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3-248 (Original)

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addressee author,male,Legislative Council,un
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Government English
Petitions & Proclamations
Clark, 1975
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To His Excellency the Honorable Sir John Henry Thomas Manners Sutton, Knight Commander of the Most Honorable Order of the Bath, Governor and Commander-in-Chief of the colony of Victoria, &c., &c., &c.
We, Her Majesty's most dutiful and loyal subjects, the Legislative Council of Victoria, in Parliament assembled, beg to approach Your Excellency with assurances of our loyalty and attachment to Her Majesty's throne and person, and with expressions of our earnest hope that this colony may maintain its legitimate position as an integral portion of the British empire.
The annual Bill for appropriating the supplies for the service of the year 1867 (lately received by this House from the Legislative Assembly) contained a vote of £20,000, proposed to be placed at Her Majesty's disposal for the purpose of being applied to the separate use of Lady Darling, the wife of the late Governor. The only ground set out in the Bill for such vote is that it is "in accordance with the resolution of the Legislative Assembly adopted on the 9th May, 1866". [420]
Believing when that resolution was adopted that effect could not be given to it, we took no steps in the matter. But, as soon as we observed in the proceedings of the Legislative Assembly of this session that the subject was revived, we took what we conceived to be the Parliamentary mode of expressing our desire to consider the proposed grant separately, by sending a message to the Legislative Assembly, requesting that they would be "pleased to communicate to this House a copy of the report from the committee appointed by the Legislative Assembly, on the 3rd May in last year, to prepare an address to His Excellency Sir Charles Henry Darling, and to consider and report on the steps the Legislative Assembly should take with reference to his being relieved from his position as Officer Administering Her Majesty's Government in this colony"; that being the mode adopted by the House of Lords in Palmer's case, to be presently alluded to.
Our resort to the above form of procedure produced no result, and the proposed grant came to us in the Appropriation Bill.
If we had been asked to concur in the principle of such a grant, we should have been constrained to express our decided objection to it, for the following reasons - In September, 1865, we were under the necessity of representing to Her Most Gracious Majesty the Queen that Sir Charles Henry Darling, then Governor of this colony, had made himself a party to several acts which we considered were both illegal and unconstitutional, and we prayed Her Majesty "to adopt such measures as to Her Majesty might seem fit for maintaining in this colony the constitution as by law established".
By a dispatch from Her Majesty's Secretary of State, dated 26th January, 1866, Sir Charles Henry Darling was requested to inform this House that "the Queen had been pleased to receive their address very graciously, and that Her Majesty had been advised that the proceedings which gave rise to it were contrary to law, and had given instructions intended to prevent their recurrence".
In a subsequent dispatch, in allusion to an address to the Queen from twenty-two members of the Executive Council of Victoria, Mr. Cardwell wrote as follows. [...]
After information of his recall from the government, and before leaving the colony, Sir Charles Darling declared his intention of appealing to the British Parliament, immediately on his arrival in England, against the decision of Her Majesty's Government.
We are assured by the following dispatch of Mr. Cardwell, addressed to, but which only reached Sir Charles Darling after his return to England, that the decision of Her Majesty's Government was not adopted without full deliberation. [421]
That no such appeal appears to have been entertained justifies us in the conclusion that the grounds of his recall, as laid down in Mr. Cardwell's dispatches, were so thoroughly acquiesced in by all parties in the British Parliament that it was hopeless for Sir Charles Darling to expect that that decision could be - reversed or even modified.
On the 9th May, 1866, the Legislative Assembly resolved to present an address to the Queen, of which the prayer was as follows - "We therefore humbly pray your Majesty to be graciously pleased to sanction the acceptance of the proposed grant to Lady Darling."
The reply to this address was conveyed through Lord Carnarvon in a dispatch, dated 8th December, 1866.
The expression of Her Majesty's inability to sanction the acceptance of this grant is so clear and so decided, that, independently of the objection which, after our complaint of the illegal and unconstitutional acts to which Sir Charles H. Darling had made himself a party. Your Excellency's advisers must have known to exist in this House to any such grant, we are surprised that they should have brought forward such a vote in any shape, much more that they should have recommended the Legislative Assembly to include it in the Appropriation Bill with the general supplies of the year.
We conceive that, to have sanctioned this grant, would have been to abandon the course we have previously pursued with reference to the unconstitutional acts of which we have complained.
We desire, however, to submit to your Excellency, that this vote ought not, in accordance with Parliamentary usage, to have been included in the annual Appropriation Bill.
Under the 34th section of the Constitution Act, the usages of the Imperial Parliament of Great Britain and Ireland must be followed, so far as the same are applicable to the proceedings of the Legislative Council and the Legislative Assembly respectively, until other rules or orders shall have been adopted with the consent of both Houses.
The "usage", therefore, of the Imperial Parliament of Great Britain and Ireland, where no other rules or orders have been adopted, adopted, is, under our Constitution Act, the "law" here, and as binding upon this Legislature as the Constitution Act itself.
We appointed a select committee to search for precedents as to that usage, the result of which is, to assure us that a grant like that to which we have referred, should be the subject of a separate Bill.
No rules or orders affecting that usage have been adopted by this Legislature.
It appears to have been the practice in many cases, after the passing of such Bills, to include the amounts thereby provided in the annual Appropriation Act, and in many others not to include such sums in that Act. But in no case does it seem to have been the usage of the House of Commons to include in the annual Appropriation Act any amount which there were reasonable grounds for apprehending would be objectionable to the other branch of the Legislature. [422]
The case of Mr. Palmer is remarkably confirmatory of this view, both in itself and in the evidence of such usage, brought out in the discussions to which it gave rise, extending over a period of sixteen years.
The usage, therefore, of the Imperial Parliament of Great Britain and Ireland being established, we submit that, in accordance with the 31th section of the Constitution Act, the vote of £20,000 to Lady Darling ought not to have been inserted in the Appropriation Bill, as we are thereby precluded from expressing the independent opinion to which we are entitled.
In rejecting the Bill, however, we have had no intention of withholding our assent to the general supplies for the service for the year, and, if the vote to which we have taken exception should be withdrawn, we should gladly acquiesce in passing the Appropriation Bill.
It may not, perhaps, be out of place to point out another objection to the Appropriation Bill of this year in the form in which it has beers sent to us. A similar form was used in the preamble of a Supply Bill in 1866, and was one of the subjects referred to a conference between the two Houses on the 12th April, 1866. The exclusive right to grant money was then claimed by the Assembly. After considerable discussion, it was abandoned. A new form of preamble, mutually agreed upon by both Houses, was adopted, and was prefixed, not only to the Supply Bill, but also to the Appropriation Bill of last year. To return, therefore, to the abandoned form we can only consider a breach of the compact then made, and as tending to destroy that feeling of amity between the two Houses which we had hoped had been restored, and would for the future be maintained.
We assure Your Excellency we are not insensible to the suffering and confusion which the rejection of an Appropriation Bill may cause; but we feel that it is necessary to confront them rather than destroy the independence of any branch of the Legislature and break down any of those constitutional forms which are the best securities for the real liberty of the people.