From September 1900 Australian troops were sent to sweep the countryside and enforce the severe policy of cutting the Boer guerrillas off from the support of their farms and families. It was a long, weary, not particularly meritorious guerrilla phase which would last until 1902. It was in the latter phase that Breaker Morant, feeling he had implied authorisation to do so, executed a number of Boers and was himself tried and executed as a result of his actions. The attitudes to the Boers did not improve the behaviour of Australian and other troopers on the veldt. The burning of farms, the confiscation of horses, cattle and wagons and the rounding up of the inhabitants, usually women and children, made up a great part of soldiers’ activities. So also did the long night rides, followed by an attack on a Boer farmhouse or encampment at dawn. The Boers were generally quickly overwhelmed or flitted into country they knew well. Guerrilla war hardens the soul, and moving with his contingent on the village of Bethel in May 1901 a Queensland trooper, George Horsburgh, felt no remorse when the village was set fire to and its inhabitants moved to one of Kitchener’s concentration camps. In the last five months of 1901, the New South Wales Mounted Rifles trekked over 1800 miles (3000 kilometres) and were involved in thirteen skirmishes for the loss of five dead and nineteen wounded. They reported killing twenty-seven Boers, wounding fifteen and capturing just under 200.
A majority of people at home became disenchanted as the conflict dragged on, especially as the effect of the war on Boer detainees was reported on by an outraged international press. For by mid-1901 General Kitchener had copied the Spanish procedure for pacifying Cuba and removed women, children and old people from farms, along with any male who surrendered his rifle and took the oath of loyalty. The first two camps Kitchener ordered opened were at Pretoria and Bloemfontein. Some 28 000 Boers died in the camps, of whom 22 000 were children. ‘It is a war,’ complained the Liberal politician Lloyd George, ‘not against soldiers but against women and children.’ Over 100 000 black Africans were also detained to prevent them from being of use to the Boers.
Two hundred and eighty-two Australians died in action or from wounds, while 286 died from disease, from a total of at least 16 000 men engaged. Without belittling those deaths, the casualty rate caused the public and the authorities to expect a similar lenient death rate in a future great war in Europe.
THE LONDON STRUGGLE
By the time Western Australia voted Yes, a number of Australian delegates who had taken the bill to London, especially Barton and Deakin, were at the frazzled end of battling the British cabinet to have it passed without amendment in Westminster. The British Colonial Secretary, Joseph Chamberlain, had earlier suggested a team of Australian delegates should come to London to help him oversee the bill’s passage through Parliament. Some thought it an unwise move to accept the invitation, since the presence of Australians as the watchdogs of the bill might actually encourage Chamberlain to seek amendments. Chamberlain was a high Tory and in some ways a monocled incarnation of imperial arrogance. He gave very little weight to the fact that Australians, colony by colony, had ratified this bill as it was, and decided it would be necessary to amend it for its passage through the British Parliament. There was also the possibility that further amendments might be moved in either the House of Commons or the Lords. So he must be dealt with if the bill as approved by colonial citizens was to be ratified by Westminster.
George Reid and William Lyne were disgruntled that there was only one man the public in New South Wales would want to see appointed to go to London—Barton. The New South Wales delegate and unofficial leader of the federal team, Barton, was much in need of the fee attached to this work, and dearly wanted to go. Barton had, said Deakin, an ‘inability to live within his income’ and an ‘indifference to resulting embarrassments’. The Victorian government of course appointed Deakin. Charles Kingston would represent South Australia and James Dickson Queensland.
Dickson was a Brisbane merchant, not native born like the others but born in Plymouth, and was interested in Federation chiefly because Queensland could not risk either isolation nor being written off later as a non-founding state. Although he would ultimately be appointed Minister of Defence in the first federal cabinet, he was a diabetes sufferer, and would become ill at the Federation ceremonies in Sydney on 1 January 1901 and die there on 10 January after only a week in office. But for the moment, in 1900, he was more interested in the Empire than in Federation, and would side with Joseph Chamberlain over the idea that there should be enshrined in the constitution a broad right of appeal to the Privy Council of Great Britain against decisions of the High Court. Should, for example, a British company, or indeed any person or body in Australia, lose its case before the Australian High Court, a final appeal could be to the Privy Council of Great Britain, an appeal which had been available to litigants in the colonies.
Sir Philip Fysh, Agent-General for Tasmania, would act as that state’s representative in negotiations with the British government, and Sir John Forrest appointed S.H. Parker, a Perth lawyer with a large family to support, was delegated to get special concessions for Western Australia, a task at which, despite his charm, Parker failed.
In March 1900, having resigned from the colonial Parliament, Barton and his wife Jeanie arrived in London. He was to be, with Deakin’s emphatic endorsement, the leader of the Australian delegation. In the published journal he would keep, Deakin would write subtle and clear-eyed assessments of his fellow Australians and of the British leaders and nobility they met and dealt with. Deakin was far from being seduced by the supposed splendour and superior wisdom of the British ministry. The Tory Prime Minister Robert Cecil (Lord Salisbury), a member of the famous family of Hatfield House, was a man of over seventy years. He seemed to Deakin the ‘idol that middle-class philistinism most love to rest upon . . . His speeches contained indiscretions enough to have ruined a dozen Cabinets in the colonies but scarcely shook him in the estimation of his countrymen.’
Deakin believed that many of those he met would not be in politics except for the circumstances of their birth. Arthur Balfour owed his position, said Deakin, to the fact that he was Lord Salisbury’s nephew. Indeed the term ‘Bob’s your uncle’ is said to have derived from the relationship between Lord Salisbury and his nephew. He was the member responsible for pursuing the war in South Africa and had lost a great deal of credit from the exercise. Chamberlain, says Deakin, was by contrast the classic businessman—‘Neither student nor philosopher nor man of culture’. The opposition Liberals, by contrast, were more to his taste and had merited their positions to a great degree.
Joseph Chamberlain probably walked into his meetings in Whitehall with the delegates from Australia with the idea that they would be as divided as had been the various colonial delegates at the first imperial conference of 1887, and would be concerned chiefly with ceremonial matters as were the delegates of 1897. Mr Chamberlain and his officials sat on one side of the table and the Australians upon the other, ‘both parties preserving a polite antagonism to each other’. Chamberlain knew that he had an advantage over them—they needed him to guide the bill through Parliament—and he was willing to use that lever. He could delay the introduction of the bill to the British Parliament as long as he wanted. He possessed, said Deakin, ‘the consciousness of all the means of coercion he enjoyed’. There were a number of sections of the constitution which the ruling Tory ministers would have liked to have seen eliminated, including Section 51, which gave the Australian Parliament control of foreign affairs and of the relations of the Commonwealth with the islands of the Pacific. Chamberlain, however, pushed none of those amendments. Even though in the end the British government, who were at base in favour of Federation, decided not to hamper the bill, Chamberlain had other issues to fight on.
At that first conference on 15 March, Chamberlain welcomed the delegates and said that the British government had decided not to ask for any amendments except those it deemed absolutely necess
ary. One of these amendments was to Covering Clause 2, and its objectionable declaration that ‘This Act shall bind the Crown’. The claim that the laws of the Commonwealth should be binding upon British ships whose port of clearance or whose port of destination was in the Commonwealth should also be removed. Above all, Section 74, which denied appeals from the Federal High Court to the Privy Council of Britain, could not be permitted, Chamberlain said. ‘He could not conceive of any refusal [by the Australians] as warrantable or possible and although without arrogance, spoke as a lord paramount or at least a predominant partner.’ Chamberlain wanted it clearly stated too that the Colonial Laws Validity Act, a British act, would apply to all federal legislation. That is, he wanted British legislation to override Australian legislation in the case of any conflict between the two. He also confused the delegates by expressing surprise that the Australians should send troops to the Boer War, a war which had little to do with their own interests. But, he told them as well that he objected to the idea that the Colonial Office should be a mere registry bureau for decisions already made by colonials.
All the delegates now spoke in reply. Barton made the point that the bill should be accepted with no alteration, but then seemed to yield and say that there should be as little alteration as possible. Chamberlain would later use that concession against him. Deakin seems to have been more direct and confessed his amazement that amendments should be requested so late in the day, when the British could have commented on the bill before it was presented to the Australian people. If any changes were forced on the delegates, then they would need to be referred back to the Australian people, delaying Federation indefinitely. James Dickson, on the other hand, told Mr Chamberlain that the entrance of that colony in the federal compact depended on the Colonial Office interfering to make the constitution acceptable to Queensland, and that the Premier of Western Australia, Sir John Forrest, was only hesitating in calling a referendum because he hoped the Colonial Office would change the bill in Western Australia’s favour. If the British government did not interfere, Forrest would have no option but to accept the bill as it stood.
The Australian delegates asked that the amendments be presented in detail the next day. It was, said Deakin, an ‘unpropitious beginning’. The delegates, however, met up privately at their hotel, and Deakin and Barton argued that there should be unity at all costs, that they had everything to lose and nothing to gain by each colony making its own statements and variations through their individual mouths, and that they must oppose any amendment. This argument was aimed at stopping Dickson from breaking ranks. The next morning, Deakin, Barton, hulking Kingston and the rest were back in front of Chamberlain demanding again that the draft Australian Constitution, the bill, should be accepted without criticism or further consideration and that ‘legislative independence [should be] recognised as amply as was that of the United States after their separation’. This was exactly the brand of colonial impudence Chamberlain hated. He confided to one of his British colleagues that if the delegates thought that they were going to get their bill through without amendment, ‘he’d see them damned first’. He was determined to insist on some amendment, however small, simply to show them that he was their imperial master.
One night during the negotiations, the delegates attended a dinner held by the New Zealand Agent-General, William Pember Reeves, a former journalist and New Zealand politician. Despite Deakin’s disregard for Reeves’ ‘restless ambition and cold temperament which rendered him incapable of loyalty’, he was a brilliant speaker. After the meal, Reeves rose to attack Australian Federation and urge its delay not only because of the Privy Council argument, on which he sided with Chamberlain, but because of the damage it would wreak on New Zealand trade. The amendment of the bill to secure totally unrestricted rights of appeal from Australian courts to the Privy Council should be presented all over again to the Australian people at referendum, as part of a new Federation bill. ‘Nor should there be any hurry to pass the bill as it stands . . . Australian federation which we all desire, may wait a short twelve months more.’ The delegates would not like this, he admitted. ‘They naturally wish for their own Australia.’ The entire Reeves speech was reproduced in the St James Gazette the next morning, along with a report of a Reeves interview, in which he admitted that New Zealand did in fact desire the privilege of coming into the Federation at any time after it occurred but by her own will and at her pleasure. After the article appeared, Reeves sent a message to the delegates asking them for a meeting. Deakin, Barton and Kingston told him that to have New Zealand and Western Australia asking for the same amendments as the British government made a meeting pointless.
The three Federation champions now decided that Deakin, with his direct, pungent but accurate style, should be the one to frame the delegates’ memoranda on the bill. These were to be presented to the British cabinet and should have some impact. To help Deakin, Kingston prepared his own energetic notes, and so did Barton in his scholarly but long-winded style. At the same time, Deakin had to acknowledge Dickson’s position and the uncertain Western Australian views.
The reply of the British ministry to the first memorandum was in the same tone as that of Chamberlain—‘Peremptory,’ said Deakin, ‘incisive, clear and in the nature of an ultimatum.’ A second memorandum was prepared now in which the delegates politely declined to abandon their position. Dickson from Queensland, however, ‘went boldly over to the enemy’ and would not sign it. Kingston refused to go on with any discussion in Dickson’s presence, and Dickson withdrew from the delegation. The proposed parties to Federation had split in two right in front of their imperial hosts. There were reasons. The Queensland Chief Justice, Sir Samuel Griffith, had been writing to Dickson, stiffening his resistance to the others. The atmosphere over the breakfast table of the delegates, with Edmund Barton’s wife Jeanie frowning at Dickson as solemnly as did her husband, must have been less than easy. Dickson received many telegrams from the Queensland government, upon whom, he implied to other delegates, the blame lay for the position he was in. But Dickson after all was a colonial British businessman who did not want his commercial interests entirely at the mercy of an unpredictable Australian High Court which did not yet exist.
On 5 April, a conference open to all interested parties was held at the Colonial Office. Chamberlain knew that four of the delegates—the Western Australian Parker feeling he must be solidly with Deakin and the others despite his doubts—would not waver but that there were two, the Tasmanian Fysh and Queensland’s Dickson, who were on his side and who could be persuaded to stay on it. Dickson in particular would take notice if Chamberlain threatened that the attitude of the others would cause a dangerous and unbrotherly split between Britain and Australia. These two, said Deakin, ‘had a deeper deference towards the authorities . . . They were visibly apologetic.’ Chamberlain began with an attack on the delegates’ position. He said the case of New Zealand’s trade would need to be assessed and that the desire of Forrest and Parker that Western Australia should go on collecting its own customs duties was a pressing one. He told Deakin, Barton and the others that if they did not give way on this minor point, federation of the states would be delayed. But under the bluster, Chamberlain himself was starting to retreat. He was willing to let the Australians have their way on controlling British shipping. But the Colonial Laws Validity Act would need to be accepted as applying to every law the future federal government would pass, and then, the old point, appeals to the Privy Council from decisions of the High Court should be as broadly allowed as they were under the laws of the various colonies.
The responses of the delegates were predictable. Barton answered that it was not within the rights of delegates to consent to an amendment of a constitution already voted on by the Australian electors, and that the delay and expense of a third referendum would be odious to Australians. Kingston declared that he had his instructions from South Australia and he was not intending to ask for further ones. The
convention of 1891, he told Chamberlain, composed of representatives from the whole of the colonies, had voted to prohibit any appeals of any kind to the courts of Great Britain. The Australian courts were the Queen’s courts just as much as any who sat in Britain. He then answered Chamberlain with Chamberlain’s own brand of blackmail—he said that the good relations between Australia and the mother country should not be disturbed by harmful delay and useless debate.
Now it was Deakin’s turn. The main interest of New Zealand, he said, was to go on exporting her goods into Australia, and these goods would be subjected to Australian customs if New Zealand did not join. As for the Western Australians, the concession asked by them was small, but it was the fault of their representatives to the conventions and at the premiers’ conferences that this issue had not been worked out then. The issue of the Privy Council and Section 74, the relevant section, was not raised by Britain before the first referendum was held, and this led the Australians to think there was no objection. Deakin then rang the changes on Kingston’s threat: the generosity of the British Parliament towards the Australian Constitution would, he felt sure, ‘be repaid by an immediate endeavour in the Australian legislature to meet their wishes as far as possible’.
By now, the three champions of the constitution, Barton, Kingston and Deakin, had written home suggesting that any reply to the British government sent by a new conference of premiers held to consider the issue should be sent to the delegates first so that they could refine it. That was done. Deakin and company wanted to insert further and more aggressive sentiments, such as, ‘The Premiers feel it their undoubted duty to strongly represent that either of these courses [amending the constitution or postponing it] would be distasteful and harassing and try the patience of the people.’ In the fourth paragraph the premiers urged that the voice of the Australian people should receive ‘favourable consideration’. But the big three begged them to state their abhorrence for amendments. Each of the three privately telegraphed his own premier urging him to stand up against amendments.