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3-237 (Text)

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author,male,Cardwell,un addressee,male
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Government English
Imperial Correspondence
Clark, 1975
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3-237-plain.txt — 5 KB

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First, I have no hesitation in saying that, independently of the judgment of the Supreme Court, no consideration, at least none that is discernible in your despatches, should have induced you to give your concurrence to the levying of these duties.
The plea that taxes are levied in this country on a vote of the House of Commons, before they are imposed by law, is manifestly irrelevant: such taxes are so levied because it is not doubted that the Bill imposing them, as from the date of the resolutions of the House of Commons on which the Bill is founded (and after which only they are levied), will become law, by the concurrence of the two other branches of the Legislature. If such concurrence were withheld, the sums so levied by anticipation would be repaid, and they would, of course, be no longer levied.
But in the present case you and your Government were perfectly aware that the Bill would not receive the sanction of the Whole Legislature, and the exaction of these duties was not in anticipation, but in defiance of the judgment of the Legislative Council. It was, therefore, not only in its origin unlawful, but there was every reason to presume that it would remain so. I look with extreme apprehension on a state of things in which the Government of a British colony is engaged in collecting money by mere force from those from whom the Supreme Court has declared that it is not due. It is an example of violence which may do incalculable mischief beyond the limits of the Colony in which it has been allowed to occur.
Next. I do not understand on what ground it can have been imagined that you were legally authorised to borrow from a private bank large sums of money on behalf of the public. No authority is alleged, and I am unable to conjecture any. The only excuse for such a proceeding would have been an overwhelming public emergency of such a nature as to justify what was not justified by the letter of the law. But, as I have observed, you had already declared that no such emergency existed. And you were right, - no such emergency did exist. If payments were legally due from the Crown to public officers for salaries, or to any other persons on any account, it was open to such persons to recover what was due to them in the ordinary course of law.  It was for one or other branch of the Legislature to yield, or for both to compromise their difference. It was not for you to give a victory to one or the other party by a proceeding unwarranted either by your commission or by the laws of the Colony. I must point out that by such a proceeding the Governor and his Government, with the co-operation of a local bank, might at any moment withdraw any amount of public funds from the "public account" to which it is consigned by law, and place it at their own command, relieved from all the checks with which the Legislature has carefully surrounded it.
Thirdly. As to the expenditure of the moneys thus obtained. I find it difficult to suppose that by the Crown Remedies and Liabilities Act the Legislature intended to enable the Government to discharge, without its concurrence, those ordinary expenses of government which it reserves to itself the right to reconsider annually. It may, perhaps, be doubted whether office-holders who are under a standing notice that their salaries are dependent on laws annually passed by the Colonial Parliament, would be treated by the Supreme Court as having a claim upon the Government independently of any such law. But it is not alleged that the Supreme Court was ever called upon to give judgment on the question, and you do not inform me of any law which would warrant you in paying away any public money except under the authority either of such a judgment or of the Auditor's certificate.
As at present advised, therefore, I am of opinion that in these three respects - in collecting duties without sanction of law, in contracting a loan without sanction of law, and in paying salaries without sanction of law - you have departed from the principle of conduct announced by yourself and approved by me, the principle of rigid adherence to the law. I deeply regret this. The Queen's Representative is justified in deferring very largely to his Constitutional Advisers in matters of policy, and even of equity. But he is imperatively bound to withhold the Queen's authority from all or any of those manifestly unlawful proceedings by which one political party, or one member of the body politic, is occasionally tempted to endeavour to establish its preponderance over another. I am quite sure that all honest and intelligent colonists will concur with me in thinking that the powers of the Crown ought never to be used to authorise or facilitate any act which is required for an immediate political purpose, but which is forbidden by law.
It will be for the gentlemen who guide the opinions of the Colony, or form the majorities in the two Houses of the Legislature, to ascertain, and you will of course afford them every facility for ascertaining how the Government of the Colony is to be carried on. It is for you to take care that all proceedings taken in the Queen's name, and under your authority, are consistent with the law of the colony. 
As I said in the beginning of this despatch, I could have wished to postpone any expression of my opinion until I should be in possession of the papers which you lead me to expect by the next mail. But the continued violation of the law, with the concurrence of the Queen's Representative, would be so serious an evil, that I have felt compelled thus to address you now. I believe that I have stated correctly the facts of the case. I have given you my view of the law, arising from those facts. I have to instruct you in this, as in every other case, to conform yourself strictly to the line of conduct which the law prescribes.