Изображения страниц

' venient speed after the twenty-second day of April • 1834 close their commercial business and make sale • of all their merchandise, stores, and effects at home and abroad distinguished in their account-books as

commercial assets, and all their warehouses, lands, • tenements, hereditaments, and property whatsoever ' which may not be retained for the purposes of the • Government of the said territories, and get in all

debts due to them on account of the commercial • branch of their affairs, and reduce their commercial

establishments as the same shall become necessary, and discontinue and abstain from all commercial business which shall not be incident to the closing of their ó actual concerns, and to the conversion into money of • the property herein before directed to be sold, or which

shall not be carried on for the purposes of the said • Government. It is the 43rd section of this Act which distinctly creates the Governor-General in Council a subordinate Legislature. The general legislative powers conceded are restricted by the latter part of the section, which makes the important exceptions that 'the said Governor-General in Council shall not have

the power of making any laws or regulations which • shall in any way repeal, vary, suspend, or affect any of “the provisions of this Act, or any of the provisions of

the Acts for punishing mutiny and desertion of officers 6 and soldiers, whether in the service of His Majesty or • the said Company, or any provisions of any Act hereafter to be passed in anywise affecting the said Company or the said territories or the inbabitants thereof, or any laws and regulations which shall in any way affect any prerogative of the Crown, or the authority of Parliament, or the constitution or rights of the Act for the Better Government of India. 171 said Company, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United • Kingdom, or the sovereignty or dominion of the said • Crown over any part of the said territories. The next section, the 44th, gives power to the Court of Directors of the Company to disallow any law or regulation made by the Governor-General in Council.

The last epoch in the course of claiming for Parliament the direct government of India through the medium of the Prerogative of the Crown is marked by the passing of the Act of 1858 for the better Government of India,' by which the government of the British territories in India was transferred from the East India Company to the Crown. (21 and 22 Vict. cap. 106.) The first section of this Act enacts that the Govern'ment of the territories now in the possession or under • the Government of the East India Company, and all • powers in relation to Government vested in or exercised by the said Company in trust for Her Majesty, sball cease to be vested in or exercised by the said • Company, and all territories in the possession or under • the Government of the said Company, and all rights • vested in, or which if this Act had not been passed "might have been exercised by, the said Company in re• lation to any territories, shall become vested in her • Majesty, and be exercised in her name; and for the • purposes of this Act India shall mean the territories • vested in Her Majesty as aforesaid, and all territories • which may become vested in Her Majesty by virtue • of any such rights as aforesaid.' The fourth section enacts that India shall be governed by and in the name of Her Majesty, and all rights in relation to any “territories which might have been exercised by the said • Company if this Act had not been passed shall and • may be exercised by and in the name of Her Majesty • as rights incidental to the Government of India ; and all the territorial and other revenues of or arising in India and all tributes and other payments in respect of any territories which would have been receivable by or in the name of the said Company if this Act had not been passed, shall be received for and in the name of Her Majesty, and shall be applied for the purposes of the Government of India alone, subject to the provisions of this Act.'

The subsequent legislation by which the powers of the Viceroy and his Council have been defined, and the relations between the Government at home and the Government in India have been ascertained and regulated, properly belongs to the topic of the Prerogative of the Crown in its reference to Parliament, under which head it will be discussed.

The Act for enabling Her Majesty to accept a sur? render upon terms of the lands, privileges, and rights

of “the Governor and Company of Adventurers of 6“ England trading into Hudson's Bay," and for admit

ting the same into the Dominion of Canada,' which was passed on July 31, 1868, affords another instance of the process by which Parliament gradually brings within the range of a centralised form of Government outlying districts and territories which, for as long as two hundred years, may have been subject to no other administration than the peculiar and local one assigned by a Charter conceived far more in the interests of trade

Colonies having no Constitution.


than of government. Had the American Colonies not revolted, there can be little doubt that Parliament must have been called upon to provide some effective modern substitution for the old Charters under which they came into existence; but the course of American history has itself afforded so potent a precedent for the organisation of Colonies and more or less settled territories, that it is a mere vague speculation to conjecture what course colonial, history would have taken if unaided by the warnings and examples supplied by the experience of the United States.

The settlement of British Columbia, and the annexation of the Fiji Islands and of the Transvaal, though illustrating at some points the present topic—that of the progressive absorption of the government of newly acquired or imperfectly organised territories by Parliament,-still more aptly illustrate the modes in which Parliament and the Crown compete and co-operate in the achievement of this end. It will thus be more suitable to allude in detail to these instances of Parliamentary activity when the Prerogative of the Crown in its relation to Parliament is treated of.

3. It may well be doubted whether, when a Colony has a Constitution conceded by Parliament, Parliament can intervene to legislate for any persons or officials who are subject to the Legislature created by the Constitution. But, previous to the establishment of a Constitution, there is no doubt that Parliament may interpose for conferring rights and imposing duties on some or all the inhabitants of particular Colonies or territories, which in all other respects are governed directly through the medium of the Royal Prerogative. Thus, long before New South Wales and Tasmania

acquired Constitutions from Parliament, it was enacted, by the 9th George IV. cap. 83, sect. 24, that all laws and statutes within the realm of England at the time of the passing of that Act (not being inconsistent with any Charter, or Letters Patent, or Order in Council, which might be issued in pursuance thereof) should be applied in the Courts of New South Wales and Van Diemen's Land, so far as the same could be applied within the said Colonies. The Act also provided that the Governors of those Colonies, with the advice of the Legislative Councils, might by Ordinances declare whether any particular laws or statutes extended to such Colonies. The Statute 23 and 24 Vict. cap. 121, after reciting that divers of Her Majesty's subjects had occupied or might hereafter occupy places, being possessions of Her Majesty, but in which no Government has been established by authority of Her Majesty, renders general the provisions of the 6th and 7th Vict. cap. 13, by which the Crown was empowered to establish, by Order in Council, laws, institutions, and ordinances for the government of Her Majesty's settlements on the Coast of Africa, and the Falkland Islands. Similarly, special and remarkable powers for making laws and regulations are conceded by the Indian Councils Act of 1861 (24 and 25 Vict. cap. 67) to the Governor-General in Council, and to the Governor-General alone. The legislative power conferred on the Governor-General alone is restricted to cases of emergency, and the laws and regulations made by him in pursuance of it only continue in force for six months, before the expiration of which time they may be disallowed by the Government at home, or controlled or superseded by a law or regulation made in the regular way by the Governor

« ПредыдущаяПродолжить »