In this temper the council met on the 3rd of October. Mr. Gregson called the attention of the members to a question submitted to Mr. Francis Smith, a barrister: Whether, as chairman of a committee, the governor had a deliberate and casting vote, and whether the quorum required by law at a meeting of council was requisite in committee; and thus whether the estimates were legally passed through the committee, the numbers present being less than one third, and the governor giving his double vote. Mr. Smith gave his opinion that the estimates were in law rejected instead of carried; but the chief justice considered the sitting of committee merely a convenient method to sift beforehand items afterwards to receive a legal sanction in the council. The attorney-general without notice was unprepared to give an opinion, and a motion of Mr. Gregson for delay was lost. The colonial secretary then moved the third reading of the obnoxious bill, when Mr. Dry rose to read a minute, signed by the members in opposition, objecting to the proceedings. This being rejected as irregular, Mr. Gregson proposed that the third reading should be delayed that the members dissenting might bring forward other estimates. In urging this motion he rebutted the "disloyal" imputation, and referred the governor to the unity existing in the country party in proof that inevitable necessity alone had prompted the co-operation of persons hitherto adverse. This motion being lost—before the Appropriation Act could be carried—the opposition quitted the council. Those remaining did not constitute a quorum, and the legislative session was abruptly terminated. The Gazette of November the 4th announced that Charles Swanston, Michael Fenton, John Kerr, William Kermode, Thomas G. Gregson, and Richard Dry, Esquires, had resigned their seats.
The obligation of the official members of the council to vote with the governor on all government questions had been long before decided. The non-official were only bound by their oaths to assist in all measures necessary for the good of the colony, but the nature of their powers and the proper mode of their exercise were subjects of dispute. Wilmot maintained that they were assisting in "a council of advice" on subjects submitted to their judgment, and were not qualified to question the general policy of the executive. All beyond a simple aye or no he deemed usurpation. Thus when they demanded papers, called for committees, and obstructed obnoxious measures by the artifices of parliamentary debate, they were charged with forgetting the duties of their office. These gentlemen, however, maintained that it was their duty to hold the executive in check on behalf of the people, and that whatever was not abstracted from their supervision by specific laws was proper for their consideration. The governor claimed a deliberate and casting vote; and thus one non-official member, by concurring with the executive, or even by abstaining from voting, neutralised the voice of the rest. The official members had no discretion allowed. Lord Stanley had ruled that, choosing to assume relations disqualifying them to vote with the governor, they were perfectly free to do so; but having done so, they could not retain their employment. He alleged that there would be an end of official subordination, and that the public service would be brought into serious discredit by allowing a different course. He admitted that exceptions might occur, but their force was left to the judgment of the governor.[245] This decision reduced the official debates to a mere pantomime, and a seven-fold vote would have better expressed the real character of the legislature than the disguise of separate suffrages. The chief justice was alone independent.
Having resigned their office, the six sent a letter of explanation to Lord Stanley. In summing up their complaints they asserted that they were called on to vote an expenditure the colony could not bear,—to anticipate a revenue higher than the customs department calculated on receiving; that they were denied information, although they were bound to deliberate; that they were expected to augment an alarming debt, and, when crime was increasing, to diminish police protection; that they were told by the governor he would carry the estimates by his casting-vote, before they refused to pass or had examined them; that the governor claimed power to borrow and spend without legislative consent; and finally, that discussion and enquiry were denounced as factious, unconstitutional, and disloyal: under these circumstances they resigned their seats, as the only open course, and submitted their conduct to the judgment of the Queen.
The opposition to the measures of Wilmot could not be in every instance justified if separately considered. But the colony discovered in the governor an inflexible determination to carry out the system of probation under the instructions of Lord Stanley. It was not possible to resist the secretary of state, the chief aggressor. The imperious tenor of his despatches taught the people that mere remonstrance would be unavailing. They could only arrest his attention by involving his agents in embarrassment. Repeated motions for the attainment of the same object are certainly incompatible with legislative order. A small party might retard the public business, and gain no good end by delay; but the exact line between fair and factious opposition is not easily discovered and can be often only ascertained by the result. In this instance the object was clearly expressed in a rejected resolution:—"This council do decline voting the sums stated in the estimates laid on the table for the payment of the judicial, police, and gaol establishments during the ensuing year, as far as the expenses of the convict department with respect to those items are incurred. At the same time they desire to place on record an expression of regret that they should, by a sense of duty, be compelled to adopt any measure likely even temporarily to embarrass his excellency's government."[246]
The cause of "the patriotic six," as they were called, was eagerly espoused by the colony. To supply the vacancies occasioned by their retirement was the labor of weeks. The governor defended himself from the charge of despotism, and declared that he would never interrupt the freedom of debate or attempt to force the compliance of the council. The opposition press held up to scorn those disposed to accept a nomination, and gentlemen who did so were assailed with scandalous abuse,—so easily is the noblest cause degraded by its friends. A more suitable expression of popular feeling was given on the return of Mr. Dry to his native town. He was escorted by a large concourse of people and with all the usual tokens of public esteem. The father of Mr. Dry was exiled during the political troubles of Ireland in the last century, and after a respectable career attained considerable wealth. The son, the first legislator chosen from the country-born, the colonists saw with pleasure consecrate himself to the cause of his native land. Mr. Gregson, the leader of the opposition, was honored in a more substantial form. A body of his admirers, by contributions of large amounts, raised a testimonial in the shape of 2,000 guineas, and plate with a suitable inscription. On no previous occasion had public sympathy so attended political controversy, and never was the legislative freedom of the country more earnestly desired.
FOOTNOTES:
[232] Agricultural Dinner, October 18, 1843.
[233] Despatch, June 28, 1843.
[234] Despatch, No. 34, 1843.