H. B. Higgins: the rebel as judge 9780868616810
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English Pages 392 [384] Year 1984
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Table of contents :
Frontmatter
Preface (page vi)
Illustrations (page viii)
1 Child (page 1)
2 Youth (page 16)
3 Immigrant (page 34)
4 Politician (page 62)
5 Rebel (page 92)
6 Friend of labour (page 123)
7 Man of letters (page 153)
8 Arbitrator (page 170)
9 Father (page 205)
10 Prometheus unbound (page 231)
11 Judge (page 265)
12 Irishman (page 289)
Notes (page 314)
Select bibliography (page 339)
Index (page 344)
Citation preview
H.B. HIGGINS The Rebel as Judge JOHN RICKARD
GEORGE ALLENS UNWIN
In memory of my father
© John Rickard 1984 This book is copyright under the Berne Convention. No reproduction without permission. All rights reserved.
First published in 1984 by George Allen & Unwin Australia Pty Ltd 8 Napier Street, North Sydney, NSW 2060 Australia George Allen & Unwin (Publishers) Ltd Park Lane, Hemel Hempstead, Herts HP2 4TE England Allen & Unwin Inc. 9 Winchester Terrace, Winchester, Mass 01890 USA
National Library of Australia Cataloguing-in-Publication entry: Rickard, John. H.B. Higgins, the rebel as judge. Includes index.
ISBN 0 86861 681 8. , 1. Higgins, H.B. (Henry Bournes), 1851-1929. 2. Politicians—Australia—Biography. 3. Judges—Australia—Biography. 4. Australia—
Politics and government. I. Title. 994.03'092'4 Set in Linotron 202 by Graphicraft Typesetters Limited, Hong Kong.
Printed by Singapore National Printers, Singapore.
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192 H.B. HIGGINS It then went on to condemn an article by Nettie Palmer in the Melbourne Socialist which criticised the allies for having failed in their duty to Belgium, and which remarked on the irony of Australia offering its last man and shilling while the Motherland mustered ‘such a tiny fraction of her own population to cross the Channel’. Liberty and Progress described the article as disgraceful, and suggested that the Labor government had taken no action concerning it
because its author was the daughter of a judge. ‘We have often complained of the Germanised justice that has been meted out in the Arbitration Court,’ said the voice of Walpole, ‘and judging from
the article we have criticised it is a case of “like father like daughter!”’’ The next issue contained a troubled but dignified letter from John Higgins, pointing out that Nettie was his daughter. He
also corrected the impression conveyed that his brother was opposed to the war, mentioning that Mervyn had already enlisted.
He concluded by calling for an apology for the sentence about ‘Germanised justice’ which he described as ‘unworthy of respectable journalism’. Walpole, quite unabashed, expressed his regret ‘that the exact tie of consanguinity was erroneously stated’, but this was ‘one of those unfortunate mistakes which will happen in the best regulated newspapers’. He denied that there was any inference in the article that Higgins was pro-German, and refused the
apology sought. Such vituperation was hurtful, yet the sheer
obviousness of its malice also provided a measure of reassurance. Through these years Higgins received a number of anonymous letters, nearly all ‘from partisans of employers’, and which were ‘often filthy’, and he kept these, ‘as contributions from unknown donors to a museum of curiosities’. Their very evil confirmed his virtue. The venom of some of these attacks by employers is perhaps surprising. Higgins’s decisions were not consciously hostile to their interests. He defended the employer's right to run his own business, and his general refusal to grant preference to unionists was
based on that consideration. Even his political critique of the
bourgeois spirit had implied that it was still, in an economic sense, necessary; and that while the principle of solidarity placed people before profits, ‘perhaps it is by the equable adjustment of the two forces that society ... moves steadily in its orbit’. The principle that
the minimum wage was sacrosanct had the corollary that the
worker, at least in so far as that minimum was concerned, had no claim on his employer's profits. Yet although Liberty and Progress noted decisions which respected employer interests, this did not mitigate the onslaught. The journal may not have been representative, of course; and there is evidence that the Court won grudging
ARBITRATOR 193 acceptance from some employers. But the broad tradition of employer hostility to the Court was certainly maintained until after the Great War. Higgins’s uncompromising and tactless rhetoric no doubt contributed to this, but relevant too must have been the fear that any extension of the Court’s ‘province’ meant increasing the general level of wages. For the minimum Higgins was proclaiming was markedly higher than that countenanced by the New South Wales and Victorian industrial systems. The controversies surrounding the Court not only kept it in the public eye, but ensured that it could not be regarded as simply another court of law. To some extent Higgins also wanted to make the distinction. His court was not like ‘the lofty and inaccessible temple in which the mysteries of the law are stored’ and which ‘none but a few initiates penetrate’: his pronouncements had to be comprehensible to thousands. The Court’s atmosphere was more informal; he did not wear robes, and from 1911 lawyers could only be employed with the consent of both parties (a provision of which Higgins approved). He was conscious of the novelty of his jurisdiction and the need to explain it: I have conceived it to be my duty, in exercising a jurisdiction so novel—feeling my way, as it were, in an uncharted sea—to take the public fully into my confidence as to the principles on which I base my
rewards, and as to the system which commends itself to me for the furtherance of industrial peace. It is better that I should state my conclusions than accept a conclusion without stating it, so that if I am taking the wrong course I may be set right by criticism. I have desired and invited criticism—I mean live criticism, the fruit of fresh thinking— not dogmas and phrases from editorial pigeon-holes.
In so far as he saw the Court as representing the public in industrial
disputes this made sense; but he was also aware that compulsory arbitration was a social experiment (he had used the term himself)
which needed careful nurture. He was, therefore, not only the Court’s president but its publicist as well. As we have seen, he was
not loath to answer from the bench what he deemed unfair
criticism. He made no bones about the difficulties created for him by High Court decisions, and he was prepared to point out the need for
legislative amendment. He was particularly concerned that the published Reports (which were, until 1915, under his editorial control) give a full account of the life of the Court. This meant not only including his own occasional statements (such as that condemning Waddell) but also some High Court judgments which
concerned arbitration. In one case he even provided his own
commentary, listing the ‘misapprehensions’ contained in the Full
194 H.B. HIGGINS Court’s decision. His ultimate apologia was A New Province for Law
and Order, published after his resignation. In private, too, he continued to defend his Court and press for
improvements. Soon after his appointment he was writing to Deakin, complaining of statements made by G. Fairbairn, a federal member associated with employer interests, and suggesting that a minister make ‘a thorough study’ of the McKay decision so as to be
in a position to answer questions. Six months later he was buttonholing Littleton Groom, the attorney-general, and suggesting that he put Sir John Quick right about the same case. The first real opportunity for amendments to the Act came with the election of the Labor government in April 1910. As attorneygeneral Hughes instituted some important changes—in particular the placing of Commonwealth public servants within the jurisdiction of the Court, and the granting to the president of a power to call
a compulsory conference without the consent of either party—but his administrative style soon irritated Higgins. He would ask for
suggested amendments, and then not acknowledge them; and
finally, when nudged, blandly reply that there would be no amending legislation that session. Hughes’s combination of administrative inefficiency and political panache was not one to appeal to Higgins. Perhaps Higgins thought Hughes was to blame when in 1913 the
Melbourne Herald reported that the government was trying to induce him to resign from the presidency, and that Higgins was
resisting. Nor did the government’s amendments remove some of the more tedious constraints imposed by the decisions of the High Court. The
Court could not apply the common rule; that, it seemed, required
the constitutional amendment which the government failed to carry. Nor, in practice, was the Court able effectively to exercise its
power to appoint a board of reference to determine specified
matters under an award. The continual testing to which the jurisdiction of the Court was submitted by High Court challenges cast an aura of uncertainty over its work, and often meant that the judge’s ‘time and energies, which belong to the public’ were wasted. Yet at
the same time the business of the Court was expanding and
congestion increasing. By 1914 it was necessary to appoint a deputy
president, C. Powers, to assist in the work. The narrow defeat of the Labor government in 1913 further complicated matters, for a shadow was now cast over the future of Higgins, whose seven-year term as president was due to expire in 1914. None other than Irvine, his old colleague and opponent, now became attorney-general, and he had quite recently criticised the Court. It went without saying that employers would be lobbying for
ARBITRATOR 195 the removal of Higgins: on the other hand the new government’s majority in the House was minimal, and it was in a minority in the Senate, so its position was not such as to encourage belligerence. Nevertheless an offhand, disparaging remark about a recent award by prime minister Joseph Cook was a cause for concern, and once again Higgins dealt with it with some ‘additional remarks’ from the
bench. At least one Labor member consulted Higgins about appropriate tactics; Higgins deprecated the suggestion that Labor should take the offensive and challenge Cook to displace him. It was in this uncertain situation that Higgins sought a year’s leave of absence. He was not sick, he said, but the strain of his work was such that he feared a breakdown. Before vacating the scene, he indicated that if he were offered a renewal of his appointment as president he would accept it. The decision to make a world tour meant, however, that he would be out of the country while the fateful decision was made. Yet for all the frustrations and uncertainties of his position, he
could in 1914 view his work with some satisfaction. Even the
slanders he endured were a tribute to the importance of the Arbitration Court. According to Melbourne Punch, writing in 1911, He is the real ruler of Australia just now. He is a Dictator, without the ordinary attributes of the Dictator in the way of power over the life and death of the citizens of Australia, but Dictator just the same, since he controls their pockets, their hours of working, their presents and their
opinion.” :
futures. He has without deliberate intention created a new public
Higgins himself was not averse to claiming that ‘the Court transfers
more money and affects directly more human lives than all the ordinary Courts of Australia taken together’. Controversial as he was, he was also popular. A tram driver, on being told that he had narrowly avoided running over Mr Justice Higgins, exclaimed in
consternation, ‘My God, | wouldn’t have run over him for the
world’. Both the Worker and Labor Call thought Higgins had thoroughly deserved his leave of absence; and when his ship berthed in Sydney unemployed wharf labourers gathered to cheer him.* The
enthusiasm of workers was understandable, but it represented more than mere gratefulness for increased wages: as in his political * The writer of this profile of Higgins went on to say that ‘no more truly judicial man ever sat upon the Bench’. He also admitted that if the Court’s decisions had favoured employees it was because the weight of evidence had been on their side.
"Even the Wobbly (Industrial Workers of the World) song, ‘Bump Me Into Parliament’, a satirical attack on parliamentarians and the parliamentary process, was lenient on Higgins personally: No one seemed to dispute that Higgins would at least be handing out “a little rise’.
196 H.B. HIGGINS career there was admiration for a man who seemed so lacking in the conventional values of his class. Many intellectuals, too, saw him as
an ally, and a force for good. “H.B.H. is a brick and the language can’t say any more,’ wrote Bernard O’Dowd. ’... Yes the clear brain and the human heart, what they can do when, as so rarely, they will!’ And in 1914 Higgins even believed that employers were being won over to arbitration; they were ‘showing much more desire for the interference of the Court’ than before, and it was only the political hostility of the employer federations which held them back.
Even more significantly, however, his tour abroad confirmed what he was already becoming aware of—that he was presiding Over a social experiment which was being regarded with increasing interest in many places. Earlier social reforms such as the eight-hour day, the Victorian wages boards and old-age pensions had already
attracted the attention of a number of visitors who had written
articles, reports and books. Australasia had even been dubbed ‘the social laboratory of the world’. Not all these observers and commentators approved of the ‘experiments’ being conducted in the ‘laboratory’, but there was some degree of consensus that they were worth study, and that the Old World might benefit from the experience of
the New. Higgins knew of this overseas interest; indeed as a politician and a judge he had talked to a number of the visitors,
ranging from the Webbs to Keir Hardie, Ramsay MacDonald and Viscount Bryce.
As remarked in an earlier chapter, compulsory arbitration had its origins in New Zealand, and its founder, W.P. Reeves, had contributed to the fame of colonial social and industrial legislation with the publication of State Experiments in Australia and New Zealand in 1902. But by 1914 Higgins’s Court had overshadowed its New Zealand forerunner, which had avoided laying down any precepts about the living wage. Higgins, on the other hand, had deliberately set out to present an integrated social philosophy, a rationale for compulsory arbitration, which he spelt out in a number of principles. In doing this he had one eye on the wider world. He sensed the importance of his work, and was determined to make it known.
, I know the Arbitration Act Like a sailor knows his rigging And if you want a little rise I'll talk to Justice Higgins.
So bump me into parliament, Bounce me anyway, Bang me into parliament The next election day.
ARBITRATOR 197 Each judgment was an argument, at times an impassioned one, for the new order in industrial relations he saw himself as pioneering. Already there was some recognition that this might be the most
important social experiment of them all. In 1913 an American professor, M.B. Hammond, delivered an impressive tribute: Having read carefully all of Mr Justice Higgins’ decisions, and having discussed these matters at great length with him in conversation, I feel warranted in saying that he gives no evidence of bias, and I believe that most economists will agree with me that the principles on which he has
based his judgments are fundamentally sound and that he has with relentless logic argued his way to safe and sane conclusions. He has certainly expressed, at greater length and with greater clearness than has anyone else, the ideals which have animated the Australian people and the Australian lawmakers in placing on the statute book the body of social legislation which has drawn the eyes of all the World to Australia, and which marks the most notable experiment yet made in social democracy.
Even as he and Mary Alice prepared to leave, Higgins knew the British Association for the Advancement of Science was to meet in Sydney, and that the main topic for its Economics Section would be wage regulation. In May 1914 they set off for Vancouver, a party of four, with Mary
Alice’s mother, Mrs George Morrison, and her younger sister, Hilda. Even so, Higgins set a cracking pace. In little more than five
weeks they crossed the Rockies, and travelled to Minneapolis, Chicago, Toronto, Ottawa, Montreal, Boston, New York and Washington. There were various people to look up—an Oxford friend of Mervyn's at Vancouver, Alice Henry and the writer ‘Miles Franklin’ in Chicago—but Higgins of course had particular objects
in mind. He wanted to see something of the western universities and their extension work; he was particularly struck by the popular-
ity of these universities in their local communities. Naturally enough he met lawyers and judges, including the chief justice of Canada, but he soon discovered that there were those who wanted to seek him out to discuss labour matters. Sir Wilfred Laurier called on him at his hotel in Ottawa, and quizzed him closely about the Court, and he also met Robert Valentine, an ‘industrial counsellor’ who belonged to a group of reformist employers anxious to improve industrial relations. Meeting Valentine was important, because from
him he gained an introduction to Professor Felix Frankfurter of
Harvard, who was to prove not only a useful guide to that institution, but a valued friend over the years (Frankfurter was later
to be particularly associated with the campaign to exonerate the condemned anarchists, Sacco and Vanzetti).
198 H.B. HIGGINS In the United States he talked about labour matters with Lawrence Lowell, the president of Harvard, Theodore Roosevelt, and the leaders of the Consumers’ League in New York. In Washington he was taken in hand by the eminent advocate (and later judge) Louis Brandeis, who introduced him to the ‘Common Council’, an infor-
mal gathering of the heads of federal departments, committed to implementing President Wilson’s program. Higgins joined them at one of their regular lunches at the University Club. They were ‘men
of high culture, training and ability’, and the conversation was ‘earnest, animated, courteous and interesting’. The main topic was the framing of legislation against trusts and combines: should they use some general term such as ‘fair and reasonable’, leaving it to the courts to decide its meaning? Higgins told them the tale of his own
experience with this very term, and ‘the statement appeared to interest them keenly’. Later he met the minister for labour, but missed out on being introduced to the president himself; he had to make do with witnessing an audience Wilson gave to a deputation of suffragists. It was a steamy Washington summer day, and the ‘ladies came prettily dressed in white’, but the president gave them a cool, not to say frosty, reception. He later told Frankfurter that while he admired Wilson’s ‘hard, logical and metallic clarity’, he thought him ‘too much wrapped up in the armour of conceit to be capable of much development’. It was an assessment all the more revealing for being made by a man who, in terms of political style at least, bore some resemblance to its subject. On 4 July the Higgins party sailed for London. His brief stay in
the United States not only stimulated an interest in American society and culture (‘it is to America that we must look for the
humanizing of our civilization’ even if the risk of ‘de-humanizing’ were greatest there) but also revealed to him that his seven years as an arbitrator had made him something of a minor celebrity. It was as a result of this visit that he was invited by the Harvard Law Review to
write his first article reviewing the work of his Court (two more were to follow). In introducing such a topic into Harvard’s prestigious legal journal the editor knew he was taking a risk of offending
some lawyers, but he told Higgins that ‘the principles and precedents that you have worked out seem to be the essence of law—a new branch of jurisprudence that must be scientifically studied and developed’. In England, too, there was interest in the progress of this social experiment, even though the British trade-union movement remained suspicious of any form of compulsion in industrial
relations.
But it was 1914. Suddenly everything was dominated by the
ARBITRATOR | 199 coming of war; political events at home also intervened to affect his future. The outbreak of war coincided with a federal political crisis.
Seeking to improve his tenuous hold on office, Cook sought and obtained a double dissolution of parliament. The parties competed in their declarations of imperial loyalty, but the election was won by Labor. Throughout this crisis the question of the presidency of the Arbitration Court had been put to one side. Higgins’s appointment
expired on 13 September, and this meant that Powers, who was acting under delegation from him, was also cast into a no-man’sland. Hughes was attorney-general once again, and if he himself might have preferred a more pliable president, he knew that to overlook Higgins would have caused uproar. The offer of another seven-year term was sent off to England on 18 September, but Higgins, in the meantime, had blithely gone off on a motoring tour, giving no forwarding address, and instructing his London hotel to hold letters and cablegrams. If the politicians had kept him dangling all this time, he could afford this little exhibition of indifference. Not until 1 October did he cable his acceptance and his reappointment of
Powers. :
He returned to Australia in May 1915, therefore, reassured of the importance of his work and confirmed in his office for another term. In the context of the war it seemed, too, that the Arbitration Court
would be even more important than before; and he now had a deputy to share the burden. If it was possible to discern some of the new difficulties being created for the Court—the rapid expansion of
the Court’s business, the pressure of rising prices, the emerging dominance of Hughes in the government—Higgins could still feel that he had established sufficient goodwill to stand him in good
stead. In 1915, however, came a decision which, while it showed that he was still capable of outraging conservatives, suggested the kind of
dilemma the war would create for the Court. A minimum rate for wharf labourers of 1s 9d an hour had been set by the Court, but the
union had made a claim that wheat carriers be entitled to a minimum of 2s an hour. The Court had refused this claim, believing
that there was not sufficient difference between wheat and other commodities to merit a distinction as to the minimum, but the men
had persisted, and had refused to load the wheat. The State governments, it seemed, were willing to pay the extra 3d, but feared
that in doing so they would be disobeying the Court. At this stage Hughes intervened, suggesting to Stewart, the Court’s registrar, that it was in Higgins’s power to resolve the impasse. This Higgins was prepared to do. He had always stressed that the minimum was
200 H.B. HIGGINS not a maximum, and that the individual worker could refuse work, just as the individual employer was entitled to offer more than the award. The controversy was created by the belief that the wharf labourers had refused to accept the award, gone on strike and got away with it. But as Higgins pointed out there had been no strike in the legal sense. The Act defined a strike as ‘the total or partial cessation of work by employees, acting in combination, as a means of enforcing compliance with demands made by them or other employees on
employers’. There had been no cessation of work by the wharf labourers: as casual workers they had simply refused the offer of loading wheat at 1s 9d an hour. Higgins may have been disingenuous in suggesting that this was a case of the right of ‘the individual man’ to accept or refuse work, but even if the wharf labourers had been acting ‘in combination’ they were, in this instance, within their rights. They were not on strike; there had been no breach of the award. The obloquy of the conservative press hardly mattered to Hig-
gins, but the alarm of his deputy, Powers, did. In a series of
rambling, disjointed letters, Powers expressed his concern that employers were being punished for breaches of the award while the workers were going scotfree; he was also shocked by the implication that Higgins had responded to pressure from the prime minister. If
Higgins insisted on holding to ‘the new principle’, Powers felt obliged to resign as deputy president. In reply Higgins was patient
and conciliatory. Carefully he explained the legal situation to Powers, as if to a somewhat slow-witted pupil. He could not see that they were at variance on any issue of principle; there was no need to resign, for the deputy had to act on his own judgment, not anyone else’s. The one point which rankled with Higgins was the suggestion that he had succumbed to Hughes’s influence: he made it clear that if he took into consideration the prime minister’s wishes
it was not in the interests of Hughes but of the public. Powers remained obdurate, and it seemed that it was necessary for their colleague, Frank Gavan Duffy, to act as a conciliator. Some sort of ‘treaty’ was negotiated, under which Powers agreed to continue for
the present, while Higgins’s interpretation of the Act would be referred to the High Court. Higgins seemed confident that on this legal issue, at least, he was on safe ground; and, indeed, with very
little fuss, if with no great enthusiasm, the Court endorsed his interpretation.
Higgins had won the point, but the affair was in its own way ominous. Powers respected his president, and the dispute did not seem to harm their personal relations; but could Higgins really
ARBITRATOR 201 imagine that it was possible for the two of them to follow different policies in their work? And the irony of some form of arbitration being required between the judges themselves would have been immensely damaging to the Court if it had been public knowledge.
Moreover Powers had a point. The risk was that unions would ignore the legal considerations peculiar to the wharf labourers’ case, and simply conclude that there was no obligation to accept an award
made by the Court. The most sinister portent, however, was the role of the new prime minister, Hughes. For here was a man determined to seize the opportunity offered by the war to be an effective and powerful leader. He would have no compunction about setting foot in Higgins’s carefully regulated ‘new province’:
and for such a small man his tread was to prove remarkably disturbing. Higgins’s world was changing; and, in more ways than one, 1916 was to shake it to its foundations. It was a few years before the war that Higgins made his translation
of the Aeschylus Prometheus Bound. That he should choose this particular text for such an exercise is significant (there is no evidence
that he ever attempted another): it was a work with a profound appeal for him. It is not hard to see, in a superficial sense, why this should be so. Prometheus, who while an immortal is also a son of
the Earth, stole fire from Olympus and presented it to the human race. This reckless generosity incurred the displeasure of Zeus, who had Prometheus chained to a rock for 30000 years while an eagle fed
daily on his liver, which was restored again at night. Higgins was not beyond interpreting his own role in terms which recalled the myth. He was releasing the potential of mankind: ‘Give them [men] relief from their materialistic anxiety; give them reasonable certainty that their essential material needs will be met by honest work, and you release infinite stores of human energy for higher efforts for
nobler ideals.’ The fair and reasonable wage was not a mere
palliative: it was the Promethean gift which would transform the life
of the worker. As for the constraints imposed upon Higgins in accomplishing this task, they closely resemble the chains binding Prometheus, even if at this stage they did not totally thwart his endeavours. He spoke in 1911 of ‘the difficulties which are closing in
on this Court, choking its operations as in a vice’. Such parallels are obvious enough, indeed even risk banality in being pointed out. But in its richness the Prometheus myth offers
deeper levels of significance than these correspondences of
metaphor. Zeus is the lawgiver, Prometheus the reformer. Presiding over the Arbitration Court in a sense combined these roles. Although he joked to Frankfurter that he chose the title for the
202 H.B. HIGGINS original Harvard Law Review article to placate ‘any old fashioned
subscriber’, he was serious enough in his belief that industrial relations were an appropriate province for ‘law and order’; yet his judgments, in spite of the form required of them, speak with the zeal of a social reformer. It might appear that this fusion of judge and reformer would have been satisfying for a man of Higgins’s experience and temperament—and, in a sense, it was; his con-
sciousness of this unique role is responsible for much of the
character of his work in arbitration. Justice had to be informed by sympathy. But he also realised the dangers involved. In his very first case he had recognised the legislative nature of the responsibility that a lazy parliament had endowed him with, and the vulnerable position in which this placed the president. And indeed this, he explained to Deakin in 1907, ‘must be my excuse for noticing newspaper statements’. On that occasion he added ‘only in communication with the
head of the Government’, but he was soon to dispose of that
limitation. He could hardly be surprised, then, that Irvine, acute as ever, should seize on the point to draw his own conclusion: You cannot make a thing a Court by calling it a Court. You cannot make
functions judicial by calling the place where they are administered a Court ... It [the Arbitration Court] is a subordinate legislative department of the Government. I am not sure that at the present moment it is not one of the most important legislative departments in existence in Australia. What it does is legislation. It is not a Court.
Irvine reinforced his argument by quoting ‘a competent authority’— Higgins himself in the Harvester judgment. Irvine was saying that it
was impossible to be both Zeus and Prometheus; and Higgins, although he could hardly accept that conclusion, had acknowledged the difficulty of reconciling the roles. The ultimate theme of the Promethean trilogy is reconciliation; and here the myth offers a more personal resonance. In the beginning Zeus and Prometheus had been cast in a fraternal relationship.
Prometheus had joined with Zeus in overthrowing the older dynasty of gods. Their falling out, therefore, has a particular emotional
significance: the pain that Prometheus endures, in this sense, is being inflicted by an elder brother. Yet even as the torment continues relief can only be gained, not by revenge, but by reason and understanding: Zeus and Prometheus are, in the end, reconciled. Prometheus is ‘forgiven’. 5o, too, in that powerful and controversial
metaphor about Esau selling his birthright for a square meal, Higgins invoked a conflict between brothers. Jacob is the usurper, stealing his elder brother’s birthright and then their father’s
ARBITRATOR 203 blessing: yet Jacob redeems himself and the brothers are finally reunited.” Henry had not forgotten his brother. He kept James’s letters from New York, and with new interest in early 1917 passed on copies to Nettie and Esmonde to read. The burden of guilt which Henry had
incurred through his supplanting of James has already been discerned. The adult Higgins had discarded his father’s religion, and, in the process, dispensed with hell; but the Christian inheritance of guilt is not so easily shed. It is revealing that he should interpret his work in arbitration in terms of giving back to Esau his birthright,
and the element of reparation involved foreshadowed the reconciliation he longed for. And if the punishing of Prometheus seems, in the human context, unjustified, it must be recalled that he, too,
had taken that which was not his. The agony on the rock is a
purification which ultimately reconciles Prometheus to Zeus. It is this curious bond between conflict and reconciliation which gave Higgins’s mission its special character. The rationale for ‘the new province’ was the replacement of brute force by reason; yet
even as the arbitrator accomplished this (and Higgins always stressed the success of the Court in abolishing strikes in the
industries within its jurisdiction) he himself was beset by conflict.
To alleviate the suffering of others he must suffer too. It was
necessary to struggle—against the chains which bound him, against the relentless forces of irrational barbarism. Yet the purpose which justified and sanctified this struggle was reconciliation: of law with humanity, employer with worker, brother with brother, man with his conscience. And just as in politics he had been ‘the Higgins party of one’, so too in his new sphere he was alone. He had the loyal and devoted assistance of his registrar, but on the bench he was always conscious of the solitary responsibility he bore. The new province for law and * The relationship between James and Henry echoes that between Esau and Jacob in many interesting ways. The rivalry between Esau and Jacob is predestined.
While still in the womb of their mother Rebekah—for they are twins—‘the children struggled together’. The Lord makes it clear that they are ‘two nations’, and that the elder shall serve the younger. Esau is the first born, but Jacob is in hot pursuit, and as he emerges into the world ‘his hand took hold on Esau’s heel’. Esau is aligned with his father Isaac, while Rebekah is ambitious for Jacob. Esau, the ‘hairy man’, is the virile hunter and man of the field; Jacob, ‘the smooth man’,
dwells in tents. When Rebekah urges Jacob to impersonate Esau, and bring venison to the aged father to secure his blessing, she tells him, ‘Upon me be thy curse my son’; thus Jacob is, in this instance at least, able to cast the burden of his guilt on his mother. Having been deprived of both birthright and blessing, Esau is not only superseded, but in effect destroyed. Yet the appeal of the story is that it does not end there. Jacob makes recompense for his treachery; the brothers are finally reunited in love.
204 H.B. HIGGINS order was in a special sense his creation: he had fathered it at the Federal Convention, he had staked his political career on it, and now to him, and to him alone, was given the task of developing it. By the outbreak of war his achievements were evident, and the fame
of the Court was his fame. But as the system grew, and its complexity increased, it was no longer possible for one judge to maintain this personal rule. The coming of Powers meant the beginning of a new phase in its history, and the early disputes between president and deputy president signalled the end of the heroic Higgins era. It was not enough now to settle matters with his
own conscience: energy had to be expended in dealing with and assuaging a deputy who, whatever his virtues, lacked the vision which had inspired Higgins. Higgins’s account of the disturbance at his swearing-in, when the down-and-out Cornewall Lewis spoke in his praise, suggests the symbolic place the outcasts of society had in his vision. Cornewall Lewis saw the new judge as a lawyer, a statesman and a gentleman.
True as these epithets might have been, such a tribute was as disorderly, from Griffith’s point of view, as a tirade. Yet even as the
bedraggled character was bundled out of the court, the point had been made: beyond the bewigged demigods on the bench, beyond the serried ranks of the bar, beyond the self-contained club of the law, there were other voices which, however dissonant to the ears of the orthodox, had reason to welcome the elevation of Higgins.
9
Father FH FRONSwoon, Christmas Henry and Mary Alice1916. had gone there, as usual, for the holidays. In spite of the solace offered by sea and mountain, in spite
of Christmas itself, Higgins could only review the year with grim uneasiness. Easter had seen the anguish of the Rising in Dublin and the British reprisals which followed; the conscription referendum had been defeated, but not without a bitter and divisive campaign; and seeping industrial discontent was already disturbing the stabil-
ity of the Higgins province for law and order. These were all symptoms of the corruption of war itself. Barbarism was contagious.
On the other side of the world the fighting dragged on. Having survived Gallipoli, Mervyn was now in Egypt. Higgins knew that ‘some big movement’ was due there, but he did not tell Mary Alice. Inevitably it was ‘the grievous lot’ of one Reverend Eric Thornton to bring the news to Heronswood—on New Year's Eve it would
seem. When Henry and Mary Alice saw that solemn figure
approaching, they, like so many others who dreaded the wartime visit of a clergyman, probably sensed the grief about to invade
them. It was the blow Higgins had been steeling himself for:
Mervyn had been killed in the attack on Magdhaba on 23 December.
Mervyn was 29 when the war claimed him, and a different man from the callow youth who had set off for Oxford ten years before.
When his mother left him there it was a kind of farewell to his childhood. He was free, finally, of the French governess (who had still been in evidence in 1903 when Higgins bought Heronswood); and he had, one assumes, long since given up the violin lessons that he had dutifully endured. Neither France nor serious music were to figure much in his later interests. He was also free, to an extent at least, from the daily concentration of his parents’ affection and the
moral care of their regime. |
Not that there are any signs that it had been an unhappy
childhood: Higgins could rest assured that he had gained for 205
206 H.B. HIGGINS Mervyn all the things—health, comfort, prospects—which his own childhood had lacked. But the intensity of their love for their only
child meant that the freedom that Mervyn enjoyed—the sense in which everything was for him—was illusory. Heronswood was a case in point. It was a splendid place for holidays, but the company
he enjoyed there was, for the most part, chosen for him. The children of the families that Henry and Mary Alice mixed with provided the nucleus for a regular set: Hester and Nancy Mitchell,
daughters of the barrister, Edward Mitchell, whose wife was a
Morrison; and Irvine, Marnie and Elsie Masson, children of Professor Orme Masson. Robert Bage and Rex Leeper made up the male balance.
They formed an agreeable group and had plenty of fun. If, in imitation of the working-class city gangs, they christened themselves the Heronswood Push, their amusements were much more respectable and innocent. A photograph captures them in their Edwardian Sunday best, posed in the shade of a spreading tree. The girls are in simple dresses and broad-brimmed hats, the young men in suits, save for Mervyn, sporty in a blazer. In their midst presides an approving Mary Alice. There were, of course, more informal occasions, for which the kitchen was often the venue. One evening Mervyn scraped away at his fiddle for their amusement, and in an attempt to set them dancing. But it was the magic of the gramophone they longed for, and Mervyn galloped the twelve miles to Mornington to hire a machine and some records. “The Old Bull and Bush’ was a favourite. Sometimes the boys camped out, and there were the usual jokes about masculine hobbies (Bob Bage apparently ran to a motor bike) and smelly socks. Mervyn and young Masson,
who had been at Grammar together, were known, predictably, as ‘Merv and Irv’. The visitors commemorated the fun and games with appropriate verses, neatly inscribed in the Heronswood logbook. The Push came to an end in 1906, when Mervyn was bound for Oxford, and some of the girls, it seemed, poised for the grand tour. They marked the dispersal with a rustic ‘Feed’ with damper (‘Oyez! Oyez! Oyez!’ the Notice announced the occasion), and Marnie Masson, who would not for many years realise her potential as a writer, wrote these innocent verses in the logbook: One more day at Heronswood One more day in which to view The dark outstanding pines against The water’s shimmering blue. One more day to gather fruits That in the orchard valley grow To rest upon the terrace top
FATHER 207 Where the flowers blow. After this we separate Each will follow his own way Boys to Varsities to work And the girls to play. But however wise they grow With Engineering, Science, Arts or Civil work, dear Heronswood Will never leave their hearts. The girls will travel half the world And many famous places see But still the charms of Heronswood Will fresh as ever be.
The boys to work, the girls to play: that was still the expectation. The Massons and the Mitchells had both, like Mervyn, had governesses (‘we were the last of the Mohicans, I should think,’ Marnie Bassett recalled) and girls who went to university were still seen as dowdy blue stockings. The boys would make their careers, the girls would be groomed into ladies; and then at some later stage they would meet again, not as an adolescent ‘push’, but as adults bound to observe the proprieties of a society which would be assessing them in terms of the marriage market. As for Mervyn himself, he was at this time a quiet, athletic young man, not as lively (or intellectual) as his friends Irvine or Rex. Marnie summed him up: A cow’s lick and a happy grin, Broad shoulders and large feet,
A sunburned nose and stubborn chin, And Mervyn is complete.
He seemed uncomplicated enough: a good son, loyal and considerate to his parents. He was beginning to acquire a certain dash—with more confidence he would be good looking. In the immediate circle
of friends chosen for him, he had perhaps the shyness of the only child, who is diffident about being the centre of attention—for the circle was formed around him; he was the host of the Heronswood push. And at least one of his contemporaries sensed in his reserve a possibility that he was capable of more frivolous tastes than either
his parents or the push indulged in. ,
Oxford had long been part of the Higgins plan for his son: in
going there Mervyn was fulfilling his father’s, not his own, wishes. And Balliol, of all colleges, with its earnest, progressive reputation, accorded best with Higgins’s educational outlook. Yet if Mervyn felt
something of a pawn in this program, he could appreciate the
208 H.B. HIGGINS generosity of his parents and the opportunity it gave him—to travel,
to see England, to make new friends, to escape the immediate pressures of Doona and Heronswood. But the opportunity to study—that he relished less. ‘By my wish,’ Higgins recalled, ‘he
spent his first year in working towards the Greats. I had long
thought that the studies for the literae humaniores at Oxford was the
most interesting and valuable course in the world.’ But Mervyn found that his grounding in the classics was inadequate, and he had
difficulty keeping up: ‘after consulting his tutors, he summarily abandoned the course, and went straight into the Law course’.
Writing to tell his father this Mervyn was more than a little shamefaced:
Iam afraid that you will think that, in view of my previous record, I will not do any good either, and I must admit that circumstances point in that direction. I can only say that, though you may not think it, I have got
some determination and ambition, and I hope, as much grit as most people.
There was a hint of James in that alternation between selfdeprecation and new resolve, and whether Higgins noticed it or not, he seems to have hastened to reaffirm his faith in Mervyn. In retrospect he judged that Mervyn hads‘acted, as usual, with good sense’. He was beginning to accept that his son was not a scholar; indeed even the weekly essay was ‘a sore tax’ for him. If Mervyn’s Fourth class honours degree in 1910 was a bleak end to his academic career, Higgins remained convinced that he had benefited from ‘the Balliol atmosphere’.
Where Mervyn came into his own, however, was on the Isis. He was soon captain of the Balliol boats, and stroked for the college in the 1907 Torpids when they went to the Head of the River. The Master of Balliol, on meeting Higgins in 1909, told him that ‘your boy has been of great service to us, particularly in our rowing’. He was in the bow seat of the Oxford eight which beat Cambridge in
1910. He gained a reputation as a coach, with, one gathers, the appropriate manner and vocabulary; according to the Oxford Magazine ‘it was worth coming miles to hear him ... exhort a sluggish crew’. Nicknamed ‘Buggins’, he was ‘cheery, spirited, friendly, with no “side’’ about him’; and although he clearly mixed in hearty rather than aesthetic circles, his friends included G.V. Portus, one W. Myers, ‘an adventurous spirit’, who after Eton and Oxford was
working in Vancouver as a taxidriver when Higgins passed through, and even a Japanese, Matsudaiva. In 1910 Nettie wrote
from London to Vance Palmer that ‘everyone that knows him seems
to say he’s the most popular man in Oxford: you meet all sorts of
FATHER 209 people who look at you with a funny sudden reverence when you say he’s your cousin’. One might allow for a certain amount of
family pride in such an assessment, but the fact that Nettie, as an apprentice intellectual, moved in such different circles from Mervyn, suggests there was some foundation to her report. It also seemed important for her to convince Vance that Mervyn had been favourably impressed by the man she was going to marry. After coming down from Oxford Mervyn spent a year in chambers in London and was called to the bar in November 1911. He then
returned to Australia via Siberia, ‘Pekin’, home of his uncle, ‘Chinese’ Morrison, and Japan, where he saw Matsudaiva. It was, as Higgins meticulously records, the third of February 1912 that he
greeted Mervyn in Melbourne. They took a bay boat down to Dromana, and arrived to discover the smouldering remains of a bushfire, which Heronswood had narrowly escaped. Mervyn duly signed the logbook, as he had not done since the family’s first visit for Christmas in 1903. The careful childlike hand of the 16-year-old had given way to a confident, authoritative signature. Oxford might not have turned Mervyn into an intellectual, but Higgins could be satisfied that it had made a man of him. The next year or two gave Higgins his first real opportunity to get to know his son since he had been a schoolboy. For twelve months
Mervyn served as his associate, after which he continued his preparations for a career at the bar. If Higgins was disappointed that his son did not share his cultural interests, he gave no evidence of it;
he seemed, already, immensely proud of him. But the fact that Mervyn was not an intellectual gave added point to Higgins’s relationships with other younger members of the wider family, particularly Nettie and, later on, her brother Esmonde. Their father,
John Higgins, was the least successful of the three surviving
brothers. An accountant, he showed no flair for making money, his Protestant religious temperament inhibiting rather than stimulating
worldly success. Although they lived comfortably enough in a house in Kew, Nettie explained to Vance: Of course Father’s not much better off than the gentleman who earns whate’er he can, and there’s practically no reserve except this house, but there is a feeling of well-rolling wheels, even though the oil isn’t thrown
about. It’s mostly Mother’s knack of making the most of things, with years and years of practice as a ‘poor man’s wife’.
When Nettie travelled to England in 1910 it was at her uncle’s expense. “Do not talk French to a German, or German to a French-
man,’ he advised her. “Do not talk politics to an Englishman —the English are always wrong, whichever side they take; and
210 H.B. HIGGINS they go mad on politics.’ It was not quite the letter he would have written to Mervyn. When Nettie and Vance were planning marriage she told Uncle Henry, because ‘he seemed to have a special right to know what I was doing with my time’. She was fond of both her
uncle and aunt. Back in Australia she went with them to an afternoon tea to meet the members of the Mawson Antarctic expedition. On the tram Aunt Mary, who had not met Vance, was ‘so funny’: ‘she said she wanted to know what you were like, and every time an even passable young man entered, she said “‘Is he like that?’’’ As for Esmonde, he seemed, like his elder sister, conscious from a fairly early age how ‘awfully kind’ his aunt and uncle were, particularly at Heronswood; and by 1913 Higgins, recognising the intellectual calibre of his nephew, was offering advice about his studies, and reading in general. But important as these relationships were, Mervyn remained the core of his parents’ lives. Perhaps for Higgins the apparent unintellectual simplicity of his son made his love for him seen even purer and stronger, for Mervyn did not constitute a filial threat to his authority. He was even following his father’s career, though with a sense of duty rather than enthusiasm. When in May 1914 Henry and Mary Alice began their tour, the separation it meant from Mervyn,
though naturally regretted, did not merit special thought. The world was still secure. They could have no idea of the cataclysm which would engulf the world, and the lives of all three of them. They were only to see Mervyn again briefly in April 1915, when they
were returning to Australia, and he was bound for Gallipoli. The time spent in North America was, for Henry at least, stimulating, even exciting. When, on 4 July, they boarded the Oceanic in
New York, he and Mary Alice were given, with the Captain’s compliments, a better cabin than they had booked. However austere Higgins might have been in a personal sense, he was
flattered by the recognition implied in such a courtesy. And, as they
journeyed the Atlantic, there was much to look forward to in England: there was the prospect of renewing or establishing his acquaintance with some of the country’s leading radicals and social reformers; the interest, too, of being at the hub of affairs at a time of historical interest (for since the constitutional struggles of 1910-11 there was, on several fronts, a sense of gathering crisis in Britain); and the personal satisfaction to be gained from seeing Ireland again. The first two months seemed to reflect this mood of enjoyment.
Even the curious account of his travels he gave to the Newman Society in 1917, after the death of Mervyn, evokes the atmosphere of excitement of being in London in mid-1914, witnessing the drama of
FATHER 211 history unfolding, and even, in a marginal sense, participating in it.
They settled in their Kensington hotel on 11 July; Mary Alice’s famous brother and his wife were living opposite. The very next day, a Sunday, Higgins was out in Hyde Park to hear the orators, who were mostly addressing themselves to female suffrage. (As Higgins noted in his account, the principal topics in the newspapers in July 1914 were Ireland and the suffragettes.) On the Monday he was at the House of Commons, talking to the Redmond brothers, Sir John Simon and others, and taking tea on the terrace there. On
the Tuesday he was at the London School of Economics; on
Wednesday night there was an Irish dinner party at the House of Commons with both Redmonds, John Dillon, and T.P. O’Connor;
on Thursday he was chatting with Pember Reeves; on Friday lunching with the Webbs. So it seemed to go on. There were luncheons or meetings with men like Seebohm Rowntree and Ramsay MacDonald, when the minimum wage was the subject of earnest discussion. He renewed acquaintance with his genial old political foe, Sir George Reid, who was now enjoying himself immensely as high commissioner (later
he was to enter the House of Commons, in a twilight cameo performance, as ‘an independent imperialist’). Nettie and Vance, now married, came to see them, and there were Bournes relatives to visit at Blackheath. They were taken by friends to Covent Garden to hear the Italian opera (Higgins didn’t bother to record what they saw) when Queen Alexandra and the Dowager Empress of Russia were in the audience. Now used to the Church of England, rather than the Methodism and Presbyterianism of their respective families, Henry and Mary Alice went to Westminster Abbey and the Temple Church; and when, on the latter occasion (‘exquisite music.) the preacher informed the congregation that war could be righteous, it was the defence of Ulster, not European civilisation, that he had in mind. Even as he arrived in England, however, that train of European events, so often recited by historians, was already underway. The unfortunate Archduke Ferdinand and his wife had been killed at Sarajevo on 28 June, but it was another month before war between Austria and Serbia broke out. On 30 July Higgins met Colonel Murray, just engaged by the Daily News as their correspondent for this war. The next day, enjoying tea on the terrace at Westminster again, he was assured by a liberal member, Taylor, that England would not be dragged into the war, however much it disapproved of Austria’s tactics. ‘Look here,’ Taylor said confidently, ‘if our Government were to go into this war, I shall vote against it, and so will fully 100 other Liberal members, whatever the consequences.’ A
212 H.B. HIGGINS few minutes later, seated in one of the ambassador’s seats in the House, Higgins heard prime minister Asquith gravely announce that Russia had ordered general mobilisation. On 1 August Germany declared war on Russia, and the next day at Westminster Abbey the congregation, which included the Higginses, were told by the preacher that it would be unthinkable if England kept out of the war and maintained a selfish isolation. On Monday 3 August, Bank Holiday, Higgins lunched with Reid and one Dr Scheidel, an Australian by naturalisation, but a German by birth. Scheidel, ‘a man of capacity, training, and character’, asked them why should England join the war, when it was not threatened with attack. Higgins does not record how he and Reid responded, but after lunch the pair of them went to the House of Commons with the intention of hearing Sir Edward Grey. The galleries were already crowded, and they had to be satisfied with the relayed news that Britain would go to war if Germany invaded Belgium. On 4 August Germany launched its attack; at eleven o’clock that night Britain declared war. It was the moment when Grey looked out of the windows of the Foreign Office and, speaking loud enough to be picked up by the microphone of History, announced: “The lamps are
going out all over Europe; we shall not see them lit again in our lifetime.’ A mile or two away in his Kensington hotel, Higgins was
packing his bags, for he was bound for Ireland the next day. On 5 August the first effects of the infant war were already evident. There were queues of Americans outside the offices of Thomas Cook, and the trains were crowded with reservists, ‘fine fellows ... sprawling about in all the corridors’. In Dublin Bay a long cordon of ships, with steam up, stood ready for movement and
action. All these signs of activity and disturbance did not, in
themselves, cause Higgins any concern; on the contrary, he was, as he set foot on his native Ireland again, most interested and curious to see how its people, his people, were reacting to the crisis. He had himself already been swayed by Germany’s breach of Belgian neutrality. He was convinced that ‘the Government of Great Britain,
and the great masses of the people, did not desire war, did not expect war, entered the war unwillingly’; but Germany’s ‘cruel injustice to Belgium’ served to unite the nation. Taylor’s hundred rebels melted away overnight. He was pleased, therefore, to find all parties in Ireland equally united, ‘as if by electric action’. The people
were ‘touched to the heart by the atrocious injustice to little Belgium’ (a Catholic country after all): ‘It was now proved to demonstration that the ideal of Irish nationality was not inconsistent
with larger ideals—the ideal of the Empire, and, higher than the Empire, of humanity and justice. I never could have imagined such
FATHER 213 a unity of sentiment in Ireland.’ Higgins met Unionists who were now persuaded that Home Rule should be granted; and at Ballina, a kinsman, who was ‘a Unionist, Protestant, and a landlord’, got together a corps of Nationalist Volunteers. Suddenly, it seemed, the spectre of civil war had vanished: it was as if Europe’s epic struggle had, in an instant, made Ireland’s own war unnecessary. Nothing could have pleased Higgins more than to see his country transformed in this manner; yet even he noticed a residuum of scepticism among the nationalists. And his constant appeal to ‘little Belgium’, while particularly appropriate in the Irish context, already suggested some possible reservations about the wider implications of the war. But in these hectic first few days of the war, it seemed as if the world was witnessing the release of some strange, pent-up energy, which provided, for the moment, a fusion of excitement and relief. Higgins naturally sought some creative outcome from this unleashed force: his very use of the image, ‘as if by electric action’, suggests the shock which might give Ireland a new vision of its destiny. All these impressions were entwined with much more personal experiences. It was 28 years since he had brought Mary Alice to see
his native country; this time he was on his own. On his first morning in Dublin he walked to St Stephen’s Green, to summon up the ghost of his schooldays (and Dr Crook), but found the premises
occupied by a commercial firm; the old Wesleyan Connexional School had become a statelier Wesley College and moved on. In Mayo he visited the cottages, gardens and graves of Higgins and Bournes ancestors. In one place he came across an old playmate, ‘Ikey Gordon, now grey-bearded man, thrice married, sitting in ditch, waiting for paper’—this brief diary note clearly remarking the different paths their lives had taken. While in London he had learnt of the death of his old schoolfriend, Anderson (he had read it in the
evening paper); in Newry he made a point of visiting his widow. Perhaps clutching at the nearness of a lawyer, she went on about her husband’s will, which seemed to be lost. Back in Dublin he visited Trinity College, which he had been unable to attend as a
student. The night before his return to England he was in the
audience at the Abbey Theatre, and had nothing but praise for the plays and the players. On 28 August he returned to England. In a sense Ireland had been an escape—into the past, and, at the same time, a possible future. Back in London there were old and new realities to confront. The uncertainties of Australian politics were resolved on 5 September, when the double dissolution which Cook had sought resulted in his party’s defeat and the return of Labor to government. Higgins
214 H.B. HIGGINS is unlikely to have learnt of this before 7 September, the morning he and Mary Alice started their motoring trip to Scotland. They set off regardless, driven by a cockney chauffeur, who amused them with his cheerful ignorance of history and literature; they had time to be charmed by the English landscape (‘the splendid old trees, the thick hedges thronged with singing birds, the cosy homes with creepers and gardens’) even while observing the changes being wrought by
the war. Their car carried an Australian flag on the bonnet. Some soldiers, seeing the stars, muttered disparagingly, “Americans’. ‘No,’ called Mary Alice, ‘Australians’, and the soldiers laughed approvingly. Because of its immediate response to the Empire’s crisis, ‘the Australian name was a name dear to England’. This was,
for Higgins, no Boer War and he made a point of praising the assistance offered by South Africa itself, which he saw as a vindication of Campbell-Bannerman’s policy. They were impressed, too, by ‘the eager rush of recruits’ in England and Scotland, though Higgins also noted the large proportion of applicants deemed unfit; this was the national penalty for ‘overwork and unhealthy work and under-
pay’. They returned to London, which was ‘very dark, lamps few and shaded above’, on 30 September, and learnt of the flap about his reappointment to the Arbitration Court. He was sworn in the next day. But if that resolved one uncertainty, which had been pushed into the background by the pressure of history, the sight of all those young men crowding the recruiting offices, and the news of similar
scenes in Australia, began to create a new and more insistent
unease. Higgins learnt, on their return, that his sister Anna—never popular with other members of the family, and disliked by Mary Alice in particular—had passed on extracts from his letters concerned with the war to the Herald. On 6 October Higgins walked in Hyde Park again, but this time it was the spectacle of reservists exercising and drilling which commanded his attention. That night
Nettie and Vance dined with them, and found Uncle Henry disturbed:
Vance is greatly interested in H.B.H., but says you never get at him. Years and years of necessary caution have frozen his words on his lips. sometimes he begins to say something he means, and then stops. As for instance when he says that England will have something to answer for in this war—and then goes on to say that the Kaiser is a villain! He was greatly worried about Auntie Anna’s use of his private letters (to Mervyn and Grandmother) for a page in the Herald. After the elaborate care he had taken to avoid expressing his opinion on anything, all through his travels—refusing interviews in America and anywhere else—here is his private, casual correspondence printed as if written for the Australian
FATHER 215 public. Mervyn was furious about it and went to the Editor, who told him he wouldn’t have published the copy if it hadn’t come from the writer's sister.
It was hardly accurate to suggest that Higgins’s career as a judge had been marked by ‘years and years of necessary caution’, though in the uncertain political climate of 1913-14 he had more reason to be careful. But it is clear that Nettie and Vance found ‘Uncle Henry’ in a mood of gathering unease, of a kind that could not easily be communicated, least of all over a family dinner at a hotel. On the night before their return to London he had written to his nephew Esmonde: ‘I suppose you have not yet enlisted for the war. But perhaps you may go as interpreter and a runner.’ But what of his own son? The sight of all those eager young men cheerfully enlisting must have suggested that Mervyn, with all his sterling qualities and Oxford outlook, would be itching to join them. In one sense such an act would confirm everything he believed about his
son’s character; but he was also now beginning to appreciate something of the horror that might be in store, and his view of the war was undergoing a subtle transformation. “The war is a lesson against “entangling alliances’”,’ he told Esmonde. Nevertheless ‘it must also be made a lesson that treaties for neutrality are to be kept, not broken when inconvenient’. Nettie seemed surprised that one could believe the Kaiser a villain (though Higgins thought that the German Emperor had not wanted war) and yet still hold England in some degree responsible for the disaster engulfing Europe. For of one thing he was certain: the elation of unity aside, ‘the war is horrible’. As a daily reminder, every morning at their London hotel they heard ‘the tramp, tramp of soldiers’ past their windows. The tourists seemed to grow restless. ‘I ran over to Ireland again in October,’ he told his student audience in 1917, but this time it was with Mary Alice, and the intention seemed to be to show her some of the more beautiful scenery of his childhood. They stayed overnight at Fermoy, Higgins identifying the chapel and the minister’s residence, and noting the fortunes of families he recalled; but the real destination was the beloved Killarney. They stayed at the Lake Hotel, a handsome establishment with hotel-Gothic views of lake and mountain. In the town there was a new Methodist chapel; the old one was being used for meetings of the Gaelic League. The garden of the Higgins house had disappeared under a shed, now taken over by the army. But if these landmarks had changed, the Higgins family was not entirely forgotten. He met a man who had
remembered playing with the boys in the attic, ‘Australia’; in particular, he recalled the child with the impediment. While doing the sights—Kate Kearney’s Cottage, the trip on the lake to hear
216 H.B. HIGGINS ‘Paddy Blake’s echo’, Ross Castle, Arghadoe Abbey—Higgins still
had time to test reactions to the war. Now, little more than two months later, he found that the ‘position was grievously changed
for the worse’. The young men were not enlisting in Kerry; anti-English sentiment had reasserted itself. For this Higgins blamed the British government, for in allowing itself to be bluffed by Bonar Law and Carson and conceding that Ulster’s consent to Home
Rule would be necessary, it had destroyed the nationalists’ faith in constitutional processes.* The opportunity of August had been lost: already the war was exacting its toll of disillusion.
They spent only a week in Ireland. In London a cable from Mervyn awaited them: ‘Anxious volunteer service. Uncle John
willing manage your affairs if you agreeable.” What could he do but consent? He had always stressed the sovereignty of conscience, and
Mervyn’s decision could only increase his respect for him. But perhaps he wondered how much Mervyn assumed, given Higgins’s early approval of the war (blazened forth in the Melbourne Herald
for all to read), that his father would expect this of him. Had he unwittingly encouraged Mervyn to enlist? He was, moreover, perturbed now by the war atmosphere. The preacher at the Temple Church was ‘rather hysterical about the war’; a fortnight later, on Mervyn’s birthday, he complained of a warmongering sermon in a Kensington church with its rich, idle congregation. At the same time he compulsively sought opportunities to talk to young soldiers, the ‘fine fellows’ who, like Mervyn, would have to do the work. As if trying to conjure up his son, he visited Oxford, lunching with the Master of Balliol, and afterwards going for a walk with A.L. Smith, a man as dedicated to physical endurance as Higgins. ‘A.L.S. warm in praise of Mervyn, as to rowing and character,’ he wrote in his diary. On the train afterwards he talked with two Canadian soldiers, both ‘sprung’ (tipsy), and with a Newcastle man just discharged because of bad eyesight. The second encounter perhaps reflected a forlorn hope that Mervyn might be rejected, for he wore glasses. On 8 November, Mervyn’s birthday, they returned to the hotel after the Kensington sermon to meet Nettie and Vance, whom they had invited to join them for lunch. Nettie reported: We hear quite definitely that Mervyn has enlisted in Australia, but no details. Auntie Mary says she’s glad he has done it, but weak enough to * The Home Rule Bill had been passed after the outbreak of hostilities, but it had been agreed that it would not be proclaimed until the end of the war. But the
conservative leader, Bonar Law, and the Irish Protestant leader, Sir Edward Carson, pledged Ulster’s resistance. Prime Minister Asquith then promised that there would be no coercion of Ulster.
FATHER 217 hope he won’t have to come! She’s not very happy lately, and can’t help
being a little nervous about Mervyn. Uncle Henry doesn’t seem to be getting much good out of his trip: he is never relaxed: he worries a great deal about trifles, about the exact train to be caught for some suburban
visit. He has been under doctors and dentists and won’t rely on the advice of either of them. Auntie Mary says he is cantankerous and “a real Higgins’. You know the despairing way she says that sometimes! Vance
noticed how very strained and tense he seemed, and wondered why they had spent so much of their trip in London, where there is neither real rest nor real change.
It is surprising that Nettie should not have considered whether her uncle might also have been “a little nervous’ about Mervyn. Yet how easily can one picture Higgins obsessively concerning himself with
the minutiae of timetables and appointments, while secretly he agonised about the fate of his son, and raised his own doubts about
the morality of the war and its conduct. As for his health, it is significant that just as in 1900 it had faltered, now he seemed plagued with physical discomfort and pain. His diary records five visits to oculists and opticians, two to doctors, and no fewer than 21 to the dentist. The need for new glasses was a minor irritation, but after, one gathers from Nettie’s account, disputing with the dentist, it seems that he had most of his teeth out, acquiring, presumably, a
set of dentures, a demoralising reminder of age and mortality. They did in fact quit London little more than a week after the lunch with Nettie and Vance, but not before fitting in the Lord Mayor’s Show and the opening of parliament. They also heard an entertaining lecture by Bernard Shaw for the Fabian Society, and Higgins called in on the office of the New Statesman (about which Sidney Webb had written to him two years earlier). But on 17 November, as winter set in, they set off for the south of France. Paris was ‘grave, black, cold’; the Louvre was closed, and the Palais Royal crowded with Belgian refugees. They hardly paused before going on to Nice. There was no escaping the war, however (though it is doubtful that that was ever Higgins’s intention). Nice, although far from the battle line, was empty of tourists and had become ‘one great hospital for suffering soldiers’. Perhaps the closest they came to the war was when one day they saw a lorry pulling up outside a hotel, and a tearful boy pointed to ‘les chers blessés’ getting out: ‘There they were—poor poilus with pale faces, staring eyes, clothes filthy with the mud of the trenches and verminous, boots waterlogged, some men with noses, hands, or feet frost-bitten, wrapped with bandages.” Talking to a French sergeant he learnt of ‘a new kind of nervous disease’, thought to be caused by ‘the incessant din of shells’, which resulted in ‘an absolute incapacity for speech’. He
218 H.B. HIGGINS was full of admiration for the French who, living in the utmost frugality, and with an invader on their soil, were nevertheless
‘resolute and hopeful’. , In the New Year they moved on to Italy, which was still neutral.
Accordingly Higgins adopted a kind of neutrality too, and seemed determined to investigate the merits of the German case. In Florence their hotel was kept by a German, and Higgins noticed how even
the ‘French’ periodical in the reading room was German in its propaganda. Seeking the full series of this journal he was directed to
a German office. Higgins ‘walked boldly in’ and going up to the clerk, made his request in English. The clerk, surprised, asked whether he was American: ‘’’No,”’ I said smiling, “I am a British subject, but I suppose that you can have no objection that I should see how you put your case.”’’ The clerk suggested a nearby German bookseller, who ended up ordering for him from Berlin a copy of the German White Paper in English. (Although the English translation
was designed for American readers, Higgins described it as being more likely to disgust them; indeed he actually suggested that its publication in England, ‘with a few notes’, would be beneficial to the allies.) In Sicily he had further conversations with Germans. On the train to Syracuse there was a young German woman in the compartment who had come straight from Berlin. She was ‘of a type that we are not familiar with in Australia or in Great Britain’, a career woman, in fact, who had made coal her study (she had spent a couple of years at Cardiff before the war), and had been sent to Syracuse to reorganise a shipping agency. At their Syracuse hotel, owned by an Austrian, there was ‘a lame man from Bremen’, who had been in India, and had married the daughter of an Anglo-Indian officer. He and his wife never talked about the war. But he and Higgins did, and managed to discuss the alleged German atrocities
in a civilised manner. The son of the Austrian owner, while agreeing with the man from Bremen that the allegations were ‘all nonsense’, nevertheless thought that Germany did not have the resources to last more than another six months. So, in a remote Sicilian hotel, Higgins was able to preserve some semblance of discussion with the other side; even as the killing went on, the ‘light of pure reason’ was, for him, still flickering. Towards the end of February they sailed for Alexandria, and then in Cairo, having quickly moved from Shepheard’s to the cheaper Hotel National, settled down to wait for Mervyn on his way to the war. There were delays; the weeks went by. Cairo was full of the ‘Australian boys in khaki’. Higgins felt proud of them; nowhere had he seen soldiers with physiques as good as ‘our well-fed Australians’. Beside them the Lancashire Territorials, though more smartly
FATHER 219 dressed, seemed ‘generally younger and of slighter frame, with sloping shoulders’. The Australians were camped at Mena, ‘under the quizzical eyes of the Sphinx’, while the Territorials were in barracks. Pneumonia was common among the Australians and was blamed on the cold desert nights; on one occasion Higgins saw a funeral of an Australian soldier passing and walked with it to the cemetery. As for the rorty misbehaviour of the Australian troops, he blamed the lack of licensing laws in Cairo; the liquor sold to them was ‘filthy and poisonous’ and ‘deprived them of self-control’. What
had been needed—and was not provided by the British commander-in-chief—was ‘a little sympathetic interest in these lads, removed from home influences ... coupled with energy and common
sense’. For the most part however, he thought the Egyptians
appreciated ‘the hearty good nature’ of the Australian lads. He was at Mena when the Ist division was breaking camp before setting off
for Gallipoli. It was a fierce, windy day, and on the train back to Cairo he chatted to members of a fatigue party. One tired and dirty soldier, perhaps being informed by Higgins that the Sphinx and the pyramids were ‘one of the most interesting sights of the world’ which had been ‘old and curious’ even when Herodotus wrote, remarked: ‘Well, I don’t want to see the bloody things any more. If I could only see once again the lights of Williamstown, I’d be content to stay there all the rest of my life. There is no place like Australia!’ The others ‘hear-heared’. Higgins was amused and touched by their
New World innocence. Once again, as in London, there was the tramp of feet outside their hotel; but this time they were Australians, cooeeing and singing the Marseillaise, cheerfully presenting themselves for the sacrifice of Gallipoli. While Mary Alice cooled her heels at the hotel, Higgins was out seeking things to do. One day he was at the Museum, seeing, as he put it, some ‘old friends’ (statues and mummies remembered from their previous trip); on another he was sitting on the bench with a local English judge. He met a young British-educated Egyptian nationalist, and talked with him ‘as to fate and as to patriotism’, topics on both their minds. He was curious, of course, to learn how Egyptians saw their own quest for home rule. There was still much time to fill in, so he bought a pair of ‘smoked glasses’ and took to reading in the park. Here, too, there were opportunities for casual conversations; in one of these he had pointed out to him a bo-tree, ‘such as Buddha sat under when he evolved [the] theory that all suffering comes from birth’. At last, on Easter Sunday, Mervyn arrived. He had enlisted as a private in the 8th Light Horse, but had soon gained a commission. His first responsibility was to settle his troops in at Mena, and
220 H.B. HIGGINS opportunities to see him had to be snatched. They bought mats for his tent—a precaution against pneumonia rather than reflecting concern for any officer luxury—and visited the camp. On 11 April, a Monday, they went with Mervyn to church; the next day the three of them travelled to Port Said, where Henry and Mary Alice were boarding the Malderia. Father and son walked out to the end of the breakwater, the last chance, really, to speak truths to each other. As so often, the silences probably said more. The next day Mervyn had tea with them on the ship before dashing back to Cairo. The sea voyage to Australia provided a coda to their European
wanderings. It was, for Higgins, an opportunity to read. The
Captain lent him Le Queux’s German Spies in England which was ‘hysterical, egotistical, made to sell’, and there was a book about Germany, allegedly by an English governess, called What I Found
Out. Turning away from the war, he entered the world of the
Arabian Nights (Everyman’s edition), and Oscar Wilde’s An Ideal Husband offered decidedly light relief. But on 25 April, when the Australians were landing at Gallipoli under the fire of the Turks, Higgins was reading the Koran. As Australia loomed he recalled the already dim days of federation with the account recently published by his friend Wise, The Making of the Australian Commonwealth. On 4
May they berthed at Fremantle, to be interviewed by reporters and to see the newspaper reports of the Gallipoli casualties. In Adelaide they learnt of the sinking of the Lusitania, and more Anzac casualties; among the list was an adjutant Higgins had met in Cairo. On 10
May, just a little over a year after their departure, they reached Melbourne, calling immediately to see Higgins’s aged mother and his sister Ina; then, ‘back to Doona’. What had begun as a trip to
restore health and spirits had become a strange and unsettling odyssey of anxiety and disruption. The world through which the travellers passed had crumbled before their eyes. They returned at the precise moment when Australia, after relishing its first grief at the baptism in blood, began to appreciate the cost of the war being fought on the other side of the world. Throughout the war Higgins supported the justice of the Allies’
cause, in the sense that, given the circumstances of 1914, he believed Britain had no alternative but to fight. He was eager, however, to argue this out: he did not simply take it for granted. In 1915, while pausing in Italy, he exchanged letters with Ramsay MacDonald, whom he admired. He was not afraid to put the issue baldly: But will you allow me to say that we are all apt to lose the main issue in the side issues of this great struggle? The important question for Britain
FATHER 221 is not whether Grey was candid, or was playing for position—posing to attract public sentiment in favour of the war; or blundering. His motives do not signify to us: the question is, are Britons justified in shooting and stabbing Germans?
The answer, however horrifying, was yes: under their treaty it was
Britain’s duty to use force to protect Belgium, just as it was Belgium’s duty to resist any breach of its neutrality. When, in 1917, he told his audience of Catholic students about his European tour, Belgium once again was the pivot of his case: ... when the history of the war comes to be calmly reviewed in the cold light of history, who can deny that if ever war be justifiable, the attack on
that peaceful, industrious little country, whose neutrality was guaranteed, which had taken the vow of neutrality for itself, did not fully justify our action?
On at least one occasion he spoke at a recruiting rally, at nearby
Dromana.
Yet even his setting up of this—in all senses of the term— rhetorical question hinted at his uneasiness. Could the violation of little Belgium justify any amount of ‘shooting and stabbing Germans’? He had, quite early in the war as we have seen, condemned Europe’s ‘entangling alliances’; and he told Marnie Masson in 1915 ‘that secret diplomacy was the root of international evil and that we were not free from guilt’ (it was the first time she had*heard the phrase ‘secret diplomacy’). In a deeper sense ‘the war could not have happened but for the mad theory that there is no end higher than the State’. The Kaiser’s Germany was the apotheosis of this
theory, but Britain, in the intolerant imperialism of men like
Rosebery and Rhodes, had been infected by it too. The war could only be defended if its historical origins were recognised. The defeat of ‘German’ ideals could only be justified as a war aim if Britons— and Australians—confessed the extent to which the British Empire had subscribed to similar ideals. A clear conscience required a clean
slate. | Nor should the horror of war itself be shirked. Whatever the
larger perspective, its immediate senselessness was not to be glossed over. He sent Esmonde, who was then just a few months short of enlistment age, a postcard from Nice of a peasant beating the body of an apparently dead German soldier, with the comment: ‘How war brings out our better nature! promotes civilization! sweetens the soul!’ A friend of Marnie Masson’s recalled his speech
at a recruiting rally at Dromana, which was before the death of Mervyn; it had stood out as ‘so different from the others, so much sadder than theirs, and seeing, even then, so much more clearly
222 H.B. HIGGINS than most people did the tragic waste and awfulness of the war’. The terrible truth was that ‘death in war falls chiefly on the young and vigorous’; and for these ‘pleasant-faced youths of high character’ who slaughtered and lacerated each other as patriots war was not an ennobling experience.
The war could only be endured if there were confidence that
civilised values would survive it. It was therefore vital to assert the
need for tolerance. This meant, he told a Workers’ Educational Association audience in 1917, accepting that the war itself was a fit
topic for debate and argument. There were always those who assumed otherwise:
If we attempt discussion before the war, we are told that we are hampering the Government in its negotiations; if we attempt discussion
during the war, we are told that we are dividing the country in the
presence of the enemy; if we wait till the war is over, we are told that we are guilty of futile fault-finding.
He pointed to the great leaders who had dissented from their country’s enthusiasm for a particular war—Peel, Pitt, Bright, Glad-
stone, Thiers, even Lloyd George;* he modestly refrained from mentioning himself. How often had they been in the right! Even if Higgins now found himself, technically at least, with the majority, he insisted on the right of minorities to be heard. An even more vital aspect of tolerance was the recognition of conscientious objection. In a sense this never became an issue in Australia, since conscription was not introduced. Higgins, therefore, had no need to spell out his views as he had in 1901, but his position had not altered. ‘No man should be called on to try to kill another man except on the imperative call of his own conscience,’ he wrote in 1915. When Esmonde became eligible for service Higgins, even with a son in the midst of battle, was mainly anxious that his nephew should not be ‘bluffed’ into enlisting. Esmonde’s sense of duty should not be opposed, but every endeavour should be made to persuade him that it was not his duty ‘to offer himself for this hideous work’. Higgins’s most profound statement about the war was made in a
paper given to the Classical Association on 16 November 1915. Entitled Socrates, the State and War, its starting point was the refusal
of the imprisoned Socrates to accept Crito’s proposal for escape. Even though the verdict on him was unjust, Socrates argued that there was a compact between the individual and the state, and that * Peel and the Opium War; Pitt and the American colonies; Bright and the Crimean
war; Gladstone and the Zulu and Afghanistan wars; Thiers and the FrancoPrussian War; Lloyd George and the Boer War.
FATHER 223 if he, for 70 years, had accepted the benefits bestowed on him by the
state, he had now to accept its sentence. Higgins stressed, with approval, the participatory nature of Athenian democracy, and that although Socrates had disapproved of many aspects of his city’s
was at stake. :
constitution he had not evaded his responsibilities under it. He could not evade this final responsibility, even though his own life This might not appear to have been an appropriate parable for Higgins, given his reservations about the conduct of the war. In fact, it helped him make distinctions which clarified the morality of his own position. The state was important, not as an end in itself, but as a guarantee of civilisation. It followed, therefore, that those who refused to pay taxes they regarded as unfair, or who took the law into their own hands (he specified, with an eye clearly to Ulster,
‘those who foment rebellion against the State in case certain
laws which they disapprove, should be enacted’) were committing crimes against civilisation. He might well have added that those who attempted to circumvent or undermine compulsory arbitration
were inviting the chaos which would make the achievement of
social justice impossible. But if the state could foster civilisation, it could also brutalise men. When the state equated itself with the call of patriotism, it became
clear that justice could only be comprehended at the level of
humanity. The German ideology of Treitschke and Bernhardi had washed its hands of humanity, and had elevated the fatherland to a position above the moral law. Once this philosophical perversion became dominant among men, war was inevitable. ‘My country right or wrong’ was not only an offence against reason, but also a guarantee of conflict between nations. Oppressed by the very agency which should be his liberator, the individual faced a moral dilemma to which Socrates suggested the answer. In so far as the state’s demand for the individual’s compliance involved only his personal suffering, then it was his duty to accept the injustice. Socrates obeyed the law which bade him suffer death, ‘but can we doubt what his answer would have been if the laws had bidden him to do injustice to the other people?’ Higgins was full of admiration for his new friend, Frankfurter, who though
of German birth could free himself from the ties of blood and
proclaim that ‘your struggle is our struggle’. The moral to all this was an austere one: No law that is a wise law will ever make a man punishable for not doing that which would be against his conscience to do, for not aiding the State
actively in doing what he regards as an injustice to other persons or other States; but if the law of his State makes him punishable, the man’s
224 H.B. HIGGINS duty is clear—to obey the supreme law, what Antigone calls ‘the unwritten and immutable laws of the Gods’, and to take the consequences.
Here was both a moral code and a rationale for civil disobedience. Socrates’ acceptance of his fate purified him, for ‘a man is free when he bears no longer the chains of his selfish personal impulses— when he is released, as Socrates felt himself released, from the wild beasts of personal desire’. Significantly, the Promethean imagery is infused with a Christian sense of guilt; indeed, Higgins went on to quote the phrase from the Anglican Prayer Book, ‘whose service is perfect freedom’. If, in the Socratic context, the advice Higgins offered might have seemed ultimately bleak, nevertheless his repeated argument that the war should not be waged at the expense of traditional rights and liberties heartened those who were already wary of the bellicose gusto of Billy Hughes, who had become prime minister a few weeks before Higgins gave his lecture. Some time later Higgins wryly confessed to Frankfurter that his Socrates paper did not represent the dominant view in Australia, and in the furore of the conscription referenda of 1916-17, he seemed to grow more cautious. As he was careful to point out to Frankfurter, he had neither supported nor condemned conscription; indeed, even in private he seemed loath to spell out his views. All he would say was that he was in ‘the curious position of not agreeing with either side’. What he meant by this is not clear. He had in the past supported compulsory military
training, but it is difficult to see how the stress he placed on
individual conscience, even for regular soldiers, could ever be
compatible with conscription for overseas service.* In any case, he had nothing but distaste for Hughes, who, he remarked in December 1917, ‘seems to have lost his head, and rages like one possessed’. Yet if there is a slight sense of Higgins receding into a judicial silence about the war, it must be remembered, as the next chapter will tell, that he was increasingly preoccupied with preserving the
arbitration system from assaults from all quarters, including the Hughes government. In his pronouncements on the war, Higgins drew on attitudes which had crystallised in the Boer War crisis, and which he made even clearer in the defence debates in Commonwealth parliament. He was president of the Australian Peace Alliance at the outbreak of * His sister Ina was vehemently opposed to conscription. Ina could even take Nettie to task for her criticism of English pacifists. ‘It’s not like you—a Higgins—to judge a movement by some of its followers,’ she admonished.
FATHER 225 war in 1914. But the principles which served so heroically and, in an
inner sense, so successfully in the argument about the Boer War were all but swamped by the sheer magnitude of the moral problem posed by the European conflict. Unless one were to retreat into total
pacifism, which Higgins was unable to do, the argument at the historical level could not resolve the kind of personal dilemma which the war presented. For Higgins there was nothing for it but to ‘take the consequences’ which the event imposed: the enlistment of
his only child, the long agony of waiting, the aching grief at his death.
Mervyn’s letters home were flat and unemotional in tone: he was not giving much away. ‘It is no good at this game brooding over the past or conjecturing as to the future,’ he wrote. But there can be little doubt that the war changed him, as it had most other soldiers. It is Marnie, who had written those innocent verses in the Herons-
wood log book ten years earlier, who provides us with a last glimpse. Towards the end of 1916 she was bound for Europe, and her ship passed through the canal. Their stop at Port Said was too brief to permit any attempt to contact Mervyn, but in the little time she had ashore she got talking to two soldiers, ‘such nice fellows, country men’, who were from Mervyn’s regiment. They told her
that Mervyn was a splendid officer, strict but very fair. ‘Some officers,’ said one of them, “you don’t know where you are with them; sometimes they’re strict and sometimes they’re not; but with
Captain Higgins you know exactly where you are—he’s always strict!’ She was able to give them a note of greeting to pass on to Mervyn when they returned to their desert camp.
No sooner had the ship left Port Said, however, than it was
torpedoed, ‘an extraordinarily thrilling experience’ which everyone
appeared to survive, but which. necessitated their return. At the hotel in Port Said there was a cheerful note from Mervyn: ‘Dear Marnie, are you dry yet? I have only just heard of your bathing party.’ He was then in Cairo on court martial work, but was able to get across to see her before she sailed again: ... he appeared, nearly filling the alleyway and looking really splendid. That was about half past twelve, and he stayed for two or three hours yarning on deck, and I felt how much you and Mrs Higgins would have given for such an opportunity ... He looked bigger, and browner, and older, but not the kind of strained oldness that you see in some of the young men; but a kind of responsible and far-seeing expression. Not that he has forgotten how to grin, either. A lively little Egyptian performer of
tricks came on board ... and Mervyn dismissed him in quite the old Heronswood manner and with a grin that matched the conjuror’s own.
226 H.B. HIGGINS When Henry and Mary Alice read this letter Mervyn was already dead. A week before Christmas he seems to have been in hospital for a day or so, for some minor injury, and then returned to his unit and immediate death.
Before he had left Australia in 1915 Mervyn had had some photographs taken. It was typical that Higgins should interpret this as evidence that ‘he must have had a presentiment of his fate’. Even if that were an exaggeration made possible by hindsight, Mervyn’s visit to the photographer was a recognition that this was a significant moment in his life. His enlistment was predictable enough, given his character and the social milieu he had inhabited, in Oxford as much as Melbourne. His father’s anti-militarism might have appeared the main obstacle, which was removed by Higgins’s early pronouncements on the war. (It is significant that in a letter shortly after the outbreak of the war Mervyn should stress that in Australia the mood was serious, with none of the ‘boisterous picnic spirit’ which had characterised the Boer War.) But one might also hazard that Mervyn’s enlistment had a more personal dimension. He had never shown any great enthusiasm for the law: it was a career he had embraced, partly because it was the expectation, and partly because he was not particularly drawn to any other. The war offered, if not an escape from all this, at least an experience which transcended it. He was at an age when a man is already conscious of his vanishing youth, and the vigour and excitement of the days on the Isis were behind him. The army, with its discipline and comradeship, was a world likely to have attracted him, and the war provided the appropriate occasion to respond. When Marnie saw him at Port Said he had already stared into the abyss. He had been one of the few officers of his regiment to survive the charge at The Nek.” Pleased as he was to see Marnie again, himself contributing to the Heronswood nostalgia (even his note to her impregnated with a kind of public-school jollity), Mervyn might have compared her naive excitement at the torpedo incident with his own grim skirmishes with death. If he had not realised back in Australia, he knew now what he was in for. He could calculate his
chances of survival. Nor would he ever do less than his duty. Whatever the more frivolous tastes which Marnie suspected of Mervyn, they were subordinate to a kind of moral rigour which, if more conventional than his father’s, bore something of the Higgins stamp. He could not complain of the choice he had made. ‘It is no * According to C.E.W. Bean, in the first line all ten officers were killed. In the second line three out of nine officers died, and four were wounded. Higgins and one other survived. The officers of the third line were all killed; three survived from the fourth line.
FATHER 227 good at this game brooding over the past or conjecturing as to the future.’ He, too, had to ‘take the consequences’. But well might
Higgins lament the way in which the war destroyed so many
‘pleasant-faced youths of high character’: for there, in their ranks, was his own precious Mervyn. Death came on 23 December. With two of his senior officers he was leading the advance at Magdhaba. The 8th Light Horse were now, for all intents and purposes, infantry, doing, as one officer put it, ‘what I do not think has been done before by mounted men; that is, to take trenches at the point of a bayonet’. Mervyn was shot by a sniper, the bullet entering his forehead just above the left eye. He fell, his glasses in his hand. Major McLaurin stayed by his body until the field ambulance came, but it was too late to bury him that evening. They dug his grave on Christmas Eve. On Christmas Day his fellow officers and some of the troopers sat down to write the necessary letters of condolence. Mervyn, a brother officer assured Higgins, had been considered in the regiment to be ‘brave to the point of fearlessness’, while the fallen hero’s groom wrote that ‘of him it can be truly said he was an officer and a gentleman’. On New Year’s Eve, young Esmonde scribbled: Isn't it ghastly about Mervyn? It was five hours ago I heard the news and
ever since then I have been almost howling. It isn’t so much that ] would, myself, miss Mervyn, for I hardly know him, though I think he must have been an amazingly fine person, who would have done all kinds of things. But to think of those bonzer people, Uncle H and Auntie
M is just ghastly ...
So, too, Marnie lamented to her parents that ‘it doesn’t bear thinking of Heronswood this Christmas’. They knew how much love had been focused on Mervyn, and could imagine the ratio of erief which his death would now exact. ‘Auntie Mary is very brave; but oh! the pity of it!’ Higgins wrote to Esmonde, and added, ‘I must hope now to see more of my nephews and my niece, all of whom | love.’ Mary Alice told her brother that Henry ‘had been very plucky,
as this has been a terrible blow to him’. There was some small comfort, perhaps, in supporting each other through the crisis.
1917 brought a less tragic sorrow. On 7 October Higgins’s mother
died; but at 92 her death could hardly come as a surprise. It had been the lot of Ina to care for her. Whether Ina chose or merely accepted spinsterhood, she could not escape the responsibility of the leftover daughter to look after their mother. In old age Anne Higgins had still been a forceful presence, formidably devoted to the
family far and near, forever knitting and crocheting for them. She
228 H.B. HIGGINS told Esmonde that she hoped he would be a politician when he grew up. ‘That’s what I’d like to be, if I were a man.’ Though opposed to female suffrage, she had, Nettie observed, ‘the soul of a suffragist, anyway’. But in the last year or two she had been ailing, and she was not told of Mervyn’s death, a pretence which may have
been more painful for those maintaining it than the truth would
have been for the old survivor. :
Yet however expected his mother’s death, it added another
dimension to Higgins’s grief. James, Charlie, Samuel, his father, and Mervyn, and now the great source of the family’s energy; the catalogue of death was mounting up. It was perhaps reflection on his mother’s decline which had led Higgins to re-read and circulate the letters from James in New York, written 50 years ago. But perhaps, too, the sacrifice of Mervyn made him think of that earlier, less heroic death. Mervyn’s light-heartedness and good looks, and his consciousness of his shortcomings, all recalled something of James. But if it was possible to see James in Mervyn, it was a James transformed by environment and circumstance. The Irish brother had been a wisp of a youth struck down by illness; the Australian son was a man with the physical characteristics of the new race, which Higgins himself had remarked in Egypt. James had been tormented by a double betrayal—his falling short of his family’s moral expectations, and his own sense of rejection by them. Mervyn knew only the security of love and devotion for which he had no rivals. They lived in different worlds and their deaths were them-
selves evidence of this: yet there was a parallel of innocence
between James joyfully setting off for the New World, and Mervyn
enthusiastically enlisting for the European war. Each, in his own way, was to face disenchantment. This intermingling of griefs old and new made 1917 a grim year.
Higgins was not, however, ashamed of his sorrow, but rather seemed to be seeking adequate means of expressing it. There was poetry, of course: What has he lost? Mayhap, some fifty years, The joy of children—work, success, defeat; The sense of failing strength, corroding fears, The sense that age makes not the life complete.
These lines said more about himself than Mervyn; and perhaps realising that he restlessly crossed them out. He opened his heart to
the German-born Frankfurter, even sending him a photograph of the young man he had never met: It is a fancy of mine which you will forgive— a desire that our American friends should see
FATHER 229 what our boy was like; and I feel secure when I commit a thing so sacred to you.*
Such an appeal might have appeared pathetic, yet in its honesty achieves a poetic dignity which the verse tends to lack. In November 1917 Esmonde enlisted. Higgins’s letter to his nephew did not disguise his pessimism: I feel that you will do your duty, and well. It is ghastly to think that this generation of young men has to risk life in the struggle; but what can be done? Alec Pope, who often worked for us—a nephew of our gardener, and a fine fellow—went as signaller, and he has lately been killed. Good luck to you!
It must have been a rather chilling message for young Esmonde, in so far as it seemed to countenance the possibility of his death so
realistically. But Esmonde knew the risk he was taking, and he knew also the gloom that had settled over Doona and Heronswood since the death of that ‘amazingly fine person’, his cousin Mervyn. Ernest Morrison spent Christmas 1917 at Heronswood and discovered a bleak family scene. He appreciated, of course, the reason for the sadness but seemed insensitive to the fact that this Christmas was the first anniversary of Mervyn's death. At first irritated by his sister’s indifference to what he considered appropriate hospitality, he became cross and finally furious with the spartan lack of Christmas fare. All this was even more exasperating in so far as Heronswood, in its ‘splendid wood with noble views’, was ‘as well situated as any country house I have ever seen’—why couldn’t it be run like a decent English country house? The food was awful, and there was no wine or whisky on Christmas Day. At first he blamed Mary Alice ‘who is an adorable and admirable woman but the most appalling housekeeper in the world’, but he also concluded that Higgins was ‘failing since the death of Mervyn and maundering feebly’. The frugal hospitality of Heronswood was now laid at his door: ‘He is accustomed to good food at Scotts’ where he lunches daily but is so unobservant or so mean that he will set before his
guests food that he would never dream of accepting at any restaurant.’ What seemed to fuel Morrison’s impotent wrath was the inability of Henry and Mary Alice to sense his discomfort. When he
escaped, after a mere three nights, he confessed to his diary that ‘rarely have I been more exasperated by such atrocious conception of hospitality’. While it is not necessary to take Morrison’s dyspeptic * When I wrote this excerpt in my first draft it happened to fall into four lines, which Orm. drew my attention to their poetic character. I have reproduced them in this
230 H.B. HIGGINS judgments too seriously, coloured as they were by his own obsessive concern about his creature comforts, his account does suggest the total commitment of Henry and Mary Alice to their grief, a grief which his brother on the bench, Isaacs, described as ‘well nigh devastating’. How much Mary Alice turned to religion for consolation is not known. Although they were parishioners of St George’s, Malvern, and although, on their travels, they often went to church, religion does not seem to have played much part in life at Heronswood. As for Higgins himself, while he did not reject spiritual values, he seemed reluctant to commit himself to any particular creed. He
could, in verse, refer to ‘the All, the One’, but, when pressed, seemed to embrace a studied vagueness. He wrote to Nettie in 1917:
I do not think that Iam either gnostic or agnostic. But it is surprising how little support the Scriptures give to the various inconsistent theories as to the ‘after-death’ that are current. I know this—that I habitually pray that God’s Kingdom may come, and if by God’s Kingdom some do not mean
exactly what others mean, no matter. The meaning is nearly always good.
He interpreted Socrates, with approval it seems, as being ‘an agnostic on the subject of the gods, and of their relations towards man, and of immortality’. He thought that Socrates probably ‘felt rather what Matthew Arnold in recent years taught, that there is a power not ourselves that makes for righteousness, and that he felt an artistic impulse to obey it and help it’. But whatever this “power not ourselves’, and however much, in certain circumstances, Higgins might respect the mysteries of fate and destiny, one thing was clear: Mervyn was dead. The war had, literally, destroyed him: no reunion of father and son was imminent. Higgins was now child-
less. The trauma of 23 December 1916—a date which he needed only to
utter to evoke the sense of his profound loss—was not simply the pain at the war’s casual elimination of a much loved son. That was horrible enough, and its predictability made it less rather than more acceptable. But beyond this immediate agony was the void that now opened in his life. For Mervyn was not just his son, but his future as well. He could turn to Nettie and Esmonde, and to young friends, as if to reconstruct a vision of the future, but however rewarding these associations were to be, he knew that after 23 December 1916 Australia would never be the same for him again.
10
Prometheus unbound
T HEfrom 1916 Easterinternal Risingantagonisms in Dublin had a reminder that far stifling thebeen war could sharpen them; but such traditional hatreds, which were part of the European culture as it were, paled into insignificance beside the Russian Revolution of 1917, for this was an event which threatened to overshadow even the war itself. Both the cameo tragedy of Dublin and the epic drama of Russia reverberated in distant Australia, and somehow the dominion’s investment in the European war dramatised their impact. The argument about conscription exposed social
and cultural divisions which had been temporarily smothered, so that the conduct of the war became inextricably entangled with the Irish question and the rise of trade-union militancy. Nor did the coming of peace dissolve the bitterness engendered, for in the eyes
of the middle class, which had in large measure sustained the
imperial commitment, Sinn Fein and Bolshevism, both spawned of subversion, remained to poison Australian society.
The last five years of Higgins’s presidency of the Arbitration Court—he finally resigned on 29 June 1921—were a time, then, of dislocation and uncertainty. Industrial relations provided the central arena for the conflicting social forces, and Higgins found himself
assailed on all sides—from employers, trade unions, and the government. Valiantly he tried to maintain the system and the
ideology which he had spent so much energy in developing, but the unrest mercilessly located and probed the Court’s weaknesses, so
that the whole edifice of wage regulation appeared in danger of collapse. In the noise of battle the warring forces seemed oblivious
to the voice of reason, and Higgins struggled to avoid arbitration being discarded as an irrelevance. In the event he succeeded, though this was not clear till after his resignation; but that success
was not achieved without cost, and the system he had done so much to create was to lose much of its Promethean thrust. One man has been characterised—to some extent by Higgins himself—as the agent of the Court’s decline. That vivid character, 231
232 H.B. HIGGINS Billy Hughes, dominates many an account of the war in Australia: there he is at the centre of every controversy, it seems, exhorting and manipulating, yet managing to project himself into popular history as the voice of Australia in war and peace. Hughes was irritated, as many of his successors were to be, by his inability to control or exert pressure on the arbitration system, while Higgins, naturally enough, resented his attempts to do so. Something of a running feud developed between them, and in the end Higgins resigned in protest against Hughes’s 1920 Industrial Peace Act. They were, of course, well known to each other. They had sat in federal parliament together before Higgins went to the bench, and had been members of the shortlived Watson cabinet. Higgins recalled Hughes from those days as an amusing companion and an ‘excellent raconteur’, but summed him up as “a clever little fellow of no physique; has read a lot, but has not had regular training; sincere as to the war, I think, but (I think) tricky—would get his friend out of a difficulty by getting his friends into one’. In 1904 they had got
on well enough; indeed, as noticed earlier, when he was attorneygeneral Higgins seems to have been anxious to efface himself, allowing his young legal colleague to exercise his talents. But when Hughes himself assumed the attorney-generalship in 1910 Higgins became more aware of the ‘little fellow’s’ larrikinish political style. He was also critical of the Waterside Workers’ Federation, of which
Hughes was president, for the failure of its central leadership to control its branches. In 1915 Higgins obliged Hughes by making clear that wharf labourers were not in breach of the award in refusing to load wheat
at the prescribed minimum rate; employers were thus reassured that it was entirely up to them whether they paid a higher rate for loading this particular commodity, as some of them had done previously. As we have seen this intimation provoked some controversy, but Higgins had no doubt (at this time at least) about the incontrovertible nature of his pronouncement. Nevertheless he was sensitive to any suggestion that, in making it, he had been susceptible to pressure from Hughes. For this reason, he was wary in 1916 when the prime minister requested that he should intervene in the coal strike. Higgins had earlier refused to arbitrate on the miners’ claim for an eight-hour day bank to bank because it appeared that in
several mines the men were already taking the hours which they sought. His hands would be tied, as he put it, if the men were getting by direct action that which they were asking him for. By the end of October the dispute had become a full-scale strike. The exact nature of the approach from Hughes later became a matter of controversy, when Higgins, in a passing remark in Court,
PROMETHEUS UNBOUND 233 scathingly implied that the judge Hughes eventually appointed for the task, Edmunds of New South Wales, acted under instructions from the prime minister, which he himself had declined to do. It was typical of Hughes, of course, that the original approach was made indirectly, to Stewart, the Registrar of the Court, and that later he could not produce—or chose not to—any documentary evidence concerning it. According to Higgins the Registrar called on him on Sunday 26 November bearing Hughes’s request that Higgins should act, together with ‘written memoranda of the course to be taken, in the handwriting of the Prime Minister’. The projected action was to be taken under the War Precautions Act and the course Hughes outlined assumed that the miners’ claim for eight hours bank to bank would be granted. Higgins indicated that his discretion would have to be ‘free, absolutely unconstrained’ on all claims; he also objected to acting under the War Precautions Act, preferring to
remain within the orbit of arbitration. Nevertheless, with these reservations, he expressed himself willing to arbitrate, at the instance of the government, where he had refused to do so at the
instance of the union. This reply was in writing, and was despatched to the prime minister, along with the original ‘memoranda’. No
more was heard of the idea.
When Higgins related his version of the approach, Hughes described the suggestion that he had asked the judge to act ‘under instructions as to the nature of the award which he was to give’ (which was not precisely what Higgins had claimed) as ‘a monstrous fabrication’. He had no recollection of any written memoranda, ‘though it is possible I may have written a personal note to the Judge asking him to act’. The only modification that Higgins had required, ‘so far as I remember’, was that the intervention should be under
the Arbitration Act, and this was unacceptable to the prime
minister.
Higgins immediately expressed his amusement at Hughes’s strong language, but asked again whether the prime minister had sent him memoranda ‘stating the lines on which he desired me to act’, and whether the prime minister had received his letter of reply. If the prime minister had these documents why did he not produce
them? If, on the other hand, they had been destroyed, why and when had that been done? When presented with these questions Hughes remained surprisingly vague about the issues of fact, but as certain as ever about ‘the monstrous fabrication’. He knew nothing about any ‘so called memorandum’, nor, he said, did the Solicitor-General and the Official Secretary. ‘So far as my recollection serves me, I jotted down the points on which the Judge was to arbitrate—namely, the
234 H.B. HIGGINS question of hours, the rate of wages, and the price of coal.’ The Registrar submitted these to Higgins, and Hughes implied that the judge’s response had been conveyed to him verbally by Stewart. Ignoring Higgins’s statement that he had returned the memoranda with his own reply, Hughes called on the judge, if he had any memoranda, to produce them: he also suggested that the Registrar would confirm his version.
Relishing the inconsistencies that were now appearing in Hughes’s account, Higgins could not resist another statement. He
suggested that those who had been following ‘the unpleasant
controversy’ read all the statements ‘closely and consecutively’. Hughes had at first only recalled possibly having written the judge ‘a personal note’ asking him to act; this had now become, albeit ‘jotted down’, ‘the points on which the judge was to arbitrate’. Hughes had not actually denied receiving a letter of reply from Higgins; nor, for that matter, had he denied receiving back his own original note, whatever form it took. All he had done was to insist that no formal departmental memorandum had been sent, which as Higgins pointed out, was not in dispute; for the approach had been made directly by Hughes to the Registrar on a Sunday, and the Registrar had personally delivered Higgins’s reply, together with the ‘memoranda’, to Hughes at his house. At no stage did Hughes deny that these documents were in his possession; at no stage did he produce them. Higgins also pointed out that the prime minister had misrepresented him as alleging that the instructions given had been ‘to accede to the demands of the men’. All he had said was that the prime minister’s proposals were framed on the assumption that the
hours claim would be granted. This was true enough (though Higgins’s off-the-cuff remark in Court had been more ambiguous) but it gave Hughes the opportunity to escape with a debating ploy. He noted with satisfaction that the judge now ‘admitted’ that the
memoranda did not contain any instructions to accede to the
demands of the men. Higgins, no doubt content that he had won the exchange, let it pass. This public scrap between prime minister and judge might appear trivial and foolish, but it pungently conveys the disparity between them. Hughes had been either devious or inefficient—most probably both. He enjoyed the cloak-and-dagger atmosphere of clandestine deals and scribbled notes. He should have appreciated, and perhaps did, how irritated Higgins would be by both the indirectness and the casualness of this approach. Hughes was surreptitiously slipping the judge a scenario for settlement, which could only affront the fastidious president. On the other hand Higgins knew
PROMETHEUS UNBOUND 235 well enough that the prime minister could not let pass the suggestion of impropriety, and was bound to react with indignation. In a sense Higgins was not observing the rules of the political game; Hughes was therefore entitled, from his point of view, to be as disingenuous as was necessary to minimise his public embarrassment. The asperity of their exchange, which took place in November 1917, is partly explained by other differences which had cropped up since the coal strike. Early in August 1917 Hughes wrote to Higgins inviting him to chair a conference, at very short notice, of presidents
of the various State industrial courts to discuss ‘some of the
fundamentals of industrial arbitration, and particularly the question of a basic wage’. Such a conference had been proposed by some of the premiers, particularly A.H. Peake of South Australia. Higgins replied courteously, but thought that Hughes had been ‘influenced by the representations made by the State Premiers’ and had ‘not yet had the opportunity of hearing the point of view of this Court’. He requested an interview with the prime minister ‘in person’. In any case his court commitments made it impossible for him to attend the conference at the early date nominated. Hughes frostily replied that
the date could not be changed, and ignored the request for an interview. But almost immediately the beginning of the railway strike in New South Wales prevented that State’s participation and the conference was cancelled. Higgins nevertheless took the oppor-
tunity to have informal discussions with the presidents of the
Queensland and South Australian courts, who had already arrived, and informed Hughes of the fact. He noted that the prime minister
had not referred to his request for ‘a talk ... in person’, and repeated it. This letter appears to have been no more than acknowledged. The aborted conference was a typical Hughes initiative— hasty, high-handed and essentially political. No more was heard of it. The file concludes with the bemused departmental query, ‘Are any steps to be taken to call a Conference together?’ ‘No action at present by direction’ was the answer.
The railway strike in New South Wales, which provided the excuse for abandoning the conference, became the focus for mounting trade-union discontent. Originally provoked by the introduction of a much resented card system, the strike soon spread to tramway
workers, coalminers, wharf labourers and seamen. For the longstanding critics of the Court this so-called Great Strike demonstrated
the uselessness of the arbitration system. The original dispute, as
Higgins pointed out, was not only localised in one State, but involved a State instrumentality, so on both counts was beyond his jurisdiction. As for those sympathy strikers who were under Com-
236 H.B. HIGGINS monwealth awards, they had no ‘dispute’ upon which he could arbitrate.
There was pressure on the Court, however, to take punitive measures against these unions, with a view to forcing the men back to work. On 30 August Higgins struck out a preference clause in the waterside workers’ award which was inhibiting the employers from
engaging non-union labour. But Hughes wanted more than this, and the government applied to the Court for the deregistration of the union. At the same time he gazetted a regulation under the War Precautions Act (clearly Hughes’s favourite piece of legis-
lation) giving the governor-general the power to deregister. To Higgins this was intolerable: the new regulation was ‘a sword hanging over me, that if I do not comply with his wish he will do it
himself’. In any case Higgins thought that deregistration was pointless. It did not, he argued, automatically abolish the effect of the award, and it actually exempted the union from future punitive measures. The Court’s power to deregister was discretionary, and ‘if the public would gain more by the Court keeping such control as registration gives, the order for cancellation should not be made’. Higgins told Frankfurter that Hughes had been behaving ‘impulsively, wildly, hysterically’; he noted, not without some satisfaction it would seem, that the prime minister was ‘furious’ at the rejection of deregistration. The governor-general’s power was not exercised, so the government’s ploy seemed little more than a futile threat. But if he had the minor satisfaction of thwarting Hughes, Higgins was genuinely perplexed by the temper of these strikes. In some ways the tricky little prime minister was too convenient a scapegoat. Higgins realised that the 1916 coai strike had been ‘complicated’ by the unions’ opposition to conscription and by their “extraordinary antipathy’ to Hughes. But as time went by this ‘complication’ became his historical explanation, and by 1922 he could dismiss it as ‘essentially a political strike, because the Government was urging conscription for the war’. He could hardly blame Hughes in this fashion for the 1917 unrest, but he could nevertheless characterise him as a hindrance rather than a help. Hughes’s sense of mischief— when asked for his reaction to the deregistration judgment he told parliament that he had been so overcome by the part he had read he had been unable to get through the rest—made such a characterisation plausible. Yet Higgins appreciated that while to label a strike as ‘political’, or
as beyond his Court’s jurisdiction, might serve to excuse his own apparent failures, it did not explain the new mood of working-class discontent. He who had always praised the principle of solidarity was now nonplussed by the sympathy strike:
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THE ONE MAN ) AUSTRALIA (to Judge Higgins): ‘Thanks—to you, at least, I can look for justice.’ The Worker still approves of Higgins, captured by Fred Brown in an appropriately uncomprising and dignified stance. This time it is Hughes, grasping the sword of power, who is the pigmy. (4 October 1917, p. 3.)
238 H.B. HIGGINS ... the pathetic feature of the position is that most of the men think that by ceasing work in sympathy with the New South Wales railway men they are doing what is virtuous and honourable—sacrificing themselves for their fellows; or putting the matter in another way, they are afraid of being charged with perfidy to other unionists. The difficulty of these sympathetic strikes is mainly psychological. In fact, if men in unions could be brought to see that their duty to the public, to humankind, is
higher than their duty to other unions, the problem of sympathetic strikes would be nearly solved.
Higgins was also reported to have said that ‘it is bad enough to have
“my country right or wrong”, but it is worse to have “‘my union right or wrong”, and “‘the other fellow’s union, right or wrong’’’. Yet essentially he was arguing that a sympathy strike was always wrong. It was against the public interest in so far as it was incapable
of settlement; and, most upsetting for Higgins, it destroyed the formal symmetry of arbitration. An ordinary strike, while bad enough (and Higgins usually would not arbitrate on a union claim
while its members were ‘out’) at least had a tangible strategic purpose; but a sympathy strike was, from his point of view, irrational. Yet all he could do to explain this aberration was to suggest that the problem was ‘psychological’. How could the ‘men in unions be brought to see’ things the way Higgins saw them? He was, again, standing at the frontier of social class, but now his view was coloured by the need to maintain the institution he had devised to reconcile the classes, and it seemed that the working class was obstinately refusing to play the role allotted to it. This puzzlement was most dramatically revealed with the glass-
bottlers’ strike of June 1917. The strike concerned payment for defective machine-made bottles, and, as Higgins put it, ‘nothing would induce the men to return to work unless their demand was conceded’. Faced with this intransigence Higgins sanctioned prosecution for penalties, and the men were forced to return to work on
the employers’ terms. They had got nothing, and had denied themselves access to justice. Higgins confessed: ‘A refusal of this kind to accept arbitration is unprecedented, and I have not been able to understand it, unless it be an explanation that the industry depended on imported German or Austrian glass-blowers.’ This suggestion, for which he produced no evidence, was unworthy of a man usually so suspicious of prejudice.
If Higgins responded to this ‘unprecedented’ behaviour with a
mixture of bafflement and resigned patience, the erratic path charted by Hughes reflected the prime minister’s peculiar political position. He had, in the short term at least, destroyed the Labor party, which he had done so much to build. Having forsaken Labor
PROMETHEUS UNBOUND 239 in the cause of winning the war, it was difficult for his former anti-Labor opponents not to concede him the leadership of a ‘National’ government, but many of them did so reluctantly. Some were as distressed by his autocratic style as his Labor colleagues had become; others did not believe any politician, even Hughes, could discard his origins so easily. The Labor split occurred at a time when
the bourgeoisie, in a mood of some pessimism, was reassessing its position. G.D. Delprat, Higgins’s old BHP foe, asked by the governor-general, Munro-Ferguson, for a survey of Australia’s prospects, painted a bleak picture of incipient anarchy; the moral he seemed to draw was that national salvation would require drastic
measures, the principal one being the abolition of the arbitration system. The view was commonly expressed in such circles that Higgins was prejudiced, ‘political’, even corrupt. The dislocation of 1916-17 encouraged some to believe that this was the opportunity to take harsh initiatives. One such possible initiative was the removal of Higgins from the presidency of the Court. Hughes, in his mischievous way, encouraged speculation, and the question was raised in parliament; there was no doubt, however, that to move the resolution required would have created an enormous furore, and the conservative press, however critical of Higgins, was distinctly uneasy at such a prospect. To some extent the spokesmen for the bourgeoisie were trapped in their own rhetoric of national unity. It would have’been difficult not to characterise the termination of Higgins’s appointment as ‘divisive’. For Higgins this episode had one compensation; much of the labour movement, however restless with arbitration, rallied to his defence. Hughes himself could hardly have countenanced the abolition of the arbitration system: he had, over the years, invested too much in support of the new ‘law and order’ to make feasible any such reversal. Furthermore, renewed endorsement of the value of arbitration as a national institution helped to give continuity (and credibility) to his changing political career. But once established in his new party, he had to take the anti-arbitration lobby into account, and Higgins was a tempting scapegoat. Higgins knew that ‘certain dark and sinister forces would like to get Hughes to take extreme measures against me’. In baiting the judge, Hughes played up to these forces, but he realised the kind of broad public sympathy the Court still enjoyed. The common thread in his apparently haphazard responses to the Higgins Court was the overriding priority he gave to winning the war—a priority which could as much justify prudent appeasement of strikers in a vital industry, as it could harsh reprisals against ‘disloyal’ trade unions. In so far as his interferences
240 H.B. HIGGINS seemed to have the effect of undermining the arbitration system he was providing some measure of satisfaction to the employer lobby; nevertheless he could claim that the special tribunals he created, or the settlements he engineered, respected the need for a peaceful resolution of industrial conflict. It seemed, however, that some sort of overhaul of the arbitration
system could not be avoided. As has been remarked, Higgins himself had been wearily seeking amendments to the legislation over the years. In August, just after he had cancelled the hurriedly called conference, Hughes peremptorily (and, once more, indirectly) approached Higgins for desired amendments. Eight months later he wrote, as attorney-general, informing the president that after ‘much consideration’ the government was planning ‘early legislation’ to remove the defects in the system, which he defined as the congestion in the Court’s business, the absence of any provision for harmonising Commonwealth and State awards (particularly with regard to a uniform basic wage), the limitation of Commonwealth jurisdiction to ‘interstate disputes’, and the expense and delay of litigation caused by the constitutional limitation. But Hughes’s solution was still devised in terms of the needs of war: the Bill was to be framed ‘in reliance upon defence power’, and was to apply only to ‘certain industries of national importance’, such as transport, base metal and coalmining, iron and steel manufacturing and the handling of wheat. He proposed adding two judges ‘to assist the President’. Industrial boards were to be set up which would deal with most industrial disputes, leaving the Court a supervisory role, but the Court would retain the function of periodically investigating the cost of living and fixing a basic minimum wage. Representative
councils would be designed to promote ‘better understanding between employers and employees’, and the idea of an advisory Commonwealth Court of Industrial Representatives was mooted. Beneath all this sugar coating there was one hard little pill: strikes would be. made illegal, except after ‘due notification and a secret ballot’, and ‘effective means’ would be provided for enforcing the
prohibition. , In reply Higgins was cautious and polite, but hardly enthusiastic.
He denied that there was now congestion in the Court, and was clearly suspicious of any restructuring of the Court which might, through majority decisions, serve to nullify the principles he had established. He did not think a uniform basic wage was possible, or
even desirable, given variations in the cost of living in different parts of the continent. He implied some legal doubts as to whether an arbitration bill could validly depend on the defence power, and preferred to hope that means would be found for transferring to the
PROMETHEUS UNBOUND 241 Commonwealth Court ‘the ultimate control of all industrial matters’. He had no objection to industrial boards, but suggested that existing State machinery be used where possible. He proposed that periodic, ‘scientific’ investigations of the cost of living be made by the Commonwealth Statistician, who would need for the task more
powers and a larger staff. The only reform that he welcomed without reservation was the idea of representative councils, by which he presumed Hughes meant councils along the lines advocated by the Whitley Report in Britain. Higgins was much interested in these, and had been in correspondence with British officials on the subject, though elsewhere he pointed out that the boards of reference which he had earlier attempted to use were very similar. As for strikes, Higgins seemed to imply that the government's proposal was bombast; under the Act strikes were already illegal in disputes within the Court’s jurisdiction. Higgins was more concerned with redefining the legal meaning of a strike, so as to include a sympathy strike or a ‘combined refusal to accept work’, and seemed reluctant to canvass penalties. Nothing came of this planned legislation: in any case the end of the war in November effectively destroyed its rationale. In April 1918 Hughes set off abroad again, and Groom took over as attorneygeneral. Higgins was soon writing to him, protesting against his 1917 controversy with the prime minister being omitted from the Arbitration Reports. He issued a veiled threat: ‘I am reluctant to take further steps which would recall the unfortunate dispute to public attention.’ Groom gave way. But in November the High Court found an entirely new spanner to throw into the works. It ruled that while the president's arbitral function was valid, he had no judicial power. This not only meant that the Arbitration Court had no authority to enforce its decisions, but also cast doubt on the position of deputy president Powers, who was appointed directly by Higgins. There had been uncertainty as to the precise legal status of the Arbitration Court—it will be recalled how the contempt proceedings against the editor of the Hobart Mercury were only pursued in terms of Higgins being a judge of the
High Court—but now this uncertainty had been resolved in a manner which could only further weaken the Court’s effectiveness. Higgins suggested two urgent amendments to Groom, one placing
the power to appoint a deputy president in the governor-general and not the president, and the other giving the president life tenure. This latter proposal, he hastened to explain, was ‘not made in any self-seeking spirit, but in the interests of the public’, for only life tenure could restore to the president the necessary power to enforce
awards. He also reminded Groom of the amendments he had
242 H.B. HIGGINS suggested in August of the previous year. The government was prepared to clarify the position of Powers, but Higgins could hardly have been surprised that it retreated from the prospect of installing
him for life. Perhaps more distressing, however, was Groom's intimation that any plans for general amendment of the Act had been put on ice. Even as the High Court was handing down its decision, Higgins and Powers were once again at odds; or rather, Powers was at odds
with Higgins, who preferred simply to ignore any differences between them. Powers seized on the High Court’s decision as an excuse for his not accepting any more work as deputy president. But
he made it clear to Higgins that he thought the inconsistency between their awards had become unbearable; it would be a ‘scandal’ if a union’s success depended on a ‘toss up’ as to which judge heard a case. The differences that Powers pointed to indicated that he was in most things more conservative. He was particularly irate about Higgins’s decisions in public-service cases, in which he
regarded himself, as a former solicitor-general, as having had the benefit of practical experience. He thought Higgins had been too liberal in his provision for the granting of increments, and he did not believe that all public servants should have received cost-ofliving adjustments in wartime. He disapproved giving the full rate to all men over 21, single or married, and he thought that piece rates should be encouraged (he felt sure it would be ‘the only way we can keep the industries going after the war’). He concluded: With neither of us is it possible to compromise on principles. We are both obstinate men who will do only what we think is right, and not what someone else thinks is right—when it is not a question of deciding according to law, but according to equity and good conscience. I regret the necessity of handing in my commission because, although the work is generally speaking trying and thankless, I know that I have been able to better the lot of thousands without injustice to anyone. | regret it also because our relations as President and Deputy-President have been so pleasant.
Yet Higgins still seemed to imagine that on the essentials of arbitration they were in agreement; or perhaps he quietly relied on his more liberal awards slowly forcing Powers to fall into line. The High Court decision and Powers’ withdrawal occurred as the war in Europe ended. Nothing, of course, could assuage the grief of 23 December 1916, but Higgins shared the sense of relief that the terrible destruction was over. At Christmas 1918, in spite of the difficulties he was facing in the Court, he seemed more relaxed, sublimating his sadness in the experience of the immediate. As he told Frankfurter:
PROMETHEUS UNBOUND 243 My grief has condemned me to hard labour for the rest of my life. Today
gathered into stooks.
I was hay-making. My man scythed the crop of oats, and I raked and Sometime my eye would wander thro’ the dark eucalyptus and the darker pines to the sea—Port Phillip—blue and green and purple and steel—coloured and white, and the buff coast line. It is a pretty place, on the slope of a mountain; and with the birds of various kinds and bathing
and my faithful dogs—not to speak of my wife and kind friends, and books—the days pass quickly. It is a pleasure even to watch the horses
crunch their ‘hay’ ...
But if there were still refreshment in such interludes at Heronswood—and perhaps its associations with Mervyn now became an elegaic comfort rather than a cruel reminder—his real ‘hard labour’ was not haymaking but the continuing working of the Court, from
which, it seemed, there was no escape. In spite of his lack of sympathy for the new militancy in the labour
movement, Higgins strove to maintain a progressive outlook. Nettie, Vance and young Esmonde provided some stimulus in this. Before the war they had viewed “Uncle Henry’ with almost unqua-
lified admiration; now they seemed perturbed that he had been overtaken by events. ‘I wish he had never been saddled with the Arbitration Court,’ Nettie confided to Esmonde. Partly at their instance, he studied the guild socialism to which Nettie and Vance had been drawn, but although he referred to G.D.H. Cole, Orage, Bechhofer and Reckitt as ‘that cultured band of theorists’ he was disappointed with their work. Even his sister Ina prodded him from time to time, sending him, for example, a copy of the radical Labour Solidarity, passed on from Nettie, pointing out that it gave one an idea of what the workers were aiming at, namely, ‘the control of
their industries’. , His decisions in the Court remained sensitive to what he considered to be the legitimate aspirations and concerns of trade
unionism. Although he had reprimanded the Waterside Workers’ Federation for its disregard of undertakings given, and had, in
consequence, withdrawn the preference it had enjoyed, and although he defended the right to employment of ‘loyalists’ who had been engaged by employers when the watersiders were on strike, he continued to regard the WWE as the appropriate industrial organisation, refusing to register the loyalist union, on the erounds that the existence of two rival unions would unnecessarily sustain the old bitterness. He was also suspicious of the employment bureaus set up by employers on the wharves, because he thought they would become ‘malignant “combines’’’ serving to exclude WWE members. Likewise he had cutting things to say about
244 H.B. HIGGINS the ‘agreement’ which the Commonwealth government demanded that workers in the shipbuilding industry sign. This odd document, to which the Amalgamated Society of Engineers objected, laid down that both Commonwealth and employee would be bound by ‘the conditions and principles’ set out, or which could be inferred from two printed statements by prime minister Hughes. Higgins was
scathing about what could be ‘inferred’ from these statements which ‘contain many effective rhetorical sentences ... utterly inapplicable to the cold atmosphere of an agreement’. He also supported the ASE in its hostility to piece rates, which he regarded
as conducive to sweating, and when it was suggested that the government would abandon shipbuilding rather than employ unionists who would not consent to piece work, Higgins spoke in language which recalled that he had directed at BHP: ’... if the Government should abandon the construction of ships on such grounds it will be through their own unreasoning obstinacy and not through any unreasonable attitude taken by this society [the ASE]
...’ It was another rap over the knuckles for Hughes in his
piecemeal attempts to reshape industrial relations without reference
to the principles and procedures established by the Court.
One area where there appeared to be a shift in the Court’s
emphasis was in a greater concern for industrial relations at the workshop level. Higgins had hitherto tended to place an onus of responsibility on trade-union leaders to manage and control their members, but it had been one of the uncomfortable lessons of the war experience that the membership could not be taken for granted
in this manner: the relationships between central executive and branch, and between unions leader and worker, were varied and complex. Influenced by the English Whitley Report, and no doubt also taking into account the kind of socialist propaganda to which Ina had directed his attention, Higgins spoke of the need to appoint
shop committees, for which amendment of the Act would be
necessary. “The days of absolute autocracy in business—‘my business’’"—are gone’, he declared; and he criticised Australian em-
ployers for their slowness to appreciate the need to consult their employees at the workshop level. There was nothing in these suggestions inconsistent with his general views on industrial relations, but they reflected a new awareness that the Court’s dialogue with trade-union secretaries and employer representatives was not enough, and that workers themselves had to be involved in the running of their industries. While in such matters Higgins attempted to be responsive to the temper of trade unionism, the seamen’s strike of 1919 provided a new crisis in which no party, the Court included, seemed satisfied
PROMETHEUS UNBOUND 245 with its characteristic role. Several factors added interest to this strike. Hughes was away, strutting the world stage at Versailles, and since, in his own inimitable and unpredictable way, he had tended to dominate the government’s industrial-relations policy, this left a political vacuum, which was all the more noticeable as the
Commonwealth, through the Controller of Shipping, W.R. Clarkson, was in effect the major employer involved. Higgins had always had a particular sympathy for the lot of the seaman, but the union had fallen into the hands of a radical leadership which refused to kowtow to the authority of the Court. The secretary, Tom Walsh, was seen by many as the principal villain, though according to Higgins his wife, the former Adela Pankhurst, was ‘the intellectual force behind him’. For government, Court and union the strike became a symbolic confrontation, while the labour movement at large watched nervously, uncertain of its role. The origins of the strike seemed to lie in dissatisfaction among seamen at having fallen behind the merchant seamen of Britain and the USA in the rates being paid them. In December 1918 Higgins handed down an award which only gave an 11 per cent increase, when the union had claimed 50 per cent. In April 1919 the union approached the Controller of Shipping with a new log of claims, including not only a 35s increase in wages but some new demands concerning conditions which had not been raised before the Court in 1918. Since the award had not expired, the Controller felt unable to commit the government to any new settlement, and the strike began. On 21 May acting prime minister Watt directed the Control-
ler to apply to the president of the Court for a compulsory
conference. Higgins, apparently hoping to exploit divisions among the seamen’s leaders, suggested that the union conduct a plebiscite on whether ships should be manned and the dispute referred to the Court, and for this purpose the conference was adjourned. Just at this moment Watt chose to make a speech to the Malvern branch of the Australian Women’s National League on the industrial situation. He made no specific refererice to the seamen’s strike, though he condemned Bolshevism as ‘a strike against Democracy’, but he remarked on the growth of public sentiment, since the days of the Federal Convention, in favour of arbitration. Yet with all ‘the legislative machinery’ there had been 1647 strikes or lockouts in four years with eight million working days lost. These ‘appalling’ figures showed that either ‘the arbitration law had broken down, or that there was a substantial industrial section that had determined to have a double weapon’. He went on to exploit the division between skilled and unskilled workers, implying that the latter were now
forcing the industrial pace, to the detriment of the craft unions
246 H.B. HIGGINS which were seeing their margins eroded. Although this speech did not refer by name to the Commonwealth Court, Higgins could not resist making one of his rejoinders from the bench. Any statement by the acting prime minister would be treated by him with respect, he said, ‘not only because of his responsibilities as leader of the Government, but also because of the esteem in which I held him when we were fellow-members of the Victorian Parliament’. He was remembering, perhaps, their common opposition to the Boer War; but even if this were not the kind of compliment he extended to Hughes it did not spare Watt from judicial correction. He took it, from Watt’s reference to the Federal
Convention, that the acting prime minister was including the Commonwealth Court in his criticism; however Higgins could count, not 1647, but only four strikes which took place ‘in disputes that can possibly be regarded as extending beyond one State’. He thought that ‘it is wonderful that in our few years of war, with the
great increase in the cost of living, and the general suffering and unrest there had been so few strikes within the jurisdiction of the Court’. He concluded by wondering out loud whether the government had some policy to propose with regard to the Court; if it did, he hoped the greatest care would be taken in ‘ascertaining and stating the facts’. Watt was more subtle in his response than Hughes would have been. “The earlier association’ between the judge and himself ‘to which His Honour delicately alluded’ impelled him to abstain from
reply as he would otherwise have felt inclined to do. But he expressed his disapproval of the extent to which Higgins had ‘crossed swords with Ministers of the Commonwealth’: ‘In doing
so, he has embarrassed those public men who are anxious to
preserve the traditions and immunities of his high judicial office, but every time His Honour embarks upon such a controversy this becomes increasingly difficult.” He thought, however, that Higgins had chosen ‘a narrow interpretation of the facts’, and he assured the judge, with perhaps a hint of warning, that the government had a policy on arbitration which it would submit to parliament ‘in due course’.
Higgins was no doubt irritated that Watt should take advantage of the seamen’s strike to make his general observations on the shortcomings of industrial arbitration, but his own determined optimism had more than a suggestion of whistling in the wind. His estimation of the Court’s wartime success depended, as Watts had hinted, ona very legalistic definition of what constituted not only a ‘strike’, but
an ‘industrial dispute’ and ‘the jurisdiction of the Court’. While Higgins could, with some justification, blame Hughes and the
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THE REFUSAL His ARBITRATION Honor: ‘Come right in. The door’s open. I think you will get all
you want here.’ Boss STRIKER: ‘We won’t come in. We insist on breaking in. It’s no good you offering us anything. We refuse to take it except by violence. This is a test case.’ In this Norman Lindsay cartoon ‘His Arbitration Honor’ bears very little resemblance to Higgins; nor do the strikers look much like seamen. But the message that the Court is now the bastion of ‘law and order’ (in a different sense from that originally intended by Higgins) is clear. (Bulletin, 31 July 1919, title page.)
248 H.B. HIGGINS government for their failure to amend the Arbitration Act, it was more difficult, in the context of the seamen’s strike, to attribute the disaffection of militant trade unionists to any such legislative considerations. For a section of the trade-union movement the arbitration system was on trial, just as it had been, and in some cases still was, for employers. This was borne out when the compulsory conference reconvened on 6 June. The plebiscite had been a shambles, with the Brisbane, sydney and Melbourne branches refusing to conduct it, and the union declined to submit the dispute to arbitration. Higgins adjourned the conference, intimating that he would only call it again when better counsels prevailed with the men, and issued a public statement which, with unconscious irony, summed up the new
situation he found himself in:
I can only say that if the employers grant the claims in such circumstances they and the community will rue the day, as in the case of the coal trouble. Those who are in favour of ‘direct action’ will point to the gains as achieved by their pet policy, and the same kind of ‘stand-anddeliver’ demand will again be made, and soon.
What a reversal of rhetoric this was, the employers being urged to stiffen their sinews, and the trade union now characterised as the highwayman. It was little wonder, then, that in spite of Watt’s criticisms, there was some degree of conservative rallying behind the Court. The Argus thought it ‘incontestable’ that Hughes’s action in superseding
the Court in the 1916 coal dispute was ‘the direct cause of the
present rebellion’. The Sydney Daily Telegraph, which in 1917 had
likened the arbitration machinery to ‘a lot of legal scrap-iron ... littering the Commonwealth’, now saw the Court as representing ‘the democracy of Australia’ and dispensing ‘the law of the whole people’. D.K. Picken, Master of Ormond College, wrote to Higgins assuring him that ‘individualist, capitalist ‘“upper-class’, people’,
previously so vehement in denouncing his judgments, were now ‘foremost in reproaching Labour with ingratitude for all it owes you’.
It was, of course, convenient to interpret the Seamen’s Union’s defiance of the Court as ‘a strike against Democracy’. The twin ogres of Bolshevism and Sinn Fein loomed large in Australia in 1919, and
conservatives did not find it difficult to merge them into one conspiracy. ‘The Sinn Feiners and Bolsheviks in the community are “out” to bring chaos’, the Argus observed, and on another occasion it made its point by simply reciting the Irish-sounding names of the
Union’s leaders and tartly noting that ‘these names speak for
PROMETHEUS UNBOUND 249 themselves’. A speech by ‘the super-agitator from overseas’, Archbishop Mannix, sympathetic to the strikers, added fuel to the indignation of the Argus, which nevertheless saw the strike as a ‘Bolshevik rebellion’. Higgins never went as far as this in ‘explaining’ the strike, but he did, in retrospect, blame it on ‘the revolutionary dogmas of a few non-Australian leaders’. It is also worth noting
that he was unhappy with Mannix’s leadership (‘I have never known so bitter an anti-Catholic feeling as at present’), and although he discerned the historical reasons for the triumph of Sinn Fein in Ireland he was, by temperament, much more sympathetic to
the old Irish nationalists. So that while Higgins would have been distressed by the sectarianism exploited by the Argus, he was no longer sustained by the moral certainty of the old Home Rule cause. Higgins’s warning that employers would rue the day if they gave in to the seamen produced a situation in which the task of mediation
passed from the Court to the government. It was to Watt that the Industrial Disputes Committee of the Trades Hall Council turned in its anxiety to find a way out of the impasse, but the acting prime minister told them that ‘we must uphold the law and support the Judge’s actions’. At another interview with leaders of the Seamen’s Union Watt implied some reservations about Higgins’s ‘rue the day’
statement (‘Whether he [Higgins] ought to have gone as far as he did is a question for himself’) yet nevertheless felt bound to explain and defend the judge’s position. The government and the THC
jointly applied to Higgins for a resumption of the compulsory conference on 7 July, though apparently with no formula for settlement in mind. Higgins made clear his pessimism, and once again the conference collapsed, but not before the judge had had a heated exchange with Walsh. At this stage the government, prodded by the press, began to feel
the need for some gesture of retribution against the Seamen’s Union. Rather foolishly it selected Walsh as the victim. On 18 July he was charged with encouraging the continuance of a strike, and, pleading guilty, was fined £100. A few days later he was charged with having repeated the offence, and this time was gaoled. Thus
another impediment was placed in the path of settlement. As the government floundered between mediation and retribution Higgins bombarded Watt and Senator E.D. Millen (who briefly assumed the leadership while the acting prime minister was ill) with advice. It seemed as if the president saw an opportunity for placing
the government in his debt, in a manner that would enhance his reputation and make it more difficult for Hughes, on his return, to dismember the Court. On one occasion he wrote commenting on a suggestion made by Earle Page, the leader of the embryonic
250 H.B. HIGGINS Country Party, for the appointment of a board of reference. Higgins
was anxious to show how this could be done under the Act, and without special legislation; it was important to conciliate Page and his friends ‘as they take a reasonable view privately’. Higgins approved the prosecution of Walsh, and advised how it could best be pursued, but he thought the government was mistaken in having
concentrated on him alone. The strategy he advised was to stand firm, while at the same time trying to engage the cooperation of the other trade unions: It might be well to call the men of the other unions together; to point out your appreciation of their efforts on behalf of the community; to state
that you have no desire to injure unionism, but to aid unions in all legitimate efforts for the workers; and to ask them for counsel. The work of the country must be resumed. Try to get their approval to efforts to get the ships manned, and to the prosecution of the other men responsible for the strike.
Throughout Higgins was at pains to justify his original award. He was empowered only to set a minimum wage with reference to changes in the cost of living. The wages paid to seamen elsewhere were irrelevant, and the labour market could only be taken into account in terms of some sort of bonus, which, he hinted, was all the Court could offer with respect to the seamen’s wage claim. How reasonable was Higgins’s position, and how unreasonable were the seamen? It is true, of course, that radicals in the labour movement saw arbitration as an obstacle to the furtherance of the class struggle and therefore were dedicated to subverting it. The
Court was ‘an invention of the decadent bourgeoisie’, and the seamen’s strike served to expose it as such: ‘under the Presidency of
a less upright man this hypocrisy would have been unmasked before’. But given this overall strategy, Walsh and his confréres had
chosen their ground well. For the difficulty in establishing a
procedure for the settlement of the dispute in some measure lay in a conundrum Higgins himself had created. So much of the logic of his decisions flowed from the Harvester standard of a fair and reason-
able minimum wage: this was at first a challenge, but later a limitation. Higgins was sensitive to any suggestion that arbitration would make workers wage-slaves in ‘the servile state’. As we have seen, he was, as a result, anxious to make it clear that workers were entitled to seek wages from employers above the minimum he had set. But were they entitled to do so only as individuals? Any dispute
arising from workers seeking such above-award payments was distinctly ambiguous, and, indeed, by Higgins’s definition, was not
a dispute he could deal with. In turning to the Controller of Shipping, the union was following the advice of the Court that the
PROMETHEUS UNBOUND 251 award did not prevent workers from free bargaining with their employers, yet when it did so it was told that the dispute must be referred back to the Court. Higgins in his utterances seemed to offer little hope that he would be more liberal in 1919 than he had been in
1918; indeed, his ‘rue the day’ message to employers implied a determination to defend the Court’s line. When Walsh addressed the court which had just sentenced him, he exploited this conundrum, and, speaking as ‘the mouthpiece of the silent’, sounded plausible, even convincing. This plausibility placed the rest of the trade-union movement in a difficult position. Higgins made much of the fact that, in contrast to 1917, there were no strikes in sympathy with the seamen. But it seems unlikely that trade-union leaders, however unhappy they might have been with Walsh’s tactics, could have countenanced blackleg labour to break the strike. The mainstream labour press,
while implying that it might have been a mistake to flout the
Arbitration Court, resented the suggestion that the strike weapon had become illegal. Whether a union chose to seek justice ‘by the arbitrative process or by withholding their labour is PURELY A MATTER OF POLICY, involving no ethical considerations whatever’. Unions such as the Australian Workers’ Union, which had done well from the Court, had no desire to see the arbitration
system destroyed, or even weakened, but they could not be expected to assist in the defeat of the Seamen’s Union. Perhaps the government was more realistic than Higgins in its assessment of the mood of the labour movement, for once it had demonstrated its firmness in gaoling Walsh it immediately became more conciliatory. On 25 July Millen met the union leaders privately. He proposed that if the seamen returned to work the government would arrange a conference with the union which would consider the log of claims. Whatever the conference decided would be filed with the Arbitration Court and certified by the president,
while matters unresolved would be arbitrated upon by him. It seems the union was given to understand that its demand would, in
large measure, be met, so that it had, effectively, succeeded in bypassing the Court. Higgins was consulted about this procedure, and presumably acquiesced in it, but nevertheless disapproved of the settlement. The union accepted the government’s proposal. The drama, however, was not played out. The seamen refused to man the ships until Walsh had been released, and this the government declined to do: having lost the strike, it needed all the more to keep the tattered flag of ‘law and order’ flying. Desperate moves were made on all sides to find a way out of this new impasse. Adela Walsh visited her husband in prison, and came away with a signed
252 H.B. HIGGINS statement that he would, if released from gaol, undertake to facilitate the proposed conference. This was not enough and Adela, now accompanied by Maurice Blackburn, saw Walsh again with a
view to persuading him to remove the stipulation that the settlement was conditional on his release. The government was now totally perplexed, and Millen vacillated. Clarkson advocated deregistration of the union and a “proclamation calling on the people to assist’. Millen’s alternative was ‘to sit tight and do nothing’, but he seemed to favour some sort of call for public assistance: ‘I think it could be properly stage managed. Before the appeal is made a few hundred men should be organised. It would have a great effect.’ Application was made to Higgins for deregistration, but he displayed his usual reluctance to pursue this course. Instead he suggested that the owners apply to the Court for any variation or revision of the award. In the end a tacit compromise was reached: the men returned to work, and soon after Walsh was released from gaol.
If the events of this strike have been recounted in some detail, it is because they vividly portray the uncertainties of industrial relations in the wake of the war. In choosing to attack the arbitration system
the Seamen’s Union could cunningly exploit the ambivalence of both employers and government to that institution. It was easy enough for newspapers such as the Argus and Daily Telegraph to change their editorial tunes, but many employers remained profoundly suspicious of the Higgins court, and some, at least, still hoped for the abolition of the Commonwealth system. The government’s policy (or lack of policy) since 1916 reflected this confusion, and it is remarkable that at the very moment when he was insisting
on the union submitting to the Court, Watt should make such a critical review of the wage-regulation system. The exchange be-
tween Higgins and Watt revived memories of the president’s running feud with Hughes, and tempted the expectation that Watt would imitate his leader in circumventing the Court. On the other
hand if the government were serious about making a stand it
seemed foolish not to accept Higgins as an ally, particularly as it could then exploit the goodwill some union leaders still had for the
Court. The problem was that government leaders were uncertain whether public sentiment could be effectively mobilised against the seamen; there was a reluctance to revive the bitterness of 1917 without the moral security afforded by the war cause. The labour movement, on the other hand, seemed paralysed by the strike—unable to throw in its lot with the seamen, yet equally unable to acquiesce in their rout. Many union leaders had a large investment in the Court, and still had immense respect. for its president, but they could only be perplexed, even alarmed, by: his
, PROMETHEUS UNBOUND 253 intransigence. For what the 1919 strike revealed was Higgins’s capacity for inflexibility in a crisis. Higgins was not given to seeing himself as mediating, but rather as dispensing justice. It therefore did not perturb him that his stance effectively prevented the Court from playing any part in the settlement of the dispute. He was trading on the popularity that the Court had enjoyed, with the hope
that if he could persuade the government to remain firm, the
authority of the arbitration system would be restored; in which case,
having thwarted the non-Australian revolutionaries, he could return to his proper business of dispensing social justice to a grateful labour movement. If the Court had made concessions Higgins might have been able to retain some measure of control over the movement of wages in the shipping industry; as it was, the government’s surrender had a chain effect, leading to similar demands by marine engineers, cooks and stewards, and officers, all of which the government was forced
to meet. It was easy enough for Higgins to point the moral that ad hoc settlements, made without reference to the framework of wage regulation, created industrial havoc, but his own inflexibility had
not, in the end, helped matters. Yet even while Higgins was scolding the Seamen’s Union, he was telling a university audience
about the realities of social class, and appealing for a greater middle-class understanding of the conditions under which working people spent their lives. The apparent irrelevance of the Arbitration Court to the pacifica-
tion of the shipping industry, whether to be blamed on the government’s irresolution or the Court’s inflexibility, seemed to confirm Hughes, on his return, in his intention to limit its operations. 1920 saw the long-promised legislation, about which Higgins was not consulted. Dominating this legislation was the Industrial Peace Act, which empowered the government to appoint special tribunals for the settlement of particular disputes. This was the very thing which Higgins had striven to avoid—an apparent legitimising of Hughes’s wartime interventions in industrial relations, and an invitation to unions dissatisfied with the Court to seek relief outside it. In a statement delivered to the Court on 25 October 1920 Higgins announced his intention to resign the presidency ‘as soon as I have
completed certain matters partly heard’. He condemned the new
Act, arguing that the objectives of a permanent Court and a temporary tribunal were incompatible—‘one seeks to provide a just
and balanced system which shall tend to continuity of work in industries generally, whereas the other seeks to prevent or to end a
present strike. in one industry’. He recalled how his ‘honoured ‘friend’, Alfred Deakin (who had only recently died) had called him
254 , H.B. HIGGINS |
years: |
to the task of arbitration in 1906; his second term as president would
expire in September 1921, and ‘nothing but the strongest reasons would induce me to abandon the trust before the appointed time’. His peroration eloquently distilled the frustrations of the last four It is true that the work is very exacting, and that a release from the duties will bring me much more leisure than I have known for many years, with
relief from intense strain and from partisan abuse. It is true that the Prime Minister has not consulted either Mr Justice Powers or myself as to
the details of any of the Bills, or asked for suggestions ... It is true that the Government has neglected for years to relieve the congestion of business in the Court by taking steps for the appointment of a sufficient number of Deputy-Presidents. It is true that in August, 1917, I sent in, at the request of the Prime Minister, suggestions for the improvement of
the Act, and that nothing has been done until now, and that several other urgent suggestions based on my actual experience have been
ignored or mishandled. It is true that since I refused to carry out his will
in the case of the waterside workers, in September, 1917, the Prime Minister has not given me any idea of his intentions as to the Court, and that he even intimated (September 28, 1917) that he might give Parliament an opportunity to consider the advisability of removing me from
the Court. Yet I do not think that even such treatment would justify my resignation; my resignation is due to my opinion that the public usefulness of the Court has been fatally injured.
From all sides, it seemed, came messages of support. Labor Call and
the Worker expressed their regret, the latter characterising his
departure from the Court as “The Hounding Down of Judge Higgins’. The Age, while avoiding any verdict on the merits of the dispute between president and prime minister, delivered a paean of praise for Higgins, while the Argus admitted that in the dispute ‘public sympathy has generally been on the side of the president of the Court’. Even the employers’ Liberty and Progress applauded the
emphasis placed by Higgins on the need for consistency in the operation of wage regulation. Some wrote specifying their particular
detestation of the prime minister: the Labor member, Maloney, boasted that he had opposed Hughes ‘ever since the last days of the Watson Ministry’, while from England Ramsay MacDonald assured him that “you unfortunately have a Prime Minister of that type of small vain hustling personality with whom every man of decent task and self respect and dignity must in the end inevitably quarrel’. In distant Boston the Christian Science Monitor printed his resignation
speech in full. Of more immediate significance were the tributes from the presidents of the Queensland and Western Australian
courts, both of whom had aligned themselves, in spirit, with
PROMETHEUS UNBOUND 299 Higgins. T.W. McCawley described Higgins as ‘the sheet anchor of the Arbitration system, keeping your head when others were losing
theirs’; R.B. Burnside, choosing another seafaring metaphor, thought it a case of dropping the pilot before the bar had been safely navigated. But the statement by Higgins did not signify the end of the game.
As Hughes and Cook were quick to point out, Higgins had not actually resigned; he had merely stated his intention of doing so. The government refused to acknowledge the situation until it had the resignation in its hands. Higgins grew indignant again, and there was the usual public exchange between president and prime minister; the press tut-tutted, piously expressing the hope that other judges would not imitate the practice of replying to ministers from the bench. There was more to this than meets the eye. Among the ‘certain matters partly heard’ which Higgins was determined to complete was the timber workers’ case. Well before making his statement it had become clear that the president was setting up this hearing as a test case for the reduction of hours from 48 to 44 a week, at least in industries involving the use of ‘time-saving machines’. Higgins had taken the unusual course of inviting employer organisations and trades-hall councils to be represented. The government declined a similar invitation, refusing to recognise that Higgins could make anything resembling a common rule. The government would clearly have liked to have seen this case transferred to a more dependable
judge. Starke, now a deputy president, suggested privately to Higgins that if the hours question was to be considered he should be associated with the inquiry, but let the cat out of the bag by adding
that ‘a decision in favour of the reduction of hours would greatly embarrass your successor’. Higgins had clearly worked out his strategy carefully, and replied to Starke with some relish: ‘My first impression was one of pleasure to think that you might sit with me as to 44 hours. But how is it possible?’ He went on to point out that only he had power to make an award in the timber workers’ case (there was no provision under the Act for more than one judge to hear a case) and that the government would take advantage of any departure from the letter of the Act (which was, possibly, what
Starke was hoping to encourage). As for him embarrassing his successor, a difference of opinion between judges might be awkward, but that was the penalty for judicial freedom ‘on your part as
well as mine’. This was a neat and cunning rejoinder, but also disingenuous, in that his rationale for making so much of the timber workers’ case was that the ‘Court’ had to consider the more general introduction of a shorter working week—but if he were on the brink
256 H.B. HIGGINS of resigning, who was to be responsible for this?* In timetabling his
departure from the Court, Higgins was making sure that his
influence would survive, if only in the form of a legacy which his successors either would have to accept or, with inevitable unpopularity, renounce. Higgins had always been contemptuous of ‘labour-saving devices’, which did not so much save labour for the worker as increase the profits of his employer, but he recognised their inevitability. He had, in the past, been reluctant to grant the 44-hour week because, he implied, such a momentous decision should really come from the legislature. But failing such a lead, he thought the Court obliged to consider whether the worker should share the fruits of technology. He was also fortified by his study of the situation overseas: ._ I confess that before opening this inquiry I had no idea how widely the movement for reduced hours has spread, or of the number of undertak-
ings in Great Britain, Canada, and the United States in which the employees have secured the maximum of 44 hours. In May last, I spoke of the 48-hours’ week of Australia as long envied by workers in other countries; but there are indications now that Australia will shortly envy rather than be envied.
If machinery were to make work more boring, it should at least finance the cultural enrichment of the worker: The people of Erewhon, according to Butler, scrapped all the machinery that had come into use since 1600, and forebade any more. If it increased production in quantity—can it be said to improve the product in quality?
Does it improve the worker in quality—does it satisfy his craving for self-expression? Should he not have sufficient leisure from his work at the machine to satisfy this primal craving?
After lengthy consideration of the possible objections, Higgins granted timber workers the 44-hour week, and applied the same logic to other cases before him. This was Higgins’s parting gift to the labour movement, which showed its appreciation in various approaches to the government to
find some way of preventing his impending resignation. But
Hughes had no intention of making any last-minute peace with the judge who had been such a thorn in his side. Nor is it likely that Higgins would have stayed, if asked: he was approaching seventy, and he could hardly relish the prospect of another seven years of the ‘hard labour’ of arbitration. To A.E. Zimmern he confessed that ‘at my age I could not expect to stand much longer the intense strain of * In A New Province Higgins talks about the ‘Court’ in this context; yet in his private correspondence with Powers and Starke he always made it clear that one judge’s
decision could not bind another judge.
PROMETHEUS UNBOUND 257 the last thirteen years’. Some illness in 1920 no doubt confirmed this
prognosis. In effect his resignation had been a tactic, designed to
publicise the case against the new industrial legislation, and, perhaps, inhibit the government’s setting up of special tribunals. For, by the time he cleared his desk, he had virtually seen out his second term: well might Hughes have been a little sceptical as Higgins delayed formally submitting his resignation, while generously extending the benefit of the 44-hour week to as many workers
as he could. :
In fact it was not until 15 June 1921 that he spent his last morning
in court; after the parties before him had offered some suitable farewells, Higgins concluded with a final attack on the government’s policy, making quite clear his hope that his resignation had
alerted the country to the dangers of special tribunals. In the
afternoon he sat down and wrote his letter of resignation—nearly eight months after his original statement of intention. The attorneygeneral, Groom, submitted the resignation to the Executive Council on 29 June, when it was duly accepted, and Powers nominated to succeed him.”
The next day, 30 June, was his seventieth birthday, and the anniversary of James’s death. The Promethean mission was finished, and even if its success remained in doubt, he could be satisfied that he had carried the torch, proclaiming what the Irish
poet A.E. called ‘the golden heresy of truth’. The chains which had bound him melted away, and he was free again. For if he had been
fettered to the rock, that had been his choice. The role of Prometheus had been one that he recognised and embraced, and, by the same token, could he now discard it. The sickly child, having now completed the biblical three score years and ten, might well have felt that he had assuaged the ghosts of the past and earned some degree
of contentment. |
The arbitration system remains to this day a curious but apparently permanent part of the institutional framework of Australian society.
Few seem entirely happy with it, but even fewer would risk dismantling it altogether. Not many months after Higgins’s death in 1929, the Bruce-Page government, in a fit of pique, decided that the Commonwealth should quit the field of industrial relations, leaving such matters to the States: it was none other than the wily Hughes
who, seeking to even scores with his Nationalist successors, brought down the government in the defence of the Court Higgins * Powers had resigned as deputy president on 20 April 1920, and had been briefly replaced by Starke, who also resigned on 3 March 1921. Gavan Duffy and G.E. Rich became deputy presidents on 6 August 1921.
298 H.B. HIGGINS had built. Hughes sensed, correctly it seems, the grudging consen-
sus which underlay the system. More than anyone else it was
Higgins who had created this consensus. It has already been remarked that in the crisis of the war years many members of the bourgeoisie addressed themselves to the problem of how Australian capitalism could be revitalised in the coming peace. At first the abolition of the arbitration system seemed an obvious requirement; if there were to be any regulation of wages it was preferable to rely on the homelier and more manageable
boards developed in Victoria. But in the wake of the war a reassessment was made. Delprat, who had perhaps more reason to resent the Higgins court than most other employers, persevered with a Single Purpose League, dedicated to the abolition of compulsory arbitration.* But in 1922 the Victorian Chamber of Manutfactures was deeply divided on the question, and there were signs that employers were coming to accept arbitration as a given factor in any restructuring of Australian society.
There were probably two reasons for this change. On the one hand employers had reluctantly to concede that arbitration did appear to enjoy a large measure of public acceptance. The agonised inconsistencies of newspaper leader writers over the years reflected their inability to come to terms with this acceptance; by the same token Higgins could afford to be forthright and distinctly unorthodox in his judicial behaviour, simply because he recognised, like a politician, the extent of the Court’s constituency. On the other hand employers, faced with what they saw as rampant Bolshevism and Irish sedition, were increasingly obsessed with how best to discipline the workforce and make it more efficient, and they began to realise that arbitration, however cumbersome, could be harnessed
to this purpose. And Higgins, in his stand against strikes, drew their attention to this aspect of the Court’s role. So it is interesting that Irvine, who had earlier dismissed the Court as a legal sham, could now find merit in its work. Furthermore, if the state were
going to be required to play a greater role in disciplining the working class—and this, for many conservatives, was the lesson of the war experience—then the arbitration system, properly marshal-
led, could become a significant instrument of capitalist law and
order. This, of course, had never been the perspective of Higgins: for him arbitration was intended to liberate, not enslave, the worker. But his
approach had been characterised by a certain paternalism, which * Prominent in the League was another important figure in the history of the Higgins court, H.V. McKay, who, it seems, in the first place enlisted Delprat’s support.
PROMETHEUS UNBOUND 259 assumed that labour ought to be able to appreciate what was being
done for it. When it failed to do so Higgins faced a crisis of
conscience: how was the Court to impose its will? Sometimes he characterised this as a psychological problem (Hughes did not understand the psychology of the workers, he was wont to say) and he was prepared to be patient, hoping, ultimately, that the workers would be brought to reason. While waiting for the completion of this process, or when forced to recognise that the workers had a different perception of reason, Higgins had to reconcile the rights of the worker with the authority of the Court. Was there, as far as Higgins was concerned, a right to strike? He was adamant, of course, that a union could not strike and have arbitration as well, but, as he pointed out, the strike was not, per se, illegal under British law. The 1915 controversy over the wharf labourers’ refusal to load wheat at the award rate had revealed, too, that the mere fact of an award did not commit workers to accept employment. When in 1919 an employers’ representative asked how could it be said that a dispute was settled when members of the
union went away with the idea that they could still go to the
employer and make individual bargains, Higgins was as firm as ever: ‘Iam not here to find men for you to do your work. You have to attract the men to come to your work.’ In the original wharf labourers’ case Higgins had referred to the case of an individual
man or ‘a class of men who make wheat carying a speciality’. But if an entire union held out for more than the award, and did not seek arbitration, what was the status of such a dispute? In defining his task in terms merely of setting the minimum, he was in danger of stimulating a new range of disputes over which his court disowned jurisdiction. Sensitive to this, Higgins suggested, as we have seen, that the definition of a strike under the Act be broadened. He was anxious to specify that the worker only had the right to negotiate above the award as an individual, and that any ‘combined action’ was a defiance of the Court. If such ‘combined action’ was construed as a strike (as it had not been in 1915) it would become illegal for workers enjoying the benefit of an award under the Act. Even so Higgins tended to see such a power as tactical: ‘the power to punish
is meant to deter rather than to avenge ... [and] has its greatest usefulness in the period before the punishment is inflicted’. The greatest penalty was always the refusal to arbitrate. This penalty became meaningless, however, if workers, encouraged by special tribunals, were getting better bargains outside the
arbitration system. It was something of a shock to Higgins that unions were beginning to demand more than the standard of ‘frugal comfort’ guaranteed by Harvester. Particularly irritating, even ‘dis-
260 H.B. HIGGINS astrous’, from the Court’s point of view, was the finding of the Basic Wage Royal Commission in 1920. Higgins, while in favour of some
sort of statistical inquiry, had resisted the appointment of this commission, which clearly he saw as analogous to a special tribunal, interfering with the policy of the Court. Although he was on good terms with the commission’s chairman, Piddington—they had been allies in the resistance to federation—he was appalled by its
finding for a basic wage 31 per cent higher than the Harvester equivalent. He put this finding down, however (perhaps out of tact
towards Piddington), to the Commission’s terms of reference, which did not ask it to establish ‘the necessary wage for an unskilled labourer’ but ‘the actual cost of living at the present time, according to reasonable standards of comfort’, a phrase to which he objected,
because it made no distinction between ‘what is reasonable for a porter and for a pattern-maker, for a messenger and for a mil-
lionaire’. The difference, it seemed, was between a ‘fair and
reasonable wage’ which was based on a standard of ‘frugal comfort’
and one based on ‘reasonable comfort’, though Higgins was not prepared to state it as baldly as that. The Commission did not recommend that its computed basic wage be entorced, but clearly it served to legitimise the claims of trade unions and stimulate their militancy.
Higgins had always been reluctant to relate wages to productivity. At the beginning this had been in the interest of establishing the minimum as sacrosanct. While the profitability of an industry as a whole was relevant to the setting of margins, his analysis concentrated on reducing such margins in the case of an industry in economic difficulties, rather than increasing them when the indus-
try was prospering. And he seemed definite that the unskilled labourer, once guaranteed his minimum, should not expect any greater share of the prosperity his employer might be enjoying. It was only in the matter of hours that Higgins really gave thought to the sharing out of the benefits of greater productivity. As a lawyer entering an uncharted territory, Higgins had been very conscious of the need to establish a set of principles to guide the Court in making its awards; although he recognised that his was no ordinary court of law it was nevertheless natural for him to work
in terms of the common-law tradition of precedent and case law. Consistency was of the utmost importance, and once he had created the whole network of precedent, any major change—as, for example, the introduction of a 44-hour week—required a considerable mobilisation of quasi-legal argument. While consistency was a virtue in so far as it helped unions to formulate their claims, the rigidity of the Court’s approach was ill adapted to an industrial
PROMETHEUS UNBOUND 261 crisis. The paradox was that the implied legalism of the Court was harnessed to an essentially legislative purpose. Higgins had never shyed away from this legislative function. Indeed it could be argued that the problems encountered by the Court after the war stemmed from the priority he gave it; arbitration was now more concerned with the setting of living standards than it was with the settlement of industrial disputes. Higgins assumed that if a fair standard of living was guaranteed the disputes would disappear. When they
failed to do so, but rather, multiplied, the whole system was challenged.
Given his performance in the seamen’s strike and the evident reappraisal of arbitration by employers, it would be tempting to conclude that the Higgins Court had betrayed the progressive tradition of its earlier days. It must be borne in mind, however, that if conservative newspapers and employers looked on Higgins with a kindlier eye after 1919 they were secure in the knowledge that his days in the Court were numbered. Furthermore, the unions’ attack on the standard of ‘frugal comfort’ set by Higgins distracts attention from the fact that until 1921 the minimum rates prescribed by the New South Wales and Victorian systems were still markedly lower
than the Harvester equivalent. The change in 1921 can hardly be attributed to Higgins, who was hearing his last cases, but rather to his successors, Powers and Starke, who saw their duty as being to reduce wages and quash the 44-hour week. The hours question had shown that Higgins was still searching for means of renewing the Promethean mission to labour. For all the difficulties which encumbered the Court, and for all the attacks made upon it, the controversy surrounding Higgins’s resig-
nation seems to have helped stabilise the consensus that arbitration had come to stay. In November 1921 parliament resoundingly defeated a move to abolish the Court. The battles Higgins had fought, from Harvester through to the Industrial Peace Act, had confirmed that this system, no matter how often it was pronounced a failure, had established a presence, the removal of which would create chaos. Federalism—or rather, that provincialism which Higgins had condemned in 1898—99—ensured that wage regulation in Australia could not be other than ramshackle and inefficient, but it was appropriate that it should be the Commonwealth Court which led the way in improving wages and conditions. Arbitration seemed attuned to the Australian temperament, recognising class conflict, but harnessing it to the search for the fair and the reasonable. Even when the labour movement had glimpses of a revolutionary vision, it felt the need still for the security of the arbitration system. After its
defiance of 1919 the Seamen’s Union, under Walsh’s leadership,
262 H.B. HIGGINS quietly returned to the Court. Once trade unions and employers accepted the fact that arbitration would not, perhaps could not, abolish strikes, the system could be accepted for what it was—a piece of regulatory machinery which, while at times appearing to blunt the effects of the class war, in fact simply made the conduct of
the war more complex and subtle. While this was much less than Higgins had hoped for, he might nevertheless have been satisfied that the institution retained some sort of self-image as a guardian of the standard of living: the Harvester perspective was never entirely lost. It was Higgins’s ultimate achievement that he played the major part in shaping an institution which helped define the Australian political tradition. But if, in the wake of his resignation, the institutional permanence of arbitration seemed guaranteed, the socialist critique of wage regulation would survive too. It was ironical that one of the fiercest expressions of this critique at this time came from his own nephew Esmonde. After his brief military service Esmonde had gone to Oxford, largely at his uncle’s expense. Very soon the ardent young radical had become a fully-fledged Marxist, and the boyish recklessness which had always seemed endearing now acquired a political cutting edge. His uncle-benefactor was implacably tolerant about Esmonde’s politics, even describing an illegal trip to the Soviet Union, which upset the Master of Balliol, as ‘decidedly plucky’. But he also counselled caution, particularly when it came to considering possible employment in Australia. There was no need to be “aggressive’ about his views, particularly with people on whom he could make no impression: Don’t come here as a man who has taken up Marxian principles; let all
the emphasis be laid on your career as a scholar. There is no need to abandon your Marxian principles; remember, they are not everything. If they are right, they will fight their way to the front, whatever we think of them.
This was hardly acceptable advice for the young convert who was likely to feel that his ‘Marxian principles’ were indeed ‘everything’.
And this good-natured but patronising view of his ideology could only serve to make Esmonde uncomfortable about his financial dependency on ‘Uncle Henry’. While it was difficult for him to reject his uncle in a personal sense, Marxism armed him to make an assault on his life’s work. So he penned what was clearly meant to be a shattering review of A New Province for Law and Order (which was published in 1922) for the English Labour Monthly, expecting to be deemed a ‘cad’ for doing so.
The book was ‘a pathetic document’, ‘an anachronism and a piece of mysticism’. He recounted the Court’s early successes: ‘Uncannily
PROMETHEUS UNBOUND 263 “fair-minded’’, Mr Justice Higgins went to immense trouble to “see both sides”, and to play his legalist game with scrupulous accuracy. Unquestionably, in the three or four years preceding the war, there
was no one more popular with the workers and the small middle class.” But, ‘E.M.H.’ argued, the more recent collapse of trade had exposed the hollowness of the benefits of arbitration. Although the legislation had encouraged union membership, the whole thrust of the Court had been ‘to break the principles of militant unionism’. ‘Under arbitration unionism has been emasculated; the court has almost succeeded in turning it into a mere convenience of capitalist social order, in destroying ideas of class, and in making labour mutely content with a subordinate status.’ But if subconsciously Esmonde hoped that this attack would encourage his uncle to discard him as a thankless hothead he was mistaken. ‘I much prefer your scornful words to a family “‘frameup”’,’ Higgins wrote, ‘and I admire your frankness and pluck.’ It was Ina who took Esmonde to task at a personal level, for while sympathetic to his communism, she did not think this excused his ‘senseless, ill-natured attack on Uncle Henry and his work’, particu-
larly as ‘his life of late has been one of loneliness and sorrow and disappointment’. If Higgins was hurt by the review his stoicism dictated that he not show it. Instead he argued with Esmonde, pointing out that he had, of necessity, worked within the system, ‘under existing facts’, in the interest of ‘workers who in the meantime ought to be fed properly and treated as civilized beings’. As he had put it in A New Province, ‘the morrow’s breakfast is of more immediate concern than the millenium’. (He was even capable of quoting Marx to defend his practical perspective: ‘Man makes his own history, but he does not make it out of whole cloth; he does not make it out of conditions chosen by himself, but out of such as he finds close at hand.’) Yet such a perspective, even if it challenged Esmonde’s humanitarianism, in a sense confirmed his fear that arbitration stabilised the capitalist system. Higgins had always been suspicious of theory and dogma. It had, in his younger days, taken him some time and effort to free himself from the bondage of free trade and laissez-faire, and although his radical conscience ensured that he looked on socialism with some degree of goodwill he nevertheless shrank from ideological commitment. He did not necessarily discount the possibility of a revolutionary future, but it was not something that engaged him, particularly at the end of his career. He was more concerned to point to the obstacles: ‘If revolutionary action should be ultimately necessary, it must become possible. The sinister movement of the Fascisti in Italy
264 H.B. HIGGINS should show us what forces have to be overcome.’ Such caution and
pessimism, however astute, were unlikely to appeal to the restless and ebullient young spirit, now relishing his liberation from the constrictions of family, class, even Australia itself. It was Higgins’s misfortune that he was the most convenient and powerful focus for Esmonde’s rejection. The rebel tried to explain to his bewildered parents: His [Uncle Henry’s] own tone in his letter is so incredibly fair and sporting and kind that it itself just increases my really sincere conviction that such liberal-mindedness, though a glory to the man who possesses it, is cruelly out-of-place and really, useless. As Uncle Henry sums up the best of what I was able to admire while I was in Australia, I guess I can’t help being presumptuous and nasty now I’ve come to hate or fear
nearly all of what I then admired.
The implication was that Higgins and his work for arbitration were historically irrelevant. If the harsh judgment of youth seemed unfair to the 70-year-old judge he could draw some measure of consolation from his own sense of history, for Esmonde’s surrender to ideology
was a product of the disillusion of war, just as the trials and tribulations of the arbitration system had been.
11
Judge
[\ JOINING the High Court in 1906 Higgins became member of anew but exclusive club. Established in 1903, it wasanot only the highest court of the land, but also, in Deakin’s words, ‘the keystone of the federal arch’. The High Court bench represented a legal elite, and, in these early years of the Commonwealth, an elite with a particular and crucial association with the writing of the Constitution. The Chief Justice, the eminent Queensland lawyer and politician, Sir Samuel Griffith, while not a member of the 1897-—98
Convention, was recognised as the author of the draft which provided the basis for its deliberations. Sir Edmund Barton had not only been leader of that Convention but was accorded the symbolic
honour of being the Commonwealth’s first prime minister. The third member of the founding trinity, R.E. O’Connor, like Barton from New South Wales, was also a member of the Convention; he was the kind of Roman Catholic lawyer whom Protestants could accept as an honourable man. All three were distinguished colonial
figures; all three could be described, at least at this stage of their careers, aS conservative in outlook. With the arrival of Isaacs and Higgins they were now joined by two much more radical and, in different ways, controversial figures.
The extent to which the careers of the newcomers had paralleled each other has already been remarked upon; both were Victorians, radical supporters of Deakin and friends of the labour movement; both had been members of the democratic vanguard at the Federal Convention of 1897-98. But whereas Higgins’s attempts to promote
his political career had been desultory and often self-defeating, Isaacs had pursued his ambitions much more systematically. As Victoria’s attorney-general he was cast in a more official role at the Federal Convention, and although he flirted with opposing the Bill both he and his particular patron, the Age, swung into the ranks of the Billites. To this extent Isaacs was historically more committed to the Constitution than the outsider Higgins: nevertheless his radicalism gave him a different perspective on the needs of federation from 269
266 H.B. HIGGINS that promulgated by the three founding judges. At the swearing-in ceremony in Melbourne Purves K.C., speaking on behalf of the Victorian bar, said that he felt like the patriotic citizen awaiting news, only to be told by the nurse that it was twins. ‘Both are intelligent, and both are beautiful.’ Gavan Duffy, later to
join them on the bench, added, ‘Both are doing well’. Yet Purves, taking his cue from this jest, recognised that it was Isaacs whose success was the more striking; his career was ‘an object lesson to our fellow-citizens throughout the empire’, a remark which suggests the erudging respect accorded a man who, if not a political maverick like Higgins, was, as a Jew, much more of a social outsider. Purves concluded his welcome to the new judges by saluting their undoubted capacity for work: ‘If he were the Chief Justice of Australia he could not have chosen two men whom he would rather have for his colleagues, because both of them were willing to do not only their work but somebody else’s as well.’ In his reply Higgins recalled his early days as a barrister when men like Holroyd, a Beckett and Higinbotham—all significant figures in his own career he might have added—were leaders at the bar, and when Purves was the brilliant junior. ‘It was good to find Mr Purves as juvenile as ever,’ he remarked, a trifle acidly. If he and Isaacs were twins, he hoped they would be Castor and Pollux, and that they would help rather than hinder the Court.” The image of Isaacs and Higgins as judicial twins was in some measure confirmed by the extent to which they found common cause in resisting the particular brand of federalism propounded by Griffith, and generally accepted by Barton and O’Connor. The Engineers case in 1920 is often seen as the twins’ triumph, after fourteen years of gradual undermining of the Griffith orthodoxy. Yet although it is easy enough to highlight the political assumptions which influenced the sometimes not so lofty deliberations of the Court, ideology and interpretation could offer their own complexities. While Isaacs and Higgins were both predisposed to see the Constitution in terms of changing national needs, they were capable of different appreciations of these needs. The Engineers case is only part of a mosaic of decisions, in some of which the two radicals revealed sharply contrasting attitudes. It needs also to be stressed that the constitutional cases which will be the primary focus of this * Another jibe made by Purves was that ‘there was only one man in Victoria who was grieved at the elevation of Mr Justice Higgins, and that was his unfortunate clerk, who was playing the part of chief mourner at his own funeral’. Could this have been the same dedicated clerk that 4 Beckett had bequeathed to Higgins twenty years earlier?
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