great position with regard to the change introduced by the new constitution. Briefly put, the views of the Governor on the subject may be stated thus:

1. The Governor must choose as his Ministers persons acceptable to Parliament, and must accept their resignations when it is evident that they are no longer so acceptable.

2. But he cannot be forced to appoint persons in whom he cannot place confidence, for that would be to betray his trust as the Crown's agent. He is responsible to the Crown, as they are to the Parliament.

3. Every measure 1 submitted to Parliament must previously receive the sanction of the Governor, and refusal to sanction a measure advocated by the Ministers will be a good ground for resignation, but not for persistence in the measure. Yet the Governor does not desire "to interfere with the arrangements of the Ministry, or be a party to their consultations."

4. The 37th clause of the Constitution Act, vesting the appointments to public offices in the Governor with the advice of the Executive Council, must be understood to give the Governor a substantial voice in the disposal of patronage, and the Governor will not sanction "the appointment of persons whose sole recommendation may be advocacy of certain political principles." 5. Communications with and appointments by the Governor are to be conducted through the medium of the Colonial Secretary. The only exception to this rule is the case of communications between the Governor and the Attorney-General.

6. Each official will take charge of the business of his own department, without directions from the Governor.

7. No discussion of policy is to be allowed at meetings of the Executive Council, except in the single case of death sentences, as to which the Governor retains his old position.2

8. The Governor still retains the sole authority in military and naval matters.3

When the contents of this Minute became known, they excited loud opposition, but it is very doubtful if Sir Charles Hotham really intended by them anything derogatory to the theory of Responsible Government. The most exceptionable points are those relating to the principle of public appointments (including the Ministerial offices) and the sanction required to the introduction of measures. But dispassionately

1 So the text. It is possible that it may mean only "Government measure," or Sir Charles may have thought that the old practice which required that all legislation should initiate with the Ministry should be continued.

2 Sir Charles Hotham had, on the 1st November, commuted a death sentence against the views of his ministers. (Minute of Executive Council, sub date.)

3 Copy in minute of V. and P., 1855-6, ii. p. 581.

CHAP. XXII

SIR CHARLES HOTHAM'S VIEWS

213

read, and read in the light of surrounding circumstances, it seems most probable that by his expressions the Governor simply meant that he reserved the right, as an Imperial representative, to veto appointments and measures which he regarded as absolutely pernicious. And, regard being had to the cautious wording of the Constitution Act, it hardly seems clear that he was wrong in this view, while his announcement of his intention to take no part in the deliberations of the Cabinet and to receive communications and exercise patronage only through the Premier,1 shows that he accepted some at least of the most important principles of Responsible Government.

Although, as has been said, this document afterwards provoked much discussion, it does not appear to have had much immediate effect on the mind of the officials immediately concerned, for we find the latter, a few days afterwards, admitting that it did not appear to them to need immediate reply.2

It is probable, therefore, that this Minute, though received on the morning of the 23d November, was not the subject of the conversation which Mr. Haines had with the Governor prior to the opening of the Council on that day, and to which he alludes in his letter of the 24th.4 The object of this letter is to request the Governor to "relieve myself and my colleagues from the very embarrassing position in which we find ourselves placed," and its meaning is explained by a second letter addressed by the Attorney-General to His Excellency on the same date, and which was forwarded on the morning of Sunday the 25th,5 by Mr. Haines himself, to the Governor. From Mr. Haines's last letter we gather that he (Mr. Haines) had had another interview with the Governor on the preceding (Saturday) evening, on the mysterious subject which was troubling him, and that the Attorney-General's opinion on the topic had been taken at the Governor's request. The opinion stated that the officials holding under commissions granted

1 The actual words used are "Colonial Secretary."

But at this time the

Colonial Secretary had precedence by Royal Instructions of 11th March 1852. (Original in Treasury office at Melbourne.)

2 V. and P., 1855-6, i. p. 763.

4 Copy in ibid. ii. p. 577.

6 Copy in ibid. p. 578.

3 Cf. ibid.
5 Ibid. p. 578.

before the proclamation of the Constitution Act are politically irresponsible under the old Act, while at the same time "they continue to hold offices, the occupants of which are responsible not merely legally but politically; and thus their position is most anomalous." And the Governor is advised that "new commissions should be issued to all officers who it is contemplated are to become politically responsible." 1

Hereupon, on the following day, the 26th November, the Governor sent a circular letter to each of the four officials whose resignations of office, when announced in the Council on the 27th November, caused so much excitement. The circular announced to each official that, it being necessary to form a new Ministry under the Constitution Act, he would consider himself released "on political grounds" from his office.2 Each official thereupon wrote, accepting his dismissal, and laying claim to a pension under the Constitution Act (§ 50).3 It will be remembered, however, that the first announcement in the Council, on the 27th November, was an announcement of resignation, not of dismissal. The announcement of dis

missal was not made till the following day."

6

Such was the record of events which was laid before the Legislative Council on the 28th November 1855, and read aloud by the Clerk. On Mr. Haines's own motion they were printed, and set down for consideration on the 4th December.7 On that day Mr. Greeves brought forward a series of resolutions emphatically condemning the transaction, and the removals and appointments consequent on it, as "premature, illegal, and void," and censuring the officials for taking office under the Minute of the 23d November, which, however, by this time had been practically withdrawn by the Governor, after a formal protest from the new Ministry. On the 5th December Mr. Campbell, apparently in ignorance of the latter facts, proposed to substitute for Mr. Greeves's sweeping resolutions a simple expression of regret that the officials had not seen fit to protest against the Minute, and a protest against it by the house itself.10 Upon a vote this amendment was vetoed by

CHAP. XXII

DISCUSSION OF THE QUESTION

215

the deciding voice of the Speaker, but when the substantive resolutions were put, they again were lost by a single vote, the officials implicated all voting against them.1

Apparently this ended the matter. The Ministers were all returned to seats in the first elections for the Legislative Assembly, which took place in the spring of 1856,2 they met the new Parliament as a Cabinet, and resigned on the passing of an unfavourable resolution upon the subject of the Estimates, in March 1859.3 Mr. O'Shanassy, the mover of the resolution, was then, in accordance with Cabinet practice, invited to form a Ministry.

The question naturally presents itself, How far was all this manipulation necessary to secure the introduction of Responsible Government? Let us state in brief form the process of events actually proved.

1. 23d November 1855. 2. 26th November 1855.

3. 27th November 1855.

4. 28th November 1855.

5. (Same day.)

Proclamation of the new constitution. Release of the four officials "on political grounds," by letter from Governor sent at request of officials themselves.

Announcement in Leg. Council that the four
officials had resigned.

Announcement in Leg. Council that the
Governor had released the officials "on
political grounds," and that their nominee
seats in Council had thereby become
vacant.
Announcement in Leg. Council that the

same four officials had been re-appointed
to the same four offices, that three other
officials had been appointed, and that the
seven were temporarily appointed to
nominee seats in the Leg. Council.

It is really hard to see why all this process should have been necessary, in fact, to see where at all the difficulty lay. There was a Ministry in existence, its members duly appointed, in the same form as Responsible Ministers. Four of these were members of the Legislative Council. Why could they not continue to hold office till the Parliament met in its new

1 V. and P., 5th December 1855. On the 10th the officials renewed their oaths of office. 2 G. G., 7th November 1856.

3 Victorian Hansard, i. p. 552.

4 The names of the offices were slightly altered, but practically they were the

same.

form? If at the elections four of them had not succeeded in being returned, then there would have been obvious necessity for a reconstruction, entire or partial, of the Ministry. If they had been returned and been met by a vote of want of confidence, then would have been the time to resign. Both these cases were provided for by the 50th section of the Constitution Act.

To this obvious course there seem to have been two objections taken, both of which were groundless.

The first was, that from the proclamation of the new Constitution the officials were intended to be "Responsible," i.e. elected members of Parliament, whose constituents could express their opinion of them upon their vacating their seats for re-election. But it was impossible that this test should be applied till the new Parliament met, and, as we have seen, when the officials were re-appointed, they took nominee, not elective seats.

The second objection seems to have been that, until re-commissioned, the officials were bound to act as the Governor's subordinates, and that consequently, when they faced the Parliament, they would be called upon to defend a policy which might not really be their own. But, as we have also seen, the Governor had obviated this difficulty by offering to take the responsibility of their actions up to the assembling of Parliament. Legally, their positions were precisely the same under both systems. In both cases they were appointees of the Crown; only, under the Responsible system, as a matter of constitutional understanding, the Governor would be bound to follow the views of Parliament in the matter of appointments and dismissals, instead of the views of the Colonial Office. But the new system could not possibly operate until a Parliament in the new form was summoned, for no expressions of opinion by the existing Legislative Council could affect the holders of non-elective seats.

It seems, therefore, abundantly clear that the officials should have stood by their existing appointments till the meeting of Parliament. By the course they took they laid themselves open to grave suspicion of personal motives, and only avoided the disgrace of a condemnatory resolution by the doubtful expedient of voting for themselves.