rights exist, what is the extent and what are the limits assigned to them by law." The subject he dealt with at length, and while doing so said, with refei'ence to his predecessor, .Sir William Foster Stawell : — • In this place, and by the members of the profession of the law, it is not, and I hope it never will be, forgotten, that the foremost, lomio inttrvaUo, of the pioneers of Victorian legislation, foremost in capacitj', in pnblic spirit, and in nnselfisli devotion to exacting duties and to un- remitting antl stujiendous laljours, was he who afterwards as Chief Justice of tliis Court administered for twenty-nine j-ears the general bod}' of Victorian laws, most of which he had himself designed, pre- pared, and carried into legislative effect. Tlie fact that Mr. Htawell drafted the Constitution Bill and carried it through the Legislative Council is a fact of which I feel that I am at liberty to take cognisance, and it is a fact which imposes on me, and on every judge who may with me allow liimself to notice it, a special duty to seek diligently until we tind that of which the name of its author guarantees the existence, namely, a rational and consistent meaning and purpose in the whole and in all parts of the measure. His conclusions were summed up in the following terms : — I am of opinion, first, that the Constitution Act, as amended and limited by the Constitution Statute, is the only source and origin of the constitutional rights of self-government of the people of Victoria ; secondly, that a constitution, or complete sj'stem of goveinment, as well as a constitution of the Houses of Legislature, Avas the design pre- .sent to the minds of the framers of the Constitution Act, and that that design has found adequate, though obscure, legal expression in that act ; thirdly, that the two bodies created by tlie Constitution Act, the (Tovernment and the Parliament of Victoria, have been invested with co-ordinate and interrelated, but e necessary and that are in its opinion necessary or expedient for the reasonable and proper administration of law, and the conduct of public affairs, and for the security, safety, or welfare of the people of Victoi'ia. From the decision of the Full Court the defendant appealed to the Privy Council, before whom Sir Horace Davey, Q.C., and Mr. Wrixon argued the case on his behalf. The judgment of the Privy Council was delivered b}^ the Lord Chancellor, and was to the effect that no cause of action was disclosed by the jilaintiff", and that the decision of the Full Court should be i-eversed. As the judgment was based upon the construction of the Victorian Statutes, regulating the admission of Chinese emigrants into the colony, it became unnecessary to give a decision upon the other branches of the case ; and the Lord Chancellor therefore declined to express any opinion as to what I'ights the Executive Government of Victoria has, under the constitution conferred upon it, derived from the Crown. Thus the constitutional questions argued before the Full Court remain undecided. C H A P T E K XXV THOMAS niGINBOTHAM l)o;itli of biotliLT Thomas at Brighton — Extracts from Miimfe-s of Iii--f/>tute of Cicil EiKjiiictrt:, from the Aiy/tts, from the Gijjp.sland Time-f. Less than two mouths after the accejjtance })y George Higinbothaiu of a seat on the Bench, he suffered his greatest domestic loss in the death of his Ijrother Thomas, the eugineer- in-chief of the Victorian Railways. Throughout this book very little is said, or ought to be said, of Mr. Higinbotham's home life, but allusion has been made in an earlier chapter to the beautiful friendship that existed between him and his brother. For nearly twenty-three years they had lived together in unbroken affection. The elder brother was the later of the two to emigrate, and arrived in the colony towards the end of 1857. The two brothers lived together for about three years in the small house at Emerald Hill, but towards the end of 1860 they determined to move to Brighton ; and there, upon the shore of Port Phillip, a house was erected, which became one of the most charming homes in the colony. The house was built in villa fashion, with a single floor and a broad verandah running round three sides. A lawn with openings through tea-tree scrub separated the house from the beach, and a beautiful avenue of trees coimected it with the road, by the side of which there was a large and pleasant garden. The planning of the building and the laying-out of the grounds were chiefly in the hands of the engineer brother. On such a subject not much must be said here, but I cannot but bear my testimony that it was a peaceful, a happy, and a beautiful home. The death of Mr. Thomas Higinbotham was painfully •_'7n .MK.MOII; OK (ii:<)i:<;K IlKilXHOI HAM . iiap. sudden. One Sunday morning, the 5th of September, 1S80, he was found dead in his lied. An examination after death was made and an inijuest held, when the jury in accordance with medical evidence, found the cause of death "effusion of serum in the cavities of the brain and heart." So sudden a death orate preparation, infinite skill, severe and constant labour produced a result ^\'hich left XXV THOMAS HiaiNBOTHAM 273 liiiii here without ;i rivaL . . . His personal merits are to be traced ill the stuljboru independence and sterling honesty of his ciiaracter throughout an evil time, — of which our wish is alas ! unavailing that he had lived to see the end — when to be just and upright are insufiicient securities for the welfare and honour — even the life — of the most valued servants of the State. Thomas Higinl)otham left by will all his pi'operty to his brother Groorge, with remainder to the latter's children. To this bequest he attached not a condition, but a request that the family name sliould l)e changed to " Verrier." George Higinbotham, however, felt that his own name was too well known in the colony for him to change it. CHAPTER XXVI THE LAST TWELVE YEARS Change from atU'ocacy to judginent-seat- — Australian Healtli Society — Permissive Bill Association — Victorian Alliance — Queen's Fund- Speech in Town Hall — Presidency of Centennial Exhibition — Withdrawal from tlie position — A question of precedence — Contri- bution to the Strike Fund. The last period of Mr. Higinbothani's life, from tlie time tliat he took his seat upon the Bench to his death on the last day of 1892, was twelve and a half years. A judge's life is ver}'' busy, but it does not furnish much to the biographer. Most judges testify that the change from advocacy to the judgment-seat is a great relief. At first the work seems lighter, but this feeling soon passes, for the judge's work is regular, unintermittent, and sometimes heavy, and it was but for a short time that the sense of relief brought by the change lasted in Mr. Higinbotham's case. In this last period there fall the later developments of the Colonial Office question connected with the Prerogative of Mercy, the attempt to convince Lord Knutsford, and the position of Acting-Governor. But in other matters Mr. Higinbotham did not often appeal' before the public or on the platform. Many wished for more frequent appearances. Now and then he would take the chair at the annual meeting of a public charity. He was for twelve years one of the vice-presidents of the Melbourne Benevolent Asj^lum, but he had not time to do any committee work in connection with such matters. For ten years he was President of the Australian Health Society, and was much interested in its attempts to instruct the public in sanitary matters. " His niAP. XXVI THK LAST TWEL\'K YEARS 275 presence at the quarterly meetings of the society,' writes a friend of the cause, " seemed to exercise a magnetic power over those present, throwing In'ightness over tlie proceedings." By a speech at a largely attended meeting ' in the Melboui'ne Town Hall, Mr. Justice Higinbotham touk a small part in establishing the Working Men's College : but he took a more- active part in the attempt to establish a Working Men's Club in Melbourne. Not only was a handsome subscription ready — that was always ready — but he spoke at a Town Hall meeting, September 17th, 1883, and he accepted the position of president of the connnittee, more to show his sympathy with the cause and the workers in it, than because of any special knowledge in the matter. Apathy on the part of the working- men, and perhaps a dislike in certain quarters to some of the movers in the matter, prevented its success. The Chief Justice was present at a meeting in 1887, when the project was abandoned and the committee dissolved. One deliverance on education and one on religion roused public attention. The former was at the Church Congress towards the end of 1882. The lecture on science and religion, delivered in the Scots Church in the middle of 1883, which led to the secession of the minister of that church from Presbyterianism, is described elsewhere.^ Mr. Higinbotham's strong belief that a community had the right, if it could secure the power, to determine the conditions of its own existence made him, when he turned his thoughts to the su2jpression of drunkenness, an advocate of what is known as Local Option. As the foremost of its advocates, he became, about 1871, President of the Permissive Bill Association, which sought to secui'e restrictive legislation in regard to the liquor traffic. He was not at that time a teetotaler, but he recognised some inconsistency in not being, and later, though he was never pledged, he was a practical teetotaler for twenty years. Ultimately the Permissive Bill Association passed out of existence without having secured its object, though not without having done much work in the education of public opinion. In 1881, when the Victorian Alliance was founded, Mr. Higinbotham was invited to become its President ; but in the meantime he had been removed from the sphere of active politics by his elevation 1 June 26th, 1882. 2 Page 323. T 2 276 MEMOIR OF CKORCK TTKilNHOTirAM cirAr. to the Bencli. Tliis he evidently regarded as a hnv to his acceptance of office in the AlHance, althougli his approval of its aim was evident in many ways, including liberal and regular donations continued to his death. The following is the copy of his letter declining the offer of the pn^sidency : — Briciiton, l\/h Jii/i/, 1881. Dear Sir, — I liavc to acknowledge tlie receipt of your letter of (itli .luly, conveying to n\e the invitation of tlie Executive Committee of the Victorian Alliance for the Suppression of tlie Traffic in Intoxicat- ing Liquors, to accept the position of president of the Alliance. I thank the Committee for the honoiu' whicli they have proposed to con- fer on me, and I have given the subject the full and anxious considera- titm Avhich its importance appears to me to demand. I cannot lielp tlunking that upon tlie clioice of its leading Executive Officer, whether he be called president or by any other title, will largely depend the failure or success of tlie new association. It has been formed, as I learn, on the model, and its policy will be that of the " United Kingdom Alliance." If this be so, its specific distinguishing oljject will be to obtain legislative sanction for the indisjmtabh jjriiiciph that the commun- ity ha>i the right to determine for itxelf whether it is expedient that intoxicating liquor -shaU or shall not he sold. Sympathising, as I warmly do, with your society in tliis object, I firmly believe tliat it is an object which you cannot hope to attain unless you are led by a man who will not only devote himself, like the noble president of the "United Kingdom Alliance," Sir Wilfrid Lawson, to bringing forward a Local Option Bill, session after session, in his place in Parliament, but will also, like him, foster and stimulate public opinion througiiout tlie colony during tiie Parliamentary recess, and give it in every electoral district a definite political aim and purpose. In the present depressed condition of political thought and feeling in Victoria, such feeling in a good cause may be attended witli more than ordinary difficulty, but it is not on that account, in my opinion, less essential to success. When I had tlie honour to hold the office of president of the Permissive Bill Associa- tion, I had occasion to learn how powerless a member of Parliament is, even when he introduces a good and general!}' approved measure, which is opposed by powerful interests, unless he is supported by organised public opinion out of propoitions, it will be invested, and the incom(> of the fund, and the income oidy, will be devoted to the purposes of the fu7id. That income will be managed also chiefly — 1 wish I could say exclusively — by the women of Victoria, women who may Ije assisted by the advice and experience of men, but who will be invited to give a fair discriminating intelligence and sympathetic care and attention in the selection of objects for relief. And it is i^roposed that the assistance of women in all parts of Victoria shall be enlisted in the work of distribution as well as in the work of collection, and either by means of the existing ladies' benevolent societies, or by other and further associations in the country districts, that the faithful and effective management of this fund will be secured so as to repi-esent the intelligence and sympathy of women in all parts of the colony ; and lastly and chiefly, this fund it is proj^osed shall be devoted solely and exclusively to the aid and assistance of women who need its aid. We desire to cele- brate a memorable event in a woman's reign. It is Lady Loch's lielief that that can be most fitly done, and the wishes of our Queen may be most fitly carried out, by instituting a XXVI THE T.AST TVVKLVI': YICARS 279 fund which shall be exclusively devuted to the reliet' of the necessities and wants of her sex. Of course, this compre- hensive description of the object of the fund will include every kind and form of woman's need. It will include not merely oi- alone cases in which women are deprived of tlie aid and ,suj>])ort of husbands, brothers, and sons by accident or otherwise ; it will not be confined alone to the assistance of persons wlui labour with their hands ; it will be extended to every class of women ; it will be extended to all forms of womanly need. The gentlemen who have been engaged in ]>reparing and making the arrangements for this meeting have made an addition to Lady Loch's scheme. It is proposed that the committee of management of the income arising from this fund shall l)e presided over in the first instance, and we hope for a long time to come, by the wife of the repre- sentative of Her Majesty. Now that is the scheme, and it seems to me — if I may ^'enture to say so — a scheme eminently felicitous and exceeding simple. It embraces a considerable number of the objects of other schemes which have been proposed on this occasion. I think it is a scheme that will not provoke a single enmity or a single jealousy. I think it will combiiie many sympathies, and I cannot conceive any more proper foi'm of connnemoration, or one that will better and more fittingly express the feelings of this community in which this proposal has originated. I believe that the feeling — although, ixnhappily, it cannot be universal — in this community, and in all other British communities over the face of the world, is at this time almost unanimous, and that feeling is one of great attachment and loving gratitude to our Sovereign the Queen. I use the word gratitude, although I am sensible that it may be open to misapprehension — I speak my own opinion — when I say that the very best and most just ground for the feeling which exists in this community and elsewhere at present is this — that as British subjects we owe gratitude to the Queen of Great Britain. I do not know that we often enough consider this view of the position of a person placed as Her Majesty is at the head of affiiirs, but it seems to me that a person in her position, whether that person ma}" be an autoci-at or a sovereign of a constitutional system of government, or the head of a republic, is in a position in which he or she (as the case may 2SI) MEMOIR OF CKOROK H[OINBOTHAM r\i\v. be) is able to confer or withliokl countless benefits to her sul)jects. If we consider in how many ways the interests of the people are affected by the want of high qualities in the head of the state, if we consider how the administration of the affairs of a nation may be impeded, how its political and social and industrial })ro MEMOIR OF GEORGE HIGINBOTHAM r, was not tlic only business of tin- president ; there was ])lenty of work to do. The com- missioners were charmed with the suavity and dignity with which the Chief Justice presided over their deliberations, and testified to the thoroughness with which he attended to their business; but some of them thought it was too dignified and too slow. Most of them business men, they wanted to make fastei' progress, and to be more free from the restraint of formalities. The executive commission was divided into several committees, ])ut the president wished each committee to report each week to the executive and to receive instruc- tions from it. The reading of these reports took time, and the meetings became very long. Moreover the president felt it to be his duty as fai- as possible to exercise a personal super- vision over all the business transacted in the Exhibition office. Had Mr. Higinbotham been willing to be an " Ornamental president," taking the chair at meetings and nothing more, the commissioners would have been deliglited. P)ut a mere ornamental figure-head he could not ])e. It was contraiy t(t his whole nature, his ideas of i-ight and wrong. When it was urged that some one must always be present, armed with authority, able to direct woikmen and to settle matters in dispute, the Chief Justice was prepared to obtain leave of absence from his judicial woi'k and undertake the duty him- self ; but it was pointed out that he lacked the necessary business training, and his offer was not accepted. A business man was appointed executive vice-president. To this the Chief Justice had no objection, provided that he would report evei'ything to the weekly meetings of the executive com- mission, and receive either its instructions or its ratification. This, the executive vice-president contended was not practic- able. The details of the controversy are j^ei'haps hardly worth preserving. Ultimately, rather than ])e responsible for ex- penditure that he could not control, to the great regret of the whole community as well as of the commissioners them- selves, the Chief Justice resigned. It should be added further that in the original scheme the expense was carefully kept down. The building had been 284 MKMOIli OF CKORHE HICilNlJOTHAM niAP. erected for tlie Exliihitioii of ISHO ; and the Govenimeiit had intended that, whilst all extravagance was repressed, a charge shoidd l)e made for floor space so that the cost should l)e paid by exhibitors. The Chief Secretary, after obtaining estimates from those who were experienced in such matters, announced to Parliament that a sum of £25,000 would suffice for the Centennial Exhibition. The Exhibition cost ten times that amount ; but it must be remembered the original plan was thrown to the winds, because the com- missioners thought it beneath the dignity of the Colony to charge exhiljitors for space. With respect to the opening ceremony there was an un- fortunate difficulty. The table of precedence in colonial life is perhaps not very accurately laid down, and the Colony has hitherto gone on without a Herald's College. The Chief Justice has always been looked upon as ranking the next to the Governor, but in England the Speaker of the House of Commons is regarded as the first commoner in the land. The Speaker of the Legislative Assembly claimed a similar precedence in the colony ; and the commissioners decided to give him a place in the procession superior to that of the Chief Justice. His Excellency the Governor advised the Chief Justice to protest, and as his protest was unheeded, the latter stayed away from the opening ceremony altogether. For himself he was the last man in the world to claim pre- cedence or to care a button about it, but he w'as always jealous for his office. A daily paper of the next morning gracefully conunented on " Achilles sulking in his tent." There was not an atom of sulk in the composition of the man. It should be added that the Governor at. his official dinner assigned to the Chief Justice a place in accordance with the former practice. To the period immediately after the opening of the Cen- tennial Exhibition the following interesting excerpt belongs. It is an extract from a speech made in September, 1888, by one of the leaders of the A.N.A. (Australian Natives Association). We natives are not ungrateful and not forgetful. Let nie give point to this statement by saying that if at this present moment the native- born in Victoria were called upon to elect f)ne man to the highest position in the State, I feel assured that His Honf)ur George Higinl)otliam would be their chosen man without a lival. xxvr THE LAST TWELVE YEARS 28.'5 In 1890 the second of the great Austrahan strikes took place. It was the maritime strike that began with the officers of the intercolonial steamers, whose demands were certainly just. The men j(jined the officers, and their cause was taken up by the Trades Hall. The gas-stokers joined in the strike, and thei'e was a stupid attempt to leave Melbourne in darkness. The closing of the ranks on the side of labour was met })y a similar closing on the side of capital. An Employers' Union was formed. The Trades Hall Council requested a confei'ence, but the Employers' Union, not thinking that any advantage would come from such a conference, declined. Then the following letter was written : — Law Courts. Tlie Chief Justice presents his comj)liinents to the President of the Trades Hall Conncil, and requests tliat he will he so good as to place the amount of the enclosed cheque of £50 to the credit of tlie strike fund. While the United Trades are awaiting compliance with their reasonable request .for a conference with the employers, tlie Chief .Justice will continiie for the present to forward a weekly contribution of t'lO to the same object. No act of the Chief Justice during the latter part of his life created anything like the storm that was caused by this act. It was no doubt due to his intense sympathy with the cause of labour. In the letter emphasis is to be placed upon the word "reasonable." It seemed to him that the request for a conference was i"easonable, and that the employers in refusing such a conference were overbearing the men by the weight of their wealth. In such a conflict no one who knew him could doubt for a moment on which side his sympathy would lie. He had deliberately accepted Trades Unionism, and rejoiced heartily in the prosperity of the working classes in Australia, which he rightly or wrongly attributed to Trades Unionism. He looked upon a strike as the natural weapon of the Trades Union, a weapon often more hurtful to the wielder. The fag end of a chapter is not the place to discuss so grave a question, but the strike is a part of the war organisation of labour not of the future peace organisation, to whicli, it may l)e through serious adversity, labour is surely tending. That a strike may sometimes be successful is shown by the famous Docket's' Strike. To the Australian fund that 286 MKMOIIJ OF CF.ORCK HTCIXT.OTHAM en. xxvi played so important a part therein l)()tli the Cliief Justice and the present writer helped to subscribe the liist hundred pounds. In the case of the Melboui iic maritime! strik(> it must be confessed that the " gracious gift " (so it was called) was quite ineffectual. The conference was never granted, and the wits used to declare that the weekly subscription should go on indefinitely. Those however who received it were satisfied when the whole strike was at an end and the fund was closed, — a period of some fifteen weeks. The gift had an effect of Avhich the giver never dreamt in attaching to him still more closely the admiring love of the working men. By others the act was violently condemned. Many especially condemned the use of the title of his office. As a private individual, they said, he had a right to show sympathy, no right as Chief Justice. It was even thought that he and oth(»r judges might have been asked to arbitrate. How could he, if he had taken a side '^ To this the natural answer is that he could not separate himself from his office, that he wished to give the greatest force to his expression of sympathy, and that he had not taken a side upon the main points at issue, merely on the question whether a conference should be conceded. The following correspondence may fitly close this chapter. Only the name of the correspondent need be withheld. Ort (,!,<■ r l.sY, 1890. Dear Sir, — I will not apologise for addressing you, as the respect I hold towai'ds yon as an intellectual man and leader of thought tleniands sincerity, knowing you to be ever ready to help those who " see through glass darkly." I am a young man of twenty-seveu years of age, and since I have been able to think on tlie great problems of life, liave always looked upon you as my High Priest Intellectxial of the 8outheiu Hemisphere. I there- fore now most respectfully request you to explain your action in supply- ing the Trades Hall with funds, knowing you to lie tlie last man in tlie world to take said action without good cause and sound reasons. To which His Honour made' reply : — Ortohtr -ifJi, 1890. I trust that you will not deem me guilty of discourtesy or of culp- able disregard of what miglit be inider other circumstances an a^jpeal of imperative foice, when I inform you tliat if my action does not sufficiently explain itself, I have cogent reasons for declining to furnish at present fuller or more minute explanation than tiiat witii which you are aU*eady acqviainted. CHAPTER XXYIT CONSOLIDATION (By Mr. Donald Jfarl'lnnoii.) l!ii|i()rt;iiico of Mr. Higinbotham's Consolidation Work His orderly niiud — First Consolidation of Statutes in 1804 and 1865, wlien he was Attorney-General — Former condition of the law — (Qualities required in consolidating — Rides laid down — Patient lahonr of Attorney-lieneral — .Speech of Febi'uary 4th, 1 864 — How to keep np Consolidation A suggestion — Dr. Hearn's (.'ode — Evidence of the Chief Justice — Second Consolidation of 1890, begun by the Chief .Justice in 1888 — The labour of it Tiie sole reward — Value of tlu^ woik. Perhaps no part of Mr. Higinl)othani's work establishes liis claim to the grateful remembrance of his countrjTnen more thoroughly than that which was devoted to the simplifi- cation and improvement of our laws. To have twice success- fully uiiflertaken, in the midst of pressing occupations, the consolidation of the statute law of a country like Victoria, places those wlio enjoy its benefits under no small obligation. Professing lawyers have too often been found in the other camp ;. experience has taught men to expect legal reforms rather from l)ookish theorists or not wliolly flisinterested autocrats than from those who live by the law. Yet the motives wdiicli prompted the Consolidations of 1864 and 1S90, and supported the immediate adoption of Dr. Hearn's (jrenei'al Code of 1(S85, are not difficult to discover. Mr. Higinbotham had an uncommonly oi'derly mind ; confusion and doubt were extremely distasteful to him. As appears from the evidence he gave before the committee which consiflered th(» General Code, he ccmtemplated a possible 288 iMKMOIR OI'^ ( JKOIK IK UK ; IXliOTIIAM nrAi-. codification of all liuiiian knowledge. The tliought that law should he the monopolised knowledge of a privileged class was repugnant to him ; that Mr. (afterwards Sir) Robert Molesworth and Mr. Adamson should Ije the oidy two men in the community who knew anything about the criminal law, was, in his view, little less than a public scandal. " Law not understood," to use his own words, " naturally has no place in the intelligent judgment and th(! affections of the people. Neither can law be supreme in a community that does not cherish a loyal attachment to the law." In additifm he felt an intense loyalty to the law, and especially towards the statute law, inasmuch as it was the deliberate expression of the national will. His own feelings were exactly expressed, when, quoting the words of the famous Hooker before Parlia- ment one memoral)le day in 1890, he said, "Law is the mother of peace and joy. All things on earth do her homage ; the very least as feeling her care, the greatest as not exempted from her powers." The consolidation of 1864-5 began in 18G3. Mr. Higin- botham was then Attorney-General in the McCulloch Ministry. It is admitted that he not only designed the scheme oi con- solidation, but that he also superintended its execution. Consolidation, as distinguished from codification, is the reduc- tion into a systematic form of the whole of the statute law relating to a given subject ; its true effect is to combine in a consecutive form the provisions scattered about the statute book, to avoid repetitions, and remove inconsistencies. In order to rightly estimate the character of the work under- taken in this instance, it is necessary to undei'stand in a general way the condition of our Acts of Parliament at that time. It is undisputed that the structure, arrangement, and method of publication of the statutes were open to the most serious objection. Partly through social conditions, in which men's minds were occupied more with material matters of personal progress than with the advantages of legal reform ; partly through the accidents of the first settlement, the laws of those days were constructed on makeshift principles, or were inherited merely, or were adopted without much thought. They suggest the conclusion that they were passed only for immediate requirements, so true is it that the laws of a nation generally fit its life. The statutes, as the Attorney- XXVII CONSOLIDATION 289 General complained, were based habitually on English legis- lation, and provisions of English law, applicable only to a condition of affairs existing in England, had been introduced here without even an attempt at rude adaptation to the wholly unsuitable conditions of Victoria. The result in many cases was almost grotesque. There wei^e in force, for example, enactments with regard to copyhold, a form of tenure never known in this country. Instances of this might be multiplied indefinitely. Even among what may be called the indigenous acts, and those which were more perfectly acclimatised, slipshod draftsmanship was only too frequent. Amendment was patched on to amendment until even pro- fessional persons were puzzled to say what was law and what was not. Nor was the form in which this confused medley of errors, anachronisms, and legislative misfits, was available for the public a subject of congratulation. The two volumes of Adamson's edition and six or seven sessional volumes, which constituted the books of the law, were inade([uately indexed : lawyers were fully taxed to discover the whereabouts of any enactment, and, as has been already observed, only two men in A'^ictoria had a passable acquaintance with the criminal law. It was out of this chaos that jNFr. Higinbotham proposed to evolve order. Consolidation is not a work which calls for any special exercise of genius. Neither exact legal knowledge nor excep- tional skill in drafting is required for it. To group the various provisions in a natural sequence, to eliminate all useless or obsolete matter, above all things to omit nothing — this is the chief end of the consolidator. It is a tedious and laborious leather than an original undertaking. In Victoria, in 18G3, the statute law was not very voluminous; compared with the English statute law of even date, with its 18,000 acts set out in one hundred volumes, it was insignificant. It was computed that there were in all some 370 to 400 acts that required consolidation. Under the circumstances, there is no doubt the Attorney-General adopted the most suitable instrument for executing his scheme. Law commissions in England had been a failure, or at best but a qualified success. In thirty years, so it was stated at the time, three of them had cost £50,000, and the only result was an index to the statutes and a criminal bill. Besides, with u 290 MEMOIR 01'^ (GEORGE HIGINBOTHAM chai-. a commission it was almost impossiljle to (jbtain either unity in design or uniformity in execution. The idea of a com- mission was accordingly abandoned, and the Attorney-General proceeded on his task with the assistance of a small number of draftsmen, among them Dr. Hearn and Mr. Travers Adamson, whose Criminal Law and Practice Act was the most successful piece of work in the consolidation. The draftsmen each worked upon different bills. They were limited in their operations by strict instructions. As to substance they were told to construct consolidating bills and nothing else. As to form and arrangement they had a freer hand. " Alterations in the form and language of sections of existing acts were allowable, wherever such appeared absolutely necessary ; but wherever the terms of a colonial act were the same as those of an English act no change in the form or language was to be made." The only substantial alterations permitted were those which might be deemed upon consultation with a law officer to be urgently required, and not to be calculated to cause differences of opinion, and those which consisted in intro- ducing recent amending English legislation, where the corresponding English principal act was already in force in Victoria. Finally, all alterations had to be printed with the rules for the information of Parliament. The draftsmen had most of their bills jDrepared by the beginning of 1864. Their method of working appears to have been to prepare each bill in strict compliance with instruc- tions, and then to revise them in detail with the Attorney- General. At any rate it is sufficiently evident that the latter went conscientiously through every line of the bills, and satisfied himself that they were at once complete and, humanly speaking, accurate. The labour involved in this minute examination would have been considerable to a man of ample leisure ; for one who had engrossing public duties to attend to it must have been little short of overwhelming. No ' one less endowed with the gift of marvellous patience would have carried it to a successful issue. The first batch of bills, some twenty, was introduced into Parliament on the 4th February, 1864, when Mr. Higinbotham explained his scheme in an interesting speech. He explained that he held himself responsible for the sub- XXVII CONSOLIDATION 291 stantial accuracy of the bills ; in return he asked Parliament to pass them without a discussion of details. " As a member of the House he was not willing to accept at the hand of any Government a bill or bills which altered the law in any material respect, unless he had an opportunity of considering and discussing the measures." But he gave his word that there were no conscious alterations of substance, and Parliament, by accepting a large mass of law upon his personal covenant, proved that representative government is not incompatible with codification, and undoubtedly made the way of the future codifier easier. The Consolidating Acts were passed during 1864 and 1865. There was some discussion upon general principles ; the details were generally accepted as correct ; few amendments were made, and, as twenty-five years' history has shown, wisely so. This con- solidation did not profess to be more than an attempt t(^ place the statute law upon a more intelligible footing. " The value of the acts," as Mr. Ireland pointed out, "consisted in having brought together a number of scattered acts, and thus formed the basis for future amendments." No one saw this more clearly than Mr. Higinbotham. He did not claim for his arrangement of the acts that it was an orderly or scientific one. It was a rough classification ; but it would form the basis of a more scientific classification which he hoped to see at some future time. A matter which was agitated in debate during the passage of the bills deserves a jDassing mention here. Assuming that the statute law is once consolidated, how is it to be kept in that condition i Amendments were to a large extent respon- sible for the existing confusion ; how were they to be pre- vented from causing similar mischief in the future 1 It was a strong part of the Attorney-General's argument that over-in- dulgence in amendments had been productive, not only of confusion, but of heavy expense to the country. He produced a return which showed that a Local Government Bill had cost in the first instance, for drafting and printing, £151 ; and that the printing of amendments had cost £694. The learned consolidator's solution of this practical difticulty appears to the present writer the weakest part of his scheme. Shortly his proposal was that the Consolidating Acts should be kept in permanent type ; that every one who desired to introduce u 2 •_>})•_> MKMOli; OF CKORCK HKWNBOTHAM