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In the political processes required to achieve [a single nation in a continent, a federation and a federal constitution] it was important for the Australian people to find representatives who would devote time and energy to those aims, negotiate the necessary agreements and compromises, and speak to the public in words that carried conviction. Barton was one of the politicians who accepted this responsibility. Eventually he was thought by his colleagues to have shown such devotion to the cause that he deserved to be the leader under whom the rest would serve.[48]
Barton could not have commanded support outside New South Wales by oratory alone. He was judged by his performance at the 1897–98 Convention. His contribution was made not so much by the originality or profundity of his constitutional thinking—though he showed more creativity than he has sometimes been credited with—as by his readiness to work unstintingly towards workable compromises. This, as with issues such as women's suffrage and industrial arbitration, sometimes involved abandoning his original conservative position. Practitioners of politics as the art of the possible are seldom seen as heroic, but Barton's continuing struggle to achieve agreement among the strong-willed and experienced members of the [1897-98] Convention was admired at the time, and still commands respect.[49]
The result is obvious. For Professor Bolton,[50] at least two possibilities can be easily rejected. First, 'that Barton was not really important'.[51] Secondly, 'that [Barton] was an amiable and fortunate second-rater who reached the history books by accident.'[52] However, in this context, as elsewhere,[53] adopting either extremity—pre-eminence or irrelevance—is unnecessary and, perhaps, distorting. Federation and the Australian Constitution[54] involved a multitude of complex, shifting and opposing views;[55] boisterous events;[56] quiet, perhaps secret, negotiations, compromises and decisions;[57] and a wide range of differing personalities.[58] Within this mosaic, Edmund Barton ought to be welcomed and utilized.
Undoubtedly, Edmund Barton was important and influential in many, but not all,[59] of the meetings, events and decisions which eventually led to federation under the Australian Constitution. Even without all of the primary sources,[60] whether missing or destroyed Barton papers,[61] other framers' documents[62] or records of the Constitution Convention's Committees,[63] a catalogue of Barton's achievements provides ample supporting evidence:[64] Delegate to the 1891 National Australasian Convention;[65] leader of the 1897–1898 Australasian Federal Convention[66] and of the 1900 Australian delegation to the United Kingdom;[67] member of both drafting Committees,[68] in 1891 with Samuel Griffith, [69] Charles Cameron Kingston[70] and Andrew Inglis Clark[71] when drafting the Constitution Bill occurred not only on board the Queensland government's steamer Lucinda[72] in Refuge Bay on the Hawkesbury estuary but also in Sydney and in 1897–1898[73] with John Downer[74] and Richard O'Connor,[75] assisted by Robert Garran,[76] with drafting occurring in Downer's house in Pennington Terrace, North Adelaide,[77] in Sydney and in the Grand Hotel[78] number 103 Spring Street, Melbourne.[79] Edmund Barton does not travel through the minutiae of the 1891 or 1897–1898 Convention debates or Committee proceedings as delegates inserted, amended and deleted words, phrases and provisions throughout the numerous versions of the draft Constitution Bill.[80] More general glimpses are available:
The [1897–1898] Drafting Committee was to remain in being [from Thursday 8 April 1897] to [Thursday 17 March 1898] the very last day of the Convention, nearly a year later. Its members would be more continuously at work than any other of the delegates. They would spend many, many hours as a group around a table.
...
[Barton's work load as Leader of the Convention and Chairman of the Constitutional Committee from 8 April 1897 had the] addition ... of constant drafting and re-drafting performed when most members of the Convention were at leisure. His companions on the Drafting Committee took their proper share of the new task, but they could relax, or take time out, during the meetings of the Convention more easily than [Barton].
...
The ultimate demonstration of trust was the acceptance, on the last business day [Wednesday 16 March 1898] in Melbourne, of some four hundred verbal amendments proposed by the Drafting Committee.
...
Until the Drafting Committee were satisfied the Convention would have to remain in session. Barton and Garran were continuously scrutinizing the text of the Bill, reconsidering the wording of amendments carried during the sittings, and incorporating suggestions thrown out in discussion. During sittings Barton covered the blank pages of his interleaved copy with notes on which he would brood when other delegates were in bed. His or Garran's revisions were mostly verbal but occasionally a matter of substance would be revealed, and that would require discussion and decision by the Convention.
....
The Drafting Committee had [on 12 March 1898] begun with a clean, well-spaced printed text, but every page of this copy is scribbled over in Barton's neat, pencilled writing. Scarcely a paragraph or even a sentence stands uncorrected, whether verbally, in punctuation or in capitalization, and there are numerous instructions to the printer on the interleaved pages. Drafting and proof-correcting are not exciting activities, but there is a certain dramatic interest in this document when it is remembered that the intensive corrections were written by [Barton] who had now led a critical assembly day after day for eight weeks. Barton's [drafting] colleagues took their share of the work, but he led them as he led the Convention.[81]
From this perspective Barton's role was not merely to provide ideas and suggestions as to how to encapsulate in statutory language decisions and policies previously agreed to by the Conventions. Barton wielded the pen and wrote a good many, but not all,[82] of the Constitution's words. Even so, two issues—first, that, in addition to the drafting committees, others made substantial contributions to that wording[83] and secondly, that Barton was carrying out the Convention's bidding[84]—raise a crucial, perhaps, unresolvable question: Which words, phrases and provisions (especially those which have had enduring importance and significance) did Barton originate or substantially shape, alter or remove? Unfortunately, even a handwriting analysis could not determine or reveal on which side of the dichotomy specific words and phrases should be placed: words which were merely Barton's transcription of other persons' ideas and words conveying his position. No doubt a good deal of the Constitution's text is a mixture, possibly uneven, of both.[85]
Adding to this catalogue of achievements is not difficult, and, of course, Edmund Barton, almost unremittingly,[86] does so.[87] For example, in addition to the Conventions and their committees, Barton attended many other meetings and rallies, including the 3 July 1893 Sydney Town Hall meeting to establish the Australasian Federation League,[88] the 16–21 November 1896 Bathurst People's Federal Convention[89] and the 28 March 1898 Sydney Town Hall meeting featuring George Reid's Yes–No speech.[90] But even Professor Bolton concedes some ground:
The reality was otherwise. Out of parliament, with no official position, no outside source of funding and a legal practice to nurse, Barton was in no situation to take [to] the road whipping up zeal for federation. Search[es] through the rural press of 1895 and 1896 reveals very little activity of the kind described by [John] Reynolds [in Edmund Barton (1948)] until the Bathurst People's Conference late in 1896 and the approach of the second Federal Convention. When delegates were elected for the 1897 Convention, rural districts showed a lower turnout than Sydney and the larger towns. It was difficult to keep up impetus without the goal of a popular vote on federation and it would be the referenda of 1898 and 1899 which brought Barton travelling the country as spokesman for the cause.[91]
Perhaps, Barton's position becomes even worse. Again, Edmund Barton retreats:
Barton [in the 27 July 1898 NSW general election campaign in his contest with Reid for the Legislative Assembly seat in the King division of central Sydney[92]] made much of his mandate as the delegate who had topped the [5 March 1897 NSW election] poll for the [1897–1898] Convention and later been accepted as its leader. And [Barton] began to re-write the history of the federal movement in a way which has misled later historians. The lean years of 1895 and 1896, when Barton preached the gospel of the Federal League to small and apathetic audiences in the suburbs of Sydney, were gradually transformed into a national crusade. ... Consciously or otherwise, [Barton] was transferring his achievements during the [24 March–2 June] 1898 referendum campaign to his much less encouraging experiences two or three years earlier.[93]
From the opposite direction, just as easily a catalogue can be compiled pushing Barton, if not into irrelevance, towards somewhat less importance.[94] Prominent on any such list would be those important occasions when Barton was not a participant.[95] Classic examples might be the 1895,[96] 1896,[97] 1899[98] and 1900[99] Premiers' Conferences;[100] the 1893 Corowa Conference;[101] the June 1897 Premiers' visit to the United Kingdom,[102] including George Reid's discussions with Joseph Chamberlain, UK Secretary of State for the Colonies and Law Officers of the Colonial Office who provided to Reid three 'secret memorandums' suggesting changes to the 1897 Draft of the Constitution Bill adopted at the Adelaide Convention Session.[103] Of course, Barton's mere physical absence may not have been crucial if his 'brooding omnipresence'[104] meant not only that his influence was felt but also, at least in some important situations, was decisive.[105] Edmund Barton provides a possible example:
[Barton] had not been a mere bystander while [Premier George] Reid negotiated [at the Sunday 29 January to Friday 3 February 1899 Melbourne Premiers' Conference]. It happened that during a holiday in Adelaide with the Downers before the conference [Barton] had spoken with [the South Australian Premier, Charles Cameron] Kingston and [the Western Australian Premier, John] Forrest, and while passing through Melbourne on the way home [Barton] saw [the Victorian Premier, George] Turner, [the Tasmanian Premier, Edward] Braddon and [the Queensland Premier, James] Dickson. [Barton] preached compromise to them all. 'I may venture to hope,' he told an interviewer, 'that I may have had some influence in bringing about the very amicable and patriotic tone in which the proposals ... have been met.'[106]
Refutation, once more,[107] is provided by Professor Bolton:
[T]he [1899 NSW] parliamentary session ended with Reid still in office and in charge of negotiations with the other premiers.
[Professor McMinn] Reid's biographer argues that [Reid's] 'great contribution ... [to Australia between the Town Hall speech of March 1898 and the Melbourne Premiers' Conference ten months later] was made at the expense of [Reid's] own political position' ... But Barton could not be sure that [Barton] had gained ground during 1898, for although [Barton] had led the [1897–1898] Convention there had been disappointments later. Having failed to muster a big enough 'Yes' vote at the [3 June 1898 NSW] referendum, [Barton] was unable to topple Reid at the [27 July 1898 NSW] general election; and although the [23 September 1898] Hastings and Macleay by-election resulted in success [for Barton who won that NSW Legislative Assembly seat], he had not improved on [William] Lyne's performance as leader of the opposition. However unwillingly, [Barton] must still trust Reid's performance at the [1899] premiers' conference and side with [Reid] in overcoming the opponents of Federation in the [NSW] Legislative Council and the country.[108]
In addition, there is a further question which might be added to this catalogue of caveats: Did Joseph Chamberlain on two occasions alter the text of the Constitution Bill against Barton's preferred position? First, are the three 1897 Colonial Office memoranda: Memorandum A listing amendments to the Adelaide session's draft Constitution Bill relating to the United Kingdom's imperial interests such as appeals to the Judicial Committee of the Privy Council;[109] Memorandum B providing reasons for those amendments; and Memorandum C criticising five of the Constitution Bill's covering clauses and 75 out of the 121 other clauses in that Bill.[110] 'Reid privately passed [all three documents] on to Barton'[111] after he had obtained them from Chamberlain. Edmund Barton brushes aside their importance:
Barton went through the material thoroughly. Once or twice his irritation exploded. ... For the most part he gave the English suggestions careful attention, but resisted their tendency to go into points of finicking detail. ... There lay ahead the task of negotiating [the] principle [that the Bill was 'not a body of laws ... but a Constitution'] with the products of a British political system priding itself on having no written constitution. For the moment [in 1897] more immediate problems appeared.[112]
However, a different perspective—qualitatively and quantitatively—also exists.
[Barton made] marginal notes on Memorandum A and B and nineteen pages of notes on Memorandum C. ... In addition to the light they throw on the [questions of whether and when Reid gave these three Colonial Office memoranda to Barton and other members of the 1897–1898 Drafting Committee] ... these notes give valuable insight into the work of the Drafting Committee and their understanding of the meaning of many clauses in the Constitution.[113]
During the [1897] Sydney and [1898] Melbourne Sessions [of the Constitutional Convention] a number of the amendments desired by the Colonial Office were unobtrusively incorporated into the Constitution. ...
...
[I]t is clear that the British memoranda were not only used by the Drafting Committee, but were of value to them. The imperial intervention in the constitution-making process did not affect the basic character of the Constitution, but it did help to make it a better Constitution.[114]
Secondly, in 1900, despite Barton's initial position[115] that there should be no changes to the Constitution Bill, which had been approved at the 1899 referenda in all colonies other than Western Australia,[116] Chamberlain achieved further amendments to that text.[117] The Australian delegation—Barton, Deakin, Kingston, Dickson, Fysh and Parker—met with Chamberlain on seven occasions in 1900—15 March, 5 April, 23 April, Wednesday 9 May, Monday 14 May, Tuesday 15 May and Thursday 17 May—submitted three memoranda to and received two memoranda from the Colonial Office.[118] Several amendments were made,[119] including amendments to clause 74.[120] So far as possible, Barton wanted to preclude appeals to the Privy Council from Australian courts, especially constitutional law decisions. Chamberlain wanted to retain the Privy Council's discretion to grant leave to appeal in all cases, including constitutional law litigation. The great compromise occurred after dinner over port and cigars on the night of Monday 14 May 1900.[121] Two questions provoke some controversy: Who initiated that compromise which culminated in s 74's inclusion in the Constitution? Who won?
Apparently,[122] the compromise over appeals from Australian courts to the Judicial Committee of the Privy Council[123] emerged at the end of this 'little dinner' over 'port and cigars'.[124] Several persons attended the dinner: Barton, Kingston, Dickson, Deakin, Chamberlain, Arthur Balfour,[125] Gerald Balfour,[126] John Morley,[127] and Lord Selborne.[128] Prominent absentees[129] included Fysh and the Colonial Office Law Officers. Before port was consumed and cigars were smoked at least 'Dickson and Deakin had left'[130] this intimate gathering. Despite having been at the center of negotiations with the Australian delegation and inviting the Australian delegates to dinner,[131] Chamberlain may not have initiated the compromise.[132] However, during port and cigars, it was Chamberlain who suggested the compromise to Barton and Kingston: rather than adopting the extremes of Chamberlain's or Barton's position, there should be an equal division: constitutional law cases decided by the High Court of Australia involving only Australia should be constitutionally precluded from the Privy Council's appellate jurisdiction and constitutional law cases with wider imperial ramifications ought to be able to be appealed from the High Court to the Privy Council.[133] Both sides moved to and agreed with that middle position. The third great compromise[134] had been accomplished. What remained was to put this 'port and cigars' agreement into the appropriate form of statutory[135] words for inclusion in the Constitution's text.[136] Finally, s 74, in all its glory,[137] emerged.
Even initially, Barton thought that the Australians had won:
On [Thursday 17 May 1900 Barton, Kingston and Deakin] had a private interview with Chamberlain at his room in Parliament House at which [Chamberlain] was, though somewhat elated, as precise, prompt and calm as ever. They then went to [Attorney-General] Finlay's room ... where a new draft [of s 74] was accepted. When the door closed upon them and left them alone, [Barton, Kingston and Deakin] seized each other's hands and danced hand in hand in a ring around the centre of the room to express their jubilation.[138]
That was not the view of Chamberlain:
From that day to this there has been a difference of feeling about the merits of the final agreement. Some writers represent that the Australian stalwarts danced a private fandango, so complete was their victory under the colour of compromise. That the Colonial Secretary was too much for them is asserted by other accounts. He (Chamberlain) put it in his own way: 'They have got what they wanted and I have got what I wanted.' This is the spirit of the truth, though not literally exact. Neither side won all it originally strove for, but each gained what it most desired.[139]
A subsequent Chamberlain biographer is less equivocal:
The delegates of the federating colonies of Australia came with their bill to London insisting that they could not accept any amendments. Chamberlain did not deny that they enjoyed strong support in Australia for the clause he wished to contest. But he used whatever shades of resistance he could discover in Australia to fortify his stance on behalf of the empire. He appealed to the colonial premiers in Australia against the non possumus of the delegates in London. He voiced the concerns of trading and financial interests in Australia and Britain. He exploited opposition from New Zealand and Western Australia to restrictions on appeals to the Privy Council, even though New Zealand would not and Western Australia might not join the federation. He wooed one of the state delegates in London over to his side. Then he could claim that three of the seven Australasian states agreed with him. When he made his opposition to the offending clause public knowledge, the first reactions from Australia were calm—which Chamberlain interpreted as acquiescence.
He may have been right. The strongest opposition in Australia to imperial claims came from recent immigrants, particularly those from Germany and above all Ireland, rather than from those born in the sub-continent. The delegates in London eventually agreed to a compromise which limited the restriction on the right of appeal to the Privy Council to cases between member states or between a state and the federal government about the interpretation of the constitution; and in special circumstances even these cases could be the subject of appeal to the Privy Council. The agreement was a genuine compromise. Both Chamberlain and the Australian delegates conceded more than they wished. The balance of advantage in the settlement was to Chamberlain, but it did not bode well for his hopes of further imperial consolidation.[140]
Achieving a substantial alteration[141] of that text against Barton's no change position, Chamberlain clearly gained a victory. However, subsequent and reasonably rapid developments,[142] without a s 128 amendment,[143] have terminated s 74 appeals to the Privy Council.[144] Therefore, from a longer term perspective, these events may well justify Barton's willingness to compromise and, in this context, vindicate awarding him, not Chamberlain, the ultimate accolade.
Over four months[145]—Tuesday 1 January 1901[146] to Thursday 9 May 1901[147]—elapsed before Edmund Barton,[148] the first Australian Prime Minister,[149] became a member of the Commonwealth Parliament. During that period, the Commonwealth executive alone[150] interpreted and implemented[151] the Commonwealth Constitution. Subsequently, the legislature and executive were, without a dominant partner,[152] joined.[153]
From 9 May 1901, the Senate and House of Representatives also began interpreting and implementing[154] the Commonwealth Constitution.[155] One result was the enactment of several major statutes:[156] Immigration Restriction Act 1901 (Cth);[157] Pacific Island Labourers Act 1901 (Cth);[158] Customs Act 1901 (Cth); Acts Interpretation Act 1901 (Cth); Commonwealth Franchise Act 1902 (Cth); Commonwealth Public Service Act 1902 (Cth); Defence Act 1903 (Cth); Senate Elections Act 1903 (Cth); Naval Agreement Act 1903 (Cth);[159] Judiciary Act 1903 (Cth).[160] Others included 'the Senate assert[ing] its muscle immediately on receiving the first supply bill';[161] Australia's involvement in the Boer War;[162] and official government communications between Australia and the United Kingdom government.[163]
Perhaps, like the US Congress and President,[164] this raises an intriguing question: Does the formative period—1 January 1901 to 7 October 1903—represent something of a continuing constitutional convention? From two perspectives—personnel[165] and structural edifices[166]—an affirmative answer may be warranted. Without the High Court or federal courts[167] and, perhaps, as envisaged during the 1890s,[168] the constitutional foundations of a federated Australia continued to be laid.[169] Edmund Barton does not focus on this dimension. For at least one reason that is regrettable: Barton was uniquely positioned and involved in traversing this constitutional terrain.
Only one person—Edmund Barton—has occupied both offices: Prime Minister of Australia and Justice of the High Court of Australia.[170] Previously, Barton had been an acting New South Wales Supreme Court judge and declined an offer of appointment to that Court.[171] Subsequently, he was Acting Chief Justice of the High Court[172] and decided 'a few cases' as a member of the Judicial Committee of the Privy Council.[173] Within that milieu, Edmund Barton utilises an array of sources—law reports,[174] judges' notebooks,[175] letters,[176] telegrams,[177] vignettes, and reminiscences[178]—to expose a litany of details about the Constitution and its practical operation.
Appointments, non-appointments and resignations related to the office of justice and chief justice of the High Court, but not removal,[179] during the 1903–20 period reveal, behind s 72(i) of the Constitution,[180] intrigue rather than mystique.[181] Some, including Clark[182] and Downer,[183] were not appointed.[184] Others attained those judicial offices.[185] In each circumstance, the intrigue lurks behind a single question: Why? Griffith's appointment occurred because Barton 'convinced himself that Griffith should be chief justice.'[186] Of course, Barton appointed himself. Sufficient reasons flowed from the prospect of losing the forthcoming general election and the consequential diminution of money, power and prestige.[187] O'Connor, who had been on the 1897-98 drafting committee with Barton and was the Barton government's leader in the Senate, also may well have not been returned to the Senate both because he was a Catholic and the only protectionist among the contingent of New South Wales senators[188] who, except for O'Connor, were all freetraders.[189] Compared to the covert, almost stealth, politics[190] responsible for these three original appointments, much more overt circumstances propelled and, almost simultaneously, precipitated the termination of the eighth appointment:[191] Albert Bathurst Piddington[192] was a High Court Justice for only 19 days.[193] However, Barton's role during the public controversy,[194] engendered by revelations of a pre-appointment exchange of telegrams between Prime Minister Hughes and Piddington, was private: as a judicial colleague,[195] Barton was consulted by Piddington. The resulting advice, which Piddington did not follow, was firm and clear: do not resign, remain a Justice.[196]
Appointing the second chief justice—Griffith's successor—Adrian Knox[197] again involved a quagmire of personal machinations.[198] Principally, two antagonists—Griffith and Barton—were involved. For the second time,[199] Griffith went 'behind Barton's back'.[200] On 26 July 1919 in Brisbane,[201] Griffith 'suggested to [the Governor-General Sir Ronald Munro Ferguson that] the 56-year-old Adrian Knox [should be appointed Chief Justice]'[202] and requested the Governor-General 'to communicate this advice to [Prime Minister William] Hughes when [Hughes] returned from overseas at the end of August [1919].'[203] The Governor-General did so 'within a week of [Hughes'] return' to Melbourne.[204] However, Barton 'want[ed] the position'[205] and on 15 October 1919 in Melbourne 'raise[d] the matter of the chief justiceship at a private visit to Government House.'[206] Not unexpectedly, given the Munro Ferguson-Barton friendship,[207] the Governor-General, without delay, advised the Prime Minister: Barton wanted to be Chief Justice.[208] It was not to be. On that same day, Wednesday 15 October 1919, Cabinet decided to recommend to the 'Governor-General in Council'[209] that Knox be appointed.[210]
Of course, ensconsed within the first twenty seven volumes of the Commonwealth Law Reports[211] is Barton's public judicial edifice: a range of published opinions[212]—majority concurring and dissenting—covering, for example, constitutional law, criminal law, torts, contracts and statutory interpretation. At this juncture, Edmund Barton merely offers a brief descriptive narrative of a few, predominantly[213] constitutional law,[214] cases. Interpretative analysis, whether from a perspective of jurisprudence, federalism or constitutionalism, is absent.[215] Apparently, undertaking such an enterprise is precluded by one reason:
In assessing Barton's performance as a High Court judge one immediately comes up against the notorious fact that [Barton] almost never dissented from Griffith—not once in the first eight years of the [High] Court's existence. When at last [Barton] did, it was in a civil case where no constitutional or political questions were involved. The tradition has arisen of 'Concurrent' Barton, content inertly to follow Griffith's lead and reluctant to apply an independent intellect to the constitutional issues arising in the early years of Federation ... Of 44 High Court judgments recorded in the Commonwealth Law Reports during 1904 and 1905, Barton was content in nineteen simply to concur with Griffith. Another thirteen were joint judgments in whose composition [Barton] may have shared, but in only twelve cases did Barton deliver a separate judgment, and some of these were brief.
...
From around 1912 a return of energy and initiative could be discerned in Edmund Barton. His judgments ceased to seem an invariable echo of Griffith's, showing greater independence and at times disagreement.[216]
However, sufficient tantalizing glimmers exist, even in Edmund Barton, to suggest otherwise.[217] For example, without elaboration, explanation or an attempt at reconciliation perhaps by an endeavour to elucidate the framers' intentions, two seemingly inconsistent constitutional law positions are attributed to Barton. First, in the context of the doctrine of implied immunity of instrumentalities[218] and Commonwealth legislative powers, especially the conciliation and arbitration power in s 51 (xxxv),[219] Barton is characterized as a staunch federalist 'desperate[ly] defend[ing]'[220] what he perceived to be 'the new [Australian] federation'[221] against 'major shifts in the balance between [the] Commonwealth and States'[222] of constitutional power. Second, in three areas—Commonwealth 'revenue matters,'[223] the Commonwealth Parliament's ability to establish and equip with powers an Inter-State Commission[224] and the impact of s 92's interstate trade and commerce freedom on State legislation[225] —Barton exhibits more centralist tendencies. Pre-eminence, where it is required, should be an attribute of the Commonwealth, not the States. For Barton, the reason is obvious. Without the clarity and succinctness of his earlier aphorism—'a nation for a continent, and a continent for a nation'[226]—Barton repudiated the majority decision in Duncan v Queensland[227] because it 'tends to keep up the separation of [Australia's] people upon State lines by imputing to the Constitution a meaning which I venture to say was never dreamed of by its framers; a meaning which will probably result in the very dangers and dislocations which [the Constitution's] provisions are intended, and, in my judgment, aptly framed, to prevent.'[228] More than prominent among those 'framers' was Barton who reiterated, perhaps more clearly but hidden within the confines of private correspondence, his view and its constitutional justification via the framers' original intent:[229]
[T]he meaning of the decision [in Duncan v Queensland] is that each State will have almost uncontrolled powers of hampering and restricting Trade between the States and their citizens—a power the abolition of which was among the chief reasons for federation.[230]
Given these glimmers in Edmund Barton and the array of sources,[231] more and deeper scholarship on the 'judicial' aspect of Barton (and, of course, other High Court justices[232]) ought to proceed. Inevitably, that will confront important questions: should the traditional view—'Barton [has been] over-rated in Australian professional tradition'[233]—be revised and Barton's standing in the pantheon of High Court justices be rehabilitated?[234] If so, what implications and consequences will that have for Australian law and, in particular, perspectives about the past, present and future of constitutional law?
To assist such evaluations, Edmund Barton provides a further dimension: Barton's unpublished advisory opinions on constitutional law issues.[235] However, compared to the Commonwealth Law Reports, these opinions, often in Australian library archives and the Public Records Office, London, are much less accessible.[236] Their recipients included Governors-General Lord Dudley (1908–11), Lord Denman (1911–14) and Sir Ronald Munro Ferguson, subsequently Lord Novar, (1914–20) and they covered 'many issues'[237] including double dissolution of the Senate and House of Representations pursuant to s57; prime ministerial resignation and appointment under the Governor-General's reserve powers; the Governor-General's 'entitle[ment] to more regular contact with the Prime Minister';[238] the constitutional propriety of opening the Commonwealth Parliament 'without "a King's Speech"' '[239] and of the Governor-General appointing 'a Royal Commission into allegations in the Senate that [Prime Minister] Hughes was corrupt'[240] and the awarding of imperial honours.[241] Apart from conundrums of judicial propriety[242] and the precedential or persuasive value of such opinions by Barton (and other High Court justices[243]), their interpretative analysis may provide a more nuanced and comprehensive panorama of Barton's constitutional views and philosophy.
Intertwined, with these more substantive and overt aspects, is a procedural dimension: What were Barton's decision-making processes? How did he move towards the formulation of judicial reasons, decisions and advisory opinions? What were Barton's work habits and character traits, including his relationships with other justices? Even in Australia,[244] venturing into this sanctum sanctorum is not novel.[245] Indeed, the internal workings of the High Court during Barton's (1903–20) tenure have already been subject to some scholarly exposure.[246] Utilising Barton's judge's notebooks, letters from Barton and his colleagues, Governor-General Munro Ferguson's diary as well as other judicial biographies,[247]Edmund Barton contributes to this growing historical mosaic. For example, in Professor Bolton's opinion, those notebooks confirm an earlier assertion that '[a]s a judge Barton worked very hard.'[248] However, two small contemporary pieces of evidence are more equivocal. First, on 22 March 1906, Chief Justice Griffith wrote to his wife: 'I believe Sir Edmund sat up all Monday night preparing [a reserved judgement]. He never begins till the night before the day appointed for delivering judgment.'[249] Second, on 24 March 1915, while walking with the Governor-General, Barton exclaimed: '"I hate hard work, Sir Samuel lives for it"!'[250] Again, the unresolved dichotomy emerges: indolent 'Tosspot Toby'[251] and 'Concurrent' Barton invariably echoing Chief Justice Griffith[252] or tremendously hard-working leader of the 1897–98 Constitutional Convention and member of the drafting committee.[253] Perhaps, a clue inheres in Barton's collegial skills. An ability to successfully negotiate and achieve acceptable compromises which Barton had demonstrated on many occasions during the Constitution's evolution,[254] was not, at least initially, curtailed during his tenure as a justice. As early as 11 January 1904, Barton questioned Deakin: 'Shall I be able to make Griffith laugh?'[255] The conclusion in Edmund Barton superficially appears to be inevitable:
Griffith ... [was] at times sharply impatient with O'Connor's more measured processes of thought and Barton, as their mutual friend, played a valuable, if necessarily unpublicised role in ensuring the smooth working of the [High] Court. Until the High Court was enlarged in 1906 the three justices habitually lunched together. This made for a degree of consensus.[256]
However, specific examples remain unexplored. Tantalisingly, Edmund Barton states:
In general [Barton] identified consistently with Griffith but this may have reflected a shift in Griffith. Once chief justice ... [Griffith] became the staunch upholder of the High Court's authority against all comers: the States, the [Commonwealth] parliament, even the Judicial Committee of the Privy Council. Barton could identify with this. [257]
Especially given Griffith's 1900 campaign for and Barton's against retention of Privy Council appeals, the intriguing, yet unanswered, questions, particularly in view of Baxter v Commissioners of Taxation (NSW),[258] are obvious: Did Barton cause, encourage or contribute to Griffith's 'shifts'? If so, when and how?
Subsequently, Edmund Barton implies there may have been either a diminution in or less inclination to exercise such 'shift[ing]' skills:
Barton was [like Griffith] also a conservative, but as a politician he had been distinguished by a readiness to shift his ground so as to accommodate other points of view in a workable consensus. As a judge, removed from the influence of Deakin and Kingston, he was under less incentive to move out of his conservative positions. Neither Isaacs nor Higgins was of a temperament to win Barton over. Instead the High Court began to develop an adversarial temper, with Griffith and Barton digging themselves in as defenders of the true Constitution against the interloping agents of change and O'Connor, usually but not always, siding with his senior colleagues.[259]
At best, there may have been 'friendship'[260] between Barton and Isaacs.[261] However, Edmund Barton neither suggests nor implies that Barton was responsible for changing or modifying any of Isaacs judicial views even when they reached, for example in their dissents in Duncan v Commonwealth,[262] the same decision. Compared to making and implementing a Constitution, in this judicial realm of constitutional interpretation and decision-making, Barton's abilities, especially to effectively cajole, were more obviously confined and limited. Consequently, Edmund Barton confirms the orthodox conclusion: from 1903 to 1919 it was the Griffith, not Barton, Court.[263] However, this is not necessarily the final or definitive position. A good deal of scope remains for further careful scholarship. Of course, some revisionism may result. If it does, there will be reason to rejoice: at least a fragment of High Court history and post-1903 constitutional law, as well as the scholarly enterprise and debates it ought to engender, should become more interesting and thought-provoking.
Seemingly, without recognizing it, Edmund Barton hints at the inevitable comparison:
The generation of late eighteenth-century Virginians and New Englanders who made the American Revolution and created the United States were deeply influenced by classical education. They brought to the task of nation-building an acute consciousness of Greek and Roman precedent. That same Greek and Roman precedent would become one of the subliminal influences in the shaping of an Australian nation. It was as a result of Edmund Barton's upbringing that ... he would carry the resonances of this tradition inside himself while remaining always and unmistakably Australian.[264]
Of course, among the 'New Englanders' was John Adams.[265] Much more importantly, the 'Virginians' included the Father of the United States Constitution: James Madison.[266] Given Madison's pre-eminent influence in the creation and adoption of the US Constitution and Bill of Rights, as well as being a member of the US House of Representatives (March 1789–March 1797) and President (4 March 1809–3 March 1817), that designation is entirely appropriate and correct.
Obviously, stark and substantial biographical similarities swirl around Barton and Madison. Therefore, at least posthumously, should an equivalent accolade—The Father of the Australian Constitution—be conferred on Barton?[267] Without Edmund Barton, two, somewhat conflicting answers can be discerned. Yes: from a quantitative compilation. Perhaps: from a qualitative perspective. The first response builds upon three facts. For a decade (1889–1 January 1901)[268] Barton devoted himself to creating the Australian federation and Constitution. After accomplishing this task he moved on to be for almost three years (1 January 1901–24 September 1903) the Prime Minister and a member of the House of Representatives (9 May 1901–24 September 1903). Subsequently, (7 October 1903–7 January 1920), Barton was a justice of the High Court. The second answer is more ambivalent. Initially, it must be recognized that others—Parkes and Reid—have, with some justification, been nominated for this accolade.[269] Indeed, some—McMillan and Chamberlain—at extremely critical moments may well, without detracting from Barton's continuing influence at these junctures, have been more crucial and significant.[270] Even so, Edmund Barton, almost unhesitatingly,[271] endeavours to reinvigorate and sustain a different perspective:[272] Barton was 'the one man for the job.'[273] Not unexpectedly, the historiographical debate is merely intensified, not resolved. It is not sufficient that Edmund Barton can be added to a distinguished list of publications contributing to the effort to expose and compile facts and describe events relevant to the making of the Australian Constitution.[274] More is needed.
Of course, this ought to occasion celebration, not remorse. The reason is obvious. Larger themes—democracy, constitutionalism, judicial review and, perhaps, parliamentary sovereignty[275] as well as their inter-relationships—remain to be extrapolated and explored.[276] For example, in this less factual context, what were Barton's views? Were his ideas original, influential or prescient? Did they remain static, change or evolve? If so, what practical, political, philosophical or other reason or circumstance induced, motivated or compelled Barton's position? Only on nationalism and federalism, including its implications for the Senate's powers especially over money Bills, does Edmund Barton provide real clues. Especially if James Madison remains the exemplar,[277] this should encourage nuanced and, perhaps occasionally, provocative syntheses. Three essential components of federation history ought to be involved: factual minutiae; beliefs and ideas concerning wider theories and doctrines associated with the establishment, structures and operations of government; and comparisons and contrasts with other founders. Eventually, that should provide a deeper and richer panorama of the Constitution's origins and development.[278] An added bonus would be discovering who is the Father of the Australian Constitution.
* LLB (Hons), BA (UWA), LLM, SJD (Harvard). To a reader's lamentR[1]are footnotes necessary?—one response might be: 'As for the footnotes, I have preferred to be simply informative, with a strong feeling that if one carried footnotes to the extreme one could end up writing a history of all civilisation'. Leon Edel, 'Introduction' in Henry James: Letters (vol 1: 1843–1875) (1974) xxxv. For other responses see, for example, G W Bowersock, 'The Art of the Footnote' (1984) 53 American Scholar 54; Abner Mikva, 'Goodbye to Footnotes' (1985) 56 Colorado Law Review 647; Arthur Austin, 'Footnotes as Product Differentiation' (1987) 40 Vanderbilt Law Review 1131; Arthur Austin, 'Footnote Skulduggery and Other Bad Habits' (1990) 44 University of Miami Law Review 1009; Arthur Austin, 'Political Correctness is a Footnote' (1992) 17 Oregon Law Review 543; Jack Balkin, 'The Footnote' (1989) 83 Northwestern University Law Review 275; Herma Kay, 'In Defense of Footnotes' (1990) 32 Arizona Law Review 419; Edward Becker, 'In Praise of Footnotes' (1996) 74 Washington University Law Review 1; Liz Fisher, 'Some Notes on Footnotes' (1997) 71 Australian Law Journal 245; Robert James, 'Are Footnotes in Opinions Given Full Precedential Effect?' (1999) 2 The Green Bag (2nd Series) 267; Anthony Grafton, The Footnote (1997); Stephen Feldman, 'An Arrow to the Heart: The Love and Death of Postmodern Scholarship' (2001) 54 Vanderbilt Law Review 2351 (suggesting that Dennis Arrow, 'Pomobabble Newspeak and Constitutional "Meaning" for the Uninitiated' (1997) 97 Michigan Law Review 461, by its 'text ... not even begin[ning] until the third page of the article and a total of only six lines of text appear[ing] within the first ten pages ... because the epigraphs and the initial footnotes are so exhaustingly long' and by 'many, if not most, of the pages in [Arrow's] article there [being] no text, only footnotes', reverses the normal hegemonic priority of ‘the text being privileged over the footnotes’ and, therefore, perhaps, also indicates that 'the text itself is ... empty of content'). On perhaps the most famous constitutional law footnote see Louis Lusky, Our Nine Tribunes: The Supreme Court in Modern America (1993) 119–32, 177–90 (explanation and drafts of footnote 4 in United States v Carolene Products Corp. [1938] USSC 104; (1938) 304 US 144, 152–3 n 4); Louis Lusky, 'Footnote Redux: A Carolene Products Reminiscence' (1982) 82 Columbia Law Review 1093. For an almost equally famous footnote see Sanjay Mody, 'Brown Footnote Eleven in Historical Context: Social Science and the [United States] Supreme Court's Quest for Legitimacy' (2002) 54 Stanford Law Review 793 (discussing Brown v Board of Education [1954] USSC 42; (1954) 347 US 483–95 n 11 and noting that footnote 11 has been characterised as 'the most dispute–laden footnote in American constitutional law').
1 Perhaps, 'going to dinner' might be just as accurate and, at least from the perspective of constitutional lawyers, more appropriate. The reason is obvious. It was at a 'dinner on [Wednesday] 14 May [1900] ... over port and cigars' that the third great compromise was suggested and agreed to. The text of s 74 was the result. For details of the dinner see John La Nauze, The Making of the Australian Constitution (1972) 263–4; Alfred Deakin, The Federal Story: The Inner History of the Federal Cause 1880–1900 (1944) (John La Nauze (ed) 2nd ed 1963) 161 (reprinted as Stuart Macintyre (ed), 'And Be One People': Alfred Deakin's Federal Story (1995)). See also text accompanying below nn 121–44. For the other two great compromises see below n 55 (1897 compromise over Senate power vis-a-vis the House of Representatives and, in particular, Senate power to reject or amend money Bills); n 98 (1899 limitation of the 'Braddon blot' to ten years and insertion of s 96).
[2] Robert Garran, Prosper the Commonwealth (1958) 101 (suggesting that 'it was at one of [Barton's federation] meetings, at Ashfield, that [Barton] coined the memorable impromptu—which would have been unrecorded if [Garran] had not happened to jot it down—"For the first time in history, we have a nation for a continent, and a continent for a nation"'). See also ibid 136; Geoffrey Bolton, Edmund Barton (2000) 172–3 (quoting the Sydney Morning Herald, 8 April 1898, report of Barton's 7 April 1898 referendum campaign address at Annandale: '[The people] would see a whole continent for a nation, and a nation for a continent'). Compare Frank Moorhouse, 'Edmund Barton—Australia's First Prime Minister' in John Reynolds, Edmund Barton (1948 reprint 1999) 13, 20 (suggesting that Barton 'coined the phrase "One People, One Destiny''') (references are to the 1999 reprint).
[3] For Australia see generally, James Thomson, 'Cutting Loose: Secession and Australian Constitutional Law' [1987] UWALawRw 7; (1987) 17 University of Western Australia Law Review 160 (reviewing Greg Craven, Secession: The Ultimate States Right (1986)); Christopher Bessant, 'Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire' (1990) 20 University of Western Australia Law Review 209. For Canada see generally Rosemary Rayfuse, 'Reference Re Secession of Quebec From Canada: Breaking Up Is Hard To Do' [1998] UNSWLawJl 68; (1998) 21 University of New South Wales Law Journal 834; Roya Hanna, 'Right to Self-Determination in In Re Secession of Quebec' (1999) 23 Maryland Journal of International Law and Trade 213; James McHugh, 'Making Public Law, "Public": An Analysis of the Quebec Reference Case and its Significance for Comparative Constitutional Analysis' (2000) 49 International and Comparative Law Quarterly 445; Mark Walters, 'Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom' (1999) 62 Modern Law Review 371. For the USA see generally Cass Sunstein, 'Constitutionalism and Secession' (1991) 58 University of Chicago Law Review 633; Cass Sunstein, Designing Democracy: What Constitutions Do (2001) 95–114 ('What Should Constitutions Say? Secession and Beyond'); Mark Braddon, Free in the World: American Slavery and Constitutional Failure (1998) 167–99 ('No Exit? Secession and Constitutionalism'); Vasan Kesavan and Michael Paulsen, 'Is West Virginia Unconstitutional?' (2002) 90 California Law Review 291 (discussing the constitutionality of West Virginia 'seceding from secessionist Virginia' and noting President Lincoln's distinction between and view of 'secession against the Constitution, and secession in favor of the Constitution'). See generally Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991); David Gordon (ed), Secession, State and Liberty (1998).
[4] For narratives, photographs and memorabilia see Bolton, above n 2, 227–8; J J Keenan, The Inaugural Celebrations of the Commonwealth of Australia (1901); Roslyn Russell and Philip Chubb, One Destiny! The Federation Story—How Australia Became a Nation (1998) 1–21, 273–5, 280–1, 302; John Hirst, The Sentimental Nation: The Making of the Australian Commonwealth (2000) 298–313; Aedeen Cremin (ed), 1901: Australian Life at Federation: An Illustrated Chronicle (2001) 122–43; Helen Irving, 'Introduction: A Nation in a Day' in Kevin Livingston, Richard Jordan and Gay Sweely (eds), Becoming Australians: The Movement Towards Federation in Ballarat and the Nation (2001) 1, 4–18; Peter Young, 'A Century of Federation' (2001) 75 Australian Law Journal 1.
[5] Three legally significant steps occurred in the UK. First, approval of the Commonwealth of Australia Constitution Bill 1900 (UK) by the House of Commons on 25 June 1900 and the House of Lords on 5 July 1900. See Commonwealth of Australia Constitution Bill: Reprint of the Debates in [the U.K.] Parliament, The Official Correspondence with the Australian Delegates, and Other Papers (1900). Secondly, on 9 July 1900, Queen Victoria assented to the Bill. 'The Queen gave her approval to the constitution at Windsor. She did not actually sign the Constitution Bill; she gave authority to three members of the House of Lords—[John Adrian Louis, Earl of] Hopetoun was one of them—to sign the Bill in the Lords on her behalf.' Hirst, above n 4, 304. Thirdly, on 17 July 1900 at Balmoral, Queen Victoria signed a Proclamation declaring that on and after 1 January 1901 'the people of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.' 'Proclamation' no 722 of 1900 reprinted in Statutory Rules Made Under Commonwealth Acts from 1901 to 1956 (1960) vol 5, 5300. Therefore, 'at 4pm on 1 January 1901 ... the Commonwealth of Australia was ceremonially proclaimed.' Peter Young, 'The Centenary of Federation' (2000) 74 Australian Law Journal 795.
[6] Of course, historiographical struggles also surround the 'why' conundrum: Why did federation under the Australian Constitution occur? Necessarily, in this context, several questions overlap: How and why did federation happen? What were the people's intentions during the 1890s and 1900 about how federation and the Constitution should and would operate? In practical reality, what in 1901 was federation? For opposing arguments over linkages between economic factors, motivations and influences and the Australian Constitution's formation see James Thomson, 'Looking for Heroes: History, Framers and the Australian Constitution' [1996] DeakinLawRw 7; (1996) 3 Deakin Law Review 89; James Thomson, 'A Great Swindle?: Australia's Constitution and the People: Origins and Amendment' [2000] UNSWLawJl 45; (2000) 23 University of New South Wales Law Journal 345.
[7] As to the role and effect women may have had on the federation movement and, in particular, on the Constitution and its drafting see generally Helen Irving (ed), A Woman's Constitution? Gender & History in the Australian Commonwealth (1996); Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (1997) 171–95, 235–7; Helen Irving, 'Women of the West and How They Won' (December 2000) 6 The New Federalist: The Journal of Federation History 9; Marion Quartly, 'Victoria' in Helen Irving (ed), The Centenary Companion to Australian Federation (1999) 219, 233–5, 274, 280, 283; Jan Roberts, 'Maybanke Anderson and Federation' (December 1998) 2 The New Federalist: The Journal of Federation History 41; Russell and Chubb, above n 4, 240–72, 299–302; Bolton, above n 2, 173. In this context, particular attention has focused on Rose Scott (1847–1925) who opposed federation and Catherine Helen Spence (1825–1910). See generally Judith Allen, 'Scott, Rose' in Geoffrey Serle (ed), Australian Dictionary of Biography (1988) vol 11, 547–9; Judith Allen, Rose Scott: Vision and Revision in Feminism (1994); Marilyn Lake, '"In the Interests of the Home": Rose Scott's Feminist Opposition to Federation' in David Headon and John Williams (eds), Makers of Miracles: The Case of the Federation Story (2000) 123–31; Helen Irving, 'Scott Rose' in Irving (ed), The Centenary Companion, above this note, 422; Susanna De Vries, Great Australian Women: From Pioneering Days to the Present (2002) vol 2, 99–174; Susan Eade, 'Spence, Catherine Helen' in Geoffrey Serle and Russell Ward (eds), Australian Dictionary of Biography (1976) vol 6, 167–8; Susan Eade, A Study of Catherine Helen Spence 1825–1910 (MA thesis, Australian National University, 1971); David Headon, 'No Weak–Kneed Sister: Catherine Helen Spence and "Pure Democracy"' in Irving, A Woman's Constitution, above this note, 42–54; Vicki Moore, 'Catherine Helen Spence: Grand Old Woman of Australia' in Headon and Williams, above this note, 132–40; Susan Magarey, 'Spence, Catherine Helen' in Irving (ed), The Centenary Companion, above this note, 424–5; Susan Magarey, 'Catherine Spence and the Federal Convention' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 20. For a comparative perspective see Sylvia Law, 'Women and the Framers' in Bertell Ollman and Jonathan Birnbaum (eds), The United States Constitution (1990) 106–9; Jan Hoff, 'Women and the Constitution' in ibid 231–46; Akhil Amar, 'Women and the Constitution' (1995) 18 Harvard Journal of Law and Public Policy 465; Jennifer Brown, 'The Nineteenth Amendment and Women's Equality' (1993) 102 Yale Law Journal 2175; Jacob Cogan, 'The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America' (1997) 107 Yale Law Journal 473; Reva Siegel, 'She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family' (2002) 115 Harvard Law Review 947; Jan Lewis, '"Of Every Age Sex & Condition": The Representation of Women in the Constitution' (1995) 15 Journal of the Early Republic 359; Jan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (1991); Adam Winkler, 'A Revolution Too Soon: Woman Suffragists and "The Living Constitution"' (2001) 76 New York University Law Review 1456 (discussing the 1869–75 suffragists' creativity, efforts and influence in relation to the U.S. Constitution, especially in shifting constitutional interpretation from the 19th century interpretative practice of originalism to the 20th century interpretative methodology of an evolutionary living constitutionalism).
[8] Similar issues might also be addressed in relation to State constitutions. See generally R Darrell Lumb, The Constitutions of the Australian States (5th ed, 1991) 3–46; A C V Melbourne, Early Constitutional Development in Australia (1963); David Black, The House on the Hill: A History of the Parliament of Western Australia 1832–1990 (1991).
[9] See generally Thomson, 'Looking for Heroes', above n 6, 90–1 (suggesting six possible categories of 'framers': Convention delegates; individuals assisting delegates; colonial parliamentarians; United Kingdom parliamentarians; UK Colonial Office officials and voters in pre and post 1901 referendums). See also below n 229 (originalism debate).
[10] Henry Parkes (27 May 1815–27 April 1896). See generally Allan W Martin, Henry Parkes: A Biography (1980); Allan W Martin, Henry Parkes (1964); Allan W Martin, '''It Would be a Glorious Finish to your Life": Federation and Henry Parkes' in Headon and Williams, above n 8, 65–74, 231–2; Robert Travers, The Grand Old Man of Australian Politics: The Life and Times of Sir Henry Parkes (1992); Charles Lyne, Life of Sir Henry Parkes G.C.M.G.: Australian Statesman (1897); Allan W Martin, 'Parkes, Sir Henry' in Bede Nairn, Geoffrey Serle and Russell Ward (eds), Australian Dictionary of Biography (1974),vol 5, 399–406; Hirst, above n 4, 81–104 ('Profit'), 299–300 (father of federation); Helen Irving, 'The Grand Old Man' The Weekend Australian, (27–28 April 1996) 20 (noting that 'Parkes is known, on his grave and in history, as the "Father of Federation'''); Helen Irving, 'New South Wales' in Irving (ed), The Centenary Companion, above n 7, 19, 60–2 (discussing and denying to Parkes the attribution 'Father of Federation'); Leslie F Crisp, 'Book Review' (1981) 27 Australian Journal of Politics and History 96 (Professor Crisp (1917–1984) noting that his 'generation was still being brought up to hail the old reprobate [Parkes] as "the Father of Federation" [but] that [Martin, Henry Parkes, above] hardly explores sufficiently the case for that grand title').
[11] Edmund Barton (18 January 1849–Wednesday 7 January 1920). See generally Bolton, above n 2; Reynolds, above n 2; Percival Serle, Dictionary of Australian Biography (1949) vol 1, 53–6 ('Barton, Sir Edmund'); Martha Rutledge, Edmund Barton (1974); Martha Rutledge, 'Barton, Sir Edmund' in Nairn and Serle (eds), Australian Dictionary of Biography (1979) vol 7, 194–200; Tessa Milne, 'Barton At Bathurst: "Front Stage/Backstage''' in David Headon and Jeff Brownrigg, 'The People's Conventions: Corowa (1893) and Bathurst (1896)' (December 1998) 32 Papers on Parliament (Special Issue) 103–7; Clive Beauchamp, 'Legitimacy for Australia's Noblest Son: The Hastings and Macleay By-election 1898' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 66; Mollie Hetherington, Famous Australians (revised edition, 1983) 118–25; Robert Macklin, 100 Great Australians (1988) 8–11; Michael Boylan, 'Sir Edmund Barton: History Remembers the Many Faces of "Toby Tosspot''' (August 2001) 23(7) Law Society Bulletin (South Australia) 25; Geoffrey Bolton and John Williams, 'Barton, Edmund' in Tony Blackshield, Michael Coper and George Williams (ed), The Oxford Companion to the High Court of Australia (2001) 53–6; Beverley Kingston, 'Barton, Edmund' in Graeme Davison, John Hirst and Stuart Macintyre (eds), The Oxford Companion to Australian History (revised edition, 2001) 61; Nicholas Aroney, The Federal Commonwealth of Australia: A Study in the Formation of its Constitution (PhD thesis, School of Law, Monash University, 9 April 2001) 243–56 ('Barton's Resolutions: Conceptions of Democracy and Federalism'). See also below n 26. One description characterises Barton as 'corpulent, warm-hearted, [a] sociable human, [a] fine orator, able but erratic in the conduct of business.' Bolton, above n 2, 16.
[12] George Houston Reid (25 February 1845–13 September 1918). See generally Winston G McMinn, George Reid (1989) especially 103 (asserting that '[b]y February 1895 Reid had become the acknowledged leader of the Australian federal movement'), 154–68 (Chapter 17's title: 'Father of Federation'); Winston G McMinn, 'Reid, Sir George Houstoun' in Geoffrey Serle (ed), Australian Dictionary of Biography (1988) vol 11, 347–54; Leslie F Crisp, Federation Fathers (1990) 1–45, 458–9 ('George Houston Reid: Federation Father. Federation Failure?'); Norman Abjorensen, 'George Reid, The Democrat as Equivocator: Piss and Wind, or Principles in Search of a Constituency?' in Headon and Williams, above n 8, 56–64, 230–1; Helen Irving, 'Reid, George' in Irving (ed), The Centenary Companion, above n 8, 416–17; Norman Abjorensen, 'Reid and the Yes-No Speech' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 88. See also below nn 44, 92, 100, 106 (comparing Reid and Barton).
[13] William McMillan (14 November 1850–21 December 1926). See generally Peter M Gunnar, Good Iron Mac: The Life of Federation Father Sir William McMillan (1995); Thomson, 'Looking for Heroes', above n 6; Allan Martin, 'McMillan, Sir William' in Nairn and Serle (eds), Australian Dictionary of Biography (1986) vol 10, 342–4. See also below n 55 (noting McMillan's crucial change of view on the Senate's power).
[14] Robert Garran (10 February 1867–11 January 1957). See generally Garran, above n 2; Noel Francis, The Gifted Knight: Sir Robert Garran G.C.M.G., Q.C.: First Commonwealth Public Servant, Poet, Scholar and Lawyer (1983); Robert S Parker, 'Garran, Sir Robert Randolph' in Nairn and Serle (eds) Australian Dictionary of Biography (1981) vol 8, 622–5; James Thomson, 'Quick & Garran's Australian Constitution in Retrospect' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 74; Jeff Brownrigg, 'Federation Prodigy: The Private Life of Robert Randolph Garran' in Headon and Williams, above n 8, 96–109, 236–7; Scott Bennett, 'Robert Randolph Garran, The Coming Commonwealth' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 93; Rae Else-Mitchell, 'Sir Robert Randolph Garran, Prosper the Commonwealth' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 107; Helen Irving, 'Garran, Robert Randolph' in Blackshield, Coper and Williams, above n 11, 292–3. See also Bolton, above n 2, 149 (noting that 'the [1897–98] drafting committee had as its secretary the 30-year-old Robert Garran ... [who] had accepted [George] Reid's invitation to come to the [1897–98] Convention as [Reid's] secretary'). See ibid 164, 173, 227, 236, 346.
[15] Joseph Chamberlain (8 July 1836–2 July 1914). See generally James L Garvin, The Life of Joseph Chamberlain (1932–1969) (6 vols) (vols 4–6 completed by Julian Amery); Michael C Hurst, Joseph Chamberlain and West Midland Politics 1886–1895 (1962); Peter Fraser, Joseph Chamberlain: Radicalism and Empire 1886–1914 (1966); Robert Kubicek, The Administration of Imperialism: Joseph Chamberlain at the Colonial Office (1969); Michael Hurst, Joseph Chamberlain and Liberal Reunion: The Round Table Conference of 1887 (1970); Richard A Rempel, Unionists Divided: Arthur Balfour, Joseph Chamberlain and the Unionist Free Traders (1972); Richard Jay, Joseph Chamberlain: A Political Study (1981); Peter Marsh, Joseph Chamberlain: Entrepreneur in Politics (1994); Peter A Howell, 'Chamberlain, Joseph' in Irving (ed), The Centenary Companion, above n 8, 343. See also below n 117 (noting Chamberlain's 1897 and 1900 amendments to the Constitution Bill).
[16] Born 5 May 1874–died 2 January 1923. See generally A J Kavanagh, Thomas Rainsford Bavin: A Political Biography (MA thesis, University of Sydney, 1978); John McCarthy, 'Bavin, Sir Thomas Rainsford' in Nairn and Serle (eds), Australian Dictionary of Biography (1979) vol 7, 214–16 (noting Bavin's vigorous 1898 referendum campaign for the Constitution Bill and that in 1901 Bavin 'became private secretary to [Prime Minister] Barton' and 'in 1903, Bavin became [Justice Barton's] associate, while remaining private secretary to the new prime minister Alfred Deakin'); Bolton, above n 2, 164, 236 (noting, as indicated below n 19, Bavin's pre-1901 relationship with Barton).
[17] Born 16 June 1843–died 16 October 1912. See generally Winston G McMinn, 'Dowling, Edward' in Nairn and Serle (eds), Australian Dictionary of Biography (1981) vol 8, 329–30 (noting Dowling's executive roles in the Australian Natives' Association; the Central Federation League and the Australasian Federation League of NSW); Bolton, above n 2, 106 (suggesting that '[i]n coordinating the [Australasian Federation] leagues [Dowling was] the essential figure' and that '[w]ithout [Dowling] the federal movement would probably have fallen apart'); Helen Irving, 'The Most Eccentric of Them All: J.W.R. Clarke' in Headon and Williams (eds), above n 8, 189, 191, 195 (describing Dowling as included in the 'prominent Federationists').
[18] Born 7 November 1864-died 19 September 1935. See generally Helen M Davies, The Administrative Career of Atlee Hunt, 1901–1910 (MA thesis, Melbourne University, 1969); Helen M Davies, 'Hunt, Atlee Arthur' in Nairn and Serle (eds), Australian Dictionary of Biography (1983) vol 9, 403–4 (noting that Hunt was in 1898 secretary of the NSW Federal Association and 'in 1899 general secretary of the Federal League of Australasia' and 'was part of that coterie which surrounded (Sir) Edmund Barton and planned the Federation campaign'); Bolton, above n 2, 164, 236 (noting, as indicated below n 19, Hunt's pre-1901 relationship with Barton).
[19] Born 5 February 1873–died 3 November 1955. See generally Anthony Fisher, 'Maughan, Sir David' in Nairn and Serle (eds), Australian Dictionary of Biography (1986) vol 10, 453–4; Bolton, above n 2, 164 (describing Maughan, together with Garran, Hunt and Bavin, as one of the '[y]oung men prepared to work hard for Federation [who] travelled across [Sydney] Harbour [to Kirribilli] on those Sunday evenings when it was open house at the Bartons, and ... [Barton] would keep them up into the small hours planning the next moves in the Federation strategy').
[20] Born 1 September 1834–died 7 February 1908. See generally Allan G Smith, 'Henry, John' in Nairn and Serle (eds), Australian Dictionary of Biography (1983) vol 9, 266–7 (indicating that Henry was '[a]n ardent Federalist ... [and] a Tasmanian delegate and member of the finance committee at the 1897 Australasian Federal Convention where he opposed, against his fellow Tasmanians, financial powers for the Senate'); Thomson, 'Looking for Heroes', above n 6, 113 (noting that Henry voted for Reid's amendment limiting the Senate's power); Bolton, above n 2, 151 (same). See generally below n 55 (compromise over Senate power).
[21] John Quick, Henry D'Esterre Taylor, William Guy Higgs, Francis Clarke, Robert McGeoch and John William Richard Clarke might also be included.
[22] For the various views and opposing arguments see Thomson, 'A Great Swindle?', above n 7, 354–61.
[23] Two extremes exist. A textually unequivocal—'Whereas the people ... have agreed to unite ... under the Constitution hereby established'—preamble. The small percentage of people who voted in the 1898, 1899 and 1900 referendums on the Constitution Bill as compared to those people who could not or did not vote. See Thomson, 'A Great Swindle?', above n 6, 354–61 (analysing voting eligibility and statistics).
[24] See generally Hirst, above n 4, 141–9 (discussing 1897 election); Bolton, above n 2, 139–40 (1897 election); Rosemary Pringle, 'The Convention Elections in New South Wales: A Milestone?' (1972) 58 Journal of the Royal Australian Historical Society 3; Helen Irving, '''Old Familiar Hacks" Just When They're Needed: The NSW Delegation' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 39; Scott Bennett, 'The Tasmanians: The Convention [1897] Election' in ibid 51; John Bannon, 'The Gathering of Tribunes and Oligarchs' (March 1998) (No 41) Canberra Historical Journal (New Series) 2; Helen Irving, 'Saying 'Yes': The Referendum of 1899' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 2; Kay Saunders, 'The North Comes In! The 1899 Referendum Campaign in North Queensland' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 7; Dawn Peel, 'Patriotism, Politics and Personalities: the 1899 Referendum in a Rural Electorate' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 72; Scott Bennett, 'Tasmania's Referendum Choices, 1898/9' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 3; Brian Galligan and Winsome Roberts, 'The People's Constitution? Exploring Australia's Popular Democracy 1885-1901: A Research Study' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 87; Jim Loveday, 'The 1899 Constitutional Referendum in South-Eastern Queensland: The "German Vote''' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 91; Helen Irving, 'Referendums in the Air: New South Wales in June 1898' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 9; John Bannon, 'Trust in the Hands of the People: South Australians, the Press and the First Federation Referendum' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 17; Ronald Norris, 'Economic Influences on the 1898 South Australian Federation Referendum' in Allan W Martin (ed), Essays in Australian Federation (1969) 137; Patricia Hewett, 'Aspects of Campaigns in South-Eastern New South Wales at the Federation Referenda of 1898 and 1899' in ibid 167; Winston G McMinn, 'The First Federal Referendum: A Local Study' (1960) 46 Royal Australian Historical Society Journal and Proceedings 69; Rosemary Pringle, 'Public Opinion in the Federal Referendum Campaigns in New South Wales 1898–99' (1979) 64 Journal of Royal Australian Historical Society 235; Kay Saunders, '''The Free Spirit of Australasian Democracy": The 1899 Constitution Bill Referendum Campaigns in New South Wales and Queensland' in Patricia Clarke (ed), Steps to Federation: Lectures Marking the Centenary of Federation (2001) 103–28; Glen Rhodes, Federalism in Australia and the 1898–99 Federation Referenda in the Hunter Valley Region of New South Wales (BA (Hons) thesis, University of Newcastle, 1974); Patrick McCormack, 'Boorowa and the Young: The "No" and "Yes" Cases For Australian Federation' in Livingston, Jordan and Sweely (eds), above n 4, 92–101; Wendy Hillman, 'The 1900 Federal Referendum in Western Australia' (1978) 2 Studies in Western Australian History 51 (reprinted in Lyall Hunt (ed), Towards Federation: Why Western Australia Joined the Australian Federation in 1901 (2000) 151–70).
[25] For a glimpse into this historiographical debate see Alice Kessler-Harris, 'Social History' in Eric Foner (ed), The New American History (1990) 163–84 (discussing social history's endeavour to narrate history from the bottom up, rather than from the reverse traditional historical scholarship perspective); Jesse Lemisch, 'American Revolution Seen From the Bottom Up' in Barton J Bernstein (ed), Towards a New Past: Dissenting Essays in American History (1970) 3–45; George Frederickson, 'Wise Man' (28 February 2002) 49(3) New York Review of Books 37 (noting that '[t]he new "micro-history" is less concerned with making connections and establishing general patterns than with re-capturing the experiences and appreciating the achievements of those who were overlooked by previous generations of historians. Recording the doings of elite white males has taken a back seat to accounts of marginalised groups—women, African-Americans, Latinos, low-skilled workers, and poor people generally. Much of value has come from social and cultural history "from the bottom up," but it has deprived us of a unifying vision of the nation's past across the divides of gender, race, ethnicity, and class'); Geoge Rude, Europe in the Eighteenth Century: Aristocracy and the Bourgeois Challenge (1985); Arlette Farge, Fragile Lives: Violence, Power and Solidarity in Eighteenth Century Paris (1993); Edward P Thompson, The Making of the English Working Class (1963); Edward P Thompson, Whigs and Hunters: The Origins of the Black Act (1975) 16 (noting that from a historiographical perspective that '[s]ince I started with the experience of humble foresters and followed up ... the lines that connected them to power, there is a sense in which the [manuscript] sources themselves have forced me to see English society in 1723 as they themselves saw it, from "below'''); Daniel Cole, '''An Unqualified Human Good": E. P. Thompson and the Rule of Law' (2001) 28 Journal of Law and Society 177–8 (noting that '[w]hile other historians focused on the dominant figures and major events of history, Thompson wrote of the ordinary men and women who both made and suffered through the epochal upheavals of the [English] Industrial Revolution') (footnote omitted). Edmund Barton provides one perspective:
Many of today's practising historians are moved by a moral imperative to give voices to the obscure and the disadvantaged who have previously been overlooked in the reconstruction of Australia's past. Writers of 'history from below' tend to mistrust political history as a genre dealing with the transactions of powerful elites, and political biography as liable to uphold the myth of 'the great man in history'.
Bolton, above n 2, ix. In the context of Australian federation see John Waugh, 'New Federation History' [2000] MelbULawRw 40; (2000) 24 Melbourne University Law Review 1028. For examples of such 'bottom-up' history see Bruce Scates, A New Australia: Citizenship, Radicalism and the First Republic (1997); John Williams, 'Book Review' (1997) 3 Australian Journal of Legal History 253; Derek Drinkwater, '"A Living Part of People's Lives": Literary and Debating Societies, Self-Improvement and Federation' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 90. At least implicitly, this 'bottom-up' perspective of federation provides some empirical support for the concept of popular sovereignty and its consequences. See generally Thomson, 'A Great Swindle?', above n 6, 360; Michael Kirby, 'Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution' [1996] DeakinLawRw 10; (1996) 3 Deakin Law Review 129; George Winterton, 'Popular Sovereignty and Constitutional Continuity' [1998] FedLawRw 1; (1998) 26 Federal Law Review 1; Anthony Dillion, 'A Turtle By Any Other Name: The Legal Basis of the Australian Constitution' (2001) 29 Federal Law Review 241; John Tate, 'Giving Substance to Murphy's Law: The Question of Australian Sovereignty' [2001] MonashULawRw 3; (2001) 27 Monash University Law Review 21. For comparative analysis see Edmund S Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988); Bruce Ackerman, We The People: Foundations (1991); Akhil Amar, 'Philadelphia Revisited: Amending the Constitution Outside Article V' (1988) 55 University of Chicago Law Review 1043; Akhil Amar, 'The Consent of the Governed: Constitutional Amendment Outside Article V' (1994) 94 Columbia Law Review 457; James Thomson, 'American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law' (1997) 30 John Marshall Law Review 627, 677–8. See also Saul Cornell, 'Moving Beyond the Canon of Traditional Constitutional History: Anti-Federalists, the Bill of Rights, and the Promise of Post-Modern Historiography' (1994) 12 Law and History Review 1 (discussing and utilising the 'revisionist project' of the 'new constitutional history and post-structuralism' which 'explore[s] a wider variety of texts and the diverse communities of readers who interpreted those texts' so as to 'avoid the homogenizing tendencies of traditional scholarship and restore some of the complexity'); Thomson, 'Looking for Heroes', above n 6, 94–7 (discussing historiographical struggle over issues relating to the Australian Constitution). For a second utilisation of this 'bottom-up' perspective in constitutional law see John McGinnis, 'Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence of Social Discovery' (2002) 90 California Law Review 487 (contrasting the constitutional jurisprudence of the U.S. Supreme Court under Chief Justices Warren and Rehnquist in terms of 'top-down' and bottom-up).
[26] Bolton, above n 2. Initial reviews include Ian Hancock, 'Book Review' (2001) 60 Australian Journal of Public Administration 90; James Curran, 'Book Review' (2001) 87 Journal of the Royal Australian Historical Society 286; Mike Stekettee, 'Edmund Who?', The Weekend Australian: Review 25–26 November 2000 4; Rod Moran, 'Fathering Federation' West Australian (Big Weekend Section) Saturday 21 October 2000, 8; John Bryant, 'Correcting the "Tosspot Toby" Characterisation', Canberra Times (Panorama Section), 6 January 2001, 17; Peter Coleman, 'Forged by Sentiment', Weekend Australian: Review, 25 November 2000, 14. See also Geoffrey Bolton, 'Sir Edmund Barton' in Michelle Grattan (ed), Australian Prime Ministers (2000) 22–35, 473; Geoffrey Bolton, 'Edmund Barton: Some Mysteries' in Headon and Williams, above n 6, 75–81, 232–3; Geoffrey Bolton, 'Barton, (Sir) Edmund' in Irving (ed), The Centenary Companion, above n 7, 335–7; Geoffrey Bolton, 'The Making of "Australia's Noblest Son''' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 4; Geoffrey Bolton, 'The Art of Consensus: Edmund Barton and the 1897 Federal Convention' (November 1997) 30 Papers on Parliament 33; Bolton and Williams, above n 11. See also below n 30.
[27] For bibliographies see Thomson, 'Looking for Heroes', above n 6, 121–2; Thomson, 'A Great Swindle?', above n 6, 366 n 128. See also Thomas Campbell, George Richard Dibbs: Politician, Premier, Patriot, Paradox (1999); Richard Ely, Marcus Haward and James Warden (eds), A Vital Force: Andrew Inglis Clark and the Ideal of Commonwealth (2001); Frank M Neasey and Lawrence J Neasey, Andrew Inglis Clark (2001).
[28] 'The point is illustrated by the manner of [Barton's] selection as Prime Minister of Australia. ... Lord Hopetoun ... commissioned Barton—who was not the leader of any State or any party—but only the leader of Australia. It had been illustrated earlier [on 5 March 1897] by his election first on the poll of the New South Wales delegation, and his unopposed election [on Tuesday 23 March 1897] by the [Constitutional] Convention as its leader. Why did these things come to him? They came to him because he was the acknowledged leader of Australian union and of that only. And that came of his concentration on that one aim .... Without any of the arts of the demagogue but by intense conviction and ceaseless work, he became the accepted leader of the people of all the colonies of Australia, and led them to a great decision. He could do this only because, with the whole of his makeup, and being the man he was, he was the one man for the job.' Letter from Robert Garran to John Reynolds dated 4 November 1940 (Garran Papers, MS. 2001/5/125 National Library of Australia) (emphasis in original) quoted in Reynolds, above n 2, 71, 217 n 1 and in La Nauze, above n 1, 280, 352 n 22 and in Bolton, above n 2, 346–7. See also text accompanying below nn 42–49. Indeed, from Professor Bolton's perspective, Barton was 'the necessary man'. Bolton, above n 2, x. See also Geoffrey Bolton, 'A vote of confidence for Federation fathers', West Australian (Big Weekend Section), 7 April 2001, 6. For details of the 1897 election and Barton's appointment as Convention leader see Bolton, above n 2, 139–42; La Nauze, above n 1, 108–9, 110.
[29] Waugh, above n 25, 1041–46 (noting that 'the new Federation history reveals ... a Constitution more fully of its time: the product of a process of public deliberation and participation ... and, perhaps most importantly, creating a framework of popular sovereignty') (emphasis in original). See also Livingston, Jordan and Sweely (eds), above n 4, 120–47 ('New Approaches to Federation History').
[30] See generally Who's Who In Australia 2002 (38th ed, 2002) 270. Professor Bolton has held chairs of history at the Universities of Western Australia, Murdoch, Queensland and Edith Cowan and the Institute of Commonwealth Studies (London). In addition to above n 26, Professor Bolton's publications include Alexander Forrest: His Life and Times (1958); A Fine Country to Starve In (new edition, 1994); A Thousand Miles Away: A History of North Queensland to 1920 (1963); Spoils and Spoilers: A History of Australians Shaping their Environment (2nd ed, 1992); The Oxford History of Australia: The Middle Way: 1942–1995 (2nd ed, 1996) vol 5; '1939–51' in Frank Crowley (ed), A New History of Australia (1974) 458–503; 'Queensland' in Irving (ed), The Centenary Companion, above n 7, 93–127; 'Samuel Griffith: The Great Provincial' (November 1991) 13 Papers on Parliament 19–33; 'Samuel Griffith: The Great Provincial' (1991) 14 Journal of the Royal Historical Society of Queensland 350; 'Sir Samuel Griffith: Behind the Scenes Operator' (December 1999) 4 The New Federalist: The Journal of Federation History 45; 'The Valley of Lagoons: A Rehearsal for Canberra?' (June 1999) 3 The New Federalist: The Journal of Australian Federation History 22; 'The Western Australians: A Silent Majority' (June 1998) l The New Federalist: The Journal of Australian Federation History 57; Geoffrey Bolton, 'Ewing, Norman Kirkwood (1870–1928)' in Millar, above n 21, 336–7, 445; Geoffrey Bolton, 'Buzacott, Richard (1867–1933)' in Millar, above n 21, 365–7, 449; David Black and Geoffrey Bolton, Biographical Register of Members of the Parliament of Western Australia, Volume One: 1870–1930 (1990); David Black and Geoffrey Bolton, Biographical Register of Members of the Parliament of Western Australia, Volume Two: 1930–1990 (1990).
[31] For analyses of biographical scholarship see Hermione Lee, 'Tracking the Untrackable' (12 April 2001) 48(6) New York Review of Books 53–7 (reviewing Richard Holmes, Sidetracks: Explorations of a Romantic Biographer (2000); David Ellis, Literary Lives: Biography and the Search for Understanding (2000); Richard Backscheider, Reflections on Biography (2000)). For judicial biography see James Thomson, 'Swimming in Air: Lionel Murphy and Continuing Observations on Australian Judicial Biography' (1998) 4 Australian Journal of Legal History 221; James Thomson, 'Getting to Know Harlan: A New Approach to Judicial Biography?' (2001) 18 Constitutional Commentary (forthcoming).
[32] Other than free trade versus protection, some wider issues briefly noted include the 1890–94 strikes, the women's movement and the 1899–1902 Boer War. See generally Bolton, above n 2, 75, 82, 173, 197–8, 254–8. On the strikes see Alistair Davidson, The Invisible State: The Formation of the Australian State 1788–1901 (1991) 224–8, 301; John Richard, Class and Politics: New South Wales, Victoria and the Early Commonwealth (1976) 5–80; Thomson, 'A Great Swindle?', above n 6, 363. On women and federation see above n 7. On the Boer War see John Bannon, 'A War for a Constitution: The Australian Colonies and the South African War' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 2.
[33] See, for example, Peter Loveday and Allan Martin, Parliament, Factions and Parties: The First Thirty Years of Responsible Government in New South Wales, 1856–1889 (1966); Brian Dickey, Politics in New South Wales 1856–1900 (1969); Peter Loveday, Allan Martin and Patrick Weller, 'New South Wales' in Peter Loveday, Allan Martin and Robert S Parker (eds), The Emergence of the Australian Party System (1977) 172–249.
[34] See, for example, Stuart Macintyre, A Concise History of Australia (1999); Hirst, above n 4; Irving, To Constitute a Nation, above n 7.
[35] In addition to the 1897 Adelaide session of the Constitutional Convention, Barton in 1893–94 'spent three weeks holiday as Sir John Downer's guest in Adelaide' and had another 'holiday in Adelaide with the Downers' in January 1899. Bolton, above n 2, 120, 193.
[36] Ibid 195, 200–1 (discussing Barton's 1899 referendum campaigning in Brisbane and the Darling Downs).
[37] Ibid 81 (noting that in 1891 'Barton ... had never been out of New South Wales apart from rare visits to Melbourne and Brisbane'). But note that '[b]etween 1891 and 1897 [Barton] had ... built up a sympathetic network with prominent federationists elsewhere in Australia, especially Deakin in Victoria, Downer and Symon in South Australia, and Griffith in Queensland.' Bolton, 'The Making', above n 26, 5.
[38] Ibid 203–14, 268–77, 319–21 (discussing 1900, 1902 and 1915 visits).
[39] Ibid 115, 277 (discussing 1893 and 1902 visits).
[40] In addition to above n 24, see Irving (ed), The Centenary Companion, above n 7, 93–325; Reynolds, above n 2, 152–72.
[41] For the suggestion that Barton 'command[ed] ... nationwide acceptability' see Bolton, above n 2, 345. See also Bolton, above n 26, 5 (partially quoted in above n 37).
[42] Bolton, above n 2, xi.
[43] Ibid 345. From both extremes of the continent, Sydney and Cue in Western Australia, Barton was acclaimed as 'indisputably the strongest and ablest of the federationists' and as being of 'sterling worth and ability' in March 1897. Bolton, above n 2, 140 (quoting Sydney Morning Herald, 7 March 1897 and Murchison Times, 10 March 1897).
[44] Bolton, above n 2, 345. See also ibid 166–92 ('Barton versus Reid'). 'The subtleties of the relationship between Barton and Reid call for care in interpretation'. Ibid 131. After such an evaluation, others form a different conclusion from Edmund Barton. 'W.G. McMinn, in his much-needed rehabilitation of George Reid, inevitably presented [Reid] as overshadowing Barton.' Ibid 345. See McMinn, George Reid, above n 12, 155–68 ('Father of Federation').
[45] Previously, in the 27 July 1898 NSW general election Barton stood against Reid 'in the King division of central' and lost 761 votes to 651 votes. See below n 92. In the 23 September 1898 NSW Legislative Assembly by-election for the seat of Hastings and Macleay, Barton defeated Sydney Smith 961 votes to 653 votes and Lyne 'yielded the leadership of the [Protectionist] party to Barton' who became leader of the opposition. Bolton, above n 2, 179–85, 187–9. See also McMinn, George Reid, above n 12, 161–2; Beauchamp, above n 11 (September 1898 election).
[46] Bolton, above n 2, 188, 198. See also above nn 11, 26.
[47] Bolton, above n 2, x. See also Bolton, 'The Art of Consensus', above n 6, 41 (concluding that 'Barton built up a national reputation as the indispensable advocate of federation').
[48] Bolton, above n 2, x.
[49] Bolton, above n 2, 346. See also ibid 161 (noting that 'Sir Edward Braddon described [Barton] to the Tasmanian House of Assembly [in 1897] as '"the Colossus of the Convention'''). See also Bolton, 'The Art of Consensus', above n 26, 35 (etching—'the Convention Colossus'—reproduced from the (8 April 1897) Melbourne Punch 271). Compare the description of John Adams as a 'colossus'. See, for example, David McCullough, John Adams (2001) 163 (attributing to Thomas Jefferson the statement that Adams was the 'colossus of independence'); David Kirkpatrick, 'Error in Quote Stirs Arguments Over Adams Legacy', New York Times, 23 July 2001,10 (noting McCullough's admission that he 'made a mistake' and his subsequent suggestion that Jefferson called Adams a '''colossus on the floor" of the Continental Congress'); Richard N Rosenfeld, 'The Adams Tyranny: Lost Lessons from the Early Republic' (September 2001) 303(1816) Harper's Magazine 82 (referring to 'the worshipful phrase "the colossus of independence" which [David McCullough] employs as a chapter title [in John Adams] and then falsely attributes to Thomas Jefferson' and describing it as a 'nonexistent quotation').
[50] Others disagree with Professor Bolton. For example, Professor McMinn (see above n 44) and Professor Clark who characterised Barton as 'a Pontius Pilate type of liberal ... not lik[ing] to face up to big questions.’ Bolton, above n 2, 343 (quoting Manning Clark, A History of Australia: The People Make Laws 1888–1915 (1981) vol 5, 73). On Clark and his conspiracy thesis views see Thomson, 'A Great Swindle?', above n 6, 362.
[51] Bolton, above n 2, viii.
[52] Ibid ix.
[53] See James Thomson, 'Using the Constitution: Separation of Powers and Damages for Constitutional Violations' (1990) 6 Touro Law Review 177, 210–11 (urging, in circumstances involving remedies for constitutional violations, that 'succumbing to routine or revolution' is not appropriate). See also Cass Sunstein, One Case at a Time: Judicial Minimalism on the [U.S.] Supreme Court (1999) (advocating that constitutional adjudication proceed by narrow, case by case decisions, not grand, open-ended theories).
[54] See La Nauze, above n 1, 289–91 (chronological list of 'Successive Printed Versions of a Bill to Constitute the Commonwealth of Australia, 1890–1900'). Copies of those Bills are in Samuel W Griffith, Successive Stages of the Constitution of the Commonwealth of Australia 1891 (Griffith Papers, Dixson Library, Sydney, Ms.Q 198, CY Reel 221); John Reynolds, 'A I Clark's American Sympathies and His Influence on Australian Federation' (1958) 32 Australian Law Journal 62, 67–75; David Eastman, The Founding Documents of the Commonwealth of Australia (2000); John Williams, The Australian Constitution: A Documentary History (forthcoming 2003). Locations of other Bills are provided in James Thomson, 'Constitutional Interpretation: History and the High Court: A Bibliographical Survey' [1982] UNSWLawJl 17; (1982) 5 University of New South Wales Law Journal 309, 315 n 12, 316 n 20.
[55] For opposition see, for example, Hugh Anderson (ed), Tocsin: Contesting the Constitution, 1897–1900 (revised edition 2000); Ruth Campbell, 'A Watchful Attitude Towards Federation: Tocsin's Approach to the Draft Constitution Bill 1897–1900' [1977] MelbULawRw 16; (1977) 11 Melbourne University Law Review 252; David Headon, 'Tocsin for the Times: O'Dowd, Whitman and the "'Internal Brotherhood" of Federation' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 58; C Wallace-Crabbe, 'O'Dowd, Bernard Patrick' in Geoffrey Serle (ed), Australian Dictionary of Biography (1988) vol 11, 62–3; Tom Campbell, 'Sir George Dibbs and the Anti-Federation Argument in NSW' (June 2000) 5 The New Federalist: The Journal of Australian Federation History 67; Christopher Cunneen, 'Anti-Billites' in Irving (ed), The Centenary Companion, above n 7, 330–2; Bolton, above n 2, 83–5, 159–60 (NSW Legislative Council's opposition to 1897 Adelaide session of Convention's Constitution Bill), 172 (opposition in 1898 NSW referendum campaign), 194–5 (NSW Legislative Council opposition to the Constitution Bill in February 1899 after the 1899 Premiers Conference agreement on amendments to the Bill). Prominent Anti-Billites included:
Compare the debate over the role, significance and remembrance of the anti–federalists in the formation of the 1789 US Constitution and 1791 Bill of Rights. See Thomson, 'A Great Swindle?', above n 6, 349 n 31.
For an important shift in views see, for example, Bolton, above n 2, 152–3 (noting that 'overnight lobbying ... persuaded ... two more of the Tasmanians [Nicholas Brown and Neil Lewis] to change sides' on the issues of the Senate's power); La Nauze, above n 1, 144 (describing the nocturnal activities on 13 April 1897 and the shift by Brown and Lewis); Thomson, 'Looking for Heroes', above n 6, 105–15 (discussing McMillan's crucial change from 'no' to 'yes' on limiting the Senate's power). See also text accompanying below nn 115–44 (shifting positions over s 74 Privy Council appeals).
[56] For example the 1897 elections for delegates to the 1897–98 Convention and the 1898, 1899 and 1900 referendum campaign. See above n 24.
[57] Indeed, Deakin indicated that '[t]here is much unstated [in the Debates], because the delegates to this Convention have practically lived together for six weeks in private as well as in public intercourse.' Official Report of the National Australasian Convention Debates (1891) 914. Consequently, '[w]hat happens overnight in conferences may be as important as what is said in debate.' La Nauze, above n 1, 44. There are four important examples. First, negotiations over the Senate's power. See above n 55 and below n 201. Secondly, the secret committees, including the drafting committee. See La Nauze, above n 1, 122–36; Hirst, above n 4, 160 ('The constitution was shaped in Adelaide in secret committee meetings'). Thirdly, three secret Colonial Office memorandums. See text accompanying below nn 108–13. Fourthly, 1900 negotiations in London, including negotiations during dinner and 'port and cigars'. See above n 1; text accompanying below nn 115–42.
[58] See above n 27.
[59] See text accompanying below nn 95–108.
[60] For bibliographies see La Nauze, above n 1, 355–9; Crisp, above n 12, 369–435, 470–6; Pam Crichton, Patsy Hardy and Marion Stell (compilers), Federation Bibliography (1992). For compilations see Scott Bennett, Annotated Documents on the Making of the Commonwealth of Australia (MA thesis, Australian National University, 1969); Scott Bennett (ed), The Making of the Commonwealth (1971); Scott Bennett (ed), Federation (1975); Eastman, above n 54; Williams, above n 54. See also Stephen Foster, Susan Marsden and Roslyn Russell (compilers), Federation: The Guide to the Records (1998); Lenore Coltheart, 'Documenting Democracy: <www.foundingdocs.gov.au>' (2001) 16 Australasian Parliamentary Review 176.
[61] The Papers of Edmund Barton are in the National Library of Australia (MS 51) and State Library of New South Wales (ML MSS 249). Descriptions of both collections are in S Foster et al (compilers), above n 60, 34–41, 64 and in the National Library collection at <http://www.nla.gov.au/ms/findaids/0051.html> . See also below n 175 (referring to Barton's 'judge's notebooks' and 'cabinet note book'). '[Probably around 1909, Barton] and his wife systematically went through their past correspondence, carefully preserving letters which they thought of permanent interest, but destroying almost all personal and family material ... . The remaining correspondence was further winnowed by Barton's executor and son-in-law, David Maughan ...'. Bolton, above n 2, xi–xii. On Maughan see above n 19. Similarly, Charles Cameron Kingston (see below n 70) 'does not seem to have left any papers (it is rumoured that his increasingly eccentric and long-suffering wife, Lucy, burnt them all on his death in 1908)....' John Bannon, 'Birth of a nation' (February 1998) 3 The Australian Review of Books 10, 11.
[62] See, for example, Deakin, above n 1; George Reid, My Reminiscences (1917); Gerald O'Collins, Patrick McMahon Glynn: Letters to His Family (1874–1927) (1974); Joseph Carruthers, 'Autobiography' (National Library of Australia, MS 2829). For collections of delegates' papers see, for example, S Foster et al (compilers), above n 60, 43–4, 47–50 (Australian Archives), 63–71 (State Library of New South Wales).
[63] As to the records of the 1897–98 Finance Committee, the Constitutional Committee and the Judiciary Committee see La Nauze, above n 1, 123, 201–2. The 1891 Convention's three committees—the Committee on Constitutional Machinery and the Distribution of Functions and Powers; the Committee on Provisions relating to Finance, Taxation and Trade Regulation; and the Committee on the Establishment of a Federal Judiciary—and the 1897–1898 Convention's Committee records, including the Drafting Committee's records, are held in the Australian Archives, R21–R31, R212–R216 (summarised in S Foster et al (compilers), above n 60, 29, 32).
[64] When did Barton start on his federal crusade? '[Barton] first advocated federation as practical politics at a meeting called on 2 November [1889], to set up a branch of the Protectionist Party at Lithgow ... . [Barton argued] that no question was as important as the federation of Australia.' Bolton, above n 2, 68. However, '[t]he initiative came ... from Andrew Inglis Clark ... [who] in the winter of 1889 ... met Barton and ... talked about the desirability of New South Wales joining the Federal Council ... [and] agreed that there were many legal problems ... which could be handled much better at federal level .... [Clark] wrote [Barton] a follow up letter [on 19 June 1889].' ibid 66.
[65] Held in Sydney Monday 2 March–Thursday 9 April 1891. On the background and surrounding circumstances see above n 32 (strikes). For the Convention see Bolton, above n 2, 74–82; La Nauze, above n 1, 28–86. 'During the summer of 1890–91 Barton prepared himself for the Convention by three months of incessant study, probably at the expense of his legal practice.' Bolton, above n 2, 73.
[66] There were three sessions: Adelaide, Monday 22 March–Wednesday 5 May 1897; Sydney, Thursday 2 September–Friday 24 September 1897; Melbourne, Thursday 20 January-Thursday 17 March 1898. See generally Bolton, above n 2, 127–56, 160–63, 166–71; La Nauze, above n 1, 97–160, 177–238; Essays, 'On the Road Again: The Adelaide Constitutional Convention of 1897' (June 1998) 1 The New Federalist: The Journal of Australian Federation History 5–62; Kevin Livingston, 'The Communication Revolution, the Adelaide Convention and the Constitution' (December 1998) 2 The New Federalist: The Journal of Australian Federation History 24. For the negotiations and decision that Barton be the leader of the 1897–98 Convention see Bolton, above n 1, 108–9.
[67] Barton sojourned in the UK from 15 March 1900 to 6 July 1900. The delegation was Barton (NSW), Kingston (SA), Dickson (Qld), Deakin (Vic) and Fysh (Tasmania) together with representatives from Western Australia (Stephen Henry Parker) and New Zealand (William Pember Reeves). Even though Barton 'had never been in England before and had no first-hand experience of negotiating with the British authorities, the others from the first treated [Barton] as leader of the delegation.’ Bolton, above n 2, 205. On this 1900 sojourn see Deakin, above n 1, 107–73; La Nauze, above n 1, 248–69, 349–51; Crisp, above n 12, 344–8, 475; Bolton, above n 2, 203–14; Reynolds, above n 2, 173–80; Hirst, above n 4, 219–43, 304; John La Nauze, Alfred Deakin: A Biography (1965) vol 1, 186–91; Margaret Glass, Charles Cameron Kingston: Federation Father (1997) 191–9; Brian de Garis, 'Western Australia' in Irving (ed), The Centenary Companion, above n 7, 285, 313–19; Brian de Garis, British Influence on the Federation of the Australian Colonies, 1880–1901 (D Phil thesis, Oxford University, 1965) 325–409. On Parker (born 7 November 1846–died 13 December 1927) see 'Parker (Sir) Stephen Henry' in The Bicentennial Dictionary of Western Australians Pre–1829–1888 (1988) vol 3 K-Q 2415; Enid Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979 (1980) 216–17; Barbara Sewell, The House of Northbourne Parkers: Pioneers of Western Australia 1830–1983 (1984) 79–85. On Reeves (born 10 February 1857–died 15 May 1932) see Keith Sinclair, William Pember Reeves: New Zealand Fabian (1965); Ruth Fry, 'Reeves, Magdalene Stuart' in The Dictionary of New Zealand Biography: 1901–1920 (1996) vol 3, 423–4.
[68] On the drafting committees see La Nauze, above n 1, 46, 48–70, 74–6, 128–30, 135–6, 179–80, 183, 192, 235–8; Bolton, above n 2, 79–80, 147–50, 154–5, 160–3, 167; Roger Joyce, Samuel Griffith (1984) 109, 193–6; Glass, above n 67,167; Crisp, above n 12, 307–8. For the committees' records see above n 63. See also text accompanying below nn 69–85.
[69] Born 21 June 1845–died 9 August 1920. See generally Joyce, above n 68; Roger Joyce, 'Griffith, Samuel Walker' in Nairn and Serle (eds), Australian Dictionary of Biography (1983) vol 9, 112–19; R K Forward, 'Sir Samuel Griffith' in Six Great Australians: Third Series (1965) 1–30; John Macrossan, Kay Saunders, Sandra Berns, Colin Sheehan and Katie McConnel, Griffith, the Law, and the Australian Constitution (1998); Michael White (ed), Sir Samuel Griffith: The Law and the Constitution (forthcoming); John Williams, 'Samuel Griffith and the Australian Constitution: Shaking Hands with the New Chief Justice' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 37; Harry Gibbs, 'Griffith, Samuel Walker' in Blackshield, Coper and Williams, above n 11, 309–11. See also above n 30.
[70] Born 22 October 1859–died 11 May 1908. See generally Glass, above n 67; Crisp, above n 12 at 272–368; John Playford, 'Kingston, Charles Cameron' in Nairn and Serle (eds) Australian Dictionary of Biography (1983) vol 9, 602–5.
[71] See generally Marcus Haward and James Warden (eds), An Australian Democrat: The Life, Work and Consequences of Andrew Inglis Clark (1995); Ely, Haward and Warden (eds), above n 27; Neasey and Neasey, above n 27.
[72] This Queensland government owned steamer was named after Jeanie Lucinda Musgrave who was an American and the widow of the Queensland Governor. Joyce, above n 68, 156, 157 (photograph of Mrs Musgrave), 194 (photograph of the steamer).
[73] For the 1897 Adelaide and Sydney negotiations and decisions to have Barton, Downer and Kingston, but not Isaacs, on this committee see Bolton, above n 2, 148; La Nauze, above n 1, 128–9, 179–80.
[74] Born 6 July 1849–died 2 August 1915. See generally Peter Bartlett, 'Downer, Sir John' in Nairn and Serle (eds), Australian Dictionary of Biography (1981) vol 8, 330–2; Peter Howell, 'The Strongest Delegation: The South Australians at the Constitutional Convention of 1897–98' (1998) 1 The New Federalist: The Journal of Australian Federation History 44, 46–7; Graeme Powell, 'Downer, Sir John William (1843–1915)' in Millar, above n 21, 148–52, 420–1; Carol Fort, ‘Downer Family’ in Wilfred Prest (ed), The Wakefield Companion to South Australian History (2001) 151-2.
[75] Born 4 August 1851–died 18 November 1912. See generally Fricke, above n 55, 30–5; 'The Late Mr Justice O'Connor' (1912) 15 CLR (remarks of Isaacs , Griffith CJ and Barton J); Henry Manning, 'Richard Edward O'Connor' (1951) 25 Australian Law Journal 116; Martha Rutledge, 'O'Connor, Richard Edward' in Serle (ed), Australian Dictionary of Biography (1988) vol 11, 56–9; Martha Rutledge, 'O'Connor, Richard Edward' in Blackshield, Coper and Williams, above n 11, 509–11; Martha Rutledge, 'O'Connor, Richard Edward (1851–1912)' in Millar, above n 21, 27–30, 405.
[76] See above n 14.
[77] 'It was, and is, a pleasant house, overlooking the park lands, and within a few minutes' walk of Parliament House. Barton was staying with Downer ... The 'Downer House' ... next to the Anglican Cathedral, became the original Master's lodge of St Mark's University College. In the 1930s a large bare room with a marble fireplace ... was said to be the room "where the Constitution was framed" ... What can safely be assumed to have been framed in the "Downer House" was the draft Constitution presented to the Convention on 12 April 1897....' La Nauze, above n 1, 136–7. See also above n 35 (Barton's 1893–94 and 1899 visits to the Downer House).
[78] 'Never shall I forget those days and nights. In a sitting-room at the Grand Hotel (now the Windsor) Barton, O'Connor, Downer and I worked on while the city slept. ... Barton and I would carry on till at four or five in the morning [before] I could persuade him to call it a day.' Garran, above n 14, 123. Also, Garran indicates that '[o]n the last night of all [the evening of 16 March and morning of 17 March 1898] ... Charles Gavan Duffy and I worked feverishly till breakfast-time at the proofs of the final schedule of amendments' to the Constitution Bill. Ibid.
[79] See La Nauze, above n 1, 232–8 (discussing approximately four hundred amendments proposed by the drafting committee on Wednesday 16 May 1899 which the Convention accepted and which included more drafting amendments which may well have significantly altered the meaning of the Constitution).
[80] For such an excursion see La Nauze, above n 1; Thomson, 'Looking for Heroes', above n 6, 97 n 18 (bibliography of scholarship on the history of specific provisions in the Constitution). Additionally, consideration needs to be given to the proceedings in colonial parliaments, for example, in 1897 and 1898. See La Nauze, above n 1, 161–6; Bolton, above n 2, 157–60, 179–92.
[81] La Nauze, above n 1, 129, 135, 232, 234, 236. See also Brian de Garis, 'The Colonial Office and the Commonwealth Bill' in Martin (ed), above n 24, 198 n 28 (suggesting Barton's 'marginal notes on Memoranda A and B and nineteen pages of notes on Memorandum C ... give valuable insight into the work of the Drafting Committee and their understanding of the meaning of many clauses in the Constitution').
[82] Others who wrote the Constitution's words included Clark, Kingston, Griffith, Garran, colonial parliaments, UK Colonial Office Law Officers, and those present at or assisting the 1899 Premiers' Conference. On the latter see below n 98.
[83] In addition to above n 82, new clauses and amendments were proposed by Convention delegates and committees. See also La Nauze, above n 1, 132 (noting that Symon, chairman of the 1897 Judiciary Committee, 'transformed [the] appearance [of the] ... judicature chapter' of the 1891 Constitution Bill).
[84] Of course, being Leader of the Convention, Barton may well have 'guided' the Convention and other delegates. Such 'guidance' may have been assisted by the perception that Barton 'lack[ed] the killer instinct' and was a compromiser. Bolton, above n 2, 201. See also ibid 242–3 ('In the Convention of 1897–98 Barton had shown a great readiness to give way on points of details, sometimes substantial points, in order to secure workable outcomes'), 346 (characterising Barton as practising 'politics as the art of the possible').
[85] Of course, Barton was 'a practitioner of the art of maximising consensus' and, therefore, was prepared to compromise. Bolton, above n 2, 299. See also above n 84. 'Barton's real strength was in conciliation and compromise. ... What he lacked in the ability to cut deals he overcame with tack, generosity and sincerity. ... His readiness to compromise also left him open to criticism as someone prepared to subordinate everything, including the interests of NSW, to the cause of Federation'. Steketee, above n 26, 5. Even Barton's own words may well have resulted from the 'profound influence' of his University of Sydney classics professor Charles Badham. Bolton, above n 2, 10. Also compare the assessment of the 1891 drafting committee: 'The contributions of Kingston and Barton to the work of drafting cannot be precisely assessed. All the corrections of the draft made on the Lucinda are in Griffith's hand and we cannot say who made them. ... [Indeed in 1893] Griffith said: The [1891 Constitution] bill was not the work of any one man. It was the work of many men in consultation with one another.’ La Nauze, above n 1, 76 (quoting Samuel Griffith in Federal Council of Australasia, Debates (5th Session 1893) 93).
[86] Edmund Barton exposes some of Barton's foibles, flaws and failures. See generally Bolton, above n 2, 59 (Barton's swings of mood'), 118–19 (conflict of interest allegations resulting in 'the worst moment of Barton's parliamentary career' and his resignation as Attorney-General in the Dibbs government on 15 December 1893), 184 ('Consciously or otherwise, [Barton, during the July 1898 NSW election,] was transferring his achievements during the [March–June] 1898 referendum campaign to his much less encouraging experiences two or three years earlier'), 193 (assessing Barton's 'performance as a political tactician [as] no more than mediocre'). See also below n 115 (discussing Barton's 'unfortunate slip').
[87] Examples include being the founder of the Australasian Federation League, Barton's participation in the 1898 and 1899 referendum campaigns and the 1896 Bathurst Convention. See generally Bolton, above n 2, 104, 138–9, 171–7, 195–8; Bolton, 'The Making', above n 26, 5; Milne, above n 11.
[88] See generally Bolton, above n 2,112–5; Reynolds, above n 2, 116–7; Hirst, above n 4, 118–20; Stuart Macintyre, 'Corowa and the Voice of the People' in Headon and Brownrigg, above n 11, 1, 8–9.
[89] See generally Headon and Brownrigg, above n 11, 67–143; Scott Bennett, 'Bathurst People's Federal Convention' in Irving (ed), The Centenary Companion, above n 7, 335–8.
[90] See generally Bolton, above n 2, 171; McMinn, George Reid, above n 12, 149–53; Hirst, above n 4, 187; Abjorensen, above n 4.
[91] Bolton, above n 2, 128. Professor Bolton quotes John Reynolds: 'During [1894–96] it is recorded that [Barton] addressed nearly 300 meetings in New South Wales alone. He visited other colonies, and [Barton] considered that the total number of addresses he gave was over one thousand.’ Reynolds, above n 2, 121. See also Bolton, 'The Making', above n 26, 4 (criticising Reynolds' view).
[92] Barton lost: Reid 761 votes, Barton 651 votes. See Bolton, above n 2, 182–5; McMinn, above n 12, 158–60. Professor Bolton concedes that this election campaign contest 'focused on one issue: "Who is the rightful owner of Federal Policy?" Was Reid or Barton better qualified to negotiate terms with the other premiers to secure a more equitable deal if New South Wales federated? ... The hardest-fought ground between [Barton and Reid] was the contest for legitimacy as the leader who had transformed Federation from the Parkesian concept ... as something to be negotiated between senior statesmen into a popular cause identified with the Australian people.' Bolton, above n 2, 182–4. See also La Nauze, above n 67, 180 (quoting Barton's letter of 16 June 1898 to Deakin: 'Who is to be trusted with the leadership of the Federal movement in question?') (emphasis in original); La Nauze, above n 1, 240 (suggesting that, as a result of Reid's election victory, '[t]he answer, it appeared, was Reid').
[93] Bolton, above n 2, 184.
[94] Compare text accompanying above nn 50–52.
[95] For Barton's geographical confinement and consequential non-attendance at events in other colonies see text accompanying above nn 35–39. Of course, Barton could have been influential despite not being physically present. See text accompanying below nn 103–107.
[96] 'There is no question that it is correct to describe the [1895] Hobart [Premiers'] Conference as the great turning point for Australian federation.' John Bannon, The Crucial Colony: South Australia's Role in Reviving Federation 1891 to 1897 (1994) 32. The 1895 Premiers' Conference in Hobart on Tuesday 29 and Thursday 31 January, except for WA, agreed to a federal Convention comprising delegates elected by voters. See generally John Bannon, 'Rediscovering Federation History' in Livingston, Jordan and Sweely (eds), above n 4, 123 (postulating various possible explanations for 'the reasons and timing of the convening by George Reid (NSW) of the crucial 1895 Premiers' Conference'); Bannon, above this note, 27–37; Bolton, above n 2, 130; La Nauze, above n 1, 90; Hirst, above n 4, 127–31; Glass, above n 67, 170–2, 174; McMinn, George Reid, above n 12, 101–3; John Hirst, 'A Novel Convention: Adelaide 1897' (June 1998) 1 New Federalist: The Journal of Australian Federation History 5; Stuart Macintyre, 'After Corowa' (1994) 65 Victorian Historical Journal 98; James Thomson, 'Andrew Inglis Clark and Australian Constitutional Law' in Ely, Haward & Warden (eds), above n 27, 294, 301 n 20; Glen Rhodes, 'The Hobart Understanding: A Plan of Prearranged Coincidences' (December 1993) 2(5) Constitutional Centenary: Newsletter of the Constitutional Centenary Foundation 6–8. See also below n 100 (Reid's assertion).
[97] On the 4 March 1896 Sydney Premiers' Conference see Bannon, above n 96, 37–8 (noting the adoption of a 'significant resolution' stating that the Conference's deliberations 'made the urgent necessity for a federation of the colonies more than ever apparent').
[98] From Sunday 29 January 1899 to Friday 3 February 1899 the Premiers' Conference met in Melbourne. They unanimously agreed to the text of amendments to the Constitution Bill, including a new s 96. Other amendments were made to sections 7, 57, 87, 123, 124 and 128. See generally Bolton, above n 2, 191, 193; La Nauze, above n 1, 241–7; Joyce, above n 68, 207, 395 n 66; Crisp, above n 12, 338–41; Hirst, above n 4, 198–9; Glass, above n 67, 186–90; McMinn, above n 12, 165–7; Irving, 'Saying "Yes'', above n 24; de Garis, above n 67, 308–9; Cheryl Saunders, 'Towards a Theory for Section 96: Part 1' [1987] MelbULawRw 1; (1987) 16 Melbourne University Law Review 1–5; John Bannon, 'Introduction to the Minutes of the Conference of the Premiers in the Commonwealth Bill' (December 1999) 4 The New Federalist: The Journal of Australian Federation History 104. All of the amendments and their texts as agreed to by the Premiers were inserted into the Constitution. Who drafted the amendments? Possibly Kingston, Cullen or Griffith. Cullen 'was an adviser to (Sir) George Reid' at the 1899 Melbourne Premiers Conference and 'a skilled draftsman of bills and of amendments' and was Chief Justice of New South Wales from 1910 to 1925. John Bennett, 'Cullen, Sir William Portus' in Nairn and Serle (eds), Australian Dictionary of Biography (1981) vol 8, 167–8. But see La Nauze, above n 1, 243 (concluding that '[w]ho drafted [these amendments] is not known'). Compare the uncertainly about the origins of the words 'the limits inter se' in s 74. See La Nauze, above n 1, 266; Geoffrey Sawer, Australian Federalism in the Courts (1967) 28 (noting that '[t]he "inter se question" concept was devised by an unknown official of the British Colonial Office in 1900, and had no forbears or analogies'). The basis of those amendments was the resolution approved in December 1898 by the NSW Parliament. Originally, those resolutions had been in Reid's July 1898 election manifesto and, except for a narrowing of proposals to amend the Constitution Bill's financial provisions to simply removing the Braddon blot in s 87, were introduced into the NSW Legislative Assembly by Reid on 24 August 1898. Barton agreed with Reid on all aspects of these resolutions except the proposal to revise the inland rivers provisions. The NSW Legislative Council made a number of changes, including additions, which in reality Reid ignored. See generally Bolton, above n 2, 186–7, 190–1; McMinn, above n 12, 160–3; La Nauze, above n 1, 241, 245–6. From one perspective the conclusion is clear: 'There can be no doubt that what Reid got at Melbourne [in 1899] was a substantial improvement in the draft constitution.' McMinn, above n 12, 166. However, was it wise or beneficial and, if so, from whose perspective, to allow s 87 to be terminated in 1910? See also Bannon, above n 104 ('The outcome is generally seen to have been a major victory for George Reid'). Also, Reid overcame the NSW Legislative Council's resistance to the amended Constitution Bill by having the acting NSW Governor prorogue Parliament and appoint twelve additional Council members with the clear implication of further appointments to swamp the Council and, consequently, overcome its opposition. See generally Bolton, above n 2, 194; McMinn, George Reid, above n 12, 166–7; La Nauze, above n 1, 147. See also below n 107.
[99] The 24 January 1900 Sydney Premiers' Conference appointed the Australian delegation—Barton, Deakin, Kingston, Dickson and Fysh—to the United Kingdom. Crisp, above n 60, 344; La Nauze, above n 1, 249–50; Joyce, above n 69, 209. At the request of the Australian delegation, led by Barton, in London, the 19 April 1900 Melbourne Premiers Conference considered Chamberlain's proposals to retain appeals to the Privy Council and agreed that '[a]mendment of some kind' to restore to the Constitution Bill appeals to the Privy Council 'was less objectionable than postponement of the federated Commonwealth; and the premiers of Queensland [Robert Philp] and Tasmania [Neil Lewis] were willing to jettison Clause 74 altogether.' Bolton, above n 2, 208–9. See also La Nauze, above n 1, 262; Crisp, above n 12, 348; de Garis, British Influence, above n 67, 356–62; de Garis, 'Western Australia', above n 67, 316–7.
[100] Indeed, because Barton was not a Premier, he did not lead and, therefore, did not control events. There are, at least, three important examples. First, Reid, who was the NSW Premier, could assert: 'I took control of [the federal movement] ... and what I did was to assemble the Premiers [in 1895 in Hobart] ... and ask them to take the movement out of the hands of the politicians and place the great national destiny in the hands of the people.' Bolton, above n 2, 184. Second, because he was Premier, Reid was in London in June 1897 and 'spent a considerable part of his time performing an important service for the federation movement in confidential consultations with Chamberlain on aspects of the draft constitution which might, if not thoroughly considered, cause trouble when the time came for it to be submitted to the Imperial Parliament.' McMinn, George Reid, above n 12, 137 (footnote omitted). See also below n 102 (secret memoranda). Third, Reid's 27 July 1898 election victory (see above n 45) and, subsequent control, via the NSW Parliament and 1899 Melbourne Premiers' Conference (see above n 98) of amendments to the Constitution.
[101] Seventy two delegates, but not Barton who was visiting Canada, attended a conference in Corowa from 31 July to 1 August 1893 which adopted the resolution that colonial parliaments legislate to establish a convention with delegates elected by voters to adopt a Constitution Bill to be submitted to electors voting at a referendum in each colony. See generally Headon and Brownrigg, above n 11, 1–65; Irving (ed), The Centenary Companion, above n 8, 351–2.
[102] Reid, Turner, Kingston, Braddon, Forrest and Nelson attended Queen Victoria's Diamond Jubilee celebrations and the June 1897 Colonial Conference initiated by Joseph Chamberlain. See McMinn, above n 12, 136–8; Irving (ed), The Centenary Companion, above n 7, 388; Frank Crowley, Big John Forrest: 1847–1918: A Founding Father of the Commonwealth of Australia (2000) 184–6. On the 1897 Conference see Richard Jebb, The Imperial Conference (1911); R M Burdon, King Dick: A Biography of Richard John Seddon (1955) 194, 196, 201–4; J E Kendle, The Colonial and Imperial Conferences, 1887–1911 (1967); Marsh, above n 15, 423–5, 429, 489.
[103] On these memoranda, their contents, who saw them and when, how they were utilised and what changes to the Constitution Bill resulted from their suggested alterations see de Garis, British Influence, above 67, 267–301; de Garis, above n 81, 94–114, 197–8; Bolton, above n 2, 162–3; McMinn, George Reid, above n 12, 137–8; La Nauze, above n 1, 170–6, 183–6, 253; Ken Buckley and Ted Wheelright, No Paradise for Workers: Capitalism and the Common People in Australia 1788–1914 (1988) 213. See also text accompanying below nn 109–14. See also above n 100 (Reid's 'important service').
[104] 'The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified.' Southern Pacific Railway Co. v Jensen [1916] USSC 71; (1917) 244 US 205, 221–2 (Holmes, J dissenting). On Holmes see generally G Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (1993); Albert W Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000); James Thomson, 'Playing With a Mirage: Oliver Wendell Holmes, Jr. and American Law' (1990) 22 Rutgers Law Journal 123.
[105] In this context, compare:
So widespread was Laski's reputation in India because of his work for independence and his influence on the political elite through [Jawaharlal] Nehru, [Krishna] Menon and the legions of [London School of Economics] students in the [Indian] government and civil service that it was often said that 'there was a vacant chair at every Cabinet meeting in India, reserved for the ghost of Professor Harold Laski'.
Isaac Kramnick and Barry Sheerman, Harold Laski: A Life on the Left (1993) 589 (quoting Granville Eastwood, Harold Laski (1977) at 94).
[106] Bolton, above n 2, 193 (quoting from Sydney Morning Herald, 27 January 1899). See also La Nauze, above n 1, 244–5 (discussing '''the curious incident of the dog in the night," or rather Barton's role in the [1899 Melbourne Premiers' Conference] discussions' and suggesting that Barton's remarks to the Sydney Morning Herald interviewer were 'something of an understatement. The premiers could trust Barton. With [Barton's] aid, Reid got off to a good start [at the 1899 Premiers' Conference].' But note ibid 245 ('Barton himself was publicly committed to seek some of the same principal amendments Reid was asking for'). See also above nn 98, 100 (suggesting Reid's superior influence and position) and below n 107 (suggesting Barton was not as influential as Reid).
[107] See text accompanying above nn 91–93. See also La Nauze, above n 1, 240–1 (noting that 'the real battle for the adoption of the Constitution took place in New South Wales' and that on 4 'August [1899 Reid's] proposals for modifications of the [Constitution] Bill to be submitted to a conference of premiers were introduced in the [NSW] parliament with minor additions in the assembly, and some provocative alterations in the unrepentant Council, [Reid's proposals] were duly approved in December [1898]'). Because the resolutions were in Reid's July 1899 election manifesto, it is unlikely that Barton, who generally agreed with them, was influential in formulating the resolutions or the subsequent 1899 Premiers' Conference amendments. See above n 98.
[108] Bolton, above n 2, 191–2 (quoting McMinn, George Reid, above n 12, 166). On the 23 September 1898 by-election see above n 45.
[109] On s 74 of the Constitution see generally Gabriel Moens and John Trone, Lumb & Moens' The Constitution of the Commonwealth of Australia Annotated (6th ed, 2001) 258. The theoretical possibility of appeals from the High Court to the Judicial Committee of the Privy Council remains because of s 74 of the Constitution, s 16(1) of the Australia Act 1986 (Cth & UK) (definition of 'Australian Court' excluding 'the High Court') and voters' rejection, at the 6 November 1999 s 128 referendum, of the proposal to repeal s 74 which was contained in clause 34 of Schedule 2 of the Constitution Alteration (Establishment of Republic) 1999. Compare Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 492–9 (discussing this 'obsolete' jurisdiction); Anne Twomey, 'Sue v Hill—The Evolution of Australian Independence' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads (2000) 105–8 (discussing the curtailment, but not complete abolition, of s 74 appeals).
[110] See above n 103.
[111] Bolton, above n 2, 162. Who else saw these secret memoranda? When and in what form did they see them? Possibly, Kingston and Garran in 1897 and in 1900 the Australian delegation to the UK. In addition to above n 103, see Joyce, above n 69, 210 (indicating that Barton had given the memoranda to Dickson and that Dickson, by letter of 21 February 1900, had told Griffith of their existence and character).
[112] Bolton, above n 2, 163.
[113] de Garis, above n 81, 198 n 28. As to the whether and when questions see above nn 103, 111. Compare La Nauze, above n 1, 254 ('These extensive [Barton] annotations [on the 31 October 1899 Colonial Office officials' Notes on the Commonwealth of Australia Constitution Bill] were probably written during [Barton's 1900] voyage to London, and certainly before the first [15 March 1900] meeting [of the Australian delegation] with Chamberlain').
[114] de Garis, above n 81, 108, 114. Compare de Garis' suggestion that 'a number of the amendments desired by the Colonial Office were unobtrusively incorporated into the Constitution', with La Nauze, above n 1, 185 ('For the most part, however, Barton did not accept the suggestions') and Bolton, above n 2, 163 ('For the most part [Barton] ... resisted [the Colonial Office Law Officers'] tendency to go into points of finicking detail'). The Bolton and La Nauze comments appear to relate only to Memorandum C, while the de Garis suggestion appears to encompass Memoranda A, B and C.
[115] Indeed, this was the position which the 24 January 1900 Sydney Premiers' Conference had agreed that all members of the delegation should take. They were 'to press for the passage of the Bill [through the UK Parliament] without amendment.' La Nauze, above n 1, 250. See also ibid 261; Bolton, above n 2, 205, 209. However, '[a]t the first conference at the Colonial Office, Barton made an unfortunate slip of the tongue that added to the difficulties of the delegates in the lengthy negotiations which lay ahead of them. [Barton] said that [the Australian delegates] asked that the [Constitution] Bill be passed with as "little amendment as possible". This statement from the acknowledged leader of the Australian Federal movement must have given Chamberlain encouragement to stand firmly in his intention to amend the important clause 74.' Reynolds, above n 2, 174.
[116] The WA referendum was held on 31 July 1900. For the referendums and their results see Scott Bennett and Helen Irving, 'Referendums (General)' in Irving, The Centenary Companion, above n 7, 414–15; Irving, 'Referendums, Constitution Bill' ibid 415–16; Reynolds, above n 2, 152; Glen Rhodes, The Australian Federation Referenda 1898–1900: A Spatial Analysis of Voting Behaviour (PhD thesis, London School of Economics & Political Science, 1988). See also above n 24 (referenda campaigns).
[117] For the earlier 'Chamberlain' amendments pursuant to the 1897 secret memoranda see text accompanying above nn 109–114. For the subsequent 1900 'Chamberlain' amendments see text accompanying below nn 118–37.
[118] See above n 67 (scholarship on 1900 negotiations in the United Kingdom). See also La Nauze, above n 1, 255 (characterising the 1900 negotiations as 'three months of private and public argument'); John Goldring, The Privy Council and the Australian Constitution (1996) 36–48 ('Discussions in London').
[119] For example, the deletion of '[t]his Act shall bind the Crown' and the definition of colony as 'any colony or province'. La Nauze, above n 1, 251–2, 254, 256–9.
[120] For an analysis of negotiations between the Australian delegates, Chamberlain and other UK parliamentarians, the Colonial Office Law Officers and individuals (including Griffith) in Australia and changes to the text of s 74 see La Nauze, above n 1, 252, 254, 259–69, 303–4; Joyce, above n 68, 209–15; de Garis, British Influence, above n 67, 335–62, 369–409; Goldring, above n 118, 34–50 ('The Enactment of the Constitution: Chamberlain's Compromise'); David Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986 (1987) 54–87. In the Commonwealth of Australia Constitution Bill, approved at the 1898 Melbourne session of the Constitutional Convention and 1898 and 1899 referenda, s 74 stated:
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of Her Royal Prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. But The Parliament may make laws limiting the matters in which such leave may be asked.
Official Record of the Debates of the Australasian Federal Convention: Third Session (1898) vol 2, 2536.
[121] See above n 1. See also Bolton, above n 2, 211; Glass, above n 67, 198.
[122] Compare La Nauze, above n 1, 263 (quoting Kingston's letter of 18 May 1900 to Symon: 'the little dinner we had with Chamberlain after he introduced the [Constitution] Bill [in the House of Commons on 14 May 1900] had a great deal to do with a better understanding'); Deakin, above n 1, 161 ('Chamberlain invited the [Australian] delegates to dine with him' and discussion about clause 74 'passed quietly between Chamberlain and [Barton and Kingston] towards the end of the evening after Dickson and Deakin had left'); Bolton, above n 2, 211 ('Late over the port ... Chamberlain flagged a compromise to Barton and Kingston').
[123] See generally Goldring, above n 120; Swinfen, above n 120; Peter Howell, The Judicial Committee of the Privy Council 1833–1876 (1979); Joseph Smith, Appeals to the Privy Council from the American Plantations (1950); Loren Beth, 'The Judicial Committee as Constitutional Court for the British Empire 1833–1971' (1977) 7 Georgia Journal of International and Comparative Law 47.
[124] La Nauze, above n 1, 263 (referring to 'port and cigars' and quoting Kingston's letter of 18 May 1900 to Symon describing 'the little dinner we had with Chamberlain'); Bolton, above n 2, 211. However, Barton's letter of 18 May 1900 to Lyne 'said nothing about the dinner: it hardly fitted into his dignified picture of the [Australian] delegates' earnest endeavours to secure some modification of the [United Kingdom] government's decision once it was clear that Clause 74 would not be retained in its original form.' La Nauze, above n 1, 264. However, despite its omission from his correspondence, Barton would have welcomed such a forum for negotiations. Compare Bolton, above n 2, 310 (Barton's statement at 3.00 am in Spring Street in his 'early High Court years: 'Men die and dynasties fall, but tonight there is only one tragedy. There is no Chateau d'Yquem') (quoting Randolph Bedford, Naught to Thirty Three (1976) 330).
[125] See generally Blanche Dugdale, Arthur James Balfour: First Earl of Balfour (1936) (2 vols); Kenneth Young, Arthur James Balfour (1963); A Gollin, Balfour's Burden: Arthur Balfour and Imperial Preference (1965); Denis Judd, Balfour and the British Empire: A Study in Imperial Evolution 1874–1932 (1968); Max Egremont, A Life of Arthur James Balfour (1980); Ruddock Mackay, Balfour: Intellectual Statesman (1985).
[126] See generally Guy Strutt, 'Balfour, Gerald William' in L G Wickham Legg & E T Williams (eds), The Dictionary of National Biography: 1941–1950 (1959) 51–2; Marsh, above n 15, 531, 570, 577–8, 636; Andrew Roberts, Salisbury: Victorian Titan (1999) 9, 14, 385, 420, 652–5, 786, 789.
[127] See generally F W Hirst, 'Morley, John' in J R H Weaver (ed), The Dictionary of National Biography: 1922–1930 (1937) 616–24; John Morley, Recollections (1917) (2 vols); David Hamer, John Morley (1968).
[128] See generally J S Brewis, 'Palmer, William Walde-Grave, Second Earl of Selborne' in L Legg & E Williams (eds), above n 126, 647–50; George Boyce (ed), The Crisis of British Unionism: Lord Selborne's Domestic Political Papers 1885–1922 (1987); David Torrance, The Strange Death of the Liberal Empire: Lord Selborne in South Africa (1996). See also Don Wright, 'Sir Josiah Symon, Federation and the High Court' (1978) 64 Journal of Royal Australian Historical Society 73, 81–2 (noting Symon's 1899 discussions in England with 17 and 24 January 1900 letters to Selborne).
[129] La Nauze, above n 1, 263 includes 'W.H. Smith' as attending the 14 May 1900 dinner. This appears to be an error. La Nauze relies on two sources to identify the persons attending this dinner. First, Alfred Deakin's 'Rough Diary' entry for 14 May 1900. This mentions only Chamberlain, Morley and Gerald Balfour as dining with Deakin. Second, A Deakin, above n 1, 161 which mentions Chamberlain, Arthur Balfour, Gerald Balfour, John Morley, Barton, Kingston, Dickson, Deakin, Chamberlain's Parliamentary Secretary and Smith. However, Chamberlain's Parliamentary Secretary was Lord Selborne. In the context of Deakin's discussion of this dinner and the seating arrangements, the name 'Smith' appears to be referring to Chamberlain's Parliamentary Secretary. However, Lord Selborne (not 'Smith') was the Parliamentary Secretary. There are two possible explanations for this error. First, Deakin may have made a mistake in writing 'Smith' instead of Selborne. Secondly, there may have been a transcription error caused by 'Deakin's sometimes difficult [to read] handwriting [in] ... an unrevised manuscript written ... at high speed.' Deakin, above n 1, xi ('Note on the Text' by La Nauze). Subsequently the error has been compounded by La Nauze's attempt to identify and name the person as 'W.H. Smith'. This person appears to be William Henry Smith (1825–1891) who also was a UK parliamentarian. See generally Viscount Chilston, W.H. Smith (1965). In the 1995 re-publication of Deakin's Federal Story, the name 'Smith' continues to be used. Macintyre, above n 1, 161. The portion of Deakin's Federal Story containing the description of the dinner was written between 'July 1900, when [Deakin] returned from ... England', and 'September 1900'. S Macintyre, above n 1, 161. Professor Macintyre indicates that 'La Nauze was a meticulous scholar and while [Macintyre] ... compared [La Nauze's] text to the manuscript of the 'inner history', which is now with the Deakin Papers in the National Library of Australia, [Macintyre did not attempt] ... to improve on [La Nauze's] work.' Macintyre, above n 1, xxiv.
[130] La Nauze, above n 1, 263 (quoting Deakin, above n 1, 161). The reason was obvious: 'Deakin, known to be less happy over port and cigars than [Barton and Kingston] ... had been given the hint that it would be useful to leave early, taking Dickson [who favoured an unrestricted right of appeal to the Privy Council] with him.' La Nauze, above n 1, 263.
[131] See above n 67.
[132] Who initiated the compromise? At least five possibilities exist.
But see Barton, above n 2, 211 (concluding that '[h]ow far lobbying by Dilke and others brought about this shift cannot be determined').
[133] See Bolton, above n 2, 211 ('Chamberlain flagged a compromise to Barton and Kingston'); Deakin, above n 1, 161 ('All this passed quietly between Chamberlain and his two neighbours [Barton and Kingston who were sitting on either side of Chamberlain] towards the end of the evening'); La Nauze, above n 1, 263–4 (elaborating 'Chamberlain's proposition' to Barton and Kingston: that 'Clause 74 be restored in a form that left constitutional cases of distinctively Australian interest to final settlement in Australia, while leaving matters involving imperial interests still open to appeal to the Privy Council'); La Nauze, above n 67, 190 (indicating that Chamberlain's suggestion was that '[a]ppeals to the Privy Council on constitutional questions involving the respective limits of the powers of Commonwealth and States (the limits 'inter se' ...) could be made only with the consent of the executives of the governments concerned'). Importantly, the Privy Council retained 'a limited constitutional jurisdiction.' Goldring, above n 120, 50. In addition to inter se questions, other cases, including constitutional law decisions of State Supreme Courts could, subject to the enactment of Commonwealth legislation, be appealed to the Privy Council. Both aspects—the Privy Council's continuing appellate jurisdiction and Commonwealth legislative power to preclude such appeals—are recognised in the third paragraph of s 74. Such legislation was enacted in the Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); s 11 of the Australia Act 1968 (Cth). See generally for analysis of the Commonwealth legislation and Privy Council and High Court imbroglio see Anthony Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and 'The Law for Australia' (1978); Sawer, above n 98, 23–31,128–9; John Goldring, 'The Path to Engineers' in Michael Coper and George Williams (eds), How Many Cheers for Engineers? (1997) 1–32.
[134] See above n 55 (Senate powers compromise) and above n 98 (finance compromise). See also above nn 84, 85 (Barton's willingness to compromise).
[135] The Constitution Bill was enacted by the UK Parliament in 1900 as the Commonwealth of Australia Constitution Act 1900 (UK). Compare Barton's annotations on Memorandum C: 'This is a Constitution and not a Dog Act' and '[t]his is not a body of laws, but a Constitution.' Reproduced in Bolton, above n 2, 163; La Nauze, above n 1, 186. See generally James Thomson, 'The Australian Constitution: Statute, Fundamental Document or Compact?' (November 1985) 59(11) Law Institute Journal 1199.
[136] See generally La Nauze, above n 1, 264–9, 303–4 (discussing drafting negotiations and reproducing the text of various versions of s 74); Bolton, above n 2, 211, 212; Wright, above n 128, 81–3 (discussing Symon's 'valuable contribution', via correspondence in 1900 with Selborne, Chamberlain and Kingston, to retain clause 74 limiting appeals to the Privy Council); Glass, above n 67, 195 (quoting Symon's cable published in The Times, 20 April 1900); Don Wright, 'Symon, Sir Josiah Henry (1846–1934)' in Millar, above n 21, 162–7, 422–3 (discussing Symon's opposition to Privy Council appeals); Josiah Symon, 'Dawn of Federation: Some Episodes, Letters and Personalities and a Vindication' (edited and annotated by Don Wright) (September 1976) 15(2) South Australiana 113, 130–1, 135, 136–46 from Sir Josiah Symon Papers (National Library of Australia, Canberra, MX 1736 series 29) (discussing Symon's efforts in England and Australia to curtail Privy Council appeals and reproducing Barton's letter of 12 August 1900 to Symon). See also above n 122 (quoting Kingston's letter to Symon).
[137] For subsequent convolutions involving the High Court, Privy Council and Commonwealth legislation see above n 133.
[138] Deakin, above n 1, 162 (partially quoted in Bolton, above n 2, 211, 213). For a similar description see Walter Murdoch, Alfred Deakin: A Sketch (1923) 203 (quoted in Reynolds, above n 2, 177). However, 'Sir Josiah Symon wrote years later [in March 1930], "knowing the men, I think their joining hands in a fandango ... though a good story, is apocryphal."' Bolton, above n 2, 213 (quoting, without providing a direct citation reference, Symon, above n 136, 138). Symon was criticising Walter Murdoch, Alfred Deakin: A Sketch (1923) for promulgating this 'story'. However, in 1923 Murdoch was drawing on Deakin's (then) unpublished manuscript. Macintyre (ed), above n 1, xxiv. When published in 1944, after Symon's March 1930 manuscript, Deakin, above n 1, 162 indicated that there had been such a 'fandango'. Therefore, Wright concludes, Symon was wrong. Symon, above n 136, 151 n 27 (Don I Wright's footnote). However, there is a possibility that Symon was right. Symon was also a contemporaneous, albeit indirect, participant in these 1900 negotiations (see above nn 132, 136) who knew Barton, Deakin, and especially, Kingston well and Deakin's manuscript may contain at least one mistake in connection with these negotiations (see above n 129). See also Crisp, above n 12, 348 (concluding that '[w]hilst no complete victory, this represented a really substantial success for the [Australian] delegates'); de Garis, British Influence, above n 67, 403–9 (discussing the views of other participants, including Chamberlain's 'fiercest critic, Lord Carrington', about the 'cleavage of opinion' between whether the Australian delegation or Chamberlain had won and concluding that 'it is difficult to see that Chamberlain gained anything'). The New Zealand representative shared that view. 'Chamberlain "astonished everyone [in London in 1900] by giving way to the [Australian] delegates almost altogether".' Sinclair, above n 67, 293 (quoting letter of 31 May 1900 from William Pember Reeves to Richard John Seddon, Premier of New Zealand). Similarly, Seddon stated: 'In respect to Federation, Chamberlain has proved a regular jelly fish and has fallen very much in my estimation, as I thought he was ... endowed with plenty of backbone. The people in Australia did not care a dump about the Federal High Court.' Letter of 7 July 1900 from Seddon to Reeves (quoted in Sinclair, above n 67, 292). On Seddon see Burdon, above n 102. Also, Professor La Nauze considers that Chamberlain's 14 May 1900 suggestion 'gave [Barton and Kingston] most of what they wanted' and that '[t]he delegates had served their country well.' La Nauze, above n 67, 190; La Nauze, above n 1, 168.
[139] Garvin, above n 15, 567 (Empire and World Policy, 1895–1900 (1934) vol 3) (quoted in Reynolds, above n 2, 178). See also Howell, above n 15, 343 (concluding that Chamberlain was 'successful'). See also Swinfen, above n 128, 63 (characterising the result as 'Chamberlain's success in extracting Australian concessions, small though they were'), 249 (concluding that 'in 1900 it was Chamberlain almost single-handed who forced the Australians to accept modifications to article 74'); Goldring, above n 118, 46–7 (concluding that 'there is little doubt that, in substance, the imperial authorities secured their main objective' and that Chamberlain only made 'one small concession'), 48 n 193 (noting that Swinfen, above n 120, 'advances the preferable view that the final form of s 74 was almost single-handedly the result of Chamberlain's efforts, and the evidence in support of this view is convincing').
[140] Marsh, above n 15, 491–2. For contextual reinforcement of this perspective compare Chamberlain's last words on 1 July 1914 about Ireland: '''Somebody has got to give way"', was the final sentence of the dying fighter to his gentle son, '"but I don't see why it should always be us".' Ibid 666. Similarly, credence is given to this perspective by the character assessment in Edmund Barton: 'A strong-willed and able businessman ... well preserved [1900] at 64, clean-shaven and monocled, Chamberlain was one of the few members of the British Cabinet from outside the aristocracy. He could talk to the Australians in their own language, and this was to be of value in the tough bargaining which followed.' Bolton, above n 2, 204, 205.
[141] See La Nauze, above n 1, 244 (concluding that after the 1899 Premiers' Conference 'one further alteration of substance was to be imposed by a superior power' in 1900).
[142] See above n 33.
[143] The s 128 referendum attempt on Saturday 6 November 1999 to repeal s 74 failed. See above n 109.
[144] See above n 109.
[145] See the opening words of the third paragraph of s 64 of the Constitution which indicate that it was not to operate until '[a]fter the first general election'. Compare its similar post-first general election exemption permitting a 'Minister for State [to] ... hold office for a ... period [of] three months ... [without being] ... a senator or a member of the House of Representatives.' For a discussion of this 'three month period of grace' see Final Report of the Constitutional Commission (1988) vol 1, 320–3. See also James Thomson, 'Executive Power, Scope and Limitations: Some Notes from a Comparative Perspective' (1983) 62 Texas Law Review 559, 569 (suggesting that '[b]y a contrived system of 3 monthly appointments, dismissals, and reappointments, the Australian executive, without any constitutional amendment, could be forced into the American presidential mould').
[146] 'The Governor-General and his nine executive councillors were sworn into office as the climax to a grand inaugural ceremony in [Centennial Park] Sydney on New Year's day, 1901.' Gavin Souter, Acts of Parliament: A Narrative History of the Senate and House of Representatives: Commonwealth of Australia (1988) 29. See also Bolton, above n 2, 228 (describing 'Barton ... in full formal frock coat ... as he advances to receive his commission from Hopetoun'); La Nauze, above n 67, 214 (noting that '[t]he first Executive Council met at 4.30 that [1 January 1901] afternoon' and that '[t]he Ministers were sworn into their specific offices of state').
[147] Elections for the Senate and House of Representatives were held on Friday 29 March 1901 (in NSW, Victoria, Tasmania and WA) and Saturday 30 March 1901 (in Qld and South Australia). The Commonwealth Parliament assembled on Thursday 9 May 1901. On the election campaign, the election and the opening of Parliament see Geoffrey Sawer, Australian Federal Politics and Law 1901–1929 (1956) 14–19; Souter, above n 146, 331–45, 612–13; McMinn, above n 12, 187–8; Bolton, above n 2, 234–6.
[148] For the events surrounding Barton's appointment as Prime Minister, including the Governor-General on Friday 19 December 1900 commissioning the NSW Premier William Lyne to form the first Commonwealth ministry and Lyne's inability to do so by 10pm on Wednesday 24 December 1900, see Bolton, above n 2, 219–22; Glass, above n 67, 202–4; Sawer, above n 147, 3–4; John Waugh, 'The First Governor-General' (December 2000) 6 The New Federalist: The Journal of Australian Federation History 62, 66–7; John La Nauze, 'The Hopetoun Blunder' in Helen Irving and Stuart Macintyre (ed), No Ordinary Act: Essays on Federation and the Constitution by J.A. La Nauze (2001) 36–81.
[149] The other Commonwealth Ministers—Deakin, Turner, Kingston, Forrest, Dickson, O'Connor, Lewis and Lyne—were all founding fathers. Dickson died on 10 January 1901 and Drake was appointed. Bolton, above n 2, 226–7, 230. See also La Nauze, above n 67, 214–18 (biographical sketch of each Minister).
[150] The Senate and House of Representatives did not assemble until 9 May 1900. La Nauze, above n 67, 228 (describing '[t]he opening of Parliament in the Exhibition Building' in Melbourne), 242 (describing election of Senate and House of Representatives 'presiding officers'). The High Court's first sitting was on 6 October 1903. John Bennett, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980 (1980) 23–4. Of course, State parliaments and State courts operated during this 1 January–8 May 1900 period.
[151] See Bolton, above n 2, 229 (describing some executive actions); La Nauze, above n 67, 219–20 (describing Cabinet meetings, drafting of Bills and executive despatches); Souter, above n 146, 30–1 (describing the 'government's administrative work', including the drafting of Bills). Compare subsequent executive action, for example, La Nauze, above n 67, 296–8 (discussing Cabinet's objection, especially 'strongly taken by Barton,' to the constitutional validity of extending the draft Conciliation and Arbitration Bill 1903 (Cth) 'to all seamen on vessels engaged in the coasting trade'); Glass, above n 67 (noting Cabinet's assessment that Kingston's proposed clause in the draft Conciliation and Arbitration Bill 1903 (Cth), applying the Bill's wages provision to foreign sailors on foreign ships when in Australian waters, was unconstitutional); Sawer, above n 147, 20, 26 (noting Barton and Deakin's opposition on constitutional law and policy grounds). For comparative analysis of executive interpretation and implementation of the US Constitution see Frank Easterbrook, 'Presidential Review' (1990) 40 Case Western Reserve Law Review 905; Geoffrey Miller, 'The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law' (1993) 56 Law and Contemporary Problems 35; Gary Lawson and Christopher Moore, 'The Executive Power of Constitutional Interpretation' (1996) 81 Iowa Law Review 1267; 'Symposium: Presidential Power in the Twenty-First Century' (1997) 47 Case Western Reserve Law Review 1213–1670. See also Winkler, above n 7, 1472 n 81 (discussing the 'extensive literature from the 1980s and 1990s on dialogic lawmaking' which 'emphasize[s] how constitutional law is shaped by nonjudicial actors, such as Congress, the Executive Branch, and the states'); James Thomson, 'States in an Australian Republic: Constitutional Conundrums' [2001] UNDAULawRw 8; (2001) 3 University of Notre Dame Australia Law Review 95–6 n 4 (noting scholarship on congressional and executive constitutional interpretation and decision-making); Larry Kramer, 'Foreword: We the Court' (2001) 115 Harvard Law Review 4, 5–9 (discussing debates concerning priority of and relationship between judicial, presidential and congressional interpretation of the Constitution); Rachel Barkow, ‘More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy’ (2002) 102 Columbia Law Review 237 (discussing the hierarchical, coordinate and monopolistic relationships between Supreme Court, presidential and congressional constitutional interpretation and decisionmaking through the perspective of classical, prudential and functional variants of the political question doctrine).
[152] 'Without a majority of its own in either [the Senate or House of Representatives] the [Barton] government [had to] win enough supporters from Labor or the Reidite opposition to push through its programme, and it [was] necessary to cobble together a fresh team of supporters for almost every major piece of legislation.' Bolton, above n 2, 240. Indeed, 'the Senate asserted its muscle immediately on receiving the first supply bill.' Ibid.
[153] As required by s 64 of the Constitution, all Commonwealth Ministers sat in the Senate or House of Representatives. The three month period (see above n 145) was not utilised at the beginning of the first Commonwealth Parliament.
[154] Compare the US Congress. See generally David Currie, The Constitution in Congress: The Federalist Period 1789–1801 (1997); David Currie, The Constitution in Congress: The Jeffersonians 1801–1829 (2001); Mark Tushnet, 'Shut Up He Explained' (2001) 95 Northwestern University Law Review 907; Symposium, 'Congress and the Constitution' (2001) 50 Duke Law Journal 1165–1425.
[155] See generally Thomson, 'Looking for Heroes', above n 6, 117–19 (suggesting that the 'first Commonwealth Parliament was a continuation of the 1890, 1891 and 1897–98 Conventions' and raising three unexplored issues concerning 'Commonwealth parliamentary interpretation of and decision-making under the Constitution'). See also below n 161 (parliamentary discussion of meaning and interpretation of ss 53 and 54 of the Constitution).
[156] See generally Sawer, above n 147, 14–33 ('The First Parliament, 1901–1903'); La Nauze, above n 67, 236–45, 276–318 ('Foundations, 1901–1903'); Millar, above n 21; Laurence F Fitzhardinge, 'Political and Public Life' in Nation Building in Australia: The Life and Work of Sir Littleton Ernest Groom (1941) 15–40; Ronald Norris, The Emergent Commonwealth: Australian Federation: Expectations and Fulfilment 1889–1910 (1975).
[157] See generally Bolton, above n 2, 243–8; Norris, above n 156, 43–106 (discussing the white Australia policy and associated legislation).
[158] See generally Bolton, above n 2, 246–7.
[159] See generally ibid 286, 288–9.
[160] See generally ibid 284, 287–8; Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987) 71–7; Bennett, above n 150, 12–20; Wright, above n 128, 83–4; Joyce, above n 68, 257–58; La Nauze, above n 67, 220, 265–66, 287–96, 305; Symon, above n 136, 147–48 (discussing Symon's 'revision of Griffith's draft Judiciary Bill'); Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation Report No 92 (October 2001). For a comparative analysis see generally Julius Goebel, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (1971) vol 1, 457–508; Wilfred Ritz, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence (1990); Maeva Marcus (ed), Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 (1992).
[161] Bolton, above n 2, 240. See generally Sawer, above n 147, 30–1 (discussing Commonwealth parliamentary debate over the meaning and interpretation of ss 53 and 54 of the Australian Constitution).
[162] Bolton, above n 2, 254–6. See also above n 32.
[163] Bolton, above n 2, 279–82. See generally Don Wright, Shadow of Dispute: Aspects of Commonwealth-State Relations 1901–1910 (1970) 1–49; Don Wright, 'An Open Wrestle for Mastery: Commonwealth-State Relations, 1901–1914' in Bruce Hodgins, Don Wright and Welf Heick (eds), Federation in Canada and Australia: The Early Years (1978) 211–17; Sawer, above n 147, 31–2.
[164] See above nn 151, 154, 160 (US President and Congress).
[165] Cabinet ministers (including Prime Minister Barton), Senators and members of the House of Representatives had been delegates to the 1890 Conference and 1891 and 1897–98 Conventions.
[166] The executive (sworn into office on 1 January 1901) and the Senate and House of Representatives (assembled on 9 May 1901). The High Court did not commence until 7 October 1903.
[167] Of course, for example, state courts continued to operate and decided cases under the Constitution. See, for example, In re the Income Tax Acts (No 4); Wollaston's Case [1903] VicLawRp 53; (1902) 28 VLR 357 discussed in Goldring, above n 133, 3–5; Charles Parkinson, 'The Early High Court and the Doctrine of the Immunity of Instrumentalities' (2002) 13 Public Law Review 26, 28–31 ('The approach of the State Supreme Courts').
[168] See, for example, s 51(xxxvi) of the Constitution which enables the Commonwealth Parliament to make laws 'with respect to ... matters in respect of which this Constitution makes provision until the Parliament otherwise provides'. Those matters are in ss 3, 7, 10, 22, 29, 30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73, 87, 93, 96, 97. See also s 49. Therefore, 'a large number of provisions in the Constitution ... leave to the [Commonwealth] Parliament the power of altering the actual constitutional provisions.' AG (Cth) (ex rel McKinlay) v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, 24 (Barwick CJ). See also below n 275.
[169] See Sawer, above n 147.
[170] Even so, William Howard Taft, US President (1909–1913) and Chief Justice of the US Supreme Court (1921–1930), might have surpassed Barton's achievement. See generally Howard Pringle, The Life and Times of William Howard Taft (1939); Alpheus Mason, William Howard Taft: Chief Justice (1964); P Coletta, The Presidency of William Howard Taft (1973); David Burton, William Howard Taft: In the Public Service (1986); Robert Post, 'William Howard Taft' in Melvin Urofsky (ed), The Supreme Court Justices: A Biographical Dictionary (1994) 457–63; Robert Post, 'Defending the Lifeworld: Substantive Due Process in the Taft Court Era' (1998) 78 Boston University Law Review 1489; Robert Post 'Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft' (1998) 1 Supreme Court History 50; Robert Post, 'The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court' (2001) 85 Minnesota Law Review 1267. Barton was Prime Minister (1 January 1901 to 24 September 1903) and a High Court Justice (7 October 1903 to 7 January 1920). See also below n 187.
[171] Bolton, above n 2, 131–332 (acting judge April 1895), 136–7 (refused 'permanent appointment' November 1896). Barton's list of colonial offices included: NSW Attorney-General; Speaker of the NSW Legislative Assembly; and Acting NSW Premier.
[172] Ibid 314 ('for nine months' during 1913).
[173] Ibid 320 (during 1915).
[174] Barton's judicial tenure encompasses the Commonwealth Law Reports volumes 1 to 27. Edmund Barton does not reveal whether the Barton papers (above n 61) contain any draft opinions. Apparently Barton 'pocket[ed] his own reasons for judgment and subscrib[ed] to others which followed substantially the same lines.' Robert Menzies, 'Foreword' in Reynolds, above n 2, 11. Compare the availability and use of US Supreme Court draft opinions and internal documents. See James Thomson, 'Inside the Supreme Court: A Sanctum Sanctorum?' (1996) 66 Mississippi Law Journal 177; Lee Epstein and Jack Knight, 'Piercing the Veil: William J. Brennan's Account of Regents of the University of California v. Bakke' (2001) 19 Yale Law and Policy Review 341; Forrest Maltzman and Paul Wahlbeck, 'Inside the U.S. Supreme Court: The Reliability of the Justices' Conference Records' (1996) 58 Journal of Politics 528; Mark Tushnet, Making Constitutional Law: Thurgood Marshall and the [U.S.] Supreme Court, 1961-1991 (1997); Del Dickinson (ed), The Supreme Court in Conference (2001).
[175] Bolton, above n 2, 305 (referring to Barton's 'judge's notebooks', Australian Archives, A10612). Compare Gerard Brennan, 'Three Cheers for Engineers' in Coper and Williams, above n 133, 145, 146–8 (utilising the notebooks of Knox CJ and Isaacs J recording counsels' arguments in the Engineers Case [1920] HCA 54; (1920) 28 CLR 129). See also Tony Thew, 'Judges' Notebooks' in Blackshield, Coper and Williams, above n 11, 369 (providing a general description of judges' notebooks and specific details about 'Barton's notebook of 1903'). Also compare Barton's 'cabinet note book'. La Nauze, above n 67, 310 (quoting Barton's last entry on Thursday 24 September 1903).
[176] For example Barton's letters to Governor-General Ronald Munro Ferguson, Chief Justice Griffith, Thomas Bavin, Deakin, and Albert B Piddington. See Bolton, above n 2, 307, 309, 313, 315, 316, 317, 323, 324–25. Also utilised is Edmund Barton, 'The Godfathers of Federation', Daily Mail (Brisbane), 11 July 1919" (subsequently republished in the Sydney Morning Herald) (partially quoted in Bolton, above n 2, 330–1).
[177] Ibid 297 (Barton-Griffith 'telegrams written in Latin' about Griffith's appointment as Chief Justice).
[178] See, for example, Menzies, above n 174, 8–12; Garfield Barwick, 'Foreword to this Edition' in John Reynolds, Edmund Barton (1979) v–ix; Garran, above n 2, 170.
[179] Compare Thomson, 'Swimming in Air', above n 31, 227–78, 241–2 ('Removal of Justices').
[180] See generally James Thomson, 'Appointing Australian High Court Justices: Some Constitutional Conundrums' in H P Lee and George Winterton (eds), Australian Constitutional Perspectives (1992) 251–73 (analysing the legal requirements of s 72(i) of the Constitution and s 6 of the High Court Act 1979 (Cth) and providing examples of the practical politics behind High Court appointments); Spry, above n 55 (discussing s 72(i) and proposals to reform the appointment process). Of course, much more is known about the politics and manoeuvrings behind US Supreme Court appointments. See, for example, David Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (1999); Michael Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (2000); John Dean, The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court (2001); James Thomson, 'Prologue to Power: Selecting Supreme Court Justices' (1986) 12 University of Dayton Law Review 71.
[181] For some details see Bolton, above n 2, 291–4, 296–9. However, a good deal more raw politics is exposed in Joyce, above n 68, 268; Galligan, above n 160, 78–9; La Nauze, above n 67, 294–5, 305–11.
[182] Clark was passed over in 1903 and 1906. See generally Bolton, above n 2, 292, 297, 299; Thomson, above n 96, 294, 330 n 122. Sometimes offers of appointment have been refused. Examples include Sir Samuel Way (1906); Sir John Gordon (1912); Sir Keith Aickin (1969); Robert Ellicott (1981). See Bolton, above n 2, 303; Thomson, above n 180, 254 n 11; Ian Holloway, 'Aickin, Keith Arthur' in Blackshield, Coper and Williams, above n 11, 15; Troy Simpson, 'Appointments that Might Have Been' in Blackshield, Coper and Williams, above n 11, 23.
[183] Bolton, above n 2, 292 ('Jenkin Coles, the premier of South Australia put in a strong plea for Barton's old friend Downer').
[184] Ibid 291–2 (mentioning Isaacs, Symon and Hodges).
[185] During 1903–20 they were: Griffith, Barton, O'Connor, Isaacs, Higgins, Gavan Duffy, Powers, Piddington, Knox and Starke. For subsequent years see George Winterton, H P Lee, Arthur Glass & James Thomson, Australian Federal Constitutional Law: Commentary and Materials (1999) 902–3.
[186] Bolton, above n 2, 293. The reason was Barton's view of Griffith's pre-eminence as a 'jurist' in Australia. Ibid. For a more complex assessment see Joyce above n 68, 258–61 (discussing Deakin's strong support for and correspondence with Griffith and Governor-General Tennyson's discussions with Barton and letter to Griffith). See also La Nauze, above n 67, 305–6 (noting that 'Deakin had never had any doubt that for Chief Justice he wanted Griffith'); Wright, above n 128, 84–5 (discussing Symon's objections to Griffith's appointment); Symon, above n 136, 147–8 (discussing Kingston's severe condemnation of Griffith's appointment because of the latter's active support in 1900 for retaining Privy Council appeals).
[187] Bolton, above n 2, 288, 291, 296–8 See also Bolton and Williams, above n 11, 54 (suggesting that Barton's health was also an influential factor). For other perspectives see Bennett, above n 150, 21 (noting that 'Deakin, who [,as a Cabinet minister,] had a part in proposing appointees to the new [High Court] Bench, was accused of sponsoring Edmund Barton ... so that Deakin himself might [become Prime Minister]'). But see La Nauze, above n 67, 305–10 (endeavouring to refute that accusation and reproducing Barton's letter of Wednesday 23 September 1903 to Deakin and 'the last entry in [Barton's] cabinet note book' of Thursday 24 September 1903). The second Commonwealth election was held on 16 December 1903. See Sawer, above n 147, 34–7. On 23 September 1903 Cabinet made the decision to recommend to the Governor-General in Council that Barton (as well as Griffith and O'Connor) be appointed, under s 72(i) of the Constitution, to the High Court. Barton resigned as Prime Minister on 24 September 1903 and 'a few days later from parliament'. Ibid 20. Barton, together with Griffith and O'Connor, took the oath of office as a High Court justice on 7 October 1903.
[188] Bolton, above n 2, 283–4. But see Galligan, above n 160, 78 (suggesting that 'O'Connor's appointment was ... widely supported'). On the circumstances involving O'Connor's appointment see Bolton, above n 2, 284–5; Fricke, above n 55, 35. See also above n 75 (biographical scholarship on O'Connor).
[189] Generally on the protectionist versus free trade debates behind and influence on the Constitution see Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385–93; Gordon Patterson, The Tariff in the Australian Colonies 1856–1900 (1968); John La Nauze, 'A Little Bit of Lawyers' Language: The History of "Absolutely Free" 1890–1900' in Irving and Macintyre (eds), above n 148, 111–46; Bolton, above n 2, 63–70, 84–91; McMinn, above n 12, 8–14, 41–6, 66–79, 88–91, 98–102, 107–112, 116–17, 122–4, 141–2, 159, 163–4.
[190] Of course, from one perspective law is merely politics albeit disguised under a nom de plume. See generally David Kairys (ed), The Politics of Law: A Progressive Critique (3rd ed, 1998); Mark Kelman, A Guide to Critical Legal Studies (1987); 'Critical Legal Studies Symposium' (1984) 36 Stanford Law Review 1–674; 'Symposium on Critical Legal Studies' (1985) 6 Cardozo Law Review 691–1031; Mark Tushnet, 'Critical Legal Studies: A Political History' (1991) 100 Yale Law Journal 1515.
[191] Details are in Fricke, above n 55, 80–3; Phillips, above n 55, 24–30; Lawrence F Fitzhardinge, That Fiery Particle 1862–1914: A Political Biography of William Morris Hughes (1964) vol 1, 276–83.
[192] See above n 55 (biographies of Piddington).
[193] Piddington was offered the appointment by Attorney-General Hughes on 14 February 1913, formally accepted the offer in a letter dated 1 March 1913 to Attorney-General Hughes, appointed on 6 March 1913 and resigned on 24 March 1913. See, for example, Phillips, above n 55, 24–30; Fricke, above n 55, 80–3; Fitzhardinge, above n 191, 276–83. However, for the suggestion that Piddington resigned on 5 April 1913 see, for example, Morris, 'Piddington', above n 55, 534; Winterton, Lee, Glass and Thomson, above n 185, 902; Patrick H Lane, The Commonwealth Law Reports: An Index-Digest with a Table of Cases Reported Volumes 1–150 (1903–1982) (1986) 10. Compare Justice McTiernan's 46 year tenure (1930–1976). See Michael Kirby, 'Sir Edward Aloysius McTiernan, 1892–1990: Parliamentarian and Judge' (1990) 64 Australian Law Journal 320. Such disparity might engender debate over the relationship, if any, between the quantitative and qualitative aspects of judicial tenure. From a comparative perspective, see David Currie, 'The Most Insignificant Justice: A Preliminary Inquiry' (1983) 50 University of Chicago Law Review 466; Frank Easterbrook, 'The Most Insignificant Justice: Further Evidence' (1983) 50 University of Chicago Law Review 481; Paul Edelmann and Jim Chen, 'The Most Dangerous Justice Rides Again: Revisiting the Power Pageant of the Justices' (2001) 86 Minnesota Law Review 131; William Ross, 'The Ratings Game: Factors that Influence Judicial Reputation' (1996) 79 Marquette Law Review 401.
[194] For similar public controversies see Thomson, above n 180, 250 n 2 (details of Evatt, McTiernan and Murphy appointments); Thomson, ‘Swimming in Air’, above n 31, 224–5, 238–9 (Murphy appointment).
[195] Piddington had been appointed a High Court justice prior to his consultation with Barton. See above n 193 and below n 196. Previously, Piddington and Barton had been friends. Bolton, above n 2, 313 (noting that Piddington had been 'a friend of Barton's from the early years of the Athenaeum Club').
[196] See ibid 313; Fitzhardinge, above n 191, 280. See also ibid 281 (quoting Barton's letter).
[197] See generally Fricke, above n 55, 91–107; Graham Fricke and Martha Rutledge, 'Knox, Adrian' in Blackshield, Coper and Williams, above n 11, 400–2; Martha Rutledge, 'Knox, Sir Adrian' in Nairn and Serle (ed), Australian Dictionary of Biography (1983) vol 9, 624–26; W Farmer Whyte, William Morris Hughes: His Life and Times (1957) 49–53 (discussing the contribution of Knox, as the member for Woollahra in the NSW Legislative Assembly, during the 1894 debate on the proposed repeal of the Parliamentary Representatives Allowance Act 1889 (NSW) and suggesting that Knox was a 'leading spirit among the 'reactionary elements', as the Labour members called them' and noting that in this debate Hughes agreed with Knox).
[198] See generally Bolton, above n 2, 331–2; Joyce, above n 68, 356–7, 410–11; Donald Markwell, 'Griffith, Barton and the Early Governor-Generals: Aspects of Australia's Constitutional Development' (1999) 10 Public Law Review 280, 291–2; Donald Markwell, 'Sir Edmund Barton and the Retirement of Sir Samuel Griffith' (unpublished Seminar paper, University of Western Australia, 14 December 1984) (compilation of quotations from primary documentation, including extracts from the Governor-General's diary and letters from Griffith and Barton).
[199] The first occasion occurred during the 1900 negotiations in the United Kingdom and included Griffith's correspondence with Chamberlain and, 'probably', with James Bryce and Griffith's 'support for Chamberlain's original attitude' on Privy Council appeals. See Bolton, above n 2, 204 (Griffith's 'devious role' as illustrated by Griffith's letter to Chamberlain of 19 October 1899 indicating that '[t]he [Constitution] Bill ... was far from perfect, and British improvements on it would be welcomed'), 209 (Bryce's critical letter of 4 May 1900 to Barton was 'probably fuelled by misinformation from Griffith'), 213 ('The fear [that clause 74 would eliminate direct appeals from State Supreme Courts to the Privy Council] was groundless, but it was fanned by Griffith'), 331 (Griffith going 'behind Barton's back ... in the Commonwealth Bill negotiations of 1900'); La Nauze, above n 1, 266–8; Joyce, above n 68, 208–15. Bryce's critical letter may well have had a detrimental effect on Barton's 'mood' (Bolton, above n 2, 209) because of Bryce's influence, via James Bryce, The American Commonwealth (1888) (3 vols), on the formation and drafting of the Australian Constitution. See La Nauze, above n 1, 18–19, 273; James Thomson, Judicial Review in Australia: The Courts and the Constitution (1988) 118–20, 281–2; Mathew Harvey, 'James Bryce, "The American Commonwealth", and the Australian Constitution' (2002) 76 Australian Law Journal 362. On Bryce see Edmund Ions, James Bryce and American Democracy 1870–1922 (1968); Hugh Tulloch, James Bryce's American Commonwealth: The Anglo-American Background (1988).
[200] Bolton, above n 2, 331. For Barton's anguished feelings when he discovered, via Griffith's 'hard and unsympathetic letter' of November 1919 to him, Griffith's 'advice ... when consulted as to the appointment of [Griffith's] successor' see Bolton, above n 2, 335 (quoting Barton's letter of 11 November 1919 to Governor General Munro Ferguson that Griffith 'did not care if it killed the man [namely, Barton] who had helped him'). For analysis of this correspondence see Joyce, above n 68, 357; Markwell, ‘Sir Edmund Barton’, above n 198, 15.
[201] Barton was not in Brisbane, where the High Court was sitting, because of his illness. Bolton, above n 2, 331 (characterising as 'fateful' the fact 'that Barton's health prevented [Barton] going to Brisbane to attend Griffith's farewell ceremony on 25 July [1919]'). For a second 'fateful illness', compare 'Barton's 'providential catarrh' [on Monday 12 April 1897] which allowed time for overnight lobbying' before a 'critical vote' was to be taken, at the Adelaide Session of the Constitutional Convention, on the Senate's power over supply and appropriation Bills. Bolton, above n 2, 151–2. See also La Nauze, above n 1, 143–8 (discussing relationship between Barton's 'bronchial cold' and the settling of this 'most contentious issue between the two groups of [large and small] States'); Thomson, 'Looking for Heroes', above n 6, 105–16 (analysis of 'Senate and Money Bills: The Great Crisis?'). See also above n 55. A third important Barton illness occurred on 30 May 1893. See Bolton, above n 2, 108–10 (noting that 'illness' prevented Barton from 'lead[ing] the [NSW] Legislative Assembly through detailed consideration of the draft [1891] federal Constitution' and that this was 'inconvenient to the federal cause').
[202] Bolton, above n 2, 331. Griffith (as well as Barton, above n 201) did not attend the 25 July 1919 High Court farewell ceremony. Joyce, above n 68, 356–7. Governor-General Munro Ferguson was in Brisbane and 'while speaking privately to Griffith found him vexed and troubled about [Griffith's] successor' as Chief Justice of the High Court. Bolton, above n 2, 331, 368 (referring to Governor-General's memorandum of 27 November 1919 to the UK Secretary of State for the Colonies). The Governor-General's diary entry for 26 July 1919 stated: 'Home via Sir S. Griffith's. I promised to tell Ministers I agreed Adrian Knox was the successor to him.' Quoted in Markwell, 'Sir Edmund Barton', above n 198, 12; Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 291. See also Joyce, above n 68, 357 (indicating that Griffith 'was consulted by [Prime Minister] Hughes'). For suggestions as to why Griffith preferred Knox, not Barton, see Joyce, above n 68, 215 (Griffith's failure, on 30 December 1900 in Sydney, to obtain a 'firm offer' of appointment to the new Commonwealth government), 357 (Griffith's concern to secure 'stability' on the High Court); Bolton, above n 2, 331 (Griffith's effort to thwart a Commonwealth Labor government 'pack[ing] the High Court').
[203] Bolton, above n 2, 331. See also above n 202 (quoting Governor-General's agreement 'to tell Ministers'). Griffith did not 'say anything' to Barton about Griffith's suggestion and request. The Governor-General did not tell Barton because 'confidentiality prevented' such disclosure. Bolton, above n 2, 331. See also above n 200 (indicating Barton only became aware of Griffith's role in November 1919).
[204] Bolton, above n 2, 332. Governor-General Munro Ferguson's diary entry for 5 September 1919 stated: 'Afterwards I gave [Prime Minister Hughes] Sir S Griffith's view re High Court.' Quoted in Markwell, 'Sir Edmund Barton', above n 198, 12. Prime Minister Hughes left Sydney, Australia on 26 April 1918 and, after visiting America, England and France (including the Paris Peace Conference), returned to Fremantle, Australia on 23 August 1919 and arrived in Melbourne on Saturday 30 August. Laurence F Fitzhardinge, William Morris Hughes: A Political Biography: Volume 2: The Little Digger: 1914–1952 (1979), 311–420. See also ibid 421 (noting that '[o]n Wednesday [3 September 1919 Prime Minister Hughes] attended a cabinet meeting in Melbourne, but when the meeting resumed next day [Hughes] was resting at home').
[205] Bolton, above n 2, 331. See also ibid 329 (suggesting that '[a]ll' of the other High Court justices 'thought' that Barton 'must be' the second Chief Justice). However, 'Griffith had favoured Knox over Barton and Isaacs.' Joyce, above n 68, 357. See also Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 291 (noting that '[a]t least one [High Court] judge, Powers, wrote to Griffith saying that he wanted Barton as Chief Justice').
[206] Bolton, above n 2, 332; Markwell, 'Sir Edmund Barton', above n 198, 12–13 (quoting Governor-General's diary entry for 15 October 1919 indicating that 'Sir E. Barton [came] to tea').
[207] See generally Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 280 (noting that Governor-General Munro Ferguson and Barton 'developed [a] very close relationship'). See also Farmer Whyte, above n 197, 358 (commenting on the relationship, perhaps friendship, between Governor-General Munro Ferguson and Prime Minister Hughes).
[208] Bolton, above n 2, 332 (indicating that Governor-General 'Munro Ferguson immediately wrote to [Prime Minister] Hughes advising him of Barton's feelings').
[209] Section 72(i) of the Australian Constitution. See above n 180. See also Markwell, 'Sir Edmund Barton', above n 198, 11 (quoting Barton's letter of 21 August 1919 to W Farmer Whyte (editor of the Queensland Daily Mail newspaper): 'The decision of the Federal Executive as to the succession to Sir Samuel Griffith will take place at any rate—I suppose—within a fortnight of the return to Sydney of Mr Hughes. That is expected to occur on the 29th Aug. [1919]').
[210] See Prime Minister Hughes' letter of 16 October 1919 to Governor-General Munro Ferguson (partially quoted in Bolton, above n 2, 332–3 and Joyce, above n 68, 410–11); secret memorandum of 27 November 1919 from Governor-General Munro Ferguson to the UK Secretary of State for the Colonies ('The Chief Justice') (pages 3–4) (Colonial Office 418/178 folios 438–9, Public Records Office, London; Novar papers, MS 696 folio 2283, National Library of Australia) (reporting on events and circumstances, including the Cabinet decision, surrounding the appointment of Chief Justice Knox) (partially quoted in Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 291, 292). Prime Minister Hughes' letter of 16 October 1919 indicated that Cabinet had decided to recommend Knox be appointed because the 'best course was to select some distinguished member of the Legal Profession who, being in the prime of life, could be expected to hold the office [of Chief Justice] for some years and give stability to the High Court.' Quoted in Bolton, above n 2, 332. Of course, 'this decision reduced the risk of an incoming Labor Government being able to appoint a new Chief Justice.' Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 291. On Knox see above n 197 (biographical scholarship). On 17 June 1919 Griffith sent his resignation to the Commonwealth Attorney General to take effect from 31 July 1919. However, Griffith agreed to extensions until 17 October 1919. Adrian Knox was appointed on 18 October 1919. Joyce, above n 68, 356–7; Sawer, above n 147, 182. Prime Minister Hughes and Adrian Knox had been parliamentary colleagues in the NSW Legislative Assembly. Farmer Whyte, above n 197, 49–53. See also Anthony Mason, 'Griffith Court' in Blackshield, Coper and Williams, above n 11, 311, 314 (noting 'Griffith's success in having Knox appointed as his successor').
[211] See above n 174. See also text accompanying above nn 171, 173 (Barton's tenure as an acting NSW Supreme Court judge and member of the Judicial Committee of the Privy Council). Compare Bolton, above n 2, 320 (indicating that Barton chose to take only a few [Privy Council] cases') with Bolton and Williams, above n 11, 55 (indicating that Barton 'sat on a number of [Privy Council] cases').
[212] See above n 174 (alluding to the possibility of draft opinions). See also text accompanying below nn 235–40 (Barton's and other Justices unpublished advisory opinions).
[213] There are two main exceptions. First, see Bolton, above n 2, 305 (discussing Blundell v Vardon [1907] HCA 75; (1907) 4 CLR 1463 (Barton J sitting as the Court of Disputed Returns declared void the election of Vardon as the third South Australian Senator at the 1906 general election)). Second, see Bolton, above n 2, 309–10 (discussing the Vend case [1912] HCA 58; (1912) 15 CLR 65 overturning a conviction under the Australian Industries Preservation Act 1906 (Cth)) on which see generally Sawer, above n 147, 109. Other non-constitutional law cases referred to in Edmund Barton are Knight v Knight [1912] HCA 36; (1912) 14 CLR 86 (discussing interpretation of a will) and Brown v Lizars [1905] HCA 24; (1905) 2 CLR 837 (discussing criminal law and entitlement to a new trial). See Bolton, above n 2, 304, 305.
[214] See, for example, D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 (holding that the doctrine of implied immunity of instrumentalities (see below n 218) precluded State stamp duty applying to receipts given by Commonwealth employees to the Commonwealth Paymaster when receiving their Commonwealth salary); Deakin and Lyne v Webb [1904] HCA 57; (1904) 1 CLR 585 (holding that the implied immunity doctrine precluded State income tax applying to Commonwealth salaries); Commonwealth v New South Wales [1906] HCA 16; (1906) 3 CLR 807 (holding that the implied immunity doctrine precluded State stamp duty applying to documents transferring land to the Commonwealth); Railway Servants case [1906] HCA 94; (1906) 4 CLR 488 (holding that the implied immunity doctrine precluded the Conciliation and Arbitration Act 1904 (Cth) applying to State railway employees); Webb v Outrim [1907] AC 81 (Judicial Committee of the Privy Council holding that the implied immunity doctrine was not part of Australian constitutional law and that, therefore, Commonwealth officials were liable to pay general non-discriminatory State income tax levied on their Commonwealth salary); Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 (holding that the implied immunity doctrine precluded State taxation applying to Commonwealth employees' salaries); R v Sutton (Wire-netting case) [1908] HCA 26; (1908) 5 CLR 789 (holding that Commonwealth customs legislation could bind State governments and prevent State officers taking out of Commonwealth customs control dutiable goods); Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Ltd [1911] HCA 31; (1911) 12 CLR 398 (suggesting that municipal corporations' trading functions were not protected from Commonwealth legislative power by the implied immunity doctrine); R v Barger [1908] HCA 43; (1908) 6 CLR 41 (holding provisions in the Excise Tariff Act 1906 (Cth), imposing excise duty and penalties on defendants who did not provide fair and reasonable employment conditions, were invalid as being in substance an endeavour to regulate employment conditions which were not within any Commonwealth legislative power); Australian Boot Trade Employes Federation v Whybrow & Co (Bootmakers' case No 1) [1910] HCA 8; (1910) 10 CLR 266 (holding that, under s 51(xxxv) of the Constitution, the Commonwealth Court of Conciliation and Arbitration could not make a federal industrial award directly inconsistent with State awards made under State legislation); R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (Bootmakers' case No 2) (holding that s 51(xxxv) supported the validity of the Commonwealth Conciliation and Arbitration Act 1904 which made some features of the federal arbitration system, for example, the referral of industrial disputes to the Commonwealth Court of Conciliation and Arbitration, compulsory); Australian Boot Trade Employes Federation v Whybrow (Bootmakers' case No 3) [1910] HCA 53; (1910) 11 CLR 311 (holding that s 38(f) of the Commonwealth Conciliation and Arbitration Act 1904, which gave to the Commonwealth Court of Conciliation and Arbitration power to make federal awards a 'common rule' for the whole of an industry even though only some companies in the industry were parties to the dispute, was invalid as beyond the s 51(xxxv) arbitration power); New South Wales v Commonwealth (Wheat case) [1915] HCA 17; (1915) 20 CLR 54 (holding that the Inter-State Commission was invalidly established because its enforcement powers under the Inter-State Commission Act 1912 (Cth) made it a judicial tribunal without s 72 life tenure and that the Wheat Acquisition Act 1914 (NSW) did not contravene s 92); Foggitt Jones & Co Ltd v New South Wales [1916] HCA 28; (1916) 21 CLR 357 (holding that the Meat Supply for Imperial Uses Act 1915 (NSW), which prevent owners moving their cattle across State borders, contravened s 92); Duncan v Queensland (1916) 22 CLR 556 (holding that the Meat Supply for Imperial Uses Act 1914 (Qld) did not contravene s 92 and overruling Foggitt Jones); Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433 (holding the War Precautions Acts 1914, 1915 and 1916 (Cth), a Commonwealth regulation and an order stipulating the maximum price for the sale of bread constitutionally valid under the s 51(vi) defence power).
[215] Generally, there remains a significant and unfavourable contrast between this aspect of High Court Justices' biographies and US Supreme Court justices biographies. For the former see Thomson, 'Swimming in Air', above n 31; Winterton, Lee, Glass and Thomson, above n 185, 919–24 (bibliography of biographies). For the latter see, for example, Alschuler, above n 104; White, above n 104; Thomson, 'Getting to Know Harlan', above n 31.
[216] Bolton, above n 2, 304–5, 313. See also ibid 305 (concluding that '[i]n general [Barton] identified consistently with Griffith'); Bolton and Williams, above n 11 (noting that '[t]he Commonwealth Law Reports indicate that Barton shared Griffith's views in all 164 reported cases in the first three years of the [High] Court'). For the dissents discussed by Edmund Barton see Bolton, above n 2, 318–19 (discussing New South Wales v Commonwealth (Wheat case) [1915] HCA 17; (1915) 20 CLR 54), 322–3 (discussing Duncan v Queensland (1916) 22 CLR 556). The 'civil case,' which Edmund Barton does not identify, appears to be Knight v Knight [1912] HCA 36; (1912) 14 CLR 86, 96 involving the interpretation of the word 'survive' in a will, where Barton expressly 'regret[ted] that he was unable to agree with [Chief Justice Griffith] in his conclusion as to the construction of this will.' Edmund Barton postulates three reasons—Barton's 'recovery from an attack of typhoid'; O'Connor's death on 18 November 1912; and 'another shift in the membership of the High Court'—for Barton's 1912 change. Bolton, above n 2, 313.
[217] For other glimmers see above n 11 (scholarship on Barton).
[218] See generally Leslie Zines, The High Court and the Constitution (4th ed, 1997) 1–7; Parkinson, above n 67; Winterton, Lee, Glass and Thomson, above n 185, 743–4.
[219] See generally J Macken, Australian Industrial Law (2nd ed, 1993); W Creighton, William Ford and R Mitchell, Labour Law: Text and Materials (2nd ed, 1993); Patrick H Lane, Lane's Commentary on the Australian Constitution (2nd ed, 1997) 334–66; Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 803–53 ('The Industrial Relations Power'); Moens and Trone, above n 109, 162–73; William Ford, 'Reconstructing Australian Labour Law: A Constitutional Perspective' (1997) 10 Australian Journal of Labour Law 1, 11–20; Andrew Fraser, 'Parliament and the Industrial Relations Power' in Lindell and Bennett (eds), above n 55, 93–148. See also Bolton, above n 2, 307–10 (discussing the narrow Griffith, Barton and O'Connor view of s 51 (xxxv)).
[220] Bolton, above n 2, 308.
[221] Barton's letter of 26 January 1908 to Thomas Bavin (quoted in Bolton, above n 2, 307).
[222] Bolton, above n 2, 308. See also ibid 333 (suggesting that a significant reason for appointing Adrian Knox, rather than Barton, as Chief Justice was that, as compared to Barton, Knox 'was not committed ... to the original federal compact and so had fewer qualms about enlarging the Commonwealth's powers ... at the expense of the States').
[223] Ibid 307 (discussing the Wire-netting case [1908] HCA 26; (1908) 5 CLR 789).
[224] Ibid 318 (discussing the Wheat case [1915] HCA 17; (1915) 20 CLR 54).
[225] Ibid 322–3 (discussing Duncan v Queensland (1916) 22 CLR 556).
[226] See above n 2.
[227] Duncan v Queensland (1916) 22 CLR 556 (Griffith CJ, Powers, Gavan Duffy and Rich JJ; Barton and Isaacs JJ dissenting).
[228] Ibid, 605 (partly quoted in Bolton, above n 2, 323).
[229] For debate on originalism and its place in constitutional interpretation (especially by judges) see, for example, Richard Kay, 'Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses' (1988) 82 Northwestern University Law Review 226; Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary Originalism' (1999) 27 Federal Law Review 323; Jeffrey Goldsworthy, 'Interpreting the Constitution in Its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677; Eastman v Queen [2000] HCA 29; (2000) 74 ALJR 915, 935–41 (paras 131–58) (McHugh J), 958–9 (paras 241–45) (Kirby J).
[230] Barton's letter of 14 October 1916 to his wife (Jeanie Barton) (quoted in Bolton, above n 2, 323).
[231] In addition to primary sources (see above nn 174–78), see scholarship on Barton's judicial colleagues, for example, Joyce, above n 68; Zelman Cowen, Isaac Isaacs (1967); John Rickard, H. B. Higgins: The Rebel as Judge (1984); Pamela Coward, Henry Bournes Higgins and the Australian Constitution (LLM thesis, Australian National University, 1975). See also above n 75 (Richard O'Connor). For other scholarship on Barton see above n 11.
[232] See above n 215 (biographical scholarship on High Court justices).
[233] Sawer, above n 147, 27 (quoted in Bolton, above n 2, 304). For example, Sir Leo Cussen considered that 'Barton's judgments were the best [as compared to Griffith and O'Connor], that they had more philosophy in them, more understanding of what a Constitution was about, more sagacity; that they were well written, and that they were extremely good.' Owen Dixon, 'Retirement of the Chief Justice' (1963) 110 CLR iii, xiii. Dixon, to whom Cussen had expressed this private opinion, considered Cussen to be 'a high witness.' But see Anthony Mason, 'Griffith Court' in Blackshield, Coper and Williams, above n 11, 312 (suggesting that 'Barton ... [was] generally considered a lesser lawyer than Griffith, with a less extensive reservoir of legal knowledge').
[234] Compare the scholarship of rating US Supreme Court Justices such as Henry Abraham, Justices, Presidents, and Senators (revised edition, 1999) 369–72 ('Rating Supreme Court Justices'); Albert Blaustein and Roy Mersky, The First One Hundred Justices: Statistical Studies of the Supreme Court of the United States (1978) 32–51; Roy Mersky and Gary Hartman, 'Rating the Justices' (1992) 84 Law Library Journal 113; David Bryden and E Christine Flaherty, 'The 'Human Resumes' of Great Supreme Court Justices' (1991) 75 Minnesota Law Review 635, 656–62 ('Evaluating the Evaluation'); Ross, above n 193.
[235] Compare the publication of US Supreme Court Justices draft judicial opinions (see above n 74) and advisory opinions, for example, Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (1997); Laura Kalman, Abe Fortas: A Biography (1990) 293–318 ('The Adviser'); Melvin Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (1997) 209 (discussing Chief Justice Vinson's advice to President Truman); Bruce Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982); James Thomson, 'Not a Trivial Pursuit: Salmon P. Chase and American Constitutional Law' (1996) 23 Northern Kentucky Law Review 285, 321–2 (discussing and quoting from Chief Justice Chase's letter of 10 December 1872 to Secretary of State Hamilton Fish on the constitutionality of provisions in a proposed treaty).
[236] Some advisory opinions have been published. See, for example, Griffith's 3 June 1914 verbal advice and 5 October 1914 written advice ('Memorandum by Sir Samuel Griffith, Chief Justice of Australia, on the "Double Dissolution" Section of the Constitution' in the Novar Papers (National Library of Australia, Canberra, MS 696 folios 4495–8, 1020–91), Griffith Papers (Mitchell Library, Sydney, ML MSS 363/8xfolios 49–50) and Colonial Office (Public Records Office, London, 418/123 folios 352–3)) partially reproduced in Ernest Scott, Official History of Australia in the Great War (1938) vol 11, 18–19; Leslie F Crisp, Australian National Government (5th ed, 1983) 404–5; Jacob Fajgenbaum and Peter Hanks, Australian Constitutional Law: Cases, Materials and Text (1972) 93; Herbert V Evatt, 'The Discretionary Authority of Dominion Governors' (1940) Canadian Bar Review 1, 4–5. For smaller extracts from other advisory opinions see, for example, the articles referred to below n 237.
[237] Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 286. In addition to above n 236, for reference to, discussion of and quotations from such opinions see also Donald Markwell, 'On Advice from the Chief Justice' (July 1985) 29(7) Quadrant 38; John Paul, 'The Dismissal: History Justifies Barwick's Advice' (1 March 1983) 103 Bulletin 50; James Thomson, 'Book Review' [1983] UNSWLawJl 21; (1983) 6 University of New South Wales Law Journal 255; James Thomson, 'History, Justices and the High Court: An Institutional Perspective' (1995) 1 Australian Journal of Legal History 281, 287–91, 301–7 (especially 301 n 72 providing references to '[f]urther discussions and examples'); Bolton, above n 2, 316–18, 323–5; Sawer, above n 147, 122 (discussing Griffith's advice (above n 236) and '[t]he propriety of the [Governor-General] seeking such an opinion, and of the Chief Justice giving it').
[238] Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 289.
[239] Ibid, 290.
[240] Ibid, 290. See also Bolton, above n 2, 324 (similar discussion).
[241] Bolton, above n 2, 317.
[242] Specifically in the context of Barton's advisory opinions see Markwell, 'Griffith, Barton and the Early Governor-Generals', above n 198, 293–4 (defending the propriety of Barton's advisory opinions to and consultations with the Governor-General as '[a]spects of Australia's constitutional development'). See also above n 237 (scholarship on propriety of other justices' advisory opinions).
[243] In addition to Barton, Justices and Chief Justices who have given (oral and written) advisory opinions include Griffith, Latham, Dixon, Barwick and Mason. See generally above n 237 (citing references). On US Supreme Court justices' advisory opinions to American Presidents see Thomson, 'History, Justices and the High Court', above n 237, 301–2 n 72 (citing references).
[244] For US Supreme Court comparisons see, in addition to above n 174, Edward Lazarus, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (1998); Kathleen Sullivan, 'Behind the Crimson Curtin' (8 October 1988) 45(15) New York Review of Books 15; Alex Kozinski, 'Conduct Unbecoming' (1999) 108 Yale Law Journal 835; Christopher Drahozal, 'The "Arrogance of Certainty": Trust, Confidentiality, and the Supreme Court' (1998) 47 Kansas Law Review 121; Richard Painter, 'Open Chambers?' (1999) 97 Michigan Law Review 1430; David Garrow, '''The Lowest Form of Animal Life'? Supreme Court Clerks and Supreme Court History' (1999) 84 Cornell Law Review 855; John Knox, The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington (Dennis Hutchinson and David Garrow (eds), 2002).
[245] See generally Thomson, 'Swimming in Air', above n 31; Thomson, 'History, Justices and the High Court', above n 237; Amelia Simpson and Troy Simpson, 'Personal relations' in Blackshield, Coper and Williams, above n 11, 528.
[246] See above n 11 (biographical scholarship on Barton's judicial colleagues).
[247] Bolton, above n 2, 301, 306, 315, 366.
[248] Reynolds, above n 2, iii (quoted in Bolton, above n 2, 305).
[249] Markwell, 'Sir Edmund Barton', above n 198, 3 (quoting letter of 22 March 1906 from Chief Justice Griffith to his wife). See also Bolton, above n 2, 366 (same).
[250] Markwell, 'Sir Edmund Barton', above n 198, 2 (quoting Governor-General Munro Ferguson's diary entry of 24 March 1915). See also Bolton, above n 2, 366–7 (same).
[251] Bolton, above n 2, viii, 59.
[252] Ibid, 304, 313.
[253] See text accompanying above n 81. See also above n 78 (Barton's long working hours on the drafting Committee).
[254] See above nn 84, 85. For particular examples, see above nn 55 (Senate power compromise), 98 (finance compromise), 132 (Privy Council appeals compromise). See also above n 152 (Prime Minister Barton's need to 'cobble together' compromises to have legislation enacted).
[255] Barton's letter of 11 January 1904 to Prime Minister Alfred Deakin (quoted in Bolton, above n 2, 301).
[256] Bolton, above n 2, 301.
[257] Ibid 305.
[258] [1907] HCA 76; (1907) 4 CLR 1087. For a discussion see Parkinson, above n 67, 44–7.
[259] Bolton, above n 2, 306.
[260] Ibid 315 (quoting Barton's letter to Isaacs).
[261] See, for example, ibid 315, 323. But for opposing characterisations of Barton's letters of 22 June 1913, 25 August 1913 and 10 September 1913 to Griffith about Isaacs see Rickard, above n 55, 274 (describing Barton's attitude to Isaacs as 'personal venom') and Bolton, above n 2, 315 (excusing Barton's remarks about Isaacs as 'casual, flippant anti-semitism of upper middle-class Anglo-Australians' and suggesting 'Barton was [probably] playing up to Griffith's prejudices').
[262] (1916) 22 CLR 556. See above n 214.
[263] See, for example, Mason, above n 233, 311 ('Griffith Court'). Of course, there is an initial question: Should Australia follow the practice, adopted in relation to the US Supreme Court, of referring to the High Court by the Chief Justice's surname? For a prominent example of the use of this nomenclature see Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996). However, it has been suggested that '[r]eferences to the 'Mason Court' are of course a convenience rather than an attempt to overstate the influence which a single Justice may have on a court of seven in which the responsibility to give 'individual expression to the law' clearly is taken very seriously. Nevertheless, the role which the Chief Justice played in fact should be recognised appropriately as well.' Saunders, 'The Mason Court in Context', ibid 2, 4. See also Gerard Brennan, 'A Tribute to Sir Anthony Mason', ibid 10 (noting that '[t]o describe the [High] Court during Sir Anthony Mason's Chief Justiceship as 'the Mason Court' is a useful shorthand, but it is not a term which accurately describes the dynamics of a Court constituted by Justices of robust independence of mind, willing and able to give cogent expression to their own views').
[264] Bolton, above n 2, 16. See generally ibid 9–10 (discussing Barton's education, including in 1868 being awarded by the University of Sydney a 'first class honours [degree] in Classics'). See also above n 85 (noting the 'profound influence' of Barton's classics professor). On the classical influence on the U.S. see generally Carl Richard, The Founders and the Classics: Greece, Rome, and the American Enlightenment (1994); Mortimer N S Sellers, American Republicanism: Roman Ideology in the United States Constitution (1994); 'Symposium: The Republican Civic Tradition' (1988) 97 Yale Law Journal 1493–1723.
[265] See generally McCullough, above n 49; Joseph Ellis, Passionate Sage: The Character and Legacy of John Adams (1993); Robert Allison, 'John Adams Returns' (2002) 30 Reviews in American History 212.
[266] See generally Jack Rakove, James Madison and the Creation of the American Republic (2nd ed rev 2001); Robert Rutland, James Madison: The Founding Father (1987); Robert Rutland, The Presidency of James Madison (1990); Robert Rutledge (ed), James Madison and the American Nation, 1751–1836: An Encyclopedia (1994); Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (1995); Richard Matthews, If Men Were Angels: James Madison and the Heartless Empire of Reason (1995); William Miller, The Business of May Next: James Madison and the Founding (1992); Garry Wills, James Madison (2002); Paul Finkelman, 'James Madison and the Bill of Rights: A Reluctant Paternity' [1990] Supreme Court Review 301.
[267] See generally John Bannon and John Williams, 'Completing the Federation' (2000) 6 The New Federalist: The Journal of Australian Federation 1 (indicating that the forthcoming issue will address 'the question 'who is the "father" of federation'). Some scholars compile A and B teams. See, for example, Kay Saunders, 'Book Review' (2000) 46 Australian Journal of Politics and History 128–9 (suggesting that '[t]he long held A list would ... have consisted of Samuel Griffith ... Henry Parkes and Edmund Barton ... along with Alfred Deakin ... [and that] [t]he old B list consisted of Richard Baker, Richard O'Connor, Charles Cameron Kingston and John Downer as well as [Andrew Inglis] Clark' and noting possible changes, including the diminishing stature of Parkes and Griffith and the elevation of Clark and Downer). Compare above n 234 (rating the justices).
[268] See above n 64 (discussing the commencement of Barton's federal crusade).
[269] See above nn 10 (Parkes), 12 (Reid). See also Macintyre, above n 88, 6 (noting that 'the city of Bendigo is assiduously promoting Sir John Quick as the real Federal Father'); Dixon, above n 233, xi (concluding that 'the Constitution owes its shape more to [Samuel Griffith and Andrew Inglis Clark], probably than to anybody').
[270] See, for example, above nn 13 (McMillan's crucial change of view on the Senate's power over money Bills), 133 (Chamberlain's Privy Council compromise).
[271] See above n 86 (alluding to Barton's foibles, flaws and failures).
[272] Others who take this position include Robert Garran (see above nn 14, 28). See also above n 45 (Braddon's description of Barton as 'the Colossus of the [1897–98 Constitutional] Convention').
[273] See above n 28 (quoting Garran's letter of 4 November 1940).
[274] In addition to the already available and used primary and secondary sources (see, for example, above nn 4, 54), much information may remain to be discovered and examined. Compare, for example, Bannon, 'Rediscovering', above n 96, 121 (noting that Premiers' 'intercolonial communications' were 'a rich source of materials which had not been closely looked at').
[275] Given the existence of the Commonwealth Constitution, no Parliament in Australia is sovereign. Even though s 51(xxxvi), in conjunction with provisions containing the phrase 'until the Parliament otherwise provides' (see above n 168), permits the Commonwealth Parliament to amend some aspects of the Constitution, that Parliament is not sovereign. See, for example, Thomson, 'History, Justices and the High Court', above n 237, 304 n 92 (referring to the relationship between s 51(xxxvi) and s 96). Compare parliamentary sovereignty in the United Kingdom. See, for example, Jeffery Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999); William Wade, 'Sovereignty—Revolution or Evolution' (1996) 112 Law Quarterly Review 568; Trevor Allan, 'Parliamentary Sovereignty: Law, Politics, and Revolution' (1997) 113 Law Quarterly Review 443. See also Trevor Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001) 13–21, 201–42 (discussing the relationship between parliamentary sovereignty and the rule of law).
[276] See, for example, James Thomson, 'An Australian Bill of Rights: Glorious Promises, Concealed Dangers' [1994] MelbULawRw 24; (1994) 19 Melbourne University Law Review 1020, 1063 (noting various theories of judicial review, constitutionalism, democracy and justice and their syntheses).
[277] See above n 266 (scholarship exposing and exploring the various dimensions of Madison's political and constitutional philosophy).
[278] Indeed, the benefits should penetrate much further into constitutional law. For some possibilities see generally G Edward White, 'The Arrival of History in Constitutional Scholarship' (2002) 88 Virginia Law Review 485 (discussing various 'alternative explanation[s]' for the '"turn to history" by American constitutional scholars' and for the 'widespread assumption within the [American] legal academy that historical inquiry has become a central and statured dimension of contemporary constitutional scholarship'); Thomson, 'A Great Swindle?' above n 6, 346 n 7 (providing bibliographical references to explore the question: does Australian constitutional law scholarship, including High Court decisions, 'represent a turn to history?').
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