The Price of Order

THE price of order in all government is the adjustment of the means of administration to the needs of rule. For a century, Great Britain has acquired and governed the largest and most populous colonial empire history has known. Through the same century, the United States has acquired, assimilated, and advanced to a share in all the privileges of the republic, the largest empty and conterminous territory over which history has ever witnessed the triumphant march of common laws, common institutions, and a common administration. The work of federal government has never been more successfully discharged than by this country. The British Empire may fairly claim a like preëminence in colonial rule.

The price of order for us has hitherto been in admitting every community at the earliest possible moment to every state and federal right. If we erred, we preferred to err in too much haste rather than in too much delay. The price of order in the British Empire has been in excluding every community but one, the United Kingdom of Great Britain and Ireland, from the full privileges of imperial rule. Ours is an indissoluble union of indestructible states, equal in powers, in privileges, and in their share in federal rule. In the British Empire, the rights of every land under its flag depend absolutely upon any enactment of the Parliament of Westminster. Each rule has maintained order on an unexampled scale under its own several system and each has paid a different price, devised by the same race of Englishspeaking men.

After a century of this contrasted experience, by singular and unexpected though similar causes, — for both these great realms respond to a like world movement, — the British Empire draws near some plan for federating its leading colonies, and admitting them to a share in the rule exclusively exercised hitherto by the United Kingdom alone. In some way, the empire has to use our experience and learn to pay our price for order. The United States, it is scarcely necessary to remind an American, for the first time in its history, finds itself with possessions — whether rightly or wrongly won is of no consequence for this phase of the problem — which it cannot assimilate, and which it cannot admit to that full share of mutual and associate rule which is the essence of the federal system. In some way, the American republic in its new possessions has to use the experience of the British Empire, and learn to pay its price for order.

The essence of the American experiment, which we have never ceased to urge on our English cousins as a complete remedy for their Irish problem, is that tranquillity is obtained in a federal system by giving each community home rule for itself, and a complete but proportionate share in the working of the central executive, legislature and judiciary, one national constitution extending over all. The essence of the English experiment has been one system of national constitutional limitations for the United Kingdom, and another system for dependencies. For the central government, there has been complete, exclusive, and universal rule. For the dependencies, there has been no share in the exercise of this rule, a local administration and autonomy, and a contact with the central government jealously limited to the action of the central executive. When, in the Reconstruction period, we withdrew federal legislative rights from certain states, harm came. When the imperial legislature in British history has meddled with the details of dependencies, evils have followed. Where the imperial executive has worked alone and with a free hand, prosperity and order have succeeded. Executives rule colonies and keep them. Legislatures ruin colonies and lose them.

The English executive is all that English colonies officially know, save as Parliament lays down general principles. These once enacted and in operation, a fifth of the world’s area, 11,250,412 square miles, and a fifth of its population, 344,059,122 people, are ruled with an administrative economy which is an administrative marvel.1 The colonies, 9,450,154 square miles and 56,845,691 people, are comparatively empty of population, great stretches of staked claims waiting for development. “ India,” with 1,800,258 square miles and 287,223,431 inhabitants, is an area thronged with people, in which population is perpetually pressing on subsistence, under a civilization older than our own, with princes whose pedigree makes an European line seem a thing of yesterday, and such a medley of races as has owned no common peace since the Roman tax. The London Colonial Office administers forty colonies on a salary list of $244,525. The New York mayor’s office costs more. The India Office administers an empire from London on $945,000 spent in salaries, or less than is yearly spent on Central Park. In all, about $1,200,000 spent in London is the price of administrative order over a colonial rule whose total budgets from India to Mauritius reach in the aggregate $1,724,354,895 in outgo, once and a half times the outgo of the United States for federal, state, county, city, and village expenditure for every possible purpose for which taxes are levied.

The American Congress has spent an entire winter wrestling with the tariff, the taxation, the administration, and the personal rights of two islands with the area and the population of one of the least of English colonies. Of the acts passed by Parliament at Westminster in the past decade, 47 per cent applied alone to England, 15 per cent to Ireland, and 7.6 to Scotland. Of the share left, 20 per cent, all but 1 per cent applied to the United Kingdom as a whole. An infinitesimal fraction applies to the British Empire. So long as Congress dealt with areas about to fill and to share the representation of states in Congress, close congressional supervision was necessary. Dealing with areas and a population approaching no such step, Congress must minimize its contact and increase — as has been proposed for the Philippines in Senator Spooner’s single short bill — the contact and control of the executive. The English executive is an imperial executive. The English legislature is an English legislature. Two cabinet ministers, one for the colonies and one for India, stand for the executive in its contact with each. Given executive rule, instead of legislative interference, and it is possible to secure the widest measure of home rule. Parliament touches no colonial tariff. Each is made at home for each colony, measured to fit. The primary economic object of this system of executive administration at home and home rule abroad is not the trade of a colony, but a share in its development. Of English foreign trade, only a fourth is with its colonies. Of its income from investments, three fourths is from colonies.2

If the price of order is a minimum of rule in London and a maximum of rule in India and the colonies, the profit of order comes not because trade follows the flag, but because investments follow British justice, administered by Englishmen under every sky, and revised and kept in harmony by an appeal to the Judicial Committee of Privy Council sitting in London.

So far as citizenship is concerned, the British Empire is one. Every person born anywhere in British territory is a British citizen, and has in theory all the rights any citizen can enjoy. In the United Kingdom, and all self-governing colonies, with Parliaments of their own, he enjoys a constitutional parliamentary system. In all these he is living under constitutional privileges for himself and constitutional restrictions on the executive, and an administration of justice as rigorous and definite as any and all in our own written Constitution. In the rest of the British Empire he is under a rule essentially monarchical, and not restricted by these constitutional limitations. The parliamentary portion of the British Empire reaps all the fruits of the long struggle from the Long Parliament to the last reform bill. The rest of the British Empire may be, and often is, governed by a power as arbitrary as the Stuarts asserted, and it is exercised under the forms they sought to use, and for whose use one Stuart lost his head. In the early history of the British constitution, there existed two fountains of executive, legislative, and judicial power. The king acted in a Privy Council made up of the officers he chose, or the king acted through a Parliament of which one chamber, the Commons, was summoned from county and borough to levy taxes and provide revenue. In the United Kingdom, the “ crown ” is but another name for the committee called a cabinet, through which Parliament rules. In all that part of the British Empire not enjoying a Parliament, as does the United Kingdom and eleven colonies, the crown — to-day the cabinet, in fact — enjoys those powers a king, all but despotic, once enjoyed for executive, legislative, and judicial purposes in Privy Council. By this legal use of royal power abolished within the United Kingdom, but still in force in all British possessions not provided with a Parliament, there is maintained at the same time a system of constitutional checks and balances for the central government at home, and the absolute authority needed for an imperial power in ruling dependencies.

The entire dispute as to whether our Constitution extends to new acquisitions or not springs from the unconscious effort to devise for our use, having the same problem, a system in which the limitations of the Constitution shall apply only to the United States, — our United Kingdom, — and the legislative, executive, and judicial powers of the government be free for use without these limitations in dealing with dependencies. Only by some such division and distinction can the central power be kept safely under constitutional check, and yet be left free to meet the needs and emergencies of dependencies in a lower stage of development.

The king’s Privy Council is the fruitful source out of which has grown this system by which India and the colonies are kept in administrative and legal relations with England, without the loss of English liberty, — a system under which the same executive has extra-constitutional power without, and only constitutional powers within, the United Kingdom. Privy Council originally was, and still is now, a body made up of about two hundred persons, who are the great officers and ex-officers of the realm. In the early history of the English kingship, it was the instrument of personal monarchical rule. Later, under the Tudors and Stuarts, Privy Council, by its courts and decrees, was the constitutional means used by the crown in the attempt to secure direct personal rule in executive, legislative, and judicial acts. This power was abolished for the United Kingdom by the Long Parliament, the Bill of Rights, and various judicial findings, but it has remained in the British Empire outside the United Kingdom for the use of the crown, now but another name for the cabinet. Privy Council is in all things the reservoir from which is drawn the unexpected and unforeseen needs of the English executive. Out of its fruitful loins has come the equity jurisdiction of the Chancellor. The English cabinet is in theory a committee of the Privy Council. As the development of the internal and social economy of the United Kingdom required a board of trade, a board of health, and a department of education, these were developed out of committees of Privy Council. The Board of Control which governs India is such a committee in origin, though it is not to-day in composition. The cabinet officer, secretary of state for India, at its head, was there originally as privy councilor, the chairman of a committee of privy councilors for India. The Colonial Office, which rules all colonies and dependencies but India, developed at the end of the last century from the Committee of Privy Council on Trade and Plantations. Lastly, it is a judicial committee of Privy Council, whose composition was determined by statute 3 & 4 W. IV. c. 41, which exercises appellate, civil, and criminal jurisdiction over all parts of the British Empire outside the United Kingdom, a jurisdiction which is the judicial regulator and governor of this vast realm.

Privy Council no longer meets as a council, and its monthly sessions only assemble to give registry and form to the acts of the cabinet. Its membership has come to be honorary, the highest form of civic honor, but still honorary. The powers it once held as the centre and source of executive deliberation and action are held and exercised by the cabinet, the constitutional product of the past century. The English cabinet, in theory a committee of Privy Council, and in fact a joint executive committee of both chambers of Parliament, is for all the executive of the empire. This executive finds in Privy Council, in its orders and proclamations, the arsenal of authority for those acts of organic, constitutional, and legislative character which are demanded in an expanding and conquering nation. It is by orders in council that blockades are declared, the theatre of military operations indicated, the rights of neutrals and belligerents defined, and the regulation and determination effected of the various status of those related to the operations of war as neutrals, traders, or the occupants of conquered or occupied territory. When, by conquest or absorption, new territory is acquired or its administration assumed, it is an order in council, like that recently issued on the acquisition, government, and administration of the Soudan, which announces the transfer of sovereignty and determines the character of future administration. If the local law of the conquered country, which remains unchanged by conquest, is to be altered, this may be done by an order in council, though not solely, as the law of a conquered country may be altered by the king by proclamation or letters patent under the Great Seal.

Behind and over these stands the constant power of Parliament. While, therefore, Parliament may at any moment interfere by statute, the English executive can through the power of Privy Council at the time of acquisition and later, except as restrained by statute, change the law of any territorial acquisition by proclamation, letters patent, or order in council. This general power is now regulated by the British Settlements Act, 50 Vic. c. 54. In twenty-one colonies, still in pupilage or military posts, this right to legislate by order in council is retained in perpetuity. These, all either tropical islands and possessions or isolated places of arms, are British Guiana, Ceylon, Falkland, Fiji, Gambia, Gibraltar, Gold Coast, Grenada, Guiana, Hong Kong, Labuan, Lagos, Malta, Mauritius, Santa Lucia, St. Vincent, Seychelles, Sierra Leone, Trinidad, Tobago, and Turks Islands. The colonies in which this absolute power of legislation by act of the British executive does not exist are the eleven colonies enjoying elected legislatures of their own, — Canada, Newfoundland, seven in Australasia, Natal, and Cape Town; the six islands from Bermuda to Jamaica, whose legislatures are partially elected; and two regions, Basutoland and British Honduras, in which, for special reasons, this right to pass laws by orders in council has not been reserved.

Lawmaking in the British Empire, therefore, looking at the empire as made up of the United Kingdom, the colonies, and India, has two separate channels of expression. Within the United Kingdom and eleven colonies (" parliamentary ”) laws must be made by a Parliament. In the other colonies, local legislatures act. In them the cabinet can legislate on occasion, by using the old Privy Council machinery. Parliament may also, of course, legislate for them, but in practice does not. In India, this old machinery for law by executive order has been put in commission, so to speak, by creating an executive lawmaking body, made up of the viceroy and his council.

By slow steps, we are feeling a way along these lines. Congress must legislate in the United States. Led by force of habit, it has set out to do the like in detail for Porto Rico, and mired itself and its party majority in a needless bog over which British practice points the way. Taught by experience, it has begun to see that the supervision and supplement of the legislation of a dependency still needing leading strings, is a subject not for legislative but executive authority. It is to the President that authority is left to abolish the tariff between Porto Rico and the United States before 1902. It is to the President that the final decision as to public franchises is to be left in the island. In Cuba, now a dependency on the way to independence, the President has to-day substantially all the powers of lawmaking which an English cabinet enjoys in a like situation; and if Congress is wise, with this power it will not intermeddle, and, save on franchises, has thus far shown no desire to do so. Lastly, if Congress and the country are willing to be wise by the experience of another country, in the Philippines, the national legislature will supplement and supervise the lawmaking power of the legislature of the archipelago by reserving to the President the right to modify and to enact local laws by executive order, with a report to, and provision for objection by, Congress within a certain time.

The administration of English dependencies displays the same desire to separate supervision from the national legislature and graft it on the national executive. In France, powerful and practically permanent legislative committees, of which little is heard but whose power is great, are perpetually interfering in colonial detail, to the demoralization of the colonial service and of the colony. So, indeed, our Senate Committee on Foreign Affairs has come to be the real State Department, for whom, in treaty making, the secretary of state is little more than a clerk. The English system, which for many reasons is in its details unfit for our need, secures responsibility to the national legislature, but avoids supervision by this legislature or its committees ; for in dealing with “ fluttered folk and wild,” it is not the men who talk who are wanted, but the man who acts. It would be agreeable to believe that every land would be best governed by both, just as it is agreeable to cultivate that other hallucination, as misleading, that the black, brown, or yellow man is simply a white man whose skin is colored ; but beyond and below a certain stage of civil development, the man who acts must be left to act alone, untrammeled by the man who talks, until the labors of the one have found the way for the upward progress of the other.

The price of order, during which this way can be cut, dug, laid, and paved, is a recognition of this principle, which leads to another. A legislature inevitably seeks to legislate for the profit — real or apparent — of its constituents. When the subject of lawmaking and the constituents are one, this is safe. Blunders may be made. Experience rectifies them. This principle is not safe where the subject of legislative power and the constituency are not one, as when a national legislature, elected by the nation, legislates for a dependency. Such legislation inevitably leads to the property and profit treatment of colonial administration. This is the Spanish theory. It was once the English theory. Under it, colonies up to 1660 were managed in the hope of direct returns, upon the theory that they were the king’s demesne or the property of the crown. From 1660 to 1784 this theory of direct state ownership was practiced and carried on under immediate parliamentary legislation. Having lost, in 1784, through this theory, the best colony any country ever had, England altered its colonial principle and practice, and began the government of dependencies for their development, bringing in the end thereby the greater profit of the mother country. For the difference between English colonial rule and that of other countries is not that English rule has not blundered, but that it learns from its blunders; and having lost us, never again lost a colony save by its own consent.

An executive can be better trusted to consider the needs of a dependency than a legislature. Under Burke’s Act,3 executive succeeded legislative supervision; and in 1854 this system was completed by the creation of a colonial minister, whose duties were earlier the task of the secretary of state for war. The essential feature of this system, which in principle is the same both for India and for the forty scattered colonies, is the general supervision of a minister of the crown, always a member of the cabinet, responsible to Parliament, who has for his work simply the ordinary training of public life. He may take his post as ignorant of where Labuan is, the lay of the Seychelles, or whether the Grenadines are on one side of the ocean or the other, as any one reading these pages. But he has administrative ability and experience, parliamentary reputation, and knowledge of the general principles of authority, which are, after all, alike for the captain of a football team or the viceroy of India. This parliamentary minister for the colonies or for India is able to do his work, not by his own special knowledge, but because in the Colonial Office, as in the India Office, he finds a small group of highly trained permanent officials selected by competitive examination, and representing the extreme of scholarship and official training.

This highly trained force numbers some sixty in the Colonial Office, and costs, as I have said, $244,525 a year, — perhaps the cheapest paid force for its ability on the planet, always excepting the German general staff. Take, to illustrate the character of this force, Sir George Herbert, who was from 1873 to 1892 the under-secretary of the Colonial Office, the permanent head of its official staff. Sir George was the grandson of Lord Carnarvon. He became a marked man while still a schoolboy. He was a Newcastle scholar at Eton, a Baliol scholar before he was twenty. In quick succession he won the Hertford and Ireland scholarships. He was the Latin verse man of his year, took the Eldon Law Scholarship, and was elected a fellow of All Souls. Academic success like this in England abridges by ten or fifteen years a man’s period of probation in entering public life. Sir George Herbert served for a year as Mr. Gladstone’s private secretary. He went to Australia in an official capacity. In Queensland he entered public life. For five years, before he was thirty-five, he was premier of the colony. He returned to England, served for a year or two as under-secretary of the Board of Trade, and then became the head of the permanent staff of the Colonial Office. While he was under-secretary, for twenty-one years, there were eleven different colonial secretaries, one every two years, but under all Sir George Herbert was the real ruler of the colonial system. When a new colony comes into being, the minister of colonies has a man like this and the trained men under him to draft the laws of the new dependency, to select its officers, and to begin its free development with the experience and precedents of a century to guide him. In dealing with the various organized colonies, the cabinet minister of colonies does no more than settle questions of policy. The execution rests with the trained staff. It is this perpetual combination of a new man at the head, fresh from general political life, an expert trained staff to execute, and the utmost self - government possible in the colonies themselves, which renders possible the amazing economy of administration which has already been indicated. Except that he is aided, but not controlled, by a council of men who have served in high India posts, the secretary of state for India is in the same position. He is himself the product of a successful career in and out of Parliament. He has no special training. He finds it in the permanent staff of the India Office.

This light but absolute administrative control from London, by a small body of trained clerks in the Colonial Office and India Office, all told not 200 in number, regulating 11,150,000 square miles and 344,000,000 of population, is only possible because of the autonomous organization of the colonies and of India itself. Looking forward to its sovereignty as a state, and to federal incorporation, absorption, and assimilation, our theory is to leave the territory to learn its way as to administration, maintaining meanwhile legislative control by Congress. Each territory is therefore brought into the closest economic relations with the Union, whose property it is ; but it is provided with limited internal powers, and it is left to find its way through the turmoil and the lynchings, the vigilance committees and the corruption, which have attended the passage through this period of almost every territory. In Alaska, this system has ended in appalling disorder. Yet, so close is congressional legislative supervision, that the national legislature turned aside last winter to permit a town in Arizona to bond itself for new waterworks. This is the price of development into states about to pass into integral self-governing units of the Union. But the price of order in dependencies is to treat each colony as an administrative and economic unit, let its government, whether elected or appointed, draw its own tariff, pass its own laws, organize its own police and municipal system, and incur its own debts, subject to an executive in touch with the imperial executive.

The normal theory of internal colonial administration is, that each colony has in its colonial governor a chief executive appointed by the crown, which is, so far as this act is concerned, the minister of colonies. Even in the case of the selfgoverning colonies, this ultimate head and arbiter is selected without consultation with the colonies, though a selfgoverning colony may successfully object. This governor, selected for a term of five years, represents the crown. In eleven colonies, known as parliamentary, he finds the government in the hands of a Parliament, and he reigns, but does not govern. These are Canada, Newfoundland, seven in Australasia, the Cape, and Natal. The rest are crown colonies. In nine, he finds a local legislative council, partly elected and partly chosen by him from the inhabitants, English residents, and crown officers, and here he partly reigns and partly governs. In twenty, he appoints the council which legislates, and here he reigns and governs. His utmost stretch of authority comes in Ascension Island, which is by law and in law a ship of war, and its governor has the power of a naval captain. Further authority cannot go. This precedent has been followed by our own law in dealing with Navassa and other small Guano Islands. Precisely as the secretary of state for colonies in London is the official link between colonial affairs and Parliament on one side arid his highly trained secretariat on the other, so the royal governor in the colony is the link which unites the secretary for colonies, with the legislature, council, or whatever lawmaking power there may he representing the colony, and a small trained force whose members go to this colony or that to act as secretaries to the governor, to serve as judges, or to administer special districts.

As the minister at home stands for Parliament and has a trained force to help him, so the governor stands for the colonial organization and has his official trained force to help him, he himself representing some one of the many forms of success or prominence in English life, political, legal, military, naval, or born of rank and position. In the self-governing colonies, the royal governor is like the English sovereign, part figurehead and fiction, part a vital force and initiative in selecting new ministers. He is legally, in personal practice, a constitutional sovereign, and the colonial Parliament is not, it must be remembered, like our state legislature, the legislature of an original sovereignty which has surrendered part of its power. Neither is it like our territorial legislature, a convenient instrument exercising delegated powers in municipal legislation. Once created by act of Parliament, Sir Robert P. Collier defined its powers 4 as “ a legislature restricted in the area of its powers, but within that area unrestricted and not acting as an agent or delegate.” Within these powers it has the omnipotence of Parliament, or, as was said in a brief but comprehensive declaration of its powers by Privy Council,5 “ the king has no power to deprive the subject of any of his rights ; but the king, acting as one of the branches of the legislature, has the power of depriving any of his subjects in any of his dominions of any of his rights.” “ Parliamentary ” colonies and “ crown ” colonies — of which last, part are partially self-governing and part governed — represent a distinction political in nature ; but, like all political distinctions, it rests on a deeper cause. Parliamentary colonies are all lands in the north or south temperate zone settled by Europeans, English, with French in Canada and with Dutch in Cape Town and Natal. The crown colonies, partially self-governing, are islands in subtropical regions in which a white is mixed with a brown, black, or red population in proportion nicely reflected in the grant of self-rule. The crown colonies enjoying no self-government are either military stations like Gibraltar, or tropical islands and lands with a population black, brown, or yellow and a European population numerically insignificant.

India remains, an empire of 287,000000 of population and a territory, all told, equal to half the area of the United States between the oceans. In population, India is second only to China. In extent, the only other areas comparable under one administrative control are within the boundaries of the Russian Empire or of the United States. This empire is too large to be trusted with the simple organization of a crown colony. Geographically it is too homogeneous to be divided. Its development and multifarious races do not admit either of self-government or of representative institutions. The Indian government as it stands to-day, the fruit of three centuries of trade, and two centuries of occupation, absorption, and conquest, is a legal despotism created by act of Parliament— a “ statutory monarchy ” is the less objectionable phrase of legal treatises. By a series of statutes, the executive vests in the governor general as sovereign ; its legislation is the work of the “ governor general in council,” or acting as head of the council of twenty-one, all appointed ; and its system of courts has developed from the close imitation of a London mayor’s court established in 1755 by George II. Here again, while Parliament yearly passes on the Indian budget in a debate heard only by empty benches, and certain principles of legislation and administration are decided at Westminster, the great Empire of India, whose interests would tempt and whose issues would divide most national legislatures, is provided with a statutory, that is an artificial sovereign, complete in all its functions, executive, legislative, and judicial. This sovereign legally is not a man, that is the viceroy, but a lawmaking and ruling corporation, made up of the viceroy and his council. The connecting link between the government and the imperial government is not through imperial legislation, which only at intervals addresses itself to Indian topics, but through the secretary of state for India, who, like the colonial secretary, finds his trained staff, his permanent under-secretary, and counselors of Anglo-Indian experience in the India Office.

The executive powers of the sovereignty created by English statute for India are executed by the governor general and his council of five. He and the lieutenant governors of the presidencies are Englishmen, without Indian experience, who have won or enjoyed the greater prizes of English political life or rank. These rulers, who come to their work without technical training, find in India a body of about 1000 Englishmen, who hold all posts in the executive save the very highest. This small body is recruited from competitive examination, succeeded by personal and political selection, all in England, so that this superior or “ covenanted” service, while legally open, is practically closed to natives of India. These 1000 men fill the councils of India and the presidencies, and as commissioners rule districts of an average population of 2,000,000, and furnish candidates for all important judicial and executive posts. They are the government of India, and their small number is only rendered possible by opening all subordinate posts to natives and English alike, with examinations in India. The English civil force is numerically a minute portion of the whole, not over one or two per cent of those conducting and serving the Anglo-Indian government. Local government by elected and selected bodies has also been introduced on a great scale. The three great cities, Calcutta, Bombay, and Madras, are governed by local councils, two thirds of whose members are elected. In all, there are in India 733 municipalities, with a population of 13,500,000, governed by municipal committees with an aggregate of 9981 members, of whom over one half, 5214, are elected. “ District and local boards ” govern small districts, numbering 1000, with 16,336 members, of whom 6135, over one third, are elected and rule 195,000,000 of population. By the side of this triumph of elective local government won in territory over which for five thousand years of history Oriental despotism has brooded, how trivial are a hundred well-fought fields from Assaye and Plassey to Delhi and Kabul, from Clive to Roberts, compared with the spectacle of a continent and a race slowly being lifted to liberty and self-rule through the law and administration of our race.

But the final price of order is neither local autonomy nor executive, as distinguished from legislative, supervision, but a uniform administration of law. In the last resort, under every rule, the safety of life, the security of property, and the protection of rights rest on the courts. If their adjudication is just, uniform, and certain over any area, within that area, however wide, men will prosper under like conditions, and in the end reach a common peace, prosperity, and development. While in all else, in its tariff and its administrative machinery, its legislature and its legislation, its executive and its several civil liberties, the different portions of the British Empire differ in detail and in principle, in theory and in practice, all its courts end in a common appeal to the Judicial Committee of Privy Council. Privy Council once furnished to despotism those special courts like Star Chamber, intended to curb the freedom and thwart the obstinacy of the courts of common law. When under Charles I. Parliament abolished the judicial authority of Privy Council within the kingdom, it still remained the right of any British subject outside of England to take his appeal from the decision of any court to the “ king’s most excellent majesty in council.” This appeal may be taken under this ancient right, in which case permission for the appeal must first be sought and obtained of the Judicial Committee of Privy Council, or the appeal may be taken under the various statutes which regulate appeals from the highest court of every quarter of the empire to this com-, mittee. In giving Australia a federal constitution, this appeal has been limited and regulated but not abolished. This committee is now composed of fifteen persons selected from the great judicial offices of the state and two judges from India or the colonies.

This final tribunal is not an English court, but its membership is made up from the men who sit in the great English courts ; and their decisions are part of the great stream of English law, though the statute they construe may in India be an institute of Menu or a Mohammedan tradition, in Guiana Dutch law at the time of the annexation, in Cyprus Turkish law, and in Australia English common law at the foundation of the colony. In the last resort, these multifarious systems and these multitudinous statutes are brought to a common construction, application, operation, and administration by the possibility of an appeal to London. This august jurisdiction, once confined to the Isle of Jersey, where it was first exercised in 1572, and extended by parity and precedent to our own colonial courts, now hears appeals from over eighty judicatories. No tribunal compares with its wide jurisdiction and complex appeals but our own Supreme Court. Like that tribunal, its published reports now extend over an unbroken century of judicial findings, curbing, regulating, assimilating the law of the British Empire.

This appellate jurisdiction maintains the even balance of civil procedure and criminal justice over a fifth of the human race, and for a fifth of the territory allotted to man on this planet. When in this survey of the relations of the Briitish Empire we draw near the ultimate cause of its puissance, it does not rest in its navy, in its army, in the skill of its executive, or in the wisdom of its Parliament; neither its “ far-flung battle-line ” nor its “ thunders on the deep ” preserve the secret of its power. In the end, it rests in this quiet room where four or five men learned in the law sit behind a table, maintaining that great stream of precedent which safely and surely yields justice for all men under the twin flags of our common race.

Talcott Williams.

  1. Colonial Systems of the World. U. S. Summary of Commerce and Finance. December, 1898.
  2. In 1887, income tax returns for profits from colonial and foreign investments were £44,500,000. The Economist (1887, p. 347) estimates the interest paid by colonies to home investors at £34,709,000.
  3. George III. c. 82, 1784.
  4. Powell v. Apollo Candle Co., New South Wales, 1885, 10 Law Report App. Cas. 282.
  5. Cuvillier v. Aylwin, 2 Knapp, 78.