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Colonies with respect to the functions of the Governor is further illustrated by a question simultaneously raised in Natal in respect of an apprehended intrusion upon that Colony of the authority of the Governor of the Cape of Good Hope. In a Memorial addressed to the Queen, the colonists expressed themselves as follows1:— 'The pride which the colonists of Natal feel in their 'independence—an independence which, we most confi'dently affirm, has been nobly used and never abused— 'is one of the interests to be reconciled in discussing 'the possibility of union with the other States and 'Colonies of South Africa, and it was no doubt in re'cognition of this fact that promises have been repeat'edly made, both by your Majesty's Secretary of State 'and your Majesty's High Commissioner, that no steps 'should be taken towards confederation except with the 'full consent of the Legislature of this colony, delibera'ting under the shelter of your Majesty's gracious 'charter of political rights. It is, therefore, with sur'prise, regret, and apprehension, that we notice that, 'in accordance with the terms of a despatch addressed 'to the Lieutenant-Governor of Natal by your Majesty's 'Secretary of State for the Colonies, and dated the 21st 'September last, all questions, except those affecting 'the mere internal affairs of this colony, are to be 'referred, not, as heretofore, to your Majesty's Secretary 'of State, but to the Governor of the Cape of Good 'Hope. We are anxious beyond all things to put the 'best construction on the acts of your Majesty's Go'vernment, which has shown so much interest in South 'African affairs. We cannot, however, when we com
1 See Daily News, May 7, 1879.
Memorial of the Colonists of Natal. 421
'pare this despatch with a despatch of similar tenor 'and of the same date addressed to the administrator of 'your Majesty's Government in the Transvaal, entertain 'any doubt that by these directions it is intended to 'bring about a Confederation of the South African 'States already under the British flag, without consult'ing the independent Legislature of this colony. The 'instructions in the despatches referred to virtually
* constitute the Governor of the Cape of Good Hope 'Governor-General of South Africa, and as yet no law 'has been passed by the Legislature of this colony 'recognising the existence of any such authority, nor 'has the charter so graciously granted to us by your
* Majesty been either altered or revoked. We most 'respectfully yet firmly protest against this course as 'being not only a violation of the spirit and intention 'of your Majesty's gracious charter, and of promises 'repeatedly made to us in your Majesty's name, but as 'also being a measure calcidated to defeat the very end 'it has in view, and to create irritation and disunion
* where, as we must presume, the object aimed at is 'unity and tranquillity. And while we thus speak for 'ourselves we must express our grave fears as to the 'effect which the publication of these despatches will 'exercise upon the Dutch population in the Transvaal. 'We therefore most respectfully and earnestly beg that 'this decision on the part of your Majesty's Government 'may be reconsidered, and your Majesty's loyal subjects 'allowed the full benefit of the provision of your Ma'jesty's most gracious charter.'
LIBERTY OF THE SUBJECT.
Thehe is no expression which is more familiar in the popular mouth, when adverting to the characteristics of the English Constitution, than that of • the liberty of the subject.' In fact, to a large class of persons who have little taste for the somewhat technical arrangements which determine the relations to each other of the Crown and the Houses of Parliament, the expression 'liberty of the subject' carries with it most of what they understand by and value in the Constitution under which they live. It is less to the establishment of the supremacy of Parliament at the Revolution, or to the slow ascending steps by which in the reigns of the Edwards the House of Commons climbed to its ascendency in the State, than to recollections,—confused indeed, and generally most erroneous,—of certain clauses in Magna Charta, of the general bearing of the Habeas Corpus Act, and of portions of the Bill of Rights and of the Act of Settlement, to which the popular imagination turns, when vindicating the incomparable claims of the English Constitution. If any one would turn to the written Constitutions of every one of the American States, he would find the doctrines appertaining to the liberty of the subject, as they are scattered up and down such notable monuments as those above alluded to, clearly coditied, and forming a subLiberty of the Subject. 423
stantial, if not a preponderant, portion of the rights guaranteed by the State to all its citizens.
The public instinct is not mistaken in thus discerning what is that mark of the English Constitution which most decisively separates it from all known Constitutions other than those to which itself has given birth. It is not necessary to recur to the obsolete and often misinterpreted language of documents now rather of an antiquarian than of a practical interest. The liberty of the subject, when properly understood, is an independent principle in the Constitution, and lies far deeper than any temporary expression of it, however determined and magniloquent. There is a limit not only to the rights of the Executive, but even to the rights of the Legislature itself, when the exercise of either class of rights threatens to encroach on the independence guaranteed by the Constitution to every citizen. Where these limits are placed, and how far they may be shifted, or have been shifted, without losing the distinctness of their character, are questions arduous indeed, but not more arduous than multitudes of other questions which are instantly originated when it is sought, in constitutional matters, to substitute a mathematical exactness for moral certainty.
Not, indeed, that the Liberty of the Subject is simply an indefinite claim to resist legislative or executive encroachments; since the Courts of Law, in their interpretation of Statutes and their announcement of the principles of the Common Law, have, as respects the Executive at least, seldom had much hesitation in determining how far it can trespass on individual freedom. In the case of the Legislature, the limits are incapable of being fixed by any legal standard; and it is here, more than anywhere else, that the subtlest dangers to popular liberty sometimes lie concealed. This remark has a special pertinence in reference to the period which has elapsed since the passing of the first Reform Bill. The notion that individual freedom needed protection against the Crown and its officers, and even against an aristocratically-constituted Legislature, had long been fixed in the popular mind, and had been fortified by burning memories of victories won in Courts of Justice and often in fields of a more irregular warfare. But it was not unnatural to believe that, so soon as the people became adequately represented in Parliament, and indeed promised to attain an authority paramount over all privileged classes as well as over the highly organised engines of government, all fear of encroachments on private liberty, over and above such as might be called for in the strict and intelligently-interpreted interests of the whole community, might be dispensed with. The House of Commons was, henceforth, it might have been believed, an assembly mainly composed of popular tribunes,—sensitive even to captiousness of the minutest novel invasion of popular freedom, whether threatened through the medium of the police, the construction and administration of the criminal law, the requirements of the army and navy, or the claims of novel scientific theories for arresting disease and promoting general wellbeing.