Expedient McCulloch 

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

http://www.austlii.edu.au/au/journals/MelbULawRw/2001/6.html#fnB22

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]

[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.

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