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Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Title Page 1
        Title Page 2
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    Front Matter
        Front Matter 1
        Front Matter 2
        Front Matter 3
        Front Matter 4
    Editorial
        Page 67
        Page 68
    Foreword
        Page 69
        Page 70
    Main
        Page 71
        Page 72
        Page 73
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    Back Cover
        Back Cover 1
        Back Cover 2
Full Text



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CARIBBEAN

QUARTERLY
NUMBERS 2 AND 3


VOLUME 6
o,, f ,"

































COVER ILLUSTRATION


THE FEDERAL MACE

This silver-gilt mace, which is a gift from the House of Commons, was
presented to the Federal Parliament by a United Kingdom Parliamentary
Delegation on Monday, 1st December, 1958. It measures approximately four
feet and weighs 220 ounces.
The design of the mace is based on that of the House of Commons mace
and embodies its essential features, notably a head surmounted by Orb and
Cross and Royal Arms, with the Arms of the West Indies alternating with the
Royal Cipher.
The head is supported on the shaft by four brackets in the form of pelicans.
The shaft is decorated with engraved representations of various West Indies
activities such as oil and bauxite mining, tobacco, cotton, rice and sugar.
At the foot of the mace lie four lions symbolising support and, guardianship
of the Federation.



From being a fearsome weapon of war, the mace evolved as far back as
1647 into a symbol of Parliamentary authority. The Sergeant-at-Arms, or the
mace-bearer as he is more popularly known in this region, bears it before the
Speaker when he is entering the Chamber and when he is leaving the Chamber.
Indeed, the mace is the Speaker's symbol of authority. It is placed before him
on the Table when he is sitting in his chair in the Chamber, and is removed
when he leaves the chair.






CARIBBEAN

QUARTERLY









Vol. 6
1960
















KRAUS REPRINT
Nendeln/Liechtenstein
1970




















Reprinted from a copy in the collections of the
University of Florida Librairies


Reprinted by permission of
UNIVERSITY OF THE WEST INDIES, Kingston, Jamaica
KRAUS REPRINT
A Division of
KRAUS-THOMSON ORGANIZATION LIMITED
Nendeln/Liechtenstein
1970

Printed in Germany
Lessingdruckerei Wiesbaden







Vol. 6. Nos. and & May, 1960


CARIBBEAN


QUARTERLY


CONTENTS
PAGE
EDITORIAL
The Federal Principle 67

FOREWORD 69

CANADA'S FEDERAL EXPERIENCE
Alexander Brady 71

AUSTRALIA-BACKGROUND TO FEDERATION
F. W Mahler 81

THE CONSTITUTION OF AUSTRALIA
S. S. Ramphal 95

EARLY CONSTITUTIONAL HISTORY OF JAMAICA
C. V Gocking 114

THE ROAD BACK-JAMAICA AFTER 1866
R. N. Murray 134

THE TEMPORARY FEDERAL MACE
Bruce Procope 142

THE CONSTITUTIONAL HISTORY OF TRINIDAD AND TOBAGO
H. 0. B. Wooding 143

THE CONSTITUTIONAL HISTORY OF THE WINDWARDS
Coleridge Harris 160

THE CONSTITUTIONAL HISTORY OF THE LEEWARDS
Cecil A. Kelsick 177

FEDERALISM IN THE WEST INDIES
S. S. Ramphal 210








CONTEN S--CONTINUED


PAGE
1959-A SUMMARY OF CONSTITUTIONAL ADVANCES
(a) TRINIDAD AND TOBAGO
Harvey de Costa 230

(b) JAMAICA
Harvey de Costa 231

(c) THE LEEWARD AND WINDWARD ISLANDS
F. A. Phillips, LL.B. Barrister-at-Law 232


BIOGRAPHICAL NOTES 236









AN APOLOGY-We regret that due to unforeseen circumstances we have been
unable to include the lecture on the Constitutional History of Barbados by Mr. W
Ferguson. We hope to include it in a future issue of Caribbean Quarterly.





















NOTE ON MANUSCRIPTS


MSS. and Communications to the Editors should be addressed to either Editor of
the Caribbean Quarterly at their respective addresses, and not to an individual.
Unsolicited MSS. which are not accepted for publication will be returned if accom-
panied by a stamped addressed envelope.


Copyright reserved, and reproduction without permission strictly forbidden.









UNIVERSITY COLLEGE OF THE WEST INDIES
CARIBBEAN QUARTERLY
Editors:
PHILIP M. SHERLOCK, U.C.W.I., Trinidad, W.I.
RAWLE FARLEY, Extra Mural Studies, Mona, Jamaica, W.I.

Managing Editor:
Resident Tutor for Extra Mural Studies of Trinidad and Tobago.
Single copies can be obtained in the West ladies from booksellers or from the
Extra Mural Department, in various territories, as appears oelow


Resident Tutors
Jamaica

British Honduras

British Guiana

Barbados and St. Vincent

Trinidad and Tobago

Local Representatives
Leeward Islands




Windward Islands
(Excluding St. Vincent)


Extra Mural Department, University College of the West
Indies, Mona, Jamaica, W.I.
Extra Mural Department, Baron Bliss Institute, Belize,
British Honduras.
Extra Mural Department, 72, Main Street, Georgetown,
British Guiana.
Extra Mural Department, Victoria Street, Bridgetown,
Barbados, W.I.
Extra Mural Department, 113, Frederick Street, Port-of-
Spain, Trinidad W.I.

Extra Mural Department, P.O. Box 142, St. John's,
Antigua, W.I.
Extra Mural Department, P.O. Box 5, Basseterre,
St. Kitts.
Extra Mural Department, c/o Education Department,
Plymouth, Montserrat, W.I.
Extra Mural Department, Castries, St. Lucia, W.I.
Extra Mural Department, St. George's, Grenada, W.I.
Extra Mural Department, Roseau, Dominica, W.I.


HOW TO SUBSCRIBE
Subscribers in the West Indies and the United
Kingdom (4 issues post free) $2.00 B.W.I. or 8/4
Subscribers in the United States of America $2.00 (U.S.)
Do. do. Canada $2.00 (Canadian)
Do. do. Haiti 8 gourds
Fill in the form below and send with subscription to:
Caribbean Quarterly Editorial Office,
113, Frederick Street,
Port-of-Spain, Trinidad, W.I.
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A SELECTION OF CONTENTS FROM PAST ISSUES
VoL III, No. 4
Trinidad Town House ... Colin Laird
French and Creole Patois in Haiti Edith Efron
The Choice and Use of Words .. Sir Thomas Taylor
Form and Style in a Bahamian Folktale Daniel J. Crowley
Goco and Mona M. Sandman
Antonio Macco J.A. Borome
VoL IV, No. 1
Africa in West Indian Poetry
The New Movement" in Haiti Edith Efron
Island Carib Folk Tales ... ... E. P. Banks
The Language Problem in the British Caribbean R. B. Le Page
Labor Relations in an Undeveloped Economy Simon Rottenberg
Jamaica Prepares for Invasion, 1779 Robert Neil McLarty
The First Chapter in Caribbean History ... Eric Murray
Frederick Douglass Letters from the Haitian Legation... Benjamin Quareis
VoL IV, No. 2
The Teaching of History in the Americas J. H. Parry
Festivals of the Calendar in St. Lucia Daniel J. Crowley
Launching a Schooner in Carriacou Bruce Procope
The Shadow and the Substance ... Rawle Farley
Tobago Villagers in the Mirror of Dialect H. B. Meikle
Quater-Centenary of Richard Eden's Decades of the Newe
Woride or West India, Etc.' John A. Ramsaran
Price : 50 cents (B.W.I. or U.S.) or 2/1 U.K. per issue.

TRINIDAD CARNIVAL RESEARCH DOUBLE ISSUE
VoL IV, Nos. 3 and 4
Carnival in Nineteenth Century Trinidad Andrew Pearse
The Traditional Masques of Carnival ... Daniel J. Crowley
The Changing Attitude of the Coloured Middle Class
Towards Carnival Barbara E. Powrie
Carnival in New Orleans ... ... Munro S. Edmonson
Mitt Sampson on Calypso Legends of the Nineteenth
Century (Arranged and edited by
Andrew Pearse)
The Midnight Robbers ... Daniel J. Crowley
The Dragon Band or Devil Band Bruce Procope
Pierrot Grenade Andrew T. Carr
Price : (Double Issue) 11.00 (B.W.I. or U.S.) or 4/2 U.K.
VoL V, No. 1
The Development of the Idea of Federation of the British
Caribbean Territories Jesse H. Proctor, Jr
Dark Puritan M. G. Smith
Trees His Testament Philip Sherlock
British Honduras and Anglo-.4n:'erican Relations David Waddell
VoL V, No. 2
Use and Disuse of Languages in the 'est Idies, Douglas Taylor
Juan Gualberto Gomez, A Cuban Portrait Dalen Pando
Dark Puritan 31. G. Smith
Words for Rent ... ... Derek Walcott
Mermaids and Fairymaids or Water Gods and Godlesscs
of Tobago H. B. Meiklo
The Negro Writer and his World George Lamming
British West Indian Imminiraticn tl Great Britain John Figueroa
VoL V, No. 3
An Anthology of West Indian Verse
Price: $1.00 (B.W.I. or U.S.) ,r 4, 2 U.K. per issue.
VoL V, No. 4
Dorothy Payne-a Newtremrr to Sriuplure 'cnndmniu
Rejection of European Culture as a Three in Caribbean
Literaltre G. 11. Coulthard
Vegetation in the Caribbean Area .. G. F. Asprcy
The Couronians and the West Indies-The First
Settlements Edgar Anderson
William Dampier (1652- and Bure
in the West Indies ... ... John A. Ranmsaran
The Panan, an Afhbuhia, iligious Rite of Transition M3ehillo J. Hcrskovits
Dark Puritan, Pa't I111 3. G. Smith
Price : 60 cents (.1W.I. or U.S.) or 2/6 U.K. per issue.







Editorial

THE FEDERAL PRINCIPLE

FEDERATION is a political, economic, and social necessity in the British
Caribbean. Between the idea and the reality, however, lie the substantial
difficulties which other territories have experienced in their Federal develop-
ment. Arthur W. Macmahon speaks directly to the point when he writes :
"In the formative stages of federalism, both historically for national states
and especially now at supranational level, the desperate need is a modicum
of union where unity is impossible. When federal systems mature, the problem,
along with endless practical contrivances for uniformity or concert among the
various jurisdictions, appears basically the double question of the desirability
and the practicability of maintaining a decentralized pattern originally dictated
by necessity." 1
The Federation of the West Indies is in its formative years. The Federa-
tions of Canada, Australia, and the United States are in their mature years.
The problems they faced we are facing now. A knowledge of the experience
of these older federations can lend to the West Indies invaluable emotional
assurance and philosophic calm that all would be well in the long run with the
tremendous and necessary Federal experiment upon which the West Indies
has embarked. Brady in his lecture speaks wisely of "the ethical basic impera-
tive for every successful federation-a wide and indulgent tolerance for
diversities of thought and diversities of interest, and patience in seeking their
reconciliation. This is the thought from which we enter into the whole record
of experience and ideas embodied in this issue of Caribbean Quarterly.
The purpose of this issue is deliberate. It is to continue to stimulate
objective and informed discussion and thinking about the idea of Federation.
Emotion, desire, and knowledge go together, Plato observed some centuries
ago. The original series of lectures was initiated by the University College of
the West Indies Extra-Mural Resident Tutor in Trinidad and Tobago and
presented in collaboration with the Federal Government Information Office
and the Trinidad and Tobago Public Library Committee. It is now being
presented in this permanent form for the mature consideration of the people
of the British Caribbean and for others interested in our problems and the
problems of Federalism in general.


The Editors



Ed. Macmahon-Federalism mature and emergent-New York, 1955. p. 3.










Foreword


FORMAL OPENING BY HIS EXCELLENCY THE
RT. HON. LORD HAILES, G.B.E., GOVERNOR-GENERAL
OF THE WEST INDIES, OF A SERIES OF LECTURES
ENTITLED "THE FEDERAL PRINCIPLE" ON
TUESDAY, 24TH FEBRUARY, 1959


IT is a privilege to be asked to open this series of lectures which have been
arranged under the title of "The Federal Principle"; not only because of
their importance and significance at this stage of the constitutional develop-
ment of The West Indies; but also because it gives me a welcome opportunity
to congratulate all those who have joined together to make these lectures
possible; and to thank all the distinguished people who are taking part in them.

In arranging the presentation of this series of lectures it is good to know
that The Department of Extra Mural Studies of the University College of the
West Indies in Trinidad and Tobago, which has sponsored these lectures,
should have received such whole-hearted co-operation from both the Federal
and Trinidad Governments. I should particularly like to congratulate Miss Ivy
Lawrence in the first place, and also Mr. Richardson the Federal Information
Officer and Miss Lewsey of the Trinidad Public Library-where these lectures
are taking place-for all they have done.

Then we are indeed fortunate to have speakers who are not only
distinguished, but so widely representative. I feel I must particularly mention
Professor Commager who has come all the way from the United States
especially for this purpose, and also Mr. Mahler of Australia-who fortunately
did not have to come so far-both of whose contributions to our knowledge
of the growth of Federation in their own territories will be an essential part
of this series. In addition, prominent West Indians representing every territory
or group of territories-or near territories-of our Federation, are going to
make their own contributions. I am sure it is fitting to thank them all most
warmly before the event, as I know they will also be thanked most gratefully
after the event.

Lastly, but not least, we have an impressive and representative list of
Chairmen, who perhaps may not be able to resist making some comments,
though of course necessarily short, of their own.
6






In a little book I have, called "Forever Freedom", compiled by the late
Josh Wedgwood as he was affectionately known in the British Parliament,
I recently came across a passage from a letter written by George Washington
in 1783, seven years after the Declaration of Independence, in which he
says :-
"We are placed among the nations of the earth, and have a
character to establish; but how we shall acquit ourselves time must
discover. The probability (at least I fear it), is that local or State
politics will interfere too much with the more liberal and extensive plan
of government, which wisdom and foresight, freed from the mist of
prejudice, would dictate; and that we shall be guilty of many blunders
before we shall have arrived at any perfection in this art; in a word,
that the experience, which is purchased at the price of difficulties and
distress, will alone convince us that the Honor, power, and true interest
of this country must be measured by a continental scale, and that every
departure therefrom weakens the Union, and may ultimately break
the band which holds us together

I must say at once that in quoting this passage, perhaps an old chestnut
to historians, I am not distributing caps to fit anyone in The West Indies-
I can say with more truth than most that all the characters are purely
imaginary-but rather because I find it is so interesting to think that these
words were written of a people territorially adjacent to each other and having
lately combined together to fight for their independence.
I also find this passage encouraging. I am sure that a knowledge of
history which many present possess to a far greater degree than I, is very
good for the nerves; because with this knowledge comes a realisation that
there is nothing new under the sun and that others, now so strong and
powerful, have had their difficult beginnings too. Indeed, it would be extra-
ordinary if our own Federation now only one year old, and with many unique
handicaps, not the least of which are the dividing seas, did not suffer from
growing pains.
I am therefore not alarmed by controversy, for I believe that a greater
knowledge of the meaning of Federation will stem from it. I should be much
more alarmed by an apathy which led to no controversy at all.
However, be that as it may, much of what we hear or read today is
necessarily, and quite properly, influenced by political slants; and therefore
nothing could be more valuable at this stage than the series of lectures which
I have the privilege to open tonight, which will present a cool, calm,
impartial, analytical review of the background of Federation in the United
States and Australia in relation to our own West Indian historical development.
I hope that these lectures will be given the widest possible publicity;
that they will be preserved and publicised and I can truly say that all those
taking part in them may rest assured that they will be rendering, in the next
few days, a real and lasting service to a fine cause and to us all.







Canada's Federal Experience


BY ALEXANDER BRADY

THE essence of federalism usually consists in fashioning a large political
community out of many smaller ones without destroying them. It merges the
many into one in such a way as to guarantee that the many still play a
distinct and useful role within the ampler confines of the federal society. Thus
it enables the people of a region hitherto disunited to employ with more effect
their political intelligence on common problems, to achieve closer co-
operation, and to foster a more potent sense of inter-dependence, coupled
with the preservation of local autonomy.'
Separate political communities, federate under internal and external
pressures, and the degree of legislative power granted to the new federal
authority, compared with that left to the local units, depends on the strength
of these pressures. This is only another way of declaring that federal systems
conform strictly to no single model. Each is distinct because each represents
a special compromise, inspired and determined by time, environment, and
circumstances in the given country. Yet, whatever the nature of the original
compromise, every federation, in order to achieve its purpose and gain vitality,
or even endure, must inspire the people of the separate units with a deeper
sense than they had before, that they belong to one another. It must, on the
basis of this sense, further a reconciliation of material and other interests
within the region. It must feed and nourish ideals of a common nationhood.
In the light of these generalisations, I shall attempt to review the
experience of Canada in its federal evolution. The first and most important
fact is that the internal and external pressures in the main colonies of British
North America during the sixties of the last century created from the outset a
strong national authority. The initial historical situation favoured a sub-
stantial concentration of power. No less basic is the fact is that the Canadian
federation, like that of the United States but unlike that of Australia, has
passed through successive stages of territorial expansion. Consequently, in
attempting to create an inter-dependent federal society, its political leaders
have had to cope with fresh additions to the body politic and with fresh
problems of absorption. The experiment began in 1867 with four provinces
which embraced little more than one-tenth of the present area of Canada.
Two of these on the Atlantic seaboard were then separated by hundreds of
miles of virtually unpeopled forest from their two partners in the St. Lawrence
valley. Within six years the federation had acquired the imperial domain of

'A federation may also be created by transforming a unitary into a federal state,
bhich in a sense took place in India. But the most influential pattern of federalism in
the modern world is that referred to in opening paragraph above and is certainly the
pattern of Canada.






the Hudson Bay Company in the North-west, constituted the province of
Manitoba, recruited British Columbia on the Pacific littoral, and in Prince
Edward Island secured in the East another maritime province. The expansion
westward from the St. Lawrence valley was the crucial step in making
modem Canada: it ensured an invaluable hinterland for the inflow of people,
capital, and goods from the older provinces and abroad, It did more. It
guaranteed that these relatively empty territories of the West would not be
absorbed by the rapid and westward drives of the United States, still inspired
by ideas of Manifest Destiny. Without this hinterland Canada for all time
would have remained a minor rival of a giant neighbour, doubtless perplexed
and insecure in its sense of inferiority. Instead it has had the constant
challenge and stimulus of its own expanding frontiers to the West and North.

The piece-meal growth of the state to the inclusion of Newfoundland in
1949 has demonstrated the large element of regional and provincial bargains
in Canadian federalism, Each addition to the federation was secured in its
own way, presented fresh problems, and necessitated fresh solutions. But
transport services to stimulate provincial economies, combined with financial
terms to ease provincial budgets, have constituted the core of the bargaining.
Prosaic material interests, rather than national ideals, have commonly
dominated the attention of the politicians, who must however mould and fit
the disparate interests within the framework of the federal state. The whole
process of growth has been one of prolonged and patient negotiation, and
the continued maintenance of equilibrium and harmony has demanded
resilient attitudes. Constant bargaining between the provinces and the
national authority has been indigenous to Canadian federalism, as in some
measure such bargaining is indigenous to every democratic federation.
Federal union, like political liberty in general, conveys to a people who
accept it a wider but also a more contentious arena for politics, where the
arts of persuasion and conciliation, basic in self-government, are always at
a premium.

The five main regions of Canada (the Atlantic Provinces, Quebec,
Ontario, the Prairie Provinces, and British Columbia) have been determined
not merely by facts of geography, but by history, culture, and economics.
During much of the federal history the five regions might further be reduced
to two: the centre, embracing Ontario and Quebec, and the periphery
consisting of the Maritimes, the Prairie Provinces, and British Columbia,
From the outset the two provinces in the St. Lawrence valley have been the
heartland of economic and political power in Canada. In the first census
(in 1871) they had 70 per cent. of the population; today they still retain
62 per cent., and account for over 80 per cent. of Canadian manufacturing
output. Bolstered by rich hydro power, adjacent to the major industrial and
populated centres of the United States, and sided by the invaluable waterway
of the St. Lawrence, with its network of lakes and tributaries, their southern
portion sustains numerous cities. In Montreal and Toronto, the two principal
metropolitan areas, banks and businesses of every kind established head
offices.






This regional fulcrum of power, however, has inspired distrust and
jealousy among the people on the periphery, who have feared that the econo-
mic interests of the centre have unduly shaped national policy at Ottawa and
are often related to the manifest fact that material prosperity in the country
has been unevenly distributed. In 1926, as the Gordon Commission noted,
the average income per capital in the three Maritime Provinces was 38 per
cent, below the average for the other six provinces, and thirty years later
this situation had little changed.2 Throughout .the years the Maritime region
has had the uncomfortable feeling of not sharing to the same degree as
central Canada in the benefits of the nation's economic expansion. A common
feature of federations manifest in the Canadian is that the federating units
are born in inequality, however much the constitution may dedicate them to
the proposition of equal status. Some have abundant resources, strategically
situated in relation to markets, and some have few; some are wealthy and
some poor; some benefit generously from the advance of industrialism, and
some benefit little; and the securing of fair, if not equal, standards in public
services necessitates financial assistance from the national treasury. Thus
federation has come to imply a common pool to which regions rich and poor
contribute, but from which the poor inevitably derive more than they
contribute. Such has been the Canadian no less than the Australian experience,
and will likely be the West Indian. The craving for equal treatment of
citizens in the state, which de Tocqueville put at the heart of the democratic
impulse, is paralleled in the craving of the member communities of a demo-
cratic federation for like treatment.

These facts have made the government at Ottawa in policy and public
spending a balance-wheel for the economy of all regions and provinces, and
especially for the less opulent, Under the British North America Act it was
endowed with the powers deemed imperative for creating a national economy.
It controlled tariffs, trade, banking, currency, inter-provincial railways con-
necting different provinces, and it could raise revenue by any mode of
taxation, or borrow on the national credit. Hence it had most of the vital
authority needed to integrate and consolidate the nation's economic life,
although not the authority to legislate for all the social services that modern
collectivism has come to sanction. The more power it exercised in building
the economy, the more it felt impelled to exercise. Its appetite for action was
whetted by what it fed on.
The progress of industrialism has inevitably enlarged its role. The
complex society, produced by giant industries and the large aggregations of
urban dwellers, increases the demand for government action, and the national
parliament with an unquestioned capacity to raise money carries the ultimate
responsibility for satisfying the demand. Even when it lacks the competence
to legislate, it has the power to subsidize, which increasingly it has employed.


'Final Report of the Royal Commission on Canada's Economic Prospects-
(Ottawa, 1957), 403.
6 *






Thus, with its facility in raising and spending money, it acquires a decisive
initiative in economic and social policies. Since 1939, by means of conditional
grants, it has heavily subsidized the provinces out of the national treasury.
It replenishes the treasury by taxing concentrated wealth wherever it exists,
and it exists in the few wealthy provinces. Previously the number of con-
ditional grants was few, Now there are half a hundred. Some, such as those
aiding the reclamation of land and the promotion of Atlantic fisheries, affect
mainly a few specific provinces and regions. Others, such as those for public
health and old age assistance, appeal to all provinces, and enlist the support
of all, including Quebec.
This trend in federal intervention has been promoted by the forces ol
industrialism and nationalism, and accelerated by war and the preparation
for war. Especially evident is the avid desire of an industrial people for those
public services which happen to fall within provincial jurisdiction, such as
highways, welfare and health services, and education. The national govern-
ment," of course, might with strict constitutional propriety leave the provinces
alone to provide these services as best they can. But it has been constantly
pressed to feed them with federal funds. In some instances the strongest
pressure has come from the poor and less favoured provinces, but commonly
from organized interests in all, especially from those in the industrialized
regions. The more hurried the pace of urbanization, the more varied and
insistent are the levies on the national treasury. On their part federal poli-
ticians, in keeping with the modes of democracy, are loathe to miss an
opportunity of winning votes by spending money. They now find it easier
than hitherto to justify expenditure on the grounds of a compelling national
interest.
The burdens and tensions of the war are here profoundly important,
When a national government, such as that at Ottawa, freely spent money in
warfare upon land, sea and air, and then during an uneasy peace devoted
almost a third of its budget to expenditures on defence (which is still the
case), it is natural that the public should urge expenditure also upon the
amenities of society and the welfare of citizens. This it has done directly,
as in the elaborate scheme of family allowances initiated in 1944, and
indirectly through a wide variety of grants, conditional and non-conditional,
to the provinces. War has been a special exigency that has helped to make
Canadian federalism today different from what it was in 1914, or even in 1939.
It has accelerated, as doubtless nothing else could, the progress of
industrialism. It has no less and in a related manner revolutionized public
attitudes towards the national government as a collector of revenue and
spender of money. Even though within these years few actual clauses in the
B.N.A. Act have been altered, the new scale of national expenditure has
profoundly changed the federal system. This situation has provoked some
searching of hearts and anxious thought, and leads to another important
phase of Canada's federation.






At its birth in 1867, as already noted, the federation consisted of four
provinces and has since grown to ten. But it was and still remains not merely
a group of provinces but an informal pact of two peoples, with diverse
traditions and different cultures, French and English. The French comprise
some 30 per cent. of the total population, and are chiefly concentrated in the
province of Quebec. Since the Quebec Act of 1774 they have enjoyed freedom
for their own district elements of culture, language, civil law, religion, and
ecclesiastical institutions on lines that differ from those of English-speaking
Canada. A decisive majority of them reside in the one province of Quebec,
and hence they believe that provincial rights guarantee their own rights. For
them the province remains the sole and valued citadel of their culture. They
view anxiously any transfer of power from the provinces to Ottawa, lest their
cultural identity will be imperilled. In the post-war years, with the growth
of Ottawa's public spending, their anxiety has increased. In surveying the
panorama of post-war change the Tremblay Royal Commission, appointed
by the Quebec Government, confessed with undisguised regret (in 1956) that
"a vast network has been spread which binds the provinces to the central
government and which, to a certain extent, provides them with the financial
means of discharging their legislative functions, but always at the discretion
and on the terms of the wealthy and powerful donor."
Yet the French Canadians are not unanimous in fearing these evident
shifts in the balance of the federation. M1 Maurice Duplessis, the present
Premier of Quebec, incessantly champions the rights of the province against
all intrusions, real or threatened, from Ottawa, but it is not clear that Quebec
citizens are any less reluctant to accept family allowances from the national
treasury than are the citizens of Ontario or any other province. The plain
fact is that with the advance of industrialism Quebec is also changing in
character and sentiments. Important elements in the community, notably the
labour movement, perceive that their interests are interlaced with those of
like groups elsewhere in Canada. In the province the drift from farm to
factory has quickened. The old rural framework of life, in which for
generations the relatively isolated and homogeneous culture of the French
Canadians was sustained, crumbles under the persistent and ruthless strokes
of industrial change. Only a fifth of the people are new strictly rural, and
two-fifths live in the metropolitan area of Montreal alone. As urban dwellers
and industrial workers they undergo much the same social experience as
labourers in other parts of Canada and are likely to be no less keen for the
services that the federal treasury can help them secure. Quebec, as in the
past, may still resemble a distinct cultural island within the Canadian nation,
but an island now with more numerous bridges that diminish its isolation.
With these post-war developments the older form of provincial autonomy,
especially in finance, is passing. Yet the survival of federalism is not neces-
sarily threatened. The federation changes in form, but is not on the road
to dissolution. The provinces under the constitution retain a large range of
legislative powers, and especially are responsible for the development and
management of varied resources in forest, soil and mine, for the supervision






of municipal institutions, for the maintenance of provincial utilities, for the
character and administration of labour law, and for the provision of such a
vital service as education in all its aspects. In many cases they constitute
large territories. Ontario, for example, is bigger than the total area of France
and West Germany combined, and Quebec is bigger still. British Columbia
is considerably larger than Texas and New York State put together. It is
inconceivable that Ottawa would want to usurp, or could effectively usurp,
the role of provincial administration in areas so extensive, even if, which
is not the case, it was constitutionally able to do so. Yet it is manifest that
the interplay of the hard facts of modern economics and technology has
increasingly made national and provincial governments more inter-dependent,
and hence in urgent need of close and, smooth collaboration. The federation
becomes in social fact, if not always in popular sentiment, more integrated,
and its various parts more sensitively joined together.

The financial relations of Ottawa and the provinces, judged by the
intense and recurrent controversy that they provoke, are the heart of the
federal problem today and are likely to remain so. The national government
seeks to retain and utilize as many vital forms of taxation as possible because
of the peculiar and uncertain pressures upon it for heavy expenditures in
defence and for certain inescapable forms of welfare service. Moreover, the
freedom to utilize any form of taxation at will tends in economic policy to
enhance the manoeuvrability and initiative of a national government and
hence enable it better to achieve one of its major aims, namely a maximum
economic stability throughout the national economy. This fact explains why
Ottawa since the last war has striven to retain exclusive control over the
personal and corporate income tax and succession duties, and has conse-
quently clashed with Quebec, which strongly believes that an unrestricted
provincial access to such fields of taxation is imperative for provincial
autonomy. Most of the other provinces have not been unwilling to rent these
fiscal fields in return for a generous annual grant out of the national treasury.
Their willingness, however coy their manner, is related to the simple fact
that often by hard bargaining with Ottawa they may obtain more revenue
than would ever be possible by imposing their own taxes. They are not,
incidentally, diffident about hard bargaining. The achievement of any
equilibrium in this shifting competitive situation is obviously difficult.

Almost every major issue of the federation is drawn into the heated
arena of party politics, and hence the relation of parties to federalism is of
the first importance. In Canada, as elsewhere in the Commonwealth, the
federal system is simply a framework under which representative and respon-
sible government in the British parliamentary tradition operates according
to its logic. The system cannot achieve success without effective parties,
whose leaders are in full sympathy with it and skilled in knowing how to
operate it. Its triumphs obviously depend upon the prudence, tolerance, and
grasp of affairs among the politicians in the local as well as the national
legislatures. These are the qualities needed for successful self-government,






and a federation is no more than a complicated and exacting form of self-
government. The federal politician is merely the democratic politician writ
large.

Invaluable in promoting the successful operation of Canada's federal
system was the early development of two national parties, active and respon-
sive in all the principal areas of the federation and energetic in reconciling
the contending claims of economic interests, geographic sections, and cultural
groups. This bi-party development was doubtless primarily due to the special
needs and traditions of cabinet government. But it furthered the success of
the federation by focusing attention on national leaders and by making them
sensitive to the attitudes and views in the different provinces and regions. In
their labours the political leaders found it advantageous to strike an astute
balance between the more vehement claims of rival regional interests. Out of
practical necessity they have commonly sought to express the spirit of
compromise without which a democratic federation cannot operate or endure.

Notable in the two national parties from their inception has been the
partnership of French and English, which has created an invaluable bond
between the two people and in doing so has furthered federal cohesion. In the
early period it enabled the ministries of Sir John A. Macdonald to pursue
plans for westward expansion, resulting in a continental economy. It was not
inevitable that the French would support such plans. Their self-regarding
outlook as a cultural minority predisposed them to avoid involvement in
westward expansion. But the political skill of Macdonald and his French
associates, aided by the patronage that they freely dispensed in public works
and railway construction, kept together representatives of the two peoples
as party colleagues sponsoring a nation-building programme. Laurier in the
first decade of the present century, like Mackenzie King in the third and
fourth, employed tactics and pursued policies of a similar kind and with a
similar result. The collaboration of the two peoples at the political party level
has been fundamental to the survival and strength of the federation.

The maintenance of the two-party system in a state of vigour has never
been easy. In the twentieth century revolts against it have periodically
occurred, especially in the provinces on the periphery, and were provoked
by local irritation at the policies of federal governments and their failure to
solve local problems. The Progressive movement in the prairie provinces after
the First World War was largely a regional and agrarian attack upon federal
policies that were deemed uncongenial to the interests and outlook of western
farmers. The Social Credit movement that triumphed in Alberta in 1935 was
nurtured in a debt-ridden agrarian society, convinced that the monetary and
other policies of the government at Ottawa were hostile to its interests. When
third parties win provincial office they are for an interval likely to be intran-
sigent in dealing with Ottawa; they belligerently contend for special concessions
and for drastic changes in national plans. In all this they doubtless serve a
useful purpose in emphasising for national leaders the seriousness of local
grievances, without at the same time creating a federal division impossible






to heal. Regional revolts against the two major parties have been the price
paid to secure their federal vitality, and hitherto the price has not been
excessive.

Some general conclusions on the Canadian federal experience may be of
special interest to contemporary West Indians. In British North America
federation did not issue from a strong and spontaneous public opinion. It
was originally the achievement of a few zealous political leaders who often
doubted that they could secure a popular vote in its favour, and except in
New Brunswick did not risk such a vote. In fact they did not even face the
hazards of submitting the final draft constitution to a Canadian legislature
for formal approval. Yet despite Nova Scotia's secessionist threats in the
early decades and the menace of other internal tensions, the federal state held
together, and in the twentieth century came to operate with little danger of
disruption from within. As it progressed towards what the American constitu-
tion called "a more perfect union," it contributed to the slow and difficult
building of an integrated Canadian nation.

Why did the federation survive and grow in strength? The simple answer
is that it succeeded for three closely related reasons. First, it helped to stimu-
late in the extensive territories of British North America material growth and
prosperity. Within the expanding federal domain people were attracted to
the rich heritage of undeveloped lands, built railways with federal aid as an
integral part of the federal state, exploited virgin resources, multiplied farms,
established secondary industries, and founded towns and cities. A growing
economy and an expanding society, aided at every turn by railways,
strengthened the tender sinews of the federal regime. Thus federation won
the title deeds for its existence by concrete accomplishments and especially
by fashioning a number of isolated colonial economies into a national economy.
Economic growth was never uniform: some regions enjoyed more of its bounty
than others. Yet, although those tardy in expansion resented the fact, their
inhabitants had free access to the opportunities of other regions undergoing
rapid development. Population and investment inevitably gravitated to the
places where the material rewards were most abundant. If this type
of development failed to expunge, at least it ameliorated dissatisfaction in the
areas whence the people came. A rough law of economic compensation
operated, and in time was supplemented by a system of financial transfers
through the federal treasury from the opulent regions to the less opulent.

Secondly, material expansion was accompanied by the maturing of a
political tradition. The founding fathers in their federal plan were resolved to
preserve the British political inheritance of monarchical and parliamentary
government alongside the republican and congressional system of the United
States. Here was a political identity to which all the colonies were attached






and which federation enabled them to conserve. Already they were members
in an empire with its own specific political forms, which they steadily adapted
to their environment and needs. The determination to preserve these forms
as something distinctive and valuable in the western hemisphere has remained
a basic feature of Canadian nationality and a raison d'itre for the survival
of the federation.

Thirdly, the federation with reasonable success has adjusted itself to the
fact of two peoples and two cultures in the valley of the St. Lawrence. In
the sphere of culture, as in that of economics, frictions and tensions have
not been absent, but the federal arrangements of power have enabled a stable
if not always a friendly modus vivendi to be achieved between the two peoples.
It has indeed done something more by fostering in a portion of the Canadian
public a sense of supra-nationality, embracing French and English and con-
tributing to the moral cohesion of the whole. It may be easy to exaggerate
the number of those who feel this larger loyalty. It is often easier, because
more congenial, to see only the agreement on the surface rather than the
disagreement beneath. Yet few interpreters of the Canadian scene would deny
the existence or growth of this larger loyalty, even though they may differ
on its prevalence and strength.

A final reflection on Canadian federalism concerns its internal balance of
power. The ideal federation in the Anglo-American tradition is commonly
viewed as a system of national and local legislatures, with co-ordinate powers,
each independent within its own sphere and accountable to its own electorate.
In modem federations however, the idea of strictly independent jurisdictions
is an illusion. It is simple enough to express on paper, but difficult to maintain
in fact, especially in a society subjected to the rapid changes created by
technology, industrialism, and war. The action of a national legislature in
moulding the economy of the whole country has implications for the economic
life of the local units and hence for the tasks confronted by their legislatures.
In Canada, actually, the ideal of fully independent jurisdictions was explicitly
rejected by the draftsmen of the constitution, since they gave the national
government the power of disallowance over provincial legislation. While in
recent times this power has been seldom used, it is not obsolete.

More important, however, than a constitutional device to ensure an ulti-
mate response of provincial legislatures to federal authority, are these
pronounced developments in national finance and policy already noted, which
intricately mix the affairs of Ottawa with those of the provinces. "The power
to tax," as Justice Marshall said, "is the power to destroy." But it is also
the power to create. Wisely employed it makes possible many forms of state
action that benefit the whole community. The wise use of this power by the
Government at Ottawa demands a continuance and close co-operation with





the provinces rather than an incessant and wasteful rivalry. A recognition of
the interdependence of all the legislatures, not their independence, is an
obvious necessity in the federation, primarily because the main sectors in the
national life have become already interdependent. This fact in turn results
from the complex influences of industrialism, democracy and nationalism,
which to a greater or less degree underly the centralizing trend in the politics
of every modern state. The moral of all this is clear federalism whether in
Canada or the West Indies must bend to the technical and other forces in
contemporary civilisation. These forces do not make federalism obsolete, but
necessitate that its separate governments, national and provincial, work in
the closest collaboration with one another. They cannot act in splendid isola-
tion without damaging the interests of the nation. Their collaboration requires
the ethical basis imperative for every successful federation-a wide and indul-
gent tolerance for diversities of thought and diversities of interest, and patience
in seeking their reconciliation.







Australia-Background to Federation


F. W. MAHLER

I AM indeed honoured in talking to you tonight about the background to
federation in Australia; and I am very conscious of my own inadequacy in
doing so; but I am most gratified at being asked to talk to you.
I am honoured not only by your attendance here to listen to me, but
also by the occasion. These are classic times in your history, when the
sculptors of your federation are still busily at work.

I am conscious of my limitations because I know that your interest in
federalism is tremendously intense. Federalism everywhere pervades Trini-
dad's warm, tropical atmosphere. The newspapers devote much space to it.
Over the radio it rivals your sonorous steel bands. People talk much about
it--even at Carnival and in the cricket season. The calypsonians sing of its
virtues and, indeed, of its faults. I also heard a great deal about federation
when I was in Jamaica a few weeks ago. And all this interest is very much
as I had expected. No doubt, through federation lies the path, perhaps the only
path, around many of the grave social and economic problems which beset
these picturesque and peaceful islands. To build such paths well, is one of
your most exacting tasks a task to be shared by all.

I am gratified because my subject is my native land. In Australia, an
interest such as yours in Federalism is long since dead; but it lived once.
In fact, the popular movement finally gave a federation to Australia; and
I plan to recount, later, how this came to be.

But, before proceeding, I must make at least one acknowledgment. In
preparing this paper I have drawn on several Australian historians and con-
stitutionalists, and not only for their facts but also for their opinions. I have
leaned most heavily, however, upon the works of a very famous Australian
who died only recently-the late Sir Robert Randolph Garran who attended
many of the conferences that preceded federation in Australia and who, there-
fore, wrote from his great personal experience.

And Sir Robert Garran was Australia's first Solicitor-General, an appoint-
ment he held for many years, long after the Australian Federation became
established. He is the Australian counterpart. or very nearly so, of the
Chairman of this gathering; your own acting Solicitor-General, Mr. S. S.
Ramphal, who honours me this evening.

Now, my acknowledgments made, I shall turn to my own country and,
because it is on the other side of the world many thousands of miles from the
West Indies, let me talk for a while about the history and the physical features
of that far-flung continent.






EARLY TIMES
Australia is an old land. The granite bastions of its Kimberly Mountains
are probably the oldest outcrops of the World's crust. Throughout the ages,
the wind and the rain have been grinding much of its surface down to a
great plateau.

And until just recently Australia was an unwanted land. As the nations
of Asia, Europe, Africa and the Americas rose and fell and rose again, the
Australian continent lay; still and empty, sleeping under the stars of the
Southern Cross. Even whilst a federation was shaped in North America, the
Australian land-mass lay untouched by man; or very nearly so.

For Australia had only the aboriginal people. Whence came these shy,
primitive folk, anthropologists can only speculate. But the legends tell that
they did have a coming-way back in the dreamtime, as they call it; and
this was very long ago, perhaps when Australia was joined with Asia by
land bridges connecting the islands through the waters of the Timor and
Arafura Seas.

To these aboriginal people Australia had yielded very little. Not more than
300,000 of them sparsely scattered the Australian continent when the First
Fleet anchored in Sydney Cove in January, 1788.

True, the aboriginals had not cherised their land. They were stone-age
True, the aboriginals had not cherished their land. They were stone-age
except a few dogs. They built no huts, living in caves or gunyahs-large
strips of bark laid against a tree or a rock. They hunted for food with spears
and boomerangs, wandering over the dry land from water-hole to water-hole.

They had, however, most intricate tribal and religious systems to regulate
their lives. And they were an artistic people they danced their corroborees,
they painted and carved on cave walls and rocks, and they sang their song
cycles.

The song cycles tell sometimes of people from other countries-the Baijini,
who, in very early times, came from over the sea to Australia's northern
shores, in search of trepang, tortoise-shell, pearl-shell, eucalyptus oil, sandal-
wood and other timber. The songs tell also of people coming in search of
these commodities much later-from Indonesia and Malaya and from the
Celebes and other parts of Asia. But, before long, all these people sailed
away, back into the northern seas from where they came.

The Europeans, too, for many centuries resisted the call of the Great
South Land a Chaldean tradition places a large land-mass south of India;
the Greeks wrote of Terra Australia; and Marco Polo put his Locac roughly
in the Australian latitudes.

The Spaniards first visited Australian waters in 1606; Torres; parting
company with his commander, Quiros, in the New Hebrides and navigating
the Straits that bear his name. The Dutch, in the same year, explored Cape





York Peninsula and, during the thirty years that followed, sent nine explora-
tory missions along the Australian shores, from Cape York westwards around
to the Great Australian Bight. In 1642 Tasman sailed from Batavia, as it
was then called, to discover Tasmania and New Zealand.
The first English landfall was made by William Dampier, who, as
super-cargo on the Cygnet, following a spell of piracy in the China Sea,
visited Australia's north-western shores in 1688. This same William Dampier
also sailed the Caribbean as a buccaneer.
For yet another long century, however, Australia waited. And then finally,
in 1788, the First Fleet sailed into Sydney Cove; 18 years after Captain Cook
had raised the Union Jack in Botany Bay in 1770, to annex eastern Australia
to England.
Why was this delay in settlement? Why was this last of the continents
spurned during the centuries when the nations of Europe were reaching far
out into the New World, into the Americas, Africa, Asia; mauling each other
in the heat of the chase?
There are two principal reasons. One is the great isolation of Australia.
The other is the poor quality of so much of the Australian soil. So let me tell
you a little about the Australian continent itself.

THE AUSTRALIAN CONTINENT
The Australian continent covers 3,000,000 square miles. Its land-mass is
half as large again as Europe, excluding the U.S.S.R. about as large as the
U.S.A., and about half as large as South America. Australia lies south of
the equator between the 10th and 43rd parallels. Cape York, its northmost
tip, is as far from the Equator as is Trinidad; and Tasmania, in the south,
is about the same distance from the Equator as is Canada's Toronto.
The Australian continent stands alone, in grand isolation amidst
the mighty seas. The Pacific rolls away eastwards for over 8,000 miles before
its waves break upon the shores of South America. The Indian Ocean, to
Australia's west, stretches out for 5,000 miles to the African continent. To
the south, the cold Southern Ocean reaches many thousands of miles down
into the Antarctic ice.
To the north is Asia; But here, too, distances are great. India is nearly
3,000 miles from Perth in Western Australia; and Indonesia, Borneo, Malaya
are all over 1,000 miles from Australia's northern shores.
And distances from Europe are greater. London is over 11,000 miles by
ship from Melbourne via the Suez Canal; and, via the Panama Canal, London
is over 13,000 miles from Sydney.
But, after voyaging far over the strange and dangerous oceans to reach
Australia, the early mariners from Asia and Europe were always disappointed
the Australian shores offered them little. The Australian coastline measures
11,300 miles; and, of these miles, some 8,000 are desert or semi-desert where
the early sailing ships could scarcely obtain even the little water required
for their tanks.






For Australia is a dry land. Much of it falls between the rain-bringing
south-east trade winds and the prevailing westerlies. Nearly 40 per cent. of
Australia gets under 10 inches of rain a year; and this part is of little value
for anything except mining, where minerals happen to lie. Only a little over
20 per cent. of the Australian land averages over 25 inches of rain a year,
and much of this rainfall is not reliable. True, isolated pockets on the north
Queensland coast and a small area to the south-west of Tasmania, which are
the wettest parts, get as much rain as the West Indies, or more. The very
wettest part, near the town of Tully in north Queensland, has an average
rainfall of 179.26" a year, which is I think a good deal above Trinidad and
Tobago. On the other hand, in an area of nearly 200,000 square miles around
Lake Eyre towards the centre of Australia, the average annual rainfall is as
low as 5".
The topography contributes to this lack of rain. Extensive ranges run
from Cape York, south for over two thousand miles, closely along the eastern
coast of the continent before they turn westward in Victoria; and other much
smaller mountain systems add interest to many an Australian landscape. But
most of the continent is flat : three-quarters of the Australian land-mass is
a plateau between 600 and 1,500 feet above the sea.
And with this topography and the low rainfall, Australia is not well
watered by its rivers. The Pacific coast has many rivers, which drain the
eastern half of the ranges into the Pacific Ocean, but these rivers are as short
as the coastal plains are narrow. To the west of the ranges, thin rivers, tea-
coloured with silt, meander for hundreds of miles through the hot-dry plains;
some reach the Southern Ocean via the Murray, but most dissipate their
waters in the deserts. Often, the western rivers do not flow at all, becoming
merely series of waterholes or dry furrows; but, occasionally, when the rain
is very heavy, as if to make up for their deficiencies, the rivers spill their
swollen waters over their banks and deluge the flat land for miles around.

THE FIRST SETTLERS
The people from Asia, that I mentioned earlier, had little use for so harsh
a land. They had much better land for their rice, much closer at hand. And
the Europeans, when at last they did come, were not so much seeking wealth
or imperialistic expansion, as a prison to take the overflow from the crowded
London gaols.
When Captain Phillip brought the First Fleet safely to Sydney Cove in
January, 1788, he had 757 convicts secured in his ships, marines to guard
them, and officials to control a convict colony.
And these very first Australians, too, found little promise in their land.
The Reverend Richard Johnson, Chaplain with the First Fleet, wrote "The
soil is nought and the colony never likely to answer the wishes and the
expectations of the Government." The Captain of Marines' with the Fleet,
Captain James Campbell, was no less pessimistic. He wrote "Not one thing
can be found that ever promises to be an object of commerce or worthy of






attention of a commercial nation. I am fully convinced that the nation (i.e.
England) would save money by feeding the convicts at home upon
venison and claret-clothing them in purple and gold, rather than provide
for them here."
The pessimism was justified when the Second Fleet arrived, in 1790,
one-fourth of the First Fleet's company was deadjrom malnutrition and disease.
Nor did impressions change after longer experience. In 1798 Sir Joseph
Banks, the botanist who visited Australia with Captain Cook in 1770, wrote
"We have now possessed the country in New South Wales for more than ten
years and not one article has hitherto been discovered, by the importation
of which the mother country can receive any degree of return for the cost
of founding and maintaining the colony."
But the convict flow continued. By 1820 New South Wales, apart from
the aboriginals, had a population of 24,000-7,000 children, 2,800 free settlers
and currency-folk and 14,200 convicts.
In 1803 a second settlement was established some 800 miles south of
Sydney in Van Dieman's land, as Tasman had named the island now called
Tasmania. Initially, this settlement was to forestall the French; but it
developed to take the overflow of convicts from New South Wales.
This was the position, then, in 1820. Australia, a vast prison, was
desperately trying to grow enough food to supplement supplies that the sailing
ships brought from England, 11,000 miles away. Yet it was an efficient prison;
the unknown continent and the w\de oceans held their inmates more securely
than the stoutest prison walls.
It was a cruel prison. A prison where the hangman's noose was carelessly
applied, and where legirons and the lash cut deeply. It was a prison of harsh
rule and violent mutiny against that rule.
But before very many years were to pass, all of this was to be swept
away. Democracy was to peg its claim. The harsh soil was to yield. Even-
tually Australia was to develop from a squalid convict colony into perhaps
the most favoured of the nations of the World.


WOOL
Even at the close of the eighteenth century, a Captain John Macarthur,
a soldier with the New South Wales Army Corps, had more faith in Australia's
future and perhaps his own business acumen, than had most of his fellow
settlers. Macarthur experimented in breeding sheep. In 1794 he crossed Bengal
and Irish sheep on his farm at the Cowpastures, about 25 miles south-west of
Sydney. And then, in 1797, he bought a few Spanish merino sheep from South
Africa, and these thrived.
Complementary to this development, was the discovery of new land. In
1813, twenty-five years after the first settlement, after many failures a path
was found across the rugged ranges only thirty miles inland from Sydney.
The road opened to the interior of the continent.
7






The soil on the west of these ranges was better. The new road westward
opened up much wheatland, and, further afield, a hundred thousand square
miles of the best sheeplands in the world.
At this time, the English looms were waiting for more wool. Following
the industrial revolution, English textile manufacturing was booming, and the
supply of English-grown wool was failing.
The Australian fleece was very fine. In 1822, at an English exhibition,
John Macarthur's wool won a gold medal. Australian wool, even then, was
judged equal to the best wool from Saxony.
To supply England with this wool, free colonists and pardoned convicts
streamed westwards over the ranges and took up selections in the wide-brown
lands that were awaiting the sheep. Their flocks multiplied quickly in 182J
Australia exported 175,000 pounds of wool to England; in 1826 over 1,000,000
pounds; in 1850, 39,000,000 pounds. With the development of wool, and to
a lesser extent wheat, the movement-out from Sydney accelerated.
In the advance of settlement, the long trail was blazed through the
unknown lands by the great Australian explorers. These men now rank high
in Australian history.
First Evans discovered the Macquarie and Lachlan Rivers; and then
Oxley discovered the Murrumbidgee River. Hume and Hovell, in 1824, crossed
overland from Sydney to where Melbourne stands today. Cunningham
discovered the Darling Downs in Queensland. Perhaps the greatest of all
Australian explorers, Charles Sturt, discovered the Darling River in 1828;
and, in 1830, by following the Murray River to the Southern Ocean, he
solved the problem of where the western rivers ended.
Other parts were opened up from the sea. The success of New South
Wales and Van Dieman's Land inspired other settlements at vantage points
around the Australian; coast. In 1825 Albany, in Western Australia, was
settled, partly to forestall the French. In 1829 a colony settled on the Swan
River, near where Perth is now. In 1834 the Henty brothers brought sheep
from Tasmania, across Bass Strait, to graze on the pastures of south-western
Victoria. In 1836 Melbourne had its beginning on the Yarra River. In 1823
a penal settlement opened on the Brisbane River in Queensland to take the
worst convicts from Sydney. Adelaide began in 1836.
By 1850 the population of Australia rose to 400,000, shared between the
six major settlements, the extremes of these being nearly 3,000 miles apart
by sea. The pattern of the Australian States was laid.
And even at this early time, far-sighted men spoke of an Australian
federation; the "Grandfathers of Federation", Sir Robert Garran calls them.
Edward Deas Thomson, a Colonial Secretary, was the first. In 1843 he
suggested, in one of Governor Fitzroy's despatches, that a super-functionary
should be appointed to supervise the general interest of the Australian settle-
ments. Dr. John Dunmore Lang, a New South Wales statesman, demanded
a federal republic for Australia about this time. William Charles Wentworth,
another statesman of the period, wanted an Australian Constitution complete
with an Australian House of Lords in Melbourne.






But federation was yet far away, and before it was to come Australia
was to experience another great impetus to its development-the discovery
of gold.

GOLD
After several flashes in the pan, gold was first found in large quantities
in April 1857, near the town of Bathurst over the Blue Mountains in New
South Wales. Later the same year, richer fields were found in central Victoria
near the towns of Ballarat and Bendigo.
The people rushed the diggings. Towns were depopulated, farms vacated
and ships deserted in the harbours. The news spread abroad, and people
from all corners of the earth came to Australia seeking gold.
By 1860 the Australian population rose to 1,200,000. In New South Wales
the population doubled between 1850 and 1860, and the Victorian population
increased sevenfold during this decade. With such an inflow of gold-seeking
migrants, the transportation of convicts ceased. In 1868 the last of them
arrived in Australia.
In all, a total of 160,000 convicts went into the Australian melting pot.
And Australians do not apologise for them. Perhaps the convicts were the
alloy in the steel, hardening the Australian pioneers to their task. The least
that might be said for them, is that few convicts had been deported from
England for serious offences and that most convicts made very good settlers.
Indeed, many Australians, today, are proud to claim a convict in their
genealogy.
The gold rushes in New South Wales and Victoria were followed by
discoveries in Queensland and Western Australia; and more migrants came.
And then, after a few years the gold was exhausted, or became too
difficult for the independent diggers to work; the mines that remained were
taken over by large companies. Some of the gold seekers returned to their
homelands, but most of them stayed in Australia to grow wool or wheat or
to provide their labour, which was in great demand in the factories of the
often booming economy.
On the eve of federation, in 1890, the Australian continent held a popula-
tion of 3,100,000. In the wake of wool and wheat had come other primary
produce-sugar, beef, dairy products. Gold mining had given way to the
mining of coal, silver, lead, copper and other metals. Manufacturing was
established and expanding.
This great development had been shared by all the Australian States,
and in 1890
New South Wales had 510,000 people
Victoria 538,000
Queensland 169,000
South Australia 159,000
Western Australia 19,000
Tasmania ... ... ... 68,300 ,,






By 1890 each State had attained responsible Government. New South
Wales, Victoria and Tasmania convened their first Parliaments under
responsible Government in 1856, South Australia in 1857, Queensland about
1860 and Western Australia, the last to do so, in 1890.
However, by this time, each State had, to a large extent, developed
along its own lines, although the British pattern underlay them all. They had
their own systems of taxation; their currencies differed to some extent; they
had their own customs duties; they had their own laws affecting commerce,
marriage, crime and so on; their own judiciaries; their own police forces;
some of them had their own rudimentary defence systems. They had gone
ahead independently with their own public utilities, and, often, standards
differed. They had, for instance, different railway gauges some 3 feet
6 inches, some 4 feet 8j inches and some 5 feet 3 inches. These irritating
and costly impediments to transport still cxist today.
Thus, by the last decade of the nineteenth century, Australia had six
established States, whose populations were rapidly increasing. Then the ques-
tion of federation posed itself more loudly and more urgently. And, at the
end of the century, this question was to be answered in the affirmative by
the Australian people.

FUNDAMENTALS OF FEDERALISM
Now let me move from this development of the nineteenth century
Australian scene, and relate it to the Federation that was then close at hand.
And let me recall to your attention how Dicey, the constitutional theorist,
describes the two essential conditions for a federal system.
Dicey's first condition, you will remember, is that the countries to be
federated must be "so closely connected by locality, history or race as to
make in the minds of the inhabitants the impress of a common nationality."
His second condition is that there must be "a peculiar state of sentiment
amongst the inhabitants leading them to desire union but not unity."
These two conditions were met in full in Australia towards the end of the
nineteenth century.
Many bonds bound the Australian people.
A first bond was the land itself. Large as it is, the Australian continent
has much uniformity. Except in the extreme north and south, the climate
does not vary greatly, being warm-temperate and dry. The eucalypt and
acacia flora has much uniformity The fauna is for the most part Australia-
wide the north has crocodiles and Tasmania its now almost extinct tiger,
but the kangaroo, dingo, wallaby, wallaroo, mandicoot, wombat, platypus
and birds, such as the kookaburra and emu are found, or were found, over
almost the entire continent.
And a second bond was the uniformity of the Australian people. The
nineteenth century Queenslander or Victorian could find little to distinguish
himself from the nineteenth century Tasmanian, South Australian or New






South Welshman. They had, many of them, a common lineage they were
or their fathers were, from England, Scotland, Ireland or Wales; and they
had behind them all the ages of these civilizations.
But these late-nineteenth century Australians had more than their lineage
in common. Many of them had been convicts or were the sons of convicts.
Many were politically progressive, enemies of .oppression and champions of
the common-man to whose ranks they belonged. Most of them had come to
start a new life, with the hope that their New World would treat them better
than the old. Most of them had come with the determination that their new world
would treat them better than the old. Almost all of them had come with
little intention or hope of ever returning td their homelands, because the
British Isles were far away and the voyage was a dangerous one and a long
one in the sailing ships. And, these men were building a common dynasty,
as they fought drought, bush-fire and flood and tamed the harsh land, as
they built their factories, and as they drafted the laws of true democracies.
And a third, and the most important bond of all, sprang from Australia's
isolation. The six Australian States, though far from each other, were very
close neighbours in the empty oceans that spread away to the east, south
and west; and the nearest civilizations were to the north in Asia.
These great Asian civilizations differed from the European civilizations
that fathered Australia. They differed in very many ways in language, in
religion, in their arts and culture, in their farms and factories, in their living
standards and in their philosophies.
At the end of the nineteenth century, the Australian people believed,
rightly or wrongly, that no satisfactory merger with Asia was possible. They
believed that, at best, cheap labour from such a merger would greatly reduce
their hard-won living standards; and that, at worst, the Asian people would
overrun them as completely as their own forebears had overrun the American
Indians. At this time Australia had three million people Asia had over two
hundred times this number. China and Japan were at war.
European powers also threatened the Australian States. The late-nine-
teenth century was a hostile period in man's history; and Europe had many
millions of men under arms. German imperialism had awakened; in 1884 Ger-
many had occupied the north-eastern part of New Guinea. The French and
Dutch had footholds in the Pacific, and Russia was a Pacific power. The
Australian States were vulnerable.
And so the first of Dicey's conditions was fulfilled.
But the bonds were not, then, strong enough for unity. The move was
to a federation and not to a complete union. Many interests were against
union, the two principal impediments being the distances between the States
and the extent to which the States had gone in establishing their own
institutions.
The distances between the States, though small when one considers the
great isolation of the Australian continent were large when they had to be
traversed in the horse-drawn coaches or on the slow and uncomfortable nine-
teenth-century railways. Sydney is about 550 miles by road from Melbourne,
7 *






650 miles from Brisbane and over 2,000 miles from Perth. These distances
were then, and still are, too large to permit centralisation of those many
Government Services over which local people and local interests wish to main-
tain a close control. And, moreover, the people were, by and large, satisfied
with the operation of these services by their State and Municipal Governments.
And so in Australia at the end of the nineteenth century, the second
condition postulated by Dicey as essential for federation was met.
But, in the last analysis, abstract conditions do not build federations-
these are but the water in the clay. Federations must be shaped by men.
THE FATHERS OF THE AUSTRALIAN FEDERATION
The first proposal to the Imperial Parliament, itself, for an Australian
Federation was made in 1849; some 52 years before a federation came to be.
In 1849, when considering responsible government proposals for the
Australian colonies, the English Committee of Trade and Plantations recom-
mended to the Colonial Secretary, Lord Grey, that an Australian General
Assembly should be provided; and that this Assembly should have a House
of Delegates elected by the State Parliaments to legislate on matters in the
general interest of the Colonies, such as customs. This recommendation was
not accepted by the Imperial Parliament.
Then, in 1867, at the instigation of Sir Henry Parkes, at that time a
member of the New South Wales Cabinet, a bill was enacted in New South
Wales for the establishment of an Australian Federal Council; however the
legislation was not submitted for the Royal assent.
But Sit Henry Parkes was not to give up after this first failure. He was
to persevere for a generation and to win a federation for Australia and, for
himself, undying fame as the Father of Australian Federation.
And in this struggle Sir Henry Parkes was not alone. Towards the end
of the nineteenth century, Australian statesmen spoke often about federation;
and in States other than New South Wales and Queensland, these federationists
wielded much political power. In 1881, amidst war scares, Parkes again called
for a Federal Council.
When a Federal Council did first come, in 1883, however, Parkes was
overseas. New South Wales did not join; the Council, though it continued
for some years, played no effective role, being relegated to minor matters.
Six years later, in 1889, Parkes moved yet again-and this time he nearly
succeeded. He called together an Australian Convention to draft a Federal
Constitution. Parkes, himself, was in the chair. The Convention was attended
by all six Premiers, all leaders of the State Oppositions, many Ministers and
ex-Ministers. All the great Australian statesmen of the period were there
Barton from New South Wales; Griffith from Queensland; Deakin from
Victoria; Forest, onetime explorer, from Western Australia.
Sir George Grey, the New Zealand Premier, attended the Convention. He
wAas not very co-operative. He gave, as he said 1,200 good reasons why New
Zealand should not join a federation-one for each mile of sea that separated
New Zealand from Australia.






But in New South Wales the draft constitution prepared by the Con-
vention was not well received. A general election had changed the Government.
Sir John Robinson, who had become Premier, opposed the draft. A leader
of another Party, Sir George Reid, supported Robinson, describing the draft
constitution as "undemocratic" and "the work of the great ambitious states-
man of Australia." Reid was a free trader. And even the newly-formed Labour
Party, thert 30 strong in the New South Wales Parliament, withheld' its
support. The Australian Labour Party had not yet found itself. It was
suspicious of federation and was more interested in social reform. Parkes
did not present the draft constitution to the New South Wales Parliament.
It is noteworthy, however, that two of the New South Wales party leaders
who opposed federation at that time, Reid and the labour leader William
Morris Hughes, were both to become Federal Prime Ministers.
Without New South Wales, the other States saw little point in forming
a federation of their own and the draft constitution was put aside. But the
chisels of the federationists still chipped patiently away-and the dross was
falling.
THE ISSUES
I shall now, with your permission turn to the principal issues that were
debated, during the closing years of the nineteenth century, by those for and
those against an Australian federation.
The actual powers that were conferred by the States upon the Federal
Government indicate clearly enough just what was wanted from federation.
About many of these powers, there was little or no controversy.
Undoubtedly the drive to federation stemmed largely from a need to
improve Australia's defences. I have already spoken about the very isolated
position of Australia and her then-great vulnerability. In 1889 the Australian
States appealed to the United Kingdom to provide Australia with a naval squad-
ron and it was suggested that the States should share the cost of this squadron.
Also in 1889, a Major-General Sir J. Bevan Edwards, who had come from
England to inspect the Australian defences, recommended a federation of the
armed forces. The advantages were obvious.
Linked closely to the defence was the external affairs power. The day
was, even then, not far away when Australia was to take its seat amongst
nations of the World--at Versailles and on the League of Nations. One larger
voice, instead of six very small ones, proved much more effective there; and
it did, so very much to Australia's advantage. Australia also had its part to
play before very long in the Pacific; particularly with the development of its
mandated territories.
Immigration was another very important issue. After the great gold rushes,
many States wanted immigration to be controlled, and a successful control
meant a uniform control. The border, of the Australian States, except
Tasmania, are mere lines on a map, or narrow rivers-long lines over which
inter-State migration could not be effectively controlled with the police
resources available.






The increasing flow of persons from one State to another, which was
facilitated by the extension bf inter-State railways and the spread of settle-
ment, fostered the desire for uniform laws regulating bankruptcy, marriage,
divorce, and so on.
Commerce also made its demands for a federation. Increasing inter-State
trade brought a desire for uniform standards of weights and measures, patents,
copyrights, bills of exchange, promissory-notes and so on.
Few disagreed that a federal government could best handle Australia-
wide posts and telegraphs. Also few persons disagreed with certain lighthouse
and the meteorological services being under a federal control.
A common currency was wanted, not only to facilitate inter-State business
transactions, but also because some currency arrangements of State Govern-
ments had been unsatisfactory. In the early days of settlement, makeshift
currency was often used because of shortage of coin. The "holy dollar" was
exchanged, and rum was used as currency-probably some of it was West
Indian mrm. But, by 1890, the currency of Australia was much more
respectable; not that I'm disparaging West Indian Rum, which I believe
might be taken almost anywhere. By 1890 the Australian currency consisted
of United Kingdom gold and silver and bronze coins, and notes issued by the
many private banks. But some banks had proved unstable. With federation,
the control of currency was vested in the Commonwealth, and when these
powers were assumed, Commonwealth notes virtually replaced those issued
by private banks.
Controversy raged, however, over some of the proposed powers. Finance
was in the forefront. Federation meant that the States would give up valuable
customs duties, which were their chief source of revenue in those days of
high imports. The other taxing sources open to the States were uncertain.
They were principally death duties, which were not yet large, being intro-
duced only in the 1870's; land tax, which was regarded less as a source of
revenue and more as a means of breaking-up the large estates; income tax,
which was new and uncertain. Moreover, even the federalists of those days
agreed that customs duties would provide the Commonwealth with too much
revenue for its meagre needs. After much deliberation, the Constitution pro-
vided that the Federal Government should pay to the States three-parts of
the customs and excise duties that it collected over a period of ten years.
This gave the States time to organise other sources of revenue.
The location of the Federal Capital was an issue of very great controversy,
particularly between New South Wales and Victoria, which were by far the
most populous States and the two competitors for this honour. In fact the
location of the Capital became the crucial issue in the end, as I shall relate
before very long.
The representation of the smaller States in the Federal Parliament was
another point of disagreement. The smaller States wanted a Senate with equal
representation for all-on the false assumption that the Senate would become
a house of State interests. The larger States argued that such a Senate could
thwart the will of the majority of the Australian electors. The compromised






reached gave each State equal representation in the Senate, but denied the
Senate power to originate or amend money bills. The inspiration, for the
second part of this compromise is well known.
Many other issues were debated, which I cannot attempt to cover in the
time at hand. But I must tell of the most contentious issue of them all : the
"lion in the path" as it was called. This was the "lion" that James Service,
the Victorian federationist, claimed federationists must either slay or be slain
by. The "lion in the path" was the customs tariff issue.
I have already mentioned fiscal aspects of the tariff, but the issue ran
deeper than this. The position, put briefly, was that the great goldrushes in
Victoria had been too fast even for the import houses. Manufacturing had
sprung up in Melbourne and the Victorian country towns to help cater for
this great increase in population. Victoria became strongly protectionist to
guard its new-found factories. In fact, the tariff was the party line of division
in Victorian politics-the merchants and pastoralists being free-traders, the
manufacturers and workers being protectionists. Victoria wanted tariffs on
goods from overseas, but it wanted no inter-State tariffs impending inter-
State trade.
On the other hand, New South Wales, with less gold, was a principally
pastoral State. It was free-trade, wanting imports of manufactured goods from
overseas as cheaply as possible, and not dearer imports from Victoria.
Sir John Robinson, Sir George Dibbs and Sir George Reid, who shared much
of the political power in New South Wales at this time, were strong free
traders. They calculated, rightly, that protectionist Victoria would gain sup-
port from the smaller States in ai federation.
But, as the twentieth century approached, the "lion in the path" receded.
Events moved towards protection with regard to overseas trade. During the
great depression of the 1890's, even in New South Wales many men were
tempted with the idea of exporting unemployment-either overseas or to other
States. And these men took up the talk about the barbarianismm of borderism."
This was the barbarianism that imposed customs duties at the borders
between the Australian States.
The outcome of the issue is clear from the Constitution itself. The Federal
Government was given full powers to set up tariffs to regulate overseas trade;
but, to prevent the barbarianismm of borderism", the draftsmen wrote into
the Federal Constitution a Section 92 that, with dubious clarity, states that :
"trade, commerce and intercourse between the States shall be
absolutely free."

FEDERATION
A federation was now at hand. The stage was set, the players ready.
But one role could not be cast Sir Henry Parkes, the Father of Australia's
Federation, was dead.
Not long after the unsuccessful Convention of 1889, he had lost his seat
in the New South Wales Parliament. His health had failed him. He had died
in 1894, seven years before his dream of federation was fulfilled.






But, before he died, it was Sir Henry Parkes who had seen the error In
the strategy of the New South Wales federationists they had not sought the
support of the popular movement; they had ignored the New South Wales
people.
Parkes' mantle fell on Sir Edmund Barton who, with great energy,
journeyed up and down the country on this job of arousing public opinion.
Leagues were set up throughout the State, the press was stimulated, meetings
were held, pamphlets were written. Public interest responded' and waxed
strongly.
Then, at a conference in Corowa, a town in New South Wales, a resolu-
tion was passed that led to federation. The resolution put forward a plan-
the Corowa Plan. It reads
"hat in the opinion of this Conference the Legislature of each
Australian colony should pass an Act providing for the election of
representatives to attend a statutory convention or congress to consider
and adopt a bill to establish a Federal Constitution for Australia and
upon the adoption of such a bill or measure it be submitted by some
process of referendum to the verdict of each colony."
The people of New South Wales, Victoria, South Australia and Tasmania
and the Western Australian Parliament, itself, elected delegates to the 1898-99
Federal Convention. Queensland stood aloof. The Convention met in Adelaide,
in Melbourne, and then in Sydney. Using the 1889 draft as a model, the
Convention drew up another federal constitution. In due course, this draft
constitution was submitted to the people.
However, in New South Wales, the draft was rejected. The New South
Wales Premier, Sir George Reid, claimed that he had voted for federation,
himself, but he had obviously not encouraged his following to do so. For this
inconsistency, he earned the sobriquet of "Yes-No, Reid." But the vote
had been lost by little.
Reid, now strongly pressed by the federationists, bargained with the other
Premiers; and the most important pawn was the location of the Federal
Capital. Reid wanted the Capital for New South Wales. The other Premiers
agreed, but stipulated that, though in New South Wales, the Capital should
not be within one hundred miles of Sydney.
In 1898 a second referendum was held. It succeeded in New South Wales,
Victoria, South Australia, Tasmania and, later, in Western Australia. Then
Queensland joined.
So all six States were at last agreed. The way to federation was clear.
The enabling legislation was passed.
The "Commonwealth of Australia", the name chosen by Sir Henry Parkes
years earlier, came into being on the 1st of January, 1901-the first day of
the twentieth century.
And Sir Edmund Barton, who led when Parkes could lead no more and
who was to become Australia's first Prime Minister, pointed to the massiveness
of the sculpture when he welcomed the new Commonwealth with the words
"For the first time in history we have a nation for a continent and a continent
for a nation."







The Constitution of Australia


S. S. RAMPHAL

THIS series of lectures sponsored by the extension arm of our first federal
institution-the University College of the West Indies-has been given the title
"The Federal Principle" I therefore assume that those who were responsible
for its organisation are anxious that it should be characterized by our emphasis
on the fundamental concepts of the federal principle as revealed by an objective
analysis of the experiences of those nations which have adopted it as the
keystone of their political institutions. I have therefore conceived it to be my
duty to discuss with you this evening general structure of the Constitution of
Australia as an example of the application of this principle of governmental
organisation which we call "federalism"
Nor can I forget, or ignore, when embarking on this discourse that these
experiments and experiences have for us in The West Indies a special signifi-
cance, for we are a people who have in the middle of the twentieth century
and against the particular background of the times and the needs which brought
us together turned to the federal principle and to the Australian Constitution
as a desirable model of its manifestation when producing the working docu-
ments on which our union is to function. This is not an occasion on which
I can discuss the reasons which account for this West Indian preference of the
Australian system. It must be sufficient merely to recall that from the earliest
days, indeed, from the beginning itself of the indigenous federal movement
there has been a consistent and an almost unchallenged acceptance of the
Australian precedent in the drafting of West Indian Federal Constitutions.
I say the indigenous federal movement because as you are aware there was
a time when West Indian federalism was a plant nurtured in hothouses beyond
West Indian shores, and in those days, it possessed all the novelty so charac-
teristic of exotic species artificially produced. The influence of Australian forms
was evident in the first timid and tentative federal steps taken in the draft
constitution which emerged from the West Indian Conference held in Dominica
in 1932, a conference which some of you may recall and one at which your
own Captain Cipriani played so vital a role and with such characteristic
enthusiasm and conviction. Again, the Australian Constitution was consciously
adopted as a model for the draft federal Constitution prepared as a result of
the meeting of the West Indies and British Guiana Labour Congress held in
British Guiana during 1938; a draft which was later submitted by that body-
now renamed the Caribbean Labour Congress-to the Royal Commission in
the following year. The same is true of course, of the revised version of this
draft which was presented by the Caribbean Labour Congress to the Montego
Bay Conference in 1948. Indeed, it is significant at this time to recall in this






particular context the passage from the speech of one of the Baibados represen-
tatives at that Conference when introducing the draft Constitution in which he
acknowledged the value and the appropriateness of the Australian precedent-
"We have" said Mr. Grantley Adams as he then was, "in our
consideration of the proposals for a federal system taken into considera-
tion the federal systems that exist in the British Empire today, the state
of the federal system of the United States and, and especially when we
first drafted our constitution proposals, have reached the conclusion
that a federal system based on the Australian model is more suited to
the Caribbean area than any other."
Australian federal patterns were also implicit in the first resolution of the
Montego Bay Conference in which the Territories for the first time accepted
the principle of a Federation in which each constituent unit would retain
complete control over all matters except those specifically assigned to the
Federal Government, and when later on the Standing Closer Association
Committee embarked on its task of producing a draft federal Constitution in
pursuance of the Montego Bay resolution, it both recognized and respected
this mandate. Montego Bay and 'SCAC' have led directly to our existing
federal Constitution and accordingly, for all West Indians, the Australian
Constitution must always have a special and an abiding interest. An interest
not only in its formal structure but in its functioning as an instrument of practical
government, for from the latter we seek to learn the lessons which its experience
teaches. I am therefore, as you will expect, both conscious of the honour which
has been done me in asking me to deliver this particular lecture and grateful
for it; but in discharging my assignment I recognize equally the possession
of a disability with which neither my predecessors in this series nor those who
are to come after me are similarly afflicted. I have never lived in nor even
visited the land whose Constitution I discuss with you tonight. I know or can
measure only at second hand the spirit of Australian nationalism which has
been so essential a facet of the unfolding of the Constitution. I know far less
of the many factors and forces of a physical, spiritual or even a psychological
nature operating at political, economic, social or cultural levels in Australia,
and all of which are to a greater or lesser extent involved in the complete
picture of the living nation. Until such time therefore, as that more intimate
familiarity can be achieved or another with that familiarity is at hand I must
proceed to my assignment with only the credentials of a West Indian student
of federal government and of comparative constitutional law.
Let us then examine, at the beginning, what the federal principle is.
I think we will best understand its true nature and character by considering
the processes by which it has come into being as a dynamic force in the
organisation of peoples and, as such, in world affairs. The federal principle
is not a theoretical conception of social or political organisation produced by
reflective philosophers or pragmatic political scientists. It possesses none of
the dialectics of the 'Social Contract' It is not a political ideology nor even
a creed of community organisation. It has been hammered but instead over
many generations laboriously, and often painfully, on the anvil of political
necessity. The practical necessities of national existence, not the sophistication






of academic reasoning, have given it its content and its form. It is a functional
arrangement between states for living and working together to the greater
enjoyment of the entire body politic. It is the measure of minimum union
which produces maximum good. Not all associations of states or peoples,
therefore, require the application of the federal principle. If all that people
need and desire is the power to regulate local affairs, locally as a general rule,
and if they are prepared at the same time to leave to a national government
not only the power to regulate national affairs but also a power to regulate
local affairs as well as if it thinks fit to do so, a system of association comes
into being under which a potential supremacy over all matters in the territory
resides with the national government, and the system that is adopted is the
system of devolution under a unitary constitution. This system is appropriate
for the needs of many people; it has been found satisfactory to regulate the
relationship of the people of Northern Ireland to the people of the United
Kingdom. It has also been adopted in the Union of South Africa where each
of the four integrated provinces surrendered at the time of union all exclusive
governmental powers. This system is, of course, only appropriate so long as
the separate communities comprising the Union do not desire to have an
absolute guarantee of exclusive authority over certain matters which they
regard as of paramount importance to themselves alone. If they do desire this
more rigid division of the functions of government then federation not union
is the appropriate system, and the federal principle, not the principles of
devolution, are those which will be made the corner-stone of the national
constitution.

The federal principle is appropriate, therefore, only when a group of
territorial communities are prepared to co-operate with each other for the
regulation of a limited number of matters and for those matters only, but are
determined at the same time to retain their separate identities and to remain
supreme each in its own territory for the regulation of other matters. Only the
federal principle satisfies this desire for co-operation in some things coupled with
a determination to be separate in others. Only the federal principle fulfills the
desire for unity and the determination that the association shall stop short of
union. It was because the thirteen American colonies sought an answer to this
problem of unity within diversity in 1787 that they formed the Federation of
the United States. It was because the Canadian Provinces sought to resolve
these competing claims in 1876 that Canada was created. It was because the
Australian States in 1900 faced this dilemma, a dilemma compounded, as
Mr. Mahler explained in the last lecture in this series, of the necessity for
acting for Australia with a single arm on matters that affected all the scattered
people of the continent and the tradition of state patriotism and independence
which was part of the Australian inheritance that the Commonwealth of
Australia was born. It was because as you know so well these West Indian
Territories have had to find a region of calm in which the centrifugal forces
of the geography of our archipelago and the centripetal forces of West Indian
nationalism could come to rest that the Federation of the West Indies has
emerged. For all these people the federal principle was the compromise in
political organisation which alone was capable of reconciling the competing






forces of unity and separatism. By the federal principle then, we must mean
the method of organising government so that sovereignty or political power
is divided between central and local governments in such a way that each of
them within its own sphere is independent of the other.
What then is the method by which this distribution of the powers of
government is made between co-ordinate governmental authorities? In parti-
cular, are there any essential distinguishing characteristics in the institutions
of federal government by which we may measure the application of the federal
principle to the Australian Constitution? There are, I think, five such distin-
guishing characteristics, although it must frankly be recognized that since
federal institutions are designed to meet the particular needs of the people who
establish them and not that communities must be expected to condition their
institutions to immutable principles of federal organisation, it follows that there
are many variations of the application of the federal principle throughout the
world. The features, however, to which I shall refer are to be found
in all truly federal constitutions and have been generally recognized as the
primary features of any system of federal government. There must, in the
first place, be the fundamental distribution of powers on which the participating
communities have agreed; distribution of powers, that is, between the newly
established federal government and the existing and continuing territorial
governments.
In the second place, since the federal principle involves the distribution
of authority and functions and since the participating territories are anxious
that this distribution of authority should be explicit and guaranteed and that
they should not surrender more powers than they intend to surrender, it is
essential for the establishment of permanent federal institutions that there
should be a written constitution embodying and enshrining the distribution of
powers and binding all governmental authorities throughout the Federation.
Thirdly, if the distribution of powers is to be guaranteed, and if the
constitution embodying the distribution is to be binding upon federal and
territorial governments alike, it follows that the power of amending that part
of the constitution which embodies the distribution of powers or indeed embodies
provisions which affect the distribution of powers under the constitution, must
not be conferred either upon the federal government acting alone or upon the
territorial governments acting alone. For if they have this power, if they can,
at their own instance, modify or upset the carefully balanced distribution of
powers enshrined in the federal compact, federalism itself is at an end.
Fourthly, if there must be a distribution of powers, and if this distribution
must be inscribed in a written constitution and if this inscribed distribution
must be guaranteed, it follows inevitably that in any case of dispute-and there
must, in the nature of things, always be expected to be occasional disputes
between federal and territorial governments as to the extent of the powers
allocated under the constitution-somebody other than the federal or territorial
governments who are the parties to the dispute must be authorised to adjudicate
upon it. This is the field in which the United States Supreme Court has played
so distinguished a part, not only in the process of unfolding the provisions of





the Constitution but in the very history of the United States itself. These
disputes about the limits of territorial and federal power are an every day
feature of the working of the federal constitutions and constantly keep lawyers
busy. Indeed, it has been said by one commentator on Federal Government
that "Federalism could not well live without lawyers" It is only fair perhaps
that I should go on to complete the commentary which continued-"nor
perhaps would lawyers live so well without Federalism"
Finally, a requirement of the most considerable importance: The financial
resources left available to the federal and territorial governments respectively
must not be of such a nature or of so limited a capacity as in effect to stultify
the general distribution of governmental authority effected under the substantive
provisions of the Constitution. In this particular regard I should like to quote
for you the words of one of the most distinguished commentators on the
problems of federal government, Sir Kenneth Wheare, taken from a pamphlet
originally written in 1941 as a part of a series of federal tracts produced by
the movement for European Federal Union and published some five years
before his now celebrated work on "Federal Government"-
"If" said Sir Kenneth Wheare-as he then was-"the Govern-
mental authorities in a Federation are to be really co-ordinate with each
other in actual practice as well as in law, it is essential that there should
be available to each of them, under its own unfettered control, financial
resources sufficient for the performance of the functions assigned to it
under the Constitution. It is no good allotting functions to the federal
or to state authorities and devising legal safeguards so that each should
be limited strictly to the performance of its respective functions, unless
at the same time adequate provision has been made so that each
authority can afford to do its job without appealing to the other for
financial assistance. If the state authorities, for example, find that the
services allotted to them are too expensive for them to perform, and
if they call upon the federal authority for grants and subsidies to assist
them, they are no longer co-ordinate with the federal government but
subordinate to it. Financial subordination makes an end of federalism
in fact, no matter how carefully the legal forms may be preserved. It
follows, therefore, that both state and federal authorities in a Federation
must be given the power in the Constitution each to have access to,
and to control, its own sufficient financial resources. Each must have
a power to tax and to borrow for the financing of its own services by
itself. It is not easy to devise a division of financial and taxing powers
at the outset of the Federation which will infallibly satisfy these criteria.
It is likely that no reliable forecast can be made of the cost of the services
allotted to the respective authorities or of the yield which the allotted
taxing powers will give. Experience may show that some modification
of the division of services and resources is necessary. This must be
expected and provided for. If not, the system of federal government
will soon break down in practice."

99






These five things, therefore, a predetermined distribution of authority
between federal and territorial governments, a supreme written constitution,
an amending process which cannot be operated either by the federal govern-
ment or by the state governments acting alone, a Supreme Court which
determines the meaning of the constitution in cases of dispute, and financial
self-sufficiency for each of the co-ordinate authorities-these five seem to be
essential features of a federal system of government and as such the hallmark
of the federal principle.
With these general considerations in mind let me now turn to an
examination of the Constitution of Australia and let me attempt to describe
in what measure the federal principle as thus defined finds expression in it.
Earlier in this talk I have drawn attention to the fact that both the form and the
content of the Australian federal constitution have been freely drawn upon in
producing patterns of federal government in the West Indies. The Australian
Constitution itself, however, looked backwards to the forms of federal govern-
ment already in existence at the turn of the century and looked back, in
particular, to the forms and the tradition of federal government in the United
States. As the present Australian Chief Justice once declared: "Indeed, it may
be said that, roughly speaking, the Australian Constitution is a re-draft of
the American Constitution of 1787 with modifications found suitable for the
more characteristic British institutions and for Australian conditions."
That the Australian precedents which we in the West Indies have followed
in 1957 were themselves formulated on the basis of the American precedent of
1787 makes us in a real sense the inheritors of the federal traditions of the
United States-an inheritance albeit postponed for 170 years. That we should
have, even belatedly and via the Australian Constitution inherited these
traditions at all is a matter which might reasonably give West Indians pause,
for well we might recall that there was a time in 1705--long before the
American invention of federal government for which Professor Commager so
forthrightly registered patents in his first talk in this series--when federal
government came into being in the Leeward Islands on the basis of an Act
passed by the General Assembly and intituled, in the language of those days,
an "Act to settle General Councils and General Assemblies for the Caribbee
Islands in America and to secure to each particular Island their peculiar Laws
and Customs" The English historian Egerton has suggested that apart from
the feeble New England confederation of 1643 this Act represents the earliest
attempt at federalism in the British Empire. What is even more interesting
however is that as early as 1721 the Council of Trade and Plantations in its
"Report upon the state of Her Majesty's plantations in America" recommended
that the Leeward Islands' precedent should be adopted for the American
Colonies. "In order", said the report, "to render the several provinces on the
continent of America from Nova Scotia to South Carolina mutually subservient
to each other's support the whole ought to be put under the Governorship of
one Lord Lieutenant or Captain General as is the present practice in the
Leeward Islands where each Island has a particular Governor'but one General
over the whole" It is tempting to speculate how different the history of North
America might have been had this recommendation been acted upon and,






indeed, how different the history of federalism in Australia might have been
had these early experiments in the Leeward Islands conditioned the traditions
of federal government in North America. In one way however the Leeward
Islands did make a significant contribution to the development of American
federal institutions and federal government in Australia. Alexander Hamilton,
later to become a champion of federal union, joint author of Federalist papers
and one of the inspired architects of the American constitution was born in
Nevis in 1757-not the last time you may think that the Leewards have
produced a militant advocate of the federal principle. Hamilton, it is true left
Nevis when a boy of 15 and though it would probably be unreasonable to
suggest that the early federation of the Leewards had had any profound effect
upon him, it is not unreasonable to suggest that he may well have taken with
him to New York in 1772 an intuitive appreciation of the futility of a weak
central authority, an appreciation which may have shaped his attitude to the
federal principle and the nature of federal institutions. So much, however, for
the contribution which The West Indies may itself have made to the evolution
and development of the federal principle which has only now reached fulfil-
ment with us in the forms of Australian federal government. It is to these
forms that I must now turn.
An essential though preliminary feature of the process of federal constitution-
making is of course the establishment of the new central government itself.
The relationship between this government and the continuing territorial govern-
ments is what falls to be regulated by the application of the federal principle,
but federalism itself plays only a limited role in the theoretical basis of the
structure of the central government. Questions such as the choice of the
presidential system or the principles of parliamentary democracy, the separation
of powers or cabinet government, are all matters which enter into the formal
constitution of the central government and on which decisions must be taken
at an early stage in the process of establishing the federal constitution. But the
choice of alternatives is affected by many considerations other than those which
flow directly from the application of the federal principle and in this matter
the Australian constitution, though it has looked to the United States, has been
profoundly influenced by the traditions of British Parliamentary government.
As the Canadian writer Alexander Brady describes it in his book Democracy
in the Dominions "Australian parliamentary democracy has evolved under the
three interwoven influences of British inheritance, American example, and the
peculiar environment of the continent which has shaped the course of social
development" A more recent, and perhaps an even more authoritative,
commentary on these dual influences from overseas which have affected the
structure of the Australian constitution was given in an address delivered in
1942 by the present Chief Justice of the High Court of Australia, then the
Honourable Sir Owen Dickson, Australian Minister to the United States, at the
annual dinner of the American Bar Association:
"For good or ill", he said "Australia at the beginning of the century
became a federal Commonwealth. Till then she had consisted of six
colonies, each of which was ruled by a parliament of two houses and
by an executive formed according to the cabinet system. Union like






unity is a thing that cannot easily be attained; and it was only after
conventions and plebiscites spreading over the eighteen nineties that
the six colonies united in a federal commonwealth and under a constitu-
tion framed after the pattern of that of the United States. The men who
drew up the Australian Constitution had the Ameiican document before
them; they studied it with care; they even read the standard books of the
day which undertook to expound it. They all lived, however, under a
system of responsible government. That is to say, they knew and
believed in the British system by which the Ministers are responsible
to the Parliament and must go out of office whenever they lose the
confidence of the legislature. They felt therefore impelled to make one
great change in adapting the American constitution. Deeply as they
respected your institutions, they found themselves unable to accept the
principle by which the executive government is made independent of the
legislature. Responsible government, that is, the system by which the
executive is responsible to the legislature, was therefore introduced with
all its necessary consequences."
In Australia, therefore,-as in Canada-the British Parliamentary system
with its inherent repudiation of the doctrine of the separation of powers has
been fitted into and made a part of the federal structure. There is accordingly
an Australian cabinet responsible to the Australian Parliament and composed
of members of that Parliament who command the support of a majority in the
House of Representatives.
But cabinet government is a matter which primarily concerns the relation-
ship between the executive and the legislature, and the Australian federal
legislature can, by itself, be explained and justified on the basis of the federal
principle which attaches to the two houses of the federal legislature quite a
special significance. The theoretical basis on which the two chambers of the
federal legislature are often said to rest is that the lower house-elected on a
population basis-represents the will of the federal nation, while the upper
house-composed of equal numbers of representatives from the territories
irrespective of their separate populations-symbolises and safeguards the
equality of the constituent units. Nowhere has the principle been better stated
than in The Federalist itself.
"If indeed", said Hamilton, "it be right, that among a people
thoroughly incorporated into one nation, every district ought to have
a proportional share in the government: and that among independent
and sovereign states bound together by a simple league, the parties,
however unequal in size, ought to have an equal share in the common
councils, it does not appear to be without some reason, that in a
compound republic, partaking both of the national and federal character,
the government ought to be founded on a mixture of the principles of
proportional and equal representation."
Conforming to this theory of the structure of the federal legislature, the
Australian House of Representatives is at the moment composed of 123 members,
representation from each State being broadly proportioned to the number of
inhabitants. Because of this adherence to Hamilton's principle that each district






of the federal nation ought to have a proportional share in the government,
Australia has not escaped those difficulties which must necessarily result where
the units are unequally matched in population terms. Accordingly, New South
Wales and Victoria, the two most populous States account between them for
80 of the 123 members of the House of Representatives while almost one-third
of the members of the House are elected in the two cities of Sydney and
Melbourne alone. This heavy concentration of representation from the two most
populous States and the even heavier representation of urban interests is a
perennial irritant both to the States other than New South Wales and Victoria
and to the sparsely settled rural areas where the constituencies are large and
electioneering costly and difficult.

I have suggested that the primary justification of the federal upper house
is its capacity to preserve the federal character of the Constitution by giving
to each constituent territory, large or small, an identical numerical representa-
tion. On this basis, it will obviously be best equipped to perform these functions
when it possesses an equal voice in the law-making process-for only then can
it really guarantee the units against the potential tyranny of rule by a majority,
not of the units, but of the people. "No law or resolution", concluded Hamilton,
"can now be passed without the concurrence, first of the majority of the people,
and then of a majority of the states" The Australian Senate satisfies these
structural requirements of the federal principle. Modelled on the Senate of the
United States it now consists of ten members from each State elected directly
for six years under the same franchise as members of the House of Representa-
tives. As at Philadelphia, so at the Australian Convention which produced the
Constitution, much heated discussion centred on the structure of the Senate,
and in the end nothing but a second chamber chosen by and accountable to
the electorate would satisfy them. In addition, in all ordinary legislation the
two chambers have co-ordinate authority, but the House of Representatives
has greater financial powers since it originates all proposals for appropriating
revenue or imposing taxes. While the Senate may reject outright it cannot
amend tax bills or bills appropriating revenue for the annual services of govern-
ment. Despite equal representation for all States in the Senate, however, and
despite too the substantially equal authority of the Senate with the House of
Representatives in the legislative process, the Australian Senate has never
really asserted itself as an aggressive defender of State rights or of the thinly
peopled states of the Commonwealth. Brady, commenting on the Australian
parliamentary scene has pointed out that "concerned with the industrial and
social issues which enter into the partisan warfare of the nation, the senators
are inevitably more loyal to their parties than to their states. Success for a
senatorial candidate in his campaign is difficult without the endorsement of a
party and without the power of its machine, for which he must pay the required
price of unquestioned fidelity to its leaders" More often or not a government
having the confidence of the House of Representatives is, because of the fact
that the Senate is elected, sure of the support of the Senate as well, and it is
significant that the Senate's most influential moments have been during the
short and scattered periods when it contained a majority of opposition party
members. Nothwithstanding the fact, therefore, that the Australian Senate






reflects in its constitution, the essential requirements of the federal principle,
its federal character has nevertheless been overshadowed by the impact of the
principles of cabinet government and of parliamentary democracy generally.
Even so, however, it does not necessarily follow that good government in
Australia suffers as a result.
The establishment of the federal government is but the beginning, however,
of the process of federal constitution-making. Let us now examine the details
of the constitutional structure in the light of those characteristics which I have
earlier suggested are the essential features of the federal principle. The first of
these, and in many ways the most important, certainly the most fundamental,
is the distribution of powers between the federal government on the one hand
and the state governments on the other. It is generally accepted that there are
two principal methods by which the distribution of powers may be effected
in a federal constitution and that these methods are best illustrated by the
distribution of powers under the Canadian and Australian Constitutions
respectively. Under the Canadian system there was, in effect, a surrender of
power from the participating provinces into a common pool from which the
redistribution under the federal arrangement was then made. As a result the
constitutional status of the former provinces was expressly redefined in terms
of the federal arrangements and the provincial no less than the dominion
constitutions were engrossed on the deed of federal union-the British North
America Act of 1867. The provinces have "no powers of legislation either
inherent in them or dating from a time anterior to the Act. Whatever is not
thereby given to the provincial legislatures rests with the Dominion Parliament"
The situation in Australia is entirely different. The inherent legislative power
is there vested in the States, whose constitutions continue in force, rather than
in the newly created Commonwealth Parliament. The authority possessed by
the Commonwealth Parliament is solely that transferred to it under the
Constitution by the federating colonies.
"It is plain", said the Privy Council, in the early years of the Australian
Federation, "that excepting insofar as such powers were so transferred they
remained exclusively vested in the States" In Canada, therefore, the provinces
have only those powers that are specifically entrusted to them under the
constitution, all other powers remain with the federal legislature. In Australia,
as in the United States, the converse is the case and the federal legislature has
only such powers as are entrusted to it under the constitution, the States
retaining all other powers. The choice of the American pattern of distribution
of powers by the framers of the Australian Constitution was neither arbitrary
nor accidental, for this choice of method generally reflects the whole character
of the federal movement and of the impulses which bring the federal nation
into being. The Canadian federation came into being on a surge of nationalism
conditioned by the threat of economic disaster and American militarism and
actuated by Sir John MacDonald's vision of "westward expansion" His was
the guiding hand at Quebec in 1864 when the famous resolutions were drafted,
and he clearly embraced federal union only after he had exhausted all
possibility of creating a unitary state. From his standpoint, the process of
federating became almost revolutionary, and his approach influenced the






nature of the federal agreement. "The true principle of a confederation", he
once declared, "lay in giving to the Central Government all privileges and
powers of sovereignty and that the subordinate or individual states should
have no powers but those expressly bestowed on them. We should then have
a powerful Central Government and a powerful Central Legislature and a
decentralized system of minor legislatures for local purposes" How different
was the nature of the Australian Federal movement. Federation in Australia
grew slowly and gradually through the Federal Council and functional
co-operation in many fields to the ultimate admission of the need for a central
government and it was an admission which when it came was only grudgingly
made and conceded merely a minimum of centralised authority. The colonies
maintained their early constitutional status vis-4-vis the Crown and their
constitutions, not being strictly relevant, were kept off the face of the instru-
ment of union. Only the structure of the federal government and the specific
powers allotted to it were written into the Constitution. The Act of federating
in Australia was neither more nor less than the transfer of authority over defined
matters to a newly constituted Commonwealth Government. As Sir John
MacDonald described the Canadian approach to federation, so did Richard
O'Connor speak for Australia at the Convention at Adelaide in 1897. But the
conceptions of Adelaide were very different from those of Quebec. "I hold it",
said O'Connor, "to be a basic principle of this federation that we should take
no power from the states which they could better exercise themselves. We
should place no power in the federation which is not absolutely necessary for
carrying out its purposes" It would be quite impossible for me, with the time
at my disposal this evening, to discuss in any detail the specific nature of the
distribution of powers which was effected. Thousands of words have been
written about it since 1900 and scores of decisions have been handed down by
the judges of the Australian High Court seeking to expound and explain the
nature of the distribution and the scope of the powers acquired under it by the
Commonwealth or lost under it by the States. Some general remarks must
suffice. The distribution was made in the first place on the basis of two lists of
legislative powers-the one exclusive, the other concurrent. Where it was
intended that the Commonwealth alone should legislate on a matter the power
was made exclusive and the subject matter appears in the exclusive list; where
the intention was that the States as well as the Commonwealth should legislate
on any matter the power was made concurrent and the matter included in the
concurrent list. Where both a State and the Commonwealth legislate in relation
to a matter on the concurrent list however, and the legislation conflicts in any
way the Commonwealth legislation will prevail. Until the Commonwealth
Government acts, therefore, the States may legislate freely within the field of
concurrent subjects as they have done in a number of matters notably, e.g.
marriage and divorce. I have indicated earlier that the States possess the
residuary power, i.e. that the State alone may legislate, to the exclusion of the
Commonwealth, on all matters not comprised within any of the enumerated
subjects.
8 *






Under the distribution the Commonwealth deals with such matters as
overseas and inter-state trade and commerce, taxation generally, public
borrowing, postal and other like services, defence, lighthouses, quarantine,
census and statistics, currency, coinage and legal tender, banking and insurance
unless of an intra-State nature, weights and measures, bankruptcy and insol-
vency, naturalisation and aliens, marriage and divorce, invalid and old age
pensions, immigration and emigration, external affairs, the acquisition of
property of just terms and conciliation and arbitration for the prevention and
settlement of industrial disputes extending beyond the limits of any one State.
To this list has been added by an amendment of the Constitution in 1946
maternity allowances, widows' pensions, child endowment, unemployment,
pharmaceutical, sickness and hospital benefits, medical and dental services,
benefits to students, and family allowances-an amendment which, as you
will see, covers a large field of the social services.
Tom Paine once issued an injunction which has since become famous that:
"There never did, there never will, and there can never exist a Parliament,
or any description of men, or any generation of men, in any country, possessed
of the right or the power of binding posterity to the end of time": and,
khe added, "the vanity and presumption of governing beyond the grave is the
most ridiculous and insolent of all tyrannies" The distribution of legislative
authority under a federal Constitution comes perilously near to violating this
injunction, for apart from the possibility of constitutional amendment-a
process which as we shall see later on is never easily accomplished--save for
the possibility of constitutional amendment, the distribution of power must be
made at the date of the federal compact and be binding on the parties for all
time. And yet, times change, new fields of legislative activity are opened up
by the developments of science or changes in the habits of people or changes
in political thinking as to the legitimate scope of governmental activity; but
the legislative lists remain rigid and unyielding. For this reason, references to
"invalid and old age pensions" in the distribution of powers under the
Australian Constitution have no counterpart in the Canadian Constitution
framed nearly forty years earlier; similarly, certain of the matters enumerated
in the distribution of powers under the West Indian Constitution have no
counterpart in the Australian Constitution drafted fifty-seven years earlier.
"Exchange control" and "atomic energy" are examples which readily spring
to mind of matters which could not reasonably have been within the con-
templation of the framers of the Australian Constitution as matters on which
a Commonwealth Government of the future should be empowered to take
action.
There is little that I need to say in relation to the Australian constitution
about the second characteristic of the federal principle, namely, the importance
of a written constitution embodying the division of powers and binding all
governmental authorities throughout the Federation. The Australian Constitu-
tion is a written constitution; it was drafted by men elected by the Australian
people for the specific purpose of framing the constitution, submitted to the
electors for approval and finally taken to London where with only one minor
alteration it was embodied in the Commonwealth of Australia Constitution






Act, 1900, enacted by the British Parliament. Section 9 of that Act declares:
"The Constitution of the Commonwealth shall be as follows": Thereafter are
set out the one hundred and twenty-eight sections of the draft constitution
settled by the Convention and adopted by the people on referenda. The Act
has unquestionably become the supreme law of the land. "The Commonwealth
Constitution", said Sir John Latham, an ex-Chief Justice of the Australian
High Court, "is a constitution in the strict sense. It is a supreme and funda-
mental law which provides for the establishment of governmental authorities-
legislative, executive and judicial. The law-making body, the Commonwealth
Parliament, derives its existence from the constitution, which confers upon the
Parliament certain legislative powers and no others" Alfred Deakin himself
had urged on the Convention in 1898 that they "should seek to erect a con-
stitutional edifice which shall be a guarantee of liberty and union for all time
to come, to the whole people of this continent and the adjacent islands, to
which they shall learn to look up with reverence and regard which shall stand
strong as a fortress and be held sacred as a shrine" The bricks and mortar of
the constitutional edifice were the words and phrases of the written provisions.
From time to time since 1900 minor cracks have appeared but the structure
itself has never seemed in danger; and although there has never been for it
the same reverence that it apparent in the United States for the American
Constitution, as a shrine, it has rarely if ever been outraged.

The third characteristic of the federal principle by which I have set out
to judge the Australian constitution is the nature of the amending process--the
requirement that neither the Federal Government acting alone nor the State
Governments acting alone shall have the power to amend the constitution and
to alter the carefully balanced distribution of authority. Great care was taken
in the drafting of the Australian constitution to fulfill this requirement of the
federal principle. The amending process actually provided for is as follows:-
If both Houses of the Federal Parliament-or, in certain circumstances, one
House-approve an amendment of the constitution by an absolute majority
in each House the proposal must then be submitted to a referendum of the
people. On this referendum if a majority of the electors voting approve the
proposed amendment and if, as well, in a majority of the States, the majority
of the electors voting also approve the amendment, the law giving effect to
it can then be submitted for the Royal assent. It is further provided that no
amendment diminishing the proportionate representation of any State in either
House of the Federal Parliament, or reducing the minimum number of repre-
sentatives of a State in the House of Representatives or interfering with the
limits of the State or the provisions of its constitution shall become law unless
a majority of the electors voting in that State approved the proposed amend-
ment. The constitution can therefore only be amended if, in the first place,
it is approved by the Federal Parliament and if, in the second place, it is
approved on a special referendum by the majority of the voters in four of
the six States. In this way, it was felt, both the Federation and the States
would play a part in the process of amendment-a process which was believed
to be simpler than the American, more democratic than the Canadian, and
generally capable of producing a desired measure of flexibility. Contrary to






expectations, however, this amending process which was borrowed substan-
tially from the Swiss constitution has not facilitated constitutional change
to the extent that it has in Switzerland. There have so far been
eleven separate occasions on which constitutional amendments were sub-
mitted to the people by referendum. Only four were approved by the requisite
majority of all the electors voting in Australia and of a majority of electors
in four of the States. Some, approved by an overall majority in Australia and
by majorities in three of the six States have had to be rejected even though
clearly desired by most of the people and at least half of the States. Many
complaints have been made that the popular referendum has proved a con-
servative institution because people are slow to appreciate constitutional
embarrassments and have a natural fear of centralisation. It is significant,
however, that the body now reviewing the whole constitution has considered
the possibility of revising the amending process and has recommended as the
only change that the amendment need be approved on the State level by a
majority of the voters in three and not four of the six States.
One of the important institutional requirements of the federal principle
to which I have earlier referred is a supreme court wnich determines the mean-
ing of the constitution in cases of dispute between the Federation and the
States, a tribunal for settling disputes arising under the contract. It has been
said that the fathers of the American constitution never really intended to
confer on the Supreme Court the supremacy which it undoubtedly now
possesses in relation to questions of constitutionality. That court had, how-
ever, already established its authority in this field when the Australian Federal
Conventions went to work to produce the Commonwealth constitution and
there is no doubt whatever that the framers of the Australian constitution made
a conscious effort to confer on the High Court of Australia a similar authority.
Both the Conventions of 1891 and 1897 were in absolute accord with the view
which Robert Garron expressed that "there must be a Federal court, charged
with the duty of interpreting and enforcing the constitution. Every law that
comes before them whether of the Commonwealth or the State they will test
by the Federal Constitution, and pronounce it valid or void according as it does
or does not come within the scope of the powers allotted to the legislature
which enacted it" During the fifty-eight years of its existence the Australian
High Court has fulfilled these functions with considerable distinction. The
Court possesses both appellate and original jurisdiction. As an appellate it
is a general court of appeal from the State courts, though a litigant may
appeal from a State Supreme Court either to the High Court or to the Privy
Council. Its original jurisdiction embraces a number of matters, the most
important being suits between the Federal Government and State Govern-
ments and suits involving the interpretation of the constitution. This juris-
diction is exclusive in a restricted number of matters of which by far the
most significant are matters involving what are known as "inter se" questions,
that is, questions concerning the limits of authority of the Federal and State
Governments. In these "inter se" matters moreover an appeal from the High
Court to the Privy Council is permitted only on the certificate of the High
Court. This restriction on the right of appeal makes the High Court virtually






the final interpreter of the constitution, and this in fact was the avowed inten-
tion of the framers of the Constitution. Indeed, the draft Bill which was
taken to London for enactment did not allow for such appeals to reach the
Privy Council in any circumstances and the provision for certification of
"inter se" questions was only included in the constitution as a compromise
after the Secretary of State had virtually refused to introduce the Bill if it
did not provide for the right of appeal to the Privy Council in these cases.
Australian nationalists drafting their Federal Constitution at the turn of the
century were clearly hostile to the concept of an external court and were
determined to write into their conviction that the federal constitution is best
understood by jurists who live under it and daily witness its operations.
The first Chief Justice of the Commonwealth High Court, Sir Samuel Griffith,
explained this conviction when he said in one of the early decisions of the
court "No disrespect is implied in saying that the eminent lawyers who
constituted the Judicial Committee were not regarded either as being familiar
with the history of conditions of the remoter portions of the empire or as having
any sympathetic understanding of the aspirations of the younger communities
which had long enjoyed the privileges of self-government." In fact the High
Court has given a certificate for appeal on an "inter se" question only once
since the establishment of federal government in Australia and on only seven
occasions has the Privy Council had cause to consider major federal cases.
The main body of judicial doctrine on the Constitution is therefore to be
found in several decisions of the High Court.
It has been said that judicial interpretation in Australia has passed through
two distinct phases the first, from 1900 to 1920 when judicial decisions on
the constitution generally emphasised the authority of the States and the
limited powers of the Federal Government; the second, beginning with the
decisions in the Engineer's Case and continuing down to the Uniform Tax
Case in 1942, when decisions favoured a more expansive and liberal inter-
pretation of those provisions of the constitution conferring authority on the
Federal Government. It is also said that recent judicial trends as revealed
primarily in the Banking Cases subsequent to 1942 have indicated a tendency
to use judicial discretion in a sense less unfavourable to the States than was
apparent during the second phase and to emphasise the federal character of
the constitution. This is not an occasion on which these matters can be dis-
cussed. What is important, however, is that in the Australian system of
Federal Government the Supreme Court of the land has been consistently
fulfiling its functions of adjudicating upon disputes between Federal and State
Governments as to the limit of their respective authorities and that in so
doing Australian judges have been constructing the permanent body of the
law of the Australian Constitution. Not only federalism but Australia itself
has been richer for the experience.
A final series of questions remains to be asked in the name of the federal
principle. Have the Commonwealth Government and the State Governments
had reserved to themselves in the Constitution the financial authority by which
the functional grant of power can alone be made real? Has each government
been allowed adequate financial resources to enable it to exercise its powers






under the Constitution? Is the co-ordinate status of the federal and state
authorities real or illusory? Is there equality or subordination? The most
important factor in the financial relations of the Commonwealth and the State
Governments is that they share between them the general taxing power; "taxa-
tion", in all its generality, is a matter over which the Federal and State
Governments exercise concurrent authority. In only one respect is the Comn-
wealth power limited, for the Constitution enjoins that it shall not in the
imposition of taxes discriminate between States or parts of States. A joint
power to impose customs and excise duties passed to the Federal Government
under this comprehensive grant of the power to tax but the Constitution went
on to provide that on the imposition of uniform customs duties throughout
Australia the power to impose customs and excise duties would be entirely
denied the States. It follows then that the Commonwealth has unlimited
powers of taxation except that it must not discriminate between States, while
the fiscal powers of the States are limited by the exclusion of customs and
excise and the fact-now shown to be of fundamental importance-that Com-
monwealth legislation in this, as in all other fields, have priority over State
legislation in cases of conflict.
Because of the part which customs and excise duties then played in the
revenue of all States-though it assumed larger portions in the revenues of
some than of others-the framers of the Constitution had to deal with the
consequential problem of ensuring that the State Governments had, in the early
years of Federation, sufficient sources of revenue to finance their activities. This
was a matter of great difficulty and it was not until the very last session of the
convention at Melbourne that the final scheme of repayments was agreed. The
scheme, which became known as the "Bradden clause" provided that for the
first ten years the Commonwealth could keep and spend not more than twenty-
five per cent. of the revenue derived from customs and excise duties-the other
seventy-five per cent. being paid back to the States. During these early years
the formula worked reasonably well. The Federal Government was able to
finance its activities from the portion of customs and excise duties reserved to
itself together with revenues from the postal services and did not need to
introduce new forms of taxation. In the States taxation was slightly increased
but no financial strain was experienced. Nevertheless, federal-state financial
relations were the subject of a great deal of controversy-they were in fact the
main point of conflict between the States and the Commonwealth; but the
present difficulty was the realisation of the future problem, for the State
Governments were aware that after 1910 they would have no constitutional
guarantee that a share in the customs and excise revenue would be handed
back to them. At a series of conferences, which became known as Premiers'
Conferences, held during each of these first ten years this matter was exhaus-
tively and often acrimoniously discussed between the Federal and State
Governments. Eventually at the conference in 1909, a compromise agreement
was reached under which, after the expiration of the "Bradden clause", the
Federal Government agreed to make payments to the States calculated at the
rate of twenty-five shillings per annum per head of population. From the
beginning, Western Australia was treated as a special case and had been






allowed, even after the Commonwealth, power to impose customs and excise
duties had become a special power to impose customs duties on commodities
coming to Western Australia from the other States-though on a diminishing
basis and only for the first five years. Under the 1909 agreement special
provision was again made for additional annual payments to Western Australia.
The per capital payments were designed to last for ten years, that is, until 1920
but in fact the system continued until 1927. During this period all governments
increased their activities; the Commonwealth in particular, had taken on heavy
expenditure for social services in the provision of old age and invalid pensions
and was anxious to separate the public finances of the Federal and State
Governments. The States, too, had assumed heavier financial burdens in the
field of social services and had indulged in extensive borrowing for public works.
Eventually, the financial agreement in 1927 was evolved creating a new
relationship between the Commonwealth and the States. It abolished the
per capital payments, made the Commonwealth assume the debts of the States
and for management of the debts and control of future public borrowing in
Australia established an Australian Loan Council consisting of representatives of
the Commonwealth and the States but with the Commonwealth having a
preponderant voice. The agreement was submitted to the electorate in the form
of a constitutional amendment and approved, and for the future cannot be
altered without the consent of all the parties. Wheare has described the Loan
Council as "an institution for compulsory co-operation between general and
regional governments superimposed upon the federal system" and its establish-
ment as "a unique event in the history of the financial relations of general
and regional governments in a federation" One of its principal results has
been to organise public borrowing for the maximum benefit for all Australian
Governments and to co-ordinate general economic development. Inevitably
because of the authority of the Council in the field of public loans the
Commonwealth has been able to exert a measure of control over State
expenditure and therefore over State economic policies and programmes. The
establishment of the Loan Council, however, did not solve the problem of the
poorer States. Tasmania, Western Australia and South Australia, in particular,
have suffered in one degree or another through special disabilities and have
consistently looked to the Commonwealth for financial aid. Even after the
end of the per capital payments, therefore, grants continued to be a common
feature of Commonwealth-State relationships. Nevertheless here again, as with
the Loan Council, institutional arrangements have come to the aid of the federal
principle. In 1933 the Commonwealth Government created the Commonwealth
Grants Commission which is an independent export organisation established
to consider applications by States for grants from the Commonwealth and to
recommend to the Commonwealth Government the amount of the grant to be
given to each State. By leaving the analysis of the economic needs of the States
and the assessment of their grant requirements to each body, even though it
functions only in an advisory capacity, the Commonwealth Government has
rescued the system of grants from the worst effects of charity in public finance.
At least as late as 1951 moreover, there is no case in which the Commonwealth
Government had ever rejected the advice of the Commission. In addition, the






Commission itself, through its very detailed examination of the problems of
the poorer States, has established general principles according to which recom-
mendations for grants are made to the Federal Government; the most significant
of these being that special grants are justified when a State through financial
stress from any cause is unable efficiently to discharge its functions as a member
of the Federation in which event the grant should be determined by the amount
of help found necessary to make it possible for that State, by reasonable effort,
to function at a standard not appreciably below that of the other States. As
the Commission explained on one occasion "the fundamental law for all govern-
ments is self-preservation; it is on this basic principle which cannot be argued
that we put special grants. The only ground for this assistance is the inability
of the state to carry on without it" In the meanwhile, the Commonwealth
Government has been steadily expanding its financial authority and in particular
in 1942 was able-almost over the dead bodies of the States--to acquire a
monopoly of the income tax field. The problem in Australia so far as the
federal principle is concerned is not therefore-has the Commonwealth
Government enough money? It is and always has been: Have the States too
little ?

There can be no doubt, therefore, that in matters of public finance the
federal scales have been weighted heavily in favour of the Commonwealth
Government and that it is this aspect of the distribution of authority more than
any other which has made it possible for the Commonwealth Government to
meet the severe challenges of the twentieth century with all the authority of
a strong national government. Few of the fathers of the Constitution could have
foreseen in 1900 the tremendous changes in the direction of unification which
would be wrought under the Constitution within fifty years; many, indeed,
persuaded themselves that the social and economic status quo was well
preserved. A few, however, saw in the provisions of the instrument they had
created sign posts to the future. Alfred Deakin was such a man when he
sketched in 1902, which uncanny insight, the next five decades of Australian
history:
"As the power of the purse in Great Britain", he said, "established
by degrees the authority of the Commons, it will ultimately establish in
Australia the authority of the Commonwealth. The rights of self-govern-
ment of the States have been fondly supposed to be safeguarded by the
Constitution. It left them legally free, but financially bound to the chariot
wheels of the Central Government. Their need will be its opportunity.
The less populous will first succumb; those smitten by drought or similar
misfortune will follow; and finally even the greatest and most prosperous
will, however reluctantly, be brought to heel. Our Constitution may
remain unaltered, but a vital change will have taken place in the relations
between the States and the Commonwealth. The Commonwealth will
have acquired a general control over the States, while-every extension
of political power will be made by its means and go to increase its
relative superiority".






Has the Federal Constitution failed, therefore, to maintain in Australia
the supremacy of the federal principle? There are some who will say that it
has; but there are others who will take a broader view and assert that the
story of federalism in Australia, as everywhere else, is the story of the growth
of the idea of unification and that federalism is itself a stage in this develop-
ment and will fail to serve the ends of the national well-being only if it
frustrates the achievement of a more all-embracing union. As a Judge of the
High Court, now the Chief Justice of Australia, reminded the Royal Com-
mission on the Constitution in 1929 "Nor have we forgotten that a federal
form of government represents a compromise, and that the theory upon which
it rests as a political device includes the supposition that it will serve during
a period of transition while peoples separately governed may find it possible
to unite more closely under a less rigid constitution".
Ausiralia is at this moment giving thought to these matters. A Joint
Committee of both Houses of the Commonwealth Parliament has recently
been appointed to review the working of the Constitution and to make recom-
mendations for its amendment in the light of experience. In October of last
year it published its interim report in which it indicated the broad outline of
the recommendations for constitutional amendment which it will make. The
principal recommendations concern, of course, the distribution of legislative
authority. They have expressed the opinion that "the growth in number and
importance of matters affecting the people of the Commonwealth as a whole
now requires the vesting of additional concurrent legislative powers of the
national Parliament" Industrial and scientific research, nuclear energy, and
television are some of the matters which they recommend for entrustment to
the Commonwealth government. Implicit in their report, however, is the
maintenance of the essentially federal character of the constitution and the
recognition of the abiding soundness of the application of the federal principle
to Australian institutions.
The processes of federal constitution-making are, therefore, continuing
in Australia; indeed they have never stopped for the Constitution in the last
resort is more than the written word-it is the living institution of nationalism.







Early Constitutional History of Jamaica

(With special reference to the period 1838-1866)

C. V. GOCKING

I HAVE been asked to share the story of the Constitutional History of Jamaica
with Mr. R. N. Murray. The period which I shall cover begins with the capture
of Jamaica from the Spaniards in 1655, and ends with the so-called Jamaica
rebellion of 1865, a period of 210 years. The emphasis however will be almost
entirely on the 1838-1866 period. Mr. Murray's theme is 1866 to the present
day, that is, the second lecture covers a period close on 100 years.

1. INTRODUCTION
This division of the subject is a natural one because the constitutional
history of Jamaica falls readily into two well-defined and distinct periods.
My period deals with the story of the rise and development of representative
institutions identical with those which obtained in the North American colonies
(which later became the United States) and in the other West Indian chartered
colonies. When representative government developed into responsible govern-
ment in Canada in the 1840's Jamaica followed with its own form of responsible
government in 1854, so that the first point to be grasped is that Jamaica had
arrived a century ago at substantially the same stage of constitutional develop-
ment she has been enjoying over the past decade and a half. In 1866
representative-responsible government was abolished in Jamaica and the
Trinidad form of Crown Colony government substituted. The break and the
reversal were complete. The first period was over. That is why Mr. Murray
describes his story as "The Road Back" and why his section is also in a
measure distinct, separate, and self-contained.
The emphasis on the 1838-1866 period is also natural because in the first
place there is no need to trace the development of representative institutions
in what has been described by historians as the First British Empire. This can
be read up in such standard works as Professor Keith's-Constitutional History
of the First British Empire. It is sufficient to give an outline of the main
features of this type of Constitution as it appeared in its fully developed form
in the 18th century. In the second place representative government as it
developed in the West Indies and in North America was a form of Government
considered appropriate to persons of British stock bringing with them to the
New World their traditions and practices of freedom and representation in
Government. But the Act which abolished slavery in 1833 and the termination
of the Apprenticeship System in 1838 created a social revolution profound in
character and meant that this form of Government would thenceforth have
to function in an entirely new social context of different races with its attendant
problems, historical and otherwise. 1838 was therefore a crucial year in the
social and political history of Jamaica and of other West Indian territories,





and 1838-1866 a crucial period: The Old Representative System was developing
into Responsible Government and this new political expedient was being tried
out in a perfectly new and unusual social context-a society of different races
at different stages of development.
I shall now outline how I propose dealing with my subject. I shall begin
with a brief description of the Old Representative System, point out its
weaknesses, account for them, and indicate the British solution which was
Responsible Government. Thereafter I shall rely on some form of chronological
treatment to provide my framework. I shall indicate the terms in which the
Colonial Office authorities saw the problem of Representative Government in
the post-emancipation period, I shall examine their premises and seek to
discover to what extent they were valid for Jamaica society as it was and
as it developed, I shall deal briefly with the Constitutional Reform of 1854,
Colonial Office policy in the 1854-1863 period towards the constitutional
problem in the chartered colonies of Jamaica, Barbados and the Leeward and
Windward Islands, the changing attitude towards the problem in the 1863-
1865 period, the Responsible Government crisis of 1860 onwards in Jamaica,
the Jamaica rebellion and the change-over to Crown Colony Government.
I shall end by underlining the fact that the Colonial Office itself even before
1865 had become aware that Crown Colony Government had largely failed to
answer its purpose and live up to expectations.
I should say a word about the sources and authorities I propose to use.
I shall use both primary and secondary sources e.g. the Colonial Office paper
prepared for the British Cabinet in 1839, Colonial Office papers on Jamaica
and other territories, :!ding correspondence, both confidential and ordinary
between Governors and Secretaries of State, minutes exchanged between
political and civil service heads in the Colonial Office, private collections like
the Cardwell Papers, newspaper articles both Jamaican and foreign, &c.
Before I indicate the main features of the Old Representative System
I wish to stress that the constitutional problem in Jamaica in the 1838-1865
period was not solely a Jamaica problem: it was a British Caribbean problem.
The issue was: should Jamaica and the other chartered Colonies move along
with the white Dominions of the Empire, Canada, Australia and New Zealand,
towards an ever-increasing measure of self-government, or should the con-
stitutional device of Crown Colony Government adopted in Trinidad spread
throughout the area. There was a third possibility: a considerable body of
Jamaican opinion did think that a constitutional device, intermediate between
these two extremes, was possible and even desirable, by which the principle
of representation in Government might be presented; nor was this expedient
impracticable in terms of Colonial Office and Jamaican contemporary thinking.

2. THE OLD REPRESENTATIVE SYSTEM
The main outlines of the Old Representative System were simple. At the
Head was the Governor; he derived his authority from his commission and
instructions, "and from the vaguely defined delegation of the royal prerogative
to him as agent of the King" His powers which at first were great were
gradually curbed by the continual aggression of the Assembly.






The Council was both the Privy (or Executive) Council of the Governor
and the Upper House of the colonial legislature. Its legislative powers were,
however, gradually limited to the advantage of the Assembly; for example,
it had to renounce its claim to amend financial measures.
The Assembly, which gained at the expense of the other two, considered
itself the local House of Commons and gradually won a large measure of
recognition for its claim. It was not long before it usurped executive functions.
Lord John Russell called this form of colonial constitution a "perversion
of representative institutions", and what the "perversion" consisted in, and
how it came about, require brief explanation.
The theory of the constitution was clear. It was the function of the
legislature to pass Acts and vote the necessary funds. These would be disposed
of by the executive in accordance with the will of the Crown subject to existing
legislation. Direct intervention of the legislature in executive matters was
considered wholly improper and an invasion of the prerogative of the Crown.
In the colonies, however, the direction of progress was different. The legislature
increasingly sought by their acts to direct the executive government minutely
and deprive it of its independence. The process was accompanied by a
continuous struggle between Governors and Assemblies in all colonies.
The clue to the deviation from developing British practice is to be found
in the dual position occupied by the Governor; he was at one and the same
time head of the colonial executive and the representative of an authority
external to the colonial community; the urge towards local autonomy inevitably
tended to express itself in the attempt to curtail and circumscribe his powers.
"Colonial Assemblies tended to arrogate to themselves executive
as well as legislative power because the executive represented an outside
interest not responsible to their constituents."2
Or, as another authority put it:
"Willoughby in Barbados, Lynch and Molesworth in Jamaica,
Bellomont in New York, met the same type of opposition, supported
by the same type of argument. To say, as many writers have done, that
the corrupt and tyrannical conduct of the Governor compelled resistance,
or, as others would have it, that the Assembly was incurably factious,
is obviously inadequate. The explanation lies deeper than the character
of the Governors and the quarrelsomeness of the Assembly; it was the
clash of two fundamental principles, centralisation against local
autonomy."3
This is indeed the prime principle of explanation. Control of finance was the
means by which local autonomy was to be ensured. "Responsible" government
would solve the central problem that had been left unsolved in the first empire.
The position of the executive also requires notice. There was a lack of
coherence and order in administration with a consequent impairing of the
efficiency of Government.






The Assemblies had also usurped in many instances what was essentially
a royal prerogative, namely, the power to make and control appointments.
"Under the system which has acquired the force of law in Jamaica
the same body, sometimes under the name of a legislative assembly,
sometimes under that of a Board of Accounts, and at other times (in
conjunction with the Council) under that of a Board of Works takes
upon itself all the executive as well as all the legislative functions
connected with the colonial finances. It imposes the taxes, superintends
their collection, votes the appropriations, expends the money voted,
and audits the accounts. Such a combination of legislative and executive
functions is opposed not only to the practice of this country, but to all
received principles and to the practice of every country in which the
science of government is understood. It involves an utter absence of
responsibility on the part of those who are charged with the levying
and disbursement of public money and it must involve, as there is no
doubt that it has hitherto involved, extreme unfairness, looseness and
partiality in public expenditure."'
Early in the eighteenth century, too, the Crown lost all right to initiate
legislation. The Governor was limited to communicating with the legislature
by speech or message. Suggestions on money matters were resented. He
retained, on the other hand, the essential power of assent or refusing assent
to any bill submitted.
"In fact, while the power of the Crown was destroyed, no unity
of administration was created in lieu; the executive authority was shared
out between committees or commissions or officials, whose responsibility
to the Assembly was distinct and who were subject to no effective
co-ordination and often were under very nominal control."s
The Times was right when on 5th July, 1953, it described this type of
constitution as "obsolete, impracticable and unworkable"

3. THE 1839 MEMORANDUM
We now come to the all-important question of how the Colonial Office and
Jamaicans envisaged the workings of this form of constitution in the new social
context created by Emancipation.
Fundamentally, and throughout the period, the constitutional problem
was seen for what it was-a political one. This was true for the Colonial Office
and for Jamaicans too. There was this difference, namely, that on the whole
the Colonial Office tended to seek a solution in the strengthening of the position
of the Crown, even to the extent of instituting full Crown colony government,
whereas the majority of Jamaicans, though also disposed to strengthen the
position of the Crown, desired to maintain the principle of representation in
the constitution; for them, if not for the Home Government, there could be
no good government which did not include a measure of self-government.
The problem that demanded a solution was: What form of government
would best suit a colony circumstanced as Jamaica was on the morrow of
Emancipation? The Colonial Office faced this question as early as January,
1839, when the refusal of the Jamaica Assembly to do business induced the
9






Secretary of State to examine the whole problem of West Indian Assemblies
in the Chartered Colonies. A paper was prepared and submitted to the Cabinet
on 19th January, 1839 entitled Memorandum submitted to the Cabinet on the
Course to be followed with West Indian Assemblies.6
This Memorandum must rank among the most important documents not
only in West Indian constitutional history but in any collection of documents
dealing with the problem of representative and responsible government in those
non-self-governing territories of the Empire which possess multi-racial societies.
Its author was Henry Taylor who exercised a decisive influence over the West
Indian department for a period of forty-eight years (1824-1872).' At every
subsequent Jamaican constitutional crisis, that is in 1853 and again in 1865,
this Memorandum was circulated for the confidential use of the Cabinet. In
the latter year it was actually reprinted.
Its importance derives from the comprehensiveness of its scope. It provided
an analysis of the Constitution in the Chartered Colonies and found in "the
inherent and permanent incongruity of the system with the state of society
the valid ground" for its abolition and for the substitution of a Crown colony
form of government.
,- But it attempted more than this, for it examined West Indian society in
terms of its suitability not only for the Old Representative System, but for
representative institutions of any kind, and pronounced against it:
"The first enquiry which presents itself is what field or basis for
a really representative system is to be found in the West Indian
communities.
The Memorandum contended that representative institutions were imprac-
ticable because Jamaica society could not support them, and it could not do
so because of its general backwardness and division. Racial non-homogeneity
was the permanent, distinguishing, and characteristic feature of that society
and its deepest source of weakness and discord. Moreover, it was catalytic.
Remaining, as it did, the most vital single element of social unease, it entered
into all the others and gave them a peculiar sharpness and intractableness.
West Indian society, the Memorandum maintained, fell into three distinct
classes, corresponding to three distinct racial groups:
"Let the society of Jamaica be taken for example-320,000 black
people just emancipated, still in the depths of ignorance, and by their
African temperament highly excitable; about 28,000 people, partly
coloured partly black, whose freedom is of earlier date than that of the
emancipated class, of whom many have property but so few were
decently educated that it was thought by the Governor that their own
friends would not wish to see the Assembly chiefly composed of them;
and lastly, 9,000' whites possessed by all the passions and inveterate
prejudices growing out of the slave system. Throw those elements into
what forms or combinations we will, is it possible to bring out of them
anything like a representative system properly so called ?"






The Memorandum then proceeded to the next step in the analysis, namely,
that these three groups, the products of history, were self-conscious groups.
Class differences were strengthened because they tended to coincide with racial
ones. If the whites had their "inveterate prejudices" the coloured class had
theirs too, for
"though they have no goodwill to the whites, yet are they still
worse affected to the blacks; and standing between the two classes to
which they are akin, they have naturally shown themselves disposed
to make an alliance with the dominant and aristocratic class and to join
them in trampling upon the blacks to whom they feel it to be their
shame and misfortune to be allied in blood.
When the coloured people who possessed "some property" and "a portion
of knowledge" which enabled them "to possess political influence" joined the
whites in the Assembly, the result was oligarchy:
"There are, it is believed, 12 coloured members of Assembly,
and the Governor reports that of these there are only three who did not
go over to the whites and desert the Government in recent divisions.
"The obvious truth is that every attempt at a representative system
in such a community must result in oligarchy. Such the Assembly of
Jamaica always has been, now is, and will continue to be until the mass
of the population shall have been educated and raised in the scale of
society."
With such an Assembly the Colonial Office saw no hope of securing judicial
reform, police laws, and the repeal of oppressive local laws then in force. The
Memorandum proceeded to consider the wisdom of "temperately and courteously
reasoning with the Assemblies on such subjects" and continued:
"It has been sometimes supposed that by temperately and
courteously reasoning with the Assemblies on such subjects and showing
them how essentially the interests of the planters are bound up with the
good treatment and civil and moral advancement of the negroes they
would be brought round in time and every necessary object be accom-
plished. The experience of the Colonial Department on this point is
ample and decisive. It is the course which was taken between 1823 and
1834 on slave Melioration.
"And in truth, when this course is fairly considered, is there
anything of conciliation in it? The objects to be obtained for the
negroes are opposed to all the views and sentiments of the Assembly,
and even if they could be brought to see and acknowledge that the
interests of property would be promoted, they would not find a sufficient
motive in that. They are composed of agents and attorneys, seldom of
proprietors. The motives which affect them are connected with authority,
station, and certain rooted feelings concerning class and colour. Men
cannot be delivered out of these feelings by an appeal even to pecuniary
interests-not even when the interests are their own, much less when
their employers are the parties solely or chiefly concerned; nor can they
be reasoned out of them."






The Memorandum next considered the consequence of a black and coloured
ascendancy in the Jamaica Assembly; nor did the Governor of that island
regard this as merely a remote possibility:
"Indeed the Governor looks upon it as extremely probable that
in no long time every white member may be turned out of the
Assembly, and the revolution of affairs may bring up suddenly a
coloured and black ascendancy."
The Colonial Office was of opinion that this would only mean changing
a white and coloured oligarchy for a black and coloured one, or a purely
black one:
"The people of colour would join either the whites through
inclination or the blacks through fear."
It envisaged a situation in which the appeal to the electorate might be made
in terms of race. Prejudices would be catered for and animosities kept alive,
but because the electorate was ignorant and uninformed and there was no
worthwhile public opinion to discipline the Members of Assembly, there would
arise the inevitable oligarchy:
"The mass of the population is and must long be ignorant and
bedarkened; and whether the men who sit in it (the Assembly) be
white, black, or coloured, they will inevitably be irresponsible and
unrepresentative of the interests of the people. A black oligarchy will
certainly oppress a white minority of the people but it will not protect
the population at large; for no irresponsible oligarchy of any colour will
ever do that."
The new situation would, however, be fraught with great and a very
special difficulty for the Home Government, for the veto on legislation, the
Memorandum argued, would not suffice in the altered circumstances:
"So long as the Assembly was white and the populace black and
coloured, the Crown could quarrel with the Assembly and take the part
of the black and coloured classes, without fear of any other consequence
than that which actually followed, namely that the Crown partially
neutralised the proceedings of the Assembly whilst the Assembly
paralysed the Government. But if in the course of time the black and
coloured classes should predominate in the Assembly and should take
measures as might naturally be expected of them to oppress the whites,
or if the blacks should be paramount and oppress the whites and
coloureds, that is, if by any change the Crown should be called upon
to take part with a numerical minority of the population against political
power combined with physical force (instead of, as heretofore, opposed
to it)-against a black and coloured interest in the Assembly backed by
the black and coloured population of the island-then the quarrel between
the Government and the Jamaica Assembly would be totally different
in its features from those we have been accustomed to, and of a far
more dangerous character There is no contingency which the
Government of this country should more earnestly deprecate than one
which might bring them from being the allies and advocates of the black
and coloured classes into a relation of opposition and resistance to them."






That was as far as the analysis of Jamaica society and its political
possibilities went. The state of society in which "the mass of the population
(should) have been educated and raised in the scale of society" and oligarchy
would have disappeared did not come in for consideration. It would seem only
reasonable to conclude that, if antagonisms based on racial differences were
strong, even though oligarchy disappeared when the black masses became
capable of controlling their black rulers, the oppression of minorities, white
and maybe coloured too, would still persist.
But the view that the racial non-homogeneity of the Jamaica community
was an almost insuperable barrier to representative institutions was not a
dictum of the 1839 Memorandum only. Indeed the 1854 reform, satisfactory
on the administrative side, was regarded as politically even more dangerous
when it was perceived that it might lead to "party" government. Twenty-two
years later, almost to the day, when Governor Darling raised the issue of
responsible government, the Duke of Newcastle wrote: -
"That the Act of 1854 established the best form of government
in theory for Jamaica, no one pretended to suppose, but it was intended
to remedy great existing evils and to prevent the advent of still greater
in the shape of government by party of mixed races."'
Newcastle was not by any means alone in this opinion for it had its
supporters in England and in Jamaica too.
What then was the solution? The 1839 Memorandum saw it this way:
"But if we are looking to the establishment of a policy in Jamaica
which shall be adapted to the circumstances of the years to come, we
must contemplate the possibility of having to thwart the coloured and
black interest as well as the white; we must anticipate that the new
powers will be used with little moderation and that the gratitude of a
people to a Government for rights conceded will not last longer than
other popular sentiments or constitute a tie of such strength as to
control accruing influences and the passions of the day."
The analysis denied the Jamaica community any of the qualities of a
social organism. It represented it as composed of incompatible elements,
difficult if not impossible, to reconcile into a unity. The conclusion therefore
was that the island needed a form of constitution under which it would be
possible, as it was desirable, to "thwart the coloured and black interest as well
as the white" and at the same time guarantee good administration and equal
laws.
Representative institutions were condemned on two counts: They were
inefficient, for the community as a whole was backward and could not use
them to secure needed reforms; in the second place, and because of the racial
complication, they involved risk. The view was that there was ample ground
"to apprehend that the inveterate feelings by which the colonists
are divided would lead to measures of legislative oppression and in the
end break out into acts of violence."
These two criticisms of the place of representative institutions in Jamaica,
namely, inefficiency and risk, persisted throughout the period.
9 *






It is now necessary to examine, all too briefly, what I trust I may be
permitted to call the political and social facts of the period, not so much with
the expectation that they will be such as to confirm or controvert the accuracy
of Henry Taylor's prognosis, but that they may be seen as far as possible for
what they were and independently of any theory of their significance. For there
was an opposite view, enunciated by an outstanding statesman of the Empire,
Lord Elgin, Governor of Jamaica, 1842-1845 and later Governor General of
Canada in the post-Durham period. This view is of particular interest to
contemporary West Indians for it expresses the faith in which we move. Where
Taylor saw little prospect of success for representative responsible Government
in multi-racial societies of the West Indian type, Elgin thought otherwise:
"I think that a popular representative system is, perhaps, the best
expedient that can be devised for binding into one harmonious whole a
community composed of diverse races and colours.""'
Let us now return to the 1839 Memorandum. The 1839 Memorandum was
written with a purpose and the handling of the social material in it could not
escape the influence of that purpose. To anyone sympathetic to that purpose
there was not much to cavil at and much to applaud in the classification of
the Jamaica community into three groups and the insight displayed into their
character and the values they held. But once that purpose is set aside so that
it no longer informs the argument, and the social analysis assumes value per se,
then significant modifications become necessary. Let us take a few examples:
Speaking of the coloured class the Memorandum said:
"The coloured class have some property and such a portion of
knowledge as may just enable them to possess political influence, but
hardly to make good use of it."
This was hardly accurate by any standards. For one thing, it left out too much.
When every allowance is made for individual idiosyncracy, the opinions of the
age, and the context, it still remains true that this judgment did not do justice
to the coloured section of the community, especially when it is borne in mind
that the 28,000" under discussion represented those members of the class which
had already obtained full civil rights by 1833, and whose leaders had played
no small part in securing them. This class continued to play an increasingly
important role in the political history of Jamaica and its leader Edward Jordon
(1800-1869) is one of the great names in Jamaica history.
Let us now take a glance at the Assembly. The Assembly of Jamaica of
the years 1839-1866 was quite a different body from its predecessor of the
Emancipation period. In its support for the church, in its provision for the
administration of justice, and, to a lesser extent, the social services, the Jamaica
legislature put up a reasonable record in 1839-1845 period." Taylor's claims of
1839 "that the West Indian legislatures have neither the will nor the skill to
make such laws as you want made; and they cannot be converted on the point
of willingness and they will not be instructed" was to a marked extent
controverted by 1845. The 1846-1853 period of its history needs to be re-
interpreted and between 1854-1866 its record was creditable to the extent that
the Colonial Office was no longer speaking of it in the 1839 terms. Henry






Taylor's letter to Cardwell in 1865 confirms this."' He is still in favour of
doing away with representative institutions but his criticism of the West Indian
Assemblies is milder and his faith in the efficacy of a Crown Colony substitute
has grown dimmer with the experience of the intervening years:
"English public opinion revolts against cruelty and oppression but
that is not what the Assemblies are guilty of What they are guilty
of are sins of omission, sins of neglect or mismanagement" "
In this letter Taylor referred to the Crown Colonies of Trinidad and
St. Lucia and raised the question whether the Crown Colony system had
justified itself.
"Then as to the other question What has the Crown done in
Trinidad and St. Lucia where its power, legislative as well as administra-
tive, is absolute, and are the populations of those colonies in a better
state as regards industry and honesty and the conjugal, the parental,
and the filial relations of life than the populations of the chartered
colonies where these corrupt and careless Assemblies squander the
public money and take no heed to the welfare of the people?
"Now I must acknowledge for my own part that I doubt whether
we are at present in a position to give a clear and satisfactory answer
to this question
There is no compulsory system of education
and without such a system I doubt whether education could be made
very general. If it were to be made compulsory and general and also
effective and beneficial, I should imagine that there would be required
a much larger expenditure of public money than any that the Govern-
ment, absolute as it is thought to be, has ventured to incur. And this
suggests the question whether the Government of a Crown Colony is
really absolute as in form it seems to be; and I think the answer is that
an English Government never is and never can be absolute in spirit
and in courage, and that it cannot play the part of a beneficent despot.
The first step toward making education efficient and compulsory and
universal in a Crown Colony would be a heavy tax and for this the
Government would be presently called to account by the representatives
of the West India interest in the House of Commons. And if Jamaica
were to be converted into a Crown Colony, all the benefit that could
be expected would be so much as might proceed from the correction of
abuses and a gradual, cautious, and obstructed course of improvement.
Finally-and time is against anything like a proper analysis and follow-up
of this memorandum-let us look at a different kind of point: The classification
of Jamaica society into three mutually exclusive groups suffers, as a piece of
social analysis, from over-simplification. It overlooked the fact that race was
only one principle of social grouping though admittedly a strong one. A
considerable degree of integration of the constituent elements of Jamaica society






had already taken place and this was to increase in the years between 1839
and 1866. Writing in 1852 to the Secretary of State, Sir Charles Grey had this
to say:
"There is no place in the world, perhaps, where there is now less
tenacity than in Jamaica of those distinctions which, in so marked a
manner, used here, as they still do elsewhere, to keep the African, the
mixed, and the European races separate; none in which it seems to be
more likely that, to a considerable extent, the amalgamation of all races
which to the citizens of the United States appears to be so impossible
may gradually and slowly come to pass.""
And an article in the Westminster Review explained it this way:
"How can it be otherwise when coloured men not only may be but
are legislators, lawyers, physicians, ministers, planters, editors, merchants
as well as labourers ? "
Before I pass on to the New Constitutional Act of 1854, I must offer what
I can only describe as additional notes on the background of West India
Constitutional History in 1839-1865 period. Time does not permit anything
more:
First by the decision in Campbell vs. Hall the Crown was precluded
from revoking the constitutions of the chartered colonies and in 1839
the proposal for the mere suspension of the Jamaica constitution had
been defeated in Parliament. The experience of 1839 turned out to be
of crucial importance in the Constitutional History of the West Indies.
Never again, except in December, 1865, did a Secretary of State-or
for that matter the Cabinet-consider the reform or abolition of the
constitution of any one of the chartered colonies if that reform or
abolition meant going to Parliament for it. Refusal to entertain the idea
or inviting Parliamentary interference became a settled principle of
Colonial policy."
Secondly, The West India Interest. The influence of the West India
body is, perhaps, best described as negative. Its significance lay not in
what it did, but in what it did not do. That it offered no opposition to
Crown Colony Government was, perhaps, more important than its
disposition to advocate it. What its attitude meant was that there was
in England no body of organised opinion to represent those Jamaica
elements that were sympathetic to the maintenance of representative
institutions. On the contrary, those who might have done so were known
to be in favour of Crown Colony Government. "
Thirdly, the 1846-1853 period, has an importance of its own in the
political and Constitutional History of Jamaica. It was the period when
the Jamaica community first experienced compulsions from within urging
it toward constitutional and financial reform, and when in between the
retrenchment struggles of 1849 and 1853, in spite of the pre-occupations
arising from economic distress (and perhaps because of them), the
Assembly showed a certain responsiveness to suggestions for reform
emanating from the Colonial Office.






The reform of 1854 was not sudden. Indeed, a reform of so
far-reaching a nature could not be sudden anywhere unless it were
imposed by force, which this reform was not. The Assembly enjoyed
extraordinary powers and influence which penetrated into every depart-
ment of Jamaica public life and were wielded by men who knew and
reaped the advantages. Human beings do not surrender such powers in
deference to a prescript of reason. Improvements come about through
pressure on classes and individuals, through new demands made by new
circumstances, through larger purposes held by the few and not repug-
nant to the interests of the many. So it was in Jamaica.

4. THE NEW CONSTITUTION ACT, 1854 (17 VICTORIA, CH. 29)
The Creation of the Executive Committee was the most important feature
of the Act.
Barkly's Instructions had been quite specific on the objects to be secured
in financial administrative reform. They were equally emphatic on the need
for Government to have spokesmen in the Assembly and we are here concerned
with the more political aspects of the 1854 reform:
"I cannot but regard it as essential to good government in
Jamaica, not only that all public monies should be levied and disbursed
and all public accounts audited by paid officers responsible to the Crown,
but also that the Government should have one or more organs in the
Assembly, that there, as in this country, the annual estimates of revenue
and expenditure should be framed on the responsibility of the Govern-
ment and that proposals for votes of money should be made under the
authority and direction of the Government and not otherwise."'20
But it was left to the Assembly to decide on the vital issue of responsible
government:
"Whether the organs of the Government in the Assembly should
be so far the organs of a majority of the Assembly also, that they should
lose their offices and their official seats at the pleasure of that majority
or on ceasing to carry with them the votes of that majority is a question
which I am unable to determine without much more local knowledge
than I possess. That responsible government should be established is
the first thing necessary but what form that responsibility should in the
first instance assume depends chiefly upon the composition of the
Assembly and the materials which it affords for what has been termed
Party Government, as also upon the control which public opinion may
be likely to exercise over such a Government and over the majority of
the Assembly."2
The Act empowered the Governor to select three members of the Assembly
and one of the Council, not holding other offices of emolument, to form a
Committee to assist him in the general administration of the finances of the
country and in the execution of his other duties. The Committee was to assist
the Governor in preparing the annual estimates and in levying and disbursing
the public monies. It was to be their duty, when required, collectively and






individually to advise and assist the Governor in the general administration of
affairs. It was their duty, when required by a Minute under the hand of the
Governor, to give their opinion and views in writing on all matters submitted
to them, individually or otherwise. They were, when required, to advise on,
prepare and perfect all estimates, ways and means, papers, messages, answers,
bills and other proceedings which the Governor should deem advisable to be
submitted or communicated to either branch of the Legislature or other persons.
The Governor was empowered to direct that the duties of any particular part
or parts of the general administration of the island should be performed by
any particular member of the Executive Committee. There was, however, one
very important proviso, that notwithstanding anything contained in the clauses
which conferred these powers and duties, the Executive Government should
continue to be discharged by the Governor and on his responsibility.'

By another clause the Members of the Executive Committee were made
the official spokesmen of the Governor in the Legislative Council and the House
of Assembly for all inter-communication between the Governor and those bodies
and for the authoritative disclosure of the policy of the Governor on all questions
political, financial, and administrative which from time to time might become
the subject of consideration and discussion.2
The powers and authorities vested in the whole Assembly as Commissioners
of Public Accounts and Commissioners of the Board of Works were handed
over to a quorum of the Executive Committee, the Governor except under
certain contingencies being one. The Members of the Executive Committee
were to be paid officers. The power which members of the Assembly enjoyed
of proposing money votes was abrogated and such proposals could no longer
be made without the previous recommendation of the Crown.
The essence of the experiment was never stated better than by Sir Frederick
Rogers, Permanent Under-Secretary of State, who described the function of
the Executive Committee as the establishment of a
"channel of communication between the Governor and the Legislature,
acceptable to the latter body, removable if they mismanaged their func-
tions or were unequal to the control of affairs, and to be adjusted from
time to time to the reasonable and natural changes in the temper of the
Assembly."22
The one thing, however, on which all Jamaica politicians were unanimous
was that they did not want responsible government "in its integrity" as they
described it, for this had come to mean, by 1854, party government. They
considered that responsible or party government was not needed in Jamaica
and that in any case it was unsuited to the nature of the community. The
reformers therefore sought, as far as positive enactment could do so, to write
party government out of the constitution. The position of the members of the
Executive Committee nevertheless remained equivocal: According to law they
were responsible to the Governor; but they were members of the Assembly,
they were expected to be responsive if not responsible to it, and if that body
split into two or more opposing groups, it would always be possible for a
parliamentary majority to use the machinery of the Executive Committee to






impose party government. Barkly regarded the 1854 Act as establishing respon-
sive government without party, as in the Canadian colonies before Elgin. The
Executive Committee was "his" Executive Committee and his spokesmen in
the Legislature; but he recognized that for effective legislation he had to so
arrange his appointments to that body as to command a working majority
in the Assembly, or, in other words, to govern in accordance with the well
understood wishes of the people. To achieve this he selected two members from
the Assembly as members of the first Executive Committee-Edward Jordan,
Leader of the Coloured Party and Henry Westmoreland of the Planter Party.

5. BRITISH GOVERNMENT POLICY 1854-1863
From 1854 on to 1863 the establishment of the Executive or Administrative
committee form of government became accepted British Government policy for
the Chartered Colonies and similar committees were set up in St. Vincent and
Antigua. In 1859 there is a minute from Taylor which would suggest that even
he had come round to the point where he was prepared to give party government
a chance
"The intent of the Act, (the Antigua Act) is, I conceive, to establish
responsible or what Lord Grey says should rather be called "party"
government, that is, the legislative affairs of the Colony are to be
managed under the Presidency of the Governor by an Administrative
Committee consisting of members of the legislature possessing its
confidence, and when losing its confidence to be exchanged for their
opponents in the legislature who have obtained the predominant
influence there.""
In 1860, however, Governor Darling provoked a severe government crisis
in Jamaica by seeking to interpret the 1854 Act as establishing responsible or
party government in that island.
There is no time even to attempt anything like an adequate treatment of
the remaining aspects of my subject and I content myself with a bare indication
of the course, policies and events took.
The Jamaica Responsible Government controversy of 1860-1861 under-
mined the foundations of the Jamaica Constitution. By way of summary it
may be said that Governor Barkly, Permanent Under-Secretary Merivale and
Parliamentary Under-Secretary Fbrtescue took the same view of the Jamaica
constitution. They put the Governor in a focal position but interpreted the
relationship of the Committee to the Legislature as one of modified responsi-
bility. Their attitude of mind was one of flexibility. Darling, always after
definition, went a little further and would have been prepared for responsible
government in its "integrity"" he became somewhat scared when he found
such a weight of Jamaica opinion behind the Executive Committee in its
interpretation of the implications of his policy as one of responsible or party
government. The Country or Planter Party, on the point of assuming full
power in the Assembly, were also scared, and an important splinter group,
led by Westmorland, broke away. The larger section repudiated party govern-
ment also, but were willing to work on the principle of modified responsibility,
which solved nothing. Although the Executive Committee according to the






letter of the law was absolved from responsibility for the conduct of the
Executive Government, the fact that they were members of the Legislature
and were intimately associated with the Governor made it difficult for them
to disclaim all responsibility to the Assembly. If the Governor could not
say to the Colonial Office "My ministers would have it so", it was also not
very practicable for the members of the Executive Committee to say to the
Assembly "The Governor would have it so" The logical inconsistencies
in the Act stood revealed.
The controversy, however, did issue in a firm determination on the part
of the Secretary of State to resist any approach to Party Government.
Newcastle expressed his approval of its "repudiation by all parties" and
added that "it should be the Governor's care on all occasions to obviate as
much as in him lies any approach to it." 24 But the Colonial Office
failed to recognize that this had been the real issue, and that it had not
been resolved because "all parties" had professed their opposition to it. It
was inherent in the 1854 Act. The occasion had provided the Secretary of
State with an opportunity of setting before the Jamaican authorities all the
implications of the Act; unfortunately, side issues and misapprehensions, as
correspondence and minutes show, monopolised attention and the opportunity
was lost.
I now wish to place before you three facts of some importance in the
constitutional history of the West Indies. First, that the year 1863 witnessed
the beginning of a new line of policy under Colonial Office guidance and with
Colonial Office support a single chamber form of constitution was successfully
engineered in Dominica, 1863-1865. The success encouraged the Colonial Office,
particularly Henry Taylor, to hope that it might be possible to exploit the
differences between the Town and Country Parties in Jamaica to bring about
the reform of the Assembly itself this is what had been done in Dominica.
But whereas up to July 1865 Taylor had only been hoping to exploit differences
if they arose, in response to Cardwell's letter (already referred to), he was
prepared to go a step further
"When ever the time shall arrive (if it ever does arrive) for taking
steps toward amending the constitution of the Jamaica Legislature and
of other West Indian Legislatures it would seem to be very important
that there should be some not inconsiderable party in favour of it, and
the question arises in what manner such a local party can be created
in colonies in which it does not exist and strengthened in those in which
it does exist." "2
But the Colonial Office prospered more than one string to its bow. It not only
determine to take advantage of party divisions in the Assemblies, but it set
out to educate the British public and Parliament on what the Assemblies were
like, in the hope of facilitating the passage of reform through Parliament,






if necessary; the Antigua Blue Book showed in June 1864 that two members
of Assembly had been elected by three electors, two by four, one by eight,
two by eight, and two by twelve. Taylor's Minute read
"I have told Mr. Robinson to put this in the Colonial List [sic]
and he proposes to do so far as can be obtained. It seems very desirable
that the nature and combination of these Assemblies should be better
known in this country than they are. Had they been sufficiently under-
stood in 1838, they would probably have passed out of existence at
that time." '"
"If no signs of such a local movement should appear, it will then
be a matter for consideration whether an attempt should be made so
to agitate the question here and see what support could or could not
be obtained towards a modification of West Indian constitutions by
Parliamentary legislation. But I think the steps to be taken should still
be so guarded as not to disclose the end to be aimed at." "

It is not surprising, therefore, that the so-called Jamaica Rebellion of October
1865 furnished what seemed a golden opportunity to get rid of the Assembly
and Eyre could write privately to Cardwell
there is nothing like striking while the iron is hot, and
if we are to get a change of constitution through the medium of the
Assembly itself, now is the time to do it when everybody is in a state
of the greatest alarm and apprehensive and looks up to the Government
for everything." "

and again
"The Legislature is now sitting and I have seized the opportunity
to try and get rid of the Assembly." "2

and once more
"All this indicates a desire to support the Government, and I hope
to turn the golden opportunity to good account; such a favourable
chance is never likely to offer again." "

There are two more points I wish to make and a note of caution I wish
to introduce before I conclude with a few general observations. First, the
claim that the Jamaica Assembly was not representative and that they were
under two thousands persons entitled to vote seriously misrepresents the truth
as it was, but I have no time to document my statements. Secondly, the
Royal Commission which investigated the "Rebellion" emphatically rejected
the claim that the uprising represented "a most diabolical conspiracy to murder
the white and coloured inhabitants of this island." 3 The Royal Commission's
judgment on this was emphatic
"on the assumption that if there was in fact a widespread con-
spiracy Mr. G. W. Gordon must have been a party to it, the conclusion
at which we have arrived in his case is decisive as to the non-existence
of such a conspiracy." 3"






On the question of a general rising the Commissioners reported that:
"the only evidence beyond that of vague rumours in any degree
tending to show an intended rising at some future time was given by
one witness who deposed to a statement made by an insurgent engaged
in attacking a property in the neighbourhood of Bath that 'it was not
their time' 's

Much also had been made of threatening letters and secret drillings. The
Commissioners stated
"Notwithstanding the alleged fact that threatening letters were
previously unknown in the Island, we were unable to attach any
importance to those brought to our notice. As regards the drillings, it
was found upon investigation at the time they were wholly uncon-
nected with illegal objects." "
The British Government expresses a general concurrence in the findings of the
Commission.

The note of caution is for the audience. In a subject as many-sided as this,
anything like a full treatment has been quite impossible, and I can only claim
that I have tried to achieve accuracy of a general nature. There has been no
time for qualifying statements.

I make three concluding observations. The first is that the British Govern-
ment and the British Parliament never found the time to deal properly with
the West Indian constitutional question. In 1839 it was made to serve the
purposes of British party politics. In 1853 Earl Grey, one of the great Colonial
Secretaries, suggested in the House of Lords that Commissioners should be
sent out to Jamaica with Governor Barkly
"to look carefully into the whole existing state of law and govern-
ment of Jamaica to assist the Governor and the legal authorities in
making the settlement which would be found to be necessary .Since
slavery had been abolished the whole condition of the colony
had, unfortunately, never been considered in the large and comprehen-
sive manner which was absolutely necessary in order to give the great
change which had been effected a fair chance of working he did
not believe they could command in the Island all the various knowledge
and ability which was requisite to deal with that very difficult state of
things He believed they ought to have men from this country
with all the knowledge of the principles of politics and of political
economy which could be found here to take a large view of the
condition of Jamaica." "

But no such thing was done. In 1855 Lord John Russell, Colonial Secretary
for a few months, minuted
"The best thing a Secretary of State could do would be to bring
Sir William Colebridge home and consult him as to a measure or measures
to be introduced to Parliament. My successor will then have before him





the materials for a judgment, Mr. Taylor Mr. Merivale
Mr. Ball will assist him in deciding what is best to be done, and
how far Parliament can be relied on for doing it when proposed. What
is done must be compulsory and complete." "8
and Henry Taylor added
"I fear nothing can be done at present. The condition of the West
Indian colonies rhust before long be considered as a whole, presenting
indeed the most difficult problem of Colonial Administration." "
In 1861 Newcastle avoided the issue in Jamaica and in 1865 Secretary of State,
Cardwell, was still asking what could be done.
The second concluding observation is that the Crown Colony system as
we have come to know it had already failed to live up to the expectations of
its proponents. Crown Colony government, wrote Sir John Parkington in 1852,
"instead of being inconsistent with free representative institutions
is in reality the only means by which it is possible to impart the benefit
of them to a community of which the population at large is ignorant
and barbarous. The representative institutions of the mother-country
become a substitute for local representative institutions and the Crown,
whilst exercising this control, is, in its turn, controlled by
Parliament." 3'
I have already indicated the nervousness of successive British governments
at the mere thought of bringing the West Indian constitutional question before
Parliament. Parliamentary grants made at emancipation ceased at the very
time when calamity in the form of British Free Trade policy fell upon the
islands with the suddenness and swiftness of an act of God. I may add as a
final piece of evidence of complete Parliamentary indifference the treatment
which the finding of two very important Commissions on the working of
Indian Immigration in British Guiana and Mauritius received from
Parliament." Apart from a few questions of minor importance from a few
individuals a search through Hansard reveals that Parliament took no interest
whatever. I may observe that the remiseness did not come from Colonial Office
officials but from the politicians.
My third and final observation has to' do with the reaction of some
Jamaicans to the abolition of the Constitution in 1866 and the substitution of
a pure form of Crown colony government with expatriate officials which had
not been expected: Said Robert Osborn in the Jamaica Assembly in 1865:
"If I be right in my views of the future, the question which we
ought to discuss is--how are we to prepare these people for self-
government-how to elevate them I think we ought to look these
questions boldly in the face, and to grapple with them, before they force
themselves irresistibly upon us." 40

131







And on the subject of Crown Colony government the Jamaica memo-
rialists of 1876 got to the heart of the matter when, after recounting what they
considered some of the unsatisfactory features of the new system, they
spoke of
"the very grave additional one of the unhappy effect the present
form of government has on the intelligence and self-respect of the people
of the Colony, excluding, as it does, all men of worth and independence
from any real share in the government of their country, denying them
any voice in its Councils, and depriving them of all control over the
raising and expending of taxes; the system tends to render them
indifferent to the march of public affairs, to create apathy and indiffer-
ence to those vital interests which should properly occupy a prominent
place in their minds. It, indeed, strikes at the root of all manhood and
self-reliance, and will end in making the inhabitants of this Colony a
weak, dependent, and childish people."


REFERENCES
'Allowances must be made for the more recent and rapid present-day developments.
'Morison and Commager, The Growth of the American Republic, New York. 1950.
'Agnes Whitson, The Constitutional Development of Jamaica, Manchester, 1928,
p. 158.
'Secretary of State Newcastle to Governor Barkly, Instructions.
'Sir A. B. Keith, The First British Empire, Oxford, 1930, p. 213.
'P.R.O. 30/4817 Cardwell Papers.
'Towards the latter end of his career, especially, he carried all the weight of a
Permanent Under Secretary where West Indian affairs were concerned.
'16.000 would have been a more accurate estimate.
"C.O. 137/351, No. 156, 23/11/1860, Darling to Newcastle, Minute.
"Egerton, The System of British Colonial Administration---of the Crown Colonies in
the 17th and 18th Centuries with the system prevailing in the -19th Century, Trans-
actions of the Royal Historical Society, 4th Series, Vol. I, 9/4/1918.
""Coloured" and "black"' This was a recognized distinction according to the
historical record and the classification appears in the 1861 Jamaica Census. "Coloured"
meant "of mixed race.
"British Free Trade policy and the consequent loss of protection for West Indian
sugar in the British market was bound to exercise considerable influence on the develop-
meant "of mixed race:"
"C.O. 7/143, Private, 29/7/1865, Taylor to Cardwell.
"Ibid
"Ibid
"P.P. 1852/31, No. 5 &c.
"P.P. 1857/10, No. 65, 12/5/1856, Barkly to Labouchere. Report on Blue Book
for 1855, Enc. 3.
"C.O. 260/82, St. Vincent No. 29, Barbados, 19/5/1855, Colebroke to Russel,
Enc., Private and Confidential 2/5/1855, Eyre to Colebroke, Cox's Minute: "I do not
suppose the Government are prepared to invoke the aid of Parliament without which
the Government is powerless." Cox was a C.O. official.







'"1853 Correspondence between the C.O. and the representatives of the West India
interest in London and other places.
"Newcastle to Barkly, Instructions.
"Ibid.
"C.O. 137/376, No. 304, 26/12/1863, Eyre to Newcastle. Minute by Rogers,
6/2/1864.
"C.O. 7/112, No. 67, 25/7/1859, Eyre to Newcastle, Taylor's Minute.
4 C.O. 138/71, No. 232. 29/1/1861, Newcastle to Darling.
Taylor to Cardwell Private, 29/7/1865.
Ibid.
Ibid. The underlining is mine.
Cardwell Papers.
Ibid.
Ibid.
Eyre's claim.
Royal Commission Report, 1866, p. 3A.
Ibid.
Ibid.
Hansard's Parliamentary Debates. Third Series, Vol. 128. Speech in the House
of Lords 30/6/53.
C.O. 260/82, S.V No. 29, Barbados, 19/5/55, Colebroke to Russel, Enclosure,
Eyre to Colebroke, 2 5/55.
Ibid.
Craig.
P.P. 1871/20, Report of the Commissioners appointed to enquire into the
treatment of Immigrants in British Guiana. Presented to both Houses of Parliament,
June 1871.
P.P. 1875/34, Royal Commission's Report on The Treatment of Immigrants into
Mauritius.
Jamaica Parliamentary Debates, Vol. 13. p. 75, 21/11/1865.
P.P 1881/65, 9/12/76, Sir William Grey to Carnarvons Enclosure.







The Road Back-Jamaica after 1866


R. N. MURRAY

IN this account which unfortunately must be highly condensed, I shall
attempt to illustrate through simple narrative how the stubborn tradition of
resentment of external control survived 1866. I shall illustrate how even when
this tradition seemed dead or moribund it retained comatose energy ready to
pulsate under the appropriate stimulus. I shall show how the torch of self-
government was snatched failing from the hands of one social class by
another and how, finally, the idea came to be accepted by all, irrespective
of racial origin or of class,
"Thus was brought to a close a Representative Institution which had
existed for 202 years, and which had exercised powers, in some respects, in
excess of the British House of Commons itself."
With this stolid epitaph ends a contemporary account of the episode.
We have seen how near the Island was to real self-government in 1865
and how she forfeited that privilege. While the road back has been less marked
with turbulence and bitterness, it too can show its scars of crisis and of
struggles.
The new system was Crown Colony government pure and simple, the
entire legislature being nominated by the Crown. The centre of the system
was the Governor, armed with all the power he required for quick and tidy
action. The regime proceeded tranquilly for the following reasons:
(1) The 1865 tensions had subsided; some, mostly white, enjoyed with
inward calm the satisfaction that another Haiti had been forestalled.
They had feared the political rise of the educated coloured people
and thought now that the question had been decided once and for
all. On the other hand, the negro majority believed they could
envisage nothing but tyranny and bloodshed if the pre-'65 regime
was perpetuated; an impartial autocrat was therefore to them a
Godsend. On the whole, well thinking men of all shades stood in
horror at the severity with which the rebellion had been crushed,
but it was no time for aggressive action anywhere along the line.
(2) With the inefficiency and confusion of former administrations and the
consequent utter backwardness of the country in practically all
aspects of life that depended on government initiative, there was an
immense task of modernization. The Governor, who used his power
skilfully, was of hearty, cheerful disposition and was well liked.
Able, energetic and forceful, he had boasted he would so alter
Jamaica's condition as to make the island unrecognizable to the
dead, were they to rise from their graves. And so in eight years
a Jamaica emerged out of the chaos. Local Government machinery






was simplified, the police force and the administration of justice
were overhauled; proper medical service and a department of Public
Works were brought into being; and important irrigation schemes
got underway; cable connection with Europe was established, the
railway was extended; tram cars were introduced; new roads were
built; government savings bank with parish branches were set up.
A system of elementary education involving government assistance
to the efforts of religious denominations rapidly developed.
A new day had indeed dawned under the shining imperial sceptre. The
only cloud in the sky was a small group of clear headed men who refused to
be beguiled by autocratic efficiency. This included Samuel Constantine Burke
and Edward Jordan and a few unimportant whites. Burke was a light-
skinned lawyer-planter who had fought to the end the Surrender of the
pre-'65 constitution. He was made Crown Solicitor and by virtue of the office
he sat in the partly official, partly unofficial advisory council that formed the
Legislature. Edward Jordan also of mixed blood was Island Secretary. He
was allowed to continue in his post and died in 1869.
Opposition to the constitution was not long in expressing itself. It was
contended that the Legislative Council was a sham and the one-man rule of
the Governor a negation of the rights of gentlemen and citizens of substance
to manage their own affairs.
The historical locus of power in the case of Jamaica is more than a
matter of transfer, permanent or reversible, or of remote control by lines,
strong or attenuated, laid across the Atlantic. It involved, first of all, the
consolidation of notions of Jamaicanism; and within this the ranging and
grouping of the population, black, white and the intermediate shades in
accordance with their peculiar aspirations and sentiments.
In the eighteenth century the creole Englishmen was at variance with
the England-born, a fact which "embittered the politics of Jamaica" during
that period (Whitson). In the nineteenth century the situation is no longer
of importance. Vanished or vanishing was the wealth of sugar and
"the original Chief Whites were decaying because they did not have
the will to survive in the Jamaica scene The disappearance of (their)
sons and nephews had become a flight They had cast Jamaica
aside like a sucked orange. In their stead had arrived a plague of attorneys
(who) neglected the land, (and) mistreated the slaves Yet they counted
as chief whites. They aspired to and attained seats in the Assembly"
(Roberts).
The creole whites were not numerous and lacked influence. But a new
leading class of Jamaicans had come on the scene-the free coloured land-
owners, and merchants most of whom were the
"illegitimate children of white men and black concubines or the
descendants of such offspring" (Roberts).
To this class Jordan and Samuel Constantine Burke belonged. In the
early part of the twentieth century, when the true negroes had begun to
throw up a few leaders of substance and calibre, the coloured class with a






handful of notable exceptions assimilated in sentiment to the whites and to
them Jamaica became of less significance socially and in matters of the spirit
than did England which was "back home" for even those who had the barest
claim to white ancestry and "mother country" in a very real sense for all.
white as well as black.
The final stage of political development in Jamaica, that which is even
now being enacted, began when the negroes who form 90 per cent. of the
population rose up, pulled their strength upon them and, hand in hand with
every friendly racial minority, demanded control and obtained it. But let us
go back to the first post-'65 crisis, known in history as the "Florence Case"
If you will bear with me I will outline it briefly.
The Florence was a Venezuelan schooner which in 1877 was for
security reasons detained by order of the Governor after it had put into
Kingston Harbour for repairs. The owners brought action against the Govern-
ment (that is to say the Governor) to recover damages due to delay and
contingent trespasses. The verdict went against the Governor who was called
upon to pay a sum in the region of 7,000. The amount was advanced from
the Treasury and the Secretary of State was asked for instructions as to how
it was finally to be met. In the return despatch, the Secretary of State directed
the Governor to apply to the Legislative Council for a vote to cover it. The
Secretary of State also required the official members to support the vote. It
is important to remember that the Legislative Council was merely an advisory
one. Two of the nine official members promptly resigned in protest, arguing
that "the acts of the government in reference to the vessel were questions
of imperial and international duty" and, that "the damages and costs were
incurred solely in pursuance of imperial policy and objects". One of these
was S. C. Burke about whom we have already heard. Burke's stand was
fully supported by a Select Committee which declared in 1882 that the
Council would not be justified in sanctioning the vote as the detention of the
vessel was made entirely to protect imperial interests and in no way could
this island derive any benefit therefrom" Several public meetings were held
in protest and the entire unofficial side of the Council resigned. In public
meetings and other discussions strong objection was voiced against "taxation
without representation", (against) the continuance of the official Legislative
Council, and (against) "control over expenditure being exercised by an
official body" Finally a deputation of gentlemen sailed to London at their
own expense and waited upon Lord Derby, the Secretary of State, Derby in
reply assuring them that Her Majesty's Government were prepared to introduce
"something of an elective element" into the constitution. But when the new
arrangements were announced they excited as much disappointment and
chagrin as those which they superseded had caused vexation and annoyance.
So further public meetings of protest were resorted to and a vigorous wave
of well co-ordinated agitation swept the island from end to end. The agitators
wanted the Governor's presence removed from Legislative Council, they
wanted adequate elected representation of the various sections of the Island;
they maintained that the Representatives of the People should control all
aspects of finance.






Elected representation was restored in 1884. From this date down to 1895
various experiments were tried. From nine the number of elected members
was raised to fourteen; at first the governor sat as president of the council;
then he was replaced by a nominated president; finally his seat was restored.
Similarly, experiments were tried in the matter of basic qualification for the
franchise. At first a voter had to own property on which rates and taxes to
the amount of 30/- were paid, or owned and occupied a dwelling with an
annual rate of one pound. In 1886 the Franchise Amendment Law reduced
the tax qualification to 10/-. The literacy test initially decided upon was
postponed, then implemented, then abandoned, Already the road to universal
suffrage was open. But, even so, only a very small minority took active
interest in politics and voted at elections. Truth is that the proletariat were
not in fact represented in the councils, their point of view, so far as they
were assumed to have one, could be ignored, but their vote was sought, if
it could be won.
The elected side of the House was for a provisional period in the
discretion of the Governor allowed a majority over the official and nominated
side. It was during this period, too, that the curious invention known as
the Veto of the Nine was made. It meant that the unanimous opinion of
nine elected members could overrule the council as regards a money bill.
A parallel invention-the Paramount Importance Clause-conferred upon the
Governor the power of negativing all opposition (including the Veto of the
Nine) to any matter pronouncing it a matter of paramount importance. In
this magic phrase was enshrined a most important aspect of the reserved
power exercised by governors in the name of the sovereign, and for over
60 years it was to be the Damoclean sword over the solemn heads of elected
members.

I said earlier that constitutional events moved in Jamaica from crisis
to crisis. The next of these is little known, developed without acrimony,
involved no popular agitation and ended with a noiseless imperial victory,
the ensuing peace lasting over a third of a century until 1938.
I shall be as brief as possible,
Towards 1890 the economic barometer began to drop ominously. Govern-
ment budgets failed to balance year after year. The American Syndicate that
owned the Jamaica railway defaulted in the payment of interest on fljm. of
mortgage bonds which they had issued to finance railway extension. Money
became scarce; trade slumped. A Royal Commission enquired into the
conditions. A Finance sub-committee recommended drastic retrenchments.
The railway debacle had to be corrected by government ownership. New
taxation had to be imposed. In imperial philosophy this could only be done
by restoring financial control to official-imperial hands and raising a large
loan from the United Kingdom Treasury It was in the Governor's discretion
to increase the number of official councillors by four and so bring his side up
to the full complement of 15, and a majority over the elected side of the
council. Then he could use the magic spell of Paramount Importance. He did
10*






both, with full backing from the Colonial Office. This was in 1899. A hurri-
cane of protest was raised but it quickly died down, except for the voice of
Dr. D. S. Gideon, an elected member who, having threatened to resign, for
four years until 1902 maintained with the Governor a running polemical
correspondence that remains a classic of urbanity and detachment. But all
to no purpose. Gideon's colleagues were not wholehearted in the resistance
and the Nominated majority became permanent. But Gideon resigned in
dignity.
In 1902 the old ruling class based on property and skin colour commenced
their retreat from the political front hnc, Henceforth they would maintain
their ascendancy by other methods, if they could. The "phoney" represen-
tation suited their methods; change they came to regard as unnecessary.
The black and coloured masses of the population saw their chance and
tried to take it. From Dr. Love, the Bahamas negro who edited a newspaper
devoted to the cause of negro political advancement and who became a
member of the Jamaica Legislative Council in 1906, to Marcus Garvey who
stirred black men the world over, the lesson was driven home to Jamaican
negroes that only by a realization of their equality with other races, could
they rise to performance equal with them. Then during the hungry thirties the
idea was fostered that, in the words of the 1939 Royal Commission, "far-
reaching measures of social (and economic) reconstruction depend for their
initiative and their effective administration upon greater participation by the
people in the business of Government. If I may be allowed a comment
here I would say time seems to be proving this to be the correct view. There
were many in this period who, entering the Legislative Council on the support
of the 10/- voter, fascinated the gallery with long, censorious speeches which
betrayed the growing frustration of the elected side of the House, for
possessing the illusion but lacking the reality of power, they could achieve
little or nothing that was progressive and concrete.
The period up to 1938 is therefore one of the utmost unrelieved medio-
crity of achievement in practically all spheres of activity. The First World
War brought the franchise to women in 1921 though on a property qualifi-
cation higher than that required for men. Women went to the polls of course,
but women legislatures were not known before the nineteen forties,
In 1922 Major E. F. L. Wood (later Lord Halifax) who visited the West
Indies under Colonial Office auspices reported on the absence of any desire
for self-government on the part of West Indians as a whole. Nor could he
foresee the time when they might deserve it. Major Wood proposed for
Jamaica a revival of the Executive Committee of the Legislative Council
and an unofficial majority in that body as a first step 'towards responsible
government. It mattered little that the proposal was not accepted. In fact
the Jamaica Legislative Council itself turned it down in 1926.
Pro-national sentiments engendered by World War I were of little
observable significance and soon cooled off. At any rate new torpor settled
down; unemployment soared and widespread poverty, if not totally accepted,






drove people to the belief that nothing could be done about it. When economic
disaster struck the world in the twenties and thirties and the price of sugar
tell to its lowest in history the despairing working classes and small farmers
had precious little to fall back on. Great strides were made in combating
the fell diseases to which the banana was proving subject, and good work was
done in improving the yields of sugar cane and citrus and in securing stable
markets. But to most people agricultural products, prey though they be to
hurricanes and unreliable markets, contained the limits of Jamaica's resources,
and there were not many prophets of a brighter day to come.

1938 AND AFTER
The political and social ferments in the West Indies in the 1930's are
too well known to call for special treatment, and just as the times are too
near for us to make reliable appraisals, so also are the leading personalities
too vigorous for us to assume complete indifference as to their reaction to
what we may say of them.
The whole political achievement of this period is based upon the intro-
duction of universal adult suffrage and if Thomas Babington Macaulay were
to come back to life he would revise that famous speech in which he
is said to have affirmed that "universal suffrage would be fatal to all the
purposes for which government exists (being) utterly incompatible with the
very existence of civilization." When Mr. Norman Manley publicly launched
the People's National Party on the night of September 18, 1938 and declared
in favour of universal suffrage there were probably thousands who would
have judged Macaulay the wiser man. But that was not Manley's only
departure from dominant traditional conceptions, for if the idea of "National"
was new and unthinkable in Jamaica so also was that of "Party", and I am
reminded of Bernard Shaw's adage that it is not our recollections that make
us wise but the responsibilities of our future. The formation of parties that
could hold together was, to my mind, of major importance in the constitu-
tional struggle; and whether at the beginning a political party is sustained
by a single net of coherent policies or whether it is a bizarre mosaic of
disparate elements set in expediency, what matters is that they can act in
unity and can form a humane and sensible government if called upon to
do so.
Autocracy is narcissistic; it battens upon its own pride of force. Give
the story of the Council for Civic Liberties. The Second World War
strengthened the sinews of autocracy. Goaded on by the frequent use of the
Paramount Importance formula or by official indifference to certain civic
liberties, Manley increased the tempo of the self-government movement. By
so doing he was able to provide a swift denouement-swift it does seem in
retrospect despite the passage of nearly 20 years-to the crisis which from
threads all ready to hand Bustamante had woven in 1938.
Now it is interesting to ask what is it that during the past twenty years
has made the climate of imperial opinion so favourable to constitutional
advance in the colonies. We may say it is the new humanism to which any






post-war thinking can be susceptible; some have adverted to dread of fearful
communist alternatives; we may even point to the emergence in colonial
leadership of a charismatic symbolism which, Britain herself being a Christian
democracy and a monarchy to boot, compels her regard in the present
epoch; then of course we may see in it a recognition of the development of
a people sufficiently educated, politically aware and responsible to take
care of their own affairs perhaps-who can tell?-Britain has had fresh
insight into the potential of equal partnership, C.D. & W. grants notwith-
standing.
Whatever the explanation may be, the changes towards self government
in Jamaica during those years have been so kaleidoscopic that anything like
a detailed examination of them is out of the question except in a full sized
volume. And since you cannot remain here all night I shall give a brief
chronology of the main steps and then come to an end.
1943:-Agreement on the proposal of a five-year experiment in the
bicameral system with (a) a lower House of Representatives
elected by universal suffrage and an upper House (the Legis-
lative Council) wth unofficial membership exceeding the official.
(b) the Executive Council selected from both Houses, the
Governor presiding and having the power to refuse assent to a
Bill, but only with the Executive Council's approval, the
Council to be the principal instrument of policy and to
prepare the Budget. (c) The functions to the Privy Council
to be restricted to the Royal Prerogative of Mercy and the
discipline of the Civil Service.
1944: -The (foregoing) 1943 arrangements came into effect.
1953: -The elected members of the Executive Council to be ministers
having full responsibility for departments and to have a majority.
A Chief Minister appointed from among the ministers, the
appointment approved by them. Other ministers to be appointed
on the recommendation of the Chief Minister.
1955: -Increase in the number of elected ministers.
1956:-The number of official members in the Legislative Council
reduced by two: corresponding increase of unofficial members.
1957-58: -The Governor no longer to sit in the Executive Council which
has been styled in Cabinet.
Public security removed from the office of the Colonial Secretary
(now Chief Secretary) and placed under a newly created
Minister of Home Affairs.
Removal from the Legislative Council of all Civil Service
officials excepting the Attorney General. Some people see in this
and the retention of a nominated Upper House a negation of
Self-Governing principle but that is considered a matter of
opinion.






1959: -Arrangements being made to effect that:
(a) Civil Service promotions, appointments, transfers and
discipline may be removed from the othice of Chief Secretary and
vestd in the existing Civil Service Commission.
(b) Jamaica may be entirely self-governing in all matters save
certain matters of foreign policy.
(c) The Governor's reserved power should go, but a veto
exercisable on Cabinet advice should remain.
In the words of Mr. Manley (Chief Minister) as reported in the Daily
Gleaner on February 24: "We will cut ourselves entirely free of the Colonial
Office overlordship and the constitution to take Jamaica as far as she
can go until we have complete nationhood has nearly been settled."
Finally, you may wish to ask what nation is to be understood in the
word National which appeared earlier on in this lecture, more especially, in the
term People's National Party. In reply I would say that the implication there
was at least until Federation became a practical issue Jamaica and Jamaica
only. That I think is easy. But if similarly you ask whether in the word
Nationhood as quoted a moment ago from the Gleaner report the exclusive-
ness is dropped in favour of the Federal Principle my only reply will be that
such a question is not yet one for the historian to answer.








The Temporary Federal Mace


BRUCE PROCOPE

THE MACE as a symbol of authority has its origin the club. And this
instrument of brute force has become the representation of the force of the
popular will as expressed through the machinery of legislative assembly. As it
has evolved the crude weapon has been shorn of its more brutal aspects and
craftsmen have endowed it with every beauty and embellishment as if to clothe
it with an aura of spiritual rather than physical strength.
When the West Indies Federation was born, the House of Commons, the
Mother of Parliaments, generously offered the gift of a mace to the West Indies
House of Representatives. This mace unfortunately could not be made in time
for the opening of the House of Representatives and so it was necessary to
have some suitable substitute.
Ken Morris a well known Trinidad metal worker and Carlysle Chang one
of Trinidad's leading artists were pressed into service and together designed
a suitable mace. They used for the decoration of the mace a pattern which
incorporated the nutmeg, for which Grenada is famous, coffee and cocoa leaves,
and the sugar cane, which is grown in most of the other Units of The West
Indies. Then Ken Morris fashioned the mace from metal and it was gold plated.
The substitute mace is truly a work of art and was executed with great
care and concentration at fairly short notice. It is an example of the standard
of artistry and craftsmanship which has been achieved by persons in the West
Indies and in many ways it is a pity that this mace cannot have a permanent
place in the proceedings of the House of Representatives.
The constitutional and legislative enactments have not envisaged the
possibility of two maces for the House of Representatives. And some may think
that the presence of two maces in the House of Representatives is a departure
from precedent. But might not a convention be initiated by which when
certain types of motions are moved or to be moved in the House of Represent-
atives the substitute mace is also brought into the Chamber? For example
where a motion of no confidence in the Government is moved.
Symbolically this seems appropriate since the mace of the House of
Representatives, the gift of the House of Commons, would symbolise the
authority of THE HOUSE-a body which was created by Order in Council,
while the substitute mace would symbolise the authority of the people--designed
and made, as it was, by West Indians in the West Indies. So that whenever
the people through the Opposition wish to express a loss of confidence in their
Government the presence of the substitute mace in the Chamber would focus the
challenge of the people's will to the Government.
Up to the present the substitute mace has lived in splendid isolation
although it is sometimes displayed to the public and there is hope that it will
eventually be on permanent display. But better still, is it too much to hope
that one day both maces will dwell together in unity? . on the table of the
House of Representatives.










I s






V


1'~
3,






I










The Constitutional History of

Trinidad and Tobago

H. 0. B. WOODING

IF one is to have a proper appreciation of the constitutional history of Trinidad
and Tobago, thought and attention must be given, I think, to the content,
origin and significant characteristics of the people who make up their
population. Like all history, that of the constitution of any territory is a
history of people, of the influences to which they have been subject, the
activities in which they have been engaged, the conditions in which they have
dwelt, of their hopes and aspirations, their toils and triumphs. As Professor
Greenwood said in his Preface to the Symposium of the Social and Political
History of Australia which he edited
history is synoptic. Whatever seems significant, whether it be
the system of education, the calibre of political leadership, the
character of industrial relations, the conventions of manners, or the
forms of entertainment, must emerge in the pattern. What is more,
the organic relationships of these components should, if possible, be
discovered and demonstrated."
Within the limitations of a single lecture on a subject so extensive in its
scope, it is, of course, not possible to give more than a brief sketch of the
people who make up the population of Trinidad and Tobago. In so doing,
I shall deal more particularly with Trinidad.
After its discovery on 31st July, 1498, Christopher Columbus took
possession on behalf of the Crown of Spain. The Island was at that time
peopled by several tribes of Indians to whom it is usual to refer as Caribs,
but the two principal tribes were in fact Arawaks and Chaimas. Their form
of Government was absolute and hereditary, the office of the Chief, who was
called "the Cacique" descending matrilineally to the first son of the holder's
eldest sister. Their exposure to the Spanish attempts at colonization, and
later to repeated raids made by the English, French and Dutch upon such
Spanish settlement as there was, led to their almost complete extinction.
By 1783 their numbers had dwindled to about 2,000, and today they are
no more than an insignificant, although in some respects an interesting,
historical survival.
Settlement by the Spanish was hardly more enduring. It was not until
1592 that they succeeded in establishing themselves as colonists, but the
town of San Josephe de Oruna (now St. Joseph) which they founded in
that year was not long afterwards razed to the ground when, in his quest
for El Dorado, Sir Walter Raleigh landed at Cumacurapo (now known as
Mucurapo), marched over the Laventille Hills and captured the Spanish
Governor, Don Antonio de Berrio. Nevertheless, the Island remained Spanish
until finally conquered by Sir Ralph Abercromby in 1797.






Meanwhile, in 1780 M. Philippe-Rose-Roume de Saint-Laurent, a
Frenchman residing in Grenada, visited Trinidad and was so struck by the
fertility of the soil and the paucity of the population that he made representa-
tions to the Government in Spain to allow the peaceful settlement of foreigners
in the Island. Consequent on these representations, the King of Spain issued
on 24th November 1783 a Cedula relating to the Island of Trinity (as it
was called), the first articles whereof were as follows
"Article 1-All foreigners, natives of nations and states in friendship
with us, who would wish to establish themselves or are already
settled in our said island of Trinity, must make it appear, by the
means prescribed by our Government of the island aforesaid, that
they profess the Roman Catholic religion; for without this
indispensable condition they cannot be admitted to settle there.
But this justification shall not be required from the subjects of
our dominions, as no doubt can be harboured with respect to
them on this head.
Article 2-Of foreigners who are admitted agreeable to the foregoing
article, the Governor will receive the oaths of allegiance and
fidelity by which they will bind themselves to observe and abide
by those laws and ordinances of the Indies, to which the Spaniards
are subject in virtue of which oaths we will, in our royal name,
grant unto them, gratis and in perpetuity, the lands they may be
entitled to claim by virtue of the following regulation."

There then followed Articles specifying the amount of land to be so
granted: to each white person of either sex, ten quarries (approximately
32 acres) plus half that quantity for each negro or mulatto slave that any
such person should import with him, so that the more slaves a white person
imported with him the larger the grant of land he obtained for himself, "gratis
and in perpetuity"; and to any free negro or mulatto coming to settle "in
the quality of an inhabitant and chief of a family", half the area of land
which would have been granted to him, if he were white, according to the
calculation just mentioned. Provision was also made for the naturalisation
of any of these immigrants conditionally upon their continuing established
as settlers for a period of five years, and for the grant to them of certain tax
and trading concessions so long as they remained resident in the Island.

The issue of this Cedula led to the immigration of large numbers of foreign
agriculturists most of whom were French. This migration was boosted by the
occurrence of the French Revolution in 1789 which had its repercussions in the
French West Indian Islands and caused many refugees to seek an asylum
among their brethren in Trinidad. This explains the existence of what I may
call a French landowning aristocracy in an Island which at no time belonged
to France-an "aristocracy" which remained a dominant minority exercising
an influence far beyond its wealth and numerical strength, and which continued
to exercise that influence for nearly a century and a half until it became
submerged, suddenly but remorselessly, beneath the onrush of political
advancement during the last thirty years.






On its capture by the British, Sir Ralph Abercromby and the Spanish
governor r Don Jose Maria Chacon, signed on the 18th February, 1797 the
Treaty of Capitulation whereby the Island became, and has since remained,
a part of the British Dominions. Two articles of the Treaty may be noticed
here. The first is article 8, which preserved all private property to the
inhabitants whether they were Spanish by birth or naturalization; and the
second, article 12, which stipulated as follows:
"The free coloured people who have been acknowledged as such
by the laws of Spain shall be protected in their liberty, persons and
property, like other inhabitants, they taking the oath of allegiance and
demeaning themselves as becomes good and peaceable subjects of His
Britannic Majesty."

It will be recalled that when referring to the Cedula issued by the King of
Spain on 24th November, 1783, I mentioned that provision was made for the
grant of land to any free negro or mulatto coming to settle in the quality of
an inhabitant and chief of a family. It is reasonably certain that there were
few, if any, such negroes. But apparently among those admitted and obtaining
such grants of land were persons who were described as "free coloured" They
stemmed from the miscegenation of some of the landowners and certain of
their slave women to whom they were physically attracted. It became a
tradition with the French, not only to acknowledge the paternity of such
offspring, but more, to hoist them into a position intermediate between the
people of their father's race and those of their mother's. Hence, no doubt,
Article 12 of the Treaty of Capitulation. Ranking beneath the "free coloured"
were the comparatively large number of West African negroes who, or the
ancestors of whom, had been uprooted from their homes and translated into
slavery to cultivate the fertile fields which had proved such an allurement to
M. de Saint-Laurent and his compatriots. Accordingly, when the British
took over, there was a three-tiered community, comprising the land-holding
seigneurss" primarily French in origin and culture, the "free coloured" whose
pride in their fathers so transcended any thought of their mothers that they
might well have been born in the "land of the rooster's egg" and negro slaves
from West Africa numerically strong but economically impotent. The signifi-
cant character of this community was that it was divided pigmentically as well
as economically; the less the pigmentation, the more they dominated the scene
-Governmentally, economically, educationally, socially, and indeed in every
other way. It is no wonder that the negro, deprived as he had been of family
and cultural ties but retaining his gift of laughter as he has done throughout
the ages, succeeded in lightening his toil by mimicking his "betters" and
triumphed over his suffering by producing for his own entertainment the skit
on social manners which we know today as "Dame Lorraine"
The cession of Trinidad to His Britannic Majesty by His Catholic Majesty
of Spain was confirmed by the Treaty of Amiens in 1802. At the same time
and by the same Treaty, certain other West Indian Islands which had also
been captured were restored to their former sovereignties. As soon as
the Peace was signed, a number of English settlers descended upon
Trinidad and, shortly afterwards, there was formed from among them what






was called "the English Party" The name is undoubtedly significant. It will
be remembered that the Treaty of Capitulation had preserved to the inhabit-
ants, Spanish by birth or naturalization as well as "free coloured", all the
private property which they had theretofore owned. This had the effect of
entrenching the French in a position of economic dominance and of securing
to the "free coloured" a certain measure of independence. Further, population
figures which were compiled in 1803 show a total of 29,254 inhabitants of whom
20,464 were slaves and 1,154 of original Indian stock. The remaining 7,636
included the whites and "free coloured" Of these more than half were French,
the breakdown being 4,018 French, 2,356 Spanish, and 1,262 English. This
economic and numerical subordination to the French was not very palatable
to the English. They not unnaturally took the view that British arms had
conquered and, consequently, that theirs should be a larger share of place,
privilege and power. Why should these Gauls over whom the Saxons had
triumphed still remain dominant in spite of surrender?
The English Party wasted no time in embarking upon action. They realized
that political power was a ready means by which they might redress the balance.
Accordingly, they promptly submitted an address to the King praying him to
accord to the Island what they described as "the blessings of a British
Constitution" But the Governor, Sir Thomas Picton, resisted their demand
and in 1804 supported his resistance by stating in a despatch to the Secretary
of State that-
"since the restoration of the French and Dutch colonies, all the
English insolvent adventurers who were settled about these settlements
have fallen upon Trinidad, the capital of which had become the recipient
of the scum and sediment of all the West Indies."
However, as the years progressed, an increasing number of persons of British
stock were appointed to the highest official posts, led in the field of banking
and commerce, monopolized such positions as large plantation managers and
oilfield executives, and, generally speaking, became the dominant administra-
tive group. Inevitably, they formed a discordance with the French landowning
group who still regarded themselves as the cultural and economic superiors of
the British residents.
After the abolition of slavery in 1834, a new discordance was introduced
this time, at the other end of the population range. The freed slaves were no
longer willing to work on the plantations, and the plantation owners were in
any event so infuriated with the Imperial Government for emancipating their
slaves that resort was had to new sources of under-privileged labour. Attempts
were made to introduce indentured immigrants from Madeira and China, and
to these Trinidad owes the first settlements of people of Portuguese and
Chinese origin. Disappointingly for the plantation owners, the Portuguese
and Chinese thus imported proved to be more particularly concerned with
trade than with the land, and trading continues today to be their most signifi-
cant characteristics. There was, therefore, a mass importation of labour from
India which provided a steady flow of immigrants until the system of indenture
was abolished in 1917. Unlike the West Africans who had preceded them, the
Indians were permitted under the terms of their indenture to bring with them






their own religion, language and custom and, although at one time it appeared
as if (at any rate so far as language and customs are concerned) they were begin
ning to integrate with the negro segment of the community, various causes
not wholly dissociated with the emergence of India and Pakistan as indepen-
dent nations have steadily been reversing this process. The trend at present is
for them to cling to their separate identity, and most of them seem to be doing
so with a tenacity which threatens to prevent any real fusion of what numerically
are the two main elements of the population.
That, briefly, is the story of the people of Trinidad. It is a story of a
people of divers origins, of a people brought together in circumstances which
have bred tensions and discordances, of a people who remained throughout the
nineteenth century largely segregated into distinct and separate communities.
Fourteen years after the emancipation of the slaves, Lord Harris writing a
despatch as Governor declared that "a race has been freed but a society has
not been formed" That declaration held true until the First World War and
to a great extent it still holds true today. Until that War, the several com-
munities might be depicted in the way I shall now seek, in a sentence or two,
to do. The French, never forgetting their aristocratic origin and seeking to
maintain for themselves a cultural and economic dominance, kept aloof as an
exclusive caste, jealous of the British, patronising those of mixed blood, and
contemptuous but apprehensive of the masses of whose potential strength their
fathers had passed on so many terrible memories. The British, proud of their
conquest yet conscious of their responsibility, remained remote, acting the part
of gracious and benevolent administrators, handing out favours to such as they
thought deserving. The Africans, mindful of the enslavement and humiliation
which doomed them to a social inferiority from which they saw no way of
escape, found relief in the mimicry and satire that have given to Carnival in
Trinidad a quality all its own. The Indian, toiling on the estates and in their
rice fields, living under conditions that were a dire menace to health and
safety, and finding few (apart from the official Protector of Immigrants) to
whom they could turn with hope, cherished the togetherness of outcasts in
the land to which they had come. The so-called "coloured" occupying an
intermediate position, neither white nor black, and given advantages in the
economic world which their darker cousins were denied, pirouetted upon the
stage and convinced themselves, but nobody else, that they were "la creme de
la creme" The Portuguese, Chinese, Syrian, Jew and the many more besides
formed associations of their own, steering their own canoes into an economic
haven and maintaining an unconcern about the difficulties that others might
encounter.
It is no wonder that political progress and constitutional development
found no achievement, or even beginning, at any time during the nineteenth
century or, indeed, until after the First World War. Such progress and such
development have little chance of taking firm and enduring root until a society
begins to be formed.
Before I proceed further, let me say a word about the people of Tobago.
Theirs has been a substantially homogeneous society. At various times settled
by the English, the Dutch and the French, Tobago finally became British

147






on being ceded by the French in 1814. It was given at once, as it had had
formerly when in the British hands, the old system of representative govern-
ment which was then in vogue in almost all the other British West Indian
possessions. Under that system the legislature was bicameral, the upper house
being a wholly nominated council and the lower an entirely elected assembly.
Responsibility for the conduct of the administration rested with the Governor,
but control of finance lay in the hands of the assembly. This inevitably led
to conflict since it was impossible always to avoid a clash between the imperial
interests championed by the Governor and the refusal or unwillingness to vote
supplies dictated by considerations of local interests. It was soon found,
however, that the Island was too small and undeveloped to be administered
as a separate entity, and so it was integrated as part of the Windward Islands
administration in the year 1833. In another lecture in this series, some account
will be given of its constitutional history as a constituent of that administration.
There is, therefore, no call for me to recount it here.
From 1st January 1889 Tobago ceased to be administered as a part of
the Windward Islands and became united with Trinidad as a single colony.
It had fallen on a period of severe depression, and hopes were entertained
that the union would result in economies in the cost of administration and
that capital would be forthcoming from Trinidad to help restore its finances.
These hopes did not materialise, and continuing economic decline led to
further changes. For the first ten years of union Tobago had retained its
financial board and treasury and its own statute book, but thereafter it was
reduced to the status of a ward of the Colony of Trinidad and Tobago, and
the revenue and government of the two islands were merged.
Both Trinidad and Tobago had become British by conquest. This means
that the Crown thereby acquired absolute power to legislate for the order,
peace and good government of the Islands so far as consistent with the treaty
obligations into which it entered at the time of their capitulation or cession.
This power extends to the making or establishing of such executive, legislative
and judicial arrangements as the Crown thinks fit. But it is a principle of
constitutional law that, when a representative legislature has been granted to
any territory, the prerogative right to legislate cannot be exercised by the
Crown so long as the grant remains in force unless, as is however generally
the case, the right is expressly reserved in the grant, or authority so to do is
conferred by Act of the Imperial Parliament. Constitutionally, also, the right
revives if the grant of representative government is revoked. Hence on the
loss of its grant of representative government, Tobago was relegated to the
status of Trinidad which, as will be seen, had no representative institutions
at all at central government level.
It is necessary now to consider the status of the constitution in Trinidad up
to and beyond the year of 1899 when Tobago became a ward of the Colony.
On its capture from Spain, Brigadier-General Sir Thomas Picton became its
Governor and Commander-in-Chief, his appointment emanating from the
General in command of the British forces in the West Indies. At first he ruled
as a military autocrat. But in 1801, when he took office as Civil and Military
Governor on appointment by the Crown, he set up a Council of Advice






comprising five of the leading inhabitants of his own selection. As its name
implies, this body was advisory and had no other functions. In 1803 the
"Council of Advice" was renamed "His Majesty's Council", and as such
it continued in being until 1831 when it was replaced by a legislative council
which was denominated the "Council of Government"
It will be recalled that the English settlers who descended upon Trinidad
after its capitulation promptly demanded some form of representative
government. It will be remembered also that Governor Picton strongly
resisted this demand. They nevertheless persisted, but, it is to be observed,
their proposals were aimed at excluding any but the white inhabitants from
participation in the government. Moreover, the majority French group among
the white inhabitants were not very interested in any institutions which
savoured in the least of the democracy they dreaded. Accordingly in 1810
the Secretary of State decided against the English Party's demand. Giving
reasons for his decision, he laid particular stress on the mixed nature of the
population most of whom, he said, were-
"wholly ignorant of the British Constitution and unaccustomed to any
frame of government which bears any analogy to it. In the case of
Trinidad, therefore amongst the most numerous class of white
inhabitants there can be no material prejudice, either of education
or habit, in favour of such a system, and the partial and exclusive
principle on which it is proposed by the white inhabitants to be
founded, whereby the largest proportion of the free inhabitants of the
island are to be excluded from all participation in its privileges,
appears to defeat the object of it and to constitute in the point of
justice, and upon the very principles of the system itself, a decided
and insuperable objection against it"
The first advance made from this position came about as a result of a
recommendation by a Royal Commission of Legal Inquiry which was
appointed in 1823 to inquire into the administration of civil and criminal
justice in Trinidad. Although, strictly, they were not expected to be concerned
with the constitutional issue, they nevertheless reported that-
"It appeared to be the unanimous feeling of all classes of the
inhabitants that no change which did not at the same time confer on
them the benefit of a reasonable control over the taxation and
expenditure of the colony, would be viewed by them as a boon from
His Majesty's Government sufficient to satisfy their wants"
This recommendation was not particularly acceptable, however. The Secretary
of State explained as follows
"The benefits resulting from the election by the proprietary body,
in every country, of the popular branch of the legislature are too
familiar to require notice, and are so universally admitted as to preclude
all controversy on the abstract principle. That principle is however
wholly inapplicable to a state of society in which a very large majority
of people are in a state of domestic slavery, and in which those persons
who are of free condition are separated from each other by the indelible
distinction of European and African birth or parentage".






In the result, a compromise was reached. A representative assembly
was denied but, as already pointed out, a legislative council called the
"Council of Government" was set up in 1831. It comprised the Governor
who had an original and a casting vote, six officials appointed by virtue of
their particular offices, and six unofficial nominated members selected from
among the principal proprietors. There was also set up an Executive Council,
a purely advisory body comprising the Colonial Secretary, the Attorney
General and the Colonial Treasurer with the Governor as President.
Thus was introduced the form of Crown Colony government which became
more or less a pattern to be followed in most of the British West Indian Islands
when constitutional regression followed the abolition of slavery. Always the
justification for the pattern was rested upon the ground that the backward
state of the negro masses precluded them from active participation in political
life and upon the impracticability, which was then acknowledged, of giving
or entrusting those who considered themselves of a superior race with
legislative authority over the inferior. On this score it might well be asked
how this contention could be made to square with the appointment of
nominated unofficial to the Council of Government. Let me quote the reply
to this by the Secretary of State
"Had the same powers been delegated to the same individuals
by a constituency composed of the Proprietary Body of Trinidad, they
would have proceeded to the exercise of them under an influence from
which they are now comparatively exempt. Their conduct must have
been in great measure controlled by the prejudices and the passions
of the exclusive and privileged class from which their authority had
been derived"
In effect, Crown Colony Government was rule by the Crown through
the Secretary of State. The Governor was obliged to obey his instructions,
whether in his legislative or his executive capacity, and whether in accord-
ance with his personal views or not. Official members were similarly
constrained. Indeed, it was prescribed that "an Officer, whose seat in the
legislature is by law inseparable from his office, could not be continued in
the office and the seat if l;is conscience should not permit him to give the
Crown such measure of support as may be necessary to enable the Governor
to carry on the business of Government in the Legislature on the principles
and according to the intentions with which the Legislature was constituted"
More freedom was allowed to nominated unofficial members, but even they,
at first, were expected to co-operate with the Government unless in their
individual judgments there were strong and substantial reasons for not
so doing.
This system of Crown Colony government was devised avowedly to
protect the underprivileged masses who were as yet unfamiliar with the
working of governments and ignorant of the influence of the ballot box. It had
as its objective the retention of full scope to the Crown to measure up to the
responsibility it had assumed to deal with all fairly and justly. But it did
not satisfy. The "coloured" intermediate group, about whose proposed
exclusion from the representation being demanded by the English Party the






Secretary of State was so concerned in 1810, were now petitioning, forty
years later, for political emancipation. A memorial addressed by them "to
the Lords and Commons in Great Britain assembled" declared that "dissatis-
faction has long been felt with the mode of government to which this rich
and favourable island has been, and is, subjected", and it humbly and
earnestly prayed that "some suitable degree of representation and self-
government be conceded to the hitherto and still loyal inhabitants of
Trinidad" The privileged whites from whom the nominated unofficial were
drawn chafed at being merely advisory, at having no real powers or
responsibilities, and at the failure of the system to secure a voice in the
legislature for each of the counties into which the colony was divided. In the
result, two additional nominated unofficial were appointed as from 1862,
subject however to the express proviso that, should the unofficial (now in
a majority of one) render the official vote nugatory by voting together
habitually and as a party, two official votes would be added. Twenty-four
years later, a Finance Committee was set up to enable unofficial members
to participate in the framing of estimates, but it is to be noted that any
recommendations they might make had to be referred to the Governor whose
control of expenditure was in no way weakened. Then, from 1889 when
Tobago was joined administratively to Trinidad, a system was adopted of
assigning the unofficial members to represent the several counties, Tobago
for this purpose being treated as a county, but, save as regards Tobago, this
innovation was abandoned after a brief ten years. The preservation of a seat
for Tobago was no doubt a recognition of its being a separate entity from
Trinidad, but it may well have been also because up to 1924 no Tobago
resident had even been able to spare the time to sit in the Legislature in
Port-of-Spain!
The year 1925 is, and should remain, a landmark on the constitutional
scene. It is the year in which, for the first time in its long history of Crown
Colony rule, an elected element appeared in the Trinidad Legislature. It is
the year which saw the restoration to Tobago of a measure of representation,
albeit not of the representative system. It is thus the year which marks the
first positive advance towards the attainment of an independent status.
The factors which led to this advance were many and various, chief
among them being the following. Education had spread to all sections of the
population although it was not nearly as available in the rural areas as one
would have wished. The First World War had stimulated democratic sentiment
and had called upon many men to die so that all should be free. The Bolshevik
Revolution had given a certain living reality to the doctrine of Karl Marx
and thereby was an impetus to workers to unite if they desired to achieve.
Labour disturbances in 1921, in Trinidad as well as in other parts of the
West Indies, gave resonant voice to the prevailing dissatisfaction. Timeously,
just returned from the War was a leader who had captured the imagination
and the devotion of the rank and file whom he had championed, Capt. Arthur
Andrew Cipriani, fearless and indomitable, and possessing strong human
sympathies, an unwavering urge to support any cause that needed assistance,
and an undeniable reputation for espousing the claims of the underprivileged.
Lastly Mr. E. F. L. Wood (later Lord Halifax) was then Parliamentary
1 1*






Under-Secretary of State for the Colonies. Commissioned in that capacity to
visit the West Indies so as to investigate at first hand the constitutional and
other problems of the area, he, being the man that he was, brought with
him and to his task a penetrating mind and understanding spirit.

Mr. Wood found that the commercial and planter classes were no longer
eager for constitutional change. The economically secure and the privilege-
entrenched seldom are. They found allies in the Indians, some of whom
through their East Indian National Congress advocated communal representa-
tion of the Indian Community, and others expressed fears that any educational
test of the fitness of voters (which many persons were advocating) would
operate to the disadvantage of Indians who suffered most from the inadequacy
of educational facilities in the rural areas. It was the emerging African group,
and primarily the professional and (comparatively) educated middle class
then coming into being who agitated the claim for some positive form of
constitutional advance. Reporting on this, Mr. Wood said that their whole
history "inevitably drives them towards representative institutions fashioned
after the British model." His reference to their history was not to any
indigenous social system which had come down to them or had been
practised by or had become the tradition of their forefathers; it was rather
to the fact that, deprived as their ancestors had been of language, customs
and traditions, they themselves had been educated according to the British
system and therefore looked for political growth to the only source and
pattern that they knew and appreciated.
The advance then being demanded was only for a limited measure of
representation, not for any real form of responsible government. Indeed, to
have demanded the latter would have been startling in those days. Yet,
Capt. Cipriani voiced the latent, even if little appreciated, aspirations of the
masses. Coining what became his famous catchphrase, he called on them
to "educate, agitate, federate", but even to him, as the order of his words
implied, the goal must have seemed quite a long way ahead. In the view
of Mr. Wood, four principal factors prohibited him from entertaining any
immediate thought of early responsible government. These were the mixed
character of the population and the backwardness of large sections of it; the
absence of a leisured class who could take a detached, objective and indepen-
dent part in active political life; the necessity (as he saw it) for the Secretary
of State to retain a controlling influence in order to secure uniformity of
administration in the British West Indies generally; and (judging from the
experience of the other islands) the very small number (actually and
proportionally) of the active electorate. Writing on the mixed character of
the population, he said that he found Trinidad to be the one community in
the islands which lacked "any homogeneous public opinion. Socially it is
divided into all kinds of groups which have very few relations with one
another." He pointed out also that "the illiteracy of the East Indians in
English and the multiplicity of Indian languages spoken form a serious
drawback to the East Indians" and he added that they who are the backbone
of the agricultural industry are "the 'underdogs' politically when compared
to the negroes, owing to the superior educational advantages of the latter."






Mr. Wood recommended against any form of communal representation
which, he said, would merely "accentuate and perpetuate the differences
which, in order to produce a homogeneous community, it should be the object
of statesmanship to remove. His proposal was for a Legislative Council
comprising the Governor as President with an original as well as a casting
vote, twelve officials, seven elected representatives and six nominated
unofficial. He stressed that "by retaining the system of nomination by the
Crown, it will always be possible to secure representation on the Council of
races or important interests not otherwise adequately represented by direct
election." But the Crown Colony characteristic of the government was being
maintained. Even if it could be envisaged that all the seven elected representa-
tives and the six nominated unofficial should on any issue join forces against
the view of the Crown as propounded by the Governor upon instructions from
the Secretary of State, they were powerless to outvote the Governor, with his
two votes, and his twelve officials who were obliged to vote as he directed.
This was not as unreal or unlikely a situation as it seems. In the first year
of the Council which was established on the acceptance of Mr. Wood's
proposals, a select committee of the House was appointed to inquire into the
desirability of introducing legislation to fix the hours of labour in any
particular trade, business or industry in the colony, and the committee
presented a unanimous report in favour of such legislation. But just about
that time a new Attorney General arrived in Trinidad on promotion from
somewhere in the East. Largely on his advice, based upon the view that
Trinidad would disable itself against competition from places like Hong Kong
if it accepted any such legislation, Government refused to take any action
whatever except tabling the report. Nineteen months later Capt. Cipriani
moved a resolution that Government should give effect to the report.
Government's policy was to reject it. Accordingly, the official members of
the House were instructed to vote for its rejection. Two of them had been
members of the select committee, and both had subscribed to the report. Yet,
they were forced to vote against it. More, at least one of them, the late
Lt. Col. Arneaud de Boissiere who held the office of Protector of Immigrants
asked the Governor for permission to absent himself from the debate so that
he should avoid stultifying himself, but permission was refused as it was
thought that the voting might be close. To my certain knowledge,
Col. de Boissiere never overcame this humiliation to the day of his death.
It is manifest, therefore, that although I described 1925 as a landmark
on the constitutional scene, it is so only because it marked the introduction
of the elective system as a feature of the legislature of Trinidad and Tobago.
The Government still remained essentially that of a Crown Colony. The
Executive Council was not an instrument of policy, but was purely advisory.
For the most part, it is true, the Governor was required to consult his
Executive in the exercise of his powers and authorities, but he alone was
entitled to submit questions to the Council for its advice and he was empowered
to act in opposition thereto if he should think fit. In any such event however,
he was required to report the matter to the Secretary of State as soon as






possible and any member of the Council might require that the grounds for
any advice or opinion given by him and rejected by the Governor should
be fully recorded in the minutes.
It must not be thought, however, that membership of the Executive
Council was merely rubber-stamping or a waste of time. It was not usual for
the Governor to disregard or act in opposition to the advice the Council gave.
The truth of the matter is that decisions were often reached which represented
a synthesis of the opinions expressed or a compromise of conflicting views.
Nevertheless, the Executive Council remained, until recently, the object of
frequent criticism on the part of elected members of the legislature and
became so associated in the public mind with a supposed blind acceptance
of the official Downing Street view that it became a pitfall for any elected
member to enter in.
Membership of the Legislative Council also came to be regarded as
merely time-consuming. The elected members were just so many individuals
who had recommended themselves to their respective electorates, and they
had no common programme accepted by all or by any group of them. Besides,
it did not help to find themselves faced with the usual Crown Colony
restriction which barred any member from proposing in the Council, even for
the purposes of debate, any "law, vote, resolution or question the object ot
effect of which might be", as the Order in Council expressed it, "to dispose
of or charge any part of Our revenue arising within the Colony or to revoke,
alter or vary any such disposition or charge unless the proposal of the
same shall have been expressly allowed or directed" by the Governor. This
restriction reduced the status of unofficial members to little more than that
of advisers whose advice might be disregarded at will. In the result,
Capt. Cipriani who was the elected Port-of-Spain representative on the Council
used the Chamber as a platform from which to propound his iddas and to
assist in building up a mounting public opinion that representation without
at least some responsibility was no more than a sorry farce.
Capt. Cipriani succeeded further in awakening among the not yet
enfranchised masses a profound interest in the movement towards political
emancipation. His espousal of the cause of those whom he called his "bare-
footed friends" made him at one time the hero and apostle of all the under-
privileged. It thus very soon became impossible to continue any form of
representation on the restricted franchise under which the 1925 elections were
held. At those elections the qualifications for voters were the payment of
rates on real property at the rate of $2.40 for men and $9.60 for women,
or of rates on personal property at the annual rate of $7.20 for men and $9.60
for women, or the receipt of an annual salary or income of $240.00 plus the
occupation of premises rented at not less than $4.00 per month. It is a revealing
commentary on those qualifications that, however low they may appear
today, the electorate thereunder comprised less than 6 per cent. of
the total population.
Another factor contributing to the political emancipation of the masses
was Capt. Cipriani's control and direction of the Port-of-Spain City Council
in the twenties and thirties of the present century. His handling of issues