« PreviousContinue »
ton in 1762); and, on the particular facts of the case, the judge ment may be acquiesced in, but its interest consists in the discussion of principles which were involved in it. Macdonald, Thurlow, Hargrave, Alleyne, Davy, and Glyn, were of counsel for the respective parties, which of itself would make it a notable piece of litigation. On the third and last argument, Mr. Thurlow (the Attorney-general) took up a position somewhat different from that occupied by his predecessor. He said, “If I bave to contend for an absolute independent legislative power in his Majesty, I have not that idea of the authorities or of the duties of my profession that I could have engaged myself in the task of supporting it.” But he found it consistent with the idea of both to propose the doctrine of a “subordinate” legislative authority vested in the Crown; an awkward theory, and not apt for the argument rested on it.
We do not fear that questions relating to conquered colonies like Grenada, and involving such principles as came under discussion in Campbell v. Hall, are likely to be again raised. It is not probable that we shall possess ourselves of any new colonies by conquest. Yet the doctrines held in the discussions are of great interest when we look to what the legal sages thought and said on the subject, and what is the tendency of authorities. The greater number and most important of our colonies are those which have been settled by voluntary emigration of British subjects; and Mr. Bell observes, that even the hypothetical legislative power in the Crown, suggested by Lord Mansfield in Campbell V. Hall, is confined to a conquered country. Sir W. Jones (Charles II.'s Attorney-general) said, “the Crown had no more right to exercise such a power than the settlers would have to discharge themselves of their allegiance.” Mr. Lechmere (George I.'s Attorney) said, "that any minister who would advise the crown to exercise such a power would be guilty of high treason.” And Sir Philip Yorke and Sir Clement Wearg, George I.'s lawyers, said, “the settlers would be legislated for only by an assembly, or by an act of parliament.”
The next question propounded is, if the Crown has not absolute
power, what are the rights of the parliament to legislate for possessions beyond the limits of the united kingdom ? The constitution of the United Kingdom, its laws, and the machinery by which they are maintained and altered, are made for the inhabitants of the country itself. “What right,” it is asked, “can parliament possibly have to legislate for a settlement made by a portion of their own countrymen, at the expense and risk of that portion, unless, at least, the settlement is to be treated as a mere local extension of the united kingdom, the inhabitants of which are to enjoy all the rights and liberties enjoyed in the united kingdom, parliamentary representation included ?” Lord Mansfield's position is, that it is “absurd that in the colonies they should carry all the laws of England with them—they carry only such as are applicable to their situation." But this does not afford a satisfactory answer to the question. There is a “fundamental
a principle” of the British constitution, that the commons are not to be taxed but with their consent. The redress of grievances, and the grant of monies to the crown, have a vital correspondence in our constitution, the lack of which, in any colony, places it in a very different relation to its government. The practical answer to this difficulty is, in our opinion, however, to be found in the fact, that colonists may find it useful to forego certain of the privileges which they enjoyed at home, in consideration of certain other advantages conceded to them. “Rights,” in fact, may be
. waived for convenience sake, though they may also be insisted on, as was done by the United States of America ; or new conditions applicable to the wants of a colony may be invented. It is occasionally, and in certain stages of a colony's history useful, to have a government provided for it (if it is a sensible and liberal one), rather than that it should draw upon its own small body for the same purpose. But then such a colony may well contend it is their consent which gives the title to the exercise of such government, and that the question of right has not been relinquished.
The question of their original constitutional rights bas, by some of the more important of the colonies, been waived by
their acceptance of provincial constitutions, of different kinds. What is now wanted, both for the colonies and England, is a: knowledge, by the members of the houses of parliament, of what are the mutual rights and duties of both the parent state and the colonies, and of the bases of the relations which have thus arisen and may still arise. For whom is God's earth created ? and for : whose benefit do colonists migrate from the parent state ? These: are the two questions which, if satisfactorily answered, would solve many difficulties. To the second we at least can give a reply. Colonies are formed for the special benefit of the colonist, and the general benefit of mankind, who profit in proportion to the success with which old countries are relieved of surplus population, and new countries are opened up.
The doctrine propounded in former ages, that colonies settled. by Englishmen were for England's sole behoof, may be referred perhaps to the fact, that in those times the emigrants were drawn from a class of comparatively small political power, which, however, since then has had an increasing influence over the legisla- , ture. “For more than two centuries," says Lord Grey, "the great object of all European nations in seeking to obtain possession, of colonies, was the gain supposed to accrue from the monopoly: of their commerce, which it was the practice for the parent state , to maintain ; while, on the other hand, it gave to their produce a , preference in its own market.” The suicidal and selfish policy of the commercial system of protection as applied to colonies having been at last abandoned, and with it the supposed advantage of exclusive trading, the characteristic and indeed plausible inference was drawn by the monopolist politicians, as well as by others, that colonies were no longer of any use to the mother country, and therefore they should be cast adrift. They were now suckers and not feeders, it was said. The colonies which had been unnaturally nursed, and had their commerce and political economy alike perverted, began on their own part to ask whether they should derive any further advantage from the connection with the mother country, when all their supposed trade privileges were
- Colonial Policy of Lord John Russell considered.
removed. If the result of free-trade measures should be the
With respect to those colonies which are unable to preserve their security, and which find that it is for their interest to continue their connection with the mother country, these must, still remain colonies, with such government as is best suited for the common purposes of the old and new countries. The con
Bent of the colony removes the difficulty we are contemplating, and the terms on which protection is to be afforded, can here be adjusted with due regard to what equity requires.
The other opinion with regard to the power and influence which England derives from her colonies, though merely stated. as an opinion, yet deserves consideration. Mr. Bell has entered upon this topic rather freely, and we may perhaps be allowed to follow him. “It is unquestionably true," he observes, “ that the possession of a number of steady and faithful allies in various quarters of the globe, would add greatly to the strength of the British empire; but so far from that warranting the inference which Lord Grey seems to intend to be drawn, that the possession of a great number of colonies in various quarters of the globe will add still more to the strength of the empire, because the connection which unites the colonies and the united kingdom is more close and intimate than an alliance, it seems to do just the reverse.
“ It is never questioned in modern days, that an alliance between Great Britain and the minor states of Europe, is a source of mutual strength to her and to them; while it is broadly admitted that the right of the sovereign of Great Britain to the minor kingdom of Hanover, was a constant source of weakness to Great Britain while it lasted ; and yet Hanover was a more favourable instance for the maintenance of connection than an ally can be, so far as closeness and intimacy were concerned. Colonies are not closely connected with the empire as was Hanover, because of the accidental coincidence of its sovereignty in the same person as the monarch of Great Britain, and as our allies by virtue of the treaties found with them. They are integral parts of the empire, and as such must be protected and defended at the last extremity, and with as much pertinacity and with as keen sensitiveness to national honour, as if the capital itself were in question. It is on this account—it is on account of the identity of interest more close than the connection of any alliance, however intricate that colonies may be sources of weakness, rather than of strength, to the mother country.” On the other