1870 The Hastings colonial by-election

By-election in New South Wales, Australia June 2021 June 2021 A by-election was held for the New South Wales Legislative Assembly electorate of The Hastings on 4 July 1870 as a result of the Legislative Assembly declaring the election of Horace Dean was void. Dean had been appointed the postmaster at Tinonee at the time of the nominations for the 1869 election and resigned the following day. The Committee of Elections and Qualifications held that because he had an office of profit under the crown at the time of his nomination meant he was incapable of being elected, or of sitting, or voting, as a member of the Assembly.Anne Twomey Anne Twomey (academic) The Constitution of New South Wales 2004 Federation Press 9781862875166 439 https://books.google.com/books?id=KayCZfZwafwC&pg=PA439 2020-09-21 Dates Date Event 10 December 1869 Nominations for The Hastings 11 December 1869 Horace Dean resigned as postmaster at Tinonee 23 December 1869 Horace Dean elected at the 1869 election. 21 February 1870 Petition lodged by Robert Smith with a £100 deposit.https://nla.gov.au/nla.news-article223286610 Petition: district of the Hastings New South Wales Government Gazette 45 23 February 1870 21 September 2020 455 Trove 24 February 1870 Question referred to the Committee of Elections and Qualifications.https://nla.gov.au/nla.news-article13201117 Legislative Assembly: petition The Sydney Morning Herald 25 February 1870 2020-09-21 2 Trove 6 May 1870 Report of the Committee of Elections and Qualifications was tabled and seat declared vacant.https://nla.gov.au/nla.news-article13204768 Legislative Assembly: electorate of the Hastings The Sydney Morning Herald 7 May 1870 2020-09-21 4 Trove 9 May 1870 Writ of election issued by the Speaker of the Legislative Assembly.https://nla.gov.au/nla.news-article223528035 Writ of election: The Hastings New South Wales Government Gazette 111 10 May 1870 2020-09-21 1051 Trove Horace Dean naturalised as a British subject.https://nla.gov.au/nla.news-article107134910 Late election for the Hastings Evening News 30 July 1870 21 September 2020 2 Trove 13 June 1870 Nominations 4 July 1870 Polling day 31 August 1870 Return of writ Committee of Elections and Qualifications The petition lodged by Smith raised two substantive allegations, that (1) Dean was an alien, being someone who was neither a natural born subject nor a naturalized subject and (2) at the time of his nomination and election Dean was the postmaster at Tinonee, an office of profit under the Crown. The Electoral Act of 1858 distinguished between a natural born subject, a "person born in Her Majesty's dominions or either of whose parents was so born", and a naturalised subject, a "person who in England is or shall be naturalized and every person made a denizen or having received a certificate" under the Aliens Act 1847 (NSW) and taken the required oath.NSW num_act teao1858n23179 Electoral Act of 1858 No 23 also identified as 22 Victoria No 20.NSW num_act aa1847n39102 Aliens Act 1847 No 39, identified as 11 Victoria No 39. The qualification to be a member was in section 8 which provided that:8. Every male subject of Her Majesty of the full age of twenty-one years and absolutely free being natural born or who being a naturalized subject shall have resided in this Colony for five years shall be qualified to be elected a Member of the Assembly for any Electoral District unless disqualified by section seventeen or eighteen of the Constitution Act or unless under section eleven or twelve of this Act he would be disqualified or incapacitated as an Elector. The relevant disqualifying clause was section eighteen of the Constitution Act which provided:XVIII. Any person holding any Office of Profit under the Crown, or having a Pension from the Crown during Pleasure or for Term of Years, shall be incapable of being elected, or of sitting or voting as a Member of the Legislative Assembly, unless he be One of the following official Members of the Government, that is to say, the Colonial Secretary, Colonial Treasurer, Auditor General, Attorney General, and Solicitor General, or One of such additional Officers, not being more than Five, as the Governor, with the advice of the Executive Council, may from Time to Time, by a notice in the Government Gazette, declare capable of being elected a Member of the said Assembly.https://trove.nla.gov.au/newspaper/article/230682673/13845563 New South Wales Constitution Act 1855 (UK) New South Wales Government Gazette 164 24 November 1855 21 September 2020 3110 Trove The committee consisted of Stephen Brown, Alexander DoddsAlexander Dodds, Thomas Garrett, John Lackey, William Macleay, William Piddington and William Windeyer. Dean had been born in the United States of America and his naturalisation in South Australia had previously been held to be invalid as based on forged documents.Twomey 2004 399 There did not appear to be any doubt that being a postmaster was an office of profit under the Crown and that Dean had resigned after the nomination. The question was therefore whether the disqualification applied at the time of nomination or only at the time of the polling. The final issue was whether the seat should be awarded to Smith, who finished 2nd of the 6 candidates, or if the seat should be declared vacant and a by-election held. In the committee Windeyer moved that the election of Dean was void because he was an alien and the seat should be awarded to Smith, however this was defeated by 4 votes to 3.Brown, Dodds, Lackey, Macleay. Piddington and Windeyer voted in favour, Garrett against. The report does not identify whether they disagreed that Dean was an alien or whether the seat should be awarded to Smith without a by-election. The committee then resolved, by 6 to 1,Lackey, Piddington and Windeyer voted in favour, Brown, Dodds, Garrett and Macleay against. that the seat be declared vacant because Dean held an office of profit under the crown at the time of his nomination.https://trove.nla.gov.au/newspaper/article/13204755/1460077 The Hastings electorate The Sydney Morning Herald 7 May 1870 21 September 2020 7 Trove The issue of whether Dean was an alien arose again as the central issue in the subsequent re-count.https://nla.gov.au/nla.news-article13205780 Is the late member for the Hastings now qualified to be elected a member of the Assembly? The Sydney Morning Herald 24 May 1870 21 September 2020 3 Trove Candidates Horace Dean had an uncertain history, with a number of claims subsequently disproved. In 1857 he was twice elected to the South Australian House of Assembly but was unseated by the Court of Disputed returns on each occasion, because his naturalisation was invalid as it was based on forged papers.Twomey 2004 399 In 1858 he had settled in Tinonee running a store and started the Manning River News.Ruth Teale Dean, Horace (1814 - 1887) dean-horace-3384 2020-09-21 He had been a candidate for the 1864 election for the Hastings but had polled only 23.3% of the vote.1864-5 Hastings 29 April 2020 Dean said at his nomination that he had obtained a certificate of naturalisation as an additional security to ensure he could not be disqualified on that ground. He called on the voters to return him by a large majority so that the unanimous will of an outraged people would be heard.https://nla.gov.au/nla.news-article13207299 Nomination for the Hastings (Abridged from the Macleay Herald) The Sydney Morning Herald 23 June 1870 21 September 2020 2 Trove Robert Smith was a Sydney solicitor.Chris Cunneen Smith, Robert Burdett (1837–1895) smith-robert-burdett-4613 2020-09-21 At the nomination Smith focused almost entirely upon the ineligibility of Dean, relying upon legal opinions given by Sir James Martin, Sir William Manning and Joseph Innes. He was interrupted throughout his speech. Smith did not appear to campaign in the region, instead returning to Sydney by paddle steamer.https://nla.gov.au/nla.news-article28419674 The Hastings election (from the Macleay Independent) The Sydney Morning Herald 28 June 1870 21 September 2020 3 Trove Result [[1870 The Hastings colonial by-election|1870 The Hastings by-election]]Monday 4 July1870 The Hastings by-election 1869-70 Hastings_1 2020-09-21The petition on 11 August stated a higher result, Dean 1,226 votes, Smith 482 votes.https://nla.gov.au/nla.news-article223530869 The Hastings petition New South Wales Government Gazette 197 16 August 1870 2020-09-21 1755 Trove Horace Dean (elected) 953 68.4 Robert Smith 441 31.6 1,394 100.0 0 0.0 1,394 47.5 The Committee of Elections and Qualifications held that the election of Horace Dean was void because he held an office of profit under the crown at the time of his nomination.Dean's margin over Smith increased from 30 votes at the 1869 election to 512 votes. See also Electoral results for the district of The Hastings (New South Wales) List of New South Wales state by-elections Notes References expanded Category:1870 elections in Australia Category:New South Wales state by-elections Category:1870s in New South Wales