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executive orders and regulations by the Governor-General in Council, which were drawn up in the form of statutes, and were intended to be observed as laws. In 1833 a Legislative Council, consisting of the Viceroy and his Executive Council, with the addition of other members, official and non-official, nominated by him, was created, and the power of legislation was transferred to it alone. Lord Macaulay went out to India as its first legal member of Council, and the Indian Penal Code, which, though it was not formally passed till 1860, was drafted by him, would, even if he had written nothing else, remain for ever a monument of his genius. The Council was enlarged in 1861, and it has been further enlarged of late years, chiefly by the addition of non-official members, a few of whom are elected, or rather nominated, to the Viceroy for approval, by bodies such as the Calcutta Chamber of Commerce, and members have been given a right of interpellation. Some of these changes can hardly be regarded as improvements, and they were probably adopted merely in order to avoid still more mischievous ones. In its proper sphere—that is, as a machine for passing laws-the Council has done admirable work. In addition to the Penal Code to which I have referred, it has given us most complete codes of civil and criminal procedure, and a Contract Act and an Evidence Act, which embody the cream of English and American law. The ordinary process of legislation in India is this: Bills are introduced into Council, not to satisfy some political cry or fad, but to meet some real want which has been pressed on the notice of Government. On their introduction they are not only published in the Government Gazette and leading newspapers, English and vernacular, but they are also specially sent for opinion to those persons, official and non-official Europeans and natives, who are likely to have any opinion worth giving. The opinions received are carefully considered by a select committee of the Council, who then report the Bill to the Council, generally with their recommendations. It is then debated
THIRD SERIES. VOL. X.
in the usual way, and passed into law or rejected, as the case may be. To attempt to turn this body into a Parliament, or anything resembling a Parliament, will considerably impair its efficiency as a machine for legislation. As to any general establishment of Parliamentary institutions in India, I can only repeat what I have already said as to the danger of applying theories without regard to facts. The natives of India who form themselves into congresses and pass resolutions in no sense represent the people of India, or express their true wants. They mainly represent a somewhat numerous body of persons who have received an English education at Government expense, and who, on failing to obtain Government employment, think that they will at least obtain notoriety by going into opposition. Their mode of thought and speech, and even of their sedition, when they are seditious, is not that of India but of an imitation Europe.
Between the Legislative Council and England the constitutional relation is that the Council has full power to legislate on all matters within the limits of British India, and the Crown, acting through the Secretary of State, has merely the power of veto. It was intended that all members of the Council, official as well as non-official, should deal with all matters in a perfectly independent spirit, and that the power of veto should only be exercised in extreme cases. But, as in executive matters, there has been a tendency on the part of the Secretary of State to encroach on the powers of the Government of India. Under the cover of the power of the veto, he requires the more important measures of Government to be submitted to him for approval before the Bills to give effect to them are introduced into the Council, and its official members are expected, though not to the same extent as in England, to support the Bills that may thus be introduced.
Besides the power of control over the making of laws which I have endeavoured to explain in the above remarks,
there exists for all the colonies, self-governing or dependent, and for India, a very real control over the administration of the law, which is exercised by the Judicial Committee of the Privy Council. This body is the final court of appeal for all parts of the British dominions outside the United Kingdom. Cases come before it from all quarters of the globe, and it has to act as the final interpreter of almost every known system of law-English, Colonial, Hindu, and Mohammedan, and even the still more intricate systems of customary or tribal law, by which most of the native races. are governed. Yet, strange to say, this Supreme Court is not, strictly speaking, a Court at all. Its jurisdiction arises simply out of the right of every British subject who believes that a wrong has been done him to petition his Sovereign. personally for redress. Of course, there are limits imposed by the various Legislatures as to the nature and value of the cases in which an appeal to Her Majesty in Council is allowed, but when it is allowed it takes the form of a petition to the Sovereign, which is referred by her to certain select members of her Privy Council for consideration. They consider it not as a bench of judges sitting in state, but as a small group of elderly gentlemen in plain clothes seated at the end of an office table, and the result of their deliberations is recorded, not in the form of a decree of a Court, but merely as "humble advice" to Her Majesty to take certain action. It is needless to say that Her Majesty always does act on the advice given, but the whole procedure is a curious illustration of the affection of the English constitution for old forms long after the substance has completely changed.
In concluding this brief sketch of the constitutional relations between England and her Colonial Empire, I cannot, in the presence of an American audience,* refrain from giving expression to the thought, which must often
* This paper was read before the University of Pennsylvania, at Philadelphia, U.S.A., by the author, who was appointed by the University of Oxford to represent it, on the occasion of the inauguration of the new Law School Buildings of the University of Pennsylvania at Philadelphia.
occur to most Englishmen, What would that Empire have been if you had continued to form part of it? In its mere external form it would have been an Empire extending over more than 15,000,000 of square miles, and containing, in addition to nearly 300,000,000 British subjects of other races, a population of 130,000,000 of English-speaking freemen; and its internal strength would have been greater even than its form. I have said that the chief cause of our losing you was that England failed to recognise when her child was grown up. It may be that the child was so strong and vigorous, and his future in life so great, that the most judicious treatment would have failed to permanently retain him, even in a nominal dependence, on his mother. If this is so, if we must have parted company some day, at any rate we need not have parted in anger. But time softens the bitterness of even the most serious family quarrels, and I think it may be truly said that in ours all sense of bitterness passed away a hundred years ago, and that the lesser feelings of jealousy and estrangement have gone also. Year by year the two great kindred nations are drawing closer and closer together; they are learning to understand one another better, to rejoice with each other in prosperity, to sympathize with each other in trouble, to recognise the truth of the old saying that "Blood is thicker than water," and to feel that we are not merely friends, with interests and feelings in common, but are truly members of one family. When we come to you we receive even more than a family welcome, and when you come to us it is not to see a strange country, but to revisit your old home. Many of you, I am glad to say, visit Oxford in the course of your tours, and I have no doubt that as you gaze on the old colleges and recall their founders and benefactors and the history of the times in which they lived, it is a pleasure to you to feel that this history is your history, that these men were your ancestors, and that you have as good a right to claim admission to the colleges as founders' kin as any inhabitant of the British Isles.
THE REFERENDUM IN AUSTRALIA.
BY G. B. BARTON, SYDNEY.
THE working of the Referendum during the recent federal tion contest in Australia-the first experiment of the kind made in any part of the British dominions-supplies a curious comment on the views expressed by many advocates of that principle in England. Alarmed at the prospect of great constitutional changes, such as that involved in the Home Rule Bill being forced on the nation by a party vote in Parliament, they seem to have turned to the Swiss practice as a national safeguard, if not the only one, in the hour of danger, forgetting that it might be used for other purposes than that of a veto. As Mr. Lecky put it in "Democracy and Liberty," it would prove a powerful bulwark against violent and dishonest change; it would bring into action the opinion of the great silent masses of the community; it would lift a capital measure above the dominion of party; it would enable the nation to reject a measure it disliked, without destroying a Ministry of which it approved; it would serve as an appeal from a party majority to the genuine opinion of the country; it would be a clear and decisive verdict on a matter on which the two branches of the Legislature had differed; the vote would be given with a much fuller consideration, and a much more serious sense. of responsibility than if the question were mixed up with a crowd of minor issues; the electors would be likely to vote more independently, and less at the dictation of party wire-pullers, than they usually do at a General Election.
Professor Dicey is even more emphatic in his estimate of the Referendum as a national safeguard. "It is difficult," he wrote in the Contemporary Review for April, 1890, "to exaggerate the immense benefit which, in the long-run, accrues to a people from the habit of treating legislation as a matter to be determined, not by the instincts of political partisanship, but by the weight of argument. The