1903 debates—Responses to Blackmore’s queries on ss.17 and 23 of the Constitution
In the course of the debates on the standing orders in June 1903, questions arose on the following:
when an “ordinary” election for President should take place given that it was not provided for in s.17 of the Constitution (see SO 5); and
whether the special majorities required to carry a motion for the closure were contrary to s.23 of the Constitution (see SOs 144 and 199).
Blackmore wrote to several eminent British authorities, although there is no record of these letters in the letterpress copies of official correspondence still held by the Department of the Senate. The extant responses are reproduced below. Nothing is known to have been made of the responses which would all have been received after the standing orders were finalised on 19 August 1903. Again, there is no record of their receipt in the incoming correspondence register for the period. Blackmore no doubt treated them as personal rather than official correspondence. They have remained in the department’s custody along with other papers belonging to Blackmore.
The constitutional issue in relation to special majorities would be raised again in 1935 and 1968–69 when opinions of government lawyers were sought, but there is no evidence that the existence of these earlier views was known. See SOs 144 and 209.
From James Bryce, 1st Viscount Bryce, author of The American Commonwealth (1888)
[annotated “31/8/03 EGB”]
House of Commons
Dear Mr Blackmore,
It is always a pleasure to me to hear from you.
The practice of the U.S.A is as you think. The end of a House of Representatives is deemed to be the end of a ‘Congress’; and they talk of the “57th” or “58th” Congress reckoning from the first election in 1789. It seems to me that it would be the more convenient course for you to do the same, and reckon by the elections of your House of Commons. Your own precedents seem to be in the same direction.
As to Art. 23, it seems clear that it would be ultra vires of the Senate to prescribe by Standing Order any specified majority, e.g.2/3.
As to Art. 17, that article does not appear to me intended to direct that a Senator chosen President shall as long as he sits as Senator remain President without needing a new election either when the Senate is renewed by one half, he continuing in his old title, or when he his term has expired and he is re–elected. In the latter case I conceive that the expiry of his term as Senator would determine his tenure of the Presidency and that he would need to be re–elected. He seems to me to be in by a new title, viz: an election by the people with which choice by the Senators has nothing to do. The consequence of a different construction would be that he might be perpetual President unless removed by the Senate, which I can not think was intended.
Whether however a Senator chosen President continues President after the Senate has been renewed by one half seems much more doubtful.
Though the case seems one omitted in the Constitution, it may be that under the Constitution the Senator does continue President for the whole of his senatorial term. I doubt if this was intended, probably not, but it may be the effect of the words used. On the whole, however I incline to think that the more reasonable construction is that as the Senate is half of it a new body at the end of every three years, there is power to direct that a President may be elected for three years only, i.e. till the next triennial renewal.
Sir C.P. Ilbert thinks differently on this point, and both on that account & generally I do not entertain so decided an opinion upon this point as upon the preceding ones.
At any time when you can give me your views in confidence as to the wording of the Constitution, they will be very welcome. Here one never gets any news at all about constitutional matters in Australia.
Yours very truly
From A.V. Dicey, author of An Introduction to the Study of the Law of the Constitution (1885)
[annotated “Rec’d 22/9/03 EGB”]
15 Aug. 1903
I am starting for my holiday & can only give at the moment very cursory attention to the questions you send me.
As to both we must hold fast to this principle that no Order of the Senate can change anything in the Constitution unless—what I don’t think is the case—power be given to the Senate by the Constitution to make such change. Our inquiry therefore in each case must be, what is the meaning of the sections on which a doubt arises.
(1) As to sect. 17.
I hardly think it can have been the intention of those who drafted the Constitution that the President of the Senate should hold his office for longer than what you term a periodical election. But I find it very difficult to make this consistent with the wording of sec. 17.
It is I think just possible by a very forced construction of that section, to hold that at every re election a Senator because he gets a new tenure of office e.g. on the 1st of January, may be considered as ceasing to be a Senator in virtue of his earlier election though he immediately becomes a Senator on the 1st of Jany in virtue of his re election in Decr. This construction, strained though it be, so probably meets the real intention of the Constitution that it may perhaps be allowable to adopt it, in which case the difficulty about the President does not arise. But if some construction of the this kind cannot be adopted, I do not think any order of the Senate can add to the terms of sect. 17 so as to bring his office to an end earlier than is provided in the Constitution.
As to s. 23. I do not think that an order of the Senate can without provide that a question should for its decision require more votes than a mere majority.
A majority means, when nothing else is said, a bare majority.
My view may be tested by an extreme case. Suppose that the Senate were to pass a Standing Order that certain questions could be decided only by majority of ⁹⁄₁₀ths of the Senate, or, to put the most extreme case, of all the Senators except one, so as in fact to give to two Senators a liberum veto such much like that we are told existed in the Polish Diet. Can any constitution–alist suppose that such an order would not be ultra vires?
I write in great haste & will consider the matter further
A V Dicey
From Sir Courtenay Ilbert, Clerk of the House of Commons
House of Commons
August 4th., 1903.
Dear Mr. Blackmore,
As to Art. 17 of the Constitution Act, I am disposed to think that the Article is intended to be an exhaustive enumeration of the facts which terminate a President’s office, viz:–
1. Ceasing to be a senator.
If this is so, the suggested standing order would be ultra vires. I am also disposed to think that when a President is re–elected as a senator he does not require re–election as a President. But both these points are arguable. I find that Bryce is inclined to take a different view.
As to Art. 23, both Bryce and I are agreed that a standing order requiring more than a mere majority in particular cases would be ultra vires.
I am afraid that the Manual will not be ready till next year.
C. P. Ilbert
From Sir William Anson, author of The Law and Custom of the Constitution (1886–1892)
10 August 1903
Dear Mr Blackmore
If I understand the facts rightly they come to this – the Senate chooses a President who must be one of its own body. The President may resign, or may be removed by vote of the Senate and his office naturally lapses on a dissolution.
But I do not see that the office of President would become vacant because the President was undergoing the process of re–election to the Senate, if the election was so timed that he never ceased to be a member of the Senate.
In other words membership of the Senate is a condition of the Presidency and, so long as that condition is fulfilled I do not think that the process of re–election, which is not inconsistent with continuous membership, need affect the position of President.
If re–election involved even a momentary vacancy, by the holder, of his place in the Senate, it would involve a vacancy in the Presidency. Unless this is so, the Senate must by vote remove their President or might establish a convention that his office should not be tenable beyond a certain term, or must accept the conclusion that their President holds office, like the Speaker of the House of Commons, for the duration of a Parliament.
I make these remarks with some diffidence lest all the facts should not be before me, or have been misunderstood by me. I only state such conclusions as I can draw from the papers which you have sent me.
[yours] very truly
William R Anson