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The South African Confederation Act. 155
by the Act of 1877,1 'for the Union under one Govern'ment of such of the South African Colonies and States 'as may agree thereto, and for the government of such 'Union.' This Confederation Act is distinguishable from the Canadian Confederation Act in that, instead of merely constituting a single Dominion to which new provinces may from time to time be admitted, it constructs an elaborate federal system, more after the fashion of the United States, with a Central Legislature and Local Legislatures, the respective functions of which are clearly assigned in the constituting Act. The Act recites that 'proposals have been made for uniting 'under one Government under the Crown of the United 'Kingdom of Great Britain and Ireland those colonies 'and states of South Africa which may voluntarily elect 'to enter into such Union;' that' such Union would con'duce to the welfare of the said colonies and states, and 'promote the interests of the British Empire, and that 'it is expedient to make provision for any two or more 'of the said colonies or states to unite at such time as 'may be found convenient'; and that'it is expedient 'to declare and define the general principles on which 'the constitution of the legislative authority and of the 'Executive Government in the Union may be estab'lished, and to enable the details of the said constitution 'and of the administrative establishments thereunder 'to be provided for, after the wishes and opinions of the 'said colonies and states with respect to such details 'have been duly represented to Her Majesty through 'their respective Legislatures.' The Legislative Authority of the Union, called 'the Union Parliament,' con
1 40 and 41 Vict. cap. 47.
sists of a Legislative Council, the number and composition of which is to be determined by the Crown; and a House of Assembly of a representative character; it being provided that ' in the apportionment of members, 'and in the determination of the qualifications of 'electors and members, provision shall be made for the 'due representation of the natives in the Union Par'liament and in the Provincial Councils, in such manner 'as shall be deemed by Her Majesty to be without 'danger to the stability of the Government.' (Sec. 19.) The distribution of legislative powers between the Union Parliament and the Councils of the Provinces may be varied by any Order in Council issued in pursuance of a Section of the Act; and it is provided that nothing in the Act itself should be 'deemed to affect 'or limit in any way the power of the Queen, with the 'advice and consent of the Lords Spiritual and Tem'poral and the Commons of the United Kingdom of 'Great Britain and Ireland in Parliament assembled, • to make any law relating to the Union.'
The process of legislating for Dependencies by. the British Parliament is practically limited in two ways: 1st, by the prerogative of the Crown, and, 2nd, by the existence of constitutional government already conceded to a Colony. In the case of a conquered or ceded Colony, it is well known that the powers of the Crown are of the most extensive kind, with respect to determining what shall be the system of law under which the inhabitants shall live. But these powers, though extensive, are not absolute; and in the leading case of Campbell v. Hall,1 Lord Mansfield decided that the Crown could
1 20 State Trials, 323.
The Coast of A frica and Falkland Islands. 15 7
not make any change in the laws contrary to fundamental principles, as by exempting an inhabitant from general laws of trade, or from the power of Parliament, or by giving him privileges exclusive of other subjects. Lord Mansfield went still further, and said that the power of the Crown to give a constitution to a conquered country was not exclusive of Parliament; that 'there could not exist any power in the King exclusive 'of Parliament;' and a country conquered by the British arms becomes a dominion of the King in right of his crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain.
In the case of Colonies acquired by occupancy and settlement the prerogative of the Crown is limited to the appointment of Governors, the erection of Courts of Justice, and the institution of representative Assemblies, In 1843 a Statute 1 was passed conferring legislative power on the Crown in the case of settlements on the Coast of Africa and the Falkland Islands, The Queen in Council was thereby empowered to establish laws, institutions, and ordinances, and all such Orders in Council were to be laid before Parliament. This Statute was in fact a recognition of the limits of the prerogative, and of the impotency of the Crown to dispense with the aid of Parliament in the case of Dependencies of the class legislated for.
A more difficult, because incessantly growing question, is that which relates to the competency of Parliament to withdraw or interfere with subordinate Legislatures already existing in a Dependency. The abstract legal right of parliamentary control to the fullest
1 6 and 7 Vict, cap. 13.
possible extent can hardly be denied as a legal proposition; and even in respect of the practically obsolete claim to tax the Colonies, Mr. Justice Blackburn said, in his charge to the Grand Jury on the trial of Governor Eyre in 1868: 'Although the general rule is that the * legislative assembly has the sole right of imposing 'taxes on the colony, when the Imperial Legislature 'chooses to impose taxes, according to the rule of Eng'lish law they have a right to do it.' Though the rule is that the Crown cannot by its prerogative withdraw a Constitution which in the exercise of its prerogative it has once conceded, yet it would be difficult to deny in theory that such a right of withdrawal is vested in Parliament. The right was certainly exercised in 1866, in the case of Jamaica, when a plenary power of amending and altering the Constitution was granted to the Crown by Statute.1
Nevertheless, in spite of the prevalence, in book?, of these legal theories, they must be regarded as giving a very imperfect and inaccurate account of the true constitutional relation, at the present day, of the British Parliament to such Dependencies as have Constitutional Legislatures. In the first place, it is obvious that if this relation can be expressed in any precise form, that form must at least be considerably varied for the very various circumstances and degrees of advancement of the different communities considered. In the second place, it is plain that, as in the case of Jamaica, unforeseen circumstances might arise, in which the scandalous or feeble working of colonial institutions might bring about such perils, either to the community
1 29 Vict. cap. 12.
The Constitution of Victoria. 159
directly concerned, or to the British Dominions generally, as must properly call for the strenuous intervention of the British Parliament. In the third place, it would be regarded as a breach, not merely of political faith, but of the sort of constitutional understanding which is the basis of all good government everywhere, if such elaborate structures, legislative and administrative, as those which have grown up in the Australian, Canadian, and South African settlements, which have been fostered by Parliament at home, which have been progressively modified and adapted to local wants and instincts, and which have been built up in view of perpetuity, should be assaulted or even menaced by capricious interference at the hands of the parent State. Infact the mere statement of the hypothesis demonstrates its absurdity. Nevertheless, the limits of the right of interference, especially in the matter of exclusive laws of trade, must be a subject of constant political controversy; and though no constitutional principle can as yet be appealed to in the place of the bald legal doctrines of an older time, there is little doubt that a sense of right and of general expediency will, after many a controversy and even sharp struggle, find a solution of the problem.
The original formation and the recent history of the Constitution of the Colony of Victoria are so instructive in many points of view, as exhibiting in a sort of reflected picture both the essential characteristics of the English Constitution, and also the peculiar difficulties with which all Constitutions framed after the fashion of it may one day have to contend, that it is worth while giving some detailed account of the existing constitutional circumstances of that Colony.