Parkinson, Charles --- "George Higinbotham and Responsible Government in Colonial Victoria" [2001] MelbULawRw 6; (2001) 25(1) Melbourne University Law Review 181

George Higinbotham And Responsible Government In Colonial Victoria

CHARLES PARKINSON[*]

[In the latter half of the 19th century in colonial Victoria, George Higinbotham, Attorney-General and later Chief Justice of the Supreme Court, propounded and acted upon a theory of responsible government. This theory is constituted by four propositions which this article considers in turn. Higinbotham held that:

The Constitution Act 1855 (Vic) provided Victoria with a full instalment of responsible government over all colonial matters.
The role of the Governor in Victoria was equivalent to that of the Queen in Great Britain — a constitutional monarch.
The role of the Governor in Imperial concerns was as an Imperial officer acting on instructions from the Colonial Secretary in London.
The judiciary was a subordinate element of the executive government, but maintained total independence in its judicial functions.

The full nature of this theory has not previously been explored or considered as a coherent entity. Over the intervening years, there has been a general move towards the ‘Australianisation’ of the Crown, part of which has included the Australian government’s taking control of its own external affairs. In this process, Higinbotham’s vision can be traced.]

I INTRODUCTION

George Higinbotham was arguably the most influential figure in the development of responsible government in colonial Victoria. The period of colonial self-government in Victoria lasted from the passage of the Constitution Act 1855 (Vic) (‘Constitution Act’) until Australian Federation in 1901, and Higinbotham was a close observer of the political process from its commencement until his death in late 1892. First as Attorney-General and later as Chief Justice of the Supreme Court of Victoria, Higinbotham propounded a theory of responsible government that was considered ‘quite startling at the time’.[1] Nonetheless, by the end of the 19th century, part of Higinbotham’s views had been established by convention. In this process, his assertion that constitutional practices determined the colony’s public law became a compelling factor in having them established as law. Zelman Cowen quoted with approval Kenneth Bailey’s comment that, ‘statesman rather than lawyer, Higinbotham had the future with him.’[2]

This article examines Higinbotham’s theory of responsible government. It considers how compelling Higinbotham’s theory was as a set of political principles, the legal validity of these ideas, and the extent to which they eventually came to be accepted. Surprisingly, although aspects of Higinbotham’s legal views have been touched upon in various works — such as Stuart Macintyre’s short biography of Higinbotham,[3] Gwyneth Dow’s work on Higinbotham and education in Victoria[4] and Kenneth Bailey’s chapter in the Cambridge History of the British Empire[5] — no substantial study has been undertaken. Edward Morris, Higinbotham’s son-in-law and headmaster of Melbourne Grammar School, commented extensively in his 1895 biography upon Higinbotham’s constitutional views,[6] but his work lacks critical judgment. Alfred Deakin thought that Morris’s work did not do justice to Higinbotham, writing that his ‘influence was more magnetic, his thoughts — political, religious and social — more radical, and his will more dominating than Morris’s Memoir describes’.[7] It remains, however, the fullest source of information because, at Higinbotham’s request, his papers were burnt on his death.[8] In an address to the Victorian Historical Society in 1925, Ernest Scott considered Higinbotham’s concept of public law to be ‘important and interesting enough’ to warrant special consideration.[9] Unfortunately, such an endeavour was never carried out. This void in scholarship prompted Geoffrey Serle to comment in 1971 that a proper evaluation of Higinbotham’s legal views was ‘biographically crucial’[10] — a situation that had not yet been remedied.

Higinbotham, ‘one of the most attractive products of Australian democracy’,[11] is too little remembered today. The statue of Higinbotham in judicial garb in Treasury Place, Melbourne, is the only prominent reminder of his importance. Even now, as public debate focuses on the centenary of Federation, scant attention has been paid to Higinbotham’s role in defining colonial constitutional government in the latter half of the 19th century.

Higinbotham’s conception of responsible government drew a simple distinction between Imperial matters, such as defence, on which the Imperial government could instruct the Governor as an Imperial officer, and internal affairs of domestic government, on which the local executive would be the deciding voice.[12] He asserted that the executive government and the Parliament of Victoria possessed ‘plenary rights of self-government in internal affairs for the people of Victoria’, identical to Westminster’s plenary power over ‘the internal affairs of Great Britain’.[13] Further, he held that the government of Victoria alone had ‘the right to influence, guide, and control [the Governor] in the exercise of his constitutional powers’,[14] and that the Governor enjoyed ‘the same freedom and independence with regard to [the colony] that Her Majesty does in Great Britain’.[15] The basis of these assertions was Higinbotham’s belief that, with the Constitution Act, Victoria received (in terms used by Williams J in Toy v Musgrove) a full ‘instalment’ of responsible government.[16] Therefore, Higinbotham believed that many of the instructions to Governors from London were void as already covered by, or illegal as inconsistent with, the system of responsible government conferred by the Constitution Act.[17]

This article will consider in turn the four propositions that constitute Higinbotham’s theory of responsible government. Higinbotham held that:

The Constitution Act provided Victoria with a full instalment of responsible government over all colonial matters.
The role of the Governor in Victoria was equivalent to that of the Queen in Great Britain — a constitutional monarch.
The role of the Governor in Imperial concerns was as an Imperial officer acting on instructions from the Colonial Secretary in London.
The judiciary was a subordinate element of the executive government, but maintained total independence in its judicial functions.

Each part will consider one of these propositions and examine how compelling it was in its day and whether it had any legal validity at that time. The article will conclude by considering how Higinbotham’s views reflect aspects of Victorian and Australian constitutional development. First, however, the article will discuss Higinbotham’s role in the workings of responsible government in the second half of the 19th century, in order to place his theory within its historical context.

II BACKGROUND

Writing for The Bulletin in 1893, Price Warung recalled Sir Redmond Barry’s comments about Warung’s plan to produce a parliamentary history of Victoria. Barry had written: ‘Particularly should every thing bearing upon Mr Higinbotham’s career be collected. The historian will want to know what sort of a man he was that challenged the Constitution and — and the Empire.’[18]

George Higinbotham was truly one of the remarkable figures of his era. He was born in Dublin in 1826 and, like so many early members of the Victorian Bar, was educated at Trinity College, Dublin. After graduating with a Bachelor of Arts in 1849, he worked as a journalist for the London Morning Chronicle and entered Lincoln’s Inn. Just six months after being called to the Bar, he departed for Victoria, arriving on 10 March 1854. He divided his time between law and journalism, accepting the editorship of The Argus from 1856–59. In the Victorian Legislative Assembly, he represented the boroughs of Brighton from 1861–71 and East Bourke from 1873–76. From 1863–68, he served as Attorney-General in the Ministry of James McCulloch.[19] He was the dominant figure in that Ministry and, it was said in 1904, ‘exercised a sway over the House which in Victoria has never been equalled’.[20] George Rusden, the idiosyncratic Australian historian and political opponent of Higinbotham, wrote that his ‘personal character was so much respected that the Cascas of Victoria sheltered themselves under his name’.[21] As ‘Higinbotha-mania’ struck the colony,[22] a squatter recorded in 1865 that ‘[t]here is but one God and Higinbotham is his Prophet’.[23] It was the events of the 1860s that shaped Higinbotham’s views on responsible government, and ‘his thoughts were chiefly concerned with the later developments’[24] of the principles he then espoused.

All Higinbotham’s assertions about responsible government derived from an underlying belief in democracy, that the will of the people should triumph for ‘self government is the most precious & also the most responsible right of communities’.[25] Morris noted that Higinbotham was greatly influenced in his constitutional views by Alexis de Tocqueville’s Democracy in America (1834).[26] This is indicated by some of his comments as editor of The Argus:

We cannot, so long as the electoral system endures, avoid the evil of subordinating the will of some men to that of some others. If there is a contest one side must be beaten in order that there may be conclusion. In other words the minority must give way to the majority ...[27]

Given such views, it was almost inevitable that Higinbotham would come into conflict with the system of government in Victoria.

The 1855 Constitution Act did not create a wholly democratic system. In December 1852, the Secretary of State for the Colonies requested the Victorian Legislative Council to prepare a constitution closely approximating that of Westminster to institute responsible government. The architect of the Constitution Act was William Stawell, Attorney-General in the nominated Legislative Council and later Chief Justice of Victoria. The model submitted to the Colonial Office incorporated two Houses of equal power, except that the Upper House could reject, but not amend, money bills. Stawell’s preference for an elected Upper House with restricted suffrage over a nominated second chamber was aimed at checking the potentially wild schemes of a popularly-elected Assembly.[28] During the debate over the proposal in the Legislative Council, Charles Griffith noted that, if the Council should ‘choose to hold out against the united wishes of the country, there is no power short of a Revolution which can affect it.’[29] It was equally apparent to Frederic Rogers, the Permanent Under-Secretary in the Colonial Office, that, if the proposed Constitution Bill were enacted, a constitutional conflict would sooner or later occur.[30] While responsible government came into being in late 1855,[31] the result was that, as Geoffrey Serle aptly noted, a ‘grotesque constitution nullified the democratic potential’.[32]

The first significant phase of Higinbotham’s activity was when he accepted the post of Attorney-General in 1863, and led the Assembly against the Council in two constitutional deadlocks — in 1865–66 and 1867–68. He quickly became ‘the brains, the heart, and the right hand of the Ministry’ with Cabinet meeting in his chambers.[33] The character of the Chief Secretary, James McCulloch, in part explained Higinbotham’s dominance. In 1862, the conservative tone of McCulloch’s politics was widely noted, with his later adoption of radical policy being attributed to expediency alone.[34] Henry Gyles Turner, a contemporary, wrote in his history 40 years later that ‘the retention of place and power was the main influence that led [McCulloch] to accept the verdict of the majority, and to trim his politics to suit them.’[35] Turner, however, was a conservative and a political opponent of Higinbotham. Equally, on meeting McCulloch, the visiting Englishman, Stanley Leighton, thought him a man ‘without any clear political principles ... acting against his own better judgment to please the people.’[36]

In the course of the 1864 election campaign, Higinbotham attacked a small but powerful class for its monopoly of the Council ‘to the exclusion of the mass of the people.’[37] The basic political division within the colony was between the Houses and their respective supporters. While the Assembly was drawn mainly from the professional, small landowning, manufacturing and trading classes, the Council, with its much larger property franchise, was drawn from big business and pastoral interests.[38] Although the great contests between the Houses were fought over the Assembly’s sole right to determine the colony’s finances, to most contemporaries, both conservative and radical, they appeared basically as conflicts between classes.[39]

At the 1864 general election, the McCulloch Ministry was returned on a platform of tariff reform.[40] However unpalatable the adoption of protectionism was to the Attorney-General,[41] once the Ministry entered the dispute with the Council, every consideration shrank before the desire for victory.[42] Owing to the Council’s history of obstruction,[43] the Ministry chose to tack the Tariff Bill onto the Appropriation Bill. Higinbotham and the Solicitor-General, Archibald Michie, contended that the tack was in strict conformity with English precedents.[44] Although the Standing Orders directed Parliament to look to Westminster as it was in 1856 for precedent,[45] according to the former Governor, Sir Henry Barkly, the Council’s relation to the Assembly ‘differed so widely from the mutual relations which centuries confirmed between the House of Lords and the House of Commons’ that Imperial precedents provided minimal guidance.[46] The Assembly passed the composite Bill and the collection of the new duties immediately began. By tacking the Bill, the Council would be compelled under the Constitution Act s 56, according to the Governor, Sir Charles Darling, either to accept the whole Bill, or to reject it, thereby throwing the administration into disorder.[47]

The Council established a Committee that found the tacking of Bills unconstitutional. The President of the Council, Sir James Palmer, expressed the objection of the House as follows: ‘If the practice of joining dissimilar matters is permitted, especially in Appropriation Bills, the effect will be to abolish the right of veto possessed by this House to Bills of Supply.’[48] In response, the Treasurer, George Verdon, thought that to uphold responsible government and the financial supremacy of the people’s chamber, the Assembly was justified in creating a new precedent ‘in order to carry out that which was more important than any practice.’[49] Equally, Higinbotham insisted that the absence of precedent did not necessarily mean unconstitutional practice.[50] The Council, however, was not intimidated and, on 25 July 1865, blocked supply.

In an attempt to resolve the crisis in late October 1865, the Council sought to refer the constitutional issue of tacking to the Judicial Committee of the Privy Council. McCulloch, Higinbotham and Michie all said that it was not a legal matter, but one of political usage. That said, the Ministry took the issue to the electorate in early 1866. During the campaign, the Council was able to make great political mileage because the firm of McCulloch, Sellar & Co, of which the Chief Secretary was a partner, paid £700 less under the new tariff scheme.[51] Nonetheless, the Ministry was returned with an increased majority comprising, in Turner’s words, ‘quite a crowd of nonentities’.[52] In his seat of Brighton, Higinbotham was returned by just 46 votes, only, according to Rusden, because of protectionists in the rural areas of his constituency.[53] The campaign was publicly fought out between The Age, which supported the Ministry and its protectionist policies, and The Argus, which favoured free trade. In this atmosphere of partisanship, The Argus compared Higinbotham’s ‘determination and recklessness’ during the campaign to that of a cornered rat.[54]

With the return of Parliament, the Assembly again passed the tacked Bill, and again the Council rejected it. The McCulloch Ministry then resigned in protest at the Council’s disregard for the people’s will, but was soon reinstated when no alternative Ministry could be formed. It was at this juncture that the Colonial Office intervened because the Governor, Sir Charles Darling, had been personally implicated in the Ministry’s ‘curious stratagem’ of borrowing funds from a bank to keep the government operational during the blockage of supply, and so had become a partisan in the political struggle.[55] By recalling the Governor, the Colonial Office forced the Assembly to reach a compromise with the Council. Although the Council passed the Tariff Bill, the preamble that asserted the Assembly’s pre-eminence over finance, which Higinbotham saw as the reason behind the crisis, was amended to recognise the Council’s equal rights in legislation.[56] Higinbotham later wrote that it was owing ‘solely to the influence of the Colonial Office that the claims of the Legislative Assembly to the exclusive control of the public finances received at that time a decisive check, from which they have never since recovered’.[57]

The second crisis began because Higinbotham could not let the issue rest. The nature of Darling’s recall meant that he would not receive a pension from the British government. Thus, on 1 August 1867, Higinbotham proposed a £20 000 grant from the Victorian government to Lady Darling in lieu of a pension, which was tacked onto the Appropriation Bill for that year. Higinbotham furiously declared that the vote should be passed in silence:

It is not merely a compensation to Sir Charles Darling, it is not merely a renewal of the expressed opinion of this House on his merits, but, when it is passed ... [i]t will be the censure of the Legislative Assembly upon the constitutional faction of 1865 ... I will tell those honourable members that I have always considered the faction to which they belong as the very vilest faction by which this country has been cursed.[58]

It is not surprising that the exact issues underlying the Darling Grant Crisis were generally unclear to the public in England,[59] since at its basis was Higinbotham’s desire to see his viewpoint triumph. Such were Higinbotham’s feelings that he was not beyond using dubious tactics to entrap the Council — albeit unsuccessfully — into passing the grant.[60] The Council asserted that it was a ‘literal or substantial violation’ of colonial regulations to make grants to current employees, and once more that it was coercive and unconstitutional to tack money bills.[61] But Higinbotham wanted his views to triumph, stating to the Assembly, ‘let us regard it as a contest in which there should be no parley and no truce.’[62]

The Ministry once again tried to force the Council’s compliance by placing the issue before the people in early 1868. During the campaign, Higinbotham declared to a large meeting that all that was required for good government was a representative of the Crown and the representatives of the people. The plutocratic Upper House falsely claimed to represent both. The people returned the Ministry with an increased majority.[63] At this stage, the Governor, Sir Henry Manners-Sutton, received instructions from the Colonial Secretary not to permit the Assembly to send the tacked Bill to the Council. The McCulloch Ministry immediately resigned because ‘Her Majesty’s Government ... have seen fit to depart from their former determination that the controversy should be locally decided’,[64] but was soon reinstated when an alternative Ministry could not be formed. The crisis ended uneventfully when Darling was reinstated in the Colonial Service on condition that he advise the Victorian government that neither he nor his wife could accept the grant.

Although the crises were at an end, the central matter in dispute — whether it was the Assembly’s sole right to determine the financial arrangements of the colony — was not settled but only avoided. Commenting in 1874 on the constitutional crisis, James Grant asserted that the ‘Assembly ultimately triumphed on that occasion.’ To this Higinbotham appropriately retorted: ‘No. To me the result appears to be utter defeat, and the events that followed that victory, as he calls it, seem to confirm the impression that the defeat was far more severe than was first supposed.’[65] Higinbotham viewed the relationship between the two Houses as strictly governed by the Constitution Act and Victorian constitutional usage, but, fundamentally, Parliament’s role was to give expression to the will of the majority of the people. When the McCulloch Ministry finally fell in 1868, Higinbotham thereafter refused political office for ‘he was thoroughly tired of the whole contest, and sore that his principles had not really triumphed.’[66]

This first crisis in Victoria drew significant attention in England, with repercussions throughout the Empire. Walter Bagehot commented in The English Constitution:

The evil of two co-equal Houses of distinct natures is obvious. Each House can stop all legislation, and yet some legislation may be necessary. At this moment we have the best instance of this which could be conceived. The Upper House of our Victorian Constitution, representing the rich wool-growers, had disagreed with the Lower Assembly, and most business is suspended. But for a curious stratagem, the machine of government would stand still.[67]

Already the 1865 deadlock had induced Lord Carnarvon, as Secretary of State for the Colonies in 1867, to insist that the Upper House of the new Dominion of Canada be so constituted as to allow such a situation to be resolved.[68] However, opinion on the cause of the deadlocks differed. Rusden saw democracy and a wide suffrage as one of the causes of the constitutional problem; in a letter to Charles Dickens in late 1868 he likened Australian voters to ‘unthinking machines’.[69] On the other hand, the New South Wales judge Sir John Dickinson thought the crises were caused because the colonial constitutions were ‘worked clumsily’.[70] He added that, with nominated Councils and suffrage for households of at least six months residence, ‘colonial constitutions would be almost practically perfect’.[71] Nominated Upper Houses that could be increased in membership on the recommendation of the leader of the Lower House were less likely to suffer deadlocks than one elected on a narrow franchise and immune to double dissolution.

The second phase of Higinbotham’s activity occurred when he was elevated to the Bench of the Supreme Court of Victoria in 1880 and became Chief Justice in 1886. Since the end of the crises, Higinbotham believed that ‘no intelligent opinion of any kind whatever exists upon [questions of public law] in any section or class of the community’.[72] In fact, Higinbotham found the situation so deplorable that in 1882 he cancelled his subscription to the Bacchus Marsh Express because ‘times are changed and it is no longer possible for you, now when politics are dead, to give much attention to large political questions’.[73] With his elevation to the Bench in 1880, he considered it his ‘duty, in [his] judicial capacity as well as personally as a Victorian politician’ to uphold Victoria’s public law.[74] Also, it is interesting that as a judge he concluded a personal letter: ‘I claim the right of still calling myself a Victorian politician’.[75] It was with this attitude that he used the position of Chief Justice to put constitutional issues back on the public agenda.

The analysis of Higinbotham’s political principles will begin by considering the linchpin of his philosophy, a proposition that was only to receive adequate legal expression when Higinbotham was serving as Chief Justice. That is, that responsible government did in fact exist in colonial Victoria. Before addressing this question, however, it is necessary to understand what was meant by the term ‘responsible government’. In 1933, the constitutional historian A C V Melbourne argued that the term ‘responsible government’ prior to 1856 in colonial New South Wales had two meanings.[76] Its first and dominant meaning was self-government: colonial control of certain subjects deemed within the colonial sphere. By 1852–53, however, the term had taken on a new meaning with the realisation by colonial leaders that self-government could only be achieved with ministerial responsibility: government by an executive responsible to an elected legislature. Henceforth, according to Melbourne, the term responsible government had a ‘general currency’ of meaning ministerial government.[77] The ‘two meanings’ thesis has received significant criticism, notably for its implicit reasoning that there existed a discrete and uniform understanding of responsible government that changed from self-government to ministerial government over the period 1840–50.[78] Melbourne’s argument ignores the fact that the term ‘responsible government’ is used in many different contexts by different people, including: to reflect the extent to which a territory is self-governing, the situations in which the Governor acts on ministerial advice, and the level of responsibility by ministers to Parliament. Such is the fluidity with which the term is used that it is perhaps not surprising that Higinbotham described the difficulties in specifying the details of responsible government as ‘quite insurmountable’.[79] That said, Melbourne’s ‘two meanings’ thesis is still useful in understanding what was meant by responsible government. Certainly it was possible for a colony to have responsible government, even if the power of its legislature was limited with regard to local matters. Hence, when members of the judiciary spoke of whether a colony had a ‘full instalment’ of responsible government, they were referring to the powers of self-government conferred by the British government to the colonial legislature. It is the extent of these powers that will be considered.

III DID COLONIAL VICTORIA HAVE RESPONSIBLE GOVERNMENT?

The legal basis for Higinbotham’s theory of responsible government was that the Constitution Act was ‘the only source and origin of the constitutional rights of self-government of the people of Victoria’.[80] Unfortunately, the Full Bench of the Supreme Court disagreed with him on this point. The proposition was clarified in the 1888 case of Toy v Musgrove,[81] which ‘forms a sort of link between Higinbotham, Chief Justice, and Higinbotham the practical politician.’[82] Sir William Harrison Moore considered it the ‘greatest of all cases’ for it gave Higinbotham in his dissenting judgment the

opportunity of expressing and applying judicially the views as to the nature of responsible government, which, as a politician, he had induced the Legislative Assembly to affirm by resolution and which, as one gentleman to another, he had laid before the Secretary of State.[83]

The case, which provided Higinbotham with a rare opportunity to propound his political philosophy, has been described by Zelman Cowen as ‘almost unique in the law reports, so far as it provides an elaborate examination of the scope and nature of responsible government by majority and dissenters alike.’[84]

The case arose over the issue of Chinese immigration. On 27 April 1888, the steamship Afghan arrived in Port Melbourne carrying 168 Chinese passengers, of whom 67 or 68 wanted to land.[85] This caused a public outcry, with the Premier, Duncan Gillies, promising to halt the entry of all Chinese into the Colony.[86] To stop any passengers from disembarking, the Premier threatened to prosecute the master of the ship under the Chinese Act 1881 (Vic) ss 2–5 for exceeding the stipulated quota of Chinese entering the Colony from one ship.[87] The vessel left for Sydney,[88] and on 5 May 1888 a writ was issued in the Supreme Court of Victoria on behalf of one of the passengers, Chung Teong Toy, against the Collector of Customs, Musgrove, claiming damages of £1000 for being excluded from the colony.[89]

The legal questions were referred directly to the Full Bench of the Supreme Court.[90] This was only the second time in the Court’s history that all six justices sat, while the Attorney-General represented the Crown in person for the first time in over 12 years.[91]

The decision of the Court turned upon whether the Constitution Act, supplemented by the Governor’s Commission and Instructions, conferred upon the Victorian government the power to exclude foreigners. In short, was Victoria given a full measure of responsible government over its internal affairs or merely a series of powers covering specific heads? On this the Court divided, with Williams, Holroyd, a’Beckett and Wrendfordsley JJ in the majority, and Higinbotham CJ and Kerferd J dissenting. The majority held that the grants of power did not include the power to exclude aliens, relying on the absence of any specific grant of such a power, or any express grant of general executive power.[92]

Williams J, who publicly expressed the view in 1888 that Australia should separate from Britain,[93] described Higinbotham CJ’s assertion that the Victorian government had full authority over internal affairs as ‘a proposition which is not only startling but positively unintelligible to me’.[94] With ‘great reluctance’ he concluded:

I have been for years, in common with, I believe, very many others, under the delusion (as I must term it) that we enjoyed in this colony responsible government in the proper sense of the term. I awake to find, as far as my opinion goes, that we have merely an instalment of responsible government. It would have given me sincere satisfaction to have been enabled, in pronouncing my judgment, to have expressed my concurrence with the conclusion of the Chief Justice upon this point; but I have felt myself forced as a lawyer, construing our law as a lawyer, to differ from him on this most important question, namely, as to what is the system of responsible government which we have had granted to us in Victoria.[95]

Holroyd and a’Beckett JJ decided along similar lines to Williams J. They held that the staggered development of self-government in the colonies was a clear indication that there is ‘no cut-and-dried institution called responsible government’.[96] Consequently, the justices rejected outright the assertion of Higinbotham CJ that the Victorian government must have full power over internal affairs simply because responsible government had been granted.[97] Further, the right to control aliens was deemed outside the colony’s internal powers. Although in the majority, Wrenfordsley J held that the Victorian government had full authority in internal affairs, but he classified the power to exclude aliens as an external matter under Imperial control.[98]

Higinbotham CJ and Kerferd J, the two former politicians on the Bench, dissented. A Colonial Office Minute later characterised these judgments as having ‘the tone of politicians rather than of lawyers’.[99] Kerferd J held that the operation of the Victorian Constitution in practice required a wider reading than the actual terms of the Constitution Act.[100] Higinbotham CJ held that the Constitution Act granted full responsible government to Victoria over local matters, and that the power to exclude aliens was an internal affair. Two assertions underpinned his ratio. First, the framers of the Constitution Act, most significantly William Stawell, intended ‘to provide a complete system of responsible government in and for Victoria, and that that intention was carried into full legislative effect with the knowledge and approval and at the instance of the Imperial government’.[101] This view reflected the draft Constitution Bill submitted to the Imperial Parliament in 1854 which, drawing a distinction between local and Imperial affairs, had sought to reserve control of local matters to the Victorian government. However, the Imperial Parliament rejected this division, insisting upon a general power of reservation over all local Acts.[102] Secondly, since the Constitution Act of 1855 conferred only specific grants of power, Higinbotham turned to a common law doctrine that extends specific powers in cases of necessity. He held that the grant of responsible government had to convey ‘such powers and prerogatives as are necessary for carrying into effect the objects for which the system has been created’:[103] to make enactments ‘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 Victoria’.[104] John Waugh commented on Higinbotham’s reasoning that ‘the terms of the Act seem inadequate to support [such] elaborate inferences’.[105]

The Victorian government appealed the Supreme Court’s decision to the Privy Council. Charles Pearson, a vehement supporter of Higinbotham’s views, commented in the Legislative Assembly: ‘We are really fighting again that battle which Chief Justice Higinbotham began — for the right of this people to govern themselves — and we intend to vindicate that right as an integral part of our liberties.’[106] The Attorney-General, Henry Wrixon, personally travelled to London to argue the case and, according to Deakin, educate English legal opinion on the self-governing rights of colonies.[107] Wrixon stressed in his submissions the desire of the Victorian government to obtain a review of the Supreme Court’s constitutional analysis.[108] The Lord Chancellor, Lord Halsbury, delivered the Privy Council’s opinion upholding the government’s appeal.[109] However, the Judicial Committee declined to consider the constitutional issues, instead resting their decision upon the construction of Victorian statute law and a common law doctrine that an alien’s entry to British territory cannot be judicially enforced.[110] Higinbotham’s constitutional views did not prevail.

It is perhaps not surprising in light of Higinbotham’s legally untenable but publicly popular views about responsible government that in 1933 Frederic Eggleston, a former Victorian Attorney-General, described the former Chief Justice as ‘one of the most attractive products of Australian democracy’.[111] Higinbotham’s second proposition, considered below, concerning the role of the Governor, stemmed directly from his belief that Victoria had a full instalment of responsible government.

IV THE GOVERNOR’S ROLE IN COLONIAL AFFAIRS

The central proposition of Higinbotham’s theory of responsible government was that, in local affairs, the Governor’s role was that of a constitutional monarch. He succinctly expressed this proposition in Toy v Musgrove:

The Governor in the exercise of those powers in and for Victoria is not an agent of the Crown, nor an officer of the Secretary of State for the Colonies. A new and a distinct authority is conferred upon him by law on his appointment; he is created, for all purposes within the scope of the Act of the Victorian Legislature, the local Sovereign of Victoria.[112]

In one sense, Higinbotham’s statement was an accurate reflection of the Governor’s legal responsibility in dealing with internal political conflicts, for the Governor could not be partisan. However, the Colonial Office still maintained that it had the power to interfere in local affairs. In this light, the importance of his earlier assertion that Victoria had full responsible government becomes clear, for it would make all Governors’ Instructions invalid and hence any interference by London in local matters illegal. Higinbotham found two such Instructions particularly offensive: first, that the Governor must follow Colonial Office orders above those of responsible colonial ministers; and, second, that the Governor must accept Colonial Office advice on constitutional matters over the legal advice of the local Crown law officers. These issues will be discussed in turn.

The first proposition was tested in 1866 over the ability of a Governor who had revealed himself as partisan to continue in office. In late 1865, Governor Darling forwarded a petition from 22 members of the Executive Council to the Queen, in which the petitioners appealed to the Imperial government to stop the Governor from acting contrary to accepted constitutional practice.[113] The Executive Councillors were former ministers; the likelihood that some of them would again hold office gave their petition particular importance.[114] They accused the Governor of endorsing illegal acts to support the present Ministry, namely sanctioning the unlawful collection of duties and assenting to the raising of funds outside parliamentary control. Darling wrote a long dispatch to accompany this petition: 18 pages on the merits of his case and 63 against the signatories. He first asserted in his defence that he was in total agreement with the acts of his ministers, thereby wholeheartedly associating himself with the policy of his advisers. He then proceeded to accuse the signatories ‘one and all of conduct highly discreditable to them as members of the Executive Council’ and declared that he would receive their advice with doubt and distrust if ever they held political office in the future.[115] Many people in Victoria thought Darling had become partisan, others that he was upholding the law.[116] Rogers summed up Darling’s offence as sending home ‘a violent and, I should say, very unjust personal attack on all the leading politicians of the opposite party’.[117]

In a distant colony such as Victoria, it was very difficult for a Governor to separate himself from his ministers, either politically or socially. Some ministers had a close relationship with a succession of Governors. Writing in 1857 to Archibald Michie, Solicitor-General during the crises and a leading member of the Victorian Bar since the inception of the Supreme Court in 1852,[118] Sir Henry Barkly commented that the opposition viewed the Governor as a member of the Ministry.[119] Michie gave a pair of ‘Oriental Slippers’ to Lady Darling that he had bought for her in a bazaar,[120] and on another occasion he recommended personal friends for minor government posts to Darling, who willingly acquiesced.[121]

The Governor’s powers were most relevant during constitutional crises produced by party conflict. To reject the advice of a ministry was normally to support the opposition. Hence, to remain above party politics the Governor was forced in practice (exercise of the reserve powers excepted) to act on ministerial advice as a constitutional monarch.[122] In reality, the Governor’s powers in domestic political crises were limited to Bagehot’s famous aphorism, ‘the right to be consulted, the right to encourage, the right to warn’.[123] However, Higinbotham could not reconcile this with the notion of a constitutional monarch having to act on instructions from the British government on internal matters.

Governors were appointed by the British government as Imperial officers. Despite being remunerated by the colonial government — albeit insufficiently to meet their vast expenses — Governors were selected by and responsible to the Colonial Office. The Governor reported to the Colonial Office on a regular basis, and received monthly instructions from London. The situation was as Higinbotham told the Assembly in 1868:

Every particular act of the Governor is commented upon. The Secretary of State informs the Governor that he approves of this act; he is good enough to say that ‘he sees no reason to disapprove’ of that act; he conceives it to be his duty to ‘instruct’ the Governor upon a third act; and ‘Her Majesty’ — the deus ex machina is allowed to appear upon an occasion of sufficient importance — ‘reminds’ the Governor of a fourth act. If this system is to continue, what is the meaning of the system which we call responsible government?[124]

It was for this reason that Higinbotham described Victoria’s Governors as ‘the secret agents of an illegal & absolutely irresponsible authority, the English Secretary of State for the Colonies’.[125] In fact, he went so far as to state:

I believe it might be said with perfect truth that the million and a half of Englishmen who inhabit these colonies, and who during the last fifteen years have believed they possessed self-government, have been really governed during the whole of that time by a person named Rogers. He is the chief clerk in the Colonial Office.[126]

Higinbotham falsely believed that the constitutional crises of 1864–68 ‘sprang from, and were mainly determined by, the interference of the Colonial Office, exercised by and through instructions to the Governor of Victoria’.[127] He further asserted that such instructions had continued to have ‘a vast, though at present silent, influence upon the national life.’[128] Worse, according to Higinbotham, was that the actions of the Colonial Office during the constitutional crises of 1864–68 had silenced public opinion on colonial rights.[129] It was this belief that ‘toleration by the Queens Ministers for Victoria of this illegal interference has been the chief though unregarded cause of most of our more serious political troubles’[130] that caused him in 1887 to write a remarkable letter to the Colonial Secretary, Sir Henry Holland. Chief Justice Higinbotham wrote:

[I]t is to be deeply deplored that the Colonial Office has not during that long period [since the constitutional crises] sought competent legal advice upon a subject which concerns so nearly its own duties as well as the highest rights and interests of these Australian communities.[131]

This letter was, perhaps unknown to Higinbotham, doubly insulting to Lord Knutsford (as Sir Henry Holland was to become in 1888). First, he began his career at the Colonial Office in 1867 as Legal Adviser, doubtless giving opinions on Higinbotham’s assertions, later rising to Assistant Under-Secretary from 1870 to 1874. Second, when Higinbotham wrote the letter, Lord Knutsford was a Bencher of the Inner Temple and a highly respected member of the Bar.[132]

The importance of Higinbotham’s earlier assertion that Victoria had a full instalment of responsible government now becomes clear. In his view, ‘commands and authorities in the Governor’s Commission, Instructions, and Letters Patent’[133] were nugatory because they were inconsistent with the system of responsible government conferred by the Constitution Act.[134] In fact, Higinbotham went so far as to assert that ‘all instructions by Her Majesty or the Secretary of State to the Governor of Victoria not authorised by law are, even when they are not expressly forbidden by law, outside the law of the Constitution’.[135] The instructions that Higinbotham found offensive were those that permitted Colonial Office interference in the local affairs of the colony. He took particular objection to clauses II and VII of the Governor’s Instructions, so much so that he demanded that Lord Knutsford alter the Governor’s letters of instruction:

The claim of the Colonial Office to interference in local affairs by indirect coercion or control of the representative of the Crown in the exercise of his powers in that character must be once for all officially and openly withdrawn.[136]

Instruction II directly empowered the Colonial Office to interfere in local matters. Higinbotham thought it was illegal that the Governor had to execute all orders from the Secretary of State, especially those issued against advice tendered by Victorian ministers responsible to Parliament.[137] This question arose over the parliamentary deadlock concerning the Darling grant. Darling’s replacement, Sir Henry Manners-Sutton (who succeeded his brother to become Lord Canterbury in 1869), wrote to the Colonial Office in late 1867 requesting an opinion that it would be advisable for the Council to accept the grant, hoping that the Upper House would accept the guidance of England.[138] The reply of the Duke of Buckingham, Colonial Secretary, seems to have been the moment of disillusionment. The Duke expressed the hope that the Council would yield if the electorate supported the grant, which it did. However, he added that, if the Council refused,

the Queen’s representative ought not to be made the instrument of enabling one branch of the Legislature to coerce the other, and therefore [the Governor] ought not therefore again to recommend 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 which will enable them to exercise their discretion respecting it without the necessity of throwing the colony into confusion.[139]

With this, the Colonial Office made a direct intervention in the struggle and made it clear that the Governor had to act on Colonial Office advice in local matters. The Governor was less than the equivalent of a constitutional monarch.

The level of Colonial Office interference constitutionally permissible was unclear even in Westminster. In May 1868, there was a debate in the House of Lords about the first constitutional crisis over the interpretation of the Constitution Act s 57. This section, which states that no grant of money can be made by the Assembly unless it is recommended by a message from the Governor, replicated a provision in the House of Commons Standing Orders. Seven peers spoke on the matter, four of whom were former Secretaries of State or Under-Secretaries for the Colonies. Five members — the Eighth Duke of Argyll and Lord Grey, Lord Salisbury, Lord Carnarvon and Lord Lyveden — asserted that s 57 was designed to allow the Colonial Office to veto money bills before being put before the Assembly. Only Lord Cairns and Lord Buckingham, the Lord Chancellor and the then Colonial Secretary respectively, accurately elucidated the real purpose of s 57. The provision required the Governor to recommend money bills to the Assembly, on the advice of the Executive Council, to ensure that the ministry of the day retained exclusive control over finance.[140] In the ‘cutting of the Gordian Knot’[141] that resolved the Darling Grant Crisis, Canterbury followed the Cairns/Buckingham doctrine. The situation was in practice as Sir Charles Adderley, a colonial reformer, wrote to Canterbury:

It has been a constitutional struggle between the two Chambers. You had no right to hinder the vote from debate. If you had tried — you would have been driven by a Resolution of the Assembly. The veto was the first point at which you could, ?should [sic], have interfered![142]

In practice, however, the ability of the Colonial Office to interfere in local matters had ‘practically ceased to exist’.[143] While the Duke of Buckingham expressed total ‘satisfaction’ over the Governor’s handling of the Darling Grant Crisis,[144] he admitted to Manners-Sutton that ‘at this distance we can only look on’ and trust ‘in your judgment & discretion’ to solve the conflict.[145] A debate in the House of Commons on the events leading up to the recall of Governor Darling indicates just how removed the British authorities were from the realities of Victorian politics. In March 1866, just 14 months before the Darling Grant Crisis, the House resolved that the policy of Cardwell, Secretary of State for the Colonies, in dealing with Darling ‘had been such as to strengthen the influence of this country in her colonies, and to increase the confidence of the colonies in the mother country.’[146]

Another command that Higinbotham considered illegal was Instruction VII. This gave the Governor the ‘authority to act in opposition to the advice given to the Governor by the members of the Executive Council, if in any case he deem it right to do so, and to report thereon to the Crown’.[147] This meant that, if the Governor acted unconstitutionally, it was not an excuse for him to assert that he was acting on ministerial advice, because the Governor was explicitly authorised to reject any advice. Higinbotham found this Instruction intolerable because he asserted that the only reserve powers were those vested by the Constitution Act in the ‘Governor alone’. Therefore, only on the dissolution of the Assembly and the selection of the leaders of both Houses did the Governor have ‘a personal power to be exercised on his own individual judgment or discretion’.[148] Clearly, this went against an instruction authorising the Governor to reject any advice.

That said, what were the legitimate sources of assistance to the Governor in determining whether or not to reject formal advice from ministers? This problem arose in 1865 when the McCulloch Ministry borrowed money from a bank to keep the government solvent during a deadlock with the Legislative Council. The issue was complicated because, at a series of elections, the majority of people in the colony supported the allegedly unconstitutional actions of the Ministry. The Legislative Council blocked supply when the McCulloch Ministry tacked a Tariff Bill onto the Appropriation Bill for 1865. Crown payments stopped on 7 July 1865. Meanwhile, the Treasurer, George Verdon, approached the six banks, which in conjunction held the public account, for a loan.[149] This was immediately followed by an ‘intimation from the Treasurer that it was not the intention of the government to continue the [public account] with the contracting banks’ unless they agreed to assist the government.[150] The banks jointly took counsel’s opinion, first that it was illegal for the government unilaterally to terminate the contract for the public account, and second that it would be criminal if the government were to repay the banks directly for any loan without Parliament’s sanction.[151] According to J J Falconer, the Superintendent of the Bank of Australasia and chairman of the meeting held to discuss the loan, five banks agreed to reject.[152] However, the sixth bank, the London Chartered Bank of Australia, whose sole local director was McCulloch, agreed to the scheme, thereby securing ‘the lion’s share of the Government’s business’.[153] While there can be little doubt that the London Chartered Bank’s decision was politically motivated, this is not to say that Falconer’s claim that the other banks’ refusals rested ‘simply on its illegality’ was necessarily accurate.[154] All the directors of the other banks had anti-Ministry links,[155] while the counsel who gave opinions on the loans were themselves signatories to the anti-Darling petition. The London Chartered Bank agreed to advance £40 000 to the government every few weeks. The bank immediately sought judgment in the Supreme Court under the Crown Remedies and Liabilities Statute 1865 (Vic), the government submitted to judgment, and thus the consolidated revenue became legally available under a warrant signed by the Governor.[156] The device, which the Victorian law officers assured the Governor was perfectly legal,[157] enabled the government to obtain money without legislative sanction for an indefinite time. In all, £880 000 was raised.[158] It was an alternative to incurring the heavy costs that would result if all claimants directly sued the government. With mock admiration, the English jurist Sheldon Amos commented in the Westminster Review on Higinbotham and the scheme: ‘The mingled audacity and craft with which this was effected will remain a monument to the genius of the popular Attorney-General’.[159]

Darling reported all these proceedings very fully to the Colonial Office.[160] However, other reports were also being sent to England. The Chamber of Commerce in Victoria entered a formal protest against the assumption by the Ministry of the absolute and irresponsible control of the finances of the colony, and followed it with a petition to the Queen, signed by 20 000 citizens.[161] Falconer, the Superintendent of the Bank of Australasia, reported to his London Board:

We are thus virtually under a sort of provisional Directory, or of a junta composed of the members of the present Administration, supported by the Governor and a dominant majority in the Legislative Assembly. It appears to me that this is by far the most serious political crisis which has ever occurred in the Colony directly tending to the employment of physical force, and revolutionary in its character.[162]

Such reports resulted in the scheme being widely condemned in England.[163] The banks in London highlighted the potential ‘disastrous’ impact of the colony’s differences with the ‘mother country’ on ‘Colonial Banking as well as on all Capital embarked in the Colonies’.[164] An article in the Westminster Review described Higinbotham as the ‘virtual dictator of Victoria’, likening life in Victoria to ‘the uniform condition of frogs under a flag-stone.’[165] It went on to characterise the crisis as ‘a question not between democracy and any other form of government, but between civilisation and savagedom.’[166] Such comments created the expectation in England that the Secretary of State for the Colonies would end the crisis.[167] While Cardwell intended his dispatch of November 1865 to do just this, there was some confusion as to its meaning, and the scheme continued. In response, the Governor reasserted the legality of the borrowing scheme to the Colonial Office based on Higinbotham’s advice.[168]

The receipt of dispatches from the Secretary of State censuring the Governor and government for collecting duties and raising funds outside parliamentary control brought both arrangements to an end on 13 April 1866. Following a four-hour meeting between the leaders of both Houses, the Council passed a composite Tariff Bill, and with it the Appropriation Bills for 1865 and 1866. On the day the deadlock ended, the Ministry announced that Darling had been recalled. The ensuing popular demonstrations in favour of the Governor showed the widespread resentment felt against the interference of the Imperial government. With the announcement of Darling’s recall, a pro-Ministry soapbox speaker ‘addressing about 1500 persons, believed that several regiments would be required to clear the market’ of the mob before him.[169] On Darling’s departure on 4 May 1866, the streets were lined with supporters from the Treasury Building to the pier.[170] Higinbotham voiced the feeling of the most extreme section in declaring that the British government had no right to interfere with, or even express an opinion upon, any action taken by the Governor on ministerial advice.[171]

The authorities in the Colonial Office made clear assertions as to the legality of Governor Darling’s actions. Edward Cardwell, Secretary of State for the Colonies, expressed the Colonial Office position in a dispatch that Sir John Dickinson, the New South Wales judge, described as ‘a cutting satire’.[172] Cardwell did not condemn the original levy of customs duties in January or expect Darling to have interfered in this.[173] Rather, he wrote:

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 rigid adherence to the law. ... The Queen’s representative is justified in deferring very largely to his Constitutional Advisers in matters of policy, and even of equity. But ... the power of the Crown ought never to be used ... for an immediate political purpose [that] is forbidden by law.[174]

Sir Frederic Rogers, Permanent Under-Secretary, held that only the Governor’s constitutional position concerned the Home government.[175] The Governor was indeed bound to follow the advice of his ministers, provided that their advice was legal. Rogers considered the financial transactions entirely illegal, whereas the Council’s ground of rejection of the tack had been both legal and constitutional. William Forster, Parliamentary Under-Secretary for the Colonies, thought it important to emphasise that the Home government had no intention of interfering in colonial affairs.[176] However, he concurred with Cardwell that referring a purely colonial matter to the Imperial government ‘would be infinitely preferable to a violation of the law.’[177]

Darling refused to accept the opinion of the English law officers and reiterated his own law officers’ views to the Colonial Office. He responded to Cardwell’s criticism that he had given pre-eminence to the Assembly by declaring that the Council benefited because it could continue its resistance without creating administrative chaos.[178] Rogers later minuted that it was immaterial which party gained; the Governor should never take illegal steps.[179] Darling argued that the emergency made it his duty to use any legal expedient to prevent administrative confusion.[180] To this, Rogers admitted that his disapproval was qualified by a doubt whether extraordinary or even illegal measures were not warranted when it was impossible to continue government without them.[181] Rather than defending the scheme, Darling should have argued that he was following ministerial advice.[182] Nonetheless, Darling’s repeated explanations did not cause the Colonial Office to alter its judgment or to regret his recall.

Darling’s response to these charges highlights the unworkability of a Governor having two masters: the Colonial Secretary and the executive government of Victoria. The situation was as Darling commented to Cardwell: ‘the twofold and inevitable responsibility for the Governor’s office in a colony rapidly developing under responsible government is quite as much as any man however experienced in public life can bear at all.’[183] Some contemporary commentators, such as the Victorian historian Henry Gyles Turner, thought that Darling acted as he did because he ‘was a novice in constitutional law ... [w]ithout any experience of representative Government.’[184] Such an assertion is incorrect, for Darling had spent his entire career with the Colonial Office in overseas postings — including Jamaica, Cape Colony and Newfoundland — with responsible government either being established or already operating.[185] Rather, it could be said that Darling took Higinbotham’s theory of ministerial responsibility to its logical conclusion. Charles Francis Adams, American arbitrator at the 1872 Geneva Tribunal looking into the conduct of the Victorian government towards the Confederate vessel CSS Shenandoah, commented that Darling’s only fault ‘so far as I have been able to observe, was that of listening too much to weak counsels’.[186] Sheldon Amos, writing in the Westminster Review, thought that the Governor was ‘about as capable of administering constitutional government as of calculating eclipses, was entirely in the hands of his Ministers ... accepting the law to be as the Ministers interpreted it.’[187] However, criticisms such as these ignored the realities of colonial responsible government.

The Governor was basically reliant upon the ministry for ascertaining the law. If the Governor suspected that his ministers were tendering illegal or unconstitutional advice, he was dependent for legal guidance on the Crown law officers through the Attorney-General in the ministry itself. Although later Governors and the early Governors-General consulted leading judges on such matters,[188] it would appear that Darling did not. Higinbotham entirely convinced him that his course was legal and right.[189] In fact, it was hinted that the Attorney-General helped Darling in the composition of many of his dispatches to London.[190] This created a clear problem when the advice of the local law officers contradicted that of either the English law officers or the Colonial Office. It was especially difficult when the local law officer, Higinbotham, was, as Rusden privately opined, ‘not an accurate lawyer’.[191] Rogers expressed a similar verdict: ‘He struck me, at the time of the Darling controversy as ... [not] ... an honest arguer — prepared to support reckless measures by arguments in law which a clever man must have known to be bad.’[192] Higinbotham carried his political beliefs into the law. Serle, on the other hand, thought it ‘not possible that Higinbotham could have propounded legal conclusions, of which he was not intellectually convinced, to suit his political views’.[193] However, such assertions were in one sense characteristic of Higinbotham’s legal approach, as the editor of The Argus commented:

There is a sort of sublimity in Mr Higinbotham’s mode of setting aside the law. In his view an Attorney-General is appointed, not to administer the law, but to correct its defects. In the exercise of this authority he is free from all restraint and is above all advice. Nothing but his own sense of right and of public convenience restrains him.[194]

Moreover, the real basis of Higinbotham’s argument was that ‘the wishes of the majority should prevail immediately over constitutional obstacles.’[195] Such sentiments were best expressed in a private letter from Higinbotham to Sir Henry Parkes in 1872:

I must candidly avow to you, however, that I do not feel that deep interest which you think all politicians ought to feel in this and other similar questions of constitutional practice in these colonies. For it is too plain to me that we, colonial politicians, use these questions, important in their place, only as counters in the rough partizan games we play with our opponents. We form and express an opinion upon one of these today as the interests of our factions require, and we shall abandon or reverse that opinion tomorrow for a like reason. Meanwhile, the real fundamental principle of public constitutional law in all these colonies is studiously disregarded by all politicians. I mean the principle that the head of Executive Government is by law the representative of the Crown, & ought by law to be advised in everything relating to the internal affairs of each colony solely by advisors chosen by himself responsible to the representatives of the people of each colony.[196]

It is therefore not surprising that Higinbotham viewed the issue as one of responsible government, commenting that Darling was recalled ‘really because that Governor performed his plain duty by retaining and acting on the advice of Ministers of the Crown in whom alone at that time the representative House of Legislature had confidence.’[197] While it is perhaps not surprising that Darling came into conflict with the Colonial Office given Higinbotham’s approach, the recall of the Governor nonetheless highlighted the incompatibility of full responsible government with several of the Instructions. That said, Higinbotham’s conception that the Instructions were void was manifestly wrong. As Herbert Evatt wrote in The King and His Dominion Governors, ‘it is impossible to accept this contention ... as a strictly legal argument’.[198] There was no direct contradiction between the Instructions and the Constitution Act of 1855 regarding the responsibility of Governors to accept ministerial advice. Hence, Higinbotham was as wrong in asserting that the Instructions were nugatory as he was arguably correct in calling attention to the need for their revision.

Beyond harmonising his duties to the Secretary of State for the Colonies and the local government, the Governor had another function: acting as Her Majesty’s representative on Imperial concerns, which is discussed below.

V THE GOVERNOR’S ROLE IN IMPERIAL MATTERS

The counterpart to Higinbotham’s rigid removal of the Secretary of State from domestic affairs was the exclusion of colonial ministers from Imperial matters. This section considers the validity of Higinbotham’s strict division. Higinbotham asserted that the Governor could request advice on Imperial matters from responsible ministers willing to give it, but he had no legal duty to accept it.[199] This principle was tested in 1865 at the height of the American Civil War when the CSS Shenandoah, a Confederate steamer, entered the neutral port of Melbourne. The vessel took aboard coal and men, in direct violation of Britain’s obligation of neutrality towards the United States of America.[200] At the 1872 Geneva Tribunal, Great Britain was found liable for the damages that the CSS Shenandoah caused after leaving Melbourne, amounting to US$3 875 000 or £807 375.[201] As Sir William Harrison Moore later commented in a paper entitled ‘Legal History in Victoria’, this incident ‘came as near to “international” questions as the condition of a colony would permit.’[202] In a debate in the Legislative Assembly concerning the outcome of the arbitration, Higinbotham explained the capacity in which he had advised the Governor:

When the Shenandoah came to this port, my honourable friend [J G Francis, Commissioner of Trade and Customs in 1865] and the rest of Her Majesty’s Ministers for this country absolutely ceased, in reference to every thing that occurred with regard to the Shenandoah, to hold the place of responsible Ministers of the Crown at all. We did not do a single act, we did not offer a single piece of advice, in the character of responsible Ministers. ... Sir Charles Darling thought proper to ask the opinion, counsel, and assistance of those Executive Councillors who happen to be nearest to him ... But, sir, whatever advice was given ... was given not as Ministers of the Crown.[203]

There is no evidence to support the assertion that ministers were not acting in their normal function in advising the Governor. Neither the case prepared for the Geneva Tribunal by Higinbotham and Michie, for which neither would accept payment, nor the minutes of the Executive Council meetings, support Higinbotham’s view.[204] The Governor received advice from Higinbotham, and although the Attorney-General later asserted it was not tendered as a responsible minister, it was given at an Executive Council meeting as advice from a Crown law officer.[205] Further, although all correspondence with the commander of the CSS Shenandoah was made in the Governor’s name, it emanated from James Francis, Commissioner of Trade and Customs.[206]

In Imperial matters, the Governor was not legally bound to act on local ministerial advice. In Toy v Musgrove, the Supreme Court of Victoria unanimously held that external affairs were under the exclusive control of the Imperial government.[207] However, this does not mean that Higinbotham’s assertion made before Parliament in 1873 that colonial ministers have no responsibility for advice tendered to the Governor on Imperial matters is strictly correct. Rather, the opinion of Sir Alexander Cockburn, Lord Chief Justice of England and Arbitrator at Geneva, is to be preferred. He viewed local Executive Councillors as officers of the Queen bound to assist the Governor in carrying out Her Majesty’s international obligations.[208] Hence, while not acting as ministers responsible to the Victorian Parliament, the Executive Councillors were still acting as ministers responsible to the British Crown. George Higinbotham expressed this situation:

[W]e were not, in the ordinary and full sense of the term, his advisers. I am not prepared to go as far as to say that we were in no sense his advisers ... But I quite concur with my honourable and learned friend when he says that there was a recognized and marked difference between our ordinary functions and those which we were called upon to discharge when, as Executive Councillors, we were invited by Sir Charles Darling to discuss with him ... the difficulty in which he found himself.[209]

In practice, Higinbotham’s strict division between local and Imperial affairs ‘tended to break down in illogical compromise.’[210] He determined the division according to those areas in ‘which Victorian constitutional law does not prohibit interference by the Imperial Government’, such as foreign relations and defence.[211] In Toy v Musgrove, both Higinbotham CJ and Wrenfordsley J held that the Victorian government had full authority in internal affairs. However, they were divided on whether the power to exclude aliens should be classified as an internal matter or as an external issue under Imperial control.[212] Each employed a seemingly arbitrary approach, presenting limited reasons for their respective categorisations. This reflects the practical uncertainties in distinguishing between matters of local and Imperial concern.[213]

Higinbotham’s strict division created the false impression in the Colonial Office that the Attorney-General was a fervent republican and his activities were aimed at causing the separation of Victoria from the Empire. In 1869, the Assembly endorsed Higinbotham’s theory of responsible government by affirming a series of resolutions.[214] Sir Frederic Rogers wrote of the accompanying debate: ‘substantially it may almost be called a vote for separation adopted by a majority of 40 to 18 ... What this threatens is that Victoria should break off alone.’[215] In the aftermath of the resolutions, Rogers believed that responsible government made ‘the dissolution of empire ... a matter of time.’[216] In this light, he admitted with reluctance that ‘the function of the Colonial Office is to secure that our connexion, while it lasts, shall be as profitable to both parties, and our separation, when it comes, as amicable as possible.’[217] However, little interest was taken in Higinbotham’s resolutions at Westminster. Even when Robert Torrens, Member of Parliament for Cambridge and former Premier of South Australia, organised a debate on colonial rights, Higinbotham’s principles were mentioned just once.[218]

While Higinbotham desperately wanted the Secretary of State to stop playing ‘political nursemaid’ to Victoria,[219] Alfred Deakin commented that he ‘was at the same time the most ardent of imperialists in policy’.[220] In fact, as the 20th century approached, Higinbotham’s staunch reading of the Constitution Act as distinguishing between ‘domestic’ and ‘Imperial’ matters was holding back colonial claims for expansion in the Imperial field. While Higinbotham as Chief Justice in 1888 encouraged the Imperial government to refuse ‘to recognise or permit any direct interference with international questions’,[221] the Victorian politicians Duncan Gillies and Graham Berry were beginning negotiations that led in 1895 to colonies making commercial treaties with foreign countries.[222] In response to the 1891 draft of the Constitution for Australia, Higinbotham wrote disparagingly to Deakin that the great majority of delegates had ‘little desire to preserve the connexion between the Australian Commonwealth and the Empire.’[223] He added that the powers relating to trade and commerce, and external affairs and treaties, were ‘necessarily inconsistent with the dependency of the Commonwealth on the Empire, being powers that can only be exercised by an independent State.’[224] He concluded with the caustic remark, ‘I think it is no reason for asking for such powers that it is likely that the Imperial Government may be imbecile enough and regardless of its duties as to grant them.’[225] In January 1892, Higinbotham chastised the colony in the leader of the Bacchus Marsh Express, with which he had renewed his connection, for ‘the feeble sentimentalism which now seems to be the only tie between Great Britain and its self-governing dependencies.’[226] According to Deakin, writing in 1898–99, it was this strange consistency in Higinbotham’s views that explained Victoria’s continued ‘firm alliance between radicalism and loyalty to the mother country.’[227]

While Higinbotham was an ardent imperialist, the strict exclusion of colonial ministers from Imperial affairs developed as the logical corollary of excluding the Colonial Office from local matters. This proposition came about as a coherent response to making the role of the Governor that of a constitutional monarch in colonial affairs. Although this strict division was clearly forced, it nonetheless had what Rusden described as a ‘knotty consistency’.[228]

VI THE RELATIONSHIP OF JUDGES TO THE EXECUTIVE AND THE LEGISLATURE

Higinbotham caused a storm over judges’ rights and responsibilities in early 1864. Sir Redmond Barry, a Justice of the Supreme Court, informed the Governor in a brief two-line note that he was taking a ‘short holiday trip’ to Sydney and Brisbane.[229] The Governor referred the letter to Higinbotham, seeking advice on the legality of Barry’s action. Higinbotham asserted two principles in law: first, that judges should correspond with the Attorney-General on all official matters, and second, that the executive has the power to remove judges who wilfully absent themselves from the colony.[230]

Higinbotham’s first assertion placed the judiciary within the limits of responsible government. He argued that, since the enactment of the Constitution Act, all judicial officers should correspond on official matters — such as holiday leave — directly with the Attorney-General as the appropriate minister responsible for advising the Governor on legal matters. This led Higinbotham to describe the judges as ‘officer[s] in his Department’.[231] In response, the New South Wales judge Sir John Dickinson called the whole episode ‘the most ridiculous thing I have ever heard of’,[232] while The Age lauded Higinbotham for putting the arrogant judges in their place and making the judiciary more accountable through government control.[233] Nonetheless, on becoming a Supreme Court judge in 1880, Higinbotham followed this principle of ministerial responsibility fully. He refused all requests issued by the Governor, even those lawfully made under powers conferred by Instructions, not emanating from the Executive Council;[234] for example, he took particular exception to Instruction XI, granting the power of pardon in capital cases to the discretion of the Governor alone.[235] Higinbotham’s view on capital cases was subsequently accepted until the death penalty ended.[236] Equally, his views on avenues of judicial communication resulted in the passage of a specific statutory provision for judges of the Supreme Court to communicate directly with the Governor. Section 54 of the Judicature Act 1883 (Vic) provided for judges to communicate with the Governor at least once a year on the operation of the judicial system in Victoria. The Act came into operation in 1884, and judges reported annually from 1886 until 1919 and from 1954 until the present.[237]

Higinbotham drew a distinction between official and private correspondence, stating that, although official correspondence must be directed to the Attorney-General, on personal matters all British subjects have a right to correspond directly with Her Majesty’s representative.[238] This division, however, did not stop Higinbotham, as Attorney-General, from instructing the judges on private matters. Higinbotham believed that there should be a continuum between private behaviour and public duty. His own actions in relation to his marriage exemplified this position. Since Higinbotham’s wife was not received in society owing to her lower class, he declined to go where she was not welcome.[239] It was perhaps for this reason that Higinbotham found the conduct of two particular judges so distasteful. When Molesworth J was a petitioner in a particularly acrimonious divorce petition, Attorney-General Higinbotham wrote a note suggesting that he should no longer preside over such cases in future. Molesworth testily retorted that the Attorney-General had no right to interfere in judicial matters, and that he had already instructed the court clerk to remove all divorce petitions from his docket, for he found them personally distasteful.[240] In another instance, Curtis Candler recorded a gossipy note in his diary:

On dit [Word has it] that the Attorney-General has written a letter to Sir Redmond Barry to the effect that the state of concubinage in which he has been living for some years is against public morality and suggesting that he must marry the lady![241]

Higinbotham’s second assertion concerned the dismissal of judges. Section 38 of the Constitution Act provided that the position of judges would not be affected by the introduction of responsible government. However, it also included a new provision whereby the Governor might remove any judge on the address of both Houses of the legislature. Previously, two separate Acts[242] empowered the Governor-in-Council to suspend judges in cases involving incapacity, neglect of duty and, most significantly for Justice Barry, wilful absence from the colony. At issue was whether the new provision for dismissing judges in the Constitution Act superseded the old Acts, or worked in conjunction with them. Higinbotham argued that since there was no inconsistency between the Constitution Act and the two earlier Acts, both remained law in Victoria. Sir William Stawell, Chief Justice of the Supreme Court and draftsman of the Constitution Act, thought that the Act granting responsible government superseded the earlier Acts.[243] The judges wished the Judicial Committee of the Privy Council to consider the matter. The Privy Council refused on the grounds that the issue was ‘as yet entirely of an abstract and theoretical character’.[244] The Secretary of State for the Colonies nonetheless dispatched an opinion of the English Crown law officers, Sir Roundell Palmer, Attorney-General, and Sir Robert Collier, Solicitor-General, that agreed with Higinbotham. However, in typical style, Higinbotham retorted with a memorandum written just one week after Darling’s recall intimating that, since an opinion of the English Crown law officers was not requested on this local matter, the determination was ‘in no way binding upon their Honours’.[245] Alpheus Todd, writing just a few years after these events, thought Higinbotham’s argument that the earlier Acts continued in operation correct.[246] Berridale Keith, in 1928, thought it wrong,[247] while Zelman Cowen and David Derham concluded that ‘it is very uncertain’.[248]

It would appear that Higinbotham’s assertion that the old Acts remained in force is inconsistent with his theory of responsible government: either the Constitution Act was ‘the only source and origin’ of responsible government in Victoria, or the Act prescribed only a measure of responsible government to be supplemented from other sources, in this case Burke’s Act and a local Act.[249] Either one must accept this as an irreconcilable contradiction, or consider the possibility that this assertion, made at the height of the constitutional crisis, was one of those minor constitutional opinions that Higinbotham admitted to Sir Henry Parkes were formed and expressed one day ‘as the interests of our faction require’, only to be abandoned or reversed the next day ‘for a like reason’.[250] In fact, it is possible that several of Higinbotham’s other dealings with the Supreme Court fall into this category.

As Attorney-General, Higinbotham directly challenged the authority of the Supreme Court by refusing to follow a lawful declaration issued by the Court. In 1865 a case arose when several merchants sought redress for the Ministry’s collection of duties without a tariff Act. In a judgment delivered on 14 September, Stawell CJ held that the collection of duties on the vote of the Legislative Assembly alone was illegal.[251] The Ministry at first refused to accept this decision, until 6 October 1865, when Higinbotham appealed (unsuccessfully) to the Privy Council. In November 1865, the Ministry sent the Tariff Bill to the Legislative Council, including a retrospective clause designed to negate verdicts of the Supreme Court in favour of the merchants. The collections stopped only after the Council rejected this Bill. Later the government shifted its ground and contended that the Supreme Court’s decision did not become operative until the final judgment was formally entered in December, after the collection had ceased.[252] Sheldon Amos perfectly expressed this sentiment: ‘Why should the will of the judges be allowed to interfere with the will of the people?’[253]

The judges of the Supreme Court had their ‘deserts’ during the second deadlock over the Darling Grant. The government could not repeat the bank loan scheme as the London Board of the London Chartered Bank had vetoed any repetition after the recall of Darling became known.[254] Thus, Higinbotham invited all debtors to seek judgment directly in the Supreme Court under the Crown Remedies and Liabilities Statute 1865 (Vic). With the intention of embarrassing the Ministry, Dr Hearn and several other eminent barristers challenged the validity of the Act.[255] Before Stawell CJ, they argued that the Appropriation Act was ‘the key to unlock the treasury’ and that a collusive judgment between the subject and the Crown would amount in fact to ‘a special appropriation without the consent of Parliament.’[256] In a decision not free from the suspicion of partisanship (Stawell CJ privately considered Higinbotham a dangerous politician),[257] the Court could not ‘discover any special benefit received, or to be received, by Parliament, for giving up during all time to come the power of supervising the merits of judgments’![258] Over 30 years later, in less turbulent times, the ruling was distinguished.[259] Currently, a judgment does not require a special appropriation from Parliament.[260] Higinbotham later expressed regret for describing the judges as officers in his department because it had mistakenly created the impression that there was ‘some covert design on the part of the Executive ... to interfere with the independence of the judges’.[261] Nonetheless, when Higinbotham retired as Attorney-General, he felt such apprehension about appearing before the judges with whom he had been in collision that he seriously considered leaving Victoria to practise at the New Zealand Bar.[262]

VII ASPECTS OF VICTORIAN AND AUSTRALIAN CONSTITUTIONAL DEVELOPMENT

There has been a gradual, albeit uneven, process of ‘Australianisation’ of the Crown.[263] In this process, two central ideas can be traced: first, the Governor’s role in local affairs becoming commensurate with that of a constitutional monarch, and second, the Governor’s role in Imperial matters becoming redundant. Higinbotham’s theory of responsible government had the Governor as a constitutional monarch and an Imperial officer, with a strict division in the execution of the two roles. This section will explore how developments subsequently brought about the acceptance of one of Higinbotham’s notions, while the other was rejected as unworkable. Discussion of the Imperial functions of the Vice-Regal Officer after Federation will focus upon the Governor-General.

The transformation in governmental practice from the introduction of responsible government in 1855 to the turn of the century was startling. Writing to his nephew (the future Victorian Governor, Lord Canterbury) in 1856, Sir William Denison, Governor of New South Wales, commented that ‘I am at the commencement of the introduction of “responsible government”, a term by the way which is most ludicrously misapplied.’[264] Higinbotham reflected the contemporary belief in Victoria when he wrote that ‘this system has been given by English politicians as a toy to communities supposed still to be in political childhood’.[265] That said, Victoria was practically self-governing in domestic affairs by the 1880s. Governors did not reserve any legislation of solely internal relevance, nor did the Imperial government veto any. Higinbotham’s resistance to Imperial interference in the Darling crisis made the Colonial Office careful to avoid conflict. The Governor retained reserve powers, but otherwise on internal matters followed ministerial advice. In fact, it appears that the Governor was informed of appointments to government posts only as a formality. Sir Henry Loch, Governor of Victoria, protested that appointments were made before he was informed of them, and that his discretion had virtually disappeared because candidates were appointed before being submitted to him in Executive Council meetings. Further, Loch’s reports to the Colonial Office on local affairs were few and superficial.[266] The Governor acted as a constitutional monarch in local affairs by the time Federation arrived.

It would seem therefore that while Higinbotham was wrong in asserting the illegality of the Governor’s Instructions, he was correct in drawing attention to the fact that they no longer adequately reflected constitutional practice in Victoria. This was perhaps not surprising since the Instructions had last been revised in 1855. The question as to whether the Governor’s Instructions should be altered arose at the Colonial Conference of 1887, and was referred directly to the Victorian Law Officers. Henry Wrixon, Victoria’s Attorney-General, thought that the Instructions were drawn up as if ‘in oblivion of the actual facts of our daily government’, and in January 1888 recommended drastic revision.[267] The Victorian Law Officers, like the Colonial Office officials, agreed that Higinbotham was wrong in claiming that it was illegal for the Governor to correspond with the Colonial Office on local matters. As the Imperial government retained the right to veto local legislation, it was necessary for the Governor to correspond with the Colonial Office. Nonetheless, one of the last official acts of Lord Knutsford as Colonial Secretary was to issue new Instructions. The new edition appeared in the Melbourne Government Gazette in September 1892. It was much improved, but clause VII of the revised Instructions repeated the substance of the old Instructions, authorising the Governor to act independently of his ministers if he thought the occasion warranted it. Higinbotham’s thoughts on the changes are unknown; he died four months later.

There is a sad postscript to Higinbotham’s desire to vindicate his theory of responsible government. Higinbotham was not offered the position of Acting-Governor between Loch’s departure and Lord Hopetoun’s arrival in late 1889 because he refused on principle to correspond with the Colonial Office. Instead, he stated that he would

use the increased power and possible large opportunities of that position to secure the independence of the Queen’s representative in the colony, and to expose and resist the illegal interference of the Colonial Office in our domestic affairs.[268]

When Sir William Robinson was appointed Acting-Governor in lieu, Higinbotham protested publicly by releasing the correspondence to the newspapers.[269] In fact, this was not the first outburst of its kind: in late 1887 when the Chief Justice was passed over for Lieutenant-Governor, he made several damning comments about colonial rights at a banquet to the Earl of Carnarvon.[270] In response, Sir Archibald Michie described the legal foundations of Higinbotham’s attacks on the Colonial Office in The Argus as ‘ludicrous impertinence’.[271] Morris recorded that Higinbotham ‘resented the insult to his office of Chief Justice in being 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.’[272]

Nonetheless, Higinbotham’s assertions did foreshadow later developments. Higinbotham saw that a Governor with Imperial duties was incompatible with the system of responsible government. However, he believed that the division could work if the ruling power totally refrained from interfering in local matters. Higinbotham held that responsible government implied complete freedom of action by responsible leaders, and no interference from outside. The Governor must take ministerial advice in all cases, and his own personal consideration was required only when Imperial interests were directly involved.[273] But this system broke down when the two concerns coincided. World War I highlighted the potential conflict between the Governor-General’s Imperial role, in trying to maximise Australia’s contribution to the war, and his role as constitutional arbiter within Australia. Sir Ronald Munro Ferguson’s conduct towards Billy Hughes during his attempts to remain Prime Minister in 1916 and subsequent years gave many the impression that he exhibited bias.[274] This foreshadowed the removal of Imperial concerns from Governors-General in 1926, and also sparked the push for an Australian to fill the position. This occurred in 1930–31 with the appointment of Sir Isaac Isaacs.

The basis of Higinbotham’s theory was that the role of the Governor was that of a constitutional monarch. The rigidity with which Higinbotham pursued this one notion actually undermined the homogeneity of his theory. The idea of a strict ‘local’ and ‘Imperial’ division was recognised in the Colonial Office from the early 1850s, but was soon found to be unworkable because it could not adequately reflect the different stages of development that the colonies faced.[275] It was his rigid adherence to this division, which the Colonial Office had rejected as unworkable, that limited Higinbotham’s ability to see that the natural progression for an internally self-governing colony was to take a voice in its own external affairs. And yet it was Higinbotham who first asserted that the colonial government should refuse to correspond through the Governor or Colonial Office, instead putting itself in direct communication with Her Majesty’s advisers in London on matters of concern to Victoria.[276] Direct communication between the Australian and the Imperial governments came about with the establishment of the position of High Commissioner to London, which in turn contributed to making the Governor-General’s Imperial role redundant. It is interesting to note that it was not until the Balfour Declaration at the 1926 Imperial Conference that the Governor-General’s position as a constitutional monarch in local affairs was formalised.

As an imaginative concept, the idea that Victoria had an antipodean reflection of Great Britain’s political system would have been remarkably compelling in the late 19th century. And this was the basis of Higinbotham’s theory: that Victoria had a full instalment of responsible government, and the role of the Governor in local matters was the equivalent to that of the Queen in Great Britain. That said, from a purely legal perspective, Higinbotham’s theory was a house of cards without a solid foundation. Higinbotham carried his political beliefs into the law. That was the strength of his theory, in that it presaged future constitutional development, and its weakness, in that its rigidity acted as a halter to further constitutional evolution. Higinbotham’s focus upon Victoria made him lose sight of Australia’s developing position within the British Empire at a time when the ‘founding fathers’ were dreaming of a modern nation-state within that Empire. While his ideas did influence the debate on nationhood, Higinbotham should be remembered principally as a Victorian visionary.

[*] BA (Hons) (Melb), MA Candidate (History), Student of Law, The University of Melbourne. Many people have contributed to this article. Several archivists and librarians have greatly assisted me with advice on the contents of their extensive collections, in particular: Nina Waters, librarian at Trinity College, The University of Melbourne; the archivists at the Baillieu Library, The University of Melbourne and at the La Trobe Library, State Library of Victoria; Bronwyn Biddle at the Mitchell Library, State Library of NSW; the staff at the Public Record Office of Victoria; the librarians at the National Library of Australia; and Peggy Kennedy, archivist at the Australia and New Zealand (‘ANZ’) Group Archive, Melbourne.

I would especially like to thank Professor Don Markwell, Warden of Trinity College, The University of Melbourne, for the extensive support he has given me. For their advice and assistance on the technical aspects of this article, I would like to thank: Sir Harry Gibbs, Justice Michael Kirby, Professor Stuart Macintyre, Sir Anthony Mason, John Paul, Professor John Poynter, Professor Ron Ridley, Professor Cheryl Saunders, Professor Robin Sharwood, Professor A G L Shaw, Sir Ninian Stephen and Sir John Young. I would also like to acknowledge the warm encouragement that I have received from Professor Geoffrey Blainey, Geoff Brown, Sir William Deane, Sir James Gobbo, Dr Davis McCaughey, Dr Damian Powell, Dr Miles Taylor and Jane Tibby. Without the help of all these people, I would not have been able to produce this article.

[1] Frederic Eggleston, ‘Australia and the Empire, 1855–1921’ in Ernest Scott (ed), Cambridge History of the British Empire (1933) vol 7, 521, 524.

[2] Kenneth Bailey, ‘Self-Government in Australia, 1860–1900’ in Ernest Scott (ed), Cambridge History of the British Empire (1933) vol 7, 395, 397, cited in Zelman Cowen, Sir John Latham and Other Papers (1965) 125–6.

[3] Stuart Macintyre, A Colonial Liberalism: The Lost World of Three Victorian Visionaries (1991).

[4] Gwyneth Dow, George Higinbotham: Church and State (1964).

[5] Bailey, above n 2.

[6] Edward Morris, A Memoir of George Higinbotham: An Australian Politician and Chief Justice of Victoria (1895).

[7] Alfred Deakin, The Federal Story: The Inner History of the Federal Cause (1944) 10.

[8] Morris, above n 6, ix–x.

[9] Ernest Scott, ‘The Shenandoah Incident’ (1926) 11 Victorian Historical Magazine 55, 72.

[10] Geoffrey Serle, The Rush to Be Rich: A History of the Colony of Victoria, 1883–1889 (1971) 304, fn 1.

[11] Eggleston, above n 1, 522.

[12] Davis McCaughey, Naomi Perkins and Angus Trumble, Victoria’s Colonial Governors: 1839–1900 (1993) 103.

[13] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 396–7.

[14] Ibid.

[15] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869, 2129 (George Higinbotham, Member for Brighton).

[16] [1888] VicLawRp 102; (1888) 14 VLR 349, 396–7 (Higinbotham CJ), 416 (Williams J).

[17] Bailey, above n 2, 396.

[18] Price Warung, ‘The Greatest of Australia’s Dead’, The Bulletin (Melbourne), 7 January 1893, 9. ‘Price Warung’ was the pseudonym for William Astley: Australian Dictionary of Biography (1966) vol 3, 56–7.

[19] ‘Death of Chief Justice Higinbotham. Close of a Memorable Career’, The Argus (Melbourne), 2 January 1893, 5–6; ‘Death of Chief Justice Higinbotham’, The Illustrated Australian News (Melbourne), 1 February 1893, 10; Australian Dictionary of Biography (1966) vol 4, 391.

[20] Henry Gyles Turner, A History of the Colony of Victoria (1904) vol 2, 137.

[21] George Rusden, A History of Australia (2nd ed, 1897) vol 3, 195. ‘Cascas’ is the plural form of ‘Casca’, one of the conspirators in Shakespeare’s Julius Caesar.

[22] ‘Higinbotha-mania: Psuedo-Liberals & Co’, undated, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 14, xi.

[23] Letter from Niel Black to T S Gladstone, 20 December 1865, quoted in Margaret Kiddle, Men of Yesterday: A Social History of the Western District of Victoria 1834–1890 (1961) 216.

[24] Morris, above n 6, 159.

[25] Letter from George Higinbotham to Sir Henry Parkes, 27 April 1872, in Parkes Papers (Mitchell Library, Sydney) A988 (CY1600) 293–306.

[26] Morris, above n 6, 58. Cf Rusden, A History of Australia, above n 21, 195.

[27] ‘Principles of Representation’, The Argus (Melbourne), 18 May 1857, 5.

[28] G H F Webb (ed), Debate in the Legislative Council of the Colony of Victoria on the Second Reading of the New Constitution Bill (1854) 69–70. See also Geoffrey Serle, ‘The Victorian Legislative Council, 1856–1950’ (1954) 6 Historical Studies 186.

[29] Webb, above n 28, 10.

[30] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 17 November 1865, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 115, 18 September 1865, Australian Joint Copying Project (‘AJCP’) CO 309/74, fr 2. Rogers restated his comments made 11 years earlier in this minute.

[31] Passed on 24 March 1854 and receiving Royal Assent on 16 July 1855, the Constitution Act came into operation when announced in the Government Gazette of 23 November 1855.

[32] Serle, The Rush to Be Rich, above n 10, 7.

[33] Morris, above n 6, 80.

[34] The Economist (Melbourne), 28 February 1862, 4.

[35] Turner, above n 20, 121.

[36] Stanley Leighton, Extracts from a Journal (1868) vol 2, 13 (National Library of Australia, Canberra).

[37] The Age (Melbourne), 21 October 1864.

[38] Robin Gollan, Radical and Working Class Politics: A Study of Eastern Australia, 1850–1910 (1960) 51.

[39] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 26 October 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1329.

[40] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 110, 21 November 1864, AJCP CO 309/68, fr 269.

[41] Rusden, A History of Australia, above n 21, 197.

[42] Turner, above n 20, 121; Dow, above n 4, 31.

[43] Since the introduction of responsible government, the Legislative Council had rejected 59 bills. See F K Crowley, Aspects of the Constitutional Conflicts between the Two Houses of the Victorian Legislature, 1864–1868 (MA thesis, The University of Melbourne, 1947).

[44] The example provided by Higinbotham and Michie was Lord Palmerston’s tack of The Paper Duties Repeal Bill on the Inland Revenue Bill 1861 (UK). On this, Rusden took a snipe at Higinbotham: ‘It is melancholy to find educated men asserting and inducing the unlearned to believe that Mr McCulloch imitated Lord Palmerston’: A History of Australia, above n 21, 198. The prime mover in the British incident was the Chancellor of the Exchequer, W E Gladstone. When the House of Lords refused to pass the original Bill in 1860, Lady Palmerston openly demonstrated her approval, which reflected her husband’s private hostility to the measure. It was Gladstone who ran with the measure and ultimately forced it: see E D Steele, Palmerston and Liberalism, 1855–1865 (1991) 101–2.

[45] Victoria, Standing Order of the Legislative Assembly No 285; Victoria, Standing Order of the Legislative Council No 301; Constitution Act s 34; F L Syth (ed), Legislative Assembly Standing Orders (1874) xxiv–xxv.

[46] Letter from Sir Henry Barkly, Governor of Victoria, to Henry Labouchere (later Lord Taunton), Secretary of the Colonial Office, 28 August 1857, quoted in Joy Mills, ‘The Composition of the Victorian Parliament 1856–1881’ (1942) 2(5) Historical Studies: Australia and New Zealand 25, 34.

[47] Letter from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, 25 March 1865, AJCP CO 309/71, fr 542; letter from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, 27 July 1865, AJCP CO 309/73, fr 99.

[48] Rusden, A History of Australia, above n 21, 199.

[49] Votes and Proceedings of the Legislative Assembly (1865) 1186.

[50] Ibid 1887–8.

[51] See, eg, ‘A Melbourne Merchant’, Letter to the Editor, The Argus (Melbourne), 8 December 1865.

[52] Turner, above n 20, 128.

[53] Rusden, A History of Australia, above n 21, 218; see also Morris, above n 6, 108. Higinbotham received 396 votes.

[54] The Argus (Melbourne), 27 January 1866.

[55] Walter Bagehot, The English Constitution (first published 1865–66, 1993 ed) 129.

[56] Turner, above n 20, 131.

[57] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 218.

[58] Quoted in Turner, above n 20, 140.

[59] Letter from Ellen Keen to George Rusden, 28 April 1867, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 11.

[60] Letter from George Rusden, Clerk to the Legislative Council, to Sir James Palmer, President of the Council, 2 August 1867, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 7, vii: ‘How Higinbotham & co were prevented from carrying out their sly designs to entrap the Legislative Council in 1867’.

[61] George Rusden, A History of Australia (1st ed, 1883) vol 3, 357. See also Alpheus Todd, Parliamentary Government in the British Colonies (2nd ed, 1894) 142.

[62] Victoria, Parliamentary Debates, Legislative Assembly, 22 October 1867, 145 (George Higinbotham, Attorney-General).

[63] Turner, above n 20, 144.

[64] Dispatch from Sir Henry Manners-Sutton, Governor of Victoria, to the Duke of Buckingham, Secretary of State for the Colonies, No 53, 28 March 1868, AJCP CO 309/87, fr 259.

[65] Victoria, Parliamentary Debates, Legislative Assembly, 4 June 1874, 223.

[66] Morris, above n 6, 158.

[67] Bagehot, above n 55, 129.

[68] Bruce Knox, ‘Conservative Imperialism 1858–1874: Bulwer Lytton, Lord Carnarvon and Canadian Federation’ (1984) 6 International History Review 333.

[69] Letter from George Rusden to Charles Dickens, 4 December 1868, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 11.

[70] Letter from Sir John Dickinson to George Rusden, 14 August 1866, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 11.

[71] Ibid.

[72] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 210.

[73] Letter from Justice George Higinbotham to Christopher Crisp, 21 April 1882, in Christopher Crisp Papers (National Library of Australia, Canberra) MS 743/7/353.

[74] Letter from Justice George Higinbotham to Sir James Service, Chief Secretary, 15 July 1880 (State Library of Victoria, Melbourne).

[75] Letter from Justice George Higinbotham to Mr Richardson, 6 April 1885, quoted in Morris, above n 6, 204.

[76] A C V Melbourne, ‘The Establishment of Responsible Government’ in Ernest Scott (ed), Cambridge History of the British Empire (1933) vol 7, 273, 276.

[77] Ibid 276–7.

[78] See Terry Irving, ‘The Idea of Responsible Government in New South Wales before 1856’ (1964) 11 Historical Studies: Australia and New Zealand 192.

[79] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 391.

[80] Ibid 396.

[81] [1888] VicLawRp 102; (1888) 14 VLR 349.

[82] Morris, above n 6, 265.

[83] Sir William Harrison Moore, ‘Legal History in Victoria’, undated, in Harrison Moore Collection (Baillieu Library, The University of Melbourne) 6.

[84] Cowen, above n 2, 121. Higinbotham also made several comments on ministerial responsibility in the case of A-G (Vic) v Goldsbrough [1889] VicLawRp 161; [1889] 15 VLR 638, 652.

[85] ‘Memorandum of Information Received from Ship’s Agents’, 27 April 1888 (Public Record Office of Victoria) VPRS 3992, unit 336, item 4438.

[86] The Argus (Melbourne), 30 April 1888, 7.

[87] The Argus (Melbourne), 1 May 1888, 7–8.

[88] ‘The Chinese Question’, The Argus (Melbourne), 2 May 1888, 8.

[89] ‘Toy v Musgrove’ in Supreme Court Case Files (Public Record Office of Victoria) VPRS 267, unit 848, item 1382.

[90] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 371 (Higinbotham CJ).

[91] ‘Exclusion of Chinese’, The Age (Melbourne), 11 July 1888, 7.

[92] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 422–3 (Williams J), 428–9 (Holroyd J), 434–5 (a’Beckett J), 439–40 (Wrenfordsley J).

[93] Geoffrey Serle and Russel Ward (eds), Australian Dictionary of Biography (1966) vol 6, 404.

[94] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 419 (Williams J).

[95] Ibid 416.

[96] Ibid 428 (Holroyd J); see also at 434 (a’Beckett J).

[97] Ibid.

[98] Ibid 349.

[99] Minute, 16 October 1888, accompanying dispatch, No 175, 7 September 1888, AJCP CO 309/132, fr 491.

[100] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 409.

[101] Ibid 387; see also 386, 392, 394, 396–7.

[102] Cowen, above n 2, 110.

[103] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 213; see Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 395 (Higinbotham CJ).

[104] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 396–7 (Higinbotham CJ).

[105] John Waugh, ‘Chung Teong Toy v Musgrove and the Commonwealth Executive’ (1991) 2 Public Law Review 160, 177.

[106] Victoria, Parliamentary Debates, Legislative Assembly, 27 June 1888, 194 (Charles Pearson, Member for East Bourke Boroughs).

[107] See Victoria, Parliamentary Debates, Legislative Assembly, 10 September 1891, 1337 (Henry Wrixon, Attorney-General).

[108] Alexander William Musgrove v Chun Teong Toy, Report of the Argument by Mr Wrixon, QC, on Behalf of the Government of Victoria (1891) 54.

[109] Musgrove v Toy [1891] UKLawRpAC 7; [1891] AC 272.

[110] See William Harrison Moore, Act of State in English Law (1906) 95–9.

[111] Eggleston, above n 1, 522.

[112] [1888] VicLawRp 102; (1888) 14 VLR 349, 381.

[113] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 152, 23 December 1865, AJCP CO 309/75, fr 350.

[114] Of 45 persons who were members of the Executive Council under responsible government, 22 signed the petition, 11 were absent from the colony, two were Supreme Court judges, three declined to sign, and the remainder were in McCulloch’s Ministry: Rusden, A History of Australia, above n 21, 214.

[115] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 152, 23 December 1865, AJCP CO 309/75, fr 350.

[116] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 26 October 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1329.

[117] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, undated, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 152, 23 December 1865, AJCP CO 309/75, fr 350.

[118] John Forde, The Story of the Bar of Victoria (1913); Arthur Dean, A Multitude of Counsellors: A History of the Bar of Victoria (1968).

[119] Letter from Sir Henry Barkly, Governor of Victoria, to Archibald Michie, Solicitor-General, 27 November 1857, in Archibald Michie Collection (Baillieu Library, The University of Melbourne) letter 1.

[120] Letter from Sir Charles Darling, Governor of Victoria, to Archibald Michie, Solicitor-General, 2 November 1864, in Archibald Michie Collection (Baillieu Library, The University of Melbourne) letter 2.

[121] Letter from Sir Charles Darling, Governor of Victoria, to Archibald Michie, Solicitor-General, 23 May 1864, in Sir Archibald Michie Papers (National Library of Australia, Canberra) MS 148/item 4.

[122] Gordon Greenwood (ed), Australia: A Social and Political History (1955) 133.

[123] Bagehot, above n 55, 67.

[124] Victoria, Parliamentary Debates, Legislative Assembly, 2 June 1868, 78 (George Higinbotham, Attorney-General).

[125] Letter from George Higinbotham to Sir Henry Parkes, 27 April 1872 (Mitchell Library, Sydney) A988 (CY1600) 293–306.

[126] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869, 2137 (George Higinbotham, Member for Brighton).

[127] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 218.

[128] Ibid.

[129] Ibid.

[130] Letter from Justice George Higinbotham to Sir James Service, Chief Secretary, 15 July 1880 (State Library of Victoria, Melbourne).

[131] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 213.

[132] H W C Davis and J R H Weaver (eds), Dictionary of National Biography, 1912–1922 (1927) 262; Who Was Who 1897–1915 (4th ed, 1953) vol 1, 403–4.

[133] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 382.

[134] Bailey, above n 2, 396.

[135] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 384–5.

[136] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 220.

[137] Letters Patent, 21 February 1879, cl II; Commission, 10 April 1884, cl II, cited in Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 382–3 (Higinbotham CJ).

[138] Letter from Sir Henry Manners-Sutton, Governor of Victoria, to the Duke of Buckingham, Secretary of State for the Colonies, 28 October 1867, AJCP CO 309/84, fr 334.

[139] Victoria, Parl Paper No 868 (1868) 33, cited in Bailey, above n 2, 402.

[140] United Kingdom, Parliamentary Debates, House of Lords, 8 May 1868, col 1963–2001.

[141] Letter from Charles Adderley to Sir Henry Manners-Sutton, Governor of Victoria, 30 August 1868, in Viscount Canterbury Papers (National Library of Australia, Canberra) MS 8378.

[142] Ibid.

[143] The Duke of Buckingham, quoted in Morris, above n 6, 174.

[144] Letter from the Duke of Buckingham, Secretary of State for the Colonies, to Sir Henry Manners-Sutton, Governor of Victoria, 9 December 1868, in Viscount Canterbury Papers (National Library of Australia, Canberra) MS 8378.

[145] Letter from the Duke of Buckingham, Secretary of State for the Colonies, to Sir Henry Manners-Sutton, Governor of Victoria, 26 November 1867, in Viscount Canterbury Papers (National Library of Australia, Canberra) MS 8378.

[146] United Kingdom, Parliamentary Debates, House of Commons, 20 March 1866, col 621 (C B Adderley, Member for Staffordshire).

[147] Instructions, 21 February 1879, cl VII, cited in Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 383 (Higinbotham CJ).

[148] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 393 (Higinbotham CJ). See Constitution Act ss 6, 28.

[149] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 25 September 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1326; see also ‘Correspondence with the Bank Relative to the Resumption of Payments’, The Age (Melbourne), 8 September 1865.

[150] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 25 September 1865 (Bank of Australasia, ANZ Group Archive) letter 1326, attaching correspondence from Treasurer Verdon to banks contracting for the Victorian Public Account, 2 September 1865.

[151] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 25 September 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1326, attaching opinion of R D Ireland, 2 September 1865. The penalty for violating the Audit Act 1859 (Vic) was hard labour on the public roads.

[152] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 25 September 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1326.

[153] Letter from John Bramwell to Secretary London, 24 March 1866 (London Chartered Bank of Australia, ANZ Group Archive, Melbourne) L/30/1.

[154] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 25 September 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1326; letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 26 October 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1329. Falconer signed the petition to the Queen condemning the action, and wrote a private letter signed by 12 other bankers in protest.

[155] See Crowley, above n 43, 59; The Age (Melbourne), 8 September 1865.

[156] Victoria, Parl Paper No B7 (1866) 32.

[157] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 116, 22 September 1865, AJCP CO 309/74, fr 88.

[158] Victoria, Ninth Annual Report of the Commissioners of Audit VPLA, Parl Paper No A1

(1867) 72.

[159] Sheldon Amos, Democratic Government in Victoria (1868) 36, reprinted from (1868) 33 Westminster Review 480, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne).

[160] See dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 116, 22 September 1865, AJCP CO 309/74, fr 88.

[161] Turner, above n 20, 123. See also letter from J J Falconer to Secretary London, 26 October 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1329.

[162] Letter from J J Falconer, Superintendent of the Bank of Australasia, to Secretary London, 25 September 1865 (Bank of Australasia, ANZ Group Archive, Melbourne) letter 1326. Falconer signed the petition himself.

[163] Letter from W M Young to ‘Inspector, Melbourne’, 26 December 1865 (London Chartered Bank of Australia, ANZ Group Archive, Melbourne) L/31/1.

[164] Ibid.

[165] Amos, above n 159, 23.

[166] Ibid 40.

[167] Letter from W M Young to ‘Inspector, Melbourne’, 26 December 1865 (London Chartered Bank of Australia, ANZ Group Archive, Melbourne) L/31/1.

[168] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 4, 22 January 1866, AJCP CO 309/77, fr 21.

[169] Rusden, A History of Australia, above n 21, 231.

[170] The Age (Melbourne), 5 May 1866.

[171] Morris, above n 6, 124.

[172] Letter from Sir John Dickinson to George Rusden, 14 August 1866, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 11.

[173] Draft letter from Edward Cardwell, Secretary of State for the Colonies, to Sir Charles Darling, 26 February 1866, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 152, 23 December 1865, AJCP CO 309/75, fr 350.

[174] Minute by Edward Cardwell, Secretary of State for the Colonies, 17 November 1865, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 115, 18 September 1865, AJCP CO 309/74, fr 2.

[175] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 17 November 1865, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 115, 18 September 1865, AJCP CO 309/74, fr 2. Frederic Rogers had prophesied 10 years before, in reporting on the Constitution Act, that such a conflict would sooner or later take place.

[176] Minute by William Forster, Parliamentary Under-Secretary for the Colonies, 15 February 1866, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 152, 23 December 1865, AJCP CO 309/75, fr 350.

[177] Quoted in Rusden, A History of Australia, above n 21, 224.

[178] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, undated, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 4, 22 January 1866, AJCP CO 309/77, fr 21.

[179] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 17 March 1866, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 4, 22 January 1866, AJCP CO 309/77, fr 21.

[180] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 116, 22 September 1865, AJCP CO 309/74, fr 88.

[181] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 2 January 1866, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 127, 20 October 1865, AJCP CO 309/74, fr 257.

[182] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 4, 22 January 1866, AJCP CO 309/77, fr 21.

[183] Letter from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, 25 March 1865 (Public Record Office of Victoria) no 52, VPRS 1084, vol 5, 569.

[184] Turner, above n 20, 112.

[185] McCaughey, Perkins and Trumble, above n 12, 122. Darling served as Lieutenant-Governor of Cape Colony (1851–54) and Governor of Newfoundland (1854–57), and parliamentary government was established under him in both places without mishap.

[186] Papers Relating to the Foreign Relations of the United States (1872–73) pt II, 207.

[187] Amos, above n 159, 36.

[188] See Don Markwell, ‘Griffith, Barton and the Early Governor-Generals: Aspects of Australia’s Constitutional Development’ (1999) 10 Public Law Review 280.

[189] Dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 152, 23 December 1865, AJCP CO 309/75, fr 350.

[190] Morris, above n 6, 119.

[191] George Rusden, ‘How a Few Brighton Burgesses Showed that Higinbotham Was Not an Accurate Lawyer’, undated, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 10. This was regarding the Brighton Borough Council’s power to alter rates under The Municipal Corporations Act 1863 (Vic) s 191, in May and June 1864.

[192] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 16 July 1869, AJCP CO 309/90, fr 443.

[193] Serle, The Rush to Be Rich, above n 10, 304.

[194] See Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 14, xi.

[195] Dorothy Clarke, ‘The Colonial Office and the Constitutional Crisis in Victoria, 1865–68’ (1952) 5 Historical Studies 160, 164.

[196] Letter from George Higinbotham to Sir Henry Parkes, 27 April 1872 (Mitchell Library, Sydney) A988 (CY1600) 293–306.

[197] Letter from Chief Justice George Higinbotham to Sir Henry Holland, Secretary of State for the Colonies, 28 February 1887, quoted in Morris, above n 6, 218.

[198] Herbert Evatt, The King and His Dominion Governors (1936) 125.

[199] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 380.

[200] Scott, above n 9, 55.

[201] Roundell Palmer, Earl of Selborne, Memorials, Personal and Political, 1865–1895 (1898) 256.

[202] Moore, above n 83, 5.

[203] Victoria, Parliamentary Debates, Legislative Assembly, 5 June 1873, 236–7 (George Higinbotham, Member for East Bourke Boroughs).

[204] Letter from Viscount Canterbury to Archibald Michie, 19 December 1871, in Sir Archibald Michie Papers (National Library of Australia, Canberra) MS 148/item 7.

[205] Letter from George Higinbotham, Attorney-General, and Archibald Michie, Solicitor-General, to Sir Charles Darling, Governor of Victoria, 30 January 1865, AJCP CO 309/71, fr 245.

[206] Foreign Relations of the United States, above n 186, pt II, 490.

[207] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 376–7 (Higinbotham CJ), 406 (Kerferd J), 413–14 (Williams J), 431–2 (Holroyd J), 435 (a’Beckett J), 442–3 (Wrenfordsley J).

[208] Foreign Relations of the United States, above n 186, pt II, 490–5.

[209] Victoria, Parliamentary Debates, Legislative Assembly, 5 June 1873, 239 (George Higinbotham, Member for East Bourke Boroughs).

[210] Bailey, above n 2, 410.

[211] Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 380 (Higinbotham CJ).

[212] Ibid 397–8 (Higinbotham CJ), 437 (Wrenfordsley J).

[213] Waugh, ‘Chung Teong Toy v Musgrove’, above n 105, 169.

[214] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869, 2123.

[215] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 25 February 1870, accompanying letter from Sir Henry Manners-Sutton, Governor of Victoria, to Lord Granville, Secretary of State for the Colonies, 8 November 1869, AJCP CO 309/91.

[216] Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, 23 February 1870, AJCP CO 309/91, fr 385.

[217] George Eden Marindin (ed), Letters of Frederic Lord Blachford (1896) 299.

[218] United Kingdom, Parliamentary Debates, House of Commons, 26 April 1870, col 1817–908. W Monsell, Under-Secretary of State for the Colonies, mentioned Higinbotham’s resolutions: at col 1882–3.

[219] Letter from George Higinbotham to Sir Henry Parkes, 27 April 1872 (Mitchell Library, Sydney) A988 (CY1600) 293–306.

[220] Deakin, above n 7, 9.

[221] Cited in Serle, The Rush to Be Rich, above n 10, 304.

[222] Victoria, Renewal of Commercial Treaties, Parl Paper No C10 (1891) 943.

[223] Letter from Chief Justice George Higinbotham to Alfred Deakin, 4 April 1891, in Alfred Deakin Papers (National Library of Australia, Canberra) MS 1540/11/8; quoted in John Waugh, ‘George Higinbotham on the Constitution Bill 1891’ (1991) 2 Public Law Review 156, 158.

[224] Letter from Chief Justice George Higinbotham to Alfred Deakin, 4 April 1891, in Alfred Deakin Papers (National Library of Australia, Canberra) MS 1540/11/8.

[225] Ibid.

[226] See letter from Chief Justice George Higinbotham to Christopher Crisp, 12 January 1892, in Christopher Crisp Papers (National Library of Australia, Canberra) MS 743/7/354.

[227] Deakin, above n 7, 9.

[228] Rusden, A History of Australia, above n 21,195.

[229] ‘Judges’ Rights: Copies of the Correspondence between the Government and the Judges of the Supreme Court Respecting the Rights and Privileges of the Judges’ in Votes and Proceedings of the Legislative Assembly (1864) C2, 2–3.

[230] Sir John Young recalled going for a walk with a County Court judge in Wodonga in the early 1960s and strolling over the Murray River into Albury. At this the judge stopped, turned to the young barrister, and announced that with his last step, he had violated the law by leaving the State without the Attorney-General’s permission! After being elevated to the Chief Justiceship in 1974, Sir John never formally requested permission to leave Victoria for another State: interview with Sir John Young, Former Chief Justice of the Supreme Court of Victoria and Former Lieutenant-Governor (Melbourne, 31 August 2000).

[231] Morris, above n 6, 113.

[232] Letter from Sir John Dickinson to George Rusden, 14 August 1866, in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 11.

[233] See, eg, The Age (Melbourne), 14–16 December 1864; The Age (Melbourne), 14–16 July 1865; The Age (Melbourne), 7 August 1865.

[234] Letter from Justice George Higinbotham to Sir James Service, Chief Secretary, 15 July 1880 (State Library of Victoria, Melbourne).

[235] Instructions, 21 February 1879, cl XI, cited in Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349, 383.

[236] Royal Instructions 1900 para viii.

[237] Cowen, above n 2, 153.

[238] Morris, above n 6, 114.

[239] Ann Galbally, Redmond Barry: An Anglo-Irish Australian (1995) 137.

[240] Morris, above n 6, 114.

[241] Curtis Candler, ‘Addenda to Diary’ (1867–68) (La Trobe Library, State Library of Victoria).

[242] Colonial Leave of Absence Act 1782 (Imp) 22 Geo 3, c 75 (‘Burke’s Act’) and a local Act, An Act to Make Provision for the Better Administration of Justice in the Colony of Victoria 1852 (Vic).

[243] See ‘Judges’ Rights’, above n 229.

[244] Morris, above n 6, 115.

[245] Ibid 116.

[246] Todd, above n 61, 752–3.

[247] Arthur Berridale Keith, Responsible Government in the Dominions (2nd ed, 1928) vol 2, 1068–70.

[248] Zelman Cowen and David Derham, ‘The Independence of the Judges’ (1953) 26 Australian Law Journal 462, 464.

[249] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869, 2129 (George Higinbotham, Member for Brighton).

[250] Letter from George Higinbotham to Sir Henry Parkes, 27 April 1872, in Parkes Papers (Mitchell Library, Sydney) A988 (CY1600) 293–306. Higinbotham was referring to the Governor’s power of dissolution.

[251] Stevenson v The Queen (1865) 2 WW & APB (L) 143.

[252] Memorandum by George Higinbotham, Attorney-General, undated, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 127, 20 October 1865, AJCP CO 309/74, fr 257. Frederic Rogers describes these evasions as ‘perfectly disingenuous’: Minute by Frederic Rogers, Permanent Under-Secretary in the Colonial Office, undated, accompanying dispatch from Sir Charles Darling, Governor of Victoria, to Edward Cardwell, Secretary of State for the Colonies, No 4, 22 January 1866, AJCP CO 309/77, fr 21.

[253] Amos, above n 159, 24.

[254] Letter from W M Young to Edwin Brett, 16 May 1866 (London Chartered Bank of Australia, ANZ Group Archive, Melbourne) L/31/1.

[255] William Hearn Collection (Baillieu Library, The University of Melbourne) 4/4, 4/5.

[256] Alcock v Fergie (1867) 4 WW & APB (L) 285, 295, 298.

[257] Mary Stawell, My Recollections (1911) 215, fn 1.

[258] Alcock v Fergie (1867) 4 WW & APB (L) 285, 318.

[259] Fisher v The Queen [1901] VicLawRp 38; (1901) 26 VLR 781, 795 (Madden CJ).

[260] Paul Finn, Law and Government in Colonial Australia (1987) 158.

[261] Votes and Proceedings of the Legislative Assembly (1865) 779.

[262] Forde, above n 118, 180.

[263] See Don Markwell, The Crown and Australia (1987).

[264] Letter from Sir William Denison to Henry Manners-Sutton, 1 October 1856, in Viscount Canterbury Papers (National Library of Australia, Canberra) MS 8378.

[265] Letter from George Higinbotham to Sir Henry Parkes, 27 April 1872, in Parkes Papers (Mitchell Library, Sydney) A988 (CY1600) 293–306.

[266] Governor’s Minute Books, vol 2, 227, 238, 271 (Public Record Office of Victoria).

[267] Law Officers Report, undated, AJCP CO 309/133, frs 369–93.

[268] Quoted in Gavan McCormack, Victorian Governors and Responsible Government (MA thesis, The University of Melbourne, 1962) 251.

[269] See The Argus (Melbourne), 16–18 February 1889; The Age (Melbourne), 16–18 February 1889.

[270] The Australian, January 1888.

[271] ‘The Chief Justice and the Governorship’, The Argus (Melbourne), 22 February 1889, 5. This comment may have been sparked by Higinbotham’s attack on Lord Carnarvon during his earlier visit. Michie was close to the former Secretary of State for the Colonies, sending him a book of addresses to read when he visited Australia: letter from Lord Carnarvon to Sir Archibald Michie, 4 December 1887 (National Library of Australia, Canberra) MS 148/12.

[272] Morris, above n 6, 203.

[273] Bailey, above n 2, 401.

[274] Christopher Cunneen, Kings’ Men: Australia’s Governors-General from Hopetoun to Isaacs (1983) 114.

[275] D B Swinfen, Imperial Control of Colonial Legislation 1813–1865 (1970) 95–122.

[276] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869, 2129 (George Higinbotham, Member for Brighton).

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Parkinson, Charles --- "George Higinbotham and Responsible Government in Colonial Victoria" [2001] MelbULawRw 6; (2001) 25(1) Melbourne University Law Review 181

George Higinbotham And Responsible Government In Colonial Victoria

I INTRODUCTION

II BACKGROUND

III DID COLONIAL VICTORIA HAVE RESPONSIBLE GOVERNMENT?

IV THE GOVERNOR’S ROLE IN COLONIAL AFFAIRS

V THE GOVERNOR’S ROLE IN IMPERIAL MATTERS

VI THE RELATIONSHIP OF JUDGES TO THE EXECUTIVE AND THE LEGISLATURE

VII ASPECTS OF VICTORIAN AND AUSTRALIAN CONSTITUTIONAL DEVELOPMENT

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Parkinson, Charles --- "George Higinbotham and Responsible Government in Colonial Victoria" [2001] MelbULawRw 6; (2001) 25(1) Melbourne University Law Review 181

George Higinbotham And Responsible Government In Colonial Victoria

I INTRODUCTION

II BACKGROUND

III DID COLONIAL VICTORIA HAVE RESPONSIBLE GOVERNMENT?

IV THE GOVERNOR’S ROLE IN COLONIAL AFFAIRS

V THE GOVERNOR’S ROLE IN IMPERIAL MATTERS

VI THE RELATIONSHIP OF JUDGES TO THE EXECUTIVE AND THE LEGISLATURE

VII ASPECTS OF VICTORIAN AND AUSTRALIAN CONSTITUTIONAL DEVELOPMENT

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