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Les diagrammes sulvants lllustrent la mAthode. 1 2 3 1 2 3 4 5 e mmmmmmmmmm m ■.■^v ^l v^ ! i <7 "^^^ * w n# "^>'-:. 1 1 •'/ .-V #■ f^V THE CONTROUL 'i Of TH8 .1 PRIVY COUNCIL OTUl THB ADMINISTRATION OF AFFAIRS at ^ome; IN THE COLONIES; AND IN INDIA. " An appeal lies, of common rig|it, to the superior.'*— Pr/j-y Council Caify A. D. 1706, from Lord King's MSS.f Appendix belmi) No. 2. Hotilion: JAMES RIDGWAY, PICCADILLY ; WILLIAM BENNING & CO., 43, FLEET STREET. 1844. mm if * - s * « .■ VKIHTKD XT MWNHO A»A CONOKEVE, 26, DUKK 8T11MX, I.IKCOI,N'g.ii,K-PIEtDS. i.f I /'.I THE CONTROUL OP TUB PRIVY COUNCIL, &C. &C. &€. The purpose of this Essay is to shew, that th«. constitu- tion intends to guard our public administration against abuses, in all its departments, by a direct responsibility to the Crown, advised by the Privy Council; and it is conceived, that this ancient theory, although now almost lost sight of in practice, may be most advantageously worked out by a slight amendment of the existing law. At all times, efforts have been made to get rid of this responsibility ; but of late years, such efforts have been unusually successful, in more than ever rendering particular departments independent of all conti'oul, so as practically to exclude the ultimate superintendence of Parliament, and especially the more immediate check of the Frivy Council as a permanent board of appeal, through petitions to the Crown. The manner in which this has been effected, is to require the consent of the department complained of, as a condition precedent to the hearing of the appellant at the Council Board ; the petition to the Crown for justice having become almost a mere form. y Hence it is liud down in a book of a semi-official cha- racter, that *' the far greater portion of the duties performed in the office of a minister, are performed under no effective responsibility."* To this statement of an indisputable fact, the author adds the opinion, that the absence of such responsibility is unavoidable, which assumes the whole case, and if it were true, would pervert the noblest objects of all good political constitutions. It is, however, maintained, that there is no ground in our histCry for such assumption; as besides indictments before a jury, and parliamentary impeachments, to which public officers of every grade are liable, the Privy Council offers a jurisdiction to which appeals may be carried . with the greatest advantage to the public service; so ihat all members of the public administration may be subjected to good superintendence, and in turn obtain suitable protection. The chief object of this Essay is, to shew the means of redress provided by the constitution in all such cases ; but since the neglect of those means has led to extreme abuses in the mode of Appointments to Office, and to a very great perversion of the Duties of Public Officers, the enquiry must be begun with these two heads, as prelimi- nary to its chief object. The right of aliens to justice from the Crown against its officers, comes under this enquiry equally with that of British subjects ; so that the complaints of every prince and tribe injured by our numerous commanders and govern nors,inall quarters of the globe, will here find redress, and by obtaining it, they will be induced to lay aside their '* wild justice of re\enge." Thus the natives of New Zealand will ♦ Tke Statftmnn, by Hemrt Tatlob, Esq., "Author of "Philip Vm Arteveld*," London, 1836, p. 151. , », appeal to England for their lands, instead of hewing down the police officers of government, and the agents of a private company, in the south, and instead of disregarding the inter- position of a bishop, to the mutual slaughter of the tribes in the north. Thus by appeals to London, the princes of India will anticipate the intrigues of British governors, and the march of British troops. Thus the Caffre* of the Cape will make the like appeal to the Crown, instead of pouring his devastating hordes into a peaceful colony. And so every clime will send us its patient expectants of justice, instead of its news of fresh slaughter. The fact of such appeals having been already made by coloured men, when \/hite governments would Aear,t renders it probable that an open tribunal will be thronged by willing suitors of these classes. Anything approaching to despotism is so odious in prin- ciple, as well as so mischievous in its consequences, that the enquiry would have been pursued with feelings of disappointment and repugnance, if it had led to the dis- covery of legal foundations for the amount of despotism actually introduced into certain parts of our administration. The task is more agreeable, and far easier to build up im- provements upon an ar•' '' r^ li Th^ attempt above Tioliced, to set up irresponsibility in the public offices as a necessity, must signally fail, as soon as the case is understood ; and to be understood, it needs but be thought about. Hitherto, the subject has been so little reflected upon, that the author of the ** Statesman ". asserts, — " no writer has treated systematically of adminia- irative government as it ought to be exercised in a free 48tate." Our records, however, abound in good materials on the subject; and to effect a sober reform, we have but to lead public attention to the plain principles which the constitution has prescribed; 1st, as to the ap- pointments to public offices ; 2nd, as to the obligations of public officers ; and 3rd, as to the settlement of all disputes respecting their conduct, and of all claims respecting the public business. 1st. — The Appointments to Public Offices. — This first sten in the whole case, may be speedily disposed of. The law apon the subject is ancient, and clear, although the practice, in defiance of the law, is notorious. The present Governor of Canada has lately, in a colonial con- troversy, stated the law truly. It is character alone, i. e. suitableness for the post, that is to settle the choice of candidates for employment, — a rule expressly declared by the statute of 12th of Richard II., which was warmly -eulogised by Sir Edward Coke, and vindicated in Parliament by a fine of £30,000, when infringed by Lord Chancellor Macclesfield. The words of the statute are remarkable; by it, the chancellor and others are directed " not to ordain any officers of the king for any gift or brocage, favour or ■affection ; and none which pursueth by himself, or others, privily or openly, shall be put in the same office, or in any other; but all such officers are to be made of the best and most lawful men, and sufficient to their estimation iand knowledge." ; 1 i- This is the statute of whicli Sir Edward Coke said, that it deserved to be printed in letters of gold, and the due - execution of it would procure immortal honour to a minis- ter. It was not passed without strong efforts in the reign of Richard II. Two years previously, a special commission had enquired into the abuse of officers, or ministers of the crown, made by brocage — the term of law applied to the practice meant to be suppressed by this statute. A year after it was passed, general rules were drawn up for the members of the Council, among which one provided, that they should see to the due observance of this good law.* In the next reign, the Commons very early requested that its execution should be guaranteed by fines and imprison- ment of the offending parties.f More recent statutes have been passed to enforce this principle, which, indeed, belongs to the old common law. But some new legislative sanctions are wanted for its due observance, such as regulations for the announcement of vacancies in office, and the more formal examination of the candidates to fill them. Daily advertisements in the newspapers, offering money for places imder government, and the success of " A Guide to Government Situations," explaining all the machinery by which they are habituaUy disposed of, prove that the illegal practice condemned by the statute of Richard II., h fast attaining agrowth which demands rigorous suppression. The present practice and its results are traced in Mr. Taylor's '* Statesman," chap, xxix., "as to the administration of Patronage," — a term in itself sufficiently designating the illegality of the practice. "The engrossing," says Mr.. Taylor, " of a considerable quantity of patronage into one • " Proceedings and Ordinances of the Pvivy Council," Tol. i., p. 5, and; p. 18 A. . t lUd. vol» iii., p. 433. w \\ disposing hand has this advantage ; that aOcr the adminis- trator shall have satisfied any private ends which he may- have at heart with a portion of the patronage, he will dis- pose of the rest with reference to public interests. Whereas, if the patronage be comminuted and placed in several hands, each of the patrons may have no more to dispose of than is required to serve hie private purposes ; or, at all events, after feeding the private purposes of so many patrons, a smaller proportion will be left to be be- stowed according to the dictates of public spirit For a like reason, the ministCi.* who has been long in office, will be the most likely to dispense his patronage properly ; for the circle of his private friends is saturated." , , » . ^ ^1. ^ft ilfc dL M. (( A minister should adopt it as a rule, subject to a feW exceptions, that he is to make small account of testimonials and recommendations, unless subjected to severe scrutiny, and supported by proved facts. Men who are scrupulously conscientious in other things, will be often not at all so in their kindnesses. Such men, from motives of compassion, charity, good-will, have sometimes given birth to results which the slightest exercise of common sense might have taught them to foresee, and which, if foreseen, might have alarmed the conscience of a buccaneer. I have known acts of kindness done by excellent persons, in the way of re- commendation, to which a tissue of evil passions, sufferings, cruelty, and bloodshed have been directly traceable ; and these consequences were no other than might have been distinctly anticipated."— (p. 217—221.) Nothing but the positive evidence of the unimpeachable witness, Mr. Taylor, of the Colonial Office, would make this state of things credible. 2nd — The Duties of Public Officers. — By what- ever means public offices may be acquired, they all ',\. // ft itnposd certain duties, and bestow certain rights upoil the holders. Non-feasance and mis- feasance of duty, are punishable ; meritorious behaviour is a title to reward, and to continued employment. Even in offices held at the pleasure of the Crown, the law will not presume that this tenure is subject to caprice; and whatever contravenes these general principles is against law, whether it comes by intrigue, or by positive injustice, or by refusal to be just. ' These remarks would have been mere truisms, if a very different code liad not been formally set up of late as the Irue rule, and if daily practice, in conformity with this new system, did not prove, that the genuine principles of the constitution have been formally laid aside. ^ " The business of office," says the author of the book already quoted, * The Statesman,' " may be reduced within a very manageable compass, without creating public scandal. By evading decisions wherever they can be evaded ; by shifting them on other departments, or authorities, wherCi by any possibility, they can be shifted ; by giving decisions upon superficial examinations — categorically, so as not to expose the superficiality in propounding the reasons ; by deferring questions till, as Lord Bacon says, they resolve themselves ; by undertaking nothing for the public good which the public voice does not call for ; by conciliating loud and energetic individuals at the expense of such public interests as are dumb, or do not attract attention ; by sacrificing everywhere what is feeble and obscure to what is influential apd cognizable ; by such means and shifts as these, the Secretary of State may reduce his business within his powers, and perhaps obtain for himself the most valuable of all reputations in this line of life, that of a lafe man ; and if hi? business, even thus reduced, strains his power and his industry therein, whatever may be said of the theory, the man may be without reproach — ^without / 10 <&■ piher reproach, at least, than that which belongs to men placing thf nselves in a way to have their understandings abused and debased^ their sense vf justice eorrupted, and their public spirit and appreciation of public obfects un- dermined." — ^p. 151. This picture of the position of the Stanleys, the Bussells, the Orahams, and the Feels of our day, is drawn by a subaltern belonging to their body, who asserts that his facts have been got from " experiencct not meditative inven- tion,^ — Preface, p. xii. The same book furnishes equally unreserved views of what the author holds to be the duty of public officers of inferior rank, and these views might be cited on many heads, not for approval, but for a warning The direct contrary of that which Mr. Taylor thus proposes for the guidance of a public officer, is clearly the course fit to be followed by honest men, and the specimen of the official morality of our day, furnished by this gentleman's chapter " On the Art of Rising,^* will probably be held sufficient to prove the necessity of an immediate return to better principles. V Sudi exhibitions of the conduct of our ministers, on ^e one hand, and of the habits of our subordinate official ■men, on the other, are surely most melancholy ; but a more uigent abuse exists in the manner in which ministers now dispose of differences arising in the course of public service, ODi which the same author, in a chapter on the " JRe/orm of the Executive," page 153, calls loudly for a change. " Turning, (I would almost say, revolting,)" he exclaims, "' from ihia- to another view of what these duties are, and of the manner in whieh they ought to be performed, I would, in the first place, earnestly insist upon this, — that in all cases concerning points of conduct and quarrels of subor- dinate officers, in all cases of indivioiue^ claims upon the 11 ^5^r\-- public, and public claims upon individuals, in short, in all cases (and such commonly constitute the bulk of a minis*' ter's unpolitical business) wherein the minister is called upon to deliver a quasi-judicial decision, he should, on no consideration, permit himself to pronounce such decision unaccompanied by a detailed statement of all the material facts and reasons upon which his judgment proceeds. I know well the inconveniences of this course ; I know that ' authority is most imposing without reason alleged ; I know that the reasons will rarely satisfy, and will sometimes tend to irritate, the losing party, who would be better content ^' W to think himself overborne than convicted ; I am aware that the minister may be sometimes, by this course, inevi- tably drawn into protract^^d argumentation with parties whose whole time and understanding is devoted to getting advantages over him : and with a full appreciation of these difficulties, I am still of opinion, that for the sake of justice* they ought to be encountered and dealt with. One who delivers awards from which there is no appeal, for which no one can call him to account, (and such, as has been said, is practically a minister's exemption,) if he do not subject himself to this discipline, if he do not render himself amenable to confutation, will inevitably contract careless and precipitate habits of judgment ; and the case which is not to be openly expounded will seldom be searchingly investigated.— {p. 153-5.) -At 3rd. — Settlement of Official Disputes and CiiiAiMs. — This exposure of the existing practice leads to the third topic for which chiefly this Essay is written, namely, the way of settling all disputes concerning public function-^ aries, and ('f aU claims respecting the business of the Crown. For these things, it is submitted, recourse ought to be had to the Privy Council, in which these islands possess a tribunal of which a few great statesmen only / 12 have hitherto correctly estimated the value. Rich in historical recollections, and intimately connected with the traditions of the monarchy, its annals furnish inex- haustible illustrations of the progress of our govern- ment, and of the weightiest affairs of the state. The ^ Privy Council has, moreover, this peculiarity, that what- ; ever the form of the supreme government^, its special ' functions have always remained, and probubly will ever continue essentially the same. CromwelVs council of state was occupied with public business quite as important a» the Privy Councils of King Edward, King Charles, and King George ; ai.i the Deputies of Ireland, the Lord» Matchers of Wales, and the Governors of Calais and Guienne of former days, were as strictly amenable to thi» high court of appeal as it is open by law, not practice, for th© redress of official wrongs in Canada, in Africa, or in India ; or of the equally frequent wrongs done by the authorities at home, for which the ordinary courts afford no remedy. \ Various circumstances have contributed to bring this tribunal into undeserved neglect. At one period its ex- cesses in the department which constituted the Star Cham- ber, rendered its general jurisdiction hateful. At a some- what later period, jealousy on' the part of the ordinary administration of the state, supported by party feuds, impeded Lord Keeper Somcrs in his earnest and masterly endeavours to mould it effectually to its true and good purposes. Later still, Mr. Burice, in preparing his great economical reform, was misled by a sally of wit, and, perhaps, by his own position as a colonial agent, to undeP' value that portion of the Privy ( louncil which formed the old Board of Plantations. He, therefore, destroyed what only required some slight amendment to become a most useful department. In our own time, subordinate official usurpations, tolerated and fostered by a long inattention of n ft It 18 the Secretaries of State to their duties, have almost completelj ousted the Privy Council in practice, of its noblest prerogative— of sharing the glorious attribute of the poet's men of " strong authority " — the looking into the blots and stains of right.* But during many years, the proceedings of the Privy Council have been subjected to rigorous and not unprofitable strictures. So long ago as in 1827, the House of Com- mons printed papers which showed the character of that tribunal in judicial appeals ;t and Sir James Graham soon afterwards made a vehement exposition of its political cha- racter. Then came the Privy Council Act of 1833. But these and other attempts to improve this tribunal did little to remove its main defect — its inaccessibility. The treatises published upon the subject in the last twenty years, scarcely open this leading circumstance, and whilst they add nothing to the old books of Prynne, Hale, Hargrave, and others, respecting various branches of the Privy Coun- cil, they leave its extensive practice of the last century and a-half, almost untouched. The list of a few such treatises in the Note, will, however, be useful in assisting the enquiry.^ The Act of 1833, indeed, made a great change as to one branch of this jurisdiction, namely, that which concerned appeals from the judgments of Colonial and Indian Courts of Law and Equity. The change consisted in giving to ;,j:. • Shakspeare's King John, Act ii., Scene 2. f Appeals from the Colonies, House of Commons' Papers, 1827, No. 428. X Millar on the Unsettled State of tiie Law — Article in the Jurist, 1832, by Mr. Bannister — M r. Surge's Work on Colonial L aw— Clarke on Colonial Laws— Proceedings ofthe Privy Council, by Sir H. Nicolas. 7 vol s. — Intro* Ttuctions to the Publications of the Record Commissioners — Sir F. Palgrave on the Aula Regis — Note in page 149 of Knapp's Report (2nd vol/' of the Case of the Deccan Prize Money — Macqueen's T reatise on the Practice of the House of Lords — Kuapp and Moore's Reports of Cases before tba Pi-iyy "^ Couhcil— Mr. Anstey's Paperii on the Constitution, in the Portfolio, 1 14 V, jn 'I 'J '/ ' i. petitioners for justice a parliamentary guarantee for the enjoyment of a peremptory right to be heard, in the place of the precarious right before allowed, in a manner altoge- ther inconsistent with the first principles of justice. The Act of 1833, however, with its subsequent amendments, left the general jurisdiction of the Council upon so unsatis- factory a basis, that the occasion of Lord Brougham's Bill has been most properly taken for the purpose of a full examination of all the matters within the range of that jurisdiction. The subject has a far more extensive range than is obvious at first sight : involving, as it cer- tainly does, extensively, the good administration of all our affairs at home and abroad, and especially including the affairs of India and the Colonies independently of their legal proceedings. By the 4th section of the Act of 1833, provision was made for the reference of other matters, besides appeals from the Colonial and Indian Courts, to the Judicial Com- mittee of the Privy Council, formed by this act. But the section rashly confirmed to the Crown the discretion of allowing such references, or 7wt, as before practised, leaving the suitor only a sort of eleemosynary justice, which has not quite gained the character of pure charity, by blessing at once the bestower and its object. »a By the 9th section of Lord Brougham's Bill, this error is sought to be corrected, in a way which, it is to be feared, must accumulate evil upon evil; and that, too, without introducing one reallv substantial guarantee for the admi- nistration of justice. This section is in these words : — "And be it enacted, That, as often as either House of Parlia- ment shall think fit to refer any Matter or Thing for Inquiry before the said Judicial Committee, it shall be lawful for such House of Parliament to present an Address to Her Majesty, setting forth the Subject Matter so directed to be referred, praying ^\ P .. // .' I ' ':/■■ Her Majesty to refer such Matter to the Judicial Committeej and being by Her Majesty referred to the said Judicial Committee shall be inquired of and tried according to the Course of the said Committee, and according to any Rules and Regulations made or under the Power hereafter contained to be made by such Com- mittee, and its Reports on being made to Her Majesty shall be laid before the House of Parliament which had presented the Address aforesaid, and be then and there dealt with as to the said House shall seem to meet." The address here contemplated is lawful now, and to bring back a judgment of the council for special confirmation, or correction in Parliament, seems to be a somewhat circuit- ous mode of settling claims upon the Crown, to say nothing of its being already competent to Parliament to re-examine any decision which sins against the fundamentals of justice. Surely the production of this section demonstrates the want of enquiry upon the whole jurisdiction of the Privy Council. -■' ''"'"' ''"^ 'V-^>^-^.^ ........ ..V .,.-.- --,. y^-~.^-^ . How this great court has happened to fail of attaining the completely deliberative character, which belongs by law to all our institutions, and how, on the contrary, in the place of that salutary control which the constitution has vested in it over our whole administration, the despotic tendency, which so much mars official proceedings, has also crept into the proceedings of the Privy Council itself, are most important questions. The solution of those questions will tend to stop an abuse now daily guaranteeing impunity to the grossest errors, and the most cruel oppressions; and i* ^ very discussion of the subject must tend to improve a tribunal which has no superior in antiquity, and few equals in dignity and in capacity for usefulness. The progress of the Privy Council to its present con- dition of being a court of registry for ministerial errors, rather than a tribunal for the redress of wrongs, is very remarkable. \/ ^< ""!! t / 16 S*r Ouif judicial institutions, with some exceptions, traceable to a popular original before the Conquest, recognise the Crown as their fountain. The Common Law and Chan- cery Courts do justice in the name of the Sovereign ; and, beyond all doubt, the time was not very remote when the Sovereign actually presided in one or more of them. James the First, a better antiquary than lawyer, was disposed to revive the lost prerogative. Gradually, however, the judges administered the law exclusively of the Sovereign, and they durst not re/use to heab any suitor upon any case within their jurisdiction. But all matters not within the jurisdiction of the Common Law and Equity Courts remained still in the immediate jurisdiction of the Sovereign. Between the two juribdic- tions, however, of the judges, as carved out from the judicial | character of the Sovereign, and that of the Crown, which remains undisposed of, there exists the important distinction, thnt the former must hear, the latter may not. The judges are bound to hear a suitor, — not under the penalty of any positive enactment, except in special cases, such as the Habeas Corpus Act, — ^but by virtue of their duty as representatives of the Crown, and under the ancient principle guaranteed by Magna Charta, and the Coronation Oath, that justice should be denied to no man; and since justice cannot be done without hearing, this foundation of a safe administration of the law is, after a long struggle, firmly established. i^, ,; i, But a prodigious mass of cases, equally with the cases before the judges, susceptible of decision upon sound prin- ciples of law and equity, do not come within their juriidic- tion. All the appeals from the courts of justice in the Colonies and in India ; and all the cases of grievance by, or against, officers of the Crown of any rank, and all cases of complaint against the Crown itself, not cognizable by courts of law or equity, are of this class. t "1 J 'I. im M IT The remedy in these cases is by pet?*'on to the Sove- reign ; and the guarantees to justice being done on such petitions are the same injunctions of Magna Charta, and the Rame Coronation Oath, and the same ancient common law of the land, in which the duty )f the judges to hear suitors, and not deny or delay justice, originated. But the struggles which secured our rights, in the one case, have not been equally successful in the other ; and the crown habitually declines to hear its suitors, -^i^ Enough, however, is recorded concerning the efforts of eminent men to improve the jurisdiction of the Privy Council, and sufficient is, at this moment, doing for that end, to justify an expectation, that this Court also will soon acquire a cluuracter worthy of the immeni^e interests under its protection ; so that the tribute of honour paid to the similar court of the Roman Emperor, which was, perhaps, its original model, may be correctly applied to it. In regard to the judgments of the Emperor, " Videmus," says Pliny, ''ut provinciarum desideriis, ut singularum etiam civitatum precibus occurrat nulla in audiendo dif- JicultaSi nulla in respondendo mora. Adeunt statim, dimittuntur statim ; tandemque principis fores exclusa legationum turba non o&«ic2e/."^Pliny's Panegyric upon Trajan. What a reproach do these simple words cast rpon the present administration of the judicial functions still remain- ing ir the British crown ! Whilst in order to be heard in the Queen's Bench, or in the Common Pleas, it is enough to take out a writ ; and whilst, even in the Court of Chan- cery, where the form of petitioning remains, a refusal to hear the suitor is out of the question, the most extensive judicial functions of the Crown in the Privy Council have become a mere., delusion. If^ for example, a crown officer from the Colonies should present a petition to the Queen, \t 'X/': ,j^- urging gravely, that ho has pecuniary claims upon the Government, and that he cannot get justice from the Secretary of State for the Colonics, such petition will not reach the Privy Council at all, unless the minister com- plained against assent to the hearing of the case. With such a practice, and daily experience proves, that it does prevail to an extraordinary extent, it is clear that the justice of the Crown rests upon a foundation shown by Mr. Bentham's sagacious denouncement of the intrigues which perpetually mislead ministers, to be most unsatis- fiictory. j'M -;r--'-' ,-■-.■. ■ - ■ ,;. ., . ."/^.'■"^t-.-i;,.;'-:*; " Les plaintes les plus graves des colons, afibiblies en raison de la distance, sent Iivr6es dans le cabinet du prince aux tournures les plus insidieuses. Les moyens abondent par deguiser au prince les proc6d6s les plus violens sous une apparenrc de neces-j; sit6 ; et les meilleures intentions ne peuvent pas pres^rvees les ' ministres du danger de servir des int^r^ts particuliers aux depens des int^rfets publics." — Benthain, Th^orie des Peinea et Recom- penses. How little this practice accords with the genuine theory of the constitution, will be readily inferred fiom a sketch of the old Privy Council as a board of advisers to the Sovereign, concerning cases remediless in the ordinary courts; in which ca^es, this jurisdiction constitutes the remnant of the once universal authority of the Crown. '* Curia Regis, or the King's Court," says Madox, " sometimes signified the King's Chief, or Sovereign Court of Ordinary Judicature. In ancient records and memorials, written in the times near after the Norman Conquest, frequent mention is made of this Curia Regis. At this time, as it seems, there was but one supreme ordinary court of judicature in this realm, properly styled CuHa RegiSy because it was holden in the king's palace, before himself, or his chief iusticiers. * * We may con- */ 19 -'.i' if aider the king as soyereign, or chief lord of this realn), and the fountain of justice. * * When the king went beyond sea, he was wont to constitute some one, or more, great men to represent him in government, and adminis- tration of justice; * * and the king, whilst beyond sea, would sometimes, by his writs De Ultra Mare, direct what should be done. • * If the king, when he was present in the realm, and sat in judgment, did not determine all the causes, his justitier, or justiciers, determined the same. If the justitier did not do right, the party might, as I take it, afterwards resort to the king himself." — Madox's Exohequer, vol. i. p. 81 — 84, It was to the person of the king that this duty belonged ; wherefore, the litigants obtained the royal judgment, even out of the realm — {ib. p. 87) ; and in like manner, causes from beyond sea were habitually brought into England by the parties for adjudication by the crown — {ib. p. 92.)* But the sovereign was bound to exercise this branch of the supreme authority under the advice of one, or more, councils, the precise character of which is involved in much obscurity, although there is no doubt at all upon the fact of this judicial power being vested in the crown. It is this ancient judicial character of the crown, which is the true origin of the present jurisdiction of the sovereign in the Privy Council, over the Colonies and India, — not any peculiar appellant authority possessed by our kings, when Dukes of Normandy, as supposed by several late writers.t A new view latelyl taken of this appellant jurisdiction, as ( r * And see also the petition of Alice de Chapele for pardon, from a con- viction of the Court of Guernsey, (T. 30 Edw. 1.,) for stealing com to feed her starving children. — Ryloy's Flacita Parliament — ^p. 605 ; a case which offers a solution of a difficulty at this moment disturbing the course of good government in Guernsey. — See Times, April 29th. f Mr, Clarke, Mr. Burge, Mr. Millar. ■ ' ' -> X ^^- Macqucen, in the Chapters on the Privy Council. 20 ^^. belonging to our ancient parliament, seems to be more objeotionablie, and the manner in which this now historical theory has been embodied in the above quoted section of Lord Brougham's Bill, is exceedingly dangerous, by mixing up judicial with legislative functions, when the wise course would be to sever these from each other, and both from the executive, leaving to Parliament its pi'esent authority of . superintendence and correction. , ,v' No limit was set to the kind of business done in the high royal court, either in respect of the subject matter in dispute, or the locality in which that subject matter, or the parties, might be originally situated; and special cognizance was taken of all that concerned the officers of the crown. , Gradually, however, subordinate courts of justice were formed at home, and to them, at length, all causes between i party and party were exclusively confined, so far as their jurisdictions extended. Thus the Courts of Law and Equity, and the Ecclesiastical Courts, with the House of Lords, became invested with judicial power over all civil and criminal matters at home, their authority being ex- tended over such matters abroad, and in the colonies, only in particular cases, and by particular Acts of Parliament. In the course of time, the king's perdonal right to pre- side in these courts ceased, but bis personal jurisdiction remained in all other causes not amenable to these courts, as, for instance, in appeals from Ireland, Jersey, and Guernsey, the Isle of Man, and the Plantations, and Colonies. The precise origin of this change is uncertain; but in the reign of Edward I., a statute marks its existence by directing, that petitions, in which form the applications to the Crown were made, should be referred to the Chancellor, to the Exchequer, or to the Judges at Common Law, u n 7 according to the character of their contents. If the busi- ness was so great, or if it was, matter of favour, so that the King's personal decision was required, then the petitions were to be brought before the King by the Chancellor, and the other chief ministers.* The distribution of suits, according to the principles laid down in the statute of Edward I., was often confirmed in after times. For example, certain articles for the guidance of the Council, in 13 Richard II., followed the statute of Edward I. almost word for word ;t and in the 1st of Henry the Fourth's reign, justice was secured by authorising an application to the Chamberlain and the Council, if the parties could not otherwise obtain answerg.t In the reign of Henry VI., when probably such men as Chief Justice Fortescue, the author of the famous panegyric upon a Limited Monarchy, had great influence, this juris- diction was carefully improved ; and it is clear, from the tenor of the articles for the Council, preserved in the Bolls of Parliament, and in the Privy Council records; that to hear all petitioners whose cases were within its jurisdiction, was indispensable. So, upon a solemn summons to the Duke of Gloucester to appeal* before the King, the Commissioners sent to him are ordered to urge, that those in greatest authority, that is to say. King and Sovereign Lord, if he would pretend that any of his subjects, and especially a peer of his land, " had offended him, he must hear him of right in his explanation."§ So, in the 29 Articles set forth for the guidance of the King's Council, in the 5th year of Henry VI., it is ordered. * 8, Edward I., cited in the Banker's Case, by Lord Somers. Trials, 14, p. 84. t Proceedings of the Council, voL x., p. 18 A. X Proceedings in the Privy Council, voL iii., p. 444. § Proceedings of the Privy Council, vol. iii. p, 185. State ./ •V // I H ii " That none of the Council, in no suit made to them, shall shew no favour, neither in bills of right, of office, of bene- fice, nor of other thing that longeth unto the Council, but only to answer that the bills shall he seen by all the Council^ and the party suing so to have reasonable answers." — Rolls of Parliament, vol. v. p. 407. Again : in the 16th year of this reign, a Privy Council was formed of 19 Bishops, Peers, and others, to hear and determine such matters as should be moved among them ; and "pardons for crimes, appointments to offices," and other things standing upon the royal favour, were to be reserved to the King, along with the decision of cases upon- which two~thirds, or one-half of the Council might be divided against the rest." — Proceedings of the Privy Coun- cil, vol. vi. p. 312. ' ; : i In the 22d year of Henry VI. also, in 1444, the follow- ing articles were made for the Council ; to prevent impor- tunate suits, and the improper reception of petitions, of which the king cannot know the contents : — Ist. — The Lord of the Council, or person that shall labour with the king for the expedition of the petition for another, shall sign it ; and if the suitor cannot write, some other person must sign the suitor's name to the petition. 2nd. — The king shall deliver the petition to such person as he pleases, which person shall examine its contents. 3rd. — The petitions upon matters cognizable at Common Law, are to be referred to the Court of Common Law. 4th. — If the matter of the petition be of grace, then the referee shall endorse it clearly and truly, so that the king may understand what is desired, and the grounds, and either grant the prayer^ or not, or send it to this Council for advice, as it shall please him ; and their referee shall write the king's pleasure on the bill, and then the king, if W9 it he think fit, eholl sign the petition, give it to the chamber^ lain to sign, and take it to the secretary for strict execution.* In the next century, under Henry VII. and Henry VIII., and much later, the Committee of the Privy Council, called the Star Chamber, committed many abuses ; and the distinction between causes »^ roper to the regular courts, and those subject to the Crown, declared so clearly in the above cited statute of Edward I., was long disregarded. A reform was begun in the auspicious reign of Edward VI., when a Committee i)f the Privy Council was appointed to hear all suitors — strangers, as well as subjects, and to order them according to "tiieik several NATUBEs."t The second article delivered by the king for the more orderly and speedy dispatch of causes by this Council, provides, " that such suits and petitions as pertain to any courts of law, be referred to those courts where pioperly they arc triable, and others were to be determined with expedition.^ Neverthel ^ss, the abuses of the Star Chamber continued, until it was abolished by the 16 Charles I., c. 10., previously to which act, the king had gone the length of ordering, that the Privy Council should assume the power of hearing differences, even between the various courts of justice. § Besides abolishing the Star Chamber, this statute of Charles I., regulated the other branches of the Privy Council, and expressly prohibited its interference in any suits between party and party ; but that statute did not abolish other branches of its legitimate jurisdiction. Such were the appeals from Jersey and Guernsey, from Ireland, and from the Plantations, as well as original proceedings * Proceedings of the Privy Council, vol. vi., page 316, - t The Commission ia in the Egerton Papers, pago 24. X Sir John Hay ward's Life of Edwai J VL, 1552 ; Rennet's History of England, vol. ii., 328. § Hallam's Constitutional History, vcL ii. page 124. •y concerning certain matters in all these places, and concern- ing officers of the crown, both at home and abroad. ,-, t'u; Concerning appeals from Jersey and Guernsey it is said, that special ruk'^ for conducting jem are to be found in the Privy Council Register of the date of the 13th May 1572,* Concerning Irish appeals, a manuscript in the Library of Doctors' Commons, probably of Charles I.'s time, page 77, contains the following interesting passage : — ** where the complaint of injustice appears formally grounded, that id, where due application hath been made to the deputy, without any help or relief to the party, as may be pretended, let it be thoroughly examined, and severely punishrd, wherever the fault appear to be, especially if it be corrupt and malicious ; for them shall His Majesty not only magnify his own justice, but either punish an unfaithful minister, or clamorous complainer, and so his service be bettered by either example." Concerning the Plantations, the foundation of the colony of Barbadoes affords a valuable illustration of the principles upon which conflicting titles to new lands were settled in the 17th century. ^ THB BARBADOES CASE. About the year 1624, a ship of Sir William Courtecn, a London merchant, returning fiom Brazil, found Barba- does abandoned by all former discoverers, and inhabitants. The captain took possession in the name of the British crown. On his arrival in England, Sir William Courteen pursued the enterprise ; but the Earl of Carlisle obtained a grant of the island, upon a suggestion that it had been first " discovered, possessed, and planted " at his charge. Macquwn's Practice of the House of Lords and Privy Council, page 686. '' ../■ ■■ I/' The Earl of Pembroke also obtained a '■'rant of it for Sir William ; and the Earl of Marlborough had some previous claim to it. i* At the death of the Earl of Carlisle, he charged the island, by his will, with the payment of his debts, having been at the expense of an expedition of planters. In and after the civil war, many more emigrants went to Barbadoes, without asking leave, or being opposed hy any claimants of the property, and prospered exceedingly. About the year 1647, the heir o^ the Earl of Carlisle leased the island to Lord Willoughby, and Charles II. confirmed thnt lease, giving the government to Lord Willoughby. This lease and appointment were acted upon ; but Cromwell took the island, and sent Lord Willoughby away. After the restoration, when the plantations in Bar- badoes had become very valuable by the increase of wealthy settlers, a controversy arose between Lord Willoughby, those settlers, and the creditors of the late Earl of Carlisle, respecting their various rights. This controversy came before the King, upon petitions which were heard at the Council Board, His Majesty being present three or four days himself. It was at length referred to a committee, of which Lord Clarendon was a member; and the parties interested were heard by their counsel before it on the whole case. According to the opinions of the Law Officers of the Crown, taken by th) committee, the grants were void ; but the King refused, by the advice of the Council, to resume the island, declaring " that he would maka no other use of avoiding the grants, than to dispose of the profits of the plantations to those who, in justice, had any pretence, in law or equity, to receive the sume ; as it was ^iOt thought a seasonitble time to liscourage the planters, when this nation was so active and industrious in foreign plantations, and when they had so long recognised the patent." D 26 ^V; ^' w ;''■ • So Lord Willoughby was appointed to the government, to be paid by tii.o inhabitants in possession of the soil. The creditors were to receive a moiety of the profits. The in- habitants were to have titles in fee simple, and the heir of the grantee was to be provided for. ■' ■ ' ' ' ^ ? '^^ ' These particulars appearing reasonable to the Lords, all persons concerned were called, and the same being communi- cated to them, they appeared well contented. Thereupon the Lords resolved to present the same to His Majesty, who made a final order in the matter accordingly.* Now-a-days, civil tvaTf as at the Cape, and niassacrey as in New Zealand, scarcely bring about a settlement of such cobnial land titles I *; ^. fi . ^ Charles II., by the advice of Lord Clarendon and Sir William Temple, formed a plantation committee of the Privy Council ; and out of this arose a regular practice of settling colonial cases of every kind at the Privy Council in the last resort. The instructions on founding this com* mittee are important, although forgotten during many years, and they will be abstracted in the Appendix. A lively account of its first sittings may be read in Evelyn's Memoirs, vol. iii. Shortly afterwards, Charles II., when establishir^ the Privy Council, also, on a more liberal footing, declared, that to govern by the constant advice of such a Council, together with the Parliament, was the ancient constitution. After the revolution of 1688, it was attempted to establish this system by anexpress statute, which the jealousy of the court defeated ; but during several years, annual reports of all colonial affairs were regularly laid before Parliament. The gv^neral system of bringing colonial cases, both on appeal and otherwise, before the Privy Council, continued Lord Clarendon's Tracts, p. 25, and Corribbeana. n 27 • ■ ' ^ unchanged until the American war; and during all this time, the hearing of those cases upon petitions to the Crown was regular, either with, or without, the interposition of Parliament. In principle, they stood on the same grounds as the cases of parties who have claims upon the Crown for debts or other claims arising upon affairs at home. That principle is settled in the famous case of the Bankers begun in the time of Charles XL, and ending by a compromise. This case produced an argument by Lord Keeper Somers, which seems to remove all doubt on the great point of the right of a hearing by the claimant of money from the Crown, recoverable only by petition to the person of the sovereign. The prin- ciple of that case is the stronger, ii> regard to places, and other benefits which depend upon the royal grace. To the objection, that such a remedy for justice was precarious, and, therefore, not good in law, Lord Somers replied, — " It is not to be said, that on the method, where the appli- cation is to be made to the person of the king, the con- dition of the subject is precarious ; for this is to suppose, what is not to be supposed in law. It is a supposition contrary to the princlj 'gs upon which the English con- stitution is framed, which depends upon the ^ our and justice of the Crown."* Numerous cases heard at the Privy Council, from the earliest periods, prove, that Lord Somers' vindication of the constitution was well founded ; and those cases shew, that an appeal lies from all departments of the State to the Crown, for the correction of error or malice. « Whenever appeals were not readily admitted by the authorities, parties habitually resorted to Parliament for * State Trials, vol. xiv., p. 105. \/ 28 / %., aid ; of which some cases will be found in the Appendix, with proofs that aliens continued to be heard, as well as British born subjects. , » The proceedings were satisfactory on this head, although not on others, until the American war, when a new system of colonial government arose. The Board of Plantations was abolished, and gradually the office of Secretary of State for the Colonies took its present form. For many years, it followed the principles of its precursor — the Board of Plantations, and in particular, it was provided, like that Board, with a law adviser, who has, for some years past, been withdrawn, to the great injury of the public service, and of private interests. — (See Appendix, No. 12.) This great evil has arisen from the prevalence of despotic principles of late in colonial government, which have aggravated the despotism long too much fostered in the administration of Indian affairs. Hence, the Privy Council is habitually closed to Indian and Colonial complainants of official wrongs. Becent Indian cases have raised all the difficulties of the subject by biinging fully forward the new pretensions of the respective departments of the executive government, to be entrusted with irresponsible authority, and by exhibit- ing, in a strong light, the extreme inconvenience of these new pretensions. Ihe case of the army of the Deccan, and that of Elphin- stone V. Bedreechund, both arising out of the Pindaree and Mahratta wars of 1817 and 1818, shew, the first, how easy it is to overturn good old principles; and the second, how important it is to establish those old principles, by better sanctions, rather than to let them be thus unreason- ably overturned. In the case of the army of the Deccan, the Lords of the Treasury had, in 1823, solemnly settled certain claims to ; ! i if 29 ; ' ■ ' ■ prize mone7 made in that war, and a warrant, under the sign-manual, was accordingly issued for its distribution by two trustees. The trustees discovered what they thought was a fundamental error, and a plain act of in- justice in the decision of the Lords of the Treasury, who, in 1826, adopted that correction, and a fresh warrant was issued by the king for the distribution of the prize money, according to the opinions, thus approved, of the trustees. After much correspondence, the parties to be V.nefitted, under the order of distribution of 1823, and injured, as they alleged, by the new distribution, petit;oned the king for a hearing of the case in the Privy Council, to which the official reply, in 1828, was, that " His Majesty had been advised not to revoke his warrant, or to allow of an appeal to the Privy Council."— (2 Knapp, 118.) . : . ; Four years afterwards, the Privy Council took the case into consideration, under an order of reference from His Majesty to hear, but the Board declining to enter into the merits, advised the Crown to refer it again to the Lords of the Treasury to do so. It was agreed, that the subject matter of the appeal was not cognizable by any court of law, or equity ; the only point of difference being, as to the propriety of the Privy Council exercising a controuling judgment, in the nature of an appeal over decisions of the Lords of the Treasury, upon a petition to the Crown. The petitioners shewed, that direct authorities supported their claim to the hearing asked for,* and that it was consis- tent with the established principle of the highest acts of the Crown being open to correction on the groi nd of error, as well as borne out by the ancient liistory of the constitution. The advocates of the irresponsibility of the Lords of the • The Case of Buenos Ayres, 1 Dodson's Reports 29— The Toulon Case, and the Seringapatam Case. '80 H ■'■'!; •mi Treasury denied, that any precedent could be produced of a revision of theJr lordship's acts by the Privy Council, and extended their doctrine to a denial of its right " to sit as a Court of Appeal from all the departments of the state." — (2 Knapp 155.) They forgot, that in the earliest stages of this very case, Lord Liveipool, when First Lord of the Treasury, readily acquiesced in the desire of one of the parties, that the judgment of the Privy Council should be taken on the subject — (ib. p. 113.); and to good authorities they opposed mere assertions, and rhetorical flourishes. In the case of Elphinstone v. Bedreechund, the judges in Bombay had condemned an act of one of the authorities in the same war ; but the Privy Council held on an appeal against that decision, that the Indian Court had no juris- diction in the case. A strong feeling was excited for the injured party, and the failure of justice in a flagrant case, must have aggravated the natural discontent of the con- quered. Lord Tenterden, who decided the case, stated, that application for redress should have been to the Crown ; but his lordship did not add, that to the applicant in India to the British (Jrown for justice, it ia an indispensable con- dition, that the complainant be sure of a hearing, and that, unless we take measures to ensure a hearing, as a matter of course, if revenge, not redress, does not become the object of our victims, they will die in despair and misery, under the denial of j«.stice, ThuBy the Bajah of Sattara is now sinking into a pre- mature grave, from which a hearing would save him. — (Appendix, No. 11.) ' When bringing forward the cases of the Ameers of Scinde,Lord Ashley stated, that petitions from them had not come as expected. His lordship could not account for the disappointment. A cause may be suggested : there is no r> ' i ; I i :/ sery, II // habit in India of looking for redress of grievances, through petitions to England, and so the ahnost utter inaccessibility of the court, as effectually destroys the suflferer of wrong, as the positive denial of justice within the court could do. It is forgotten, that the practice of great injustice accom- panies, and leads to great national calamities. Our colonial empire stands upon the ruins of three which have fallen, and most remarkable it is, that in all three — those of Portugal, Holland, and France — signal injustice of this especial kind marked and preceded their decay. , , ^ Camoens says of Portuguese India, that it had become ** the step-mother of honest men, but nursing parent to villains," and even then its decay had begun. Tavernier says of Dutch India, that once the Dutch government most scrupulously heard appeals against their distant governors ; but in his time only the protection of great men could secure a hearing to the best cause. And another French writer has drawn a picture of the practice of that government, whose hideous features have to the minutest line been reproduced in our days in England. '• The Dutch establishments in India," saysBaynal, "were now in the ex- tremestbad orders but their reform was the more difficult, since things were us bad at home as abroad. The luinisters for the Dutch colonies, instead of being men of business and colonial exporience, were usually taken from powerful families, which monopolised the great offices. These families were busy — some with their political and party intrigues — some with the more general concerns of the state ; and they looked to colonial ai&irs, cither to advance the power of their party, or to get places for their connections ; or from worse motives of pecuniary interest. The real business of the Colonies, its details, discussions on all points, and with all the mea actually engaged in them, and the greatest enterprizes, were turned over to a secre- tary, who, under the title of counsel to the office, got everything into his own hands. The ministers came only occasionally to their post, especially during the intervals of the more pressing calls of public business; so that they lost sight of its connecting links. Consequently, they were compelled to trust implicitly to the counsel. It was his business to read all the des- patches from the Colonies, and to frame all the replies to them. He was generally acute— often corrupt— noways dangerous as a guide. Sometimes, he was known to lead his superiors into terrible difficulties of his contriving, it \/ 32 and at other times to leave thorn in scrapes created by their own errors."— Raynal, Histoire Philosophique, &c., &c., p. 466. This extremely striking passage furnishes a warning to us. This system of administration is ours, almost to a letter. Lord Shelburne said, sixty years ago, " In these matters. Parliament only obeys the dictates of a ministry, who, in nine cases out of ten, are governed by their under-secretaries." — (Sparkes's Life of Franklin, voL x. p. 437.) The Dutch would not abandon corruptions, which hastened their falL It remains to be seen, whether some attempt cannot be made to add to the stability, by our timely reform. In France, it took twenty years before Lally ToUendal could obtain the acknowledgment of the innocence of his murdered father ; and the fall of French India was attended by the abomination of the notorious injustice which en- feebles integrity, and invigorates every mischievous passion. We are now pursuing this bad career, of habitually refusing to be just, and petitioners for right at present have nothing left but to persevere in their demand of justice, until, like the Coventry Friar, when appealing to Rome,* they may, perhaps, after surviving their enemies, find indulgence in the fears, or the shame, of their reluctant judges. • The monks of a suppressed monastery at Coventry appealed to the Pope for restoration. They lingered long in Kome in disappointment and distress. Some then quitted the Apostolic Court, and some died ; till at length only one remained, Brother Thomas, who, fron extreme want, was often forced to beg his bread. About this time, the great enemy of the monastery, an English bishop, died also. The removal of this powerful opponent gave courage to Brother Thomas, and when Pope Innocent, then lately enthroned, was sitting in full consistory, he came before the Pontiff, and preferred his prayer for the restoration of the monastery. " Know ye not, brother," replied the Pope, with great wrath, " that my predecessors, Clement and Celestine, oft and oft rejected the same petition, — aye, and I saw and heard them. Get aiong with you— get along with you, you wait in vain." ^, , " iloly Father," rejoined the Monk, " I wait not in vain. My petition is just, and rif^ht ; and I wait for your death, even as I waited for the death of your pred. oessors. One may succeed you, who will effectually grant my prayer." By this address the Pope was scared, and after expressing his surprise to the Cardinals in somewhat unseemly language, no turned to the Monk, and said, " Brother, by St. Peter, you shall not wait my death, your petition is granted." And before Pope Innocent again tasted food, he issued the Bull by which Archbishop Hubert was authorised to restore the monastery. — Rotula; Curiae Regis, vol. i. p. 112. \ ■ tt [he re- las stealing the trash, his piirse, but to make him pcoz indeed, by robbing him of his good name." Was he not thm entitled to be heard, wh&n he insisted that the facts of the case were not known in the Colonial Office? It is no light thing to impute indiscretion to a public officer, as Lord Campbell shewed admirably in the cafle of the Directors of the East Ind'a Company, with a special mUitary illustration for the Commander-in-Chief of the Army, His Grace the Duke of Wellington. *^ ■ ' ** Suppose," said Lord Campbell, "an officer in the army was accused, in general orders, of an act of the grossest indiscretion, would he not immediately dsmand enquiry? It would be a strong reflection upon his cha- racter as an officer, and he would not rest satisfied until he was cleared from the imputation."-— (House of Lords, 7th May, 1844. m Impressed with such sentiments, and confident that in a most laborious office he discharged all his duties well, Mr. Bannister rightly demands the money due to him, and wisely insists upon having the credit restored which ought never to have been impeached. In leaving England for a remote colony, he gained a title, which Lord John Eussell, as above elated, expressly declared, in 1839, to have been, for half a century, permanent» on good behaviour, and the spirit of the constitution carries that permanent title many centuries beyond. ,;t In this case, the only hops f^f justice being done, arises from the prospect, that the time is coming when reason shall prevail, and lead the ministers who refused to hear this case, viz. Sir G. Murray, the Earl of Ripon, Lord Monteagle, Lord Glenelg, the Marquis of Normanby, Lord John Russell, and Lord Stanley, and their colleagues and successors, to wiser and more just conclusions on the subject of their duty as to hearing complainants. V •«^_-. \/ ^ V 11: Besides the money due to Mr. Bannister, he claims the fair recognition of his past good public services, and employment by the Crown ; on both which points, know- ledge of the truth would prompt the government to act justly. It so happens, that his experience long rendered him more familiar than most individuals with an important branch of colonial affairs — the relations of our colonists and traders with the aborigines. On this subject, which is full of urgent daily interest, Mr. Bannister has suggested some proceedings to the government, which are ap- proved by alt parties, and which Lord Stanley was \ disposed to think well of. The adoption of these suggestions would probably save thousands of lives, and millions of money. But the same sinister influence which has prevented justice being done to Mr. Bannister's claims for his past serv? oes, prevents, as is believed, his employment in carrying out what must be 80 beneficial, the Colonial Office being shut against him by the following letter, which is, perhaps, without a pre- cedent in the correspondence of Downing Street. < Downing Street 25th January, 1844. Sir, — I am directed by Lord Stanley to acknowledge the receipt of your letter of the 14th instant, addressed to Mr. Hope, and to acquaint you in reply, that his lordship does not contemplate acting on the suggestions to which you refer, or availing himself of the offer oi your services under this department ^ov'inuH ''^■'■■4:y '■ '^.'.A:L- ]:, Ihavc, Ac, -■' .^'-'^ -T To S. Bannister, Esq. JAS. STEPHEN. : The individual thus sliewn the door of the Colonial Office by Mr. Stephen, came to the public service with no recommendation but his o\vn labours, and his conduct in his post was, it is repeated, without the shadow of just reproach. •tv )i^S ;/■ ti 41 //. Before filling that post, he had been selected} in 1823| as a commissioner to carry out a reform he had himself suggested in the Indian department of Canada. The same individual has, during seventeen years, urged his claim to some employment by the Crown, on the ground of his proved fitness, and of his past good services. That these past services ought to be paid for, there is no doubt, and few will be disposed to deny, that tLe Secretaries of State for the Colonies oight to learn from a superior authority, such as the Privy Council, that his pretensions are consistent with the law of England, which enjoins exclusive respect to character in appointments for the service of the Crown.* , .;; ^ The evil of habitually refusing to hear complaints, will Iocs rou ier • In order to set forth some of the proofs Mr. Bannister has given of useful industry, a list of some of his labours is subjoined :— 1819 — Papers on the Reform of Fi?e Grammar Schools. 1820 — riati for Encouraging Industry in the Indians of North America (executed v/ith some success.) 1822 — Defence of the Indians. 1823 — Plan for the Reform of the Indian Department of Canada. ^ " Sir Orlando Brldgeman's Judgments m the Common Pleas. "^ 1827— Papers respecting the Discharge of the Duties of Atlorney- ' ' General of New South Wales, in 1 824-5-6. 1830 — Humane Policy, or the Means to Civilize Uncivilized Tribes ; * : with a Plan to settle Natal in South Africa. ' 1833 — Appel en faveur d' Alger. (Paris.) " Essay on the Civilization of the Hottentots. (Paris and Treves.) «• Biography of Dr. Vanderkemp, and of the Indian Chief Brant. (Paris) 11836 — Evidence before the Aborigines Committee of the House of Com- mons, on a system to civilize uncivilizd Tribes. " Letter to Lord John Russell on Abolishing Transportation, and on Reforming the Colonial Office. 10.38— British Colonization and Barbarous Tribes, or an Historical Development of a System to Civilize Uncivilized Tribes. ' ' " Memoir for the Settlement of Natal, presented to the Secretary of State for the Colonies, by the Cape of Good Hope Trade Society. 1^40 — Reports and Papers for the Aborigines Protection Societjr. oa the Canadian Indians, the Austral isians. &c. ; for the British Association of Science, on New Zealand ; and for the Colonial ^ Society, on the Cape of Good Hope — all enforcing the principle, th.l the destturtinn nf barbarous tribei by colonization may b* p;-cven<«(/, and their civilization promoted by awise and humane < f : system ; which system was explained in detail by measurei proposed in these papers, and works. y 42 V appear in its real groBsness, if we reflect upon the benefits which a just administration of aifairs in that respect must confer upon all within Its influence. tv .# % Abroad, every public officer would act under the convic- tion that his conduct wa^ known and appreciated at home : and that no malevolence, or even er'-or, could harm him, so long as he acted well. Instead of being distracted by his \t'^i "/ / 1830 \ Articles in the Oriental Quarterly ;2(>v(ew, on Eastern Africa ; 1843/ New Monthly Magazine, on A]gier a; 7«nV, ou Law Reports, and Privy Council Jurisdiction ; Westminster Review, on Por- '. s tuguese Africa, the Caffres, Official Morals, Algiers, History of Man ; Foreign Quarterly Review, Herder, the Protector of ' ' I- Aborigines, the Influence of Germans upon the Civilization of Is w'^'TCd People, the Flight of Schiller, Liberia, Coins in Afi^i ./ i. £c/rc/ic Acf/ca', Sparks' Edition of Franklin's Work, XI nes Protection Society, Antiquitates Americans ante Colun iUBB, Transportation of Juvenile Offenders ; and , Colonial Magazine, on South Africa ; and on the Right to be heard in the Privy Council 1840 ) The African Colonizer, a London newspaper, in which, before 1842 / the sailing of the Niger Expedition, the unhealthiness of the climate was demonstrated, and the ruin of the expedition shown to be probable from its plan. This newspaper described the resources of the Cape of Good Hope, and of the interior of South Africa, recording the proceedings and documents of the Cape Emigrants, and the progress of the Cape frontier - system. It urged warmly the extreme importance of settling Natal, in order to save the lives of whites and blacks. It ■ shewed the means of improving Madagascar in connection with Mauritius, Bourbon, &c. It also advocated a good plan of government for the British settlements in West Africa, and pressed for precautionary measures in the emigration from , .-,,,^,1 West Africa to the West Indies, and it contained papers upon the condition and prospects of other parts of Africa, with African biographies, and critical notices of books ca Africa. 1843 — Plan of the Cabot Library, to lay in the knowledge of the past career of Britain — proper foundations for a more humane, and more prosperous future upon and beyond sea. 1844 — Hints of a plan for educating the people connected with the . tx<, ^ Sea, so as best to qualify them to discharge the peculiar duties of a great maritime population at home and abroad, — drawn up in reference to the recommendations of the Shipwreck Com- mittees. Part of the Cabot Library.— (Liverpool and Ply- mouth.) 1843) Papers on a System of Peaoeful and Civilizing Intercourse with 1844J the Natives of India, New Zealand, Africa, and Oregon. — (Published and Read at Plymouth, Liverpool, and Windsor.) 1844 — The classical sources of the History of the British Isles, being an introduction to the Cabot Library (preparing for carl/ publication,) in one volume. h ii // 43 own intrigues, or in counteracting the intrigues of others, the duties of his post would obtain his exclusive attention ; and the colonial public would confide with satisfaction in the local authorities when watched with yigilance, and treated with undeviating justice at home. ' *"''"' At home, an administration which should watch and treat public officers in this way, would no longer betray the sur- prising ignorance now the occasion of great misfortunes in all quarters of the globe. Trained in the career of honour, and willing to contribute the invaluable resources of their experience, towards arming the government against error and abuse of every kind, some of these officers should be appointed to the Privy Ccincil themselves, on their return,* after all have had its protection abroad. But the grand means of realizing the theory of the con- stitution, that character shall be the sole recommendation to public employment, and of securing fitting rewards to good conduct as public officers, will be found to be, to open the Privy Council, oP right, to the hearing of their claims and complaints. y That hearing would either obtain redress for the com- plainants, or it would cause the grounds of their failure to be canvassed by their friends and by bystanders — the im- partial public. In the latter case, their quiet reception of adverse decisions would be certain. This would also indirectly cure the corruption which Mr. Taylor has so plainly proved to be at this moment the canker of our administration, and p^ive substance to what, without a reform, must be looked upon as only the brilliant dream of * Of late years retired civil and judicial officers from India have been ap- pointed members of the Privy Council, but with the honourable exception of Sir Alexander Johnstone, from Ceyion, no colonial officer seems to have been named to that body these thirty years, although in that period such excellent men as, for example, Commissioner Bigge, Sir F. Dwarris, Sir Lionel Smith, might have been selected with great advantage to the public, — not to mention numerous individuals still living. / 44 /^ ■£ Sir Edward Bulwer Lytton, that a public functionary's true qualities are not the suppleness, and idleness, and HABITUAL DISREGARD OF RIGHT, which Mr. Taylor denounces, but " indomitable will, the power of EARKSST application, INFLEXIBLE HONOUR, and a STRONG SENSE OP JUSTICE." — (The Life of Schiller, by Sir Edward Bulwer Lytton, Bart., vol. i.p71, 1844.) Upon noble foundations like these all our public adminis- trations should stand ; and above all the administration ol our colonies and India, far removed, as they are, from the check of public opinion at home. A great reform is wanted to carry out our mission upon earth ; and the opening of this high court, the Privy Council, will be a great step towards that reform. The whole board must be made accessible to those numerous mixed cases, involving official charac- ter, and public policy, for the settlement of which a larger equity, as Chief Justice Holt once called it, is dispensed by the crown, than courts of law ever admit. Such would be the object of a short statute to settle the right of hearings and make that certain which Lord Somers says, at present the law presumes is done. But in reference to the remodelling of the business of the Privy Council, it deserves grave consideration, whether the appeals from courts of law and equity abroad, ought not to be carried to the corresponding courts at home. This, it is submitted, would best secure justice throughout the Colonies and India, and it would be altogether in harmony with the ancient course of our judicial improve- ments. The Courts of Westminster now entertain points oi foreign law, and could equally well settle questions of Hindoo, or Mahommedan, or other peculiar colonial laws. Then the Privy Council being relieved from judicial appeals would be free to attend to its more proper work — the cases of administrationy which the right of hearing 45 would bring forward most beneficially to the public service, and by this arrangement, the judges being confined to their courts would no longer be in the false position to which Lord Clarendon attributed many of the evils which arose out of the Star Chamber excesses. The judges of his day felt the influence of those evils, and his account is far from being inapplicable to some judicial proceedings in our time. " The abuse of jurisdiction," says his lordship, in effect, "spread rapidly, until the judges who presided entirely lost public confidence by urging reasons of state as elements of law, and after becoming as sharpsighted as Secretaries of State, and entering into the mysteries of state, grounded their judgment upon facts, oftvhich there was neither enquiry, nor proof" — (The History of the Kebellion, vol. i., p. 122— 126,Ed. 1826.) .■- \ ^he Ihe lot fis, Ihe in |re- its lof i» , J > .) 4 ^g , \ THE APPENDIX. No. JL. — The Constitution of the Board qf Plantations, from 1670 to 1782. — The foundation of the Committee of Plantations, although not dated until 1670, when the Earl of Clarendon had been driven from public affairs, is justly attributable to him. He was always remarkable for enlightened views upon colonial and commercial questions, and so early as in 1660, he announced to Parliament the intention of Charles the 2d. to provide a board of commissioners for the government of the Plantations. The docu- ments shew hov,' fully this great statesman appreciated the necessity of a good administration at home, to ensure the welfare of the colonies, — as his proceedings at th^ Council, in the Barbadoes case, (Sup. p. 24,) prove how prudently he could advise the king upon delicate colonial questions. The Lord Chancellor, in stating the case, anticipated that "the nation would soon flourish, as the land of Canaan did, when Esau found it necessary to part from his brother, /or their riches were more than they might dwell together, and the land tuherein they were, could not bear them, because of their cattle." " We have been ourselves," said Lord Clarendon, " very near this principle of happiness, and the hope and contemplation that we may be so again, dis- poses the king to l^ very solicitous for the improvement and prosperity of the Plantations abroad, where there is such large room for the industry and reception of such who shall desire to go thither; and, therefore, His Majesty likewise intends to establish a council for these Plantations, in which persons well qualified shall be wholly intent upon their good and advancement. — (House of Lords Journal, xi. p. 175.) The commission and instructions were a s follows : — The Earl of Sandwich and nine others, were to inform themselves, by the best means, of the state of the Plantations, together with the increase and decay of trade, and the causes and reasons of such increase or decay, and to use all industry and diligence for gaining the knowledge oj all things transacted within any part thereof, and from time to time to give the King a true, faithful, and certain account, together with their best advice and opinions thereupon. To this end, the Earl of Sandwich, and the rest, were to be a standing council for all the affairs of the foreign plantations, colonies, and dominions, the town and garrison of Tangier only excepted. The Chancellor or Keeper of the Great Seal, the Lord High Treasurer, or the Commissioner of the Treasury, the Chancellor of the Exchequer, and the Principal Secretaries of State, as often as they pleased, were to be pre- sent at the debates of the said Council, and to give such vote and opinion as they should think fit. And the Board had authority to receive all such prepositions and overtures as should be offered concerning the said Plantations. They were not to promote any matter in the Council for any reward, favor, affection, or displeasure. The Board was to inform itself how the colonies were inhabited, viz. what number of parishes there are in each, and what number of planters, what number of servants, and whether the servants were Christians or slaves ; and if any of the same were found so thinly inhabited that it mightendanger the loss of them, the Board was to consider how they might be most con- veniently supplied. And forasmuch as most colonies border upon the Indians of several coun- tries, or lie near the plantations of the French, Spanish, and Dutch, and that peace is not to be expected, either with the said Indians, or with our neighb-urs, without due observance of justice to each oJ them, the Board was, therefore, strictly to enjoin all the governors, that they, at no time, give any just pro- 47 rer, as as Jor, lat rer kat krs, Ire, vocation to any of the said Indians or neighbours at peace with us, or their subjects, but by all just ways endeavour to preserve the amity between them, and a good correspondence with them. And forasmuch as some of the said natives might be of great use to give intelligence to the Plantations, or to discover the trade of other countries, or to be guides to places more remote, or to inform our governors of several advantages that may be within or near the Plantations, not otherwise capable to be known, and may be many other ways serviceable to defend, or to sue • cour, and assist the Plantations; the Board was to give strict orders to governors, that if any of the said natives shall, at any time, desire to put them- selves under the protection qf our government, that they do receive them ; and that they, by all ways, seek firmly to oblige them; and that they would direct or employ some persons purposely to Itarn the languages respectively of them, and that they do not only carefully protect them from other Indians, but more especially take care that no British subject do, at any time, any way harm them; and if any shall dare to offer any violence to them in their persons, goods, or possessions, the said governors were severely to punish the said injuries, agreeable to justice and right. They were also to provide that no British subjects be either forced or enticea away into the said Plantations ^ but that all such as are willing to be transported thither to seek a better condition than what they have at home, might, by all means, be encouraged. They were not to permit any British subjects to be oppressed by any go- vernors contrary to the laws in force. No. 2. — The Inherent Right of Appeal. Appeal from the Isle of Man. S.C. Christian V. Corren, 2 P. Wm. 101. — The report of this case in Peere Williams does not express so clearly as is done here by the counsel for the successful party, that common right gives an appeal from a subordinate to the superior. Lord JCing's MSS. in Lincoln's Inn Library, folio, p. 66.— Appeal from a decree of James, Earl of Derby, dated 6th July, 1706, whereby he decreed the appellant to be put out of possession of certain lands called Rainsoldsway, and Corn Mills in the Isle of Man ; and the respondent to be put into possession thereof; which appeal came to be heard the I3th day of July before the Lords Committee, who being all of opinion that it was a mistaken judgment, yet deferred giving judgment till they had con- sidered whether an appeal doth properly lie from the Isle of Man to this Board. -Which question was now debated. And it was alleged by the Counsel for the appellant, that this question was properly before the Committee, because on reading the Petition of appeal before the King and Counsel the 23rd of February, 1714, it was referred by the Council to Sir Edward Northey, Attorney-General, and Nicholas Lechraere, Solicitor- General, to report how far any appeal doth lie from the Isle of Man, together with their opinion upon the whole matter ; who on the 17th of .June, 1715, reported to the King in Council that they had communicated this matter to the Earl of Derby, who submitted the matter of appeal to the King's determination ; and that it appeared to them, that King Henry the Fourth granted the Isle of Man to the ancestor of the Earl of Derby and his heirs, to hold by liege homage (see Dugdale Bar. 2 vol. p. 250, and Peck's Desid. 2 vol. lib. ii, p. 20, n.); and that they were of opinion that though there was no reservation in such grant of any appeal to the King, yet an appeal lay as a right inherent to the Crown. Which report was then approved and confirmed ; and it was also ordered that the said William Christian should be admitted to his appeal from the said judgment, giving security to answer costs in case the appeal should be determined against him, or he did not prosecute with effect: which security he had accordingly given. And the Counsel for the app' llant also alleged, that though this matter has 48 not received such previous dotormination, yet it was lupportable hj prin* oiples of law and reason : an appeal of common right lies tc the superior. And seeing that no writ of error lay, because the proceedings there were not according to the common law, therefore, of necessity, an appeal must lie to ; the King in a summary way. In fact, such applications have been from the Isle of Man to the King, as it appear from the Council register. On the 18th August, 1669, a petition of James Christian was read, setting forth a prosecution of Robert Calcot; and that he had dispossessed him of his estate, praying relief, with an affidavit annexed thereto. Thereupon, it was ordered by the King in Council, that a copy of the saia petition and affidavit should be transmitted to the Earl of Derby, who was thereby directed to hear and end the case ; and if he could not end it, to represent a state of the case to the Council Board, that his Majesty according to justice, might finaUy determine the same. Afterwards, the 15th of April, 1760, a state of the case reported by the Officers of the Isle of Man, was laid before the Council Board ; and ordered to be transmitted to the Bishop of 8t. A:>aph, who had been Bishop of Man ) who, together with the Attorney and Solicitor-General were to consider this matter, and report the same, that so such further and final determination might be taken therein as was agree- able to justice. On the 6th May, 1670, the Attorney and Solicitor- General reported that Christian's claim was under a prior lease, which they conceived to be void ; and that Calcot's claim was by a subsequent good lease ; whereupon Christian's petition was dismissed. There was said to be also another petition by one Curry in 1670, which was received; and afterwards on the merits dismissed. For these and othf>r reasons the Lords Committee determined to go on with the appeal; >.jd ordered it to be determined on the merits the 12th December following ; when the Committee reversed the decree of the Earl of Derby, and ordered the appellant to be put into possession of the lands out of which he had been ejected by the execution of the said judgment, and that the respondent should account to him for the profits since his having possession of the premises. No. 3. — John Skelton^s Case, \st Henry 4!d it as a substantive office, until he bocamt) Under-Secretary of State. But at his ])i-oin ition no successor was appointed to him, as an adviser ta the Sueretary of State for the Colonies. Ttius n It only was the strength of the Department diminished, when new colonies were forming every day; but a violation of principle was per- mitted, for which there is no concoivablo excuse, either in economy, or con- venience. Work done by too few hands, is badly done, and a political department without its law advisLT, is sure to bo more and more arbitrary. This pr'»i;ross in 'ho career of mal administration will be clearly seen in tho following table: — Date. Secietary of State for the Colonies. I'Ct lirry tare jthe Bon- lim- llaw I the jns. [lent fong lilst ,K Ihief lers lions l-ral, 1826. 1827,) May.) Aug. 1828. ■> Jan. / 1830. ) Nov. J 1832. 1833. 1835. 1837. 1839. 1841.) 1844. ( Earl Bathurst. Viscount Goderich. Mr. Huskisson. Sir G. Murray. Viscount Goderich. Mr. Stanley. ) Mr. T. S. Rice. J Lord Glenelg. \ Marq.of Normanby \ Lord John Russell. Lord Stanley. Under-Secretary of State. MrR.W.IIorton,M.P. Ditto. Ditto. (Mr. Twiss,M.P. (Mr. Hay. (Lord Ilowick, M.P. ( Mr. Hay. ( Mr. Lefevre. I Mr. Hay. fSirG.Grey.M.P. or j Mr.LabouchereM.P 'Mr. Hay. history descrilx^ the treatment which our forefathers, when in the positioa of unenlightened and uacnltivated bar- barians, received from the civilized nations of antiquity; and that treatment, with its results, furnishes valuable lessons upon some important and un- settled questions aflecting the intercourse of the civilized with the bar- barous of our days, of which one remarkable exam^Je will be found in the motive attributed by Tacitus to Agricola, for receiving an Irish chief in the Roman Camp." — (Imtroditction.)