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THE CONSTITUTIONAL RELATIONS OF ENGLAND AND HER DEPENDENCIES.
BY SIR CHARLES ROE, KT.,
Late Chief Justice of the Chief Court of the Punjab.
ACCORDING to the last official statistics published by the Colonial Office, the Colonial Empire of Great Britain— excluding Great Britain itself and India-extended over some 9 millions of square miles, with an estimated population of between 23 and 24 millions, the distribution of which is thus summarized:
the total area and population under the Crown of England will be nearly 11 million square miles, with some 350 millions of inhabitants.
It would be impossible to say without a very elaborate examination of statistics what proportion of the above area and population can really be regarded as British. But, speaking roughly, we may say that Canada, Australasia, and a great part of the Cape of Good Hope are true British colonies in the sense that the bulk of the population is of British descent, with English law for their personal law, and that they may be expected to expand into great English-speaking nations. Of course a considerable number of persons of pure British descent are to be found in the other parts of the Empire, but for purposes of enumeration
they may be set off against the non-British in the British The latter would on this calculation contain an area of some 7 or 7 million square miles, and a population of about 12 millions.
I will not attempt to give any detailed account of how this great Empire has been built up. Part of it was acquired by conquest, or as the result of wars; but it is to the peaceful industry and enterprise and natural aptitude for colonization of her sons that England owes the greater part of her Colonial Empire. The foundation of this Empire was laid by the acquisition of Newfoundland in 1583, and the last act of expansion was the arrangement with other European Powers of 1890, by which England acquired, or was acknowledged to have the right to acquire, some 2 millions out of the 11 millions of square miles which is the estimated area of the whole of Africa.
The formal constitutional relations between England and her colonies and, dependencies is the same for all in the sense that all form part of the dominions of the Crown, and are in theory governed by the Crown through the Colonial Secretary, the history of whose office is briefly this:
In July, 1660, the management of the affairs of the colonies was entrusted to a Committee of the Privy Council, which in the following December became the Council of Foreign Plantations. This in 1672 was united to the Council of Trade, and the joint body was styled the Council of Trade and Plantations. It was suppressed in 1677, but revived in 1695, and continued to exist down to 1782. In 1768, when the unfortunate quarrel between England and her American colonies had commenced, a Secretary of State for the Colonies was for the first time appointed. But both he and the Council were abolished in 1782, when the quarrel ended in the complete loss of America, and the affairs of the colonies that remained to us were again made over to a Committee of the Privy Council. This committee was formally constituted in 1786, and subsequently developed into what is now known
as the Board of Trade, but after the outbreak of the French War in 1793, the committee ceased to have anything to do with colonial affairs. These were first made over to the Home and then to the War Office, and in 1801 a new office of Secretary of State for War and the Colonies was created. This arrangement continued till 1854, when the outbreak of the Crimean War as well as the rapid growth of the Australian colonies necessitated a separation of the two offices. Since then the Secretary of State for
the Colonies has had sole charge of their affairs.
But although the colonies and dependencies are alike in so far as they are in theory governed by the Crown through the Colonial Secretary, their real government presents every variety of constitutional relations, from complete dependence to practical independence. Apart from mere posts occupied for naval or military purposes, such as Gibraltar, Aden, Perim, and Wai-o-Wai, which are under the Admiralty or War Office, or the government of India, and "Protectorates or "Spheres of Influence,' such as Uganda, Zanzibar, the Niger Coast, and the North Borneo Company, which are under the Foreign Office, there are under the Colonial Office forty distinct and, as regards each other, independent Governments or Administrations. Of these forty, eleven are what is called "selfgoverning colonies "-i.e., practically independent Governments with parliaments of their own. The remaining twenty-nine may be grouped as follows:
I. Without any Legislative Council-that is, where the power of legislation is vested in the officer administering the Government, 4.
These may be subdivided into
(a) Where the Crown has reserved to itself the power of legislating by Order in Council
Malta, Labuan, St. Helena, 3.
(b) Where it has not reserved this powerBasutoland, 1.
II. With Legislative Councils nominated by the
(a) In which the Crown has reserved the
(6) Where it has not reserved this power, 1.
III. With Legislative Councils, partly nominated by the Crown and partly elected, 9.
(a) In which the Crown has reserved the power of legislating by Order in Council, 6
(b) In which it has not reserved this power, 3.
In the case of all these twenty-nine colonies, or dependencies, the control of the Crown is a real control. Where there is no Legislative Council, the officer administering the Government acts entirely under instructions received from home. In the others the case is the same in all executive matters, and even where the Legislative Council contains the largest elected proportion of members, its powers of legislation are by no means complete-that is to say, the Colonial Secretary, even when he does not require Bills to be submitted to him for approval before they are introduced into Council, would not hesitate to advise the Crown to veto any Bill passed by the Council which he considered objectionable.
But in the eleven self-governing colonies the case is very different. They, too, as I have said, are in theory, and by their written constitutions, so far as they have any, governed by the Crown through the Colonial Secretary. The administration is carried on in the name of a Governor appointed by the Crown through ministers whom he may choose and dismiss at pleasure, and he may veto the most deliberate Acts of the Legislature. But what we now understand in England by the term "Constitution" is not the letter of documents (of which there are hardly any) creating or defining the powers of any part of the body politic, but the general spirit in which custom, which has from time to time changed, and will continue to change,
expects each different part to exercise its powers. Macaulay, in the opening chapter of his "History of England," says with reference to the Constitution:
"The change, great as it is, which her (England's) polity has undergone during the last six centuries has been the effect of gradual development, not of demolition and reconstruction. The present Constitution of our country is to the Constitution under which she flourished 500 years ago what the tree is to the sapling, what the man is to the boy. The alteration has been great, yet there never was a moment at which the chief part of what existed was not old. A polity thus formed must abound in anomalies, but for the evils arising from mere anomalies we have ample compensation. Other societies possess written Constitutions more symmetrical. But no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity."
Thus it is that whilst the Constitution of England at the present day is practically a democracy, in the sense that the will of the people, as expressed through a House of Commons elected on a very broad suffrage, is really the supreme power in the State, the Sovereign retains not only the titles, but also, in theory, the powers of the Tudor and Stuart monarchs, and the House of Lords has at least the same power as the House of Commons. Yet if either the Crown or the House of Lords were to attempt to exercise their powers in opposition to the House of Commons, their conduct would be denounced as "unconstitutional," not because it would be a breach of letter of the Constitution, but because it has become a recognised principle that the Crown can only act on the advice of responsible ministers, and that the House of Lords, though it may and should reject hastily considered measures, or measures as to the expediency of which the opinion of the nation is divided, is not justified in opposing a deliberate and definite expression of the national will.