1. Colonies into Empire
In considerable measure the spectacular wealth and power that would accrue to the British was built out of territorial acquisition and adventurous trading across the globe. British producers and merchants rode high in the colonies, and equally in foreign states in Europe, the Near East, and then further afield in Asia and Africa. We turn in this Chapter therefore to two countervailing forces: from one direction there was a diffusion of common law ideas as the British Empire grew in size and range; from the other, constraints upon common law systems from principles of international law became more perceptible. Both forces affected home-grown law in the nineteenth century as never before.
At the same time, these Volumes are part of a Series that traces the growth of English law in its homeland. Accordingly, no extended treatment is offered either of law within other parts of the UK, or the colonies to which ‘English common law’ was in one way or another transplanted. This Chapter aims to note how both the essential constitutional doctrines and the major rules of private law could fare in the process of adapting the common law to its novel environments; for, among other things, that suggests the extent to which English common law was dependent upon its own circumstances of time and socio-political development. Chapter VIII treats public international law with a focus upon the extent to which it was allowed to leech into municipal English law, as well as conditioning British conduct of foreign affairs. Chapter IX outlines the emergence of the conflict of laws, or private international law, as a distinct discipline within English municipal law—but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.
2. Colonies and Empire
In its nineteenth-century apotheosis, the British Empire was hailed as a glory on which the sun would never set, bringing enlightened liberties and untold opportunities to its subject races.1 Such claims were no novelty—empires turn (p.235) to such comfortable rhetoric once they are established.2 Only the scale of the British domains set them apart. As was proudly (if impressionistically) trumpeted, Victoria’s Empire extended perhaps to a quarter of the earth’s territory and a quarter of its population.3 True it was that throughout Victoria’s reign, the places that by then had become leading British colonies were full of movements for local legislatures, as also for virtually complete separation. By 1867 the provinces of Canada would merge into a federation that was given dominion status; to be followed by Australia in 1901, New Zealand in 1907, and the Union of South Africa in 1909. In 1902, J. A. Hobson used the title, Imperialism, for a denunciation of late nineteenth-century colonialism as a ploy of capitalistic oligarchs—a deconstruction that would become the handbook of all those who strove to end European domination over their country.4 In the case of Britain that would be the upshot in the course of little more than a half-century. In the wake of two world wars, a string of colonies and dependencies were breaking free, some after long-standing relationships (as above all in the case of India), many under much shorter tutelage of one form or another. Anti-colonial historians writing in the latter twentieth century would reveal the greed, harsh discipline, and oppression behind the beneficent show of British paternalism and aid towards self-realization that had expressed the faith of the imperialists.
Today we are left only with the shadowy British Commonwealth. As an entity the Commonwealth has no legal foundation.5 Yet one of the continuing legacies of the whole Imperial adventure has been the transplantation of a legal and constitutional system to a whole range of states that continue to acknowledge this juridical birthright: a democratic legislature, an executive responsible to that legislature, a judiciary administering laws that apply to government as well as to natural persons and legal personalities. Inevitably these ideals of a rule of law have not survived where a powerful autocracy denies basic rights to its peoples. But even in the most malign cases, the common law inheritance remains (p.236) a standard for which the oppressed may at least yearn; and when political conditions become less intolerant, they may invoke it. One part of its continuing appeal is that it provides a cultural tie across countries that are to be found on or around every habitable continent.
British colonies became an Empire almost by osmosis. In the early modern period, England had been a somewhat delayed entrant into the business of colonization that grew with the Renaissance, notably across the Atlantic and around the Cape of Good Hope to alien lands with prospects of extraordinary riches. Her interests had been concentrated closer to home. Long conflicts had cut away her possessions in France; and she would see in the coalescence with Scotland and the subjection of Ireland—the latter a frustrating experience that would result in a United Kingdom for the British Isles only in 1800—a unity in constitutional terms, but a volatile confrontation in political reality.6 Nonetheless from the reign of Elizabeth onwards, English mercantile adventures took off, swashbuckling voyagers were sent forth by London investors to the Levant, to Russia, to India; so also to North America, where trade mingled with wider communitarian ideals—and new settlements began to thrive.
These adventurers had looked to the British monarchs for protection, just as those monarchs watched for gains to their realms. Competition with the Spanish, Dutch, and French led in the eighteenth and early nineteenth centuries to the acquisition of more and more British colonies and dependencies, thanks in part to that naval dominance by which Britannia ruled the waves. But that period had also delivered the first immense lesson in the government of colonial societies. Thanks to their narrow, mercantilistic view of English interests, George III and his advisers had lost the American colonies, which thenceforth would evolve their own common law genome. Gradually thereafter, Canada, Australia, New Zealand, the Cape Colony, and other provinces of southern Africa would gain importance for a variety of reasons; and above all India would become the Koh-I-Noor in the Crown, dazzling from every facet in its richly varied cut.
In the reverses triggered by the American Declaration of Independence, liberals in Britain, following both Adam Smith and Edmund Burke, became notably sceptical about colonization, pointing to the high cost of colonial adventures and the grave uncertainties of any adequate return from them. But as the country became more deeply embroiled in the acquisition of Asian and African territories, the ideology of Empire evolved. British determination and high moral tone (p.237) could alone provide the will and the means to convert decrepit, selfish, corrupt old societies into pillars of righteous government, where economic progress could flourish not just for British investors but for the colonial population in some wider sense. Many politicians and electors, judges and lawyers, churches and their flocks, generals and their armies, took up this national cry of support for the immense business of gaining and maintaining a hugely polygenic Empire. In this evolution of attitudes, many advanced liberals surrendered the scepticism of their intellectual forebears, succumbing to visions of the social improvement that might be wrought.7
The growing ideology of virtuous Imperial progress had roots in that alliance of religious sense of mission and economic calculation which we have already investigated. One element undoubtedly was the Evangelicalism within the established Church and other missionary bodies, which taught the need of conversion on earth to Godly beliefs and service as the key to salvation in the afterlife. The movement took as its first great social creed the abolition of slavery, not least in British shipping and colonies, but then also in the Americas, Africa, and elsewhere. Indeed, as the impact of the Christian religions began to wane, the incitement to rectitude transposed itself into secularized form, the moral force of Empire replacing that of the deity.8 It found expression, inevitably, in the precepts, principles, and structures that made up its legal and administrative systems; but those institutions took consequential form, building upon the fact of a colonization rather than questioning its justification.
3. Constitutional Structures and Administrations
The Place of the Crown
It was only in the half-century from the 1860s that, across much of its Imperial territories, Britain directed government in a full, modern sense. In the eighteenth century, overseas affairs remained part of the personal prerogative of the monarch. The actual machinery for exerting legal control over British colonies (p.238) was small and limited. The Hanoverian kings had directed colonial affairs very largely through their Privy Council, a body with formal recognition within the structure of the British state.9 Over time the Council would prove capable of expanding the central executive, for it might set up committees and offices for particular purposes in home affairs, such as public health and education. But, as already noted, by and large the necessities of an industrial economy at home and large territories abroad could not be managed within its confines. With the Prime Minister and his Cabinet conducting executive government at the growing centre, each Minister came to have his own department of officials, who were civil servants (as distinct from the military). And so there developed a Ministry which covered the Colonies, and separately a Board of Control for the East India Company.10 After the Mutiny of 1857 the latter was superseded by a separate government department under a Secretary for India.
Throughout Victoria’s reign, as Britain was evolving her own political institutions, with their curious, but reasonably stable linkages between legislature, executive, and judiciary, Parliament was beginning to grant equivalent institutions for her varied colonies. Those that were peaceable, and had a reasonably numerous population of Europeans, could expect government in their own community to move from a simple command structure under the Crown’s governor to an appointed legislature, then a representative legislature and, finally, virtual independence as a dominion. By contrast, those with large local populations, or with dissidents ready to resort to violence or mass protest, could be governed only by direct authority with prominent military backing.
Source of Legal Authority in Colonies: The Conquered and the Settled11
The legal dogma justifying British authority in its colonies had become established by the early eighteenth century, fortified by concepts shared through the (p.239) ius gentium of the European states. It started with a simple division. A colony would be treated as conquered where there was a native tribe, race, or prince, or a prior European occupant, which had been overcome by force or displaced by treaty.12 These initiatory steps were essential activities of the British monarch acting under the royal prerogative.13 If, on the other hand, any native tribes or peoples of the territory were ‘primitive’—if, in particular, they had little by way of established agriculture—they could then, as a polity, be disregarded. The territory would be settled, rather than conquered. In that case, the post-1689 ascendancy of Parliament required a legislative enactment to be the kernel of legal authority.14These principles of acquisition applied, whether the essential impetus was a public concern (as with the penal settlement in New South Wales), or was a mercantile or other essentially private venture, backed by a Crown charter to form a British colony in trust.15 Whichever the mode of acquisition, legal formalities rarely impeded the imperious drive to acquire new territories ahead of other European powers, or in displacement of them.
In settled lands, the English civilian population would arrive carrying with them their common law, with its much-vaunted liberties, together with such statute law of England as was suited to the circumstances of the colony. Here was the key to considerable adaptability. Blackstone had said that there would be ‘very many and very great restrictions’ on the rules and statutes that would apply in a colony; and he cited as unsuitable for transplantation ‘the artificial (p.240) refinements and distinctions incident to property of a great and commercial people’ and ‘the laws of police and revenue’, as well as other more specific matters.16 It was relatively rare, however, for the issue to be forced to the point of litigation. Matters were more complicated in conquered territories where there was already a people with legal rights from a former regime. It was then vital to define the extent to which that system of law would continue in place for the existing locals and Europeans, as well as for newcomers. The matter had to be left to prerogative decision-making in the name of the English Crown. The British Empire was a thing of rapid formation, change, and decay. A single legal system arching over the whole dominion—after the manner of Rome—was never in prospect.17
At the next level down, there would be questions about which later English laws, notably those enacted by the Westminster Parliament, would apply in a colony. In the case of a settled colony, if Parliament dealt with the matter expressly, then well and good. Where, however, the issue was left as a matter of implication, then ultimately a court would have to determine whether Parliament must have intended its statute to apply in the colonies as part of the inherited English law. The essential question in either case was whether the rules were necessary for the ‘peace, order and good government of the colony’. In relation to ‘conquered lands’, it was for the Crown to decide what law applied and to which groups.18In the Cape Colony and Ceylon (Sri Lanka) the inheritance of Roman-Dutch law was allowed to remain, gradually to be influenced by English notions and procedures.
In India all sorts of variations were permitted to the different parts of the country, one-third of which was governed through treaties with local rulers, who thereby accepted British protection and at the same time a measure of subjugation.19 Until the East India Company gave its last executive roles to the British government itself, its commercial operations did much to shape the growth of courts that had a considerable degree of independence from interference and worked under a rule of law.20 The three main areas for commerce involving the British (p.241) and other expatriates (Bombay, Calcutta, and Madras) acquired Presidential courts and applied the commercial and criminal laws of England to the extent that they were applicable to the country’s conditions. To this the main exception was that Hindus and Muslims retained their personal laws (of inheritance, marriage, caste, religious usage, and institution). With typical pragmatism, in these territories the British set up muffassal courts to which Indians could resort, in part in order to allow them to retain their personal law. In these courts it was not English law in any form, but ‘justice, equity and good conscience’ that was to apply.21 They proved to be popular because they were mostly quick and fair in comparison with surviving local institutions. As for the rest of the country, justice was first administered by Revenue Officers, but they tended to acquire a judicial officer and later, in important instances, a Chief Court. One British ideal for colonization was that native peoples should be persuaded by moral influence to adopt fairer forms of government and rights established by law, but not that they should be forced into an obedience that ran counter to their own religious and cultural morality. One lasting institution of British legal influence was therefore the extensive resort to codification, Benthamic in inspiration and eclectic in its borrowings.22 Independence would finally come by virtue of Westminster’s Indian Independence Act 1947, and with it the division into India and Pakistan, in the hope of diffusing religious tension. In the two countries, much of the inherited English Law and its codified variants would remain, being accepted for the degree of justice and certainty that it was thought capable of maintaining in countries with ever-growing populations that were capable of being fired by mutual grievances on a grand scale.
It remained a matter of prerogative that the Crown should determine whether a territory was settled or conquered.23 The difference could be important in the earliest stages of setting up British rule—for instance over the establishment of courts and other legal institutions.24 The enactment setting up a settled colony would in effect make the Crown’s governor the local autocrat, fortified by the troops that he commanded. What alternative could there be, where, for instance, the object was to found a penal colony such as New South Wales at an immense (p.242) distance and in a pre-telegraphic age?25More pressing questions about the application of British legislation would present themselves. As already mentioned, it might be left for ‘discovery’ by a court whether British legislation was meant to apply to a colony. Once a local legislature was set up how far could that body repeal or amend an imperial statute that did apply there? Local legislation was not valid if it was repugnant to the applicable British law, and had not been specifically approved by submission to the Colonial Office for parliamentary approval.
These issues came to a head in the colony of South Australia, soon after it was granted a representative legislature. From 1859, Benjamin Boothby, an eccentric judge of the colony’s Supreme Court, launched wholesale attacks on the legitimacy of important legislation being enacted by the colony’s newly responsible Parliament. Insisting on the innate superiority of the English tradition, he struck down enactments creating local courts and a new type of land titles registration—the original version of the ‘Torrens system’.26 His conflicts with other judges on the court, whose very appointments he challenged, and with the local legislature, on a range of other matters, became so complicated that the very legal system was in substantial jeopardy.27 The Colonial Office, when told what was going on, at first stonewalled. But soon enough it had to recognize that, once basic constitutional assumptions were challenged, anarchy threatened. It agreed with the South Australian government’s proposal for an Imperial enactment and this became the Colonial Laws Validity Act 1865. It legitimated all colonial legislation, save that which was repugnant to Imperial statutes intended to have paramount force in the colony concerned.28 In so doing it affirmed the ultimate supremacy of Westminster enactments; but at the same time it sapped Boothby’s claims that local legislative, administrative, and judicial acts were subject to the tightest of Imperial constraints.29
In terms of basic constitutional structure, the pattern of thought permeated by the doctrine of parliamentary sovereignty was decisive. The granting of measures (p.243) of self-government to colonies led the Westminster Parliament into the writing of constitutions—for legislative bodies, appointed or elected or both; for the setting up of executive institutions led by ministers who were also members of the legislature; and for an independent judiciary secured through rules on appointment, duration of office, and possible removal for sufficient cause. Even with the coming of federal dominion status—for Canada first, in 1867—the power structure would for decades remain pyramidal. The UK granted a subordinate governmental structure, rather than complete independence.30 And on the judicial front, ultimate appeal in most cases lay to the Privy Council.31
At the next level of constitution-making, there would prove to be varied outcomes: were parliaments to be bicameral or unicameral? What were to be the procedures for election or appointment to them? If there was to be an Upper House, what function was it to perform? What mechanism would untie deadlocks between chambers? How were Prime Ministers and their cabinets, collectively and individually, to be made responsible to the legislature? What matters were the exclusive province of the courts? How were different jurisdictions to be defined? Who were to be judges and how could their independence be guaranteed? Experiments in constructing the details of democratic government went on partly at the stage when a written constitution was drawn up, but partly, as in the home country, in response to particular pressures. In 1893, New Zealand would concede the vote for its unicameral legislature to women—an influential precedent for other parts of the common law world.32
In large measure, the political conditions of the particular colony would determine the various upshots. For example, when Canada attained dominion status in 1867, the federal legislature took a bicameral form designed to accommodate a large European minority—the French in Quebec. Nonetheless, there would be grave disputes over the respective spheres of federal and provincial competence in matters of legislation. As we shall see, the Judicial Committee of the Privy Council, once established in 1833, would become the ultimate jurisdiction to which appeal could be made in such matters.33 But that technique meant that the Australian High Court had to assume the burden instead—a form of political (p.244) exposure, but one that judges drawn from within the national community were probably better equipped to appreciate and therefore solve.
4. The Imperial Inheritance of Law
Judges and Other Adjudicators
However rough the idea of command from the Valhalla of Westminster might appear, it cemented in place the legal structure of common law inheritance. There it was at the outset in small communities of British immigrants, threatened by hostile native peoples, or by lack of food and shelter, but filling with adventurers hungry for land rights and the opportunity to build a life for themselves, or to make money out of having others do the hard labour. Historians recalling this process have been obliged, whatever their reluctance, to recognize the degree of loyalty, even reverence, which English law and legal process attracted in these new societies. If there were precedents in the English sources, and if no special circumstances rendered them otiose, they were applied with relief, and often with a sycophantic admiration.34 The forming of these new societies, or the re-forming of government as the British took over from earlier colonial masters, was partly enlightened, but often also benighted. The Hobbesian strain in the human psyche had to be reckoned with, the true source of power loudly asserted and given effect—by force if necessary, but where possible by that more commodious surrogate, the law. Little wonder then that judges and magistrates were ready to rely on previous decisions, rather than branching out into uncharted territory of laws that they would construct to answer the cases before them.
The fraternities of colonial judges and lawyers disputed over this law and its application. Much therefore turned on their own background. At the outset, they came from England, or, to a lesser extent, from Ireland or Scotland. Most judges would have been admitted as barristers to one of the Inns of Court in London and would have practised before the courts of common law, equity, or (after 1857) the divorce and probate courts. The legal practitioners of a colony—barristers or solicitors in separate or fused professions—expected the exclusive rights of audience in court and in the conveyancing of land which had come to sustain (p.245) their status and incomes at home.35 Soon enough the colonies themselves began to provide their own practitioners (often the sons of the previous generation of lawyers). If they aspired to success and rank, it remained common enough through the nineteenth century to send them to London to read for the bar. That formed an important cement in the common law pyramid, but in time it would tend to crumble. Locals inculcated in London might react against the condescension and narrowness of British attitudes to colonies and their peoples. In cases such as Janakinath Bose and Mahatma Gandhi it would help to hone rhetorical skills and moral attitudes that would sharpen the cause of independence from the Empire.36
Colonial Legislation and Subordinate Hierarchies
Command theory exerted its greatest constraints as colonies in the Empire were given local legislatures by Imperial legislation. They would acquire representative government on the Westminster model. But there would be limitations on the subject-matter which they might cover or certain enactments would have first been approved by the Queen-in-(her Imperial)-Parliament. This meant, as a first control, that the Colonial Office in London would monitor what could be done; but ultimately, the matter could become an issue on which the courts could rule. In a system that had come to respect the independence of the judiciary, the separate structure of colonial courts had its own apex. In the case of the colonies, this had long been the Privy Council, but it was only in 1833 that a distinct Judicial Committee of the Council was set up to mark this division of basic function. Within English common law many factors militated against systematic structures for appeal to higher courts, and this is no more than a peripheral instance. The assumption was that there could be cohesion and certainty in the legal system of the Empire only if appeals could be referred up to a judicial body in London. As with appellate proceedings in England itself, procedural constraints and very significant costs discouraged much use of this ultimate resort to the keystone court. As a result the Judicial Committee of the Privy Council could function on an occasional basis.37