LEGISLATIVE INDEPENDENCE.

 Previously we took occasion to demonstrate, on the basis of documents collected by Mr. Bancroft, in his History of the United States, that modern British colonists have been deprived of their just rights, and that the present system of Colonial Government and legislation is essentially unconstitutional.

At this crisis it may be useful to recapitulate the principal facts and results of our former demonstration. The precedents and principles established in the older British colonies apply now in full force to the free colonies of Australia. A knowledge of them may save much unprofitable argument, and may lead to a more speedy settlement of the great questions now under discussion.

The grand principle established by Bancroft is, that the subjects of the British Crown who planted America carried with them the whole rights and liberties to which they were entitled by the English constitution, as fully and unreservedly as if they had remained in England; and they were consequently entitled to a representative assembly, self-government, and independent legislation.

The first colony of Great Britain was that of Virginia, established in 1606, under a charter by James I. The body of adventurers on whom the charter was conferred was composed of every rank and class in the community. They comprehended twenty-one peers, ninety-eight knights, and a multitude of esquires, gentlemen, merchants, and citizens. It was declared in the charter that all persons voyaging to and settling in the colony, and the children born within its precincts, should have and enjoy all liberties, franchises, and immunities, to all intents and purposes, as if they had been abiding and born within the realm of England. Twelve years after its settlement, when the colony possessed only six hundred inhabitants, it acquired a constitution which became the model for the subsequent settlements in North America.

Its terms (says Bancroft) are few and simple. A governor, to be appointed by the company; a permanent council, likewise to be appointed by the company ; a general assembly, to be convened yearly, and to consist of the members of the council, and of two burgesses to be chosen from each of the several plantations by their respective inhabitants. The assembly might exercise full legislative authority, a negative voice being reserved to the governor, but no law or ordinance would be valid unless ratified by the company in England. With singular Justice, and a liberality without example, it was further ordered that after the government of the colony shall have been framed, no orders of the court in London shall bind the colony, unless they be in like manner ratified by the General Assembly.

Henceforward might the historian well say, "the supreme power was held to reside in the hands of the Colonial Parliament, and of the King, as King of Virginia.''

Precisely the same system was adopted in Maryland in the year 1638. The third Assembly of that colony published a declaration of rights, which was therefore established to the following effect :—

Acknowledging the duty of allegiance to the English Monarch, and securing to Lord Baltimore his prerogatives, it likewise confirmed to the inhabitants of Maryland all the liberties which an Englishman can enjoy at home, established a system of representative government, and asserted for the general assemblies in the province all such powers as may be exercised by the Commons of England.

It should be observed that these early constitutions were recognised by James I. and Charles I., the most arbitrary of English monarchs. The latter even went so far as to recognise the Virginian Legislature as an independent body, by applying to it for a monopoly of tobacco, the staple produce of the colony.

By these monarchs, and by Charles II., similar and even greater privileges were granted to the New England States, which latter, under Charles II. and the wise Lord Clarendon, became more like friendly in-dependent states than subject provinces. The charter of Connecticut, framed in 1662 by Lord Clarendon,

Conferred on the colonists unqualified power to govern themselves. They were allowed to elect all their own officers, to enact their own laws, to administer justice without appeals to England, to inflict punishments, to confer pardons, and in a word to exercise every power deliberative and active. The King, far from reserving a negative on the acts of the colony, did not even require that the laws should be transmitted for his inspection, and no provision was made for the interference of the English government in any event whatever. Connecticut was independent except in name.

To Rhode Island even greater liberality was displayed.

The supreme power was committed—the rule continues to-day—to a governor, deputy - governor, ten assistants, now called senators, and deputies from the town. It marks a singular moderation that the scruples of the inhabitants were so respected that no oath of allegiance was required of them. The laws were to be agreeable to those of England, yet with kind reference to the constitution of the place and the nature of the people."

No wonder that the thanks of the colony were voted to, "King Charles of England for his high and inestimable, yea, incomparable favor," and to Clarendon the historian, the statesman, the prime minister, who had shewn " to the colony exceeding great care and love ;" and no wonder that the Rhode Islanders continued the most loyal and the best ordered community in the British dominions.

The last proof we shall adduce of the rights of British colonists is from " A state of the Case " proposed by James Otis, of Boston, in 1764, about a hundred years after the date of the Rhode Island Charter, at a time when the British Government and Parliament are commencing usurpations which are only now in course of partial abandonment.

By the laws of nature and of nations, the voice of universal reason and of God, by statute law, and the common law, this memorial claimed for the colonists the absolute rights of Englishmen personal security, and liberty, the rights of property, the power of local legislation, subject only to the king's negative, as in Ireland, and the sole power of taxing themselves. "The authority of the Parliament of Great Britain," such were the words of this paper, "is circumscribed by bounds, which, if exceeded, their acts becomes mere power without right, and consequently void. Acts of Parliament against natural equity are void. Acts against the fundamental principles of the British institutions are void." "The wild wastes of America have been turned into pleasant habitations ; little villages in Great Britain into manufacturing towns and opulent cities ; and London itself bids fair to become the metropolis of the world. These are the fruits or commerce and liberty. The British Empire, to be perpetuated, must be built on the principles of justice." Such were the views of Otis, sent by Massachusetts to its agent in London " to be improved as he might judge proper."

The series of precedents thus laid before our readers are at the present juncture of the deepest importance. It was mainly during the period from 1606 to 1764 that all the great principles of the British Constitution were agitated, debated, and settled. The rights and liberties of the people, the privileges of parliament, and the extent of the prerogative, were all in turns discussed and contested in the cabinet, in the houses of legislation, and on the battlefield. Yet in all these struggles there was no debate as to the claims of the colonists. Even the most despotic of monarchs recognised their right to self-government and independent legislation, and refrained from exercising an obnoxious and unconstitutional prerogative. It was not till one hundred and fifty years after the establishment of British colonies that the British Parliament and Government put forward a claim of despotic authority; and the enforcement of that illegal and unconstitutional claim cost the country the loss of an empire.

It is painful to think that in regard to all the weaker colonies that remained in possession of Britain, the new usurpation was continued. In North America, in South America, in the West Indies, at the Cape of Good Hope, in Australia, the incubus of Downing-street despotism was retained. For a long time it is true Britain kept her colonies under this yoke, by tempting monopolies. Discriminating duties in favor of timber, corn, sugar, wine, &c, were the bribes that kept the colonies quiet; but no sooner had the system of free trade put an end to these sugarplums than the colonies discovered that they lived under a virtual tyranny. Those that were sufficiently powerful immediately asserted and vindicated their rights. The Canadian and the Cape provinces already possess constitutions framed by themselves; the British Ministry have extended a similar privilege to the Australian colonists and our Constitution Bill is now before Parliament.

In our present circumstances it is of the greatest importance that our rights and our position should be precisely ascertained. Last year, in consequence of the liberal declarations of the British Ministry, we suspended the elaborate demonstration of these rights ; but the postponement of the Constitution Bill, and the arbitrary conduct of the Government in now enforcing unjust measures with the strong hand, compel us to enter again upon the controversy. The importance of the demonstration will be appreciated, when it is remembered that if the privileges for which we contend are birthrights never forfeited, and not favors to be conferred by a British Parliament, then the circumstance that the Constitution Bill is postponed can have no effect in justifying the arbitrary proceedings of the British Government.

We hold that our Legislature, imperfect as it is, occupies in this colony, and so far as the colonial interests are concerned, the position of the British Parliament with reference to Her Majesty. In this view it is entitled to act as the restrainer of the prerogative. The writer whom we quoted lately on this subject states that " when the King claims rights as falling within the scope of any part of his prerogative which are opposed to the common good, there are remedial powers which bring things right, and it is one of the most important functions of the two Houses of Parliament."

The conclusion, we trust, is now plain to the meanest capacity. Unless the people of this colony have forfeited their birthright, they are entitled to free and independent legislation, and their Legislature is entitled to restrain the exercise of the Queen's prerogative, when it is opposed to the common good. How much more are they entitled and bound so to act, when the exercise of that prerogative stultifies their own acts, sets at nought the decisions of our courts, tends to bring law and justice into contempt, increases the insecurity of life and property, and is destructive of the best interests of the community at large.

Argus (Melbourne, Vic.), 17 October 1854 http://nla.gov.au/nla.news-article4799072