Higinbotham and tack

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]

r 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.

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