The history of the Colonial Office

The history of the Colonial Office.Author(s): Renton, Alexander WoodSource: Foreign and Commonwealth Office Collection, (1889)Published by: The University of Manchester, The John Rylands University LibraryStable URL: http://www.jstor.org/stable/60231498 .

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THE HISTORY OF THE COLONIAL OFFICE.

T71ROM the colonisation of Virginia in the beginning, to the -*- enactment of the Navigation Laws about the middle, of the seventeenth century, the colonial administration of

England was inspired by what may, without substantial

exaggeration or misdescription, be termed the demesnes

theory. The earliest settlements and plantations abroad were regarded by the English sovereign as his personal

property, over which the State had no jurisdiction or right ti> of control. The origin of this convenient conception is by

no means clear. According to Governor Pownall(a), who is

nothing if not ingenious, it was suggested to the mind of

King Charles the First by the contemplation of the history and constitution of the Channel Islands. Pownall's elabora¬

tion of this view, although highly imaginative, and not

distinguished by a nice regard for chronological order, deserves a brief notice. Upon the final severance of England from Normandy in 1204, Jersey and her sister islands

remained, or were forcibly kept, faithful to the crown of King John. (6) As a reward of their fidelity, the royal Angevin established a Royal Court in Jersey and in Guernsey (with the

latter of which Alderney and Sark were for judicial purposes -^5- united), and directed that all appeals should thenceforward

be brought before himself and his Council in England. Now Pownall contends, and his argument has received the

assent of at least two able writers on colonial law, that at

(a) "Administration of the Colonies," 1774, p. 49. (6) Falle, "Account of Jersey," DurelPs Edit., 1837, pp. 32 et seq. Forsyth's

" Cases in Constitutional Law," pp. 390, 391.

eoow



288 THE JURIDICAL REVIEW.

the time when the problem of colonial administration

first pressed itself upon the attention of the sovereigns of England, the only precedent for their guidance was that

afforded by the Channel Islands. This seemed to present an

obvious solution of the difficult question of how to regard and to govern the new plantations. As from the Royal Court

of Jersey, so from the decisions of the colonial governor,

appeals lay to the King and his Council, and not to the

House of Lords, or to the superior Courts of law and equity. The ordinance made by the King and his Commissioners,

and transmitted to Jersey by the Council Board, became the

colonial Order in Council; and the right enjoyed under their

constitution by the people of Jersey, to hold a convention of

the three estates of the island at which public money was voted,

and at whose deliberations the royal Lieutenant-Governor

had a negative voice, was now extended to the English colonies. Under the influence of this historical analogy, so

plausible and so complete, " the foreign plantations," like the

old feudal duchies of Normandy and Gascoigne, came to be

regarded as the Kings demesnes. Whether the demesnes

theory can with any propriety be considered as the creature

of the administrative imagination of King Charles the First

it is not here proposed to inquire. Perhaps a simpler

explanation might be found in the apathy with which the

English public, during the seventeenth century, looked upon their possessions beyond the seas, and the consequent tempt¬ ation—irresistible to the mind of a Stuart—quietly to extend

the royal prerogative in the one direction where it was not

likely to be disputed. But whatever may be the origin of

this theory, the evidence of its existence is overwhelming. 1. The charters by -which the earliest colonial settlements

were established expressly assert the King's personal rights within the territory disposed of by his grant. Thus the

Virginian charter (10th April, 1606) provides that all inter¬

colonial grants of land shall be confirmed by royal letters

patent, and that lands so granted shall be held of the King, as of our manor of East Greenwich in the county of Kent



THE HISTORY OP THE COLONIAL OFFICE. 289

J*

(sections 18 and 19). Other territories in North America

were granted to be held as of our castle of Windsor, and

others as of Hampton Court.(a) 2. The " demesnes theory" was acquiesced in by the early colonists themselves. " The

plantations," says Pownall,(6) speaking of the original royal

grants, " were settled on those lands by the King's license

and grant. The constitutions and powers of government were framed by the King's charters and commissions, and

the colonists, understanding themselves as removed out of

the realm, considered themselves in their executive and

legislative capacity of government in immediate connection

and subordination to the King their only sovereign lord."

3. The prerogative, so insidiously concealed in the verbiage of the American charters, and so tamely consented to by the

American colonists, was also recognised by the House of

Commons; (c) and an attempt to pass laws establishing a

free right of fishery on the coasts of Virginia, New England, and Newfoundland, was met, and to all appearance met

successfully, with the ministerial criticism " that this bill

was not proper for this House, as it concerneth America."

Throughout the period during wdiich the " demesnes

theory "

prevailed, the administration of colonial affairs was

actually, and, as will shortly be apparent, was necessarily, con¬

ducted by the Sovereign himself, and the Privy Council. A

short digression into the history of this famous body, over

whose constitution and functions successive commentators, from Coke and Hale to Hallam and Hearn,(cZ) have waged a doubtful battle, is unavoidable. The Kings of England had

two councils—(1) the magnum or commune concilium, roughly

corresponding to the modern Parliament, and (2) the con¬

cilium ordinarium, also called privatum et assiduum, from

'a) Of. Mill's " Colonial Constitutions," p. 2 ; Burge's " Colonial Law," i., Preliminary Treatise; also the " Charters of the British Colonies in America" (Almon, London, date not given).

(b) P. 50. (c) Cf. Jour. Ho. Com., 25th April, 1621, and 29th April, 1624 ; also Mill's

" Colonial Constitutions," p. 2. (d) " The Government of England," edit. 1887.




which the modern courts of law, the privy council itself, and the judicial committee are descended. The concilium orclinarium was a permanent body, consisting of the great officers of State, was in constant attendance upon the King, and, besides sifting and advising upon the business which was to come before the magnum concilium, was consulted by the

Sovereign upon every weighty matter of private or public interest. This brief description of the character and functions of the concilium orclinarium, if the reader will keep it in view, will enable my subsequent remarks to be the better under¬ stood. The foreign plantations were the King's demesnes, and, therefore, lay beyond the cognisance of Parliament. But the administration of these plantations, under the royal charters, became gradually more and more complicated, and gave rise, with increasing frequency, to questions of a g«cm-public character, and to problems, in the solution of which the whole State was interested. Upon such questions and problems the

Privy Council was naturally and properly consulted. But when I speak of the Privy Council being consulted, I do so

subject to two qualifications. (1.) There was no permanent committee of the Privy Council charged with the administra¬ tion of colonial affairs. There was nothinp- in the nature of a State department, before which all questions of a particular character necessarily came. Colonial problems were referred to the Privy Council, not because they were colonial, but because they were matters with which the Sovereign had to

deal, and in solving which he required advice and guidance. (2.) It is highly probable that Parliament interfered occa¬

sionally in the administration even of "the King's demesnes." This consideration may perhaps account for the instances, cited by Mr. M'Queen in support of his contention that the

Privy Council entertained colonial petitions in virtue of a reference by the House of Peers, (a)

After the restoration of Charles II., the history of colonial

(a) Appell. Jurisdiction of the House of Lords, edit. 1842, p. 6. See also p. 682.

-<-*



THE HISTORY OF THE COLONIAL OFFICE. 291

administration, while apparently more confused and compli¬

cated, becomes in reality, for the first time, intelligible. The

old curia regis, with its protean forms, lies behind us; the

old disputes as to the precise relation between the Privy Council and the magnum concilium seem to lose their signi¬ ficance. We are face to face with three factors of new and

abiding interest—(1) the growth of the Cabinet system; (2) the recognition of the commercial importance of the colonies ; and (3) the germ of the Colonial Office.

(1.) The Cabinet system had been steadily growing for

some time. When the business of the country increased, the

functions of the Privy Council were distributed. The Lord

Chancellor, who seems to have acted originally as the King's

private secretary, (a) became a permanent Judge of Chancery —that mighty and historic tribunal which adjusts, or used

to adjust-—at least in theory—the inelastic rules of the

common law, to the changed conditions and new rela¬

tions of a growing society—and handed over his secre¬

tarial duties to a Secretary of State. The position of

the Secretary of State, on the other hand, rose in

importance as the diplomatic correspondence, which passed

through his hands, became more voluminous; and in

a statute of 31 Henry VIII. (c. 10, sec. 4), he was included

among the great functionaries of State as " the King's Secre¬

tary." The practice adopted by most European sovereigns, after the peace of Westphalia in 1648, of keeping resident

ambassadors at their Courts, instead of sending special embassies to England, still further increased the work and

the dignity of the royal Secretary; and he speedily was

recognised as the permanent administrator of foreign affairs.

The same process of differentiation went on in other depart¬ ments of-State. The number of secretaries increased, and a

general supervision came to be exercised over all the public business of the country, by a special committee of the Privy Council known as the Cabinet.

(a) Hearn's " The Government of England." 1887, pp. 297-298.



11


(2.) The nation too was gradually awakening from that " fit of absence of mind "(a) in which it had hitherto carried on the work of colonisation. That large and statesmanlike conception of a Greater Britain, in which all the tiny currents of separate national existence shall be swept into the ocean of an Imperial Federation, under the sceptre of the Sovereign—which seems so familiar to us now—was then, of course, impossible. But a growing sense of the commer¬ cial importance of the colonies, to which the Navigation Acts gave a formal though short-sighted expression, and an in¬

creasing readiness on the part of the colonists to appeal for the direction and support of the mother country, seemed to show that any danger of the English plantations becoming, like the Greek cnrondai, separate entities with no political ties to the parent stock, was passing away.

(3.) The various stages in the development of the colonial office may now be noted and appreciated. Perhaps it may suffice to enumerate them, almost without comment or illustration, (b)

(a.) By an Order in Council, dated 4th July, 1660, Charles II. appointed certain members of the Privy Council to sit as a committee every Monday and Thursday, at three o'clock in the afternoon, to receive colonial petitions and memorials, and thereafter to report to the full Council the result of their deliberations. The instructions of this committee limited both the subject-matter of their inquiry—viz., questions arising in the American islands and colonies, and the scope of their authority—viz., to report their proceedings.(c)

(b.) Thereafter, by letters-patent, of 1st December, 1660, the King established a " Council of Foreign Plantations," to sit in the Star Chamber at Westminster, as a permanent Council, for administering colonial affairs.(d) Its powers

(a) Seeley's "Expansion of England," p. 17. (6) Cf. Mill's " Colonial Constitution," p. 2. (c) Mill, p. 3. ((/) Ibid.—See an enumeration of its powers at pp. 4 and 5.



*$r~


were wide, and the patent contained a provision enabling it

to obtain direction, and further powers if necessary, from the

Privy Council.

(c.) In 1672 the Council of Foreign Plantations was

united (24 Car. II.) by letters-patent to another body, estab¬

lished by Charles II. on 7th November, 1660, and known as

the Council of Trade. The new committee was called the

"Council of Trade and Plantations."

(d.) By letters-patent of 21st December, 1677, this

Council was abolished, and, during a period of nearly twenty

years, colonial administration was in the hands either of the

Privy Council or of the committee appointed by the Order in

Council of 4th July, 1660.

(e.) In 1695, by letters-patent, of 16th December, William

III. restored and reconstituted the Council of Trade and Plan¬

tations, which combined some of the present functions of the

Board of Trade with those of the Colonial Office. In 1748

the affairs of India were put under its charge, and so remained

till the establishment of the Board of Control in 1784.

(f) The office of Secretary of State for the Colonies was

created in 1768, and temporarily abolished, together with the

Council of Trade and Plantations, in 1782, by Burke's Act

(22 Geo. III. 82, sec. 1), which empowered the King, by Order

in Council, to reappoint a committee of the Privy Council for

the administration of colonial affairs. Pending the exercise

of this power, the duties of the old Council of Trade and

Plantations were discharged at the Home Office—then the

Northern Department—by an Under-Secretary and three

clerks, in what was called "the Plantation branch" of that

office.

(g.) By an Order in Council, dated 5th March, 1784, the

committee of the Privy Council, first appointed in 1660, was

revived; and subsequent Orders in Council—22nd and 25th

August, 1786—gave this committee a more representative

character, and an organised establishment.

(h.) The office of Colonial Secretary, which the successful

revolt of the North American colonies had for the time




rendered an expensive and useless burden to the country, was restored in 1794, and the Secretaryships of War and of the Colonies were united, in the person of Lord Melville. This continued till 1854, when the outbreak of the Crimean War brought about a definite and final separation of the two

departments.

The old Committee of Council became merged in the Board of Trade. As a Committee of Plantations it has acted

upon two comparatively recent occasions as the referee of the Colonial Office. Thus in 1847 Lord John Russell's Govern¬

ment, of which Earl Grey was Colonial Secretary, proposed to amend the Constitution of New South Wales—(l) by erect¬

ing what was then the district of Port Philip into a separate colony (Victoria); and (2) by reverting to the earlier con¬ stitutional model of having two Chambers in each colony. This proposal was communicated to Sir Charles Fitzroy, then Governor of New South Wales, and met with vehement colonial opposition. By Order in Council, dated 31st

January, 1849, the Queen added to the Board of Trade Lord

Campbell, then Chancellor of the Duchy of Lancaster; Sir James Stephen, and Sir Edward Ryan, to whom she referred, among other questions, the best mode of effecting the con¬

templated changes. The Board reported in favour of a single Chamber in each Colony. A Bill was framed in accordance with this recommendation, and the decision was welcomed in the Colony. In the same year—by Order in Council, 31st

January, 1849—the question of representative institutions, and the franchise, in Cape Colony, was referred to the same historic Committee, who reported to the Crown on 19th

January, 1850, and their report was approved of on the 30th

January thereafter, (a) Speaking of the body to which he thus appealed, Earl

Grey says : " At the time when there was no separate Secre-

(a) " Colonial Policy of Lord John Russell's Administration," by Earl Grey, 1858. Vol. ii. p. 91. Appendix A, and at p. 441.

*#»




tary of State for the Colonies the most important matters

relating to them were habitually referred by the Crown to

the Committee of Council for Trade and Foreign Plantations ;

but although this committee retained its ancient name, and

though, with reference to the confirmation or disallowance of *'"*' Colonial laws, the decision of the Crown was always made in

the form of Orders in Council founded on the report of this

Committee, for many years the real functions of this depart¬ ment had been confined to matters of trade, and it had been

in the habit of rendering very little assistance to the Secre¬

tary of State in the administration of colonial affairs."

The advantages which Earl Grey claims for the system of

referring colonial questions to the Council of Trade—viz., the

independent and valuable character of its advice, and the

placing on record, in a more formal shape than that of a mere

despatch, the reasons for the course adopted by the Crown

on the recommendation of its servants—have now, however,

been rendered otherwise attainable by a more elaborate

^> organisation of the Colonial Office itself. As at present con¬

stituted, this department consists of a Chief Secretary, who is

invariably a member of the Cabinet; a Parliamentary Under

Secretary—an office created in 1810, and continued ever

since, except from 1815 to 1822—a permanent Under Secre¬

tary of State, before whom all papers come before being submitted to the Parliamentary Under Secretary and the

Minister; three Assistant Under Secretaries of State, between

whom the general business of the Colonial Office is distributed,

partly according to its character, partly also on geographical lines; and a staff of clerics, appointed after competitive examination, and divided into the chief clerk, and principal, first-class, and second-class clerks.

•^ A short time ago an indignant colonist, writing to the

newspapers in London upon some local grievances, inveighed

against the system under which the island of Cyprus was

practically governed by " a clerk at the Colonial Office."

The objection is ignorant, but not new; and it is difficult to

condemn the Cypriot taxpayer, when one recollects that a




proposal to confer the status of Assistant Under Secretary of State on one of the most accomplished and influential colonial officials (also "a clerk at the Colonial Office") was rejected by the Treasury upon purely technical grounds, (a)

" Marked features of English administration," says Sir Henry Drum- mond Wolff,

" are the presence of real and the absence of

recognised system. Of these, the gradual change in the

organisation of the Colonial Office is a remarkable instance. As often occurs in public departments, the real policy of the Colonial Office has to a great extent resided in the permanent officers. Their influence, though unrecognised, has been

powerful. In France we find high-sounding designations given to very inferior offices. In England we find the con¬ verse of this proposition. In the Colonial Office, under the somewhat humble title of clerks, those behind the scenes

recognise functionaries exercising many of the powers, and often endowed with many of the qualities of statesmen."

In the admirable paper from which I have been quoting, Sir Henry Drummond Wolff make a number of practical suggestions as to the reform of the Colonial Office, on which I neither desire, nor feel qualified to offer an opinion.

1. " The Colonial Office mis-fit be made an intermediate

region in which to accept the local knowledge of some, and to train others in the qualities of generalisation." This dark

saying is explained in the next sentence. " It should be a

dep6t and clearing-house for colonial functionaries, adjuncts at home to the Minister, as purveyors of practical colonial

experience, and in turn emissaiies of the Minister to the colonies." 2. The offices of Under Secretary and Assistant Under Secretary of State for the Colonies should be made convertible with certain governorships, and the lower degrees in the Colonial Office should in like manner be assimilated to certain positions in the colonies, so that a young man entering the service would enter on a general colonial career, his mind

*k

(a) " The Colonial Office," by Sir Henry Drummond Wolff—a paper read at a Colonial Conference in 1871.




strengthened and improved by the theories of London and

the practice of the colonies. 3. " Colonies should be taught to regard the Colonial Office not as the residence of cold

official formality for the mere transaction of business, but

^** as a favourite resort, where they could find a colonial atmos¬

phere, and meet with, in their absence from home, the

formal sympathy and friendship, springing from old recol¬

lections." A. Wood Renton.

'

V



THE JUDICIAL SYSTEM OF GERMANY.

Part III.

II. minal Courts.- are arranged in a fivefold gradation

The Criminal Courtso^Germany the Sch&ffengericht, the

Landgericht, in its criminal chambers „(ptrafhammer), the

Schwurgericht, which is, theoretically, a division of the

Landgericht, the Oberlandesgericht, and the Reichsgericht. Of these the lowest in rank, with which it will be con¬

venient to deal first, is the Schoffengericht, and in point of

composition it differs more than any of the others from the tribunals with which we are familiar in this country. It is

composed of three judges, one being a trained lawyer] an

Amtsrichter, or inferior district judge, who presides in the

Court,/and two Schoffen (Echevins) or lay assessors selected

frqni the community in which the Court has its seat, and

destitute, as a rule, of legal knowledge or training. The

origin of this Court dates back to the time of Charlemagne, but it owes its establishmentinlts present form to a popular outcry, raised during th^ revolutionary period of 1848,

against the despotic/and inquisitorial system then existing, for which it wasjeft to be absolutely necessajvjxi-d^ê-some-. substitute. ..Teutonic pride rebeUed--egairist the direct adop^ tion of the jury systemsôf-'England or France, but it was

pointed out thatîrfthe "Schoffen," who acted as lay assessors in an antiquity so remote that their existence was known only to the learned, there was to be found the germ of a Court "which would combine the impartiality of a jury with the legal knowledge and trained intelligence of a pro¬ fessional judge. A tribunal upon the ancient model was

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Documents

The history of the Colonial Office