Regarding the subject, Professor Cooley writes:  In a note to the first book of these Commentaries (p.109), the Colonial System of Great Britain is spoken of as the grandest in extent and power that the world has ever known. A more detailed account of the system, and of the countries and places embraced within it, than was given in the place referred to, will justify the statement there made, and at the same time will give us particulars of British Colonial government in all its varieties

Cooley, Thomas M.

English

University of Michigan School of Law

University of Michigan Law School University of Michigan Law School Scholarship Repository Book Chapters Faculty Scholarship 1884 The British Colonial System Thomas M. Cooley University of Michigan Law School Available at: https://repository.law.umich.edu/book_chapters/149 Follow this and additional works at: https://repository.law.umich.edu/book_chapters  Part of the Common Law Commons, Comparative and Foreign Law Commons, Legal History Commons, and the Legal Writing and Research Commons Publication Information & Recommended Citation Cooley, Thomas M. "The British Colonial System." In Commentaries on the Laws of England. 3rd ed. By Sir W. Blackstone, vol. 2, 462-467. Chicago: Callaghan, 1884. This Book Chapter is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Book Chapters by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. THE BRITISH COLONIAL SYSTEM.In a note to the first book of these Commentaries (p. 109), the ColonialSystem of Great Britain is spoken of as the grandest in extent and power tatworld has ever known. A more detailed account of the system, and of thecountries and places embraced within it,than was given in the place referredto, will justify the statement there made, and at the same time will give uparticulars of British Colonial government in all its varieties.In respect to government the British colonies and possessions are classifiedofficially in three classes, as follows: First; Those properly denominatedcrown colonies, in which the crown has entire control of legislation, and theadministration of whose affairs is carried on by officers under the control ofthe home government. In this class are: In Europe, Gibraltar, Heligoland,Malta, Cyprus. In America: Falkland Islands, Guiana, Honduras, Jamaica,and Turks Island. In Africa: Ascension, Gambia, Gold Coast, Sierra Leone,Lagos, St. Helena. In Asia: India, Aden and Perim, Hong Kong, Labuan,Straits Settlements. In Australasia: Fiji Islands, Rotumah. For each ofthese there is an executive officer, appointed by the crown, and removable atpleasure, and whose title of office is Governor, except as follows: For India itis Governor-General; for Honduras it is Lieutenant-Governor; for Jamaica itis Captain-General, and for Gambia, Gold Coast and Lagos it is Administrator.The population of each of these was as follows at the dates given : Cyprus(1871)150,000; Gibraltar (1871) 14,764; Heligoland (1871) 1,913; Malta (1871)149,084; Falkland Islands (1871) 803; Guiana (1871) 193,491; Honduras(1870) 24,710; Jamaica and Turks Island (1871) 510,354; Ascension (1871)27; Gambia (1871) 14,790; Gold Coast (1871) 408,070; Sierra Leone (1881)60,546; Lagos (1871) 62,021; St. Helena (1871) 6,241; India (1881) 252,541,-210; Aden (1871) 22,507; Perim (1871) 211; Hong [Kong (1876) 139,144;Labuan (1871) 4,898; Straits Settlements (1871) 308,097; Fiji Islands (1881)124,999; Rotumah (1881) 2,500. Second; Those which have legislative bodieschosen by their own people, with a veto on legislation in the representative ofthe crown, and a general control of public officers in the home government.These are: In America: Bahamas, Bermudas, Leeward Islands, WindwardIslands. In Africa: Natal. In Asia: Ceylon. In Australasia: Western Australia. Each of these has an executive appointed and removable by the crown,and whose title of office is governor. The population of these at the date*named was as follows: Bahamas (1871) 39,162; Bermudas (1871) 12,121; Leeward Islands (1871) 120,491; Windward Islands (1871) 284,078; Natal (1877)326,612; Ceylon (1876) 2,459, 542; Western Australia (1881) 31,000. Third;Those which not only have legislatures of their own election, but whose governors, though appointed and removable by the crown, must reflect in their- 660The Brhibh Colonial System. 4G3government and administration the sentiments of the legislature as expressed by its votes. These are: In America: Dominion of Canada, Newfoundland. In Africa: Cape of Good Hope and dependencies. In Australasia: New South Wales and Norfolk Island, New Zealand, Queensland, SouthAustralia, Tasmania, Victoria. The population of these severally in the year1881 was as follows: Canada, 4,324,310: Newfoundland, 161,374: Cape ofOood Hope and dependencies, 1,420,162; New South Wales and Norfolk Island751,468; New Zealand, 544,032; Queensland, 213,525; Tasmania, 116,705;Victoria, 862,346. This class is supposed to embrace all the colonies that arefitted, by the numbers and character of their population, and by other circumstances, to be entrusted with the sole responsibility of making their own lawsand guiding their own destiny.Responsible parliamentary government for these colonies began in Canada,and may be said to have originated with the Earl of Durham, who, as governor-general in the year 1831, in a report made to the home government, recommended as a remedy for the widespread and long-continued discontent inthe extensive provinces of Lower and Upper Canada, that representative institutions, which should be " an image and transcript of the British constitution,"should be allowed to the people. In accordance with this recommendation,Mr. Poulette Thomson, the successor to the Earl of Durham, was directed tointroduce a government which should be responsible to the representatives ofthe people, and the principal officers of which, constituting the governor'sadvisers, should possess the confidence of the legislature, and be subject toremoval from office whenever any sufficient motives of public policy shouldsuggest the expediency. Accordingly, this official, on his arrival in Canada,made public announcement that henceforth its government should be conducted in accordance with the wishes of the people as expressed by their representatives. The understanding which was had of this announcement, andwhich has ever since been acted upon, is tersely expressed in three resolutionsadopted by the Legislative Assembly of Canada, in the year 1841, and whichare as follows:" 1. That the head of the executive government of the province, being,within the limits of his government, the representative of the sovereign, isresponsible to the imperial authority alone; but that nevertheless the management of our local affairs can only be conducted by him, by and with theassistance, counsel and information of subordinate officers in the province." 2. That in order to preserve between the different branches of the provincial parliament that harmony which is essential to the peace, welfare, and goodgovernment of the province, the chief advisers of the representative of thesovereign, constituting a provincial administration under him, ought to be menpossessed of the confidence of the representatives of the people; thus affording a guarantee that the well understood wishes and interests of the people,which our gracious sovereign has declared shall be the rule of the provincialgovernment, will, on all occasions, be faithfully represented and advocated." 8. That the people of this province have, moreover, a right to expect from■ach provincial administration the exertion of their best endeavors that theVol. II.— 71 561464 The British Colonial System.imperial authority, -within its constitutional limits, shall be exercised in Ummanner most consistent with their well understood wishes and interests."It will be seen that this gave to the province of Canada a governmentwhich, as respects local affairs, was not to differ in its general features froathat which existed within Great Britain itself. Its success in giving contentto the people was immediate, and Lord Elgin, who went out as governor-general of Canada in 1847, and who was most influential in settling it uponsecure foundations, was constrained to say, that, with his constitutional andchanging cabinet, he was allowed by the free consent of the people to exercisegreater authority than was permitted to the same office in colonies where responsible government did not exist. The like institutions were introducedinto the colonies named at the dates following: Nova Scotia and New Brunswick, 1848; Tasmania and Victoria, 1855; New South Wales, South Australiaand New Zealand, 1856; Queensland, 1860; Cape of Good Hope, 1872. Whenin 1867 Upper and Lower Canada and New Brunswick were united into onegovernment by the name of The Dominion of Canada, the imperial act ofunion declared that the constitution of the new dominion should be similar inprinciple to that of the United Kingdom. Upper Canada was at this timegiven the name of Ontario, and Lower Canada that of Quebec, and authoritywas given to the Queen in council to admit into the Union any of the otherBritish-American provinces whose legislature might express a desire to thateffect. Under this authority Manitoba was admitted in 1870, British Columbia in 1871, and Prince Edward's Island in 1873. Each of the provinces hasa legislature of its own, and a lieutenant-governor appointed by the governor-general, and subject to removal by him, but not within five years from his appointment except for cause assigned. Government in the several provinces, aain the Dominion itself, is responsible to the representatives of the people.In the colonies, as in the united kingdom, the executive is a constituentpart of the legislature, and the governor may withhold assent to any bill whichmay be passed, and take the opinion of the home government thereon. Thehome government may also, even against the opinion of the governor, disallowany colonial act, but it will only do so where the reasons seem imperative, orwhere the act is regarded as ultra vires. In judicial matters an appeal lie*from the colonial courts to the queen in council. It seems to have beendoubted, after the creation of the Supreme Court of Canada, with power tohear and finally adjudicate upon appeals from the highest courts of the several provinces, whether appeals to the privy council would any longer lie, batit was decided that parties at their option might appeal to either tribunal.In respect to the self-governing colonies and provinces, as much as to allothers, the imperial government reserves to itself the power of legislation onall subjects of general imperial policy, and retains control of international intercourse, and of all questions of war or peace with other nations. The custom*establishments, however, of all the colonies, are under the control and management of the several colonial governments, and the colonial legislatures arepermitted to establish their own customs regulations and rates of duty.Canada has taken advantage of this authority to establish a protective tariff,663The British Colonial System. 465in direct antagonism to the principles of free trade, which for a long timehare prevailed with the home government.Among the snbjeots for which the imperial parliament still legislates for allthe colonies and dependencies are those of copyrights and patents, and theestablishment of admiralty courts. Theoretically it has power to legislate toany extent; but how far this would be consistent with the constitutional rightsof British subjeots, or with true imperial policy must depend very much uponthe condition of the colony or dependency legislated for, and the fitness ofthe people under the circumstances in which they are placed, to take their destinies into their own hands. The general policy of the imperial governmenthas now for a long time been to foster and encourage independent self-government, to the fullest extent consistent with local safety and the general interestsof the empire. In one noted instance, experience demonstrated to the entiresatisfaction, not only of the home government, but of the colony itself, thatthe time for self-government had not yet arrived. Jamaica, which had beenallowed a government responsible to the local representatives, abandoned itvoluntarily in 1866, and with its own consent was remanded to the conditionof a crown colony. It has now a legislative council, composed in part of official, and in part of non-official members, and the governor's council is responsible only to himself. The advice of this council the governor follows onlyso far as he finds it satisfactory to his own judgment.The imperial authority over all the colonies is administered through theagency of a member of the administration, who is designated secretary ofstate for the colonies. In all the crown colonies, however, the governor isnearly absolute. As has been said by one of them, " he not only reigns, butgoverns in the striotest sense. All subordinate officers act in accordance withhis directions. He is responsible for their short-comings if he fails to correctthem. They are liable to suspension at his wilL The legislature is so constructed as to enable him to secure, should he deem it necessary, the passageof any enactment he may frame. He is in the colony the ultimate referee onalmost every conceivable subject of administration or legislation. * * * *In all orown colonies there exist—and it is the reason for the maintenance ofso peculiar a form of constitution —two or more different races, to neither ofwhich can safely be entrusted the charge of governing the other, and the existence of which is the cause of the establishment of what is in fact a speciesof despotism, modified by a power of appeal to the imperial government athome, and by the action of public opinion and common sense upon the merelegal rights of the post." This was said with special reference to the FijiIslands, but was intended to be applicable to all whose condition is describedin it.The case of India is in some respects different from that of any of the otherBritish possessions, it being by far the most populous of all, and only a smallper centage of the inhabitants being of British birth or origin, while an un- •certain proportion of the remainder are ill-affected to the British rule. Thenecessity for a strong and somewhat autocratic government is, under such circumstances, apparent, and this has been provided by imperial legislation. Thehistory of British dominion over that extensive country is familiar. It began663466 The British Colonial System.with the charter granted by William HI, in 1698, to a company of merchants,for trading with that country. This company became great and powerful, andacquired for its purposes the control of territory for which it became necessaryto establish civil and criminal courts, and these were provided for by letterspatent of the king. The government was in a board of directors, having it*office in London. In the latter part of the 18th century, the company carriedon extensive wars with the native princes, and won great victories over them,which resulted in the acquisition of immense territories. In 1783 parliamentdeemed it necessary to interfere to prevent abuses, and passed what is knownas the regulating act. This act reoites that " the several powers and authorities granted by charters to the United Company of Merchants of Englandtrading to the East Indies, have been found by experience not to have sufficient force and efficacy to prevent various abuses which have prevailed in thegovernment and administration of the affairs of the said united company, aswell at home as in India, to the manifest injury of the public credit, and ofthe commercial interests of the said company." It then proceeds to empowerhis majesty to erect and establish a supreme court of judicature for the company's dominions, to consist of a chief justice and three other judges, beingbarristers of England, or Ireland, of not less than five years' standing. Thiswas an important step in parliamentary control, and it was followed in 1833with one still more important, which formally converted the trading corporation into a purely political body, with authority, under the parliament, togovern the British dominions in India. A governor-general was provided for.and the governor-general in council was to have general legislative authority,with power, however, in the court of directors of the company, to disallow anylaw or regulation that might be made.The legislative power conferred was further restricted, as follows: "The saidgovernor-general in council shall not have the power of making any laws orregulations which shall in any way repeal, vary, suspend or affect any of theprovisions of this act, or any of the acts for punishing mutiny and desertionof officers and soldiers, whether in the service of his majesty or of said company, or any provisions of any act hereafter to be passed in any wise affectingthe said company, or the said territories or the inhabitants thereof, or any lavsand regulations which shall in any way affect any prerogative of the crown,or the authority of parliament, or the constitution or rights of the said company, or any part of the unwritten laws or constitution of the United Kingdom of Qreat Britain and Ireland, whereon may depend in any degree theallegiance of any person to the crown of the United Kingdom, or the sovereigntyor dominion of the said crown over any part of the said territories."A still more important step was taken in 1858, when the direct governmentof India was finally transferred from the company to the crown. At the sametime a " council of India " was created, consisting of fifteen persons, of whomseven were to be elected by the court of directors of the company, and eightto be appointed by the orown. The president of the council was to be a secretary of state, who was to be charged with the administrative functions previously vested in the board of directors. The members of the council wereto hold office during good behaviour, but this was so changed in 1869 as to564The British Colonial System. 467limit their term of office to ten years, and all vacancies in the council were tobe filled by the crown. Several acts in modification of the act of 1858 havesince been passed without introducing any very radical changes.In 1876 the title of Empress of India was conferred upon the Queen by actof parliament.As the proportion of colonists in India is very small as compared with thenative population, it would obviously be unsafe to confer upon the people thepowers of self-government, and it is not likely that any attempt going veryfar in that direction will be made for a long time to come. Local officials ofthe native races are allowed to exercise authority over their own people, andit is now proposed to give to native magistrates jurisdiction in small caseseven where Europeans are parties.565

The British Colonial System

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The British Colonial System

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