Medios químicos:

Federation is not a question of textbooks. Henry Higgins, OR, 10 September 1897, p.346.

Higgins’ impatient remark takes us to the heart of a question not previously explored in any detail by students of Federation: how important were learned authorities in shaping the system that was ultimately adopted? Ironically, the erudite and urbane Victorian lawyer regularly invoked learned authority in his contributions to debate, as did many of his colleagues. Who were these authorities and in what context were they introduced? The chapter which follows will

systematically explore the citation of learned authority by the delegates; first it will identify and discuss the authorities cited and their works and then explore the influence of those referred to by various delegates, with a special focus on how their reading might have influenced their attitudes to the future structure and expected role of the Senate. I will argue that although some authorities were very influential they were not decisive in shaping the Australian Federation and in particular the Senate. Rather, learned authority was used to buttress existing viewpoints, it did not create them, and on at least one important issue the same authority was cited in support of opposite sides of the same argument. The chapter will also examine reasons for the increased use of authorities as the 1890s wore on. By authorities I refer to recognised writers, historians, and political scientists who published works relating to federations and constitutions up to 1898, and which could have been read by the delegates.

Some delegates demonstrated, even occasionally showed off, a thorough

knowledge and understanding of the literature on federations, but it is possible that others read very little. Australian Constitutional historian J.A. La Nauze argued that

34 ‘only a minority could be justly described as well-informed’.1 It can be assumed that most of the delegates would have been familiar with a manual by Richard Chaffey Baker which was distributed to the delegates before the first Convention in 1891.2

In his manual Baker described the American, Canadian, Swiss and South African Constitutions for the information of the delegates which provided them with a summary of the basic principles of Federation in a readily accessible form. In 1897 he published a further work, a pamphlet on various forms of executive government, for the benefit of delegates wishing to unravel the thorny problems of the topic— one close to Baker’s heart.

The work was published in May 1891, after the first Convention, to satisfy the many requests for copies Baker received from interested parties and so would also have been available to delegates to the 1897–98 Convention. Baker was a lawyer and politician who served in South Australia’s Parliament from 1868 to 1901, in both the Legislative Assembly and the Legislative Council, and was President of the Council from 1893. He attended both the Conventions but not the 1890 Conference, and was elected Chairman of Committees in 1897–98. In 1901 he became the first President of the Australian Senate. His was an important contribution to the work of drawing up Australia’s Constitution.

3

La Nauze suggested that the delegates might also have read other ‘elementary text books’ including Robert Garran’s The Coming Commonwealth.

He also provided a list of other authorities for the further edification of the delegates. Baker’s guide is a valuable insight into who were regarded as authorities at the time of the Conventions. Although not all the writers he recommended were referred to in the debates, enough of them were to conclude that many took Baker’s advice seriously.

4

1

J.A. La Nauze, The Making of the Australian Constitution,, (Melbourne: Melbourne University Press, 1972), pp.272-3.

2

Richard Chaffey Baker, A Manual of Reference to Authorities for the Use of the Members of the Australasian Convention Which Will Assemble at Sydney on March 2, 1891, (Adelaide:

W.K.Thomas & Co., 1891). The schedule of books recommended by Baker are listed at Appendix 1. 3

Richard Chaffey Baker, The Executive in a Federation, (Adelaide: C.E. Bristow, Government Printer, North Terrace, 1897).

4_{La Nauze, The Making of the Australian Constitution, p.273; Robert Randolph Garran, The}

Coming Commonwealth, an Australian Handbook of Federal Government, (Sydney, London: Angus & Robertson, Simpkin, Marshall, 1897).

35 was not published until 1897 and so was not available to the earlier meetings of 1890 and 1891. Alfred Deakin, a delegate from Victoria and a future Prime Minister of Australia, described it as ‘one of the most lucid and well digested political

handbooks which we possess on this important subject’.5

Apart from Baker’s manual, which was a useful introduction and probably a spur to the delegates to read about the theories of federalism, the principal published authority was without doubt James Bryce. His name crops up frequently in the debates, usually in relation to his magnum opus The American Commonwealth.

The delegates’ readings naturally enough covered all the issues associated with federation, including the questions of bicameralism and upper houses. As discussed in the previous chapter, the decision to establish a bicameral Parliament for Australia had been accepted without question before the Conventions even began, so it was not then an issue, though occasional remarks from delegates suggest that it was not forgotten.

6 According to Edwin Blackmore, Clerk to the 1897–8 Convention,7 Bryce’s work lay on ‘the Table’ throughout those proceedings.8

5

OR, 30 March 1897, p.288. 6

James Bryce, The American Commonwealth, 1st ed., Three vols., (London: Macmillan, 1888). 7

Edwin Gordon Blackmore, Clerk of the Legislative Council and of the Parliament of South Australia and later the first Clerk of the Federal Senate.

8

La Nauze, The Making of the Australian Constitution, p.273.

The American Commonwealth was first published in 1888 and was the earliest work to comprehensively address the institutions of the United States. It is a work of extraordinary brilliance and was published at a very opportune time for the Australian Federation Conventions. A distinguished British historian and statesman, Bryce published works on history and biography, as well as a study of South Africa after a visit to that country in 1897. Born in Belfast and with strong Scottish links, he was also an MP and

cabinet minister, facts which, by the mid 1890s, would have given his views greater weight than those of many scholars. That Bryce was extensively read by many delegates is clear from the number of times he was quoted in the debates. He was even quoted before the 1890 Conference when Parkes referred to him on the subject of the government’s dependence on the will of the lower house, which meant that ‘no great scheme’ was possible because of the brief rule of

36 governments under the parliamentary system. Parkes then compared it with the United States ‘that unequalled system’ in which the congress had no control over the executive, the president.9

In that monumental work by Mr. Bryce,

Already in 1889 the comparative merits of the two systems were being considered and the opinion of Bryce taken seriously.

His name first appeared during the 1890 Conference where The American Commonwealth was given this glowing testimonial by Deakin:

The American Commonwealth, are summed up, in the most perspicuous and able manner, almost all the lessons which the political student could hope to call from an exhaustive, impartial, and truly critical examination of the institutions of that country with which we are so closely allied. As a text-book for the philosophic study of constitutional questions it takes its place in the very first rank.10

For a more general approach to the history of federalism, Edward Augustus Freeman was the main authority for those described by La Nauze as ‘the more literate’ delegates, especially Josiah Symon and Patrick Glynn who both quoted from him extensively.

This was not all Deakin said about Bryce’s work. He went on to expound from Bryce various facets of the American Constitution of 1787. His discussion revealed that he was thoroughly versed in Bryce’s work and admired it greatly. He also demonstrated his admiration and knowledge of the Constitution of the United States. Only Deakin quoted from Bryce in 1890, but undoubtedly many of the delegates went home and read the work, for it was referred to often in the subsequent Conventions. The inclusion of Bryce in Baker’s list would also have encouraged study of his work.

11

Freeman (1823–1892) was an English historian and a prolific writer. He was appointed Regius Professor of Modern History at Oxford in 1884. His first book was a History of Architecture (1849), and he went on to publish on a wide range of historical and political matters in reviews, books and articles.12

9_{A.W. Martin, Henry Parkes: A Biography, (Melbourne: Melbourne University Press, 1980), p.381.} 10

OR, 10 February 1890, p.25. 11

E.A. Freeman, History of Federal Government in Greece and Italy, ed. J. B. Bury, (London: Macmillan, 1893); La Nauze, The Making of the Australian Constitution, p.273.

12

Margaret Drabble, ed., The Oxford Companion to English Literature, (Oxford: Oxford University Press, 1985).

37 His best known work was his five volume History of the Norman Conquest (1867- 79), his longest completed book, which was read by at least one delegate, Andrew Inglis Clark of Tasmania. Clark considered Freeman to be ‘the English author who has studied the most closely, and written the most exhaustively on federal

government’.13 Another of Freeman’s works, The Growth of the English

Constitution, was referred to by Isaac Isaacs and it is quite likely that other works of his were known and read by the delegates.14

Bryce had been a student of Freeman’s and wrote a not entirely uncritical appreciation of him and his work for the English Historical Review in 1892.15 Latterly Freeman’s work is not held in high regard. According to the Oxford Companion to English Literature he was handicapped by an ‘uncontrollable prolixity’ and that the ‘selectivity of his sources and his eccentric handling of them meant that his work was already being superseded when he died in 1892’.16

Goldwin Smith (1823–1910) was another favourite authority among the delegates, his name cropping up to support a variety of speakers and arguments. He was included in Baker’s list with reference to a journal article ‘The Canadian

Constitution’ in 1887.

Nevertheless his opinions and conclusions on the principles of Federation were taken very seriously by the delegates to the 1897–8 Convention.

17

First mentioned in 1890 by Deakin he was referred to again in 1891 by Edmund Barton, Baker, John Alexander Cockburn, again by Baker, Cockburn and Simon Fraser, in 1897, and in 1898 by Isaacs and Glynn.18

13 OR, 11 February 1890, p.35; 11 March 1891, p.243. 14 Ibid., 26 March 1897, p.180. 15

James Bryce, 'Edward Augustus Freeman', The English Historical Review VII, July 1892. 16

Drabble, Oxford Companion to English Literature, p.368. 17

Goldwin Smith, ‘The Canadian Constitution’, Contemporary Review, July 1887. 18

OR, Deakin, 13 February 1890, pp.96, 98; Barton, 6 March 1891, p.92; Cockburn, 3 April 1891, p.712, 16 September 1897, p.878;Baker, 6 March 1891, p.110, 23 March 1897, p.29; Fraser, 24 March 1897, p.80; Isaacs, 9 February 1898, pp.719, 758, 10 March 1898, p.2183; Glynn, 11 February 1898, p.854.

There is a preponderance here of South Australian delegates which indicates the influence of Baker’s advice on their readings. A pattern can also be seen to emerge of delegates, after hearing the names of certain authorities and seeing them

38 themselves. In this the different pattern of electing delegates to the Conventions, and the break between 1891 and 1897, may have played a part in encouraging the delegates to read recognised works on federation, giving them time to study the subject more closely as well as considering the possibility of being elected as a delegate.

It was Deakin again who gave the lead on Goldwin Smith as only he mentioned him in 1890, though he did not mention him at subsequent meetings. A British historian, Goldwin Smith’s reputation rested mainly on his book Canada and the Canadian Question (1891).19 This came after the article recommended by Baker but was probably a useful reference for the delegates who viewed Canada as an example of a successful Federation of separate British colonies and looked to the Canadian experience for models and danger signals. Smith’s opinions of the Canadian federation were not flattering, especially his unfavourable views on the idea of a nominated Senate.20 The Canadian Senate was nominated and, in Smith’s opinion, did not work well.21 Not everyone admired his work, Fraser

advising the Convention that Goldwin Smith was ‘thoroughly disrated in that part of the world’ [Canada].22

An interesting and seemingly restless character, Goldwin Smith was a prolific writer, expounding his controversial views on democracy, imperialism, and studies in social science and literature, and it is likely that other works of his were familiar to the delegates, The United States: an Outline of Political History (1893), for example. Also a professor of modern history at Oxford he later left England for the United States where he held the professorship of English and Constitutional history at Cornell University until 1871, when he moved to Toronto, where he remained for the rest of his life. Goldwin Smith’s history has lost much of its credibility because of his extreme racist views, especially his anti-Semitism. As Hugh Tulloch, an

19

Goldwin Smith, Canada and the Canadian Question, (London: Macmillan, 1891). 20

OR, Barton, 6 March 1891, p.92. 21

Canada’s Senate is still an appointed body. Smith, Canada and the Canadian Question, p. 163. 22

39 English historian writing in 1988, put it: ‘In isolation Smith succumbed to a racial paranoia’.23

Another authority recommended by Baker was Albert Venn Dicey

Professor of Common Law at Oxford. He was a respect whose work An Introduction to the Study of the Law of the Constitution

regarded as a seminal work and guide to the understanding of the British Constitution. His biographer, Richard Cosgrove, commented, ‘The clarity of his prose made the work accessible to a wide spectrum of educated opinion’. He goes on to say that Dicey reduced the complex topic to three concepts: parliamentary sovereignty, the rule of law, and constitutional conventions (unwritten rules).24 Three of Dicey’s works were listed by Baker, but the one of most interest to the delegates was An Introduction to the Study of the Law of the Constitution

sometimes referred to simply as The Law of the Constitution. Andrew Joseph Thynne and Cockburn quoted Dicey twice in 1891, and though neither of them name the work, Cockburn speaks of his ‘admirable work on Federal

Government’.25 In 1897 Isaacs brought Dicey in to support his argument against equal representation in the Senate and named his source as Dicey’s The Law of the Constitution.26 In 1898 Bernhard Ringrose Wise also brought Dicey and the same work into his argument on legal matters.27

Though not mentioned by other delegates it can be assumed that with Baker’s recommendation and Dicey’s reputation as a leading constitutional scholar of his day, his work was not unfamiliar to the delegates and must have had some influence on their thinking. Bryce, Freeman, Goldwin Smith and Dicey were colleagues and contemporaries in the Oxford milieu of their era and were familiar

23

Hugh Tulloch, James Bryce's American Commonwealth: the Anglo-American Background, (Woodbridge: Royal Historical Society: the Boydell Press, 1988).

24

Richard Cosgrove, ‘Dicey, Albert Venn, (1835-1922)’, Oxford Dictionary of National Biography, 2004, vol.16, p.44. 25 OR, 10 March 1891, p.198. 26 Ibid., 10 September 1897, pp.212-3. 27 Ibid.,1 March 1898, p.1686.

40 with each other’s views. Bryce even dedicated his American Commonwealth to Dicey.28

Walter Bagehot, a 19th century British economist and commentator, was another English authority referred to by the delegates, though mostly in the later stages in 1898.29 His book The English Constitution, first published in 1867, explored the constitution of the United Kingdom and considered the contrasts between the British and American systems. Bagehot’s work came to be regarded as a standard work on government and his observations on the role of the monarchy and the executive influenced interpretations well into the 20th century.30

Some less frequently cited authorities were the more specialist writers John George Bourinot (1837–1902), a Canadian author, and Erskine May (1815–86), a parliamentary specialist whose views on procedure were canvassed by some delegates. Bourinot and May were writers with some points in common. Both were parliamentary officials and both wrote accounts of parliamentary procedure as they saw it in their respective institutions. Bourinot, a journalist and parliamentary

reporter, was an officer of the Canadian Senate and House of Commons. He derived his authority from his experience in these positions, and in his role as Clerk of the House of Commons would have advised the Speaker and other members on parliamentary procedure. La Nauze unkindly described him as ‘one of those worthy parliamentary officials who (like Blackmore in his own sphere) were content to compile rather than analyse’, and his work as ‘mostly … uncritical and

For the delegates it was Bagehot’s decided views on the superiority of the British cabinet system of government over the United States Presidential system, which he considered to be flawed and inflexible, that were particularly relevant. His work provided his readers, amongst whom were Baker, Glynn, and Isaacs, with insights, information and conclusions on various aspects of constitutions and of government.

28

Tulloch, James Bryce's American Commonwealth: the Anglo-American Background, pp.37-8, 21, 26, 38-44.

29

Walter Bagehot, The English Constitution, (London: C. A. Watts, 1964). 30

Joseph Hamburger, ‘Bagehot, Walter, (1826–1873)’, Oxford Dictionary of National Biography,

41 descriptive’.31 Baker listed two of Bourinot’s books in his manual: Federal

Government in Canada (1887) and the Manual of the Constitution of Canada. But from the quotations mentioned in the debates it is clear that other works of his were read by delegates. Joseph Abbott for example described Bourinot as ‘a great

constitutional writer … who is accepted as an authority on most matters relating to parliamentary law, and who is continually quoted as a constitutional authority throughout the British Empire’.32 First referred to by John William Downer in 1891, he was also quoted by Isaacs and Deakin in 1897 and Symon in 1898, usually on procedural matters.33

May served a long period at Westminster. He rose through the ranks from assistant librarian to become Clerk of the House of Commons from 1871 to 1886. During his service he wrote several works on Constitutions but it was his Parliamentary

Practice, first published in 1841, that would have been of most interest to the Convention delegates. His work was not listed by Baker but it had been used by