CO885(2-3) — Page 432

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PUBLIC RECORD OFFICE

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C.O.885

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regard to foreign matters, it is clear that if a quarrel between a few hundred thousand persons (say residing at Réunion and Mauritius) is to involve a destructive war between sixty millions (say England and France) the sixty millions cannot possibly consent that the question of war or peace shall be decided by any but themselves: or that the small A federate decision would be community should have an appreciable voice in deciding it. either intolerable or illusory.

3. Protectorale, if it does not involve control over the protected Power, is a fraud on the rest of the world. If it does. it is a disguised relation of sovereignty and dependency.

4. Dependency, therefore, is the only connection which can exist between a smalt State and a great one, and in the absence of force, can only exist while both are satisfied with that relation. I in the particular terms of connection there is anything inconsistent with the convenience and self-respect of the lesser community, these ought, if possible, to be removed. But if the community becomes impatient not only of the practical incon- veniences of superiority, but of that superiority itself—its necessary consequences and badges-it is out-growing the only practicable form of connection.

This is a general answer to the Victorian resolutions. But to proceed to particulars. The forms in which the superiority of the United Kingdom over its Colonies is exercised are us follows:-

1. The power of Parliament to legislate for the Colonies

Victoria declares that this has been abandoned by the insertion in their Constitution Act (which is scheduled a British Act of Parliament) of a power to make laws for the Colony "in all cases whatsoever "—a question which has been referred to the Law Officers, and in answer to which they have reported that the Local Legislature has no power to make laws for the Colony repugnant to the provisions of an Imperial Act extending to the Colonies.

Practically, this power is very little ‹ xercised; certain parts of the Pussengers Act, and of the Merchant Shipping Act, the Copyright Acts, and Acts giving effect to Treaties, are instances of modern legislation affecting the Colonies, But the greatest care is used not to affect their territorial rights.

And as an instrument of Inter-Colonial Legislation, of establishing uniformity in matters of common interest, or as a Deus er machina to place (say) a Constitution on an indisputable basis. the legal supremacy of Parliament is sometimes very convenient, if not indispensable.

It appears also reasonable as a means in the last resort of protecting British interests, or of establishing certain broad principles (like the prohibition of slavery), which ought to be irreversible in the British Empire.

On the whole I take this legal Parliamentary superiority to be a necessity of the Colonial connection.

2. The appeal to the Privy Council.

This is valuable to secure a uniform administration of justice throughout the Empire. without it a Victoria Court of Justice in accordance with popular feeling might without appeal declare English laws not to be binding in Victoria, It seems, therefore, a legitimate, though not indispensable consequence of Imperial superiority. In fact, as far as I am aware, the Colonists seem to value it.

3. Limited jurisdiction.

The authority of the Colonial Legislature is closely confined within its territorial limits. It cannot, e.g., without aid of Act of Parliament, pass laws binding on its own inhabitants when for a time at sea or in a neighbouring Colony. In this respect possibly something might be done to increase their powers But they do not complain, and any attempt to legislate would mise the intractable question of domicile. Who is a Victorian?

4. The authority of the Governor.

Before dealing with this last of the forms of Imperial authority, it is convenient to observe on the mutters over which it extends.

These matters are-

1. Such as relate purely to the Government of the Colony, education, police, State aid to geligion, roads, criminal jurisdiction.

With an exception to be hereafter noticed, the Imperial Government neither has nor ought, noraff' ets to have any concern whatever with these. They only desire to receive su! information through some officer or other of their own as would be furnished them in the case of a foreign country in which they were interested.

2. Que-tions arising, wholly within the territorial jurisdiction of the colony, but having a more or less important bearing on British interests or feelings such as Customs duties, Lar ours immigration, treatment of natives

On these the Imperial Government requires not only information but sometimes though rarely, that a certain amount of influence should be brought to bear the ultimate decision, however, resting with the Colony.

I am not at all prepared to say that under both these heads a Diplomatic Agent receiving a fair salary from the Home Government might not be more effective than the Governor paid by the Colony, and occupied by social and other colonial duties.

3. Questions (as the phrase is) of Imperial concern, that is, on which the Home Government claims and exercises the right of deciding.

Such are questions of foreign policy, peace or war, Treaties, exercises of naval or other force beyond the Colonial limits, troops, mint, merchant shipping, Passengers Act, naturalization, differential duties, postal inter-communication, inter colonial questions, slavery. Questions of this kind are decided not as between equal authorities, but as between authorities of which the stronger decides, but is extremely unwilling to hazard a quarrel with the weaker in which it is almost invariably worsted.

There has been, therefore, a steady and, I conceive, wholesome tendency to allow subjects to drift from the third into the second of the above classes-a tendency, i.e., towards the establishment of practical independence. The above list of subjects shows that the exceptions are usually cases in which the decision is not only legally, but practically, in the hands of the Home Government (as movements of troops, withdrawal of subsidies, destination of postal steamers, &c.)

As a consequence, none but the most passing quarrels have occurred on these material subjects.

4. But recently another class of questions have arisen forming the exception above noticed to Class 1. The Home Government, has taken up a position in the Darling case, slightly modified in recent correspondence, that, even in matters of purely external concern, a Governor is not at liberty to violate what he knows to be the law of the Colony, even on the application of his Responsible Ministers, unless he himself sees the occasion to be so extraordinary or so trifling as to justify such violation. A Party in the Colony, which may turn out to be the prevailing Party, hold, on the contrary, that in this, as in other cases, he must simply follow the advice of his Government,

So also he claims to exercise a certain discretion as to the dissolution of Parliament, or the appointment of nominee Members to the Upper House. On these points, though of local interest, the home Government considers itself bound to tell a Governor whether

he has done right or wrong, and to lay down general principles of action, so far as his conduct is to be regulated by general principles, and not by circumstances.

This is defended, first, because, so long as the Governor represents the Queen of England, he ought not to be subjected to the indignity of being required to violate the law, without sufficient reason; second, because, in the infancy of a community and none of the Australian Legislatures are twenty years old), a Governor of any tact, and practised

in official or Parliamentary life, supplies the place of tradition in limiting the abuses of party action, and regularizing official and political proceedings.

The first ground seems maintainable so long as the Governor represents the Imperial authority; the second, till it appears that the Colony does not acquiesce in it.

As it is generally the strongest party which desires to break down law and will generally be on behalf of the weaker party that these prerogatives will be exercised; and such an exercise has evoked in Victoria the present movement against the relations between the Home Government and the Governor.

usage,

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Mr. Torrens' motion raises the same question, and directs it ostensibly like the Victorian politican, Mr. Higinbotham, against the existing modes or degrees of communi- cation.

On this I have to observe that, if the Imperial Government has any function to perform in respect to Coloniul matters, it requires, first, to be assisted in every matter by the local experience of its representative on the spot; and secondly, to have the power of directing that Representative in his dealings with the real Governors of the Colony.

Therefore, while it is represented by the Governor, every proposal from the Colony must be accompanied by his comment, and he must give effect to the directions from home. If besides this the Colonial Ministry approach the Home Government directly, or through agents of their own, one of two things must follow--if nothing is sent directly or through agents which is not also sent through the Governor, it will be a mere duplication of correspondence. If anything is sent without the Governor's knowledge, the Home Government would either have to act without the comment of the Governor or to send it back to him for report.

Any contrivance of this kind, therefore, would be merely embarrassing, If it be represented as a harmless concession to a popular feeling, I observe-

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