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Les diagrammes suivants iiiustrant la mAthode. 12 3 1 2 3 4 5 6 I' ! *■ i ^ \^ National Library Bibliotheque nationale of Canada du Canada J'/ )c^, TAi a ■-> ' / -1^ •cii' ■w ^"-.■-t.-;rtWe>»iu^li '-TiiC-*.'W.«l' .'*■•«■*«■ ^ ■ f / \'-- r / <$'> T^E SUPREMACY OF GREAT BRITAIN ,* ; r1 ;f ^. f }\ ■■' % 1' -if/ * l: ■•rttiWKTrttftWt.BWfe ii-ii- " I look, I say, on the imperial riglits of Great Britain, and the privileges which the Colonists ought to enjoy under these rights, to be just the most reconcileable things in the world. Tlie parliament of Great Britain sits at the head of her extensive empire in two capacities : one, as the local legislature of this island, providing for all things at home, immediately, and by no other instrument than the executive power ; the other, and I tliink her nobler capacity, ia what I call her imperial character, — in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all, without annihilating any. As all these provincial legislatures are only co-ordinate with each other, they ought all to be subordinate to her ; else they can neither preserve mutual peace, nor hope for mutual justice, nor efifectually afford mutual assistance." Mr. Burke — Speech on American Tauation. 1 I. ■:^»':» ^■::^,^r~^-^ ' THE SUPREMACY OF GREAT BRITAIN NOT INCONSISTENT WITH SELF-GOVERNMENT FOB THE COLONIES. BY HENRY THRING. PUBLISHED FOR THE SOCIETY FOB THE BEFOBM OF COLONIAL GOVEBNMENT. r. , LONDON: JOHN W. PARKER, WEST STRAND. MDCCCLI. ■ >■,■ pjniliwiT r?T' I.ON DON ; SAVILL AND EDWAKDS, PRINTERS, CHANl'08 STREET. C0VI2NT OAKOKN. THE SUPREMACY OF GREAT BRITAIN NOT INCONSISTENT WITH SELF-GOVERNMENT FOR THE COLONIES/ A COLONY is a portion of the population of a country, which settles on distant lands, with the intention of forming a dependent political community. The leading characteristics of a colony, when viewed in relation to a scheme of colonial government, are three: identity of race; distance from; and dependency upon the mother country. If any of these be wanting, a community, although it may fall within the strict definition of a colony, does not come within the scope of this treatise. The first part of the definition excludes Ceylon, the East Indies, Malta, the Ionian Islands, and similar dependencies. In these, the greater jmrt of the cultivators and proprietors are not Englishmen, nor do those who are English reside there with the intention of founding a new community, but for purposes of trade or government. Distance also necessarily forms an element in the conception of a colony ; for if a community be settled so near the supreme government, as * Throughout these pages the reader is supposed to be acquainted with the provisions of the Colonial Bill printed in the appendix. These provisions were brought forward last year by Sir William Molesworth, in the shape of amendments on the ' Australian Colonies Bill,' and have not been substantially altered. B 6 to be directly subject to its control, there is no necessity for the interposition of a subordinate government; the nature of which alone forms the subject of this treatise. For ex- ample, a settlement such as that of the P^nglish under Crom- well in Ulster is excluded from any scheme of colonial government: which embraces only such communities, as being in other respects qualified, ai'e situated so far from the supreme government, that they cannot, in the nature of things, be made immediately subject to its action. Lastly, dependence enters necessarily into the description of a colony ; for if a body of men emigrate with the intention of setting up an independent government, or of submitting to a foreign country, they renounce the mother country, and form no part of her political system. This description of the characteristics of a colony, will lead to the consideration of the relationship between it and the mother country. Now, a system of communities, one of which is supreme, and the other subordinate, is sometimes styled an empire, and, in that sense of the word, I shall speak of Great Britain and her Colonies, as an empire ; calling the rights of the mother country over the colonies * imperial ' rights, and the rights of the colonies, as contradistin- guished from those of the mother country, * colonial' rights, and the nature of these two classes of rights will form the first subject for consideration. To begin with colonial rights : on this point, the language of the law of Eugland is very ex- plicit. In 2 P. Wms. 75, it is stated, * that if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England.' This general statement was somewhat qualified by liord Mansfield, in Campbell and Hall ; Howell's * State Trials,' vol. XX. p. 289, — but without any diminution of the rights of the colonists; he thus expresses himself: 'It is absurd that in the colonies they should carry all the laws of Eng- land with them ; they carry only such as are applicable to their situation !' Another authority says, * TiUt an Englishman go where he will he carries as much of law and liberty with him as the nature of things will bear.' — Chalmers' Opinions, 195, quoted in Clark's Colonial Law. These English authorities are in accordance with Vattel, i. 19, 21. • Lorsqu'une nation s'erapare d'un pays eloigne, et y etablit une colonic, ce pays, quoique separe de I'etablissement principal, fait natu- rellement partie de I'etat, tout comme ses anciennes posses- sions.' The conclusion to be deduced from these authorities is, that a colonist is entitled to all the privileges of an Eng- lishman, so far as is consistent with his position as a colonist, or, in other words, so far as is consistent with the unity of the empire, and the due subordination of its various parts. This follows so directly from the very definition of a colony, that any reference to authorities would appear almost to render doubtful what is already clear : for as distance alone constitutes the difference between an English county and an English colony, no reason can be suggested why the privi- leges enjoyed by an inhabitant of the one should be with- holden from an inhabitant of the other. What would Lanca- shire or Yorkshire say, if the other counties of England were to combine to deprive them of the right of representation, and subject them to the government of an irresponsible Vice- roy and an irresponsible Council ? Yet a Lancastrian or Yorkshireman need only go to New Zealand to suffer this injustice at the hands of his countrymen. B 2 How keenly this is felt by a colonist, appears from the following picture drawn by Mr. Martin, a late member of the Legislative Council of New Zealand : He says, * the British colonist is, politically speaking, a serf, or rather a slave ; for the feudal system, however barbarous it may have been, was in many respects preferable to the system of colonial government. It is true that the serf worked for his feudal lord ; but his labour and attachment were rewarded by a certain amount of kindness and protection, which the colo- nist has never yet experienced at the hands of his self- constituted masters — he is the slave in the hands of the overseer. To persons in England especially, if they are unacquainted with colonial matters, it may appear strange that a colonist should be spoken of in this manner: they cannot understand how persons, whom they have been accustomed to regard as enterprising and independent, can be represented in this unhappy light ; but it is, nevertheless, true, as every man finds to his cost, when he arrives in a new colony. An Englishman cannot sell his birthright, but he may be deprived of the best part of it by his government. He will be looked after, claimed, and taxed as a British sub- ject wherever he may be found ; but if he should determine upon leaving the united kingdom for any of the British pos- sessions abroad, let him not deceive himself by imagining that he will carry with him any of his political rights to the colony to which he may emigrate. A slave becomes a free man if he be fortunate enough to touch English ground ; but an Englishman, if he settle in an English colony, becomes politically a slave. ' The Government of England is called a mixed govern- ment; the power is equally divided between the monarch, the barons, and the people ; of these three estates the monarchy ' aloiio iti oxtendod tu the colonies : it is usually vested in a * viceroy or governor, in whose hands it generally degenerates 'into the purest and most absolute despotism.'* Resentment at this deprivation of constitutional rights has lately been expressed by New Zealand ; but is so far from being confined to that colony, England's youngest, most favoured, and fairest child, that it is shared by almost every dependency of the Colonial-office. New South Wales has already exjjressed her gratitude to Lord Grey for his legislation last year, by electing the demagogue Dr. Lang member for Sydney ; and the indignation of the Cape at her deceitful gift of freedom has found a constitutional vent by sending a deputation to England to lay her grievances at the foot of the throne. It is clear, therefore, that the colonies are dissatisfied with the present form of colonial government ; yet allowing this to be true, it may be said that such evils are necessary in- cidents to the relationship between a mother country and her colonies, and must be taken as a counterpoise to the corre- sponding advantages. Now, if it be true, that a colonist can- not enjoy all the liberties of an Englishman without throwing off' his allegiance to the English Crown, instead of advocating any change, I should not hesitate to uphold the present system; for such a system, defective though it be, is surely better than that which would hand over our colonies to a foreign power. On the other hand, * if the imperial rights * of Great Britain, and the privileges which the colonists ' ought to enjoy under these rights be,' (as Mr. Burke says they are,t) 'just the most reconcileable things in the world,' no expression can be too strong for the condemnation of a * Neto Zealand, by D. Martin, Esq., M.D. 12mo. t See extract at the beginning of the pamphlet. 10 government department, which, greedy of power, and covet- ous of patronage, regards the colonies as a sphere for the exercise of the legislative fancies of a colonial minister, and the appointments of the colonial government as a provision for such members of the aristocracy as are too ignorant or too idle to obtain promotion at home. Tnie it is that these facts may be disgraceful to the Colonial-office; and that imperial may be in theory com- patible with colonial rights : but this is not enough. The proposer of a new scheme of colonial government is cer- tainly bound to describe the framework of the constitution he proposes, and to explain the mode of its operation, as illustrated by practical examples. It appears, therefore, that two abstract questions must be determined — first, what are the rights of a colonist ? and secondly, assuming that Great Britain and the Colonies ought to form one United Empire, what rights of supremacy must be reserved to Great Britain to maintain that union ? or, in other words, what are imperial rights ? Having determined these two questions, the greater diffi- culty remains of adjusting these two classes of rights on a certain basis, by means of a written constitution, and pro- tecting such constitution from being invaded by the igno- rance, or petulance, of the colonies. The' first of the above propositions need not detain us now. A distinct principle has been shown to be laid down in the English law for our guidance in ascertaining the rights of the colonist; and it will be more convenient to postpone the consideration of them till we have determined the nature of the powers to which they are to be subordinate. By treating the subject in this order, I hope to show that after vesting in Great Britain all powers that are necessary to maintain her as the supreme 11 head of the empire, there still remain to be assigned to each colony such legislative and administrative functions as will leave the colonist little cause to complain that he has left any of his liberties behind him in the mother country. With respect to the second inquiry, the definition of imperial rights, greater diflficulty exists; as the imperial power is confessedly supreme, there is no rule of law to limit its extent, and argu- ments derived from considerations of political expediency are always vague and unsatisfactory. This objection applies with ten-fold weight to any attempt to frame a written consti- tution, as it is notorious that schemes of government, devised by the wisest men, have lamentably fJled in practice. All these difficulties, however, vanish at once if a precedent can be found suited to the present case; for there can be no rashness in adopting a form of government which has already received the sanction of experience; and little danger can be feared of misinterpreting a law which has frequently been discussed by competent judicial tribunals. No precedent, however, can be found exactly to meet a proposed case; it may be useful, therefore, before producing the precedent which I intend presently to apply, to con- sider the points of similarity which it is essential such a precedent should possess, in order that we may be able to distinguish thOse circumstances on which success depends from those which are merely accidental. Now, bearing in mind the definition that has been given above of an empire and of a colony, the precedent must at all events go far enough to prove the possibility of a system of communities, one of which is supreme and the others subordinate, being consoli- dated into one nation, without the sacrifice of the liberties of the subordinate communities or of the supremacy of the governing power. From this proof nothing will be detracted 12 •!« if in the precedent the subordinate communities enjoy larger powers of government than will satisfy the claims of the communities for which the new scheme is formed, as it follows necessarily that if such a union be consistent with a less degree of subordination in the inferior communities, it must be maintainable with a greater. Still less will the force of the example be weakened, if in the precedent the central power be vested in functionaries selected by the several communities themselves, instead of in one dominant community, or in other words, if the precedent be a federal system of states, and the proposed scheme an imperial system of colonies. In the former case, the union of the whole body depends on the co-operation of all or the greater part of the members, whilst in the latter the power of a dominant community is ever ready to reduce to obedience any member of the system that may interfere with the wel- fare of the rest. Now the precedent I propose to adduce is the constitution of the United States of America, and I have selected it as an example, not only because it is framed in the English language and based on the English law, but because it combines more completely than any government with which I am acquainted unity of the whole with a separate organi- zation of the parts. This combination has been effected by making the constitution of the United States a govern- ment over individuals and not over communities, or, in other words, by creating a national and not a federal su- preme government. This distinction between a national and federal government seems to require a fuller ex- planation. Suppose a number of independent states to form an association for the purposes of common protection, and to vest certain rights of supremacy over all the members iS of the confederation in some body of persons chosen by themselves. The government thus created is a federal government, and it differs from a national government prin- cipally in this, that it carries down its decrees not to indi- viduals, but to the states in their corporate capacity alone ; for example, if an individual transgress a federal law he is punished by the state to which he belongs, and not directly by the federal power; if a state disobey, the federal power does not act of itself, but calls on the other states to assist in punishing the refractory member. On the other hand a na- tional government recognises no communities, but addresses itself to individuals alone as its subjects, and makes its power felt by them through the agency of the ordinary ministers of justice. Now, the constitution of the United States being, as has been stated, national in its character though federal in name, has individuals and not states for its subjects, and exercises the same jurisdiction in matters of federal cognizance throughout all the states of the Union that a state government exercises within its own precincts in matters of state cognizance. It follows, therefore, that every x\merican has a two-fold citizenship — he is a citizen of the United States and a citizen of his own particular state, in the same way as a colonist is a member of a colonial community, and also a subject of Great Britain. The United States, in fact, is but another name for one vast empire, ruled by a supreme head, but made up of separate communities, enjoying large subordinate powers of government. The resemblance which such a state of things bears to a well-constituted colonial empire is evident, and I shall endeavour to show that, by substituting a monarchical for a federal power, and by creating in each colony a local government analogous in form to that of England in the X£P=^ 14 stead of a democracy, a relationship will be established between the mother country and the colonies as intimate as that between the several members of the American Union, and less liable in its nature to disruption. Having thus stated the general principle pervading the American Constitution, which makes it so apt a model for our imitation, the next step is to examine the provisions by which that principle is carried out in practice. In making this examination, the course I shall pursue is, in the jdrst place, to state, in the words of the constitution, the whole mass of powers vested in the federal government, and then to point out in detail the nature of such powers, and the method of adapting them to a colonial constitution. The enumeration of the powers would not be complete without at the same time adding the prohibitions imposed on the separate states, as, in many cases, the negation of a privilege to the one jurisdiction amounts in fact to conferring it on the other. The prohibitions, therefore, will follow the powers, and be treated of in immediate connexion with them. Now, in order to understand the clauses relating to the federal powers, it is only necessary to add, that the government in whom they are vested is composed of a president, and two houses of parliament, called Congress. The powers them- selves are by the 8th section of the Constitution vested in Congress, and are in the following words : — The Congress shall have power — 1. To levy and collect taxes, duties, imposts, and ex- cises, to pay the debts and provide for the common de- fence and general welfare of the United States ; but all duties, imposts, and excises, shall be general throughout the United States. ]5 2. To borrow money on the credit of the United States. 3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. 4. To establish an uniform rule of naturalisation, and uniform laws on the subject of bankruptcies throughout the United States. 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. 6. To provide for the punishment of counterfeiting the securities and current coin of the United States. 7. To establish post-offices, and post-roads. 8. To promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. 9. To constitute tribunals inferior to the Supreme Court. 10. To define and punish felonies committed on the high seas, and offences against the law of nations. 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. 12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years. 13. To provide and maintain a navy. 1 4. To make rules for the government and regulation of the land and naval forces. 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion. 16. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the E.. • i \6 authority of training the militia according to the discipline prescribed by Congress. 17. To exercise exclusive legislation in all oases what- soever over such district, not exceeding ten miles square, as may by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States ; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or offices thereof. The next section places some limitations on the Congress, which are not material, and the Constitution then proceeds, in section 10, to place certain restrictions on the States. Art. I. — No state shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. Art. II. — No state shall, without the consent of Congress lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be sub- ject to the revision and control of the Congress. No state ^f 17 shall, without the consent of Congress, lay any duty of ton- nage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. Such then are the provisions, consisting partly of powers and partly of restrictions, under which twenty-six republics have, some for the last sixty years, been incorporated into one nation, without losing their individuality or separate or- ganization. The fact of this incorporation having succeeded for so long a period, proves to demonstration the possibility of combining, under ^ federal hed^A, a number of republican communities. And it has been already remarked, that the same means must be still more effectual to secure union in an empire or system of communities, one of which is supreme, and the others subordinate. The determination therefore of imperial rights becomes a matter of certainty; it is only necessary to analyse the above clauses, and, excluding such as are unessential to unity, to transfer the residue to the colonial bill, distributing the powers amongst such func- tionaries of the mother country as are entitled by law to receive them, and imposing the restrictions on the colonies instead of the states. The unity of the empire being thus secured, the constitu- tion would be complete if the colonies were intended to be no more dependent on the mother country than the states are on the federal power. Such a degree of independence would however be destructive to the welfare of the colonist, and inconsistent with English law, the admitted standard of his privileges ; restrictions must therefore be added, to se- cure to the colonies the advantages of a monarchical form of government. 18 I II i This being done, nothing will remain to complete the scheme but to create in each colony a local government, resembling as nearly as circumstances will allow the govern- ment in England, with power for the colonists, within certain limits, to mould and adapt it according to their real or fancied wants. Before commencing the analysis which is to afford the materials on which a colonial bill is to be grounded, it may be well to mention a circumstance resulting from the very nature of a colony that is in favour of the proposed colonial scheme, as compared with the American constitution. In America the constitution was framed by the members of sove- reign states; all powers, therefore, granted to the federal* government were so much subtracted from the states, and, as a consequence, the states retained their original powers unimpaired, except in so far as they were delegated to the federal government. The government, then, of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. The result of this has been, that the most difficult questions that have arisen on the American constitution, have been questions as to the ability of Congress to do particular acts essential to the existence of an organized government, not as to the consti- tutional character of the acts done by the incorporated states. The distinction between the two classes of defects in reference to the existence of the body politic, is as great as the difference * After what has been said on the national character of the govern- ment of the United States, the use here of the term ' federal' is inaccu- rate. It has been adopted, however, in deference to common usage, and for the sake of distinguishing the supreme government from the state governments. 18 between paralysis of the heart, or the disease of an extremity, would be in reference to the health of the natural body ; any material defect in the federal government, would destroy the whole system, and resolve the United States into their sepa- rate elements ; on the other hand, any unconstitutionality on the part of a state might lead to a partial disarrangement of the harmony of the government, but would admit of easy cure if the central power were possessed of sufficient energy. Now, in a colonial scheme, the first class of questions can never occur ; a colonial government is the creation of the dominant community, and the same power that has con- structed the fabric, may at any time amend its defects, or destroy it altogether. The occurrence of the second class of questions is contemplated by the constitution, and the same means are provided for settling them peaceably, as have been effectual in America in maintaining harmony amidst the difficulties caused by the necessity of deciding on both classes of questions. Turning then from this digression to an ana- lysis of the above-mentioned powers and restrictions, we shall find that the powers will be found naturally to fall under four heads : 1st. Powers required to be vested in the supreme govern- ment by reason of local circumstances. 2nd. Powers relating to the intercourse of the United States with foreign nations. 3rd. Powers regulating the intercourse of the states amongst themselves. 4th. Powers relating to subjects on which uniformity of legislation throughout the states was considered desirable. In a similar manner, the prohibitions divide themselves into two heads : Ist Prohibitions necessary to give effect to the above powers. ' , I I 111 ) Ml SO 2nd. Prohibitions derived from the obligations of natural law. The powers that may be classed as local are the power to levy and collect taxes, and pay the debts of the United States. The power to borrow money on the credit of the United States. The power to establish post-offices and post-roads. The exclusive power of legislation in all cases whatever over such district, not exceeding ten miles square, as may by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States. These powers appear to be called with propriety local, as their necessity arises from the local position of the seat of the federal government, in the centre of the dependent states, without reference to its characteristic as the bond of union between numerous communities, and they may, therefore, as I have said before, be dismissed from our cons'.deration in framing a colonial constitution. The next class of powers are the foreign powers, which may shortly be described as powers of making peace and war, and regulating commerce. Some of these powers have, by the American Constitution, been allotted to the President, and it will be convenient, therefore, to introduce here the clauses relating to them, in order that there may be brought under our view at the same time the aggregate number of powers which regulate the intercourse of the American people as one nation with foreign countries. The provision is as follows : — ' The President shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur, and he shall nomi- nate and, by and with the advice and consent of the senate, shall appoint ambassadors and other public ministers and consuls.' 21 Now taking all these powers together the federal govern- ment have power — * To regulate commerce with foreign nations. * To make treaties. * To declare war.' And as subsidiary to the general power of making war, they have power to giant letters of marque and reprisal, to make rules concerning captures by land and water, to main- tain and regulate an army and navy, to organize and, in some cases, govern the militia, and, with the consent of the legislature of the state, to purchase such places as may be necessary for enabling them to take military possession of the country. In a like manner, the power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, may be considered as necessarily incidental to a power to regulate commerce ; and the nomina- tion and appointment of ambassadors and consuls, to a power of making treaties. These powers are the jura summi imperii — the very insignia of supremacy — and must obviously be exercised by the mother country, if any link at all be intended to subsist between the mother country and her colonies, or the former to have any powers at all over the latter for the common good, the common protection, or common action. Before however introducing them into the colonial bill, it is necessary to decide iii what department of the state they must be vested, and on turning to the records of the English law for authority on this point, we discover at once the source from whence they were derived by the Americans, and ascertain in whom they should reside consistently with English law. c M Mr. Justicu Blackstonu, in enumerating the prerogatives of the Crown, nays, with regard to foreign affairs, * the sovereign is the delegate of the people; the sovereign has the solo power of sending ambassadors to foreign states and receiving ambassadors at home/ Mt is also the sovereign's prerogative to make treaties, leagues, and alliances with foreign states.* Agair, * Upon the same jmnciple, the sovereign has also the sole prerogative of making peace and war, for it is held by all the writers on the law of nature and nations that the right of making war, which by nature sub- sisted in every individual, is given up by all private j)ersons that enter into society and is vested in the sovereign power.' A little further on he says, * But as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respect armed the subject with powers to impel the prerogative, by directing the i^i. listers of the crown to issue letters of marque and reprisal upon due demand, the prerogative of granting which is nearly related to, and plainly derived from, that of making war.' He then proceeds : ' That the prerogative of granting safe conducts stands exactly upon the same ground;' and concludes by stating, * That such are the principal prerogatives of the sovereign respecting the nation's intercourse with foreign nations, in all of which he is considered as the delegate or representative of his people.' Now, comparing the foreign powers of the American con- stitution with the above prerogatives, their resemblance strikes the atteu "on at once, and the idea immediately suggests itself that tie aurhors of the federal government having taken upon lieii» selves the task of creating a repub- lican empire out of the debris oi the British constitution, 93 transfurrcd the prerogatives of the crown almost in the words of Blackstone to their new federiil head. Such was, in truth, the obvious course for men to itlie who were versed in the prinoiplcH of English law; they wen- aware that as English colonists they had never been entitled to interfere with the prerogatives of the crown: in legislating therefore, for a systf u o\ subordinate republics with a paramount repub''oou Uc o, they were naturally led to treat the states as they had been treated as colonies, and to clothe the re- pul>lioan head with those powers which had previously been exorcised by the government in England. The proof of this is complete, when on coming to the next head of American powers, namely, powers regulating the intercourse of the states amongst themselves, it is found to contain the power to coin money, regulate the value thereof, and ot foreign coin, and fix the standard of weights and measures; with the subsidiary power of providing for the punishment of counterfeiting the securities and the coin of the United States; for this power of coining money, and regulating weights and measures, are both classed by Mr. Justice Blackstone as amongst the prerogatives of the Crown as arbiter of domestic commerce. These powers have, of course, been given to the Crown in the colonial bill, and it may be remarked here, that the powers enumerated under the two last heads are the peculiar "^tributes of sovereignty, which, under the name of ' pre- rogatives,' * imperial rights,' or ' federal powers,' every state or system of states, delegates to the supreme authority. The last head of powers, namely, powers on which uni- formity of legislation throughout the states was considered desirable, comprises he power to promote the progress of science and useful arts, by securing, for limited times, to c2 ] u 24 \ : I ■ I 11 I .!' ^i authors and inventors the exclusive right to their respective writings and discoveries, and the power to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States. The danger intended to be provided against by vest- ing the two first of these powers in congress is obviated in the colonial bill, by a restriction preventing the colonial parliament from conferring any privilege or immunity on the inhabitants of the colony, that is not equally conferred on the other subjects of her Majesty. The power of establish- ing uniform laws on the subject of bankruptcies has been omitted, as the propriety of its insertion depends upon local circumstances. The importance of identifying the imperial rights with the prerogatives of the ci'own will not be fully under- stood, without recurring to what was stated at the outset, as to the rights of a colonist, and the necessity of making them the basis of a colonial constitution. It was there laid down as a principle of English law that a colonist is entitled to all the privileges of an Englishman, ho fur as is consistent with the iinitij of the empire, — implying by the limitation a certain antagonism between English privileges and imperial rights, calculated to give rise to great difficulty in constructing a scheme for their adjustment. This difficulty, however, would be removed, if it appeared on investigation, that imperial rights were a class of political rights, from any interference with which an Englishman was debarred; for in that event the limitation would be needless, and as no conflict would exist between English privileges and imperial rights, there would be no necessity for any adjustment of them. Now this is the j)oint which has been proved by the \^ I 25 establishment of the identity between the imperial rights and the prerogatives; for, as it is a settled rule of English law that no subject may interfere with the prerogatives, a colonist cannot complain of being placed under a like restric- tion as respects imperial rights. On the other hand, as the prerogatives are the only political rights of which the exercise is denied to an Englishman, it will be seen that in the colonial constitution none but imperial rights have been placed out of the reach of the colonist. Passing from the powers to the prohibitions, the first head has been already considered in treating of the corre- sponding powers, the second head — namely, prohibitions derived from the obligations of natural law — forbids the states fi-om passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts. Of prohibitions coming under the second head, the first only — namely, that relating to bills of attainder, has been introduced into the colonial restrictions, and as an explana- tion of its meaning will be found in its proper place, it is needless to notice it here. The success which attended the Americans in making a republican empire, out of the fragments of the British constitution, affords reasonable ground for hoping that a restoration of the colonial edifice promises at least equal advantages. To accomplish this, it is only necessary to retrace the steps taken by the Americans, They stripped the monarch of his crown to place it on a federal head. They converted monarchical colonies into republican states, with scarcely any increase in their real powers of govern- ment. We must reserve to the Crown its rights, and give to the colonies the same powers which were enjoyed by the American colonies before their conversion into states. This has been accomj)lished by the 2t)th section of the I m '5 ^f 26 Colonial Bill, which reserves to the Queen as prerogatives the powers vested by the American constitution in the federal head. The clause is as follows : — That there shall be reserved to her Majesty the several powers and prerogatives following. 1. The power of sending and receiving ambassadors to and from, and of making treaties, leagues, and alliances with any foreign state or power. 2. The power of making peace and war. 3. The power of granting letters of marque, and re- prisal during peace or war, and of granting safe conducts in time of war. 4. The power of confiscating the property of alien enemies, and of laying an embargo on shipping. 5. The power of keeping any land or naval forces in the said colony or on the coasts thereof. 6. The power of enlisting men in the said colony for the supply of such forces. 7. The command at all times of all regular military and naval forces, employed in or about the said colony, and the command of the militia in time of war. 8. The power of erecting forts, magazines, arsenals, dockyards, and other buildings for military or naval purposes. 9. The exercise of exclusive jurisdiction within the limits of any place occupied for such purposes. 10. The power of taking any waste laud, and likewise, on making due compensation, any other laud for the purpose of erecting thereon such forts, magazines, arsenals, dockyards, and other buildings as aforesaid: and for any other military or naval purposes. 11. The power of determining all cases brought before her Majesty, on appeal from the courts of the said colony. 1 2. The [)Ower of establishing prize courts. 27 1 3. The power of coining money, and of regulating the value of foreign coin. 14. The power of granting letters of nobility. 15. The power of regulating the transmission of letters by sea between the said colony and other places. And all powers necessary for giving effect to the above powers and prerogatives. The reader will perceive that in the enumeration of powers, the language of Mr. Justice Blackstone in defining the prerogatives of the Crown has been adopted in preference to the language of the framers of the x\merican constitution in declaring the powers of the federal government, as being more in conformity with English law. The difference, how- ever, in language even is very slight, and as the same argu- ment will apply to both sets of powers, it is unnecessary to repeat them here. In section 28th of the Colonial Bill will be found the restrictions on the power of the colonial parliament, and as they are more numerous than the prohibitions in the American constitution, they will require a more extended notice. The clause is as follows: — The parliament of the colony shall not have power to do any of the following things. That is to say — 1. To pass any law affecting or derogating from the powers and prerogatives so reserved to her Majesty as tifore- said. 2. To alter the mode of the appointment of the governor. 3. To control his power of calling together and pro- roguing the Houses of Parliament, or of dissolving the House of Assembly, or of assenting to or dissenting from bills passed by the said two Houses, oi to take from him the power of granting reprieves and pardons. ' r' 28 4. To pass any law altering the succession to, or affect- ing the style or dignities of the Crown of Great Britain and Ireland, or relating to the appointment of a Regent. 5. To absolve any person from his allegiance. 6. To define treason, or alter the law relating thereto. 7. To pass any act of attainder. 8. To pass any law containing anything contrary to the law of nations, as received and administered in the Courts of Great Britain. 9. To define piracies and felonies on the high seas. 10. To pass any law respecting captures by land or water. 11. To pass any law affecting the command, regulation, discipline, or enlistment of her Majesty's military or naval forces. 12. To lay any duty on supplies for her Majesty's mili- tary or naval forces. 13. To make anything but gold and silver a legal tender. 14. To make any judge's tenure of office dependent on anything but good behaviour, or to diminish his salary during his continuance in office. 1 5. To lay any differential duty on exports or imports to or from any part of her Majesty's dominions, or any duty in- consistent with any treaty that already has been, or may hereafter be entered into between her Majesty and any foreign country. 1 6. To confer any privilege or inununity on the inhabit- ants of the colony that is not equally conferred on the other subjects of her Majesty. 17. To establish slavery. 18. To repeal or alter any of the provisions of this act, except those expressed to be subject to alteration by the 29 parliament of the colony ; and any enactment of the parlia- ment of the colony containing anything in contravention of this clause, shall be void. It would far exceed the limits of the present work to enter into a detailed explanation of the above restrictions, or to defend the introduction of each article. I shall confine myself therefore to pointing out in a general way the object of each class of restrictions, leaving the reader to form his own opinion as to the separate articles. The first article performs the same oflice as the first head of American prohibitions, viz. that of giving perfect efficiency to the powers and prerogatives specified in the preceding clause. By the next two articles the colonies are prohibited from making such material alterations in their local constitution as would convert it from a monarchical into a republican dependency. The 4th, 5th, and 6th articles require no com- ment, as any violation of them would, even in the absence of an express provision, amount to an act of rebellion. An act of attainder is a special act of the legislature, by which capital punishment is inflicted im persons supposed to be guilty of high offences, such as treason and felony, with- out any conviction in the ordinary course of judicial pro- ceedings. This prohibition forms part of the American con- stitution, and, together with the 17th restriction, may be considered as dictated by natural law. The restrictions 8 and 9 constitute the 10th power con- ferred on the American Congress, and were considered by the American legislatures as necessary adjuncts to the power of regulating commerce. The next three restrictions must be taken in connexion with the prerogatives reserved to her Majesty of making war, and providing force for the defence of 30 m r i 4 the colony. To allow the colony to interfere with the regula- tion of the troops, or to enrich themselves at the expense of the mother country, by the imposition of duties on supplies for the forces, is so unreasonable that it is needless to reason out the propriety of these restrictions. The I4th restriction is essential to the dignity and independence of any judiciary, and is found in the British statute-book, as well as in the American constitution.* The 13th, 15th, and 16th restrictions are questions of poli- tical economy, and any discussion of them here would be out of place. The last restriction explains itself; without it, the colonies would be independent, and the provisions of the constitution possess neither force nor validity. Assuming, then, the constitution to have defined with sufficient accuracy colonial and imperial rights, the next re- quisite is to provide adequate means of protecting it from infringement by the colonists. Now, in the ordinary case of a supreme government legislating for its immediate subjects, no difficulty can arise; a legislator makes a law, affixes a penalty, and leaves the ordinary judicial tribunals to punish the transgressor. In the case, however, of the mother country legislating for a colony, a difference has been sup- posed to exist, and it has been conceived that the only effectual way of controlling the colonists is to vest an absolute veto in an irresponsible department, such as the Colonial-office. This in effect annihilates all legislative authority in the colony ; for as a colonial minister is sub- ject to none of those influences which render the Crown in England responsible to the people, a colonial parlia- ment, passing bills subject to the disalHwance of a colonial * See Art. iii. Sect. 1, of the American Constitution. 31 minister, possesses no more legislative power, than a mere conveyancer instructed to draw a bill has legislative power in England. There is, however, no true ground of difference in the two cases, for an infraction of a constitutional law may, as regards the supreme authority, be considered either as a crime committed by the subordinate state, through its members as agents, or it may be treated as a violation of the law by the individual transgressors. This may be ren- dered clearer by an example. Suppose in the United States a state were to pass a law* making paper-money a legal tender for the payment of debts, and a state court were to decree a debt satisfied, by a tender in paper-money of the amount due. Here there may be a double crime. The state may be said to have violated the constitution by passing the law, and the suitor to have been wronged, as a subject of the supreme government, by having lost his action, in which he ought to have succeeded. The double nature of the offence creates two modes of redress ; the supreme government might issue a mandate to the state to repeal the state law, or it might leave the suitor to appeal in the ordinary way to the supreme courts, who would render justice to him by decreeing the debt to be due, and the state law making notes a legal tender void. So long as the state were obedient, the effect would be the same, whatever department exercised the supreme authority; the only difference would be, that in the one instance justice would be administered by the supreme government compelling the state to repeal its own law ; in the other, the supreme court would itself act on the individuals composing the state. * This is forbidden by the American Constitution. 33 ' M 1; Suppose, however, a case of resistance on the part of the state, and the danger of the supreme government issuing its decrees to a state in its collective capacity is evident, for as legal process must frouj its nature be ineffectual against a community in case of disobedience, military force is the only means of coercion that can be employed, and every transgression of the supreme law involves a rebellion. The importance of this distinction as to the redress of constitutional grievances has been incidentally pointed out in describing the nationality of the government of the United States, and it is this which makes the American constitution so apt a model for a colonial scheme. The most decisive testimony, howevei-, is given by Mr. Chancellor Kent, who, after describing the failure of the Ameri- can confederation, by reason of its having acted on states in their collective capacity and not on individuals, goes so far as to say,* ' Most of the federal constitutions in the world have degenerated or perished in the same way, and by the same means. They are to be classed among the most defective political institutions which have been erected by mankind for their security. The great and incurable defect in all former federal governments, such as the Amphictyonic, the Achaean, and Lycian confederacies, in ancient Greece ; and the Germanic, the Helvetic, the Hanseatic, and the Dutch republics in modern history ; is, that they were sovereignties over sovereigns, and legislations — not for private individuals, but for communities in their political capacity. The only coercion for disobedience was physical force, instead of the decree and the pacific arm of the civil magistrate. The in- evitable consequence, in every case in which a member of * Kent's Commputaries. vol. i. p. 216. 33 such a confederacy chooses to be disobedient, is either a civil war, or an annihilation of national authority.' Now, the application of these principles to the present condition of our colonial empire, can hardly be mistaken ; the American confederation perished, because having legislated for states in their collective capacity, it failed in power to carry its decrees into effect ; the colonial system is in danger of perishing, because, legislating for colonies in their collec- tive capacity, the Colonial-office alienates its subjects by a galling and uncertain despotism. TJnlike the Colonial-office, the Americans saw the causes of the failure of their confederation, and created a supreme federal judiciary as the arbiter of their constitution ; invest- ing it with a federal jurisdiction, co-extensive with the federal power of the supreme government, and giving to it the same powers for carrying its decrees into effect against individual members of the state, through the ordinary ministers of jus- tice, as were possessed and exercised by the governments of the particular states. This system has now been in operation sixty years ; and though the state courts have in more than one instance refused to obey the judgment of the supreme court, the latter has peaceably asserted its authority, and carried its decrees into execution by its own officers. There is little difficulty in accounting for the ease with which two apparently hostile systems of judicature work together, as the question of the constitutionality of a law always arises in a particular case, one or the other of the litigant parties is always interested in having the decision of the state court revei'sed. The affections, therefore, of one party are always on the side of the federal power ; and a state law decided to be unconstitutional law urops into ;i| '' i "M n 1 84 oblivion without exciting resistance, and in many cases without even attracting attention, except from the lawyers. If these observations be admitted to be conclusive in favour of a judicial department, as the exponent of the constitution, the next step is to inquire in what tribunals the authority should bo vested. In a colonial scheme, unless some alteration be made in the present courts of justice, no difficulty can arise on the point; as all judicial authority emanates from the Queen, the courts of the colony are of necessity imperial courts, and in addition to this the Queen has appellate jurisdiction over all cases decided in the colony. So far, therefore, there is no place for the creation of a new judiciary armed with a special jurisdiction over cases of a constitutional character. The bill, however, contemplates leaving the appointment of the colonial judges to the governcr, who will naturally promote to that office members of the colony, and thus in some degree deprive the colonial courts of their exclusively imperial character. Under these circumstances, it seemed advisable to make some provisions for withdrawing, if necessary, altogether from the courts of the colony, cases involving the reserved powers, and cases likely to embroil the peace of the colony. With this view the bill gives the Queen original jurisdic- tion as contradistinguished from her inherent appellate jurisdiction over all cases arising under the provisions of the act, whereby powers and prerogatives are reserved to her Majesty, or whereby the authority of the colonial parliament is restricted, and also in all cases wherein the boundaries of the colony are called in question. This provision meets any objection that may be urged, as to the impolicy of subjecting imperial rights to the deci- 35 sion of a colonial tribunal, or of leaving the colonists to litigate amongst themselves questions which involve the interest and disturb the peace of neighbouring communities ; but the manner of exerting this original jurisdiction, and, in fact, the projiriety of exerting it at all, must depend on the local circumstances of each colony. If a colony be large, or if a number of colonies can be combined into one system, an imperial court may be created, having exclusive jurisdic- tion over imperial questions, and carrying its decrees into effect through its own officers. On the other hand, if a colony be small, such cases may be safely left to the decision of the colonial judges, either sitting alone or with the governor as an assessor, subject, of course, on appeal by the parties, to the revision of the Privy Council in England. These contingencies are provided for by the bill, which gives her Majesty power to assign any part of her original jurisdiction, or remit any case to the coju'tsof the colony. Before concluding the subject, it may be well to observe that, whatever courts be established, very few cases will pro- bably arise to test their jurisdiction. This is proved by the American reports; there the federal courts have jurisdic- tion over the legislative acts of twenty-six republican states; yet, in searching for examples in illustration of the Colonial Bill, cases arising on the constitutionality of the state laws were found scattered, at great intervals, amidst numberless cases arising on the local powers, which have been excluded from the colonial scheme. I am conscious that these remarks will not satisfy the objections of those persons who, admitting the advantages of a judicial tribunal as an exponent of the constitution, deny the possil)ility of drawing a distinct line between the colonial and imperial jurisdiction, or of inventing any form which will satisfactorily submit constitutional questions to the decision of a court of justice. As the Queen possesses appellate jurisdiction over every case, the first objection is of very secondary importance. It sounds, however, strangely from the lips of English lawyers who are familiar with the 8ei)aration between the jurisdiction of the common law courts and courts of equity, and between cases requiring to be tried in the superior courts, and cases removed by statute to the jurisdic- tion of the county courts. Now, there is no more difficulty in distinguishing between colonial and imperial cases than there is in partitioning off the jurisdiction of the county courts from that of the superior courts, and the same remedies which are available to confine a county court judge within his proper limits are equally adapted to confine a colonial judge within his jurisdiction. The true answer, however, to both these objections is, that the Americans have completely succeeded in both points. They have enumerated the cases* which form the subject of federal cognizance, and they have found the various methods of appeal provided by the English law quite as effectual in bringing constitutional questions before a federal tribunal, as they were in bringing a case from one state tribunal to another. The Americans, moreover, had to encounter obstacles, which do not stand in the way of a colonial scheme ; for whilst, on the one hand, the imperial government has in- herent appellate jurisdiction over all cases, on the other hand * See the long list in Art. iii. Sect. 2, of the American Constitution. 37 the federal judiciary of tlie Uniti'd States has only hiicIi power as is speeifiriilly granted to it. So that, in tlie pro- posed constitution, there cannot he any transgression of the constitutional law without a remedy hy appeal to the (jueen in council. But in the American constitution, if there he any transgression of constitutional law unprovided for, there is no possihie remedy. The fact, therefore, that the Americans, in working out the details of their comj)licatcd system, were satisfied with the English forms of law as a medium for applying the judicial power to the control of their constitution, will con- vince a lawyer that no difficulty can arise on that respect iti the simpler plan j)roposed hy the colonial bill. These pages, however, may meet the eye of persons inte- rested in colonial matters, but little conversant with the forms of English law. It may be well, therefore, even at the risk of being tedious, to point out by examjdc the exact method in which constitutional questions maybe submitted to a judicial tribunal. The examples quoted will be cases taken from the reports of the American federal courts, and they will, it is hoped, tend to illustrate the principles of colonial legisla- tion, as well as the forms in which such legislation will be carried out in practice. The inquiry to be instituted is one of technicalities; and in order to render it intelligible, some general observa- tions must be premised as to the nature of the legal pro- ceedings in use both in the courts of England and America. I may begin, then, by remarking, that in every descrip- tion of legal proceeding, in whatever court instituted, the parties are required to state in writing the subject of dif- ference between them. The complainant declares the injury he has sustained; the defendant, by way of defence, dt nies .■! 38 that the complainant has, according to his own statement, sustained any injury, — or denies that he, the defendant, has committed such injury, — or justifies its commission by other circumstances. This written statement is copied on a roll upon which the transactions of a court are entered by its officers, and is called the record. So far the principles of the courts of common law and equity (and the ecclesiastical courts may, for this purpose, be considered as courts of equity are the same), but the manner of proceeding in the two descriptions of courts is very different. At common law, the complainant must not state his case with all its attendant facts, but must eliminate the point to be decided, and bring forward oral evidence to sub- stantiate that point; in other words, he must, in technical language, plead issuably, and no departure will be allowed from the several issues. On the other hand, in the courts of equity, the complainant details his case of complaint with all its attendant circumstances. He then examines witnesses in writing, and on the trial, the whole facts of the case, including the examination of the witnesses, form part of the rocord. The consideration of these differences, in the form of legal proceedings, is only material in the present case, because they give rise to a different mode of bringing cases before an appellate tribunal. In equity cases, it is clear that any process which will place the whole record before the superior court, will necessarily subject to its revision every question that may have been raised before the inferior court, whether arising on the pleadings, the evidence given, or on the de- cision of the judge. At common law, however, the case is different. The record only contains a short technical history of the proceedings up to the time of trial, to which is after- 39 wards adfle citation of cases from the American reports illustra- tive of the colonial bill, might be extended almost to every question of practice, or t ' Assembly shall be entitled to take liis seat or vote until he has in . " ^^ """*■ the presence of the governor, or some person authorized by him, made oath, or if a po'.don authorized by law to make an affirma- tion instead of an oath made an affirmation, in the following form : — I do sincerely promise and swear [or, an the case may he, affirm^ 'hat I will be faithful and boar t''ue allegiance to her Majesty Queen Victoria as lawful sovereign of the United Kingdom of Great Britain and Ireland, and of this colony, dependent on and belonging to the said United King- dom ; and that I will defend her, to the utmost of my power, against all traitorous conspiracies and attempts whatsoever which shall be made against her person, crown, and dignity ; and that I wiU do my iitrr^ost endeavour to disclose and make known to her Mj.jesty, her heirs, and successors, all treasons and traitorous conspiracies and attempts which I shall know to be against her or any of them ; and all this I do swear, M'ithout any equivocation, mental evasion, or secret reservation, and renouncing aU pardons and dispen- sations from any person or persons whatever to the contrary. So help me God. 23. That, subject to any alteration to bo made by the Colonial Parliament, each House shall be tho judge of the elections and qualifications of its own members, and may compel the attendance of absent members, and, with the concurrence of two-thirds of the whole number of members, expel a member. 24. That each House may elect its own Speaker, and de- termine the rules of its own proceedings. 25. That, subject to any alteration to be made by the Colonial Parliament, all Bills for raising and appropriating the revenue shall originate in the House of Assembly, but the Legislative Council may propose amendments, as on other Bills. Power of each House over its own members. Each House to elect its .Speaker, &c. Uevenue Rills I vr. Limits of Imperiai. AND Co- lonial Powers. Reservation of imperial powers. ll II 63 26, Tlmt tlioro sbnil bo reserved to her Majesty the several powers and prerogatives following, that is to say: — 1. The power of scnrling and receiving ambassadors to and from, and of making treaties, leagues, and alliances with, any foreign state or prince : 2. The power of making peace and war : 3. The power of granting letters of marque and reprisal during peace or war, and of granting safe conducts m time of war : 4. The power of confiscating the property of alien enemies, and of laying an embargo on shipping : 5. The power of keeping any land or naval forces in the said colony, or on the coasts thereof: 6. The power of enlisting men within the said colony for the supply of such forces : 7. The command at all times of all regular military and naval forces employed in or about the said colony, and the command of the militia in time of war : 8. The power of erecting forts, magazines, arsenals, dock- yards, and other buildings for military or naval pur- poses : 9. The exercise of exclusive jurisdiction within the limits of any place occupied for such purposes : 10. The power of taking any waste land, and likewise on making due compensation any other ?aiid, for the purpose of erecting thereon such forts, magazines, arsenals, dock-yards, and other buildings as afore- said, and for any other military or naval purpose : 11. The power of determining all cases brought before her Majesty on appeal from the courts of the said colony : 12. The power of establishing prize courts : 13. The power of coining money, and of regulating the value of foreign corn : Id. The power of granting titles of nobility : 15. The power of regulating the transmission of letters by sea between the said colony and any other place : And all powers necessary for giving effect to the above powers and prerogatives. 27. That her Majesty may, by letters patent under the Great be^ested tn Seal of Great Britain and Ireland, vest in the Governor all or any the Go- of the powers and prerogatives hereinbefore reserved, and the Governor shall conform to such instructions as her Majesty shall Reserved vemor by 03 le Great 111 or any ] and the |sty shall convey to him for hin tjuidance in tho exercise of such powers and prerogatives. U'ttor* |)at<>nt. 28. Parllnment. 5. 6. That tho Colonial Parliament shall not have power to do Heitrictlonii any of the following things, that is to say — power of the 1. To pass any law affecting or derogating from tho Colonial powers and prerogatives «o reserved to her Ma- jesty as aforesaid : 2. To alter the mode of the apr jintmont of tho Governor : 3. To control his power of calling together and pro- roguing the Houses of Parliament, or of dissolving the House of Assembly, of assenting to or dissont- iug from bills passed by tho said two Houses ; or to take from him tho power of granting reprieves and pardons : 4. To pass any law altering the succession to or affecting tho style or dignity of tho Crow n of Great Britain or Ireland, or relating to tho appointmtut of a Regent : To absolve any person from his allegiance : To define treason, or to alter the law relating thereto : 7. To pass any act of attainder : 8. To pass any law containing anything contrary to the law of nations as received and administered in the Courts of Great Britain : To define piracies and felonies on the high seas : To pass any law respecting captures by land or water : 11. To pass any law afTccting the command, regulation, discipline, or enlistment, of her Majesty's military or naval forces : To lay any duty on supplies for her Majesty's military or naval forces : To make anything but gold and silver coin a legal tender : 14. To make any judge's tenure of office dependent on any- thing but good behaviour, or to diminish his salary during his continuance in ofBce : 15. To lay any diff'erential duty on exports or imports to or from any part of her Majesty's dominions, or any duty inconsistent with any treaty that already has been, or may hereafter be, entered into between her Majesty and any foreign country : 16. To confer any privilege or immunity on the inhabitants of the Colony that is not equally conferred on the other subjects of Her Majesty : 9. 10. 12. 13. I fl ii^l ' ;l i i Orlffinal Ju- riidiction of the (jiiccn in Council in certain ouui. Appellate JtiriMcliction ofthi>(^iu'cn in Council. Alteratlona in tho Act how to be made. General legislative power of tho Colonial Parliament. 64 17. To eHtablifih sliivory : 18. To rcpoiil or alter any of the proviHions ^.f this Act, fxct'i>t tlioso oxprcsHfd to bo subject to alteration by tho Colonial Parliament: And any enactment of tho Colonial Parliament containing any- tliinjjf in contravention of this clause BJiall bo void. 29. That her Majesty in Council shall have original jurisdic- tion in all cases arising under any provision of this Act, whereby powers and prerogatives are reserved to her Majesty, or whereby tho power of tho Colonial Parliament is restricted, and also in all cases wherein tho boundaries of tho colony are brought in question, with power to assign any part of such jurisdiction or remit any cose to tlie courts of the colony, or to any eourt which her Majesty may establish in tho colony for the purpose. 30. That her Majesty in Council shall have appellate juris- diction in all cases whatever arising within the said colony, and may, by Order in Coimcil, limit and regulate the exorcise of such jurisdiction. 31. That no alteration shall be made in any of the provi.'^ions of this Act herein expressed to bo subject to alteration unless notice of such intended alteration have been published four times in one of the principal newspapers of the colony, at intervals of three calendar months, the first of such pubhcations to be made with tho assent of at least two-thirds of the whole number of the members of each House previously thereunto given, and a year at least before tho bringing in of any Bill containing such alter- ation ; and no such Bill shall bo considered as pa6:od by either House unless two-thirds of the whole number of tho members of such House concur therein. 3J. That, with tho reservations, and subject to tho restric- tions, hereinbefore mentioned, the Colonial Parliament shall have power to repeal or alter any law, charter, or letters patent in force within the said colony, including such of tho provisions of this Act as are expressed to bo subject to alteration by tho Colonial Parhament, and to make new laws for the government of the said colony, as fully as the United Parliament of Great Britain and Ireland have power to repeal or alter any laws in force within the realms of Great Britain and Ireland, and to make new laws for the government thereof. THE END.