Colonial law

“ If it was silent, then the royal prerogatives were in the colony precisely the same, as in the parent country; for in such cases the common law of England was the common law of the colonies for such purposes. Hence, if the colonial charter contained no peculiar grant to the contrary, the king might erect courts of justice and exchequer therein; and the colonial judicatories, in point of law, were deemed to emanate from the crown, under the modifications made by the colonial assemblies under their charters. ”

“ No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid. ”

“ His Majesty's Government has to formally place on record that the colonists of Natal and the Cape Colony who have been engaged in fighting and who now surrender shall, on their return, be dealt with by the Colonial Governments in accordance with the laws of the Colonies, and that all British subjects who have joined the enemy shall be liable to be tried under the law of that part of the British Empire to which they belong. ”

“ The State guarantees the protection and defence of the natives of the colonies in accordance with the principles of humanity and sovereignty, with the provisions of this. Title and with such international conventions as are at present in force or may come into operation. The colonial authorities shall prevent and punish in accordance with the law all abuses against the per sons and property of natives. ”

“ It will be proper, however, to repeat here, and to insist upon it too, that there is no effectual way of remedying the evil complained of, but by subjecting the colonial laws to the revision of the Legislature of the mother country ”

“ The settlers take with them all those laws which concern private rights between man and man, and the colonial tribunals must enforce them; for such laws were common to the parties as fellow-citizens in their homes, and they are presumed to have that common opinion of their equity which in the absence of enactment, and since some such laws are necessary, is both a sufficient, and the only possible, ground for their obligation: and this it is which is meant when these laws are said to accompany Englishmen as their birthright. ”

“ They owed, indeed, allegiance to the British king, as the head of each colonial government, and as forming a part thereof; but this allegiance was exclusive, in each colony, to its own government, and, consequently, to the king as the head thereof, and was not a common allegiance of the people of all the colonies, to a common head. [1] These colonial governments were clothed with the sovereign power of making laws, and of enforcing obedience to them, from their own people. The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. ”

“ Surely if we acknowledge the first principles of justice, or if we admit the slightest claims of humanity on behalf of these debased, but harshly treated people, we are bound, in honour and in equity, to afford them that subsistence which we have deprived them of the power of providing for themselves.
It may, perhaps, be replied, and at first it might seem, with some appearance of speciousness, that all is done that can be done for them, that each of the Colonial Governments annually devotes a portion of its revenue to the improvement, instruction, and maintenance of the natives. ”

“ No reasoning man can maintain that the people whom a few years will behold as numerous as the inhabitants of these islands, will be content to live permanently under the system of the Colonial Office. That system is probably the only one our Constitution permits us to adopt; but it is nevertheless the policy, if not the duty, of this State to foster the youth and early life of the colonies we have founded, and to protect them, as far as may be, from the evils which shall come upon them in consequence of their present connection with Great Britain. ”

“ And on the second article it is certain, that although it be a fundamental maxim of colony administration, that the colonies shall have no laws contrary to the laws of Great Britain, yet, from the fluctuation of resolutions, and confusion in the construction and practice of the law in the divers and several colonies, it is certain, that the practice of their courts, and their common law, must be not only different from each other, but in the consequence different also from that of Great Britain. In all the colonies the common law is received as the foundation and main body of their law ”

“ Every colonist had a right to inhabit, if he pleased, in any other colony, and as a British subject he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies too was regulated by the general laws of the British empire, and could not be restrained or obstructed by colonial legislation. ”

“ The new constitutions had then been in operation for some time in several of the great colonies, and already no slight friction had occurred in the endeavour to adjust Imperial and Colonial rights and responsibilities upon a clear and well-understood basis. Moreover, the continued formation of new colonies and the desire of certain Crown colonies to attain to responsible government suggested a fundamental treatment of the whole question of colonial relations. ”

“ To-day as the Colonies send their sons in their thousands to uphold the Motherland in her fight for Justice and Freedom, we know that our colonial attitude has been more than justified, and England is indeed proud of her Dominions. ”

“ Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together. [98] There occurred, however, in the second half of the eighteenth century a great transformation in these old [Pg 80] rights. The inherited rights and liberties, as well as the privileges of organization, which had been granted the colonists by the English kings or had been sanctioned by the colonial lords, do not indeed change in word, but they become rights which spring not from man but from God and Nature. ”

“ How liberal a construction has been given to the distinction between imperial and colonial questions is shown by the fact that the whole of the unappropriated lands in the regions behind our American and Australian colonies have been given up to the uncontrolled disposal of the colonial communities, though they might, without injustice, have been kept in the hands of the imperial government, to be administered for the greatest advantage of future emigrants from all parts of the empire. ”

“ We augur well of this Imperial arrangement, not merely because it forms a fitting acknowledgment of colonial enterprise, but because we may venture to see in it the beginning of a new policy, by which the Home Government frees itself, once for all, from the imaginary, or, at any rate, to it, the needless costs and difficulties of founding new colonies. Colonies already established and prosperous may be left to perform this duty, and they may be so left all the more readily when, as in this case, they are prompt to take the duty in hand, with all its outlay and trouble. ”

“ When it is recollected, with what extreme discontent and reluctant obedience the British colonial restrictions were enforced in the manufacturing and navigating states, while they were colonies, it is incredible, that they should be willing to adopt a government, which should, or might entail upon them equal evils in perpetuity. ”

“ It was England's. The colonies have been allowed by their legislatures to shake the leaves of their interests; imperial legislation has always assailed the trunk. But this is not all; colonial interests have been, unheard and unheeded, sacrificed to other interests in England. ”

“ One thing is, however, indispensable to the success of this or any other system of Colonial Government. You must renounce the habit of telling the Colonies that the Colonial is a provisional existence. You must allow them to believe that, without severing the bonds which unite them to Great Britain, they may attain the degree of perfection, and of social and political development, to which organised communities of free men have a right to aspire. ”

“ First, all colonial countries and Trust and Non-Self-Governing Territories must be granted forthwith complete independence and freedom to build their own national states in accordance with the freely expressed will and desire of their peoples. The colonial system—and colonial administration in all its forms—must be completely abolished in order to afford the peoples of the territories concerned an opportunity to determine their own destiny and form of government. ”

“ For a nation to plant out large bodies of colonists on comparatively unoccupied lands, as in Africa or Australia or Canada, in a deliberate and organized fashion, with every facility towards co-operation and success, and yet on the principle of leaving, each colonial unit plenty of freedom and autonomy, would not be a very difficult task, nor a very expensive one, considering the end in view. ”

“ This writer says, “that in denying that the colonies are annexed to the realm, and subject to the authority of parliament, individuals and bodies of men subvert the fundamentals of government, deprive us of British liberties, and build up absolute monarchy in the colonies.”
This is the first time that I ever heard or read that the colonies are annexed to the realm. It is utterly denied that they are, and that it is possible they should be, without an act of parliament and acts of the colonies. Such an act of parliament cannot be produced, nor any such law of any one colony. ”

“ Men cannot forbear a smile at the Despatches and Government Orders of this period of colonial history, and the care and trouble of officialdom with a very few hundreds of Aborigines, having miserable weapons, while controlling a colony of many thousands of Europeans, and possessed of a large executive power in British soldiers and well-armed constables. ”

“ Any subject in England or America, who, in the regular legal course, was aggrieved by any act of a colonial legislature or any decision of a colonial court, had the right, subject to certain regulations, to carry his case to the king in council, forcing his opponent to follow him across the sea. ”

“ It is true that she retains a right of veto which is scarcely ever exercised except to prevent some intercolonial or international dispute, some act of violence, or some grave anomaly in the legislation of the Empire. It is true that colonial cases may be carried, on appeal, to an English tribunal, representing the very highest judicial capacity of the mother-country, and free from all possibility and suspicion of partiality; but I do not believe that any of these light ties are unpopular with any considerable section of the colonists. ”

“ Without entering into the question, whether the Government should reserve to itself, exclusively, the right of founding colonies on that continent, or whether it ought to encourage colonial companies, and depend on the efforts of private interest suitably directed, let us be permitted to offer some views, on the prudent and temperate course which ought to be laid down, to arrive at a satisfactory result, not only in respect to the civilization of the blacks, but even relatively to the commercial advantages which the colonist must naturally have in view. ”

“ Convinced that the extension of the jurisdiction of the United States for the purpose of holding foreign people as colonial dependents is an innovation dangerous to our liberties and repugnant to the principles upon which our Government is founded, we pledge our earnest efforts through all constitutional means: "First, to procure the renunciation of all imperial or colonial pretensions with regard to foreign countries claimed to have been acquired through or in consequence of military or naval operations of the last two years. ”

“ That the colonists, black and white, born here are freeborn British subjects, and entitled to all the essential civil rights of such is a truth not only manifest from the provincial charters, from the principles of the common law, and acts of Parliament, but from the British constitution, which was re-established at the Revolution with a professed design to secure the liberties of all the subjects to all generations. ”

“ Thus, even leaving sentiment aside, the balance of material advantage to the Colonies is great and real; while their self-government is complete, for the mother country never interferes with any matters of colonial concern, unless in the rare cases where a matter primarily local may affect the general relations and interests of the whole empire. ”

“ Colonial policy.—Based on considerations like the preceding, the colonial policy of this period was marked by restrictions entirely opposed to modern ideas of commercial freedom. A government which permitted or encouraged the establishment of colonies in distant lands, considered it a duty to itself to see that other governments or the colonists themselves did not rob it of the rewards of success. The colonial policy of the period has sometimes been pictured as purely one-sided, selfishly sacrificing the colonists to the interests of the people at home. ”

“ You will get nothing done in tropical Africa except under the influence of individual men; but your West African Governor, though not controlled by the Councils within the colony, is controlled by a power outside the colony, namely the Colonial Office in London. Up to our own day the Colonial Office has been, except in the details of domestic colonial affairs, a drag-chain on English development in Western Africa. ”

“ For that service, for all service, whether of revenue, trade or empire, my trust is in her interest in the British Constitution. My hold of the Colonies is in the close affection which grows from common names, from kindred blood, from similar privileges, and equal protection. These are ties which, tho light as air, are as strong as links of iron. Let the Colonies always keep the idea of their civil rights associated with your government; they will cling and grapple to you, and no force under heaven will be of power to tear them from their allegiance. ”