14 CONSTITUTIONAL RELATIONS OF COLONIES British subjects over which the Queen's dominion extends. He is there, as much as in England, entitled to the protection of the fundamental laws of the realm, by which the rights of life, liberty, and property are secured, and the powers of the executive Government limited and defined. · 1 In most colonial Constitutions or charters of Government the power of making laws is restricted by the proviso "that such laws shall not be repugnant to the law of England." But even in cases where there is no such proviso the Superior Courts have always held, on appeals from the colonies, the invalidity of any colonial law which conflicts with the fundamental laws of the realm. This principle was laid down as of universal application by Lord Mansfield in the House of Lords in the year 1766, and it has been adhered to in all subsequent decisions of the Superior Courts of England. It is a necessary attribute of sovereignty. Subordinate Legislatures are essentially different from a Supreme Legislature. They have no original or independent authority. Their powers are derivative, and are limited to the objects of local regulation, for which they are created. They may make laws præter but not contra to the laws of the realm. They cannot withdraw the subject from his allegiance, or come between the subject and the protection which is due to him from the sovereign power. These conditions necessarily spring from the very essence of sovereignty There can be no imperium in imperio. The national laws are the voice of the supreme power of the State, which cannot be delegated, which ceases to exist when it ceases to be paramount. To this all subordinate authorities must of necessity be subject, otherwise they cease to be subordinate authorities, and the kingdom is divided against itself. The duties of Sovereign and subject, of protection and allegiance, have in all ages been held to be recíprocal.* The propositions which have been quoted from Vattel are not less deductions from universal history than necessary conclusions from indisputable principles. The meanest Roman citizen was entitled to appeal unto Cæsar from every subordinate jurisdiction, and to have his appeal allowed. In savage tribes each individual depends for protection on his own arm, and resents in person the wrongs he has suffered; but where a Government is established each subject of that Government instinctively looks to it for protection, in return for the natural liberty which he relinquishes. When a country * "The maxim or rule, Protectio trahit subjectionem, subjectio protectionem, has obtained in every age and in every country."-Chitty on Prerogative. TO THE MOTHER COUNTRY. 15 is so far advanced in civilisation as to be governed by laws, each citizen is aware that the laws are intended for his protection as well as for his control, and he is entitled to look to the magistrate to procure him justice as defined by the laws which it is the duty of the magistrate to administer. This right of protection accompanies the citizen into foreign countries, and it is the duty of the sovereign power to secure to each of its subjects the protection of such laws as are in force in the countries where they may respectively sojourn, or which natural justice requires, in those countries where the will of the Sovereign is law. So well is this right, and the corresponding duty understood that the whole nation is stirred when any of its citizens are subjected to violence or wrong in a foreign country; even in cases where relief is absolutely impracticable, as in that of the British officers who were some years ago imprisoned, and finally murdered at Bokhara; or in the more recent case of the British Consul and missionaries in Abyssinia, where its enforcement would be most difficult. Indifference in such cases could not fail to invite aggression, and true wisdom requires that no proved oppression should be passed over without adequate compensation being exacted. A recent instance of this was the exaction of a heavy fine from the Government of Japan for the murder of two British subjects in that country. If this be the case in foreign countries, à fortiori is protection due to British subjects in a British province where oppression, if it occur, must be the act of some person or persons to whom a certain authority is delegated, the extent and exercise of which are defined by law, or by instructions having the force of law. But within the last thirty years a different theory has been tacitly assumed and acted upon. It appears in practice that the Queen's colonial subjects who have got representative institutions are to be subject to the local authorities, even when their action is illegal, and are to have no appeal to their Sovereign for redress of injuries if committed by an abuse of the powers delegated to subordinate authorities. It is true that there is no authority or justification for such a practice to be found in any Act of Parliament giving a Constitution of local government to a settlement of British subjects, or in any instructions to a colonial governor, founded upon such Acts of Parliament; such an authority would be equivalent to a transfer of the allegiance of British colonists from the Queen to the local authorities. But it has nevertheless been gradually assuming shape and consistency, till it is to be found openly avowed in despatches, and it has become a matter of course to condone or allow illegal statutes, and to permit the Queen's governor to make the will of a majority the rule of his conduct, howsoever at variance with the law or the Queen's commission and instructions. The beginnings of this change have been in part told by Sir Francis Head. The concessions made by the Government to the Assembly of Lower Canada, which were quite unexampled in their liberality, having failed to disarm the hostility of the Democratic leaders, the rebellion ensued, and, the Constitution being suspended, Lord Durham was sent out to that colony as Governor-General and High Commissioner, with special instructions and powers. He was accompanied by two persons whose Democratic tendencies might be the result of their forfeiture of the moral status, the loss of which so often drives the party politician to extreme views. So notoriously was this the case, that Lord Wicklow in the House of Lords called the attention of the Prime Minister to the fact. On Lord Durham's return to England, deeply offended because it had been necessary for the Imperial Parliament to pass an Act of indemnity to relieve him and other persons acting with and under him from the consequences of an illegal ordinance, he published a posthumous report," which, says Sir Francis Head, "the Imperial Parliament, under the protest of the late Duke of Wellington, determined to adopt or swallow as the basis of a new system of legislation for the Canadas and for the rest of our American Colonies, although they well knew that a considerable portion of it had been written by two persons who had been convicted by the tribunals of England of offences of an unusual character. Indeed, that not only had one of them, as a felon, been sentenced to imprisonment in Newgate for three years, but that on the 6th of June, 1827 (see Hansard), Sir Robert Peel in the House of Commons, in denouncing the fraud, the forgery, and the villany he had practised, added:-'Hundreds of delinquents much less guilty had been convicted of capital offences, and had forfeited their lives." "The allegations against the loyalists in Upper Canada contained in that 'report,' signed by Lord Durham, were declared by three Lieutenant-Governors and the Legislature of Canada to be untrue, and utterly unsafe to be relied on." But while "the Canadian loyalists were treated with marked neglect, the leaders of the rebellion, men for whose apprehension large rewards were offered, were promoted to the most honourable appointments in the colony." It did not require much communication with the late Sir COLONIAL ADMINISTRATION. 17 James Stephen to become aware that he considered it a folly "My Lord,-It has long been notorious to every British subject in the Canadas that your lordship's Under-Secretary, the author of our colonial despatches, is a rank Republican. His sentiments, his conduct, and his political character, are here alike detested, and I enclose to your lordship Mr. M'Kenzie's last newspaper, which, traitorous as it is, contains nothing more conducive to treason than the extracts which, as its texts, it exultingly quotes from the published opinions of Her Majesty's Under-Secretary of State for the Colonies. "As I entertain no sentiments of animosity against Mr. Stephen, it has been with very great reluctance that I have mentioned his name; but being deeply sensible that this province has been signally protected by an Omnipotent Providence during the late unnatural rebellion, I feel it my duty, in retiring from this Continent, to divulge, through your lordship, to my Sovereign my opinion of the latent cause of our unfortunate misgovernment of the Canadas, I have, £20., (Signed) "F. B. HEAD." “This plain statement to the Queen by her Lieutenant Governor was corroborated by the following official documents, addressed to Her Majesty by the two other branches of the Canadian Parliament : "Extract of a Report, dated February 8, 1838, of a Select Committee of the Commons' House of Assembly, on the political state of the Provinces of Upper and Lower Canada. Printed by order of the House, with an address to the Queen. "In the year 1828, James Stephen, Esquire, then Counsel, and since advanced to the office of Under-Secretary of State to the Colonial Department, in his evidence before the Select Committee of the House of Commons on the affairs of Canada, advanced the following opinions with reference to these provinces :— "The ties by which the people are bound to their Sovereign are not of the same strong and enduring character as the corresponding obligations between the King and the people of the old European States. It is impossible to suppose the Canadians dread your power it is not easy, to believe that the abstract duty of loyalty, as distinguished from the sentiment of loyalty, can be very strongly felt. The right of rejecting European dominion has been so often asserted in North and South America, that revolt can scarcely be esteemed in those Continents as criminal or disgraceful. Neither does it seem to me that the sense of national pride and importance is in your favour. It cannot be regarded as an enviable distinction to remain the only dependent portion of the New World. B 18 ORIGIN OF THE NEW SYSTEM "Your committee pretend not to say that any individual was influenced by the use made of Mr. Stephen's opinions-they hope otherwise; but they well know that their promulgation has excited a deep feeling of regret in the mind of a very numerous and respectable class of the learned gentlemen's fellow subjects in these provinces, and has led many to consider whether past mal-administration of our affairs may not fairly be attributable to the influence necessarily exercised by a person holding his highly responsible and confidential situation in Downing-street; and if so, whether that influence can be continued without danger to our future prosperity. In a report and address to the Queen, dated Feb. 28, 1838, from the Honourable the Legislative Council of Upper Canada, and printed by order of the House, it is stated that ́in this declaration (of Mr. Under-Secretary Stephen) the positions are advanced that allegiance to the British Crown must be expected to be regarded in Canada rather as a sentiment than a duty; that no fear of the power of Great Britain can reasonably be entertained by its inhabitants; that revolt against European dominion cannot be considered anywhere upon the Continent of America as criminal or disgraceful, and thut it can be regarded as no enviable distinction to be the only dependent portion of the New World. But the Legislative Council state that it is fit the British nation should know that the feelings and consciences of the great mass of the people of Upper Canada revolt against these sentiments.' It is stated by Sir F. B. Head that the last words quoted in italics were placarded by Mr. Mackenzie on the day of his insurrection in Upper Canada." It may be doubted whether Sir James Stephen's sentiments. of duty were sufficiently lively to induce him to postpone hist literary labours for the drudgery of investigating colonial complaints. It was easier to give way to the pressure of colonial politicians than to incur their hostility by maintaining and enforcing law and right. To allow colonists "to manage their own affairs, and to settle their differences amongst themselves," was an easy way of evading troublesome questions, while it had a specious air of "liberality" which was sure to obtain the applause of public writers who adopt the cant terms of the day, and can see no merit in administration which recognises duty as a more cogent motive of conduct than a regard to what such writers choose to designate public opinion. It is certain, however, that the mantle of Sir James Stephen has fallen upon his successors in the Colonial Department of the State, and that his spirit has continued to rule in their deliberations. It is not easy to conceive a higher or more sacred trust than that which is reposed in the Secretary of State for the British Colonies. Nearly six millions of his fellow-subjects are dependent upon his vigilance and faithfulness for the maintenance of those laws which protect their dearest privileges and rights. |