CHAP. I

DEPARTMENT OF WAR AND COLONIES

7

would require to be re-elected under the provisions of the Act of 1708, but he would escape the exclusion of the Place Act of 1742,2 and so the practice of Parliamentary control could be extended to the Colonial Office. Unfortunately, the creation of the department was soon followed by the loss of the American colonies, and in 17813 the office of Third Secretary, or Secretary of State for the Colonies, was, with the Council of Trade and Plantations itself, swept away. Such colonial business as remained was transferred to the "Home" office, which, with the "Foreign" office, by a new arrangement made in 1782,5 replaced the former Northern and Southern departments. For some time the personality of the old Colonial Department survived in the separate staff of the "Office for Plantations," which existed inside the Home Office, but even this distinction had disappeared before 1795.6 Until the year 1801 the business of the colonies continued to be transacted in the Home Office."

But in that year another change was made. The necessities of the great French war had led to the establishment, on the 11th July 1794,8 of a permanent War Department, presided over by a Secretary of State, and in 1801 the business of the colonies was transferred to this new department, the head whereof was thenceforward known as the "Secretary for War and the Colonies." This arrangement continued till some years after the founding of Port Phillip, and fixed the number of Secretaries of State at three. But, still, it must be remembered that the position of a Secretary of State is functional only, not organic. There is no law which compels Her Majesty to appoint any particular number, and the division of business can be varied at any time, while each Secretary can act for any other in all matters properly cognisable by a Secretary of State. It must be borne in mind also, that the other secretaryships referred to at this period of history, the Secretaryship at War held by Lord Palmerston in 1812 and 1827, and the Chief Secretaryship for Ireland created at the time of the Union, are not Principal Secretaryships of State at all. It is still more important to remember that, during the present century, the

9 Strictly speaking, the Home Secretary is to this day responsible for the affairs of Ireland, the Chief Secretary being his official subordinate.

Secretary for the Colonies has invariably been a member of Parliament, and nearly always in the Cabinet. This practice it is which has enabled Parliament, by means of questions asked of the Colonial Secretary or Under-Secretary,1 to take part in the actual administration of the colonies. The right of Parliament to legislate for the colonies was formally claimed in 1766,2 and has often been exercised.

We have now traced the growth of the two principles which, at the founding of Port Phillip, determined the form of the constitutional relations of the English government with the colonies. We may close the chapter with a quotation, which illustrates the working at that time of the two principles, the principle that the colonies are governed by the Crown, and the principle that that government must be conducted in accordance with the views of Parliament. The extract relates specially to colonial legislation, but it may serve as an illustration for general colonial business.

"All Acts passed by Colonies having Legislative Governments are transmitted to the Secretary of State to be laid before Her Majesty. These Acts are forwarded by the Secretary of State to the Clerk of the Privy Council, and are thus submitted to Her Majesty, who thereupon orders a reference to be made to the Board of Trade. The Secretary of State, being himself a member of the Board, communicates with the President by means of minutes, pointing out in the first instance the Acts which appear to him to require the peculiar attention of the Board, or which should be referred for the opinion of any other Department of the Government (most frequently the Treasury). Those Acts which do not appear to him to fall within the peculiar province of the Board of Trade are recommended to be confirmed, disallowed, or left to their operation, as the case may require, which recommendation is, as a matter of course, complied with; but all the Acts of this class of Colonies must receive the formal sanction of the Board of Trade before being assented to by the Crown.3

That is to say, a colonial question came in the first place before the Secretary for the Colonies, who was nominally a servant of the Crown, but really a great parliamentary official with a seat in the Cabinet. By him it was laid before his

1 When the Colonial Secretary is a peer, the Under-Secretary is always chosen from the House of Commons, and conversely. So there is always some one to be questioned.

2 By the 6 Geo. III. c. 12. The Act expressly mentions only the American colonies, but there is no doubt that the claim was meant to be general. The Act has never been repealed.

3 Thomas, p. 81.

CHAP. I

COLONIAL BUSINESS IN 1835

9

principal, the Crown, which referred it to its regularly appointed advisers on such subjects, the Committee of the Council for Trade and Plantations, or, as they were usually called, the Board of Trade, who finally advised the Crown as to its course of action. But, ever since the days of Huskisson's fiscal reforms, the President of the Board of Trade had also been a Cabinet Minister, responsible to Parliament. And so ultimately Parliament controlled the whole matter. Such anomalies occur at every turn in the English constitution, and it is only by patiently unravelling their history that we can learn how the government of the empire has assumed its present character.

CHAPTER II

THE LOCAL1 GOVERNMENT OF THE COLONIES (AND PARTICULARLY OF NEW SOUTH WALES) PRIOR TO THE YEAR 1835

4

As has been before said, such local constitutions as the earlier English-speaking colonies possessed were usually acquired by direct charter or proclamation of the Crown. The first important deviation from this rule was in the case of the colony of Quebec, which by statute of 17742 received an improved form of local government. The precedent was followed, in the year 1791, by Mr. Pitt's famous Canada Act, which united the two provinces of Quebec and Ontario. It has been declared by high authority that the reason for the introduction of Parliamentary action into the government of Canada was the desire to concede to the Roman Catholic colonists certain rights inconsistent with the severe Conformity statutes then existing, and with which the Crown had no power to dispense. But the application of the principle about the same time to the government of India, and, soon after, to Australian affairs, makes it more probable that the change was really due to the growing extension of Parliamentary influence over all departments of state.

1 The word "local" is used throughout this chapter to distinguish matters conducted in the colony from those conducted by the Home government.

2 14 Geo. III. c. 83.

3 31 Geo. III. c. 31. (These two statutes should be carefully studied, for they contain the modern policy of the English government with regard to colonial constitutions.)

4 See Report of the Committee of Her Majesty's Privy Council for Trade and Plantations (4th April 1849), in Victorian Votes and Proceedings, 1849, pp. 702-712.

5 This is a curious instance, if it be true, of deference to the teachings of history. James II. lost his crown by his exercise of the dispensing power. George III. would have been only too ready to enforce the existing legislation against the Catholics, if his ministers would have allowed him.

CHAP. II FORMULA OF CONSTITUTIONAL PROGRESS

II

Be this as it may, the practice of the present century has been, whilst leaving to conquered acquisitions as much as possible their previous forms of government, to confer local constitutions by Act of Parliament upon possessions acquired by settlement. The course of proceeding has been fairly uniform. First, there has been a purely despotic government, when the colony has been ruled as a military position by a Governor and a handful of officials appointed by the Home government. Then there has been a constitution, with a Legislative Council, partly appointed by the Governor and partly elective. Of this Council the Crown officials have always formed part, but the executive has been unassailable by the legislature, and responsible only to the Colonial Office; possessions in these two stages being known technically as "Crown Colonies." In the third stage, there have generally been two Houses of Legislature, both elective, or one elective and one nominee, and the executive has consisted of officials chosen for their Parliamentary position, and liable to dismissal, like ministers in England, in consequence of an adverse vote of the legislature. This is the era of "Responsible Government."

Until the year 1823 the colony of New South Wales had been in the first, or military stage of government. The commission to its founder, Governor Phillip, practically vests despotic powers in his hands. There is no word of a local council, and the Governor has merely to take the oath to observe the laws relating to Trade and Plantations.1 The civil and criminal courts established 2 under the 24 Geo. III. c. 56,3 and the consequent Orders in Council, make no provision for any popular element in the administration of justice.5 Perhaps the most important check on the despotic power of the early Governors was the establishment, by Letters-Patent of 5th May 1787, of a Vice-Admiralty Court, though, as the Governor was

1 See copy of commission in Barton, History of New South Wales, i. p. 474. The accompanying instructions (23d April 1787) are mainly economic in character. 2 By Letters-Patent of 2d April 1787 (Barton, i. p. 531).

3 The Act legalising transportation.

4 of 6th December 1786 (fixing eastern coast of N. S. W. as place for reception of convicts).

5 Unless, possibly, the presence of assessors appointed by the Governor may be regarded in that light.

6 Copy in Barton, i. p. 537. It appears by a recital in the commission of Sir James Dowling as commissary of the court (Callaghan, Acts and Ordinances, ii. p. 1426), that there had been earlier Letters of the 12th April 1787.