GIFT OF 
 MICHAEL REESE 
 
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 IVIicrosoft Corporation 
 
 http://www.archive.org/details/essayongovernmenOOIewirich 
 
( 
 
AN ESSAY 
 
 GOVERNMENT OF DEPENDENCIES. 
 
 or 
 
 UNIVERSITY 
 
AN 
 
 ESSAY 
 
 GOVERNMENT OF DEPENDENCIES. 
 
 BY 
 
 GEORGE CORNEWALL LEWIS, Esq. 
 
 LONDON: 
 JOHN MURRAY, ALBEMARLE STREET. 
 
 MDCCCXLI. 
 
 (8f^ 
 

 " Toute esp^ce de lumiere ne vient a nous qu'avec le terns ; plus 
 sa progression est lente, . plus I'objet entraine par le mouvement 
 rapide qui eloigne ou rapproche tous les etres est deja loin du lieu 
 ou nous le voyons. Avant que nous ayions appris que les choses 
 sontdans une situation determinee, elles ont deja chang6 plusieurs 
 fois. Ainsi nous appercevons toujours les evenemens trop tard, et 
 la politique a toujours besoin de prevoir, pour ainsi dire, le pre- 
 sent." — Turcot, CEuvres, torn, ii., p. 343. 
 
 zx'^'^7 
 
 London : Printed by W. Clowes and Sons, Stamford-street 
 
PREFACE. 
 
 The subjects comprised within the science of politics 
 may be conveniently distributed under the three 
 following main divisions : 
 
 1. The nature and form of a sovereign govern- 
 ment, and its relations with the persons directly 
 subject to it. 
 
 2. The relations between the sovereign govern- 
 ments of independent communities ; (viz., interna- 
 tional law or morality). 
 
 3. The relations of a dominant and a dependent 
 community; or, in other words, the relation of 
 supremacy and dependence. 
 
 The first of these three subjects comprehends the 
 nature, origin,, anxl form of a sovereign government, 
 and its relations with its immediate subjects consti- 
 tuting a single political community. The various 
 departments of this extensive subject have been 
 treated by a long series of writers, ancient and 
 modern, beginning with Plato and Aristotle, and 
 reaching to the present time. 
 
 The second subject, comprehending the relations 
 between the sovereign governments of independent 
 states, has been treated by a numerous class of 
 modern writers, from Grotius downwards. 
 
 The third subject is the relation of supremacy 
 
VI PREFACE. 
 
 and dependence : in other words, the relations be- 
 tween two political communities, of which one is 
 dominant and the other dependent ; both being 
 governed by a common supreme government, the 
 one directly and the other indirectly ; and the latter 
 being governed directly by a subordinate govern- 
 ment. 
 
 The third, although it coincides in some respects 
 with the other two subjects, is nevertheless essen- 
 tially distinguished from both of them. With the 
 first, it comprehends a supreme government, but 
 considers it only in its relations with a community 
 which it rules indirectly, and not in its relations 
 with its immediate subjects. With the second, it 
 considers the relations of separate communities, but 
 differs from it, in not considering the relations of 
 independent communities. 
 
 The third subject has not hitherto, as far as I am 
 aware, been professedly examined in a separate in- 
 vestigation. Whenever the subject has been con- 
 sidered by political writers, it has been considered 
 only incidentally, and in combination with colo- 
 nization, foreign trade, and other questions belonging 
 to the province of economical science. This inci- 
 dental consideration of the subject, in combination 
 with other matters having no essential affinity with 
 it, has naturally thrown over it a general indistinct- 
 ness and obscurity. Thus, for example, the idea of 
 a dependency is by many writers confounded with 
 that of a colony ; a confusion which renders it 
 nearly impossible that a clear and precise concep- 
 
PREFACE. Vll 
 
 tion of the political relation in question should be 
 formed. 
 
 The following essay is intended to explain the 
 third of the three subjects above adverted to, viz., 
 the nature of the political relation of supremacy 
 and dependence, and to develope some of the 
 principal consequences which that relation in- 
 volves. 
 
 For the purpose of elucidating fully the ideas 
 included in the notion of a subordinate government 
 (upon which the definition of a dependency adopted 
 in the ensuing pages is founded), I have prefixed 
 to the essay an inquiry, in which I have attempted 
 to explain the distinction between supreme and 
 subordinate powers of government, together with 
 some other questions related to it. This preliminary 
 inquiry is detached from the essay, and the latter 
 may be read without it. 
 
 The essay itself falls into two parts. One part 
 considers the ideas which the relation of supremacy 
 and dependence necessarily implies, and without 
 which it cannot be conceived to exist. The other 
 part considers the advantages and disadvantages 
 arising to the two related communities from their 
 connexion with each other. The expediency or in- 
 expediency of this connexion to each of the two 
 communities is determined by facts which vary 
 infinitely, and which cannot be comprehended in 
 any general expression. Nevertheless there are 
 certain leading facts which, though not universal, 
 reappear with such steadiness and uniformity in 
 
Vlll PREFACE. 
 
 different dependencies, that they serve to throw 
 much light on the expediency of this relation to the 
 related communities ; and general inferences can be 
 drawn from them, which will materially assist in 
 determining how far the relation is expedient in 
 any individual case. 
 
 Whatever advantages may belong severally to 
 monarchical, aristocratical, or democratical institu- 
 tions, it cannot be overlooked that the chief nations 
 of Europe and America now keep nearly abreast 
 in the march of civilization, notwithstanding the 
 diversity in the forms of their supreme govern- 
 ments. Moreover, it can scarcely be denied that 
 the ulterior progress of these nations mainly de- 
 pends upon the nature of the opinions prevailing 
 among the bulk of the people; that where the 
 public opinion is unenlightened, no political forms 
 can be an effectual security against unwise and mis- 
 chievous exercises of the powers of government; 
 and that where the public opinion is enlightened, 
 political forms lose a large portion of their meaning 
 and importance. 
 
 One of the main obstacles to the formation of an 
 enlightened public opinion, by a calm examination 
 of important social facts and principles, as well as 
 to the creation of habits of order, industry, and 
 forethought, to the accumulation and diffusion of 
 wealth, and to the gradual development of a 
 healthier state of society, is produced by the occur- 
 rence of wars between civilized nations. Wars of 
 
PREFACE. ix 
 
 this sort destroy wealth, divert labour from useful 
 objects, disturb commerce and credit, arrest the 
 progress of internal improvements, shake the con- 
 fidence of men in one another and in their j^overn- 
 ment, and paralyse the energy of the wise and good 
 by making them despair of the cause of human 
 advancement. 
 
 The only effectual security against the occurrence 
 of such wars is to be found in an improved inter- 
 national morality, and a more faithful observance 
 of its maxims. But though such wars are mainly 
 to be prevented by an improvement in the relations 
 of independent communities, they are also in some 
 measure to be prevented by an improvement in the 
 relations of dominant and dependent communities. 
 If, therefore, the following essay should assist in 
 explaining the nature of the relation between a 
 dominant and a dependent community, in showing 
 the extent of the advantages which the former 
 community can derive from its supremacy, and in 
 indicating the sources of the disputes likely to arise 
 between them, it would tend to diminish the chances 
 of the greatest calamity to which the civilized world 
 is now exposed. 
 
 It might likewise contribute to the same end, by 
 exhibiting the nature and extent of the political evils 
 which are inherent in the condition of a dependency. 
 If the inhabitants of dependencies were conscious 
 that many of the inconveniences of their lot are 
 not imputable to the neglect, or ignorance, or 
 selfishness of their rulers, but are the necessary con- 
 
 h 
 
X PREFACE. 
 
 sequences of the form of their government, they 
 would be inclined to submit patiently to inevitable 
 ills, which a vain resistance to the authority of the 
 dominant country cannot fail to aggravate. 
 
 London, May, 1841. 
 
CONTENTS. 
 
 Page 
 Inquiry into the Powers of a Sovereign Government ... 1 
 
 An Essay on the Government op Dependencies. 
 
 CHAPTER I. 
 Definition of a Dependency and of a Subordinate Government 70 
 
 CHAPTER 11. 
 Examples of Dependencies 96 
 
 § 1.— Dependencies of the Oriental Monarchies and of 
 
 the Ancient Republics ib. 
 
 § 2. — Dependencies of the European States in modern 
 
 times . 135 
 
 CHAPTER III. 
 On the modes in which a Dependency may be acquired . . 167 
 
 CHAPTER IV. 
 
 Reasons for governing a Territory as a Dependency . , . 180 -^ 
 
 CHAPTER V. 
 
 Separateness of a Dependency, as arising from the peculiarities 
 
 of its legal system 189 
 
 CHAPTER VI. 
 
 Advantages derived by the Dominant Country from its su- 
 premacy over a Dependency 211 
 
Xll CONTENTS. 
 
 CHAPTER VII. 
 
 Page 
 
 Advantages derived by a Dependency from its dependence 
 
 on the Dominant Country 241 
 
 CHAPTER VIII. 
 
 Disadvantages arising to the Dominant Country from its su- 
 premacy over a Dependency 247 
 
 CHAPTER IX. 
 
 Disadvantages arising to a Dependency from its dependence 
 
 on the Dominant Country 252 
 
 CHAPTER X. 
 
 The respective inconveniences of the various forms which can 
 
 be given to the immediate government of a Dependency. 287 
 
 CHAPTER XI. 
 
 How a Dependency may cease to exist as such, or may lose its 
 
 distinctive character 325 
 
 Notes 343 
 
UNIVERSITY^ 
 INQUIRY 
 
 POWEES OF A SOVEREIGN GOVERNMENT. 
 
 Since a dependency is a territory placed under a Subject 
 subordinate government, the subject of the following 
 Essay renders it necessary for me to investigate the 
 nature of a subordinate government. 
 
 In order to understand the nature of a subordinate 
 government, it is necessary to understand the dis- 
 tinction between supreme and subordinate powers 
 of government, and the nature of the delegation by 
 which the latter powers are created. This distinction 
 is closely connected with the distinction between the 
 legislative and executive powers of government ; 
 and, indeed, has been considered by some writers 
 as nearly identical with it.* Since these questions 
 have not been examined with sufficient fulness for 
 my present purpose, I propose, before entering upon 
 the subject of the following Essay, to inquire into 
 the nature of the powers of a sovereign government, 
 
 * See Note (A) at the end of the volume. 
 
 B 
 
Z PRELIMINARY INQUIRY. 
 
 and the manner in which those powers may be 
 delegated. 
 
 Extent of The first question to be considered is, what is the 
 
 the powers ^ 
 
 of a sove- extent of the powers of a sovereign government ? 
 vernmeut. It may bc Said generally that a sovereign govern- 
 ment can do all that can be done by the united 
 power of the community which it governs; or, 
 more strictly, that it can do all that can be done by 
 so much of the power of the community as it can 
 practically command. 
 
 The power of a sovereign government has not a 
 less extent than that which has been just stated. 
 
 It can seize persons, imprison, put to death, levy 
 war, carry on trade, build, make roads, maintain 
 schools, coin money ; and, in short, do any other of 
 the innumerable acts which may be done by a so- 
 ciety of men who are not impeded or compelled 
 by superior force. 
 
 It is an error to suppose that a sovereign govern- 
 ment is subject to any other than moral restraints, 
 and that it does not possess an absolute and despotic 
 power.* All attempts to limit legally the power 
 
 * See, for example, Locke on Civil Government, Part II. § 171 — 2. 
 Hobbes, however, in his Leviathan, had already decided the ques- 
 tion by the following lucid explanations. "A fourth opinion re- 
 pugnant to the nature of a commonwealth is this, that he that hath 
 the sovereign power is subject to the civil laws. It is true tliat 
 sovereigns are all subject to the laws of nature, because such laws 
 be divine, and cannot by any man be abrogated. But to those laws 
 wbich the sovereign himself, that is, which the commonwealth 
 maketh, he is not subject. For to be subject to laws, is to be sub- 
 ject to the commonwealth, that is, to the sovereign representative, 
 that is, to himself; which is not subiection, but freedom from the 
 
PRELIMINARY INQUIRY. 3 
 
 of a sovereign government by positive laws, pro- 
 mises, compacts, and constitutional checks or ba- 
 lances, are nugatory. It is likewise absurd to deny 
 to a sovereign government the power, or, as it is 
 commonly called, the right of doing certain acts, 
 such as inflicting death or bodily pain, of taking 
 property, &c. When the right of a sovereign govern- 
 ment to do any act is denied, nothing more is meant 
 than that the government ought not, in the speaker's 
 or writer's opinion, to do the act. This expression is, 
 therefore, merely a concise formula for assuming 
 the question at issue. The opinion just adverted to 
 is merely a variety of the ancient notion that the 
 laws of a bad and oppressive government have no 
 binding force, and, therefore, are not laws. A con- 
 versation on this subject, said to have taken place 
 between Pericles and the young Alcibiades, is re- 
 ported in Xenophon's Memoirs of Socrates. Pericles 
 at first answers the inquiries of Alcibiades correctly, 
 by saying that every decree of the sovereign person 
 
 laws. Which error, because it setteth the laws above the sovereign, 
 setteth also a judge above him, and a power to punish him ; which 
 is to make a new sovereign ; and again for the same reason a third, 
 to punish the second ; and so continually without end, to the con- 
 fusion, and dissolution of the commonwealth." — (Part II. ch. 29.) 
 ** The sovereign of a commonwealth, be it an assembly, or one man, 
 is not subject to the civil laws. For having power to make and re- 
 peal laws, he may, when he pleaseth, free himself from that subjec- 
 tion, by repealing those laws that trouble him, and of making of 
 new ; and consequently he was free before. For he is free, that can 
 be free when he will : nor is it possible for any person to be bound 
 to himself ; because he that can bind, can release ; and therefore he 
 that is bound to himself only, is not bound." — (Part 11. ch. 26.) 
 Compare also some good remarks of Blackstone on this subject, 
 Commentaries, vol. i. p. 101 — 2. 
 
 B 2 
 
4 PRELIMINARY INQUIRY. 
 
 or body in a state is law ; but he afterwards (in- 
 correctly) retracts this opinion, and says that the 
 legislative acts of a tyrant, the legislative acts of 
 an oligarchy to which the bulk of the people do not 
 consent, and the legislative acts of a democracy to 
 which the rich do not consent, are not laws.* 
 
 On the other hand, the power of a sovereign 
 government has not a greater extent than that which 
 has been stated. 
 
 For example, it cannot suddenly augment the 
 quantity of food in a country, except by importation 
 from abroad, and, consequently, it cannot change 
 scarcity into plenty, if the foreign supplies should 
 be scanty and dear. 
 
 The power of a sovereign government is further 
 limited to that portion of the force of the commu- 
 nity which it is able practically to command. The 
 question whether it is physically possible for a law 
 to be executed, is different from the question whether 
 a law is likely to be executed. Thus it would be 
 physically impossible to execute a law for changing 
 the course of the seasons, or the height of the tides. 
 On the other hand, there are many laws which 
 might be carried into effect with the universal con- 
 sent of the community, but which a sovereign go- 
 vernment, from the unwillingness of a large portion 
 of the community to submit to them, would be 
 
 * Xen. Mem. Socrat. i. 2. $ 41—6. Compare Le Mercier de la 
 Riviere, Ordre Naturel et Essentiel des Societes politiques, ch. 15. 
 (torn. i. p. 186) : " Le poiivoir legislatif n'est an fond que le pouvoir 
 d'instituer de bonnes loix positives." 
 
OV' THE 
 PRELIMINARY INQUIRmTJ V J Y ^ B*S ^ * ^ 
 
 unable to enforce. Such are, for e5^5S^^Ffi^^i>^ 
 severe penal laws, vexatious revenue laws, usury 
 laws, laws prohibiting the export of coin, laws regu- 
 lating prices and wages.* 
 
 It is also to be observed, that there are acts pos- 
 sible to some sovereign governments which are not 
 possible to others. Since the power of a sovereign 
 government is limited to the united forces of the 
 persons forming the community which it governs, 
 it is natural that many things should be within the 
 power of the government of a large and rich nation 
 which are not within the power of the government 
 of a small and poor nation. Again, the progress of 
 civilization increases the power of governments, as 
 well as of persons, or bodies of persons, in a private 
 capacity. Thus many a small and feeble state could 
 now produce results which would have surpassed 
 the powers of the most mighty nations of anti- 
 quity. 
 
 Blackstone, in describing the powers of the Bri- 
 tish Parliament (which is the sovereign government 
 of the British Empire), says, that " it can do every 
 
 * " Dans Tordre politique, c'est toujours la partie la plus foible 
 qui gouverne la~partie la plus forte ; et la force de celui qui com- 
 mande, ne consiste reellement que dans les forces reunies de ceux 
 qui lui obeissent." Le Mercier de la Riviere, ubi sup. ch. 6. (torn, 
 i. p. 69.) " La. force commune ou sociale, qu'on nomme force pub- 
 lique, ne se forme que par une reunion de plusieurs forces physiques 
 ce qui suppose toujours et necessairement une reunion de volontes, 
 qui ne pent avoir lieu qu'apres la reunion des opinions, quelles 
 qu'elles soient. Ce seroit done renverser I'ordre, et prendre I'efFet 
 pour la cause, q\ie de vouloir donner a la force publique, Ic pouvoir 
 de dominer les opinions, tandis que c'est de la reunion des opinions 
 qu'ellc tient son existence et son pouvoir." lb. c. 8. (torn. i. p. 94.) 
 
b PRELIMINARY INQUIRY. 
 
 thing that is not naturally impossible ; and, there- 
 fore, some have not scrupled to call its power, by a 
 figure rather too bold, the omnipotence of parlia- 
 ment."^ The phrase " omnipotence of parliament " 
 (as Mr. Christian has remarked on the passage in 
 Blackstone) " signifies nothing more than the su- 
 preme power of the sovereign state, or a power of 
 action uncontrolled by any superior." The remarks 
 which we have made above, likewise, indicate the 
 limitations with which the statement must be taken, 
 that parliament can do every thing which is not 
 naturally impossible. 
 
 which th "^^^ ^^^^ question to be considered is, how may 
 
 powers of a the Dowcrs Dosscsscd bv a sovereign Q'overnment be 
 
 sovereign *■ ^ '' o o 
 
 government CXerciscd. 
 may be ex- 
 
 ercised. Tlic inodcs by which a sovereign government 
 
 may exercise its powers can be conveniently re- 
 duced to the four following heads : — First; it may 
 exercise its powers in the way of legislation. Se- 
 condly ; it may exercise its powers by special com- 
 mands or acts intended to carry into effect a pre- 
 existing law. Thirdly; it may exercise its powers 
 by special commands or acts not intended to carry 
 into effect a pre-existing law. Fourthly; it may 
 exercise its powers by inquiring into some fact or 
 facts, for the purpose of guiding its conduct in some 
 measure or proceeding falling under one of the three 
 heads just enumerated. These four powers may be re- 
 
 * Commentaries, vol. i. p. 161. 
 

 PRELIMINARY INQUIRY. 7 
 
 spectively styled the legislative, executive, arbitrary, 
 and inquisitorial powers of a sovereign government. 
 
 We will now proceed to consider the nature of 
 each of these powers. 
 
 First. A sovereio^n e-overnment mav issue a ^e- Mature ^f 
 
 , JO the powers 
 
 neral command ; that is, make a law, properly so of ^ sove. 
 called ; or it may declare a general intention of vemment. 
 
 . . « . . !• Legisla- 
 
 doing certain acts, or oi pursuing a certain course of tive power 
 conduct ; which declaration is also commonly called 
 a law. For example, it may issue a general com- 
 mand to its subjects not to kill, or take the property 
 of others, excepting under certain circumstances; or 's- 
 
 it may declare a general intention of performing 
 certain services for the public, such as the convey- 
 ance of passengers, goods, and letters, and the main- 
 tenance of roads, bridges, lighthouses, harbours, 
 hospitals, schools ; or of supplying the public with 
 certain commodities, such as tobacco, gunpowder, 
 or salt. 
 
 A sovereign government may issue a general 
 command, either independently of any other general ^ f . 
 command, or for the purpose of carrying into effect '^\ 
 another general command which it had previously - 
 
 issued ; that is to say, a law may be made either 
 for its own sake, or for the purpose of carrying 
 another law into effect. 
 
 Laws made for the purpose of carrying other laws 
 into effect are often made by subordinate legisla- 
 tures, as will be shown presently. 
 
 Secondly. A sovereign government may issue a Hve^power 
 special command, or it lyay do an act directly rdg^'go!' 
 
 vemment. 
 
8 PRELIMINARY INQUIRY. 
 
 affecting some person or persons, and not involving 
 a general command. 
 
 If the special command or act be founded on, and 
 be in pursuance of, a general command previously 
 issued, or a general declaration of intention pre- 
 viously made, by such government, the command 
 or act is styled executive. 
 
 Thus, if a sovereign government has issued a 
 general command, or law, prohibiting its subjects 
 from killing or taking the property of others, except 
 under certain circumstances, and denouncing a cer- 
 tain punishment for the contravention of such law ; 
 then, if some person should contravene any of its 
 provisions, the government proceeds to issue certain 
 special commands, or to do certain acts, for the 
 purpose of inflicting upon him the punishment in 
 which the sanction of the law consists. When a 
 crime has been committed, the steps which the go- 
 vernment takes for detecting, apprehending, detain- 
 ing, trying, convicting, sentencing, and punishing 
 the supposed offender by means of policemen, public 
 prosecutors, judges, and jailers, or other ministers 
 of criminal justice, consist in a series of special 
 commands or acts in execution of existing laws. In 
 like manner, when a sovereign government has 
 declared a general intention of pursuing a certain 
 course of conduct, it proceeds to issue the special 
 commands, or to do the acts, which may be necessary 
 or expedient for accomplishing its purpose. For 
 example, if a government has declared its intention 
 of making war against another independent state. 
 
PRELIMINARY INQUIRY. 9 
 
 of carrying passengers, goods, or letters, of trading 
 in a certain commodity, of issuing money, or of re- 
 lieving all destitute persons found in its dominions, 
 it employs persons, makes purchases of goods, and 
 enters into the other specific arrangements which 
 are requisite in order to enable it to carry these 
 several intentions into effect. 
 
 In every case in which a sovereign government 
 issues a general command or law, or makes a ge- 
 neral declaration of intention, it supposes that such 
 general command or declaration will be carried into 
 execution by special commands or acts. No general 
 command or law of a sovereign government would 
 be obeyed, unless the persons subject to it thought 
 that the government was prepared, in case any 
 person should disobey it, to inflict upon him the 
 pain in which its sanction consists, and unless they 
 saw its sanction actually inflicted upon the persons 
 who disobey it. Again, in every case in which a 
 sovereign government makes a general declaration 
 of intention, such declaration would be nugatory, 
 unless the government adopted the means requisite 
 for carrying its intention into eflect. Consequently, 
 an act of legislation by a sovereign government 
 implies the necessity of future executive acts ; and 
 every executive act pre-supposes a prior legislative 
 act which is carried into execution. Unless a so- 
 vereign government were prepared to carry its 
 general commands or laws, and its general declara- 
 tions of intention, into eflect, by means of special 
 commands or acts, its general commands or declara- 
 
10 PRELIMINARY INQUIRY. 
 
 tions would be nugatory. Its general commands 
 would lose their imperative character, and would 
 become mere recommendations or rules of positive 
 morality, having for their sanction as much of the 
 public opinion as the government could enlist on its 
 side. Its general declarations of intention would 
 become mere voluntary promises, or pollicitations, 
 Avhich it would take no steps to perform. On 
 the other hand, an executive act implies the ex- 
 istence of a prior general command or general de- 
 claration of intention; in other words, of a prior 
 legislative act, which is to be carried into execution. 
 It follows, therefore, that the legislative and execu- 
 tive acts of a sovereign government mutually imply 
 each other. 
 
 The reasons which render it expedient for a sove- 
 reign government to issue general commands, or laws, 
 will be stated lower down. The executive officers 
 of a sovereign government issue special commands 
 in order to avoid the necessity of acting mthout a 
 previous command ; that is, the necessity of apply- 
 ing force. For example, a tax-gatherer orders a 
 man to pay a certain sum which he owes to the 
 government as a tax ; a policeman orders a suspected 
 criminal to walk to gaol ; in both these cases a 
 special command is first issued in order to avoid 
 the necessity of compelling the payment or impri- 
 sonment by force. In like manner, a sovereign 
 government may perform certain acts, not involving 
 the use of force, in order to avoid the necessity of 
 using force. For example, a government desirous 
 
PRELIMINARY INQUIRY. 11 
 
 of obtaining men or supplies for an army or navy, 
 may pay a bounty to recruits, or may purchase 
 supplies at the market price, instead of levying men 
 by impressment, or seizing and taking goods by 
 force. 
 
 Executive commands or acts may, in general, be Executive 
 
 r» • 7 • • 7 1 7 ♦ • powers di- 
 
 divided into the two classes oi judicial and adminis- videdinto 
 
 judicial 
 tratwe, and admi- 
 
 A judicial proceeding is a declaration by a com- powers. 
 petent authority, after preliminary complaint and 
 inquiry, that a person has or has not brought him- 
 self within the terms of a certain penal enactment, 
 or that he has or has not a certain legal right or 
 obhgation which another disputes with him. 
 
 An administrative proceeding is for the purpose 
 of carrying a law into effect, where there is no 
 question about the legal culpability, or dispute • 
 
 about a legal right or obligation of a person. The 
 distribution of titles or rewards, the collection of the 
 taxes, the purchase of articles for the army or navy, 
 the legal relief of a destitute person, the conveyance 
 and delivery of letters through the public post- 
 office, the apprehension and prosecution of a person 
 accused of a crime, the execution or imprisonment 
 of a convict, the making and issuing of money, the 
 maintenance of places of education, the keeping of 
 a public registry of lands, deeds and wills, births, 
 deaths, and marriages, are instances of administra- 
 tive acts. 
 
 In an administrative proceeding the government 
 functionary acts or may act spontaneously; in a 
 
12 PRELIMINARY INQUIRY. 
 
 judicial proceeding he does not act until he is set in 
 motion by an accusation or plaint addressed to him. 
 Thus the power of a visitor of a college in an Eng- 
 lish university, or of a charitable foundation, which 
 may be exercised at his own pleasure, and without 
 any complaint being preferred to him, is to this ex- 
 tent administrative and not judicial. 
 
 Moreover, in order to found a judicial proceeding, 
 it is necessary, not only that an accusation or plaint 
 should be addressed to the judge, but also that the 
 party who is accused or complained of should have 
 an opportunity of defending himself against such 
 accusation or plaint ; whereas, an administrative 
 proceeding may take place without the necessity of 
 allowing any such opportunity of explanation to the 
 persons whom it may affect. 
 
 The only case in which a judicial proceeding is 
 dispensed from these preliminary conditions is 
 where an offence is committed in the presence and 
 within the sight of a judge. ^ Under these circum- 
 stances, the usual requisites of an accusation and 
 an opportunity of defence are sometimes dispensed 
 with, and the judge acts at once with an admi- 
 nistrative authority. 
 
 If no crimes were committed, and if there were 
 no disputes about rights and obligations, there would 
 be no need of judicial acts ; the functions of the 
 judge would never be called into action. But the 
 machine of civil government would stop, if the 
 administrative functionaries did not act ; if, for ex- 
 * Sec Blackstone's Commentaries, vol. iv. p. 286. 
 
PRELIMINARY INQUIRY. 13 
 
 ample, the taxes were not collected. It is, therefore, 
 necessary that an administrative functionary should 
 be able to initiate his interferences, and not have to 
 wait, like the judicial functionary, until he should 
 be set in motion by one of the public. 
 
 Hence, the term administrative may be properly 
 confined, in accordance with the ordinary usage, to 
 executive acts not judicial. In judicature proper, 
 there is no administration, no management, as there 
 is in finance, public works, government lands, relief 
 of the poor, keeping of schools, carriage of letters, 
 military and naval organization. A judge hears 
 and determines, and orders his decision to be carried 
 into effect. He executes the law, but administers 
 nothing;.* 
 
 * The meaning of the terms executive and administrative, which 
 is adopted in the text, appears to be that most consistent with the 
 etymology of the words, and with existing usage. 
 
 Executive is properly a generic word, including all the different 
 modes of giving effect to a law. To execute a law is to follow out a 
 general rule into its special consequences. The term executive is 
 used in a generic sense by Locke, Montesquieu, and others. So, 
 in the English law, an executor is " he to whom another man com- 
 mits by will the execution of his last will and testament." — Black- 
 stone Com. vol. ii. p. 503, which is not the execution of a judicial 
 sentence. 
 
 On the other hand, administration seems to imply active manage- 
 ment, or stewardship ; like the German verwaltung ; which is in- 
 consistent with the passive character of a judicial functionary, who 
 does not act until he is set in motion from without. Accordingly, 
 in the English law, an administrator is the distributor of the goods 
 of an intestate under the ordinary. The limited meaning assigned 
 in the text to the term administrative, agrees with its use in France, 
 and the other continental states. See Degerando, Institutes de 
 Droit administratif Fran9ais, tom. i. p. 17, 18. 
 
 But, as might have been anticipated, there has been much incon- 
 sistency in the use of these two terms, 
 
 1. The term executive is sometimes used in a specific sense, and 
 is opposed to judicial, instead of comprehending it. As so used. 
 
14 PRELIMINARY INQUIRY. 
 
 It should, however, be observed that fLmction-^ 
 aries, whose business is principally judicial, some- 
 times perform administrative acts, and that func- 
 tionaries, whose business is principally administrative, 
 sometimes perform judicial acts. Thus the admi- 
 nistration of the property of minors, lunatics, 
 bankrupts, and intestates, and the appointment of 
 new trustees, though performed in England hj 
 various courts, are not judicial functions. Indeed, 
 all acts of voluntary, as opposed to contentious, 
 jurisdiction are properly administrative. On the 
 other hand, judicial decisions are sometimes made 
 
 meaning nearly agrees with that of administrative^ as defined in the 
 text. In the Enghsh law, the terms " execution of a judgment," and 
 " capital execution,'* appear to be used in this limited acceptation. 
 Ducange in executor says ; " In libris jurisconsultorum, dicun- 
 tur executores qui judicum mandata et decreta exequuntur." In 
 the constitution of the United States, the executive power is dis- 
 tinguished from the legislative power on the one hand, and from 
 the judicial power on the other : see Art. 1, 2, 3. The word ' voll- 
 ziehend' is used with this meaning by Hugo : " Der Kaiser hat (he 
 says) bald allein, bald mit dem Senate, die gesetzgebende, die 
 vollziehende, und die richterliche Gewalt, auch in Bestrafung der 
 Verbrechen." Geschichte des Romischen Rechts, vol. i. p. 952. 
 
 2. The term administrative is sometimes used in a generic sense, 
 and includes judicial, instead of being opposed to it. Thus wc 
 speak of the " administration of justice," and generally of the " ad- 
 ministration of a government." For example, in the well known 
 verses of Pope ; 
 
 " For forms of government, let fools contest ; 
 Whate'er is best administered is best." 
 
 So the heads of the executive government are often called " the ad- 
 ministration," and " ministers of state ;" but " ministers of state" 
 usually fill administrative offices, according to the definition given 
 in the text. The same remark likewise applies to the term 
 *' ministers of religion." 
 
 It may be added that, in the English law, a "ministerial act" 
 signifies an act which a public officer is bound to perform, and as 
 to the performance of which he has no discretion. 
 
PRELIMINARY INQUIR^^ ^ ^ ^' E i|S J T y1 
 
 by public officers, whose ordinary ^m^iEi^'3^^;^ 
 administrative ; for example, the decisions imposing 
 fines and forfeitures made by the revenue boards of 
 this country. 
 
 Some remarks will be made lower down on the 
 exercise of legislative and executive powers by the 
 same functionary. 
 
 It may be here observed, that the confusion 
 which prevails concerning the supposed difference 
 between a limited monarchy and a republic, is in 
 some measure connected with the distinction between 
 legislative and executive powers. It seems to be 
 thought that if a king is a merely executive 
 officer, the government is republican ; but that if 
 a king has a share in the legislative sovereignty, 
 the government is monarchical.* This notion is in 
 truth erroneous ; since a king who has only a share 
 in the legislative sovereignty is properly not more a 
 monarch than a king who has no such share ; but 
 it is founded on a perception of the fact, that the 
 legislative are more important than the executive 
 functions of government. 
 
 Thirdly. A sovereign government may issue a 3. Arbitrary 
 
 powers of a 
 * The following remarks are made by M. Thiers, on the discus- sovereign 
 sions respecting the power of the king in the constitution proposed ment"* 
 for France at the beginning of the Revolution of 1789 : 
 
 " La monarchic reelle, telle qu'elle existe meme dans les etats re- 
 putes libres, est la domination d'un seul, a laquelle on met des 
 bornes au moyen du concours national. La volonte du prince y fait 
 reellement presque tout, et celle de la nation est reduite a empecher 
 le ma], soit en disputant sur I'impot, soit en concourant pour un 
 tiers a la loi. Mais des Tinstant que la nation^ pent ordonner tout ce 
 qu'elle veut, sans que le roi puisse s'y opposer par le veto, le roi 
 n'est plus qu'un magistrat. C'est alors la republique avec un seul 
 consul aulieu de plusieurs." Hist, de la Rev. Fran9aise, torn. i. p. 
 153, ed. 4. Compare Penny Cyclopaedia in Monarcihy. 
 
16 PRELIMINARY INQUIRY. 
 
 special command, or do an act, not founded on, or 
 in pursuance of, a general command previously 
 issued, or a general declaration of intention pre- 
 viously made, by such government. Such a special 
 command or act may be styled arbitrary, inasmuch 
 as it proceeds from the arUtrium of the sovereign 
 person or body.* 
 
 * When a person voluntarily regulates his conduct according to a 
 rule or maxim which he has previously announced his intention of 
 conforming to, he is thought to deprive himself of arbitrium, free 
 will, discretion, or willkuhr, in the individual act. Hence when a 
 government acts in an individual case, not in conformity with a 
 pre-existing law or rule of conduct, laid down by itself, its act is 
 said to be arbitrary Agreeably with the notion that a voluntary 
 submission to a general maxim is equivalent to external compulsion, 
 it is thought that a sovereign government is subject to positive laws : 
 see above, p. 2, and below, p. 32. 
 
 In the Roman law, an actio arbitraria was an action depending 
 on the arbitrium of the judge, " Praeterea quasdam actiones arbi- 
 trarias, id est, ex arbitrio judicis pendentes, appellamus ; in quibus, 
 nisi arbitrio judicis is, cum quo agitur, actori satisfaciat (veluti rem 
 restituat vel exhibeat vel solvat, vel ex noxali causa servum dedat) 
 condemnare debeat."— Inst. IV. 6. $ 31. 
 
 The term arbitrary is often used improperly, as synonymous with 
 despotic ; because despotic governments have been characterized by 
 arbitrary acts properly so called (see below, p. 28.) It is thus 
 twice used in two consecutive pages by Adam Smith. 
 
 ** The law, so far as it gives some weak protection to the slave 
 against the violence of his master, is likely to be better executed in 
 a colony where the government is in a great measure arbitrary, 
 than in one where it is altogether /ree." (Wealth of Nations, b. 4. 
 c. 7. vol. ii. p. 395.) 
 
 " That the condition of a slave is better under an arbitrary than 
 a/ree government is, I believe, supported by the history of all ages 
 and nations." — (Ibid. p. 396.) 
 
 In these two sentences, arbitrary is opposed io free, in the sense 
 of despotic as opposed to popular. Bat in the same passage, he 
 says : " In a country where the government is in a great measure 
 arbitrary, where it is usual for the magistrate to intermeddle even 
 in the management of the private property of individuals, and to 
 send them perhaps a lettre de cachet, if they do not manage it ac- 
 cording to his liking, it is much easier, &c." 
 Here arbitrary is used in its proper sense. 
 
PRELIMINARY INQUIRY. 17 
 
 For example, a command issued by a sovereign 
 government, prohibiting the future exportation of all 
 corn, or all implements of war, would be general, 
 and, therefore, a law. But a command issued by a 
 sovereign government, prohibiting the exportation 
 of all corn, or all implements of war, then shipped 
 and in port, would be special and arbitrary, and 
 therefore, not a law.* Again, a special command or 
 act inflicting a punishment upon a single person, or 
 subjecting him to some legal disqualification, would, 
 if it were in pursuance of an existing law, be 
 executive, but, if it were not in pursuance of an 
 existing law, it would be arbitrary. 
 
 Arbitrary commands, when issued by the sovereign 
 body of a republic in a legislative form, were known 
 to the Greeks by the name of psephisrnata.lf The 
 use of psephismata was frequent in several of the 
 Greek democracies in the age following the Pelo- 
 
 Locke, in his Essay on Civil Government, calls arbitrary power 
 by the name prerogative. 
 
 "Tlie power (he says) to act according to discretion for the public 
 good, without the prescription of the law, and sometimes even 
 against it, is that which is called prerogative." — (Part II. § IGO.) 
 Again : " Prerogative can be nothing but the people's permitting 
 their rulers to do several things, of their own free choice, where the 
 law was silent, and sometimes too against the direct letter of the 
 law, for the public good ; and their acquiescing in it when so done." 
 ~(Ib. § 1(54.) And further on, he adds: " Prerogative is nothing 
 but the power of doing public good without a rule."— (lb. $ 1C5.) 
 
 Prcsrogativa, in the Roman law, appears to have signified any 
 legal advantage or privilege. (Dirksen, Manuale Lat. font. J.C. R. 
 in V.) In the English law, the term is only applied to the powers 
 which can be legally exercised by the crown ; as, e.g. the power of 
 choosing the ministers of state, or of declaring peace and war. 
 * See Blackstone, Comm. vol. i. p. 44. 
 
 t See Schoemann de Comitiis Atheniensium, cap. 7. Hermann's 
 Greek Antiquities, ^ 67, note 8. 
 
 C 
 
18 PRELIMINARY INQUIRY. 
 
 ponnesian war, and the administration of a govern- 
 ment by means of them was considered characteristic 
 of a democracy. In Athens, the frequent recourse 
 to arbitrary psephismata was partly owing to the 
 restraints imposed by the forms of the constitution 
 upon new legislation ; restraints which were in- 
 tended to check the popular tendency to innovation, 
 and to assist the aristocratic party or class in main- 
 taining the existing laws unchanged.^ The arbitrary 
 commands of the sovereign government in a mo- 
 narchy or aristocracy appear to have had no peculiar 
 name in Greece ;t although they were, doubtless, 
 at least as proportionally frequent as the arbitrary 
 commands of the sovereign assembly in a democracy. 
 Among the Romans, an arbitrary command 
 issued by the sovereign government in a legislative 
 form was styled a privilegiicm.^ The name privi- 
 * Schoemann, ibid. p. 159. 250,— Compare Aristot. Rhet. I. 1. 
 
 « fAt¥ rod vojjjohrov x^ltrti el) xura fAi^oi olVi ?r£^i tuv TK^oy-Tav, akka Ti^i fJuiXXovrav 
 Tt xa.) xa6okov i<rrivo ' Sj i»xXt]a-taa'T»is xa.\ ^iKUffrhi ^^*i 9n^) -rBc^ovrcov xa) afM^Krfjiiviav 
 
 x^ivouffn. Aristotle here classes the ecclesiast with the dicast, and 
 opposes them jointly to the nomothetes, or legislator ; because the 
 questions decided by the popular assemblies were commonly of the 
 nature of privilegia ; whereas laws were generally referred to a 
 body of nomothetce. The thirty men of Athens, and the decemvirs 
 of Rome were properly legislative commissions of this sort. 
 
 f Aristotle, however, in a passage of the Politics, which will be 
 cited presently (see p. 25), appears to call the arbitrary commands 
 
 of monarchs i-^irdypjara. 
 
 X Tunc leges praeclarissimae de xii tabulis tralatse duse ; quarum 
 altera privilegia tollit .... Et nondum natis seditiosis tribunis 
 plebis, ne cogitatis quidem, admirandum, tantum majores in poste- 
 rum providisse : in privos homines leges ferri noluerunt : id est 
 enim privilegium : quo quid est injustius? cum legis haec vis sit, 
 scitum est jussum in omnes. Cicero de Leg. III. 19. Compare 
 Ulpian, Dig. 1. 1. 1. 3. § 8. Jura non in singulas personas, sed genera- 
 liter constituuntur. A similar distinction, with respect to the con- 
 stitutions of- the Roman Emperor, is made in the Institutes. Quod- 
 
PRELIMINARY INQUIRY. 19 
 
 Icgium is ancient in the Roman law, since it occurred 
 in the twelve tables, which contained a clause con- 
 demning the use of them."^ A privilegium properly 
 meant an arbitrary measure passed by the sovereign 
 assembly of the people, which affected a single 
 person. An arbitrary command is usually directed 
 against one or more persons by name, and does not 
 include a number of persons determined by a 
 general description. A command which is confined 
 to a single person is not, however, necessarily arbi- 
 trary, although it may not be founded on an existing 
 law. For example, a protection to a person against 
 his actual creditors would be arbitrary, but a similar 
 protection against all kis future creditors would be 
 general, and, therefore, a law.f 
 
 A privilegium having originally meant an arbi- 
 
 cunque imperator per epistolam constituit, vel cognoscens decrevit, 
 vel edicto praecepit, legem esse constat; (that is, has a legal or 
 binding effect) haec sunt, quae constitutiones appellantur. Plane ex 
 his sunt quaedam personales, quae nee ad exemplum trahuntur, quo- 
 niam non hocprinceps vult. Nam quod alicui obmeritum indulsit, 
 vel si cui poenam irrogavit, vel si cui sine exemplo subvenit, perso- 
 nam non transgreditur (viz. privilegia). Aliae autem, cum gene- 
 rales sint, omnes proculdubio tenent, (viz. laws). 1. 2. § 6. The word 
 privilegium is compounded of privus and lex; i. e. lex in privum 
 hominem : it is to be observed that lex meant not only a general 
 rule, but also a decision about an individual case : see Hugo Ge- 
 schichte des R. Rechts, vol. i. p. 327. (ed. xi.) 
 
 * See the passage of Cicero cited in the last note ; and compare 
 the remarks of Mr. Austin on the effect of this prohibition, in his 
 Province of Jurisprudence, p. 270. 
 
 t The following seems to be an example of a law being a 
 genei'al rule to be observed by a single person. 
 
 " If it please the king, let there go a royal commandment from 
 him, and let it be written among the laws of the Persians and the 
 Medes, that it be not altered. That Vashti come no more before 
 king Ahasucrus." — Esther i. 10. 
 
 (• 'J. 
 
QO PRELIMINARY INQUIRY. 
 
 trary command, or a peculiar law, affecting a single 
 person, has subsequently come to mean a peculiar 
 law affecting a class of persons ; and thus we speak 
 of the privileges of the clergy, the nobles, the army, 
 and members of the supreme legislature. In Eng- 
 land, the powers which either House of Parliament 
 can exercise by itself and of its own authority, are 
 called the privileges of such House of Parliament. 
 Examples of arbitrary commands in the English 
 government are furnished by bills of pains and 
 penalties, bills of attainder, divorce bills, and private 
 estate bills, the power of pardoning convicts, or of 
 commuting their sentences, which is exercised by 
 the crown, and the general power of dispensing 
 with the laws in individual cases, which the crown 
 formerly claimed. The powers of dispensing with 
 the rule respecting the age of marriage, and with 
 certain prohibitions respecting marriages between 
 kindred, which are reserved to the king by the 
 French civil code, are also arbitrary. (Art. 145, 164.) 
 The lettres de cachet xmdei' the old French monarchy 
 likewise afford a well known example of an exercise 
 of arbitrary power. Indeed, arbitrary interferences 
 with the domestic affairs of private persons, espe- 
 cially for the purpose of maintaining (what was 
 called) the honour of families, were practised to a 
 great extent by the governments of the continental 
 states up to the period of the French revolution.* 
 
 ♦ The following passage from Madame de Stael's work on the 
 French Revolution (though it is incorrect in confounding de- 
 spotic power with an arbitrary exercise of it, and also in denying to 
 the French coutumes the appellation of law), yet contains an accu- 
 
PRELIMINARY INQUIRY. 21 
 
 The popular notion of equity, as administered by ^'^'jj^'i" 
 a court of justice, likewise supposes an arbitrary understood, 
 
 '^ ^ ^ "^ IS an ar- 
 
 power, or, in other words, a power of deciding bitraryex- 
 
 crCl36 01 
 
 without regard to existing laws or rules of law. power. 
 
 The original idea of equity makes it a mode of 
 interpreting written laws : viz., a departure from 
 the literal meaning of the words of a law, for the 
 purpose of giving effect to its supposed general 
 scope or purpose. 
 
 "Equity" (says Aristotle) "is justice not ac- i 
 cording to the law, but in correction of the law. { 
 The cause of this is, that a law is general, and there 
 are some things which it is impossible to express in 
 general terms. Wherever, therefore, it is necessary 
 to use general terms, and it is impossible to do so 
 with accuracy, the legislator in drawing a law makes 
 use of terms which provide for the ordinary cases, 
 
 rate description of the extent to which arbitrary departures from 
 the law occurred under the old French monarchy. 
 
 " La France a 6te gouvernee par des coutumes, souvent par des 
 caprices, et jamais par des lois .... Dira-t-on qu'il y avoit des pays 
 d'etats qui maintenoient leurs anciens traites ? lis pouvoient s*en 
 servir comme argumens: mais Tautorit^ du roi coupoit court k 
 toutes les difRcultes, et les formes encore subsistantes n'etoient, pour 
 ainsi dire, que des etiquettes inaintenues ou supprimees selon le bon 
 plaisir des ministres. Etoit-ce les nobles quiavoient des privileges, 
 excepte celui de payer moins d^impots ? Encore un roi despote 
 pouvoit il Tabolir. II n'existoit pas un droit politique quelconque 
 dont la noblesse put ou dut se vanter : car se faisant gloire de recon- 
 noitre I'autorite du roi comme sans bornes, elle ne devoit se plain- 
 dre ni des commissions extraordinaires qui ont condamne a mort les 
 plus grands seigneurs de France, ni des prisons, ni des exils qu'ils 
 ont subis." — Considerations sur la Revolution Fran9aise, partie i. 
 ch. xi. See also the account of the government of Frederick 
 William of Prussia, in Schlosscr's Geschichtc des achtzehnten Jahr- 
 hunderts, vol. i. p. 231. sqq. 
 
22 PRELIMINARY INQUIRY. 
 
 knowing that some extraordinary cases are left un- 
 provided for. And in so doing he acts rightly ; for 
 the defect is not in the law, or in the law-maker, 
 but in the nature of the subject. Consequently, 
 whenever a case arises which is included in the 
 general terms of the law, although not falling 
 within its scope, the defect which arises from the 
 generality of the terms of the law ought to be re- 
 medied in a manner which the legislator himself 
 would approve, if he were present, and which he 
 would have provided for in the law if he had fore- 
 seen the case. Equity, therefore, is the correction 
 of the law where it is defective through the gene- 
 rality of its language. Accordingly, there are some 
 things to which a law is inapplicable, and in which 
 it is necessary to resort to a psephisma ; for that 
 which is indeterminate cannot be governed by a 
 general rule."* 
 
 All sovereign governments have found it neces- 
 sary to leave certain matters to the arhitrium honi 
 viri, or the discretion of the judge.f On account 
 of the defects of every system of jurisprudence, 
 (some arising from the imperfection of language, 
 and others from want of skill or attention in the 
 law-maker,) many of the decisions of courts of 
 
 * Eth. Nic. V. 14. See this passage expanded in Grotius de 
 iEqiiitate, Indulgentia, et Facilitate, cap. i. 
 
 t Such questions, for example, as questions of " due diligence/* 
 *' reasonable notice,'' and the like, in the English law, where the 
 amount of diligence and the length of the notice is left to the dis- 
 cretion of the tribunal. These are questions (in the words of Gro- 
 tius), " quas lex non exacte definit, sed arbitrio boni viri pcrmittit." 
 — Ibid. cap. i. ^ % 
 
PRELIMINARY INQUIRY, 23 
 
 justice are arbitrary in the individual case, and have, 
 as respects that case, an ex post facto operation ; 
 although the decision when once made may establish 
 a rule for future cases. 
 
 The common notions respecting equity go still 
 further, and seem to suppose an administration of 
 justice, not according to pre-established rules of 
 law, but according to certain obscure sentiments of 
 moral justice, awakened in the mind of the judge 
 by the circumstances of the individual case, and by 
 the general character and conduct of the litigant 
 parties, or of the accused person.* 
 
 * This seems to be the idea o^ dementia, as understood by Seneca. 
 ' dementia (he says) liberum arbitrium habet ; non sub formula, 
 sed ex aequo et bono judicat.' De Clem. ii. cap. ult. A vivid exem- 
 plification of the vulgar notions respecting equity may be found in 
 Hutton's account of the cases decided in the Birmingham Court of 
 Requests, which has been lately reprinted in a cheap form by Mr* 
 Chambers of Edinburgh. One of the commonest conceptions of 
 equity seems to be» that the decision of the court ought to be 
 guided, not by a rule of law applicable to the individual case, but by 
 the general character* and conduct of the litigant parties, or the ac- 
 cused person ; and consequently that whenever an honest man and 
 a rogue are parties in a suit, the court ought to decide in favour of 
 the honest man. The following may serve as examples of this mode 
 of viewing equity. 
 
 If a man who has seduced a woman by a promise of marriage, 
 which he has not fulfilled, is sued by her for money which he does 
 not legally owe her, she is entitled equitably to recover it. 
 
 If a man is accused of having committed a certain crime, and the 
 evidence at the trial does not support the accusation, the man ought 
 equitably to be convicted, because the court know (or suspect) that 
 he committed some other crime. 
 
 If an incumbent does not reside in his parish, and he is assessed 
 too high for his tithes, the assessment ought not to be reduced on 
 appeal, because he is non-resident. 
 
 The rule of the English Courts of Equity aa to a plaintiff coming 
 into court " with clean hands," seems to have some aflSnity with 
 the notion of equity just adverted to. It is however scarcely neces- 
 
24 PRELIMINARY INQUIRY. 
 
 d-'^ovem^ Every government, whether monarchical, aris- 
 brcoi>^^ tocratical, or democratical, may be conducted arbi- 
 bitrlrfr"^ trarily, and not in accordance with general rules. 
 There is not, and cannot be, anything in the form 
 of any government, which will afford its subjects a 
 legal security against an improper arbitrary exercise 
 of the sovereign power. This security is to be 
 found only in the influence of public opinion , and 
 the other moral restraints which create the main 
 differences in the goodness of supreme governments. 
 The distinction between a government administered 
 according to law, and a government not administered 
 according to law, was familiar to the ancient politi- 
 cians, and is pointed out by them in respect to each 
 of the three forms of government. Aristotle re- 
 spectively divides aristocracies and democracies 
 into two classes according to the principle just 
 stated ; and his description of a democracy not ad- 
 ministered according to law is so explicit that I am 
 tempted to transcribe it here. 
 p" " One species of democracy" (he says) " is where 
 the public ofliices are open to every citizen, and the 
 law is supreme. Another species of democracy is 
 where the public offices are open to every citizen, 
 but where the people and not the law is supreme. 
 The latter state of things occurs when the govern- 
 ment is administered by psephismata, and not 
 according to laws, and it is produced by the in- 
 
 sary for me to say, that the equity of English jurisprudence bears 
 no resemblance to the sorts of equity which have been explained 
 above. 
 
PRELIMINARY INQUIRY. 25 
 
 fluence of the demagogues. In democracies admi- 
 nistered according to law there is no demagogue ; 
 the most distinguished of the citizens presiding in 
 the assembly ; but where the laws are not supreme, 
 demagogues arise. For the people become as it 
 were a compound monarch, each individual being 
 only invested with power as a member of the sove- 
 reign body ; and a people of this sort, as if they 
 were a monarch, seek to exercise monarchical power 
 in order that they may not be governed by the law, 
 and they assume the character of a despot ; where- 
 fore flatterers are in honour with them. A democracy 
 of this sort is analogous to a tyranny (or despotism) 
 among monarchies. Thus the character of the 
 government is the same in both, and both tyrannize 
 over the superior classes, and psephismata are in the 
 democracy what special ordinances are in the 
 despotism.* Moreover, the demagogue in the de- 
 mocracy corresponds to the flatterer (or courtier) of 
 the despot ;t and each of these classes of persons is 
 
 t The passage in the text seems to have suggested the following 
 remarks of Hobbes respecting the comparative danger of arbitrary 
 government in a monarchy and in a republic. *' In monarchy there 
 is this inconvenience ; that any subject, by the power of one man, 
 for the enriching of a favourite or flatterer, may be deprived of all 
 he possesseth ; which I confess is a great and inevitable inconve- 
 nience. But the same may as well happen, where the sovereign 
 power is in an assembly : for their power is the same ; and they 
 are as subject to evil counsel, and to be seduced by orators, as a 
 monarch by flatterers ; and becoming one another's flatterers, serve 
 one another's covetousness and ambition by turns. And whereas 
 the favourites of monarchs are few, and they have none else to ad- 
 vance but their own kindred ; the favourites of an assembly are 
 many, and the kindred much more numerous, than of any monarch. 
 Besides, there is no favourite of a monarch which cannot as well 
 
26 PRELIMINARY INQUIRY. 
 
 the most powerful under their respective govern- 
 ments. It is to be remarked that the demagogues 
 are, by referring everything to the people, the cause 
 of the government being administered by psephis- 
 mata, and not according to laws, since their power 
 is increased by an increase of the power of the 
 people, whose opinions they command. The dema- 
 gogues likewise attack the magistrates, and say that 
 the people ought to decide, and since the people 
 willingly accept the decision, the power of all the 
 magistrates is destroyed. Accordingly, it seems to 
 have been justly said that a democracy of this sort 
 is not entitled to the name of a constitution, for 
 where the laws are not supreme, there is no consti- 
 tution. In order that there should be a constitution, 
 it is necessary that the government should be admi- 
 nistered according to the laws, and that the magis- 
 trates and constituted authorities should decide in 
 the individual cases respecting the application of 
 them. So that if democracy is a constitution, it is 
 evident that this state of things, in which the entire 
 government is administered by psephismata, is not 
 properly a democracy, inasmuch as no psephisma 
 can be general."^ 
 
 In the preceding passage, Aristotle describes the 
 
 succour his friends, as hurt his enemies : but orators, that is to say, 
 favourites of sovereign assemblies, though they have great power 
 to hurt, have little to save. For to accuse requires less eloquence, 
 such is man's nature, than to excuse ; and condemnation, than ab- 
 solution, more resembles justice." — Hobbes' Leviathan, Part 11. 
 chap. xix. 
 * Polit. iv. 4. See note (B.) at the end of the volume. 
 
PRELIMINARY INQUIRYJ^ ^ o>57 ^k 7 
 
 %iIFO-. 
 
 tyranny of the Greeks, or despotism, as coWeBpoiM 
 ing* to the democracy which is administered arbi- 
 trarily; and in another place he distinguishes 
 tyrannies, or despotisms, as being governed according 
 to the mere arhitriwn of the prince, from kingly 
 monarchies which are governed according to law.''^ 
 Other ancient writers likewise speak of the difference 
 between the government of a king and a tyrant (or 
 despot) as consisting in this, that the former governs 
 according to law, and the latter against the law.f 
 Montesquieu's distinction between a monarchy and a 
 despotism is founded upon a similar principle. " A 
 monarch (he says) governs by fixed and established 
 laws; a despot governs according to his will and 
 caprices, without laws and rules."J And again, he 
 says, "In despotic stateB there are no laws, the 
 
 * Polit. iv. 10. 
 
 t Xenophon Mem. Socr. iv. 6 § 12, states that Socrates thought 
 that a ^afftXuot, is administered according to the laws of the state ; 
 whereas a Tv^anU is administered, not according to the laws, but as 
 the ruler wills. A similar distinction between the government of a 
 king and of a tyrant is attributed to Aristippus, the founder of the 
 
 Cyrenaic school of philosophy : 'Ap/Vr/T^rof o Kv^malos ipikoiro<poi i<pv, roo-ovru 
 (iaeiXiiav tia(pifuv rv^ttvvi^os, offov vifjuo; uve/j/ias Kit) IXivSioia ^ovkiiecs, Stob. 
 
 Florilcg. tit. 49. § 18. (vol. ii. p. 345. ed. Gaisford.) BairiXias r^o^o? i 
 vo'fjbc;, Tv^uvvov Ss vof^os r^o%ei, is an antithetical sentence cited from 
 Synesius de Regno, c. 6. by Hermann, Gr. Ant. § 52. n. 6.— On the 
 other hand, Demosthenes, inveighing against Philip's perfidy, repre- 
 sents kings and tyrants as equally hostile to legal government; 
 
 Bua-iXtv; xat ru^avvog el'Tas (he Says) ix^^of iXivh^ia xat tofAot; iydvrios, Orat. 
 
 adv. Philipp. II. § 27, ed. Bekker. In like manner, Isocrates advises 
 Demonicus to obey the laws made by kings, but to consider their 
 arbitrium as more powerful than their laws ; Icrxv^oTarav fxivret vofM» hyov 
 Tflv iKiivuv T^o9fov^ ad Demouic. ^ 37. ed. Bekker. 
 
 X Esprit desLois, ii. 1. Le (gouvernement) monarchiqiie est celui 
 ou un scul gouverne, mais par des lois fixes et stabiles ; au lieu que, 
 dans le despotique, un seul, sans lois et sans regies, entraine tout par 
 sa volonte et par scs caprices. 
 
28 PRELIMINARY INQUIRY. 
 
 judge is his own rule. In monarchical states there 
 IS a law, and where it is precise, the judge follows 
 it ; where it is not, he tries to discover its spirit."''^ 
 Indeed, monarchies strictly so called, and, above all, 
 the Oriental monarchies, have been so characterised 
 by arbitrary rule, (particularly as regards arbitrary 
 arrests and special interferences with the regular 
 administration of justice,) that the class of mo- 
 narchies entitled despotisms has been considered by 
 many writers as mainly distinguished by the arbi- 
 trary nature of the government. f 
 
 * Esprit des Lois, vi. 3. Dans les etats despotiques, 11 n'y a point 
 de lois: le juge estlui-meme sa regie. Dans les etats monarchiques, 
 il y a line loi ; et la ou elle est precise, le juge la suit ; la ou elle ne 
 Test pas, il en cherche I'esprit. 
 
 t For example, in the following passages of Helvetius, " Je dis 
 que notre constitution est monarchique, et non despotique ; que les 
 particuliers nepeuvent, en consequence, etre depouilles depropriete 
 que par la loi, et non par une volonte arbitraire ; que nos princes 
 pretendent au titre de monarque, et non a celui de despote ; qu'ils 
 reconnaissent des lois fondamentales dans le royaume." — Helvetius 
 de I'Esprit, Disc. 3. c. 16. 
 
 "Dans les etats oii la loi seule punit et recompense, ou Ton 
 n'obeit qu'a la loi, I'liomme vertueux, toujours en surete,y contracte 
 une hardiesse et une fermete d'ame qui s'aifoiblit necessairement 
 dans les pays despotiques, ou sa vie, scs biens, et sa liberte dependent 
 du caprice et de la volonte arbitraire d'un seul homme." — Ibid, 
 ch. 19. 
 
 So Gibbon says: "The state, which he (Servius) had inclined 
 towards a democracy, was changed by the last Tarquin into lawless 
 despotisin :'' Decline and Fall, c. 44, ad init. ; in which passage the 
 words " lawless despotism" are not equivalent to " unlawful (or 
 illegal) despotism." Unlawful or illegal would mean contrary to 
 positive law ; whereas lawless means not administered according to 
 laws and rules, or arbitrary ; like the horses of the Sun, when 
 Phaethon attempts to guide them : 
 
 Exspatiantur equi, nulloque inhibente per auras 
 Ignotae regionis eunt ; qua que impetus egit, 
 Hac, sine lege, ruunt. 
 
 Ovid. Met. ii. 202—4. 
 
PRELIMINARY INQUIRY. 29 
 
 The expediency of administerins; a o:overnment Reasons of 
 
 r J ^ & o^ ^ theexpe- 
 
 accordiiiff to j^eneral rules is now recoi^nised in all diencyofa 
 
 . government 
 
 civilised nations; nevertheless, the importance of according 
 adhering to rules is so great, that it may be useful 
 to state the main reasons why legal is preferable to 
 arbitrary government.* 
 
 In the first place, the establishment and announce- 
 ment of general rules by a government for the 
 guidance of its acts, enables its subjects to determine 
 their conduct accordingly, in some of the most 
 important concerns of life. The measures which a 
 man takes in the management or disposition of his 
 property must mainly depend on his expectations as 
 to the future conduct of the government in enforcing 
 contracts, in protecting industry or trade, and in 
 distributing his property among his survivors. So 
 manifestly expedient are general rules on such 
 subjects as these, that the rudest and most arbitrary 
 governments have, by means of courts of justice, 
 administered, with more or less regularity, certain 
 uniform laws with respect to contracts, and the suc- 
 cession of property. It is manifest too that in all 
 societies which are above the lowest degrees of bar- 
 
 • The inexpediency of not governing according to laws is stated 
 by Locke in the following manner : " The legislative or supreme 
 authority cannot [i. e. ought not to] assume to itself a power to rule 
 by extemporary, arbitrary decrees ; but is bound to dispense justice, 
 and to decide the rights of the subject, by promulgated, standing 
 laws, and known, authorized judges." Essay on Civil Government, 
 Part II. ^ 136. "Whatever form the commonwealth is under, the 
 ruling power ought to govern by declared and received laws, and 
 not by extemporary dictates and undetermined resolutions." — Ibid. 
 § 137. See note (C.) at the end of the volume. 
 
30 PRELIMINARY INQUIRY. 
 
 barism, such acts as intentional homicide, and rob- 
 bery, must be frequently punished, and that there- 
 fore any person guilty of one of them must be 
 exposed to a considerable chance of punishment. 
 
 In civilized countries, the utility of a great part 
 of the civil law mainly rests on this ground. How- 
 ever imperfect its rules may be, they are at any rate 
 rules, on the enforcement of which all persons may 
 calculate, and by which they may, therefore, guide 
 their conduct."* 
 
 This reason, it may be observed, equally proves 
 the inexpediency of ex post facto laws, (or laws 
 having a retroactive operation, and which conse- 
 quently nobody could calculate upon,) and of go- 
 vernment by arbitrary decision in individual cases. 
 But an ex post facto measure, though it may be, and 
 often is, special and arbitrary, may also be general, 
 and therefore a law. 
 
 Secondly. The previous announcement of the 
 rules by which a government is guided, tends to 
 subject its spirit and conduct more effectually to 
 the check of public opinion. There is a great dif- 
 ference between deliberate, universal, and avowed, 
 and unpremeditated, particular, and casual rapacity 
 and injustice. Many governments, which habitually 
 
 * %f'V" vofjbois dxiv^rois -x^afx/iyr) t'oXh K^Uffcrwv iffrtv jj xaXu; 'ixovfftv axv^ot;' 
 
 Thucyd. iii. 37, from the speech of Cleon, dissuading the revoca- 
 tion of the decree against the Mytileneans. " Si Ics tribunaux ne 
 doivent pas etre fixes, les jugemens doivent I'etre a un tel point, 
 qu'ils ne soient jamais qii'un texte de la loi. S'ils ctoient une 
 opinion particuliere du juge, on vivroit dans la societe sans savoir 
 pr^cis^ment les engagemens que Ton y contracte." — Montesquieu, 
 Esprit desLois, liv. xi, ch. G. 
 
PRELIMINARY INQUIRY. 31 
 
 act towards their subjects in the most oppressive 
 manner, would be ashamed to reduce the maxims 
 by which they are in fact guided, into the form of 
 a law, and to publish it to their subjects and the 
 whole civilized world. Governments of this kind 
 usually tyrannize over their subjects by arbitrary 
 acts, and disregard the laws in which they pay an 
 empty tribute to humanity and justice. It may be 
 further remarked, that when a government an- 
 nounces its intentions of heavily taxing and other- 
 wise oppressing its subjects, and publishes the 
 means by which it will carry these intentions into 
 effect, its subjects can, to a certain extent, guard 
 themselves, by evasion and fraud, against its acts. 
 And if the oppression is likely to be great, they 
 will be more likely to combine in order to resist by 
 force, if they see that the measure affects all at the 
 same time. If the oppression were irregular, un- 
 certain, and partial, it would be far more difficult 
 to excite a whole community, or a considerable part 
 of it, to insurrection against the government. 
 
 The severe laws enacted by some of the southern 
 states of the American Union against slaves prove 
 the universality and intensity of the feeling in 
 favour of slavery which prevails in those states. If 
 the authors of those laws were ashamed of them, 
 they would probably seek to attain their ends in a 
 less open and direct manner. So likewise the cri- 
 minal code of Maria Theresa, with its minute de- 
 scriptions and engravings of the tortures which it 
 sanctioned, produced a general feeling of disgust; 
 
positive 
 
 laws. 
 
 32 PRELIMINARY INQUIRY. 
 
 although it did not extend the practice of torture in 
 the Austrian states, but only sought to prevent its 
 capricious and unequal application.* 
 Error of It is tlic morc important that the grounds of the 
 
 thatarbi- cxpcdiency of legal, and of the inexpediency of 
 venL^nt arbitrary government, should be clearly understood, 
 vented by" sluce 110 distribution of the sovereign power, no ar- 
 rangement of constitutional balances or checks, can 
 prevent arbitrary government and secure an adher- 
 ence to rules. It appears, indeed, to be a common 
 notion, both among ancient and modern writers, 
 that laws are a restraint upon a sovereign govern- 
 ment, from which it is unable, however desirous, to 
 escape, if the constitution be well framed or ba- 
 lanced ; and that it is a sign of a bad constitution 
 of the government, and not merely of bad opinions 
 in the sovereign person or body, if the government 
 be not administered according to law. It seems to 
 be thought that, by submitting to be guided b}^ 
 certain general rules, the person or persons com- 
 posing a sovereign government lose their arhitrium 
 or free will, and became subordinate to a superior 
 power.f A similar meaning is implied in expres- 
 sions, such as " the people are subject to the law 
 and not to men," " the law governs and not men," 
 " the rulers are the servants of the law," " the 
 
 * In this case, however, the principle, *' Segnius irritant animos, 
 &c." also applied. 
 t Plato, describing the licentiousness of an ultra-democratic 
 
 community, says: nXiuruvTii yap ttov olai ' crt evTi Tuy vo/jmv '^^ovTi^ovtri 
 yiy^afjb/jti'ivuy v ay^oi<puv, Vva 5^ fji.inha.iLn (ttn^S'f itlroli n ^iff'Torfi;. I)e Rep. V III, 
 
 p. 563. Concerning Plato's conception of vo/tot ciy^cupot, see note (B.). 
 
PRELIMINARY INQUIRY. 33 
 
 law is master." * Understood literally, statements of 
 this sort convey an erroneous impression, since it is 
 certain that in every sort of government the sove- 
 reign power must be legally unlimited, and that 
 every government must be conducted by men. 
 
 The meaning which such figurative expressions 
 convey merely is, that a sovereign government, 
 having prescribed certain rules for the guidance of 
 its own conduct and that of its subjects, observes 
 and enforces those rules, and never alters them 
 without giving notice of the alteration. In this 
 respect, a government which voluntarily conforms 
 to rules which it has itself laid down, and which no 
 political superior can enforce, may be properly said 
 (as St. Paul says of the virtuous gentile) to be 
 " a law unto itself." f Aristotle, indeed, carries the 
 comparison further, inasmuch as he compares the 
 incontinent man, whose desires are too strong for 
 his principles, to a state which, although it has good 
 laws, observes them not, but transacts all its affairs 
 by means of special decrees ; whilst he compares the 
 thoroughly depraved and unprincipled man to a 
 state which abides by its laws, but has bad laws. J 
 
 * See note (D.) at the end of the volume. 
 
 f orav ya.^ i6vy> ra. f^ri vofjbov 'ixovra ^uiru roc rov vo/aov -rot^, eSroi vofiov fit) ix,ovrit 
 
 ahroli ilff) v'ofjLo;, Rom. ii. 14. The same expression had been previ- 
 ously used by Menander. 
 
 AiKCuas &v Tks) rif r^otif XS^^*' ^^H-V- 
 
 Sentent. sing. 135, p. 307. ed. Meineke. See above, p. 27. note f. 
 Compare Inst. II. tit. 17, ad fin. " Secundum haec divi Severus et 
 Antoninus rescripserunt : 'Licet enim (inquiunt) logibus soluti 
 sumus, attamen legibus vivere volumus,' " And see Dig. 1. 32. 1. 1, 
 fr. 23. 
 
 X Eth. Nic. vii. c. 11. 
 
34 PRELIMINARY INQUIRY. 
 
 Confusion From the manner in which arbitrary or despotic 
 
 01 arbitrary •^ * 
 
 govemment acts are sometimes opposed to leg^al power, * it must 
 
 and despot- ^^ or' 
 
 ^^' not be inferred that when an act of a sovereign 
 
 government is not according to law, it is therefore 
 illegal. No act of a sovereign government can be 
 illegal, because it is itself the measure and standard 
 of legality ; but, as I have already explained, a so- 
 vereign government may do an act or issue a special 
 command not founded on a pre-existing law. The 
 error of denying the legality of the arbitrary acts of 
 a sovereign government, or of saying that a govern- 
 ment administered arbitrarily is not a govern- 
 ment, and that a nation governed arbitrarily is 
 not a nation,f is akin to the error, already men- 
 
 * It had been proposed in the senate, that a power of disqualify- 
 ing any person from the government of a province on account of 
 bad conduct and character should be given to the emperor. Tibe- 
 rius declined this proposal, saying, among other things, " minui 
 jura, quoties gliscat potestas ; nee utendum imperio, ubi legibus agi 
 posset ;" Tacit. Ann. III. 69. Again, Tacitus states that an election 
 of praetor taking place in the senate, Germanicus and Drusus re- 
 commended Haterius Agrippa, who was opposed on the ground that 
 he had not the number of children which the law required of can- 
 didates for that oflBice. " LsBtabatur Tiberius, cum inter filios ejus 
 et leges senatus disceptaret : victa est sine dubio lex ; sed neque 
 statim, et paucis sufFragiis; quomodo, etiam cum valerent, leges 
 vincebantur." — Ann. II. 51. The senate, with the emperor, may be 
 considered as sovereign at this period. 
 
 t " En effet, a parler rigoureusement, un despote arbitraire com- 
 mande, mais ne gouverne pas : par la raison que sa volonte arbi- 
 traire est au-dessus des loix qu'ilinstitue arbitrairement, onne pent 
 pas dire qu'il y ait des loix dans ses etats: or un gouvernement 
 sans loix est une idee qui implique contradiction ; ce n'est plus un 
 gouvernement. A la faveur d'une force empruntee ce despote com- 
 mande done a des hommes que cette force opprime ; mais ceshommes 
 ne sont point des sujeis, et ne ferment point ce qu'on peut ap- 
 peler une nation, c'est-a-dire, un corps politique dont tons les mem- 
 bres sont lies les uns aux autres par une chaine de droits et de de- 
 
PRELIMINARY INQUIRY. 35 
 
 tioned,* of affirming that bad laws have no binding 
 force, and that a law must, in order to be a law, 
 produce beneficial effects, or at least have a beneficial 
 tendency. 
 
 A similar confusion appears to prevail respecting 
 the distinction between an absolute and a limited 
 monarchy. It seems to be sometimes thought that 
 the 'distinction between an absolute and a limited 
 monarchy consists in this : that an absolute monarch 
 governs arbitrarily, whereas a limited monarch go- 
 verns according to laws. It is true that an absolute 
 monarch (or a monarch properly so called) may, and 
 indeed often does, govern arbitrarily ; and it is true 
 that in a limited monarchy (or a republic of which 
 a king is head), the king, having only a share of 
 the sovereign power, cannot in general alter or de- 
 part from the laws without the consent of the re- 
 mainder of the sovereign body. But an absolute, 
 or proper, monarchy might be governed according 
 to the existing laws, as much as a so-called limited 
 monarchy. The distinction between these two sorts 
 of monarchies really consists in the number of per- 
 sons in whom the sovereign power is vested. In 
 an absolute or pure monarchy, one person possesses 
 the entire sovereign power ; in a monarchy which 
 is said to be limited, the sovereign power is divided 
 between the king (who is called the monarch), and 
 
 voirs reciproques qui tiennent I'Etat gouvernant et I'Etat gouvernd 
 insdparablement unis pour leur int^rSt commun." Mercier de la 
 Riviere, Ordre Nature! des Soci^t6s Politiques, ch. xxiii. (vol. i. p. 
 290). 
 
 * Above, p. 3. 
 
 d2 
 
36 PRELIMINARY INQUIRY. 
 
 other persons ; that is to say, a limited monarch is 
 not properly a monarch. 
 
 This confusion is thickened by the exemption 
 from legal accountability which a king who pos- 
 sesses only a share of the sovereign power, some- 
 times enjoys in common with a king who possesses 
 the entire sovereign power: 
 
 A sovereign body is legally unaccountable for 
 every act done by it in its corporate capacity. But 
 every member of such sovereign body may be legally 
 accountable to it for the acts done by him in his 
 individual and separate capacity. Consequently, in 
 a political community, of which the sovereign go- 
 vernment is vested in a body of persons, it is possible 
 that there should be no person who is unaccountable 
 for acts not done by him as a member of such body. 
 On the other hand, a person who possesses the 
 entire sovereign power in a political community (or 
 a monarch properly so called) must be legally un- 
 accountable not only for the acts done by him in 
 his capacity of sovereign or monarch, but also for 
 all his other acts;* inasmuch as there is no person 
 to whom he can be legally accountable. 
 
 Now in the republican governments, which are 
 called " limited monarchies," the king, although he 
 cannot make a law binding on others, without the 
 concurrence of the rest of the sovereign body, is 
 usually, like a monarch proper, legally unaccount- 
 able. Thus in England, the king is, like the Roman 
 
 * Thus the Roman emperor was legibus solutus ; see above, p. 33, 
 note t. 
 
PRELIMINARY INQUIRY. 37 
 
 emperor, legihus solutus; and is not amenable for 
 his acts to any legal tribunal. Whereas, in the 
 republican governments which are not called " li- 
 mited monarchies," every member of the sovereign 
 body is amenable for acts done by him in a private 
 or domestic capacity. For example, the president 
 of the United States is not less legally responsible 
 for his acts done in a private capacity, than a mem- 
 ber of the senate or the house of representatives. 
 
 Of the constitutional contrivances for afFordins: Reparation 
 
 ~ ofthelegis- 
 
 a security ag:ainst arbitrary government, none has lativeand 
 
 •^ ^ ./ o executive 
 
 met with greater favour among; political speculators po^ere as a 
 
 . . . . . security 
 
 than the providing: that the legislative and executive against ar- 
 
 . bitrary go- 
 
 powers of a sovereign government shall be exercised vemment. 
 by different persons. When a constitutional ar- 
 rangement of this sort is supposed to exist, there is 
 said to be a separation of the legislative and execu- 
 tive powers of government; and when it is seen 
 that no such arrangement exists, there is said to be 
 a confusion or mixture of these powers.* 
 
 The earliest writer, as far as I am aware, who 
 insisted on the importance of placing the legislative 
 and executive powers of government in the hands 
 of different persons, is Locke. His opinion respect- 
 ing the expediency of separating the legislative and 
 executive powers appears to have been chiefly 
 founded on the rarity of arbitrary interferences with 
 the execution of the law in the governments of 
 England and Holland, as compared with the fre- 
 quency of such interferences in the despotic govern- 
 
 * See note (E.) at the end of the volume. 
 
 X> 
 
38 PRELIMINARY INQUIRY. 
 
 ments of France, Spain, and other continental 
 countries. The superiority of the English and 
 Dutch governments in this respect, Locke seems to 
 have attributed to a supposed separation of the le- 
 gislative and executive powers ; whereas it was in 
 truth owing to the division of the soyereignjower 
 amongst a body^^f persons. He supposed the com- 
 parative badness of the monarchical governments of 
 the continent in his time to arise from the accu- 
 mulation of the legislative and executive powers 
 in the same hands ; whereas it arose mainly from 
 the accumulation of all the sovereign, and espe- 
 cially the legislative, powers, in the hands of one 
 person. 
 
 Afterwards Montesquieu, in his " Esprit des Lois" 
 (first published in 1748), adopted Locke's views on 
 this subject, and gave them some further develope- 
 ment. But his language is so vague, and his rea- 
 sons so obscure, that it seems to me impossible to 
 arrive at any certain conclusions as to his meaning, 
 beyond the general doctrine laid down by Locke. 
 Mr. Madison, however, who has examined this 
 question with much ability in some papers of the 
 " Federalist," after observing, correctly, that Mon- 
 tesquieu wrote with a constant reference to the 
 British constitution, concludes that " Montesquieu's 
 meaning, as his own words import, and still more 
 conclusively as illustrated by the example in his 
 eye, can amount to no more than this : that where 
 the whole power of one department is exercised by 
 the same hands which possess the whole power of 
 
PRELIMINARY INQUIRY. 39 
 
 another department, the fundamental principles of 
 a free constitution are subverted."* 
 
 Le Mercier de la Riviere, the chief expositor of 
 the political system of the French economists (whose 
 work, entitled " L'Ordre Naturel et Essentiel des 
 Societes Politiques," was first published in 1767), 
 sees that the supreme legislature must command the 
 executive powers requisite for enforcing its laws.f 
 But he maintains with equal confidence that the 
 separation of the legislative from the judicial func- 
 tions is essential to a good system of government.^ 
 
 In consequence principally of the doctrines thus 
 laid down by Locke and Montesquieu, the expedi- 
 ency of a separation of the legislative and executive 
 functions of government became in the last century 
 a sort of political axiom, which every one supposed 
 himself to understand, and which no one thought of 
 questioning. § From England this maxim travelled 
 
 * Federalist, No. 47. 
 
 t " Quel que soit le d^positaire ou radministrateur de la force 
 publique, le pouvoir legislatif est son premier attribut . . . Dieter 
 des lois positives, c'est commander ; et . . . le droit de dieter des 
 lois ne peut exister sans le pouvoir physique de les faire observer. 
 II ne peut done jamais etre separ^ de I'administration de la force 
 publique et coercitive. Ainsi la puissance executrice, celle qui dis- 
 pose de cette force, est toujours et necessairement puissance legis- 
 latrice," ch. xiv. (tom. i. p. 170). 
 
 X " II est socialement impossible que I'autorit^ legislative et la 
 magistrature, ou I'administration de la justice distributive, soient 
 r^unies dans la meme main, sans detruire parmi les hommes toute 
 certitude de la justice et de la necessity de leurs lois positives." 
 ch. xii. tom. i., p. 137, and compare the end of ch. xvi. p. 212. 
 
 § " No political truth is certainly of greater intrinsic value, or is 
 stamped with the authority of more enlightened patrons of liberty, 
 than that on which the objection is founded. The accumulation of 
 all powers, legislative, executive, and judiciary, in the same hands, 
 whether of one, a few, or many, and whether hereditary, self- 
 
40 PRELIMINARY INQUIRY. 
 
 to the English colonies in North America, and the 
 framers of the federal constitution of the United 
 States, as well as of the constitutions of the several 
 states, endeavoured to carry it into effect, and sup- 
 posed their endeavours to have been successful. 
 The French subsequently borrowed it from the 
 Americans, and an article was inserted in the De- 
 claration of Rights, which was decreed by the Con- 
 stituent Assembly in 1789, setting forth that " no 
 society in which the guarantee of its rights is not 
 made certain, or the separation of the powers de- 
 termined, possesses a constitution." (Art. 16.) 
 
 Paley likewise, in his Principles of Moral and 
 Political Philosophy, first published in 1785, insists 
 on the importance of the separation of the legis- 
 lative and judicial functions ; which he calls " the 
 first maxim of a free state."*' 
 
 A full examination of the opinions which have 
 been advanced by the writers just mentioned, re- 
 specting the separation of the legislative and exe^ 
 cutive functions of government, is not consistent 
 with my present purpose ; but I will state shortly 
 the chief objections to which their doctrine appears 
 to be liable. 
 
 1. A complete separation of the legislative and 
 executive powers cannot exist in any constitution. 
 For in every constitution the sovereign person or 
 body must possess the power both of making 
 
 appointed, or elective, may justly be pronounced the very definition 
 of tyranny .... The oracle who is always consulted and cited on 
 this subject is the celebrated Montesquieu." — Federalist, No. 47. 
 * B. vi. c. 8. 
 
N^ or THE "r^ 
 PRELIMINARY INQUIR^ ^ ^3^ 41 . 
 
 laws, and of carrying them into executfetf?^ The 
 writers who have recommended the separation of 
 the legislative and executive powers must have 
 known that there cannot be two independent sove- 
 reignties in one political community, and conse- 
 quently that the power of making laws, and the 
 power of executing them, cannot be lodged in 
 persons legally independent of each other. Their 
 maxim respecting the separation of the legislative 
 and executive powers was therefore probably in- 
 tended only to imply a peculiar mode of delegating 
 the governing powers ; namely, that the sovereign 
 government shall delegate to subordinates all its 
 executive powers, but shall either reserve to itself 
 the exercise of all its legislative powers, or, if it 
 delegates any of its legislative powers, it shall en- 
 trust them to different persons from those in whom 
 it vests its executive powers. 
 
 Even, however, if it be taken in this limited 
 sense, the maxim is not consistent with the practice 
 of any government which has hitherto existed. In 
 most countries the supreme legislature, or its com- 
 ponent parts, have performed some executive func- 
 tions ; and all governments have delegated extensive 
 legislative powers to their executive functionaries. 
 
 For example, in the Roman republic, all the 
 powers of government were confounded in the hands 
 of the^same functionaries. The following account 
 of the power of the consuls in the early period of 
 
 * See Bentham, Tactiquc des Assemblees legislatives, torn. ii. p. 
 344, and compare Le Mercier de la Riviere, cited above, p. 39. 
 
42 PRELIMINARY INQUIRY. 
 
 the republic, is given by Hugo, in his history of the 
 Roman law. " The branches of the supreme power 
 (on the separation of which so much weight was 
 laid at the end of the last century) were all united 
 in the consuls. Of the legislative power they had 
 the important right of presiding in the senate and 
 the assemblies of the populus. The executive power 
 they exercised chiefly in their capacity of com- 
 manders in war. And they even had a very import- 
 ant share of the judicial power, in the decision of 
 private causes, and in the punishment of crimes."* 
 So in England, the crown, although a part of the 
 parliament or supreme legislature, is also the chief 
 executive authority ; the House of Lords, another 
 branch of the parliament, is the Supreme Court of 
 Appeal, and is also a court of original jurisdiction 
 in the cases of crimes committed by certain classes 
 of persons ; and the House of Commons, the other 
 branch of the parliament, determines the disputed 
 elections of its own members : to which it may be 
 added, that both houses punish for breaches of their 
 privileges. Perhaps the most remarkable examples of 
 the mixture of the legislative and executive functions 
 are those which occur in the constitutions of the 
 American States' governments, inasmuch as these are 
 known to have been generally drawn with an intention 
 of separating these functions, and sometimes contain 
 an express statement of such intention. Mr. Ma- 
 
 * Geschichte des R. R., vol. i. p. 333. Hugo here uses "vollzie- 
 hend,*' or "executive," in the hmited sense explained above, in p. 13. 
 note *. 
 
PRELIMINARY INQUIRY. 43 
 
 dison, in discussing this maxim in the Federalist, 
 remarks as follows : " If we look into the consti- 
 tutions of the several states, we find that, notwith- 
 standing the emphatical, and in some instances the 
 unqualified terms in which this axiom has been laid 
 down, there is not a single instance in which the 
 several departments of power have been kept abso- 
 lutely separate and distinct." After showing that 
 the maxim has been violated in the constitutions of 
 New Hampshire, Massachusets, New York, New 
 Jersey, Pennsylvania, Delaware, Maryland, Vir- 
 ginia, North and South Carolina, and Georgia, 
 he adds, that "it is but too obvious that in some 
 instances the fundamental principle under conside- 
 ration has been violated by too great a mixture, and 
 even an actual consolidation of the different powers ; 
 and that in no instance has a competent provision 
 been made for maintaining in practice the separation 
 delineated on paper."^ — (Federalist, No. 47.) 
 
 It will be shown below, that in every government 
 the executive functionaries are necessarily entrusted 
 with powers, more or less extensive, of subordinate 
 legislation, and that if they did not possess a power 
 of making subsidiary laws, the main laws of the 
 supreme legislature could not be carried into effect. 
 The most striking instance of the delegation of 
 powers of execution and subordinate legislation to 
 the same functionary occurs in the judicial depart- 
 ment ; since a court of justice, besides its power of 
 hearing and determining individual cases brought 
 before it, generally possesses also a power of direct 
 
44 PRELIMINARY INQUIRY. 
 
 legislation for regulating its own procedure, as well 
 as a power of indirect legislation, by laying down 
 the rules of law on which its decisions are founded. 
 
 But even if it were possible for a sovereign 
 person or body to delegate all the executive powers, 
 and to abstain from delegating any legislative 
 functions to subordinate ministers, it does not seem 
 that the proposed separation of powers would be 
 beneficial. 
 
 The main advantage which Locke and Mon- 
 tesquieu attribute to a separation of the execution of 
 the laws from the making of them, is, that it pre- 
 vents arbitrary interferences with the ordinary 
 administration of justice. But there is nothing to 
 prevent a sovereign government, which has dele- 
 gated all or most of its executive powers, from 
 interfering arbitrarily with the acts of its subordinate 
 functionaries. It is true that executive functionaries, 
 being the ministers and servants of the sovereign 
 government, cannot, of their own authority, set 
 aside any law, and that they are legally bound to 
 carry the existing laws into effect. But the sove- 
 reign government which gave them power to execute 
 the laws can command them to depart from those 
 laws in any individual case : and every such 
 special command is as binding upon them as a law. 
 On the other hand, there is no reason why the 
 persons who have made a law should not execute 
 it faithfully. It seems, indeed, natural to suppose 
 that the authors of a law would in general be the 
 most disposed to enforce it, and the least disposed to 
 
PRELIMINARY INQUIRY. 45 
 
 permit departures from it. They may be presumed 
 to be, in general, the best acquainted with its true 
 meaning, and the purposes for which it was enacted. 
 
 The suggestion for the separation of the legislative 
 and executive functions is doubtless an attempt to 
 obtain a security against arbitrary government 
 which is impossible ; viz., by a legal restraint upon 
 the exercise of the sovereign power ; and it is there- 
 fore equally chimerical with other similar notions 
 which have been adverted to above. Where a 
 government is unprincipled, and the influence of 
 public opinion is weak, no conceivable distribution 
 of the legislative and executive powers will prevent 
 arbitrary rule. Where a government has learnt to 
 regard the interests of its subjects, and the influence 
 of public opinion is strong, legislative and executive 
 powers may be exercised by the same person or 
 body, without any considerable risk of arbitrary 
 rule. — 
 
 Before we quit the subject of the arbitrary acts of Arbitrary 
 a government, it should be remarked, that the power portant 
 
 p , m 1 ' 1 lii 11 • than execu- 
 
 01 issumg arbitrary commands, though less im- tive powers. 
 portant than the legislative, is far more important 
 than the executive power. For an executive func- 
 tionary is appointed to carry a certain law or certain 
 laws into effect, and his discretion is in general con- 
 fined within tolerably narrow bounds; whereas an 
 arbitrary command or act, though limited to an 
 individual case, is either in derogation of an existing 
 law, or, at least, is independent of any such law. 
 Accordingly, a supreme legislature is in general 
 
ment. 
 
 46 PRELIMINARY INQUIRY. 
 
 sparing of its delegations of the power of issuing 
 arbitrary commands; and when such commands 
 are issued by a supreme legislature, they are, in 
 order to mark their importance, usually invested 
 with the forms of a legislative act. 
 4. inqui- Fourthly- A sovereign government may seek to 
 powers of a asccrtaiu certain facts, in order that they may serve 
 govern?" as a foundation for some future proceeding of one 
 of the three sorts above mentioned. This may be 
 styled its inquisitorial function. 
 
 The important exercise of the inquisitorial func- 
 tion of government, which consists in the examina- 
 tion of witnesses, and the production of documentary 
 evidence before courts of justice, may be considered 
 executive, inasmuch as it subserves the execution of 
 the laws. But investigations for legislative pur- 
 poses, though they may be made in pursuance of a 
 law, nevertheless are not instituted for the purpose 
 of carrying any law into effect, and, therefore, 
 cannot properly be styled executive. Such are the 
 inquiries carried on in this country by committees 
 of (either house of parliament, (which is called the 
 grand inquest of the realm,) and by special com- 
 missions appointed by the crown. 
 
 A sovereign government can likewise procure 
 assistance for its deliberations by calling in the 
 advice of counsellors; and, if necessary, paying 
 them for it : but as useful advice can only be 
 obtained from willing counsellors, governments 
 have never used compulsory powers for this purpose. 
 
PRELIMINARY INQriRY. 47 
 
 Having considered the nature and extent of the Delegation 
 
 ~ ^ of political 
 
 powers of a sovereign government, and the different powers by 
 
 ^ ^ '~' ^ a sovereign 
 
 modes in which these powers may be exercised, I govem- 
 
 ment. 
 
 proceed to examine the modes m which the same 
 powers may be delegated. The examination of this 
 question is requisite for the purposes of the present 
 inquiry ; first, because the nature of executive powers 
 cannot be fully understood until the delegation of 
 powers to political subordinates is explained ; and, 
 secondly, because a dependency is immediately 
 subject to a government acting exclusively by dele- 
 gated powers. 
 
 Political powers may be delegated in one of the 
 two following modes : — 
 
 First ; The person or persons, or some of the i. Deiega- 
 
 . . , . . tion of 
 
 persons exercising the sovereign power in any political 
 
 , . . , . . , . powers im- 
 
 political community, may exercise that power in properly so 
 consequence of being chosen by a body of persons ^ * ' 
 designated in a certain manner. The persons 
 making the choice are generally styled the electoral 
 or constituent body ; and the person or persons whom 
 they choose are said to represent them, or to be de- 
 puted hy them. 
 
 Thus, assuming that the Pope legally exercises 
 the entire sovereign power in the states of the 
 church, such sovereignty is vested in him in conse- 
 quence of his election by the College of Cardinals. 
 In the British empire, the body which legally 
 exercises the sovereign power is composed of the 
 crown, the House of Lords (consisting of the spi- 
 ritual peers, and the English, Irish, and Scotch 
 
48 PRELIMINARY INQUIRY. 
 
 temporal peers,) and the House of Commons. To 
 this body the Irish and Scotch peers belong in con- 
 sequence of election by the general body of the 
 Irish and Scotch peers, and the members of the 
 House of Commons, in consequence of their election 
 by certain classes of persons determined by law. 
 In the United States the entire sovereign power 
 may be exercised for any purpose not prohibited by 
 the constitution, in each state, by a body composed 
 of Congress and the peculiar legislature of such 
 state ; and the persons who are members of either 
 of these bodies belong to it in virtue of their election 
 by certain classes of the people. A body so consti- 
 tuted possesses in each of the United States the 
 entire sovereignty, with the exception of the power 
 of altering the constitution. This latter power is 
 vested in an ulterior body, entitled a convention, 
 which has never yet been called into activity. 
 
 The following are the usual marks of this mode 
 of delegation. 1. The trust which this mode of 
 political delegation confers is not a legal trust, 
 guarded by legal duties and sanctions. A repre- 
 sentative or deputy exercising, in consequence of an 
 election, the whole or a portion of the sovereign 
 power, is liable to no other restraints from his 
 electors or constituents, in respect of his exercise of 
 such power, than those which arise from the fear of 
 forfeiting their good opinion, or incurring their 
 censure. The electoral or constituent body, and 
 the representative or deputy, do not stand to one 
 another in the legal relation of principal and agent. 
 
PRELIMINARY INQUIRY. 49 
 
 2. The electoral or constituent body cannot itself 
 exercise the powers which it enables its repre- 
 sentative or deputy to exercise. Tlie College of 
 Cardinals, for instance, cannot, during a vacancy 
 of the Holy See, legally exercise the powers which 
 belong to the Pope; nor can the electors of the 
 Chamber of Deputies in France or Belgium, of the 
 House of Commons in England, of the House of 
 Representatives, or a state legislature in the United 
 States, or of a House of Assembly in an English 
 dependency, legally exercise the powers which be- 
 long to each of those bodies. 3. The representative 
 or deputy is commonly appointed by the electoral 
 body for a time certain, and his appointment cannot 
 be revoked by them until the expiration of the time. 
 Thus, in England, a member of the House of 
 Commons, when legally elected, is entitled (unless 
 he becomes personally disqualified) to hold his 
 office until a dissolution of parliament ; and no act 
 of his constituents can legally revoke his appoint- 
 ment for that period. This arrangement, however, 
 does not necessarily exist ; thus, it appears that, in 
 Hungary, the appointment of a member of the Lower 
 House of the Diet is made to last during the plea- 
 sure of his constituents, and that they can at any 
 time revoke his appointment, if they should be dis- 
 pleased with his conduct. Moreover, in a govern- 
 ment like that of the United States, the repre- 
 sentative might be rendered legally responsible to 
 his constituents, by the intervention of the body, 
 similar to the convention of the United States, in 
 which the ultimate sovereignty would reside. But 
 
50 PRELIMINARY INQUIRY. 
 
 if a body of this sort were frequently called into 
 existence, and exercised an active control over the 
 ordinary legislature, the ordinary legislature would 
 not be virtually sovereign, but would be a merely 
 subordinate legislature. 
 2. Deiega- Sccoudly : Tlic person or persons exercising the 
 political sovereign power in a community may delegate a 
 
 powers, •PI T • 1 1 T 
 
 properly so portiou of thosc powci's to political subordiuatcs. 
 Thus, a sovereign government may delegate, with 
 certain reservations, the power of making laws, or 
 of issuing arbitrary commands ; and it may delegate 
 an unrestricted power of executing the laws. The 
 trust which this delegation confers is a legal trust, 
 guarded by legal duties and sanctions ; and it can 
 be revoked at the pleasure of the sovereign govern- 
 ment. Moreover, the sovereign government might 
 itself legally exercise the powers which it thus 
 delegates, if it were convenient, or, indeed, possible 
 for it to exercise them all directly. 
 
 From a comparison of the characteristics of the 
 two modes of political delegation just examined, it 
 follows that the latter mode is alone delegation 
 strictly so called, and that the former mode only 
 bears an analogy to proper delegation. It appears 
 to be essential to delegation proper that the dele- 
 gator should be himself entitled to exercise the 
 powers which he delegates. Now this is not the 
 case in the first mode of delegation above considered. 
 The electors can exercise no portion of the sovereign 
 power which they are said to depute to their repre- 
 sentative. Their representative acquires by their 
 election a portion of the sovereign power ; but they 
 
PRELIMINARY INQUIRY. 51 
 
 can scarcely be said to delegate or depute it to him. 
 Accordingly, it seems to me that such electors may j 
 properly be said to have volitical right s, which/ 
 would not be the case if the power exercised by 
 them was a portion of the sovereign power ; and it' 
 may be observed that the political rights of the 
 electors can in general be altered or taken away by 
 the sovereign legislative body, of which their repre- 
 sentatives are members. In the following pages, 
 whenever delegation is spoken of, the second mode 
 of delegation, or delegation proper, is meant. 
 
 It can scarcely be conceived that any community Political 
 should exist, in which all the functions of govern- been deie- 
 ment are performed by the sovereign person or body aiicommu- 
 directly ; and it is certain that, in all political com- 
 munities which have actually existed, a large part 
 of the functions of government has been delegated 
 to subordinate ministers or functionaries. 
 
 The issue of general commands is the most im- 
 portant part of sovereignty ; and it admits of being 
 performed, to a considerable extent, by one person, 
 or by several persons acting as a body. The detailed 
 execution of general commands is of inferior im- 
 portance ; and it requires the services of a large 
 number of persons acting independently, simulta- 
 neously, and in different places. Consequently, 
 sovereign governments have, in general, exercised 
 directly a large part of their legislative powers ; but 
 have invariably delegated nearly the whole of their 
 executive powers. It may be here observed, that 
 the distribution of the sovereign powers amongst a 
 number of persons does not afford any facilities for 
 
 e2 
 
52 PRELIMINARY INQUIRY. 
 
 the direct exercise of those powers, since it is as 
 difficult to do a political act by means of a body as 
 by means of an individual person. For example, it 
 would be as difficult for a sovereign body (such as 
 the Parliament of England) to hear and determine 
 all causes in its corporate capacity, as for a monarch 
 to do the same. Whether the sovereign powers were 
 lodged in a single person or in a body of persons, 
 such person or body could form only one court for 
 judicial purposes ; and one court could not, without 
 delegating its functions, hear and determine all the 
 causes arising in a communit}^ of any considerable 
 magnitude. 
 Supreme 1. The legislative or law-makino; power may or 
 
 andsubor- ® o r J 
 
 dinateie- may uot be delegated by the sovereign person or 
 defined. body ; in other words, legislation is supreme or 
 subordinate. 
 
 Legislation is supreme when the law is issued by 
 the sovereign person or body. In this case the law 
 is generally issued in a written form. 
 
 Legislation is subordinate when the sovereign 
 person or body delegates the legislative power to an 
 inferior authority, which issues or makes the law. 
 
 The persons to whom a legislative power is dele- 
 gated by the sovereign government are called sub- 
 ordinate legislators, and they are said to possess a 
 power of subordinate legislation. 
 Direct A power of subordinate legislation is sometimes 
 
 power of . ,.. „. 
 
 subordinate divect ; that IS to Say, the laws made m virtue of it 
 
 legislation. . . ,• p 
 
 are issued avowedly, and m an imperative lorm, 
 by the subordinate legislature, and generally in 
 writing. 
 
PRELIMINARY INQUIRY. 53 
 
 111 the Roman republic, laws were not only made 
 by the sovereign legislative body, assembled in 
 comitia, but also by the senate and the plebs, as 
 subordinate legislatures.* Moreover, the praetors 
 and sediles, under both the republic and the empire, 
 possessed and exercised important powers of direct 
 subordinate legislation. The direct legislation 
 of the praetors in particular, as contained in the 
 praetor's edict, was the foundation of the chief part 
 of the private law of Rome. Law made by the 
 praetors and other magistrates, as subordinate legis- 
 lators, was styled by the Romans jus honorarium.^ 
 
 The following are cases in which direct powers 
 of subordinate legislation have been delegated, ex- 
 pressly or tacitly, by the British Parliament. 
 
 1. The power of the king to make orders in 
 council, affecting either the British isles or a British 
 dependency. If a necessity for new legislation 
 should arise at a time when parliament is not 
 sitting, or if sudden legislative interference should 
 be urgently required even during the session of 
 parliament, a law can be made provisionally by the 
 king in council. Thus the bank of England was 
 restricted from making cash payments, during the 
 
 * Hugo, Geschichte des Romischen Rechts, p. 371-2. 406. 
 
 t Inst. I. 2. §7. Praetorum quoque edictanon modicam obtinent 
 juris auctoritatem. Hoc enim jus honorarium solemus appellare, 
 quod qui honorem gerunt, id est magistratus, auctoritatem huic 
 juri dederunt. Proponebant et aediles curules edictum de quibusdam 
 causis, quod edictum jvu'is honorarii portio est. 
 
 Direct legislation by a subordinate legislature may be likened to 
 customary law, if the legislative power has not been expressly dele- 
 gated. Hence Hugo, G. des R. R., p. 369, says ihdit jus honorarium 
 stands between the direct legislation of the plebs and senate, and 
 customary law. 
 
54 PRELIMINARY INQUIRY. 
 
 session of parliament, by an order in council, issued 
 on the 26th of February, 1797, and the restriction 
 was subsequently confirmed by an Act of Parliament. 
 Also the power of the king, granted by the mu- 
 tiny act, to make articles of war for the government 
 of the land forces. The king does not possess a 
 similar power over the navy; but the lord high 
 admiral, or two of the commissioners of the admi- 
 ralty, may make articles of war for the marines.* 
 
 2. Legislation by administrative departments, as 
 the lords of the treasury and admiralty, the com- 
 mander-in-chief, the post- master-general, the re- 
 venue departments, poor law commissioners, police 
 commissioners, registrar-general, f 
 
 3. Power of the judges and of justices of the peace 
 to regulate the procedure of their several courts, and 
 to determine the fees of the officers of such courts. 
 
 4. Power of municipal corporations, guilds, uni- 
 versities, colleges, companies, and other corporate 
 bodies, to make bye- laws and regulations. J 
 
 5. Power of justices of the peace to make re- 
 gulations for the government of gaols and lunatic 
 asylums, and for other local purposes. § 
 
 Similar powers of subordinate legislation are 
 
 * See Blackstone's Commentaries, vo]. i. p. 403. 408. Mutiny 
 Act, § 35, 36. 
 
 f The Acts 2 Wm. IV., c. 10 and 11, empowered any two mem- 
 bers of the Privy Council (of whom the President of the Council 
 must be one) to make rules and regulations for the prevention of 
 the spreading of the cholera in England and Scotland. 
 
 % Concerning the legislative power of colleges, see Law Maga- 
 zine, vol. xix. p. 245. 
 
 § See Report of the Poor Law Commissioners on the further 
 Amendment of the Poor Laws (Dec. 1839), p. 20, ed. 8vo. 
 
PRELIMINARY INQUIRY. 55 
 
 vested by the governments of France, and of the 
 several German and Italian states, in all the chief 
 administrative departments. The powers of subor- . 
 dinate legislation vested by these governments in 
 the department of police are, in particular, very 
 extensive. In France, the king has the power of 
 making ordinances for carrying into effect the ge- 
 neral provisions of a law made by the king and 
 chambers on the subject of quarantine; the local 
 quarantine authorities have a further power of 
 making regulations subordinate both to the law of 
 the king and chambers, and to the king's ordinances. 
 
 It sometimes happens that a number of rights Power of 
 and duties are created by a sovereign government, Jwik ^^ 
 which are only to take effect upon a declaration 
 made by a subordinate legislature. Thus the Eng- 
 lish parliament has defined the rights and duties of 
 its subjects in case of war ; but it has vested in the 
 Crown the power of declaring the country to be in 
 a state of war, and, consequently, of calling these 
 rights and duties into activity.'^ In like manner, 
 the king is empowered by Act of Parliament to de- 
 clare, by order in council, the places which render 
 ships touching at them liable to quarantine, and also 
 the places where ships are to perform quarantine.! 
 
 * In like manner, the crown has a power of legislating, by orders 
 in council, respecting foreign trade in time of war. The cele- 
 brated orders in council respecting neutral ships in the late war 
 are an example of this legislative power. It should, however, be 
 observed that the power of the crown to make these orders in coun- 
 cil was questioned in Parliament. 
 
 t 6 Geo. IV. c. 78. By sec. 6 of this Act, orders upon unforeseen 
 emergencies respecting quarantine may be made by any two mem- 
 bers of the Privy Council. 
 
66 
 
 PRELIMINARY INQUIRY. 
 
 By another Act of Parliament, the king in council 
 is empowered to direct at what places in a county 
 assizes may be held, and to divide counties for the 
 purpose of holding assizes in different divisions of 
 the same county.* Another statute empowers the 
 lords commissioners of the treasury to appoint the 
 ports which shall be warehousing ports; and also em- 
 powers the commissioners of customs, subject to the 
 directions of the lords commissioners of the treasury, 
 to appoint in what warehouses any, and what sorts 
 of, goods may be warehoused. f So the poor law 
 commissioners were empowered to declare the day on 
 which the Parochial Assessments Act was to come 
 into operation. J This power is called by Mr. Ben- 
 tham the " power of specification ; " § and the 
 power of determining the persons who are to fill 
 the executive offices may also be referred to it. The 
 creation of the offices themselves is delegation by 
 the sovereign government of its executive power. 
 Indirect A powcr of subordiuatc legislation is sometimes 
 
 power of , . ^ 
 
 subordinate indirect ; that is to say, the laws made in virtue of 
 
 legislation. . . n i • 
 
 it are not issued avowedly and in an imperative 
 form by the subordinate legislature, but are implied 
 in the usages which it sanctions, or the judicial 
 decisions which it utters. All customary or con- 
 
 * 3 and 4 Wm. IV. c. 71. 
 
 t 6 Geo. IV. c. 112. The instances of the -power of suhordinate 
 legislation adduced in the text may be compared with a power of 
 appointment created by deed or will ; as, for example, where money 
 is given to children with a power to one of the parents of deter- 
 mining the shares in which they shall respectively take it. 
 
 X G and 7 Wm. IV. c. 96. See the Third Annual Report of the 
 Poor Law Commissioners, p. 91. ed. 8vo. 
 
 ^ Traites de Legislation, tom. i. p. 313. 
 
PRELIMINARY INQU 
 
 feuetudinary law, and all law founde( 
 precedents, or text writers of authority, and upon 
 the practice of public departments, or legally con- 
 stituted bodies, belongs to this head. 
 
 It would be an interesting problem to investigate 
 the comparative quantity and character of the laws 
 made directly by the supreme legislature of a 
 country, and of the laws made directly and the law 
 made indirectly, by the subordinate legislatures. 
 The subject is too extensive for a full examination 
 in this place, but a few remarks on it may be here 
 introduced. 
 
 Hugo, in his " History of the Roman Law," after 
 having stated that the laws made by the supreme 
 legislature at Rome between the time of the twelve 
 tables and the year 650 u. c. were very numerous, 
 and chiefly concerned the jus publicum^ or constitu- 
 tional law, proceeds to remark, that supreme legis- 
 lation has rarely concerned itself much with jus 
 privatum, or the law of property and domestic rela- 
 tions.* A similar remark is applicable to the law 
 of England. The legislation of the English Parlia- 
 ment has been chiefly concerned about subjects 
 which seem properly to fall under the idea of jus 
 publicum, such as the determination of the suffrage 
 for the election of members of the House of Com- 
 mons, and regulations for the conduct of their elec- 
 tion ; the imposition and collection of taxes ; the 
 regulation of offices, salaries, and pensions; the 
 management of the army and navy ; the criminal 
 * Geschiclite des Rcimischen Rechts, p. 373. 
 
68 PRELIMINARY INQUIRY. 
 
 law and its execution ; the powers of the different 
 courts, of justices of the peace, and of peace officers 
 and policemen ; the powers of municipal corpora- 
 tions ; and the like. On the other hand, there are 
 only a few important statutes concerning the law of 
 property or other branches of jus privatum, such, for 
 example, as the statutes of wills, of uses, of frauds, 
 and of limitation of actions. The quantity of the 
 laws made in England directly by subordinate legis- 
 latures is considerable; as orders of the king in 
 council, the articles of war, general orders for the 
 army, regulations of revenue departments, rules of 
 practice made by the superior courts, bye-laws of 
 corporations ; not to mention laws made by subor- 
 dinate governments in the dependencies : the cha- 
 racter of these laws depends in general on the special 
 delegation in virtue of which they are made. The 
 law made indirectly by subordinate legislatures in 
 England is of immense bulk and importance ; for it 
 comprehends nearly the whole of the jus privatum, 
 inasmuch as nearly the whole of the jus piivatum is 
 due to the indirect legislation of the courts of law 
 and equity, together with the ecclesiastical courts. 
 
 It will be found in general that nearly the whole 
 of the jus privatum of every country has been 
 formed by the indirect legislation of the courts, 
 aided by the labours of juristical writers ; and that 
 it has only been issued directly by the supreme 
 legislature, after it has been digested, from the ex- 
 isting materials, into the form of a code; as was 
 the case with the Roman and French codes. 
 
PRELIMINARY INQUIRY. 59 
 
 All laws made by virtue of a power of subordi- ah laws 
 
 »' *■ made by 
 
 nate lee^islation, whether made directly or indi- subordinate 
 
 ^ ^ "^ legislatures 
 
 rectly, emanate ultimately from the sovereign emanate 
 
 . from the go- 
 
 govemment ; inasmuch as the sovereign govern- vereign go- 
 
 r» 1 n 1 • 1 ^ vemment. 
 
 ment confers the power of makmg them, and applies 
 the sanctions by which they are enforced. 
 
 A power of subordinate ledslation sometimes ^ power of 
 
 ^ ^ ^ subordinate 
 
 extends only to a certain subject or certain subjects, legislation 
 and the laws made in virtue of it are binding only or un- 
 
 . •Ill limited as 
 
 on the persons belonging to a certain body, and not to subjects. 
 on the public generally. Such, for example, is the 
 power of making bye-laws which is possessed by 
 the college of physicians, or the college of surgeons, 
 in this country. Sometimes it applies to the public 
 generally, but extends only to a single subject, or a 
 limited number of subjects ; thus a power of subor- 
 dinate legislation may be given for the purpose of 
 carrying into effect the provisions of a certain law 
 made by the supreme legislature (such as a law 
 respecting quarantine), or for some specific pur- 
 pose, such as making regulations respecting police, 
 watching and lighting, or sewerage. Sometimes a 
 power of subordinate legislation is included in a 
 general delegation of political powers over a certain 
 territory. A power of subordinate legislation, of 
 this nature, extends over an unlimited number of 
 subjects, and may be exercised over all the persons 
 inhabiting such territory. A territory so circum- 
 stanced is styled a dependency, and the persons to 
 whom general political powers (including a general 
 power of legislation) over such territory are thus 
 
60 PRELIMINARY INQUIRY. 
 
 delegated, form its subordinate government. The 
 detailed examination of the nature of a subordinate 
 government is reserved for the following essay. 
 The main characteristics of a subordinate or dele- 
 ch^c- grated lee^islative power are — 
 
 teristics of ® ^ ^ 
 
 a power of 1. That it may be resumed at the pleasure of the 
 
 subordinate *^ ± j 
 
 legislation, supreme legislature which granted it,^ If a legis- 
 lature called subordinate could retain any power in 
 defiance of the legislature called supreme, it would 
 cease to be a subordinate legislature, and would, in 
 fact, share the sovereign power with the so-called 
 supreme legislature. 
 
 2. That the laws made in virtue of it must not be 
 inconsistent with any law or rule of law made or 
 sanctioned by the supreme legislature in relation to 
 the same subject-matter. If a legislature called sub- 
 ordinate could, of its own authority, repeal or 
 modify the laws or rules of law made or sanctioned 
 
 * This limitation of a power of subordinate legislation is probably 
 what Locke meant by affirming, that " the legislative cannot trans- 
 fer the power of making laws to any other hands." — On Civil 
 Government, Part II. §141. By "transfer," he doubtless meant 
 "transfer absolutely,"' or ^' without power of revocation f* in which 
 sense the proposition is strictly true ; since an absolute grant to any 
 person or persons of the legislative power would be a communica- 
 tion to such person or persons of the sovereignty. The reason 
 which Locke assigns for this position is indeed erroneous, being 
 founded on his doctrine of a social compact. " The power of the 
 legislative (he says) being derived from the people by a positive vo- 
 luntary grant and institution, can be no other than what that posi- 
 tive grant conveyed, which being only to make laws, and not to 
 make legislators, the legislative can have no power to transfer their 
 authority of making laws and place it in other hands." — Ibid. ^ 141. 
 The power of the supreme legislature has not, and has never had, in 
 any country the origin which Locke here imagines. 
 
PRELIMINARY INQUIRY. * 61 
 
 by the supreme legislature, it would be co-ordinate 
 with, not subordinate to, such legislature. It is to 
 be observed, that the laws of a subordinate legisla- 
 ture must conform, not only with the laws made 
 directly, but also with those made indirectly, by the 
 supreme legislature. Consequently, they must con- 
 form with a law made by a subordinate legislature 
 in the dominant country, if such law should affect 
 the dependency. For example, the subordinate go- 
 vernment of an English dependency is bound by a 
 rule of law established by an English court, so far 
 as such rule of law extends to the dependency. 
 
 3. That its legislative acts are liable to be annulled 
 in consequence of the decision of a competent tribunal. 
 This attribute of subordinate legislation is a result 
 of the necessity that its acts should not be incon- 
 sistent with a law of the supreme legislature : for if 
 any act of a subordinate legislature is inconsistent 
 with a law of the supreme legislature, it is illegal; 
 and if it be illegal, there can scarcely fail to be a tri- 
 bunal which is competent to declare its illegality.* 
 
 * Bentham states the marks of subordinate political powers as 
 follows : 
 
 " La subordination d'un pouvoir politique a un autre est ^tabli 
 1°. par la cassabilit6 des actes ; 2". par la suj^tion aux ordres qu'il en 
 recj'oit." — Traites de Legislation, torn. i. p. 315. 
 
 If by " cassabilite des actes" Bentham means that the court which 
 annuls the acts of a subordinate legislature is generally superior to 
 it, this condition is not necessary. The power of annulling the acts 
 of a subordinate legislature may be entrusted to a court, which 
 may, together with the functionary or body of functionaries whose 
 acts are annulled, be subordinate to the sovereign government. The 
 court is indeed superior to the subordinate legislature /or that par- 
 ticular purpose^ but not generally. On the other hand, if he means 
 that the acts of a subordinate legislature can be repealed or modi- 
 
02 PRELIMINARY INQUIRY. 
 
 It sometimes happens, that in consequence of in- 
 vasion by a foreign enemy, or of internal dissensions, 
 the affairs of a popular government reach a crisis 
 demanding the rapidity and decision of execution, 
 which can only be obtained from a single will. In 
 such a crisis as this, the entire governing powers 
 may be delegated by the ordinary sovereign govern- 
 ment to an extraordinary officer, subject only to the 
 limitation that the delegation can at any moment 
 be recalled. Instances of this species of delegation 
 in republics are afforded by the Greek ^symnetes 
 and the Roman Dictator. A similar delegation may, 
 likewise, take place in a monarchy, with respect to 
 a part of the monarch's dominions, if the monarch 
 should be unable to be present on the spot, or should 
 not possess the energy and efficiency requisite for 
 
 fied by the supreme legislature, the condition is equally unnecessary ; 
 for the acts of the supreme legislature can be repealed or modified 
 by the supreme legislature. It seems, therefore, that by " cassabi- 
 lite des actes," Bentham meant only that the acts of a subordinate 
 legislature could be quashed by a competent tribunal, if they are 
 illegal ; according to the statement in the text. The second condi- 
 tion stated by Bentham (viz. the subjection to orders received from 
 the supreme power) applies principally to executive functionaries. 
 
 The following passage respecting by-laws in Bacon's Abridgment 
 describes with precision the second rule as to the acts of a subordi- 
 nate legislature, which is stated in the text. 
 
 " A by-law, with a penalty of imprisonment, or forfeiture of goods 
 and chattels, is void ; for by the general law of the kingdom, no 
 man is to be imprisoned or dispossessed of his goods and chattels, 
 nisi per legale judicium parium suorum, vel per legem terrce ; and 
 were by-laws with such penalties allowed, it would be enabling cor- 
 porations to set up private particular laws, in contradiction to the 
 laws of the land ; which would be against the very nature and 
 essence of a by-law ; which, though it may be prceter the general 
 law of the realm, it cannot be contra^ — Bacon's Abridgment, By- 
 law, (E.) 
 
PRELIMINARY INQUIRY. 63 
 
 the occasion. The officer styled alter ego in the 
 Neapolitan government, and perhaps known in some 
 other of the modern governments of southern Eu- 
 rope, affords an example of the latter mode of dele- 
 gation. Under such ample delegations as these, 
 the officer possesses a power of subordinate legisla- 
 tion, discharged of the two last of the three condi- 
 tions which have been just enumerated. 
 
 2. Since the power of issuing arbitrary commands 2. Deiega- 
 
 . 1 , , tionofar- 
 
 is sparingly exercised by the supreme governments bitrary 
 
 /•••T1 •• •111 1 powers by 
 
 of Civilized states, so it is not extensively delegated a sovereign 
 by them to political subordinates. Thus in England ment. 
 the power of dispensing with the laws is only con- 
 ceded to the Crown and its officers, in certain cases, 
 as for pardoning or mitigating the punishment of 
 convicts, for remitting custom and excise duties, for 
 excusing poor's rates. Generally, however, the 
 power of dispensing with the laws in individual 
 cases is in England exercised only by the supreme 
 legislature, as in the cases of divorce bills and pri- 
 vate estate bills. 
 
 3. The next species of the delegation of the 3. Deiega- 
 powers of government which we have to consider, executive 
 is the delegation of executive powers to political TsovCTeign 
 subordinates. SST" 
 
 These subordinates are called generally executive, 
 or, according to their special department, judicial or 
 administrative functionaries. The persons at the 
 head of the administrative offices are usually called 
 ministers of state. 
 
 It would be tedious to give a formal enumeration 
 
64 PRELIMINARY INQUIRY. 
 
 Executive Qf ^j^q several classes of the executive officers com- 
 
 Omcers. 
 
 monly employed by a sovereign government ; but 
 the following list will serve to exemplify the prin- 
 cipal varieties of them.* 
 
 Collectors of public taxes, and of rents of go- 
 vernment lands. 
 
 Paymasters. 
 
 Accountants. 
 
 Comptrollers and auditors. 
 
 Military and naval commanders. 
 
 Commissaries and guardians of naval and mili- 
 tary stores. 
 
 Judges. 
 
 Policemen. 
 
 Persons charged with sanitary and quarantine 
 regulations. 
 
 Ambassadors and consuls. 
 
 Ministers of religion. 
 
 Professors and schoolmasters. 
 
 Officers charged with the relief of the destitute. 
 
 Notaries public. 
 
 Registrars of births, deaths, and marriages. 
 
 The general nature of the executive powers dele- 
 gated to these functionaries has been explained 
 above ; and it has also been shown that, unless the 
 executive powers were delegated to a large number 
 of subordinate officers, the laws of a sovereign 
 government could not be carried into effi3ct. 
 Compara- With rcspcct to the comparative importance of 
 portance tlic legislative and executive powers, it may be 
 
 of legisla- 
 tive and * Compare Hobbes, Leviathan, Part II. ch. xxiii. 
 executive 
 powers. 
 
PRELIMINARY INQUIRY. G5 
 
 observed that a sovereign government possesses 
 both ; and that, inasmuch as each of these powers 
 implies the other, neither can exist alone. l3ut the 
 power of making laws, or issuing general commands, 
 is the more important of the two, as being the more 
 extensive in its operation ; and, accordingly, the 
 legislative power is in general only partially dele- 
 gated by a sovereign government ; whereas (as has 
 been already remarked) a government in general 
 delegates nearly the whole of its executive powers. 
 The executive officers, inasmuch as they act by 
 delegated powers, are subordinate to the sovereign 
 government, and are merely its ministers, for the 
 purpose of carrying its laws into eft'ect. Hence it 
 is in general an error to represent the legislative 
 and executive departments as having co-ordinate 
 and equal powers ; since a sovereign government in 
 general exercises its legislative functions, to a great 
 extent, directly ; whereas its executive functions are 
 in general delegated to subordinates. Moreover, 
 the power of making laws implies the power of 
 determining the delegation of executive functions 
 to subordinate officers, since it is by means of laws 
 that the delegation is made.* 
 
 * " The executive power, placed anywhere but in a person that 
 has also a share in the legislature, [this limitation is unnecessary] is 
 visibly subordinate and accountable to it, and may be at pleasure 
 changed and displaced .... Of other ministerial and subordinate 
 powers in a commonwealth we need not speak, they being so multi- 
 plied with infinite variety, in the different customs and constitutions 
 of distinct commonwealths, that it is impossible to give a particular 
 account of them all. Only thus much, which is necessary to our 
 present purpose, we may take notice of concerning them, that they 
 
 r 
 
66 PRELIMINARY INQUIRY. 
 
 Nevertheless, as a general command would be 
 nugatory, if means were not taken for enforcing it, 
 and as it is the duty of the executive to enforce the 
 general commands of the legislature, the executive 
 often attracts the larger share of public attention, 
 and the functions of government are supposed to 
 reside more peculiarly in it.* 
 
 Moreover, an extensive power of subordinate 
 legislation is always delegated to executive func- 
 tionaries ; such powers of subordinate legislation 
 being always (except in the case of judges) limited 
 to a certain subject or subjects, or to the purpose of 
 carrying a certain law or laws into effect. 
 
 have no manner of authority, any of them, beyond what is by posi- 
 tive grant and commission delegated to them, and are all of them 
 accountable to some other power in the commonwealth."' — Locke on 
 Civil Government, Part II. § 152. "When the legislative hath put 
 the execution of the laws they make into other hands, they have 
 a power still to resume it out of those hands, when they find cause, 
 and to punish for any mal-administration against the laws."-- Ibid. 
 ^153. Montesquieu did not see that a sovereign government exer- 
 cises directly most of its legislative functions, but delegates its 
 executive functions to subordinates. " II ne faut pas (he says) que 
 la puissance legislative ait reciproquement la faculte d'arreter la 
 puissance executrice." — Esprit des Lois, xi. 6. The legislative 
 power, if that power be exercised by the sovereign government, 
 must be superior to the executive power, if the executive power 
 be exercised by subordinates. 
 
 * Speaking of an oath for abjuration of the Pretender, in a Bill 
 brought into Parliament in 1701, Burnet says: 
 
 " The clause (in the oath) of maintaining the government in king, 
 lords, and commons, was rejected with great indignation ; since the 
 government was only in the king ; the lords and commons being 
 indeed a part of the constitution, and of the legislative body, but not 
 of the government.'' — Memoirs of his own Time, vol. iii. p. 413. 
 In like manner, the term government is commonly applied to the 
 ministers of the state, or the heads of the chief administrative de- 
 partments ; as when it is said that " there is to be a change of 
 government," that "a person is a supporter of the government," &c. 
 
PRELIMINARY INQUIRY. G7 
 
 Instances of the delegation of powers of subor- 
 dinate legislation to administrative functionaries, as 
 to the Roman edile, the Board- of Treasury, and the 
 revenue departments in England, the police depart- 
 ment in France and other continental states, have 
 been already given ; and, indeed, perhaps every 
 administrative officer has a power of subordinate 
 legislation to a greater or less extent. 
 
 The most extensive exercise of the powers of 
 subordinate legislation by executive functionaries 
 is that made by the judicial department, whose in- 
 direct legislative powers are (it is to be observed) 
 unlimited as to subjects. Some remarks have been 
 already made on the extent of the law which owes 
 its origin to judicial legislation, as compared with 
 the extent of that which is formed by the supreme 
 legislature.'^ 
 
 The following may be conceived to be the prin- Reasons 
 
 , 1 • 1 • 1 • why powers 
 
 cipal reasons which induce a sovereign government ofsubordi- 
 to delegate extensive powers of subordinate legis- tbn^f de- 
 lation to its executive officers. eScutive 
 
 If executive officers had no legislative power, and °®'^^"- 
 if they could issue no other command than a special 
 command founded upon a law previously made or 
 sanctioned by the supreme legislature, the laws of 
 the supreme legislature could scarcely be executed. 
 So great is, in general, the difficulty of foreseeing 
 numerous remote contingencies, and of exhausting 
 them by legal provisions, that the most carefully 
 
 * Above, p. 57. 
 
 f2 
 
68 PRELIMINARY INQUIRY. 
 
 considered and most skilfully executed work of 
 legislation would scarcely stand the test of practice, 
 unless it could be helped out with some subsidiary 
 regulations made by the persons employed to enforce 
 it. Moreover, it sometimes happens that a want of 
 appropriate knowledge in the supreme legislature, 
 and the scantiness of its time on account of the 
 variety of the subjects which come before it, and 
 successively claim a share of its attention, compel 
 it to be comparatively vague and meagre in the 
 composition of its laws ; and to trust to its executive 
 officers to supply the detailed regulations necessary 
 for carrying its general directions into complete 
 effect. It may be added, that changes of circum- 
 stances (such as the introduction of new customs 
 or new inventions) would render many laws in- 
 operative, if the executive officers did not possess a 
 power of making such regulations as would adapt 
 them to an altered state of things. 
 
 After a supreme legislature has laid down general 
 rules of extensive application, subordinate legis- 
 latures, consisting of executive officers, can develope 
 their provisions, and give them the requisite mi- 
 nuteness and completeness; having for that purpose 
 a more flexible and manageable power than the 
 supreme legislature, and being able to act with a 
 less elaborate machinery. 
 
 The universal practice of delegating powers of 
 subordinate legislation to executive functionaries, 
 shows that the legislative and executive departments 
 
PRELIMINARY INQUIRY. 69 
 
 of the government can be distinguished only by the 
 powers exercised, and not by the persons exercising 
 them. 
 
 4. Lastly, it remains for me to notice the dele- ^: Oeiega- 
 gation of the inquisitorial powers of a sovereign quisitoriai 
 
 * ^ powers by a 
 
 government. sovereign 
 
 Powers of inquiry for judicial and administrative ment. 
 purposes are delegated extensively to judicial and 
 administrative functionaries. 
 
 A power of inquiry for legislative purposes is not 
 in general delegated, except to a subordinate govern- 
 ment. But the boundaries between legislative and 
 executive inquiries are not always distinctly marked, 
 since an inquiry for an administrative purpose may 
 suggest improvements in the existing laws. 
 
 Respecting the means by which the powers of M«an» ^y 
 government are delegated, it may be observed, that ticai powers 
 they are delegated either expressly, by an oral or gated. 
 written declaration of the sovereign government ; 
 or impliedly, by a tacit signification of its pleasure ; 
 as, for example, by constitutional usage. 
 
7Q> DEFINITION OF A DEPENDENCY AND [cH, 
 
 s. 
 
 AN ESSAY ON THE GOVERNMENT OF DEPENDENCIES. 
 
 / CHAPTER I. 
 
 Definition of a dependency and of a subordinate government. 
 
 In the preceding Inquiry, I have attempted to ex- 
 plain the nature of supreme and subordinate powers 
 of government, and the mode in which the latter 
 are delegated. I have also shown in it that by 
 a general delegation of political powers a depen- 
 dency with a subordinate government is created. 
 The detailed examination of the nature of a depen- 
 dency and its subordinate government was reserved 
 for the present Essay.* 
 
 Depen- A dependency is a part of an independent poli- 
 
 fi^!^ ^1 tical community which is immediately subject to a 
 
 I subordinate government. 
 
 Dominant That part of the independent political community 
 
 country de- , . , . 
 
 fined. which is composcd of the supreme govemnient, and 
 of the persons immediately subject to such supreme 
 government, may, with reference to the dependency, 
 be styled the dominant community, or country.'\ 
 
 * See above, p. 59. 
 
 t ^'oXi? Tv^avvos, or ^okis a^x^v txovtrct, according to the expressions of 
 Thucydides. See Thuc. i. 122. 124. vi. 85. The word i^^n was pe- 
 culiarly appropriated to dependencies ; see Thuc. i. 67. ii. 96, 97. 
 iii. 37, vi. 90. 
 
 M. de Sismondi uses a similar expression, in speaking of the 
 
I.] OF A SUBORDINATE GOVERNMENT. 71 
 
 The supreme government is common to the domi- 
 nant country and the dependency ; but since the 
 persons composing it are in general natives of the 
 dominant country, and since it is the government 
 to which the people of the dominant country are 
 directly subject, the members of it may be properly 
 considered as belonging to the dominant community. j 
 A subordinate government''^ is a government Subor(i. 
 which acts by delegated powers, but which pos- vemment 
 
 T 1 T ^ n defined, 
 
 sesses powers applicable to every purpose oi govern- 
 ment, which is complete in all its parts, and would 
 be capable of governing the district subject to it, if 
 the interference of the supreme government with 
 its proceedings were altogether withdrawn. 
 
 A subordinate government resembles a sovereign 
 
 Venetian republic, and its subjects, though he has probably not 
 borrowed it from Thucydidcs. 
 
 •'La republique de Venise etoit formce, en quelque sorte, de trois 
 nations : les Venitiens, les peuples de terre firme, ct les Levantins. 
 Ix?s habitans de Venise meme et des lagunes se regardoient comme 
 Ic peuple-roi ; les prerogatives de la souvcrainete n'appartenoient, il 
 est vrai, qu'a un corps de noblesse peu considerable, forme au sein 
 de cette nombreuse population ; mais tons les Venitiens sesentoient 
 encore membres de la republique, et dominateurs dans les pays 
 qu'ils avoient conquis." — Histoire des Rep. Ital. ch. 80. (torn. x. 
 p. 261.) 
 
 * By a subordinate government, I mean, (as I have stated in the 
 text,) a government not being sovereign, but having the complete 
 organization which characterizes the sovereign government of an 
 independent political society; in other words, possessing all the 
 political powers which a government (;an possess, and all the insti- 
 tutions requisite for the exercise of them. A body of public 
 functionaries may preside for certain purposes over a district (as a 
 county, department, municipality, or borough) which is imme- 
 diately subject to a sovereign government; but inasmuch as the 
 powers of such a body only extend over certain classes of subjects, 
 it cannot be said, with propriety, to fwm the subordinate govern- 
 ment of the district. 
 
72 DEFINITION OF A DEPENDENCY AND [cH. 
 
 government in this : that it is completely organized, 
 and possesses all the institutions requisite for the 
 performance of the several functions which are proper 
 to a government. It differs from a sovereign go- 
 vernment in this ; that it is subordinate to, or, in 
 other words, in the habit of obeying, the govern- 
 ment of another political society. 
 
 A subordinate government resembles a body of 
 functionaries exercising certain powers of govern- 
 ment over a district which is immediately subject to 
 a sovereign government, (such as a county, depart- 
 ment, municipality, or borough,) in being subor- 
 dinate to a sovereign government. It differs from 
 such a body of functionaries, in possessing the full 
 complement of the powers and institutions requisite 
 for governing a political community. For example ; 
 the town-council of an English borough, with the 
 other borough officers, though they exercise many 
 of the functions of government in the borough, do 
 not exercise them all ; and it would be necessary for 
 the borough, if the interference of the supreme go- 
 vernment were withdrawn from it, to create new 
 public departments, before it would possess a com- 
 pletely organized government, capable of presiding 
 over an independent political society. 
 
 Several dependencies may be subject to the same 
 supreme government ; or, in other words, may be 
 dependent on the same dominant community. 
 
 The district subject to a subordinate government 
 is necessarily less extensive than the entire territory 
 subject to the supreme government. 
 
VM IJJJ: ' /" \ 
 
 I.] OF A SUBORDINATE GOVERNMJSli^. "'^ -^ ^^*?i^ ^1 
 
 The entire territory subject to a supreme govern- Empire 
 ment possessing several dependencies (that is to 
 say, a territory formed of a dominant country 
 together with its dependencies), is sometimes styled 
 an empire ; as when we speak of the British empire. 
 Agreeably with this acceptation of the word empire, 
 the supreme government of a nation, considered 
 with reference to its dependencies, is called the 
 imperial government^ and the EngHsh Parliament is 
 called the imperial parliament, as distinguished 
 from the provincial parliament of a dependency.* 
 
 * Burke, in the following passage, considers an empire to be a 
 system of communities, one supreme, the others subordinate, and 
 distinguishes it from the dominant nation, which is a single com- 
 munity. " I look on the imperial rights of Great Britain, and the 
 privileges which the colonists ought to enjoy under these rights, to 
 be just the most rcconcilelabe things in the world. The parlia- 
 ment of Great Britain sits at the head of her extensive empire in 
 two capacities : one as the local legislature of this island, providing 
 for all things at home, immediately, and by no other instrument 
 than the executive power. The other, and I think, her nobler 
 capacity, is what I call her imperial character ; in wjiich, as from 
 the throne of heaven, she superintends all the several inferior 
 legislatures, and guides and controls them all without annihilating 
 any. As all these provincial legislatures are only co-ordinate to 
 each other, they ought all to be subordinate to her." After some 
 other remarks, he adds : " Such, Sir, is my idea of the consti- 
 tution of the British empire, as distinguished from the consti- 
 tution of Britain." Speech on American Taxation. Works, vol. ii. 
 p. 435-7. 
 
 Again, he says, in his speech at the conclusion of the poll at 
 Bristol : " We are now members for a rich commercial city ; this 
 city, however, is but a part of a rich commercial nation, the in- 
 terests of which are various, multiform, and intricate. We are 
 members for that great nation, which, however, is itself but part of 
 a great empire, extended by our virtue and by our fortune to the 
 furthest limits of the east or the west." — Works, vol. iii. p. 21. 
 
 The word reich has a similar acceptation in German. One of 
 the meanings attributed to it by Adelung, in v. is, " Der ganze 
 Umfang aller cinem gekronten Oberhaupte unterworfenen Pro- 
 
74 DEFINITION OF A DEPENDENCY AND [CH. 
 
 Nature of Siiice a dependeiicv is characterized by its being: 
 
 the political ... "^ ^ 
 
 powers de- immediately subject to a subordinate g-overnment, 
 
 legated to . . . 
 
 a subordi- and since a subordinate government is characterized 
 
 nate go- 
 vernment, by the completeness of its delegated powers, and 
 
 their applicability to every purpose of government, 
 we proceed to consider in detail the nature and 
 extent of the powers which are delegated to a sub- 
 ordinate government. 
 1. General The most important power delegated to a subor- 
 suboTdLate dinate government is a general power of subordi- 
 egisaion. ^^^^ legislation, as distinguished from a special 
 power of subordinate legislation. 
 
 The difference between a general and a special 
 power of subordinate legislation may be described in 
 the following manner. 
 
 A general power of subordinate legislation is 
 necessarily limited by the conditions* to which 
 all delegated or subordinate political power is 
 liable ; but it is unlimited as to the subjects to 
 which it may be applied within the assigned 
 
 vinzen.'' The Greek work apxK when used with reference to 
 dependencies, has been translated empire. See Mr. Clinton's Fasti 
 Hellenici, vol. ii. App. 6 and 7. Compare Wachsmuth, Hellenische 
 Alter tlmmskundc, i. 2. p. 69, " Zur rechten Erkenntniss desselben 
 bedarf es einer Nachweisnng der Stufen, durch welche die Athenische 
 Seeherrschaft zu der Hohe aufstieg, wo eine unbestrittene Ge- 
 walthaberschaft (iber Inseln und Kiisten, gleich einem Athenischen 
 Reiche, zum Unterschiede von dem Athenischen Staate, bestand." 
 
 The Latin word imperium commonly signifies the dominion 
 itself, and not the people or territories subject to the dominion : it 
 bears, however, the latter meaning in the following passage of 
 Tacitus, where Galba says to Piso, " Si immensum imperii corpus 
 stare ac librari sine rectore posset, dignus eram a quo respublica 
 inciperet." — Hist. i. 10. 
 
 * See those conditions stated above, p. 60, 61. 
 
I.] OF A SUBORDINATE GOVERNMENT. 75 
 
 territory. Accordingly, where a general power 
 of subordinate legislation has been delegated, the 
 subordinate legislature can make a law upon any 
 subject, provided that the law which it makes 
 be not inconsistent with a law established by the 
 supreme legislature in relation to the same subject, 
 and provided that the subordinate legislature be not 
 prohibited by a law of the supreme legislature from 
 legislating on such subject. For example, when a 
 Roman governor was sent into a province, he could 
 make an}' law in the province which was not incon- 
 sistent with the rules established by Rome for the 
 government of the province upon its first reduction, 
 or with some law, binding the province, subse- 
 quently made by the supreme legislature. Again, 
 the subordinate government of an English de- 
 pendency (consisting of the crown and a body of 
 persons in the dependency) is competent to make 
 any law which is not inconsistent with some act of 
 parliament, or some recognized rule of common (or 
 unwritten) law, binding the dependency. 
 
 But where a special power of subordinate legis- 
 lation has been delegated, the subordinate legislature 
 can only make a law concerning the subject or 
 subjects upon which it is, either expressly, or by 
 necessary implication, empowered to legislate. For 
 example, if Commissioners of Revenue are invested 
 with a power of regulating the mode in which a tax 
 is to be levied; if a municipal body is invested 
 with powers of regulating the paving, lighting, and 
 watching a town ; if a judge is empowered to esta- 
 
76 DEFINITION OF A DEPENDENCY AND [CH. 
 
 blisli rules of procedure for his own court, these 
 functionaries acquire no power of legislation which 
 is not expressly or implicitly conferred upon them 
 by the terms of the delegation. A subordinate 
 government possesses a power of legislating on 
 every subject which is not, tacitly or expressly, 
 excepted from its powers. A special subordinate 
 legislator possesses no legislative power which has 
 not been expressly, or by clear implication, con- 
 ferred upon him. Consequently, in the latter case 
 the presumption of law is against, in the former 
 case it is in favour of, the existence of any given 
 legislative power.* 
 
 Hence, the legislative power of a subordinate 
 government is subject only to one legal limitation ; 
 viz., that its laws must not be inconsistent with any 
 law of the supreme government binding the de- 
 pendency. The legislative power of a subordinate 
 legislator, having a special power of subordinate legis- 
 lation, is subject to two legal limitations ; viz. 1. Its 
 
 * The distinction between general and special political powers is 
 pointed out by Hobbes : " Of public ministers, some have charge 
 committed to them of a general administration, either of the whole 
 dominion, or of a part thereof ; of the whole, as to a protector or 
 regent may be committed by the predecessor of an infant king, 
 during his minority, the whole administration of his kingdom . . . 
 of a part or province, as when either a monarch or a sovereign 
 assembly shall give the general charge thereof to a governor, lieu- 
 tenant, praefect, or viceroy . . . Others have special administration ; 
 that is to say, charges of some special business, either at home or 
 abroad ;" and he then proceeds to enumerate various sorts of exe- 
 cutive functionaries, as those having authority concerning the public 
 treasure, those having authority concerning the militia, those having 
 authority to teach, those to whom jurisdiction is given, and the 
 like.— Leviathan, Part II. ch. 23. 
 
1.] OF A SUBORDINATE GOVERNMENT. 77 
 
 laws must not be inconsistent with a law of the su- 
 preme government. 2. It must only legislate on the 
 subject or subjects on which it has been expressly, 
 or by necessary implication, empowered to legislate. 
 
 A subordinate government may be restrained by 
 the supreme government from legislating on a given 
 subject. But in this case the restriction would be 
 made by specifically excepting the subject from the 
 unlimited number of subjects to which the power 
 of legislation possessed by the subordinate govern- 
 ment is otherwise applicable. The same remark 
 likewise extends to restraints placed on any other of 
 the powers of a subordinate government, such as its 
 executive powers. 
 
 The supreme government may, however, delegate 
 a general power of subordinate legislation to a func- 
 tionary or body of functionaries, without creating a 
 subordinate government by the delegation. In other 
 words, a government may confer a power of subor- 
 dinate legislation, which may be exercised over an 
 unlimited number of subjects, without conferring at 
 the same time general political powers, or powers 
 which can be applied to every purpose of government. 
 For example, in every civilized country the judges 
 exercise indirectly a general power of subordinate 
 legislation, with the approbation of the supreme 
 legislature; in other words, they legislate indirectly 
 on an indefinite or unlimited number of subjects. 
 Moreover, judges may exercise directly a general 
 power of subordinate legislation ; thus the Roman 
 praetor legislated directly, in his judicial capacity. 
 
78 DEFINITION OF A DEPENDENCY AND [CH. 
 
 by his edict.* But a court having a power of legis- 
 lating directly, after the manner of the prsetorian 
 edict, would be far from possessing all the powers of 
 a subordinate government. For in the first place, a 
 court thus constituted would want the administrative 
 powers which a subordinate government possesses : 
 such as the power of disposing of the armed force, 
 or the general power of levying taxes. Moreover, 
 since all its legislative powers would be the conse- 
 quence of its judicial powers, its powers of subor- 
 dinate legislation could scarcely have, in practice, as 
 extensive a range as the powers of subordinate legis- 
 lation possessed by a subordinate government ; thus, 
 it could scarcely make laws for the government of 
 the army and navy. 
 
 It follows from the preceding remarks, that the 
 powers of legislation delegated to a subordinate 
 government enable it to make any law which is not 
 inconsistent with a law of the supreme government 
 binding the dependency. It is often difficult in 
 practice to determine which are the laws of a 
 supreme government that bind a dependency. 
 Some observations with reference to the English 
 practice on this point will be made lower down.f 
 
 It likewise follows that a legislative act affecting 
 a dependency may proceed immediately either from 
 the supreme government, or from the subordinate 
 government; or that the subordinate government 
 may issue the act, but in obedience to instructions 
 from the supreme government. 
 
 * See above, p. 52, 53. t Below, Ch. V. 
 
I.] OF A SUBORDINATE GOVERNMENT. 79 
 
 Moreover, a supreme government may make a 
 law affecting a dependency, defeasible or sus- 
 pendible at the pleasure of the subordinate govern- 
 ment of the dependency ; or it may annex to the 
 law any condition to be fulfilled by the subordinate 
 government. 
 
 In addition to the power of making laws, a 2. Power 
 general delegation of political powers confers on arbTtrary^ 
 
 . , , . , , p . . commands. 
 
 the subordmate government a power 01 issumg an 
 arbitrary command (that is, a special command not 
 founded on a pre-existing law"^), provided that such 
 arbitrary command be not inconsistent with some 
 law of the supreme government binding the de- 
 pendency. 
 
 It has been remarked in the Preliminary Inquiry, 
 that an arbitrary command, though it be not (like 
 an executive command or act) founded upon an 
 existing law, and though it be not itself a law, yet is 
 often invested with the legislative forms ; f and this 
 remark applies equally to arbitrary commands or 
 prwilegia issued by supreme, and to those issued by 
 subordinate governments. :j: 
 
 Moreover, besides the powers of making laws 3. Power 
 
 ^ o ' ' 1 • 1 111 ofexecut- 
 
 and of issuing arbitrary commands, a general dele- ingthe 
 gation of political powers confers on a subordinate 
 government a power of carrying into eflfect, by ex- 
 
 * Above, p. 15—17.' 
 
 •y Above, p. 45, 46. 
 
 % The power of a subordinate government to make a penal pri- 
 vilegium was much discussed in thesummer of 1838, with reference 
 to Lord Durham's ordinance for transporting certain Canadians to 
 Bermuda. See the question well stated and argued in the Law 
 Magazine, vol. xx. p. 384 — 390. 
 
80 DEFINITION OF A DEPENDENCY AND [CH. 
 
 ecutive commands or acts, all the laws in force in 
 its territory. It has been explained above, that the 
 legislative power implies the power of determining 
 the manner in which the executive power shall be 
 delegated ;* and thus a general power of subordinate 
 legislation naturally involves a power of creating an 
 executive machinery for the use of the dependency, 
 and of remodelling it at pleasure. 
 
 It has been shown above, that a supreme govern- 
 ment always delegates its executive powers to cer- 
 tain subordinate functionaries ; f and that it also 
 delegates to these functionaries some special powers 
 of subordinate legislation, more or less extensive or 
 important. :]: In this respect there is no difference 
 between a supreme and a subordinate government. 
 The delegation of powers to executive officers is 
 precisely similar in both cases. 
 4. inqui- ^ general delegation of political powers, likewise, 
 power. confers on a subordinate government inquisitorial 
 powers, not only for executive, but also for legisla- 
 tive purposes. 
 
 From the preceding enumeration of the powers 
 belonging to a subordinate government, it results 
 that a subordinate government possesses all the four 
 sorts of powers which belong to a supreme govern- 
 ment,§ and consequently that it possesses powers 
 applicable to every purpose to which the powers of 
 a government can be applied. 
 Compara- The delegation of a general power of subordinate 
 
 tive import- 
 
 * Above, p. 65. t Above, p. 51. 
 
 % Above, p. 66. § See above, p. 6 — 46. 
 
[l.] OF A SUBORDINATE GOVERNMENT. 81 
 
 legislation to the government of a dependency is anceofaub- 
 more important than the delegation of a special legisiati.m 
 
 , . , . . . , ofasubor- 
 
 |x>wer of siibordmate legislation to a municipal or dinate go- 
 other executive body, not only on account of the Ind'Tubor- 
 greater number of subjects to which the general glsiai^on'of 
 power is applicable, but also on account of the function- 
 greater frequency of the occasions for its exercise.* '^"'''' 
 
 A subordinate legislature cannot, as has been 
 already remarked, make a law inconsistent with a 
 law of the supreme legislature affecting the depen- 
 dency ; still less can it repeal or alter any such law. 
 Accordingly, if the supreme government had legis- 
 lated extensively for the dependency, there would 
 be little scope for the exercise of the powers of sub- 
 ordinate legislation possessed by its own peculiar 
 government, however extensive those powers might 
 be. But, in general, on account of the difference 
 between the circumstances of the two countries, or 
 the remoteness of the dependency, or its recent acqui- 
 sition by the dominant country, or some other cause, 
 the supreme government has scarcely legislated at all 
 for its internal regulation. Therefore, a wide field 
 for the exercise of its legislative powers is in general - 
 open to the subordinate government. For example, 
 few acts of parliament relate to the internal govern- 
 ment of any English dependency, excepting so far as 
 they determine the structure or powers of its sub- 
 ordinate government ; as the late Act renewing ihe- 
 
 * On the comparative quantity and character of the laws made by 
 the supreme and subordinate legislatures of a country, see the 
 remarks above, p. 57, 5S. 
 
 O 
 
82 DEFINITION OF A DEPENDENCY AND fCH. 
 
 charter of the East India Company, and the acts re- 
 lating to the constitution of Canada. The acts of parr 
 Hament applicable to the English dependencies chiefly 
 regulate their commercial or other relations with Ena^- 
 land, or with one another, or with foreign countries ; 
 as the Navigation Act, and the acts relating to the 
 transportation of convicts, and the slave trade. ^ 
 Separate- From the generality of the powers of a siibor- 
 subordinate diuatc government, and the completeness of its 
 ment. " administrative and judicial machinery, it likewise 
 follows that a dependency is as little incorporated 
 with the dominant community, and its government is 
 as distinct, as is consistent with its being an integral 
 part of the same independent political society. 
 I Accordingly, a dependency is not understood to 
 be included in a commercial treaty with the domi- 
 nant country, if the dominant country is alone 
 named.* A treaty of peace or declaration of war is, 
 however, understood to include dependencies with- 
 out their being named ; and a dominant country is 
 as responsible to other independent states for the 
 conduct of the inhabitants of its dependencies as of 
 any other part of its dominions. 
 
 It may be here remembered, with reference to 
 the separateness of a dependency, that a circum- 
 stance very characteristic of a dependency is, that 
 
 * See Stokes, Constitution of the British Colonies, p. 13. In 
 like manner, the Act 12 Ch. II., c. 4, s. 1, which granted to the king 
 a subsidy of five per cent, on all merchandise exported from or 
 imported into the realm of England, or " any of His Majesty's 
 dominions to the same belonging," was held not to include the 
 colonies. See Bancroft's History of the United States, vol. ii. p. 41 . 
 Compare Montesquieu, Esprit des Lois, 1. xxi. c. 21. 
 
I.] OF A SUBORDINATE GOVERNMENT. 83 
 
 the revenue and expenditure of its subordinate go- 
 vernment constitute a separate account ; and that no 
 part of its public revenue and expenditure is mixed 
 with the public accounts of the dominant country. 
 A district immediately subject to the supreme go- 
 vernment (such as a county, department, borougli, 
 or parish) may keep a separate account of certain 
 public taxes collected and disbursed by it ; but other 
 taxes are collected in the district by the agents of 
 the supreme government, the proceeds of which it 
 expends and accounts for. It makes no difference 
 as to the separateness of the public accounts of a 
 subordinate government, whether the dependency 
 does or does not pay a tribute to the supreme go- 
 vernment. 
 
 The delegation of political powers to the govern- i^t>wer of i 
 ments of dependencies is so extensive, that there is eucy to 
 no political power which has not been exercised by 
 some subordinate government. In general, how- 
 ever, the power of making war of their own au- 
 thority is withheld from the subordinate govern- 
 ments of the dependencies of civilized states; but 
 it has often been exercised by the oriental satraps 
 and pachas, and a power of self-defence against 
 invasion must necessarily be allowed to the go- 
 vernments of all distant dependencies, such as 
 the American, Indian, and Australian dependemdes 
 of England.* 
 
 * Volney considers the wars between the pachas, or governors 
 of provinces, in the Turkish empire, as marks of their virtual 
 independence. "II arrive quelquefois (he says) que les pachas, 
 sultans dans leurs provinces, ont entre eux des haines personnellcs ; 
 
 g2 
 
84 DEFINITION OF A DEPENDENCY AND [cH. 
 
 ^'^'Int^/of "^^^^ payment of a tribute^ by one political com- 
 a tribute is munity to another is a mark that the tributary 
 
 a mark of , -^ 
 
 political community is dependent on the other; provided 
 ence. that, in case the tribute is withheld, the payment 
 
 of it can be exacted by the community which 
 expects to receive it. But the payment of a tribute 
 is not universally a mark of dependence; for the 
 payment may be made voluntarily, and not under 
 the fear of its exaction by force. For example, when 
 the kings of England paid the proceeds of the Peter's 
 pence to the Pope, this payment did not render 
 England a dependency of the State of the Church. 
 In like manner, one community may buy off the 
 hostility of another, by the payment of a tribute, and 
 yet retain its political independence. Thus when 
 Sweden, Denmark, and Portugal made regular pay- 
 ments to Algiers, in order to insure their ships against 
 the piracies of the Algerines, these countries did not 
 become dependencies of the Algerine government. A 
 payment of the latter sort may be compared to the 
 hlack-mail paid by the landowners in the Scotch low- 
 lands to the highland marauders, as the price of the 
 
 pour les satisfaire, ils se prevalent de leur pouvoir, et ils se font 
 mutuellement des guerres sourdes ou declar^es, dont les efFets 
 ruineux tombent toujours sur les sujets du sultan." — Volney, Voyage 
 en Egypte et en Syrie torn. ii. p. 225. It is manifest that if different 
 parts of the same empire have a habit of making war against one 
 another, they do not habitually obey a common superior ; but occa- 
 sional instances of such wars, in so ill-compacted and ill-regulated 
 a system as that of an Oriental empire, would not be a proof of inde- 
 pendence. 
 
 * By a tribute I understand a payment made periodically by one 
 government to another government, not as a compensation for a 
 wrong or in discharge of a debt. 
 
I.] OF A SUBORDINATE GOVERNMENT. 85 
 
 security of their cattle ; which payment had not the 
 effect of being an acknowledgment to those who re- 
 ceived the money that they had any right in the soil.* 
 
 Havino; examined the nature of the delegation of pistiibu- 
 
 ^ ^ » tioii of the 
 
 political powers to a subordinate government, I persons 
 
 * * ^ ^ composing 
 
 proceed to consider the manner in which the persons a subonii- 
 
 nate go- 
 
 composing such a government may be distributed, vemment. 
 
 A subordinate government never consists exclu- 
 sively of persons resident in the dominant country ; 
 since the purpose for which a subordinate govern- 
 ment is created, is to enable the dependency to be 
 governed by persons resident on the spot. If the 
 dependency could be governed by the supreme go- 
 vernment directly, or by a subordinate government 
 consisting of persons resident in the dominant 
 country, there would be no need of creating the 
 subordinate government, or of governing the country 
 as a dependency. Every government must have a 
 power of communicating rapidly with its subjects ; 
 and, consequently, a territory which lies at a con- 
 siderable distance from the seat of the supreme 
 government must be placed under a subordinate 
 government, and be governed as a dependency. It 
 will be shown lower downf that the idea of distance, 
 with reference to the government of a territory, is 
 relative, and depends on the political skill, and the 
 
 * So the obligation to pay a tribute to Athens did not, when tlie 
 payment was purely voluntary, import that the state was an Athe- 
 nian dependency. — See Boeckh's Public Economy of Athens, b. 3. 
 c. 15. (vol. ii. p. 147. English translation.) Wachsmuth, Hellenische 
 Alterthumskunde, i. 2, p. 80. 
 
 t Below. Ch. IV. 
 
/ 
 
 86 DEFINITION OF A DEPENDENCY AND [CH. 
 
 facilities of communication with the territory in 
 question, which the supreme government possesses. 
 
 A subordinate government may, therefore, either 
 consist exclusively of persons resident in the de- 
 pendency, or it may consist partly of persons resi- 
 dent in the dominant country and partly of persons 
 resident in the dependency. 
 
 The former is the more simple system, and it was 
 followed in the dependencies of the ancient repub- 
 lics, as in the subject states of Athens and in the 
 Roman provinces. It has also been adopted in the 
 inartificial monarchies of Asia, both in ancient and 
 modern times. 
 
 The more complex system of dividing the subor- 
 dinate government into two portions, one of which 
 is in the dominant country, the other in the de- 
 pendency, has been adopted for the government of 
 the dependencies of modern European states, as 
 Spain, France, Holland, and England. According 
 to the modern English phraseology, that portion of 
 the subordinate government which consists of per- 
 sons resident in the dominant country is usually 
 called the home government; and that portion of it 
 which consists of persons resident in the dependency 
 is usually called the local government. 
 
 Where the subordinate government is thus di- 
 vided, it is sometimes a complex whole, in which 
 the consent of both portions is requisite to the 
 making of a law. Sometimes the portion in the 
 dependency is completely subordinate to the portion 
 in the dominant country, and the latter may legis- 
 
I.] OF A SUBORDINATE GOVERNMENT. 87 
 
 late without the consent of the former. In this 
 case, a sub-delegation may be considered as taking 
 place, as in an English crown colony : and the 
 viceroys of the Spanish colonies seem to have 
 formerly occupied a similar position with respect to 
 the council of the Indies. Sometimes the portion in 
 the dependency can legislate without the consent of 
 the portion in the dominant country, as appears to 
 have formerly been the case with the English colo- 
 nies in America. 
 
 It may be observed, that the members of the 
 subordinate government, resident in the dominant 
 country, are usually in close connexion with the 
 supreme government, and are often members of it ; 
 and that since, in general, the supreme government 
 legislates rarely concerning the internal aflPairs of 
 a dependency, the members of the subordinate go- 
 vernment, who are resident in the dominant country, 
 form the chief link between the dominant country 
 and the dependency. 
 
 When the powers of the subordinate government 
 are divided between persons resident in the domi- 
 nant country, and persons resident in the depend- 
 ency, the share in the power of subordinate legisla- 
 tion, which is exercised by persons resident in the 
 dependency, may either be conferred exclusively on 
 a person or persons appointed by the home govern- 
 ment, or it may be conferred on the nominees of the 
 home government, conjointly with a body of persons 
 chosen by the inhabitants of the dependency. 
 
 On the nature and extent of the powers of a 
 
88 DEFINITION OF A DEPENDENCY AND [cH. 
 
 body so elected in a dependency, possessing 
 a share of the power of subordinate legislation, 
 and on the relation of such a body to the supreme 
 government, some further remarks will be made in 
 a subsequent part of this Essay.* 
 
 The portion of a subordinate government which 
 consists of persons resident in the dependency, may 
 be principally composed either of natives of the 
 dominant country or of natives of the dependency 
 itself. We shall hereafter point out that the differ- 
 ence between the two latter modes of government is 
 of great importance, although the form of the go- 
 vernment is the same.t It may be added, that the 
 headship of the subordinate government in the de- 
 pendency is almost invariably entrusted to a native 
 of the dominant country. 
 Number of The dependencies of a monarchy have always 
 
 the persons i i • i i i • i 
 
 comprising bccu govcmcd by a single governor, who has united 
 dinatego- in liimsclf all the powers delegated to the subordi- 
 nate government. This has been the case with the 
 satraps, pachas, and other governors under the 
 Oriental monarchies, and with the Spanish viceroys 
 of the Indies. J 
 
 A dependency of a state having a popular go- 
 vernment has sometimes been governed by a single 
 person, and sometimes by a body composed of 
 several persons. Thus in the Athenian dependencies 
 the subordinate government was conducted by a 
 
 * Below, Ch. IX. § 2. 
 t Below, Ch. IX. § 2. 
 X See note (F.) at the end of the volume. 
 
I.] OF A SUBORDINATE GOVERNMEl 
 
 
 o:f 
 
 democratic body; the subordinate govei 
 the Roman mimicipia was conducted by a body of 
 councillors, whilst the Roman provinces were gene- 
 rally subject to a single governor; the Venetian 
 dependencies were placed under a government 
 having an organization similar to that of the domi- 
 nant republic ; in the British dependencies the le- 
 gislative power of the governor is almost always 
 checked by a body of persons who are either ap- 
 pointed by the Crown or elected by the inhabitants 
 of the dependency. 
 
 There are some other questions connected with Examma- 
 
 *■ tion of two 
 
 the government of a dependency, which may be questions. 
 conveniently examined in this place. dependency 
 
 create a de- 
 It may be asked, whether there can be a depend- pendency? 
 
 ency of a dependency ? and whether a subordinate 
 
 government can create a subordinate government ? 
 
 There is nothing in a power of this sort repug- 
 nant to the idea of a dependency. Provided such a 
 delegation be not prohibited by the laws of the su- 
 preme government, a subordinate government may 
 make a general delegation of its powers with respect 
 to a portion of the territory subject to it. But it is 
 generally considered out of the province of a subor- 
 dinate government to create another subordinate 
 government ; and there is a manifest inconvenience 
 in the existence of a double row of dependencies, 
 "since a law would have to pass through two I6cal 
 governments before it came under the revision of 
 the home government. 
 
 Some of the English dependencies are said to 
 
head? 
 
 90 DEFINITION OF A DEPENDENCY AND [CH. 
 
 have dependencies of their own, as Jamaica and 
 Malta. These are small islands near to Jamaica 
 and Malta, which are comprehended in the same 
 subordinate government. They would, perhaps, be 
 more correctly styled " appendages " or " appur- 
 tenances " than " dependencies."* 
 2. Whether j^ mav furtlicr be asked whether one political 
 
 one com- y ^ a 
 
 munity is community is dependent on another, when the head 
 
 dependent . . , 
 
 on another, 01 thc govemmcnt 01 the one community is also 
 
 govern- head of the government of the other. 
 
 a common If tlic head of ouc poHtical community becomes 
 the head of another such community, and he pos- 
 sesses the entire sovereignty (or is monarch) in 
 both communities, the two communities become 
 integral parts of the same empire ; and either they 
 may both be governed directly by the monarch, or 
 one of them may be placed by him under a subor- 
 dinate government, and be governed as a depen- 
 dency. Thus, the Netherlands, the kingdom of the 
 two Sicilies, and the duchy of Milan, were integral 
 parts of the Spanish empire in the sixteenth century ; 
 and were governed as dependencies of Spain. If 
 the distance would have permitted, these territories 
 might have been governed directly by the supreme . 
 government, in the same manner that the several 
 independent kingdoms of the Spanish peninsula 
 became directly subject to one monarch.. 
 
 If the head of the o^overnment in the two com- 
 
 * In like manner, the French dependencies, Guadaloupe and 
 Senegal, are said to have dependencies of their own : Ilaynal, vol. iv. 
 p. 182. Notices Statistiques sur les Colonies Frangaises, Part. III. 
 p. 143. 
 
r.] OF A SUBORDINATE GOVERNMENT. 91 
 
 munities does not possess the entire sovereignty (or 
 is not monarch) in both, each community remains 
 independent of the other. In order that two com- 
 munities should be united under one sovereign 
 government, it is necessary that the same govern- 
 ment should be sovereign over both ; which is not 
 the case if the only political connexion subsisting 
 between them is, that a person who is member 
 of the sovereign body in one community is also 
 member of the sovereign body in the other; or, 
 that a person who is member of the sovereign body 
 in one community possesses the entire sovereignty 
 (or is monarch) in the other. Thus, the late king 
 of England was a member of the sovereign body in 
 the British empire, and was likewise a member of 
 the sovereign body in the kingdom of Hanover. But 
 Great Britain and Hanover were not on this account 
 constituent parts of the same political community ; 
 nor was either country a dependency of the other. So 
 after the union of the crowns of England and Scot- 
 land, Scotland was still an independent community, 
 inasmuch as the king and the English parliament, 
 could not legislate in it: and it was not till the union 
 of 1707 that England and Scotland became one poli- 
 tical community, and subject to a common govern- 
 ment.* By this union, Scotland was rendered 
 immediately subject to the supreme government of 
 Great Britain ; and therefore Scotland never was 
 
 * Hence the Scotch Union of 1707 was styled an incorpoi'ating 
 union ; sec Lainj^'s History of Scotland, vol. iv. p. 337. The same 
 term was subsequently applied to the Irish Union of 1800. 
 
92 DEFINITION OF A DEPENDENCY AND [cH. 
 
 an English dependency. The Enghsh parliament, 
 however, exercised a power of legislation over 
 Ireland until 1782 ; so that, before that time, 
 Ireland was an English dependency, and its houses 
 of parliament formed, together with the English 
 crown, a subordinate government. But in 1782, 
 the British Parliament surrendered its legislative 
 power over Ireland. In consequence of this sur- 
 render of power, Ireland became an independent 
 kingdom, whose king was also king of Great Bri- 
 tain ; and the Irish houses of parliament, instead of 
 forming part of a subordinate government, became 
 a part of a sovereign government. The independ-- 
 ence of Ireland lasted until 1800 ; and the Union 
 of 1800 produced the same change in the political 
 relations of Great Britain and Ireland, as the Union 
 of 1707 had produced in the political relations of 
 England and Scotland.^ 
 
 The subsisting relation between the governments 
 of Hungary and Austria is similar to that which 
 subsisted between the governments of England and 
 Scotland in the seventeenth century, and to that 
 which lately subsisted between the governments of 
 Great Britain and Hanover ; excepting that the 
 Emperor of Austria possesses the entire sovereignty 
 in the Austrian dominions, and is only a member of 
 the sovereign body in Hungary. The princes of the 
 house of Austria have attempted to exercise the en- 
 tire sovereign power within the territory of Hun- 
 gary, and to treat Hungary as an Austrian depen- 
 
 * See below, Ch. II. 5 2. 
 
I.] OF A SUBORDINATE GOVERNMENT. 93 
 
 dency ; but this pretension has been resisted by the 
 Hungarian diet, and Hungary must now be consi- 
 dered as an independent kingdom, whose king is also 
 Emperor of Austria. 
 
 Some writers have maintained that the English 
 colonies in America and the West Indies are con- 
 nected with England by a political relation similar 
 to that just described. They have asserted that the 
 English parliament is not supreme in any of these 
 colonies; and that a law can only be made therein by 
 a body composed of the English king and the local 
 legislature of the colony. According to this view, the 
 colonial local legislature is not subordinate to, but 
 co-ordinate with, the English houses of parliament; 
 and the local legislature occupies in the colony the 
 same position with respect to the crown, which the 
 houses of parliament occupy with respect to it in 
 England. It follows, of course, from this view, 
 that the English colonies in which this system of 
 government obtains are not dependencies of Eng- 
 land.* 
 
 There is likewise a question respecting the seat of 3. what is 
 
 , . . • p 1 1 • the supreme 
 
 the sovereign power, m one species oi dependencies, government 
 which may be here examined. mentesta- 
 
 It sometimes happens that an independent state the\e1rritOTy 
 establishes, on the territory of another independent inde^L^^ 
 state, a factory, or other settlement for purposes of *^®"***^^^^ ' 
 trade or industry ; and prevails upon the supreme 
 government of the state to allow to the inhabitants 
 of such factory or settlement, certain exemptions 
 
 * See note (G.) at the end of the volume. 
 
94 DEFINITION OF A DEPENDENCY AND [CH. 
 
 from the laws of the place, and the jurisdiction of 
 the native courts. Having secured these exemptions 
 for the precinct assigned to such settlement, the 
 supreme government of the other state proceeds to 
 organize for it a subordinate government, and even 
 to exercise over it a control resembling that which 
 such supreme government might exercise over one 
 of its own proper dependencies. 
 
 Instances of this sort of settlement are afforded by 
 the factories of the Venetians and Genoese in Con- 
 stantinople under the Greek, and subsequently 
 under the Ottoman Empire ; by the factories of the 
 Portuguese, Dutch, French, and English in Hin- 
 dostan ; and by the factories of the Portuguese and 
 English at Macao and Canton. The British settle- 
 ment of Honduras seems to have been originally 
 established on Spanish soil by the consent of the 
 Spanish Government ; at present, however, it is 
 absolutely dependent upon England. 
 
 Now, in each of the cases just stated, a subordinate 
 government can be plainly discerned, which, though 
 it may not possess a very complete organization, 
 nevertheless suffices for the wants of the small 
 community over which it presides. But it is less 
 easy to determine what is the supreme government 
 to which each of these local governments is subor- 
 dinate; in other words, what is the supreme 
 government upon which the dependency is de- 
 pendent. 
 
 Strictly speaking, the subordinate government of 
 such a settlement is subject to the supreme govern- 
 
I.] OF A SUBORDINATE GOVERNMENT. 95 
 
 ment of the country in which the settlement is 
 situate. The supreme government of the country 
 never surrenders its sovereignty over the territory 
 occupied by the settlement ; and it can, at any time,- 
 resume the powers which it allows to be exercised 
 by the other government. But, so long as the 
 treaty or other agreement between the two supreme' 
 governments is observed by the supreme govern-" 
 ment of the country, the subordinate government of 
 the settlement is in practice influenced by the direc- 
 tions issued to it from the supreme government of 
 the country which has established it. Thus, so long 
 as the Chinese Government permitted the existence 
 of an English factory at Canton, the English of the 
 factory claimed and enjoyed certain exemptions 
 from the jurisdiction of the Chinese Courts, and the 
 English Parliament even made laws by which it 
 affected to bind the inhabitants of the factory. But, 
 nevertheless, the sovereignty of the Chinese Govern- 
 ment over the English factory at Canton never 
 could have been disputed by the English Govern- 
 ment ; and the power which the English Parliament 
 exercised over it could only have been considered 
 as exercised with the consent, and by the sufferance 
 of the supreme Chinese Government. 
 
96 EXAMPLES OF DEPENDENCIES. [CH, 
 
 CHAPTER II. 
 
 Examples of Dependencies. 
 
 Having given in the preceding chapter a general 
 definition of a dependency, I propose, before I pro- 
 ceed to a further illustration of the ideas involved 
 in this word, to collect some examples of de- 
 pendencies, for the purpose of exhibiting the prin- 
 cipal forms under which the relation of a dominant 
 and a dependent community has existed in different 
 ages and countries. 
 
 X § 1. Dependencies of the Oriental Monarchies, and of the 
 Ancient Republics. 
 
 The system of governing by means of depen- 
 dencies existed to a great extent in the ancient 
 world ; indeed, it was one of the main characteristics 
 of the ancient governments, both monarchical and 
 republican. 
 Dependen- ^j^g aucieut monarcliics of Asia were Q-enerally 
 
 cies of on- c5 j 
 
 entaimo- as^eTCffates of nations which had once been inde- 
 
 narcnies. ^'-' *=' 
 
 pendent, but had been reduced by conquest to de- 
 pendence on a common superior. The obvious and 
 rude contrivance for maintaining this dependence 
 was for the ruler of the conquering tribe to place a 
 governor in each subject community, who collected 
 a revenue from the inhabitants, and having first 
 defrayed from it the expenses of his own govern- 
 ment, paid over the surplus, as a tribute, to his 
 
II.] EXAMPLES OF DEPENDENCIES. 97 
 
 chief. This appears to have been the character of 
 the Persian Empire and its satrapies, as described 
 by Herodotus;* and such, with only slight differ- 
 ences, has been the character of the Oriental govern- 
 ments at all times. 
 
 '• The plan," says Mr. Mill, " according to which 
 the power of the sovereign was exercised in the govern- 
 ment of Hindostan, resembled that which has almost 
 universally prevailed in the monarchies of Asia, and 
 was a contrivance extremely simple and rude. In 
 the more skilful governments of Europe, officers are 
 appointed for the discharge of particular duties in 
 the different provinces of the empire ; some for the 
 decision of causes, some for the control of violence, 
 some for collecting the contingents of the subjects, 
 for the expense of the state ; while the powers of all 
 centre immediately in the head of the government, 
 and altogether act as connected and subordinate 
 wheels in one complicated and artful machine. 
 Among the less instructed and less civilized inha- 
 bitants of Asia, no other plan has ever occurred to 
 the monarch, for the administration of his domi- 
 nions, than simply to divide his own authority and 
 power into pieces or fragments, as numerous as the 
 
 * See Herod. III. 89. sqq. Herodotus III. 97, states that the 
 territory of Persis, the district immediately subject to the king, was 
 free from tribute, but that the inhabitants paid him gifts, or bene- 
 volences. Compare Heeren's Ideen, vol. i. Part I., on the internal 
 constitution of the Persian Empire ; who proves satisfactorily that 
 the amounts of the tributes, which are stated by Herodotus, do not 
 comprehend all that was paid by the provinces to the satraps, but 
 only the sums which were payable by the satraps to the royal trea- 
 sury. — See pp. 477 — ^82 ; 496. Compare Xenoph. Cyrop. viii. 6. 
 
 H 
 
98 EXAMPLES OF DEPENDENCIES. [CH. 
 
 provinces into which it was deemed convenient to 
 distribute the empire. To each of the provinces a 
 vice-gerent was dispatched, who carried with him 
 the undivided authority and jurisdiction of his 
 master. Whatever powers the sovereign exercised 
 over the whole kingdom, the vice-gerent exercised 
 in the province allotted to him ; and the same plan 
 which the sovereign adopted for the government of 
 the whole, was exactly followed by the vice-gerent 
 in the government of a part. If the province com- 
 mitted to his sway was too extensive for his personal 
 inspection and control, he sub-divided it into parts, 
 and assigned a governor to each, whom he entrusted 
 with the same absolute powers in his district as he 
 himself possessed in the administration of the greater 
 department. Even this inferior deputy often di- 
 vided his authority, in the same manner, among 
 the governors whom he appointed, of the townships 
 or villages under his control. Every one of those 
 rulers, whether the sphere of his command was 
 narrow or extensive, was absolute within it, and 
 possessed the whole power of the sovereign, to levy 
 taxes, to raise and command troops, and to decide 
 upon the lives and property of the subjects. . . . The 
 expense of the government of each vice-gerent was 
 defrayed out of the taxes which he levied, and the 
 surplus was transmitted to the superior lord, to 
 whom he was immediately responsible. From him 
 it was again conveyed to the governor above him, 
 till it reached, at last, the royal treasury."^ 
 * History of British India, vol. i. pp. 176 — 8. 
 
II.] EXAMPLES OF DEPENDENCIES. 99 
 
 The existing mode of government in the Otto- 
 man empire agrees almost exactly with that de- 
 scribed by Mr. Mill in the preceding passage. The 
 whole Ottoman empire, with the exception of 
 Constantinople and its district, is divided into pro- 
 vinces, and a governor, commonly styled pacha, is 
 placed by the sultan at the head of each. This 
 appointment confers on the pacha the entire subor- 
 dinate government of his province. The only power 
 which the sultan does not delegate to his governors, 
 is the administration of civil justice, which (as being 
 in a Mahommedan country rather a religious than 
 a political business) is withdrawn from the military 
 pachas, and is made to depend upon an officer in 
 Constantinople.* 
 
 * " Dans cette s^rie d'emplois, I'objet de la commission 6tant 
 toujours le meme, les moyens d'ex^cution ne changentpas de nature. 
 Ainsi le pouvoir etant, dans le premier moteur, absolu et arbitraire, 
 il se transmet arbitraire et absolu a tous ses agents. Chacun d'eux 
 est I'image de son commettant. C'est toujours le sultan qui com- 
 mande sous les noms divers de pacha, de motsallam, de quaiemma- 
 qam, d'aga; et il n'y a pas jusqu'au delibache qui ne le represented' 
 — Volney, Voyage en Egypte et en Syrie, torn. ii. p. 220. 
 
 " En chaque gouvernement, le pacha etant I'image du sultan, ilest 
 comme lui despote absolu ; il rcunit tous les pouvoirs en sa per- 
 sonne ; il est chef et du militaire, et des finances, et de la police, et 
 de la justice criminelle. II a droit de vie et de mort ; il pent faire 
 a son gre la paix et la guerre ; en un mot, il pent tout. Le but 
 principal de tant d'autorite, est de percevoir le tribut, c'est-a-dire 
 de faire passer le revenu au grand proprietaire, a ce maitre qui a 
 conquis et qui possede la terre par le droit de son 6pouvantable 
 lance."— lb. p. 222. 
 
 "A titre d'image du sultan, le pacha est chef de toute la police de 
 son gouvernement ; et sous ce titre, il faut comprendre aussi la jus- 
 tice criminelle. II a le droit le plus absolu de vie et de mort ; il 
 I'exercc sans formalite, sans appel."— lb. p. 228. 
 
 *' L'administration de la justice contentieuse est le seul article que 
 les sultans aient soustrait au pouvoir exclusif des pachas, soit parcc- 
 
 H 2 
 
100 EXAMPLES OF DEPENDENCIES. [ciI. 
 
 The partition of a large empire into dependencies 
 is the simplest expedient for governing it, and would 
 naturally be resorted to in any barbarous or semi- 
 barbarous country. Accordingly, we find it in 
 ancient Mexico,* as well as in most of the Asiatic 
 monarchies both of ancient and modern times. 
 
 It is to be observed, that in the Asiatic monarchies 
 the subordinate government was modelled after the 
 supreme government, and was almost always dele- 
 gated to a single officer, who administered his pro- 
 vince nearly upon the same principles as those 
 which guided the supreme ruler in the government 
 of the empire generally, or of that part of it imme- 
 diately subject to his dominion. There are some 
 
 qu'ils ont scnti I'enormite des abus qui en re suiter aient, soit parce- 
 qu'ils ont connu qu'elle exigeait un temps et des connaissances que 
 ]eurs lieutenants n'auraient pas ; lis y ont prepose d'autres officiers 
 qui, par une sage disposition, sont independants du pacha. , . . Tous 
 les magistrats de I'empire appeles quddis, c'est-a-dire, juges, depen- 
 dent d'un chef principal qui reside a Constantinople. . . Ce grand 
 quddi nomme les juges des villes capitales, telles qu'Alep, Damas, 
 Jerusalem, etc. Ces juges, a leur tour, en nomment d'autres dans 
 les licux de leurs dcpendances." — Ibid. p. 231 — 2. Compare 
 D'Ohsson, Tableau de TEmpire Ottoman, torn. vii. p. 283. 
 
 The decisions of the cadis, or civil judges, are, according to 
 Volney, ib. p. 233 — 4, sometimes founded on unwritten customs 
 or decisions of doctors, but in most cases on the Koran. The reli- 
 gious character of the civil jurisprudence of the Ottomans is probably 
 the reason why the civil judges are independent of the paclias. 
 
 The delegation to the pachas was formerly so complete, that they 
 could even use the sultan's signature, and issue laws in his name. 
 " Les gouverneurs faisaient autrefois usage du chiiFre du sultan, 
 parce qu'ils avaient le droit de rendre des ordonnances au nom du 
 souverain ; mais cette prerogative ayant donne lieu a des abus, fut 
 supprimee sous le regne d'Ahmed III."— D'Ohsson, torn. vii. p. 284. 
 
 * Robertson's Hist, of America, b. 7. (vol. vii. p. 260). The 
 Thracian Empire of Sitalces, described by Thucyd. II. 95 — 8, seems 
 likewise to have been a loose aggregate of tributary dependencies. 
 
IT.] EXAMPLES OF DEPENDENCIES. 101 
 
 traces of the military and fiscal powers having been 
 exercised by different persons in the provinces of 
 the ancient Persian monarchy ; but in general, both 
 in that and other Oriental monarchies the satrap or 
 provincial governor was both military commander 
 and collector of the tribute.*' It was his ambition 
 to imitate the state of the monarch his master, and 
 to keep a petty court ; f and the monarch was little 
 inclined, even if he was able, to check the excesses 
 of his viceroy, provided that the latter paid his 
 appointed tribute at the appointed times. 
 
 It must not be inferred from Mr. Mill's account of 
 the dependencies of an Oriental monarchy, (which 
 has been cited above,) that these dependencies were 
 different in kind from the dependencies of a re- 
 public or free state. In every dependency, the 
 delegation of political powers to the subordinate go- 
 vernment is (as we have already explained) nearly 
 unlimited. The government of every dependency is 
 capable of legislating on nearly all subjects, and of 
 executing all laws in force within its territory ; and 
 if the government is entrusted to one man, all these 
 powers are necessarily united in his person. The 
 principal differences between the Oriental and Eu- 
 ropean systems of government, with respect to de- 
 ' pendencies, appear to be the following: — 1. In 
 the Oriental dependencies the subordinate govern- 
 ment is almost invariably entrusted to a single 
 
 * Heeren, Id. p. 490—2. 
 
 t Heeren, p. 495. On the magnificence of the Turkish paclias, 
 and the ex])eiisiveness of their Uttle courts, see D'Ohsson, Tableau 
 de TEmpire Ottoman, torn. vii. p. 287- 
 
102 EXAMPLES OF DEPENDENCIES. [CH. 
 
 person (styled a satrap, pacha, &:c.) ; whereas, in 
 the dependencies of European states, the subordinate 
 government is sometimes more or less popular in 
 its structure ; in other words, it consists of a body 
 of persons more or less numerous. 2. In the 
 Oriental dependencies, the whole empire, with the 
 exception of the capital city and a small district 
 attached to it, is parcelled out into dependencies ; 
 whereas, in the modern European states, all the 
 territories which do not lie at a great distance from 
 the central power are immediately subject to the 
 supreme government. 3. In the Oriental depen- 
 dencies, the control of the supreme government over 
 the subordinate government of the dependency is 
 feeble and irregular ; whereas, the European states 
 usually exercise a more vigorous control over the 
 local governments of their dependencies. 
 Dependen- The powcrful vepuhlics of antiquity likewise kept 
 cientre- a Considerable uumbcr of communities in subjection, 
 ^"^ '^' which they had reduced either by conquest, or the 
 threat of conquest. Each of these communities had 
 a subordinate government, and (unless it was pre- 
 vented by poverty) paid a tribute, in money or 
 in kind, or in military or naval supplies, to the 
 dominant state. The subordinate government of 
 these dependent communities was generally pre- 
 sided over by a military or civil officer who repre- 
 sented the supreme government. 
 Dependen- A remarkable example of a system of dependencies 
 Athens. under a Greek republic is afforded by the subject 
 allies of Athens in the period of her ascendancy. 
 
^t^t LIB 
 
 \^ OF THE 
 
 II.] EXAMPLES OF DEPEN DlfrH^.I '^ E E^g T Y 
 
 After the defeat of the great Pe: 
 against Greece, and the secession of the Spartans 
 from the command of the allied Greek forces, the 
 Athenians gradually reduced their allies in the 
 islands and coasts of the iEgean sea to a state of 
 dependence, and converted the voluntary contri- 
 butions which the allies had made to the treasury at 
 Delos for the furtherance of the common cause, into 
 a tribute, which was remitted to Athens, and for the 
 expenditure of which the Athenians rendered no 
 account.* These subject communities retained their 
 separate governments, (which were organized on 
 democratic principles,!) and administered generally 
 their own internal affairs ',X but they were under the 
 control, either permanent or occasional, of Athenian 
 inspectors or governors, or military commanders.§ 
 Moreover, the courts of the dependency were de- 
 prived of their jurisdiction in all important cases, 
 which could only be tried by the Athenian tribunals. || 
 In some instances, the Athenians seized a portion of 
 the lands of a subject state, and divided them among 
 certain of their citizens. Citizens who obtained 
 
 * See the copious and detailed account of the subject allies 
 of Athens in Boeckh, Public Economy of Athens, b. iii. c. 15, 16^ 
 17. (vol. ii.pp. 132—68. Engl, transl.) Compare Wachsmuth, Hellen. 
 Alt. i. 2. pp. 69—83, and Thirlwall's History of Greece, ch. 18. 
 
 f Aristophanes boasts of havinj^ exposed the defects of the popu- 
 lar governments of the dependencies of Athens : tovs ^rifi,ovs h mli 
 irikifftv hllag us hfiox^arovvrai. Acharn. 642. So Aristotlc, speaking of 
 the proceedings of the Athenians and Lacedaemonians in the states 
 which they respectively conquered, says, ol fitv 'a^vxToi ^avruxeu rat 
 
 hXiya.^'X^la.i i ot Vs Aeixeovis tovs ^n/nous xarikvav' Pol. V. 7. Compare Wacll- 
 
 smuth, i. 2. p. 80—1. Thirl wall, vol. iii. p. 48, 
 X Boeckh, vol. ii. p. 146. 
 ^ Boeckh, vol. ii. ]). 146. 
 II Ibid. p. 141. 
 
104 EXAMPLES OF DEPENDENCIES. [cH, 
 
 such portions of land were called cleruc/ii, and the 
 settlement was called a cleruchia. Subject states of 
 the latter description bear a close analogy to the 
 colonice of the Romans, as will appear presently ;* 
 although they differed from the Roman colo- 
 nicB in not being intended to serve any military 
 purpose, 
 derof^^"' Many of the Athenian dependencies were trans- 
 Sparta. ferrcd to Sparta by the unfortunate event of the 
 Peloponnesian war, and were governed by Sparta, 
 during the short period of her ascendancy over 
 them, in nearly the same manner in which they had 
 been governed by Athens ; except that their subor- 
 dinate governments were made oligarchical, and 
 that the Spartan governors (styled harmosts) appear 
 to have interfered more extensively with the internal 
 affairs of the dependent communities than the 
 Athenian governors had done.f But besides her 
 dependent allies beyond the sea, Sparta likewise 
 possessed in her Peloponnesian territory, from the 
 earliest times, a class of subjects, named Perioeci. 
 These subjects of Sparta seem to have lived in 
 separate villages or communities, to have been 
 placed under Spartan governors, and to have paid 
 tribute by certain districts ; so that they perhaps 
 rather formed a cluster of dependencies around the 
 dominant Spartan state, than a class of subjects or 
 serfs under the immediate dominion of the Spartan 
 
 * Concerning the Athenian cleruchiae, see Boeckh, b. 3. eh. 18. 
 (vol. ii. p. 168—80). Thirlwall, vol. iii. p. 56. Polybius, Appian, 
 and Dionysius, call the Roman colonists Kkn^odxof, see Polyb. ii. 21. 
 iii. 40. iv. 81. Appian, B. C. i. 7. Dionys. Ant. Rom. ii. 16. 
 
 t Wachsmuth, i. 2. p. 244—6. 
 
II.] EXAMPLES OF DEPENDENCIES. 105 
 
 government.* The same relation probably subsisted 
 in other Greek republics, which had subjects ; for 
 example, in the Cretan states and in Argos. 
 
 The transition from the complete independence 
 of a political community to its complete dependence 
 on another state, and from the complete dependence 
 of a separate community, to its absorption and in- 
 corporation into the dominant community, might be 
 so gradual as to render it difficult to determine, in 
 any individual case, 1 . At what moment the supreme 
 government of the independent state became the sub- 
 ordinate government of a dependency ; 2. At what 
 moment the subordinate government of the depend- 
 ency became a merely municipal body, and the inha- 
 bitants of the dependency became directly subject to 
 the government of the dominant country. It has been 
 already remarked that a tributary community is not 
 necessarily dependent ;t and such was the case of 
 the aUies of Athens after the Persian war, so long as 
 the payment of their tributes remained voluntary. 
 But by successive and almost insensible encroach- 
 ments, Athens converted their voluntary tribute into 
 a compulsory tax, and thus rendered them de- 
 pendent upon her. The passage from a state of 
 
 * See Miiller s Dorians, b. hi. ch. 2. § 1, 3. (vol. ii. p. 19. 27. Engl, 
 transl.), Thirlwall's History of Greece, vol. i. p. 306 -8. Ephorus 
 speaks of the division of Laconia into six provinces, one of which 
 consisted of the city and its district: Strabo VIII. 5. p. 364. ed. 
 Casaubon, and compare Miiller s Dorians, b. i. ch. 5. § 13. The 
 Spartan governor and military commander sent to the island of 
 Cythcra, which was a perioecian dependency, bore the title of 
 xuh^o^Uyis, Thucyd. IV. 53 ; but, as Bishop Thirlwall remarks, vol. i. 
 p. 308, no inference can be drawn from Cythera respecting the 
 government of the Perioeci on the mainland. 
 
 t Above, p. 84. 
 
106 EXAMPLES OF DEPENDENCIES. [CH. 
 
 bare dependence into an entire incorporation with 
 the dominant state might be equally gradual. " The 
 degrees (says Wachsmuth, in his Political Anti- 
 quities of Greece) by which a Greek community 
 passed from the loosest to the strictest dependence, 
 and from thence to the entire loss of its separate 
 existence, and its merger in the dominant state, 
 may be stated as follows: — 1. The subjecting it to 
 the payment of a compulsory tribute. 2. The re- 
 quiring it to furnish troops, to be commanded by 
 generals of the dominant country. 3. Supreme 
 jurisdiction, arrangement of the magistrates, and 
 other interferences w^ith the internal affairs of the 
 dependency ; as, for example, when the Myti- 
 lenseans prohibited their revolted allies from teach- 
 ing writing and music to their children. Beyond 
 this point, a dependent community lost its separate 
 existence ; and its citizens became integral members 
 of the dominant state, either by being admitted to 
 its rights of citizenship, or by being degraded to 
 the condition of perioeci."* 
 Greek coio- We may here observe that the foreign settlements, 
 or colonies {a7roi}clon),'\ of the Greeks, were in general 
 
 * Vol. i. 1. p. 128. Wachsmuth in this passage considers perioeci 
 as directly subject to the government of an independent state. I 
 have stated in p. 105, note*, my grounds for thinking that the periceci 
 of Sparta may have been distributed into dependent communities; 
 but the question is doubtful. See Philological Museum, vol. ii. 
 p. 55, n. 21. 
 
 t Aristotle, among his multifarious works, wrote a treatise on the 
 best mode of founding colonies. Ammonius ad Aristot. Categ. vol- 
 iv. p. 35, a. ed. Bekker, says, concerning Aristotle's works, ^£^;*a 
 
 fiiv ouv iffriv offot, t^'os Tiya totif yiyoaTTat, u; l-^iffroXce,), « otra ioearnh); v^ro 
 
 . yiy^xifvxi. The title of the treatise seems to have been, 'Axiluvhes v 
 v^io a-roiKiuv. See Diog. Laert. v. 22. and Menage ad loc. 
 
II. J EXAMPLES OF DEPENDENCIES. 107 
 
 independent from their first establishment ; and that 
 if they became dependencies of the mother-country, 
 it was by means of subsequent conquest or other 
 aggressive interference ; as was the case when some 
 of her Ionian allies were reduced to subjection by 
 Athens.* " The migrations of the Greek colonists 
 (says Bishop Thirlwall) were commonly undertaken 
 with the approbation and encouragement of the 
 states from which they issued ; and it frequently 
 happened that the motive of the expedition was one, 
 in which the interest of the mother country was 
 mainly concerned : as, when the object was to 
 relieve it of superfluous hands, or of discontented 
 and turbulent spirits. But it was seldom that the 
 parent state looked forward to any more remote 
 advantage from the colony, or, that the colony 
 expected or desired any from the parent state. 
 There was in most cases nothing to suggest the 
 feeling of dependence on the one side, or a claim of 
 authority on the other. The sons, when they left 
 their home to shift for themselves on a foreign 
 shore, carried with them only the blessing of their 
 fathers, and felt themselves completely emancipated 
 from their control. Often the colony became more 
 powerful than its parent, and the distance between 
 them was generally so great as to preclude all 
 attempts to enforce submissiouc^f 
 
 * Other examples of the political dependence of Greek colonies 
 on the mother country are given by Wachsmuth, Hellen. Alt. i. 1 . 
 p. 131—2. 
 
 t History of Greece, ch. 12. (vol. ii. p. 97.) And compare C. F. Her- 
 mann's Greek Antiquities, ^ 73 — 5. " If (say the Corcyraeans in 
 
108 EXAMPLES OF DEPENDENCIES. [cH. 
 
 The ties which bound together a Greek mother- 
 country and its colony were not political, but moral. 
 The relation between the state which sent out the 
 emigrants, and the new state which they esta- 
 blished, was conceived as analogous to the relation 
 which subsists between a parent and a child ; but, 
 it is to be observed, between the parent and the 
 emancipated, not the infant, child.* Accordingly, 
 a mother-country was considered as morally bound 
 to protect and assist its colony when involved in 
 difficulties ; while the colony was expected to pay 
 certain marks of deference and respect, particularly 
 in religious matters, to the mother-country .f 
 Colonies of The forcim settlements of the Phoenicians appear 
 
 thePhoeni- ® . . ^^ 
 
 cians. to have been nearly similar to those of the Greeks, 
 in respect of their relation to the mother-country. 
 Whatever may have been their original condition, 
 they seem for the most part, and especially the 
 distant and powerful Carthage, to have acquired 
 independent governments at an early period of 
 their existence. " The great and difficult art (says 
 
 Thucydides to the Athenian assembly) the Corinthians affirm tliat 
 you ought not to receive their colonists as your allies, let them learn 
 that every colony, when it is well treated, honours the mother 
 country, but is alienated from it by ill treatment ; for colonists are 
 sent ovit in order to be equal in rights with those who remain be- 
 hind, and not to be their slaves :" ol yk^ Wi rf hZket axx' It) tSj oumot 
 
 Tali XnTof^ivois iHvat 'iK'^ifi'Tovrat. I. 34. 
 
 * Dionys. A. R, iii. 7- o<r'/>s ya^ a^ioZtri Ttfi.m rvyxo^viiv ol 'ruri^n Ta^k tJ/v 
 iyyovuv, Toffavrnt ol x,Tt(ra.vTis rag ToXiig Ta^a tuv avolxuv. See Hcync, 
 
 Opuscula, vol. i. p. 312, concerning the filial relation of the colony 
 to the state whi(;h founded it. 
 
 t See Thucyd. i. 24, and the following chapters, from which the 
 sentiments of the Greeks respecting the colonial relation can be 
 fully collected. 
 
II.] EXAMPLES OF DEPENDENCIES. 109 
 
 Heeren) of keeping colonies in dependence, whicli 
 the Carthaginians understood so completely, was 
 not equally well known to the Phoenicians. The 
 colonies of the Phoenicians, favoured by their posi- 
 tion, grew more powerful than the mother-state, 
 and became independent, if they were not inde- 
 pendent from the beginning. The causes of their 
 independence are obvious. In the first place, the 
 Phoenicians (like other commercial nations in later 
 times) extended their settlements over a wider sur- 
 face than their power enabled them to command. 
 In the second place, Tyre was not so centrally 
 situated with respect to its colonies, as Carthage ; 
 and hence, even if it Jiad been able to raise equally 
 large armies, it would not have been able to use 
 them with equal effect in all directions. Carthage 
 could, without any great exertion, transport its 
 armies to Sicily and Sardinia ; England can, in our 
 dsLjs, send armies to the East Indies : but if Tyre 
 had attempted to send an Asiatic army to Spain, 
 the attempt would probably have failed. With the 
 exception, therefore, of the neighbouring islands, 
 such as Cyprus and others, or of some of the more 
 distant settlements, particularly the mining colonies, 
 where the natives were forced to labour, the relation 
 of the Tyrians with their colonies was confined to 
 commercial intercourse, and the duties of a re- 
 ciprocal affection, the latter of which were never 
 omitted, and the former was constantly main- 
 tained."* 
 * Ideen. vol. i. Part II. p. 36—7. conf. p. 31. 51 -2. Heync also 
 
liO EXAMPLES OF DEPENDENCIES. [CH. 
 
 dS'of Car- '^'^^^ republic of Carthage had a double set of 
 thage. dependencies. One set consisted of the African 
 towns and provinces in the vicinity of Carthage, 
 which appear to have been tributary to the chief 
 eity, and to have stood to it in nearly the same 
 relation as the islanders of the ^gean sea to 
 Athens, and the towns of the Perioeci to Sparta.* 
 The unwilling obedience which these towns and 
 districts rendered to Carthage, on account of the 
 oppressiveness of the rule to which they were sub- 
 ject, appears from the alacrity with which they 
 joined the revolted mercenaries after the first Punic 
 war.f These dependent communities never were 
 incorporated with the dominant republic either in 
 
 remarks that proximity was a necessary condition for the subjection 
 of a Greek colony to its mother state. " Loca quae a no vis colonis 
 erant cccupata, agri, maenia, novse civitatis initia constituisse vide- 
 bantur, cui suo jure uti liberum esset. Id quod tanto magis locum 
 habebat, si in terras aut insulas mari interjecto remotas coloni exiis- 
 sent." "In propinquo itaque, nee longe a metropoli dissito loco sedem 
 figere debuit colonia, in quam ilia jus suum exercere inciperet." De 
 veterum coloniarum jure ejusque causis, Opuscula, vol, i. p. 302, 304. 
 
 * Concerning the Carthaginian dependencies in Africa, see 
 Arnold's History of Rome, vol. i. p. 477- 83. 
 
 t See Heeren's Ideen, vol. ii. i. 43. 90. 153 — 4. (African nations, 
 vol. i. p. 41. 60. 88. 147—8. Engl, transl.) The chief authority re- 
 specting the subject towns of Carthage is Polyb. i. 72. Aristot. 
 Polit. ii. 11. calls them «/ ^oXu?; in vi. 5., he calls them al Ttgiotx^is. 
 According to Polyb. i. 10, the Carthaginians held in subjection the 
 shores of Libya, many parts of Iberia, and all the isles of the Sardi- 
 nian and Tyrrhenian sea. The expressions used by Polybius in 
 
 i. 10, and in iii. 39. {lyx^arus w?ra^;^«yT2j, ixv^livov, iKiKpaT'/ixuffay) shoW 
 
 that the towns and settlements of the Carthaginians were strictly 
 dependencies. Polybius states in i. 70, that Matho sent envoys to 
 the African cities, Ta^axaXovvns Iti rh Ikiuh^Uv. The term I'rtKpdrita 
 is likewise applied to the Carthaginian dependencies in the Trea- 
 tise Do Mirabilibus, ascribed to Aristotle. 'Ev 11 tv t^ix^unla ruv 
 
 Kocpx^^ov^"^ <Pci(riy o^oi -tivoci KuktTren Ov^dviov. C. 113. cd. Bckkcr, 
 
11.] EXAMPLES OF DEPENDENCIES. Ill 
 
 government or in feeling; and their proneness to 
 revolt on the approach of an enemy always con- 
 tinued to be the main cause of the internal weak- 
 ness of Carthage. That the subject allies of Car- 
 thage were its vulnerable point had been likewise 
 previously known to the Athenians, who are reported 
 by Thucydides to have intended to have attacked 
 Carthage in this quarter, if they had succeeded \n 
 subjugating Sicily.* 
 
 The other set of Carthaginian dependencies con- 
 sisted of its foreign settlements, which appear to 
 have been partly commercial and partly military. 
 The Carthaginians had establishments on the coast 
 of Spain, in the Balearic islands, Sardinia, Corsica, 
 Sicily, Malta, and elsewhere.f The Carthaginian 
 settlements did not, like those of the Greeks, be- 
 come independent; but like those of Rome, re- 
 mained in a state of dependence upon the mother- 
 country. 
 
 The Carthaginian dependencies, both in Africa 
 
 * t^tira, xa) r^f Ka^;^»?Jav/«»"a^X^f **' tthruv drevrti^d^ovrts^ ThuC. vi. £0. 
 
 That is, the Athenians intended first to attempt to detach the Car- 
 thaginian dependencies, and then to attack Carthage itself. It was 
 a common policy among the ancients for an attacking state to at- 
 tempt to detach the dependencies of its enemy, before it invaded 
 the central territory. The discontent of dependencies, and their 
 consequent proneness to revolt, was not the only, or indeed the main 
 inducement to the adoption of this policy. The main' inducement 
 was, that dependencies were tributary, and therefore the loss of them 
 diminished the resources of the dominant country. In modern 
 times, the loss of a dependency doe3 not in general diminish the 
 revenue of the dominant state, or curtail its military or naval 
 power. At the most, the loss of it may be a commercial disadvan- 
 tage to the dominant state. 
 
 t Heeren's Ideen, vol. ii. Part I. p. 41. 63 — 107. (African Nations, 
 vol. i. p. 39. G 1—104. See particularly p. 94.) 
 
112 EXAMPLES OF DEPENDENCIES. [CH. 
 
 and beyond the seas, appear to have been placed 
 under military governors. The principal function 
 of the military governors of the African cities and 
 districts was the collection of the tribute due to the 
 dominant state. Poly bins states that the severity 
 with which these commanders exacted the tribute 
 was the main cause of the disaffection of the subject 
 communities during the war of the mercenaries. "^ 
 This severity, however, was exercised with the full 
 approbation of the Carthaginian government ; for 
 Polybius says, that the Carthaginians admired and 
 honoured the governors who levied the largest 
 tribute, and employed the harshest measures for 
 levying it, and not those who dealt mildly and 
 humanely with the people.f The Carthaginians 
 appear to have derived little tribute from their 
 foreign possessions; but they maintained troops 
 and military commanders in them ; and the latter 
 were probably provincial governors. Sardinia was 
 lost to the Carthaginians by the defection of the 
 garrison of mercenaries, which was commanded by 
 a Carthaginian citizen .J 
 Dependen- The Rouiau statc, Hkcwisc, by its conquests and 
 Rome.' encroachments, gradually acquired an immense 
 system of dependencies. It is not consistent with 
 the purpose of the present Essay to enter at large 
 
 * Concerning the oppressive rule of dependencies, see the re- 
 marks of Ralegh, suggested by the Carthaginian war of the merce- 
 naries ; History of the World, book V. ch. 2. § 2. (vol. vi. p. 132. ed. 
 Oxford.) 
 
 '»• Polyb. i. 72. The goodness of a collector in British India ap- 
 pears to have been formerly tried by a similar standard. 
 
 : Polyb. i. 79. 88. 
 
II.] EXAMPLES OF DEPENDENCIES. 113 
 
 into the extensive subject of the dependencies of 
 the Roman republic and empire ; but it will be 
 convenient, on account of their great importance in 
 the history of the world, to indicate briefly their 
 nature. 
 
 The Roman dependencies fall into two main 
 classes, viz., those in Italy, and those out of Italy.* 
 
 With the exception of the City of Rome, and a 
 small district belonging to it, the whole of Italy, as 
 it was gradually absorbed into the dominions of the 
 Roman Republic, was formed into a system of 
 dependencies. 
 
 One portion of the independent states of Italy, Municipia. 
 being reduced by Rome and incorporated with the 
 Roman Commonwealth upon diflerent conditions, 
 obtained the name of municipia. 1[ The municipia 
 were city communities, once independent, which 
 were admitted by Rome to a more or less ample 
 participation in the rights of Roman citizens; but 
 which, after their annexation to the Roman state, 
 retained their own distinct city organization, their 
 own political divisions and magistrates, their own 
 legislative assemblies, and their own laws and judi- 
 catories ; X so far as these were consistent with their 
 
 * See generally Savigny's Geschichte des Romischen Reclits im 
 Mittelalter, vol. i. ch. 2, and Hopfensack, Staatsrecht der Unter- 
 thanen der Romer (Diisseldorf, 1829.) 
 
 t See Roth de Re Municipali Romanorum (Stuttgartiae, 1801.) 
 Hopfensack, ubi sup. p. 131—42. 
 
 X The following account of the distinction between a municipium 
 and a colonia is given by Aulus Gellius. 
 
 Municipes sunt cives Romani ex municipiis, Icgibus suis et suo 
 jure utentes, muneris tantum cum populo Romano honorarii parti- 
 
 I 
 
114 EXAMPLES OF DEPENDENCIES. [CH. 
 
 dependence upon the Roman government.* More- 
 over, upon their annexation to the Roman state, 
 their population was not disturbed, nor were the 
 rights of the existing proprietors interfered with 
 for the benefit of Roman citizens. But they were 
 subject to the general control of the sovereign 
 body in Rome; and their government, having 
 originally been the sovereign government of an in- 
 dependent state, became the subordinate govern- 
 ment of a dependency. t 
 Coioniae. ^hc othcr principal class of Roman dependencies 
 in Italy consisted of the colonics. ^ The colonice 
 were settlements of Roman citizens in Italy, who 
 occupied a conquered town, divided the whole or a 
 large part of the lands belonging to its citizens 
 
 cipes, nuUis aliis necessitatibus, neque ulla populi Romani lege 
 
 astricti, nisi populus eorum fundus factus est Sed colonia- 
 
 rum alia necessitudo est ; non enim veniunt extrinsecus in civitatem, 
 nee suis radicibus nituntur : sed ex civitate quasi propagatae sunt ; 
 et jura institutaque omnia populi Romani, non sui arbitrii habent : 
 qusD tamen conditio, cum sit magis obnoxia et minus libera, potior 
 tamen et praestabilior existimatur, propter amplitudinem majesta- 
 temque populi Romani, cujus istae coioniae quasi eflBgies parvse 
 simulacraque esse quaedam videntur : et simul quia obscura oblite- 
 rataque sunt municipiorum jura, quibus uti jam per innotitiam non 
 queunt. Noct. Att. xv. 13. Cicero de Leg. iii. 16, speaks of his 
 grandfather having resisted the passing of a lex iabellaria in the 
 municipium of Arpinum. Compare Savigny, ibid. p. 39. A lex 
 tabellaria was a law for enabling votes to be given secretly, or (as 
 we should now say) to be given by way of ballot. Concerning the 
 subordinate government and its power of subordinate legislation in 
 a municipium, see Heineccius, Ant. Rom., lib. i. $ 120, 123. Roth 
 ubi sup. p. 21-3, Hopfensack, p. 134. 137-8. 
 
 * This limitation is properly indicated by Hopfensack, p. 138. 
 
 t See Hopfensack, p. 138. 
 
 X Hopfensack, p. 143-66. 
 
ir.] EXAMPLES OF DEPENDENCIES. 115 
 
 among themselves,* and became the coloni'l or cul- 
 tivators of the lands thus appropriated. A subordi- 
 nate government was established in a colonia, which 
 appears not to have differed essentially from that of 
 a municipium. But although the jus publicum, or 
 constitutional law, of a municipium and a colonia 
 would naturally be nearly similar, inasmuch as they 
 were dependencies subject to a common superior, yet 
 the jus privatum, or civil law, of a municipium would 
 naturally be different from that of a colonia. For a 
 municipium retained the civil law which it possessed 
 when it became a dependency of the Roman state ; 
 whereas a colonia, as being a settlement of Roman 
 citizens, adopted the Roman system of jurispru- 
 dence.J 
 
 The preceding account of the origin of a Roman 
 colonia shows its difference from that of a Grecian 
 
 ♦ Concerning the division of lands in a Roman colony among the 
 colonists, see Heyne, Opuscula, vol. iv. p. 352. 
 
 + Colonia was formed from colonics ; and colonus was formed from 
 colo, and signified a cultivator. Colonia had also the sense of a 
 farm : see Forcellini in v. Compare the modern word plantation^ 
 which means both a farm and a settlement. The idea of cultivation, 
 and not of military occupation, was therefore contained in the word 
 colonia. — Concerning the coloni, who were a class of cultivators in 
 the Roman empire, attached to the soil, and little raised above the 
 condition of serfs, see an excellent dissertation by Savigny, trans- 
 lated in the Philological Museum, vol. ii. p. 117. The name seems 
 to have been derived from colonus in the sense of cultivator, and to 
 have had no connexion with the Roman colonies. Colo?ia, in the 
 sense of a peasant- woman (like the Italian contadina), occurs in 
 Ovid, Fast. ii. 646, iv. 692. 
 
 Hoc, ait, in campo (campumque ostendit) habebat 
 Rus breve cum duro parca colona viro. 
 
 X Heineccius, Synt. Ant. Rom., lib. 1. $ 131, and Gellius, quoted 
 above. 
 
 i2 
 
116 EXAMPLES OF DEPENDENCIES. [CH. 
 
 colony. The Grecian colonies were independent from 
 the beginning ; they were sometimes founded with- 
 out the express authority of the government of the 
 state from which the colonists proceeded ; or, at any 
 rate, they were not intended to increase its power 
 by enlarging its dominions ; and they were usually 
 established in some unoccupied or partially occupied 
 territory. The Roman colonies, on the other hand, 
 were in general established in existing towns, the 
 citizens of which were ejected and deprived of their 
 lands;* the colonists were sent out by the autho- 
 rity of the government for the purpose of confirming 
 and extending the Roman influence ; and they were 
 paid for this service by grants of lands. Moreover, 
 instead of being independent of the parent-state, 
 they were strictly dependent on it, and the political 
 rights of the colonists were very limited. f In fact, 
 
 * Servius ad ^n. i. 12. (vol. i. p. 9. ed. Lion). Sane veteres co- 
 lonias ita definiunt. Colonia est coetus eorum hominum qui uni- 
 versi deducti sunt in locum certum gedificiis munitum, quem certo 
 jure obtinerent. See the rest of the passage, with Niebuhr's ex- 
 planations, in his History of Rome, vol. ii. note 80. Compare 
 
 Appian Bell. Civ. i. 7. ''PufAOUot tjjv 'IraX/a* ToXifJuu xark fjt,i^vi p^s/^ay^sva/ yns 
 fAi^os IXxfJi^fictvov, xcti ^o'kiis ivMKi^ov, v is rus -r^oTi^ov oiiixas >c>^r^ou;^ous aTo ff(puv 
 xariXiyov, xa) roHhi fAv avr) (p^ov^iuv WivooW' DionySlUS, Ant. Rom. 11. 16, 
 
 likewise commends the policy of the Romans in not destroying the 
 male population of the conquered cities, or reducing it to slavery, 
 and occupying their territory merely as pasture-ground; dkxa 
 
 xXn^ou^ovs Is auras aTotrrixXtiv itt) f^i^ii riv) rm X,c^oks, xai <roiuv a^oixias 
 'P&ffcaitkfv <ras x^arnhitras. 
 
 t Hopfensack, pp. 147-8. Compare Heyne, De Romanorum 
 prude ntia in coloniis regendis, Opuscul. vol. iii. p. 83. The latter 
 Essay contains proofs that the allegiance of the Roman colonies 
 was mainly secured by fear. The Roman colonies were, however, 
 more favoured by the senate than the Roman dependencies which 
 had been acquired by treaty or conquest ; see Cicero de Off. iii. 22. 
 
II.] EXAMPLES OF DEPENDENCIES. 117 
 
 the Roman colonies were in their origin (as Niebuhr 
 remarks) little more than garrisons in conquered 
 fortified places, where land was allotted to the 
 soldiers instead of pay and provisions.* The Greek 
 colonies were somewhat similar to the English co- 
 lonies in America, especially after th^ independence 
 of the latter ; while the Roman colonies rather re- 
 sembled the Venetian colony in Crete, and the 
 recent French colony in Algiers. The only esta- 
 blishments in Greece which resembled the Roman 
 colonies were the Athenian cleruchice, of which an 
 account has been already given. 
 
 The Roman dependencies out of Italy were the Provinciae. 
 provinces.lf 
 
 The Roman provinces were originally independent 
 states, which, having been conquered by Rome, 
 were, to use the Roman phrase, " reduced under the 
 
 * History of Rome, vol. ii. p. 51. Hence Livy uses the expres- 
 sion, " imponere coloniam in agro Samnitium," viii. 23. Cicero 
 gives a similar account of the early Roman colonies : " Quo in 
 genere, sicut in ceteris rei publicse partibus, est operae pretium dili- 
 gentiam majorum recordari ; qui colonias sic idoneis in locis contra 
 suspicionem periculi collocarunt, ut esse non oppida Italiae, sed 
 propugnacula imperii viderentur." De Leg. Agr. contra Rullum, ii. 
 27. In later times, when the supremacy of Rome was undisputed, 
 the division of the land, for the purpose of satisfying troublesome 
 adherents, and not the security of the republic, was the main object 
 of colonies. On the military colonies, see Hopfensack, pp. 166-9. 
 
 t Hopfensack, pp. 170-4. It appears from Niebuhr's letters, 
 that he had formed a design of writing a dissertation on the consti- 
 tution of the Greek provinces and cities of the Roman empire : see 
 Lcbensnachrichten iiber B. G. Niebuhr, vol. ii. pp. 321-2. It 
 is much to be regretted that he did not live to carry his Roman 
 history down to a period when this subject would have entered 
 naturally into the plan of the work. — Concerning the etymology of 
 the word provincia, see note (H.) at the end of the volume. 
 
118 EXAMPLES OF DEPENDENCIES. [cH. 
 
 formula of a province ; " * that is, brought within 
 the rules determining the condition of a provincial 
 dependency. The rules determining this condition 
 were very various, and probably only agreed in one 
 circumstance, viz. : — that the province was placed 
 under the immediate superintendence of a resident 
 Roman governor. The provincial governors, under 
 the republic, were first styled praetors, and after- 
 wards propraetors and proconsuls ; and their autho- 
 rity extended over all civil and military affairs in 
 the province.t An alteration in this system was 
 made by Augustus, who divided the provinces into 
 the two classes of senatorian and imperatorial : in 
 the senatorian provinces a governor was appointed 
 by the senate, whose power extended over the civil 
 departments of the government, while the military 
 functions were reserved to an officer appointed by 
 the emperor ; in the imperatorial provinces, the go- 
 vernor, styled the legatus Ccesaris, or lieutenant of 
 
 * *• In formam (or formulam) provinciae redigere." See Heinec- 
 cius, Ant. Rom,, lib. i. § 100. In later times, forma meant a rescript 
 or constitution of the emperor ; Capitolin. in Antonin. Pio, c. 6. 
 (cited by Facciolati in v.) " Neque de provinciis neque de ullis 
 actibus quidquam constituit, nisi quod prius ad amicos retulit ; atque 
 ex eorum sententia/ormcw composuit." 
 
 t The following definition of the jurisdiction and other powers of 
 the provincial proconsul, which is given in the Digests, may serve 
 to illustrate the statements which I have made in a former chapter, 
 respecting the extent of the powers delegated to a subordinate 
 government. Quum plenissimam jurisdiction em proconsul habeat, 
 omnium partes, qui Romse vel quasi magistratus, vel extra ordinem 
 jus dicunt, ad ipsum pertinent. Et ideo majus imperium in ea pro- 
 vincia habet omnibus post principem. Nee quidquam est in pro- 
 vincial quod non per ipsum expediatur. Dig., lib. i. tit. 16. fr. 7-9. 
 See above, p. 74. 
 
II.] EXAMPLES OF DEPENDENCIES. 119 
 
 the emperor, directed both the civil and military 
 affairs of the province. Numerous other changes 
 in the titles and distribution of the provincial 
 governors were made by the subsequent emperors, 
 which it is not necessary for me to pursue. 
 
 The regulations respecting the appointment, 
 powers, and rank of the Roman governors, and the 
 duration of their office, constituted the only part of 
 the provincial institutions of Rome which were uni- 
 form throughout the provinces. In all other re- 
 spects, there was the utmost diversity in the pro- 
 vincial governments. It was the general policy of 
 the Romans not to make more changes in a con- 
 quered territory than were necessary for the purpose 
 of reducing it to complete subjection. Hence, when 
 they had firmly established its dependence on Rome, 
 by garrisoning all its strong places with Roman 
 legions, and collecting all its public revenues by 
 Roman officers, they were content to allow the 
 ancient civil law of the country, its religion, and 
 other peculiar institutions of a like nature, to remain 
 untouched."* The Romans appear to have adopted 
 this course partly upon reflection and from a con- 
 viction of its expediency, and partly from a certain 
 haughty indifference which led them to turn away 
 with contempt from questions about matters not 
 affecting the maintenance of their own authority.! 
 
 * See Hopfensack, p. 11. Concerning the non-interference of 
 the Romans with the religion of the provinces, see Heineccius, Ant, 
 Horn,, lib. i. § 101. note. 
 
 t The conduct of Gallio, described in the Acts of the Apostles, 
 
120 EXAMPLES OF DEPENDENCIES. [cH. 
 
 Accordingly, there were sometimes petty native 
 rulers, who retained their former title and dignity, 
 under the supremacy of Rome,^ as, for example, 
 the tetrarchs of Judea. It may be added, that the 
 entire state of Judea, as described in the historical 
 books of the New Testament, affords a lively image 
 of the continuance of the peculiar laws and religious 
 usages of a Roman dependency out of Italy. 
 
 When a community had become a provincial de- 
 pendency of Rome, its law was derived from one of 
 the four following sources. f 1. The foi^mula of the 
 province, which prescribed the terms upon which it 
 was annexed to the Roman state, at the original 
 conquest.:]: 2. Acts of the supreme Roman legis- 
 
 is so characteristic of the feelings of the Romans in this respect, 
 that I am induced to quote the passage, although it is so well known. 
 
 " And when Gallio was the deputy of Achaia, the Jews made in- 
 surrection with one accord against Paul, and brought him to the 
 judgment seat, saying, This fellow persuadeth men to worship God 
 contrary to the law. And when Paul was now about to open his 
 mouth, Gallio said unto the Jews, If it were a matter of wrong or 
 wicked lewdness, O ye Jews, reason would that I should bear with 
 you : but if it be a question of words and names, and of your law, 
 look ye to it ; for I will be no judge of such matters. And he 
 drave them from the judgment seat. Then all the Greeks took 
 Sosthenes, the chief ruler of the synagogue, and beat him before the 
 judgment seat. And Gallio cared for none of these things.'' Act. 
 Apost. xviii. 12-7. 
 
 * Strabo xvii. c. 3, speaking of the Roman provinces, says : u<rt 
 
 Be Kce.) ^vvatrrat rivls kou ^yXa^^"' *^' hpi7s vt'' av<ro7s' ovrot fjiXv ^n ^uai Kara riva,; 
 
 -rar^iovs vof/.oi/s. Compare Tacit. Agric. c. 14. Redacta paulatim in 
 formam provincise proxima pars BritannisB : addita insuper vetera- 
 norum colonia: qusedam civitates Cogiduno regi donatsB (is ad nos- 
 tram usque memoriam fidissimus mansit) ; vetere ac jam pridem 
 recepta populi Romani consuetudine, ut haberet instrumenta servi- 
 tutis et reges. 
 
 t Concerning the three first sources, see Heineccius, ib. § 101. 
 Compare Hopfensack, pp. 4-14. 
 
 % The terms granted by Rome to a dependency upon its acquisi- 
 
II.] EXAMPLES OF DEPENDENCIES. 121 
 
 lature, binding the province specially, or the pro- 
 vinces generally. For example, the power of 
 obtaining a guardian by the appointment of certain 
 public officers, which was created in Rome by the 
 Atilian law, was extended to the provinces by the 
 Julian and Titian law.''^ 3. Edicts of the provincial 
 praetors, or governors. A provincial praetor (like 
 the praetor urbanus) originally commenced his go- 
 vernment by stating at length, in an edict which 
 he promulgated, the principles or maxims which he 
 intended to follow in administering justice, and 
 generally in conducting the government of the 
 province. A full account of the edict which Cicero 
 issued when he was governor of the province of 
 Cilicia, is preserved in his letters. f It was natural 
 
 tion were often called ^.foedus, or treaty ; and the dependency was 
 called an ally (socius). The name of civitas foederata or socia was 
 common to the municipal dependencies in Italy and to the provin- 
 cial dependencies out of Italy. One of the technical phrases by 
 which the dependence of an allied state upon Rome was expressed 
 in a treaty, was : " majestatem populi Romani comiter conservato." 
 Cicero pro Balbo, c. 16. Compare Hopfensack, p. 8. 
 
 * Si cui nullus omnino tutor fuerat, ei dabatur in urbe quidem 
 Roma a praetore urbano et n'lajore parte tribunorum plebis tutor ex 
 lege Atilia, in provinciis vero a praesidibus provinciarum ex lege 
 Julia et Titia. Inst. i. 20. Other similar laws are enumerated in 
 Heineccius, ^ 102. 104. A Roman dependency, either in or out of 
 Italy, which had once been independent, might, by its own act, adopt 
 any law of Rome which did not affect its relations as a dependency 
 with Rome. The dependency, after this adoption, was said to 
 have become fundus of the law ; fundus having borne the sense 
 of auctor or subscriptor. See Cicero pro Balbo, c. 8. 17, 18, 21, 
 with the explanation of Heineccius, lib. i. § 88. This practice was 
 probably disused under the empire, when the provinces had become 
 more completely dependent, and their systems of law had been gra- 
 dually assimilated to that of Rome, 
 
 t Cicero ad Att. v. 21. vi. 1. Ep. ad Fam. iii. 8. "Ex quibus 
 patet (says Heineccius) simillima quidem inter se fuisse edicta ur- 
 
122 EXAMPLES OF DEPENDENCIES. [CH. 
 
 for a new governor, both for his own convenience 
 and for the benefit of the provincials, to adopt the 
 whole or a large part of the edict of his predecessor. 
 An edict, of which the substance was thus borrowed 
 from a previous edict, was called tralatitium ; and, 
 having been retained by several successive governors, 
 became an edict peculiar to the province.* 4. The 
 native jurisprudence of the country, as it existed 
 before the country became a Roman dependency. 
 The provinces retained generally, upon their first 
 reduction under the Roman sway, nearly all the 
 peculiar institutions which were not inconsistent 
 with the supremacy of Rome. Accordingly, their 
 rules of law respecting property, contracts, mar- 
 riage, and the like, continued to be administered 
 by the courts of the province as heretofore. We 
 know in some cases, that the continuance of its 
 
 bana et provincialia ; sed tamen non statim idem obtinuisse in pro- 
 vincia quod Romte fuerat vel lege vel moribus receptum," — Ant. 
 Rom., lib. i. § 103. Cicero, in his prosecution of Verres, states that 
 Verres modified one clause of the praetor's edict at Rome, from a 
 corrupt motive, in order to favour a plaintiff in a certain action ; 
 but that when he transferred the rest of his edict to Sicily, he ex- 
 cluded this clause, thus admitting its impropriety. Cicero then 
 proceeds to say : " Utrum digniores homines existimasti eos, qui 
 habitabant in provincia, quam nos, qui aequo jure uteremur ? an 
 aliud Romae aequum est, aliud in Sicilia ? Non enim hoc potest hoc 
 loco dici, multa esse in provinciis alitor edicenda : non de heredita- 
 tum quidem possessionibus, non de mulierum hereditatibus. Nam 
 utroque genere video non modo ceteros, sed te ipsum totidem verbis 
 edixisse, quot verbis edici Romae solet." — Act. ii. lib. i. c. 46. If the 
 principle implied in this passage was consistently acted upon in the 
 preparation of the provincial edicts, it must, in no long time, have 
 led to the assimilation of the private law of the provinces with that 
 of Rome. 
 
 * Heineccius, ibid. ^ 104. Concerning the jurisdiction of the 
 provincial governors, see $ 111. 
 
II.] EXAMPLES OF DEPENDENCIES. 123 
 
 own laws (i. e. its laws relating to such subjects as 
 those just mentioned) was expressly promised to the 
 province ;* and when some of the provinces are said 
 to have been governed by their own laws (to have been 
 oLxjTovoiKoi), this is the meaning of the expression.t 
 
 * One of the conditions of the treaty by which Carthage became 
 
 a Roman province was : 'i6i<n »«< vofAois •x,(fia6a.i rdls 'thlait, u.(p^ov^nTOVi ovreis, 
 
 Polyb. XV. 18. The following were the conditions allowed to the 
 Macedonians, upon becoming a Roman dependency: Omnium 
 primum liberos esse jubere Macedonas, habentes urbes easdera 
 agrosque, utentes legibus suis, annuos creantes magistratus : tribu- 
 tum dimidium ejus quod pependissent regibus, pendere populo 
 Romano. Deinde in quatuor regiones dividi Macedoniam . . . capita 
 regionum ubi concilia iierent . . . eo concilia suae cujusque regionis 
 indici, pecuniam conferri, ibi magistratus creari jussit.— Livy xlv. 
 29. These conditions distinctly mark the existence of a subordinate 
 government, and the maintenance of the native laws. The condi- 
 tions granted to the Sicilians with respect to jurisdiction are stated 
 in Cicero, Verr. Act. ii. lib. ii. c. 13. conf. Act. ii. lib. iii. c. 6. The 
 plebiscitum de Thermensibus, lin. 11-14. lique legibus suis utunto, 
 itaque iis omnibus suis legibus Thermensibus uti liceto, quod ad- 
 versus banc legem non fiat. The last words of this extract express 
 the condition with which every law of a subordinate government 
 must comply : see above, p. 60. 
 
 t The libertas or avrovofiU of a Roman dependency consisted 
 mainly in its being allowed to retain its own civil laws, and to ad- 
 minister them by native judges. Thus Cicero, speaking of the 
 edict which he had issued as governor of the province of Cilicia, 
 says : " Multa sum secutus Scs3volae [i. e. an edict issued by Q. M. 
 ScsBVola, when governor of Asia] ; in iis illud in quo sibi libertatem 
 censent Grseci datam, ut Graeci inter se disceptent suis legibus." 
 Afterwards he adds : " Grsec.i vero exultant quod peregrinis judici- 
 bus utuntur. Nugatoribus quidem, inquies. Quid refert ? t^men 
 se dvrovofiiav adcptos putant." — Epist. ad Att. vi. 1. This species of 
 aurovo/Ata, is perhaps more precisely expressed by the Greek word 
 avreitxtTv. — See Thucyd. v. 18, and Goeller's note. Dolabella is 
 stated, when pro-consul of Asia, to have remitted an accusation of 
 poisoning which presented some peculiar difficulties, to the Areo- 
 pagus at Athens (Gellius N. A. xii. 7.) Dolabella was consul in 
 81 B. c. The libertas of a Roman dependency might likewise 
 mean that it was not liable to be constantly garrisoned by Roman 
 troops: see Creuzers Abriss der Romischen Antiquitaten, §[214, and 
 compare Heyne's Opuscula, vol. iv. p. 536-7.--The following extract 
 
124 EXAMPLES OF DEPENDENCIES. [CH. 
 
 The Roman provinces were tributary to Rome ; 
 and the public revenues were collected by Roman 
 questors, who remitted the produce of the taxes to 
 the Roman treasury, after having defrayed the ex- 
 penses of the provincial government. A province 
 either paid its tribute in a gross sum, or its tribute 
 was levied by a land-tax, a tax for pasturage, or 
 custom-duties, imposed directly by the Roman go- 
 vernment on the provincials.* 
 
 Although the revenues and supplies derived from 
 the provinces were considered an important resource 
 of the Roman state,t yet it does not appear that 
 the regular taxation was very oppressive to the 
 provinces. The chief evils inflicted upon the pro- 
 vinces arose from the rapacity of the governors, and 
 the extortions which they practised for their private 
 gain. The provincial governors were necessarily 
 invested with very extensive powers, and they were 
 imperfectly controlled either by law or the opinion 
 
 from the fourth book of a treatise by UJpian De officio proconsulis, 
 preserved in the Digests, lib. i. tit. 3. fr. 39, adverts to the retention 
 of the native laws in a province. " Cum de consuetudine civitatis 
 vel provincise confidere quis videtur, primum quidem illud explo- 
 randum arbitror, an etiam contradicto aliquandojudicio consuetude 
 firmata sit." Dirksen, Man. Latinit. font. J. C. in v. explains con- 
 tradictus in this passage to mean "contradictione confirmatus." It 
 seems to me that the words "judicio contradicto" signify only a 
 decision given in a contested or defended action ;that is, an action 
 in which the point was expressly raised and argued by the litigant 
 parties, and therefore solemnly decided by the court. Perhaps this 
 was the meaning which Dirksen intended to convey. 
 
 * See Heineccius, ibid. § 114-8. Hopfensack, p. 172. 
 
 t Quasi qusedam praedia populi Romani sunt, vectigalia nostra 
 atque provinciae, says CicJiro, Verr. Act. ii. lib. ii. c. 3, 
 
If.] EXAMPLES OF DEPENDENCIES. 125 
 
 of their fellow citizens. A Cicero or an Agricola 
 might be restrained by his own conscience from 
 plundering his provincial subjects ; * but, when 
 there was no other restraint than conscience, it was 
 natural that the conduct of the provincial governors 
 should have been such as it is described to have 
 been. The rapacity of Verres has become proverbial 
 on account of the elaborate exposure which it has 
 received from Cicero ; and the revolt of the Jews 
 was mainly caused by the unusual extortions of 
 three successive governors. Tacitus states, in the 
 beginning of the Annals, that the provinces willingly 
 acquiesced in the change from the republic to the 
 empire, on account of the imperfect protection which 
 they had received from the senate and the people ;f 
 but from a passage in the Life of Agricola, J it ap- 
 
 * Cicero's high estimate of the duties of a provincial governor 
 may be learned from his Epistle ad Quintum fratrem, i. 1. 
 
 f Neque provinciae ilium rerum statum abnuebant, suspecto 
 senatus populique imperio, ob certamina potentium et avaritiam 
 magistratuum ; invalido legum auxilio, quae vi, ambitu, potttremo 
 pecunia turbabantur. — Ann. i. 2. A provincial governor was liable 
 to be called to account judicially for maladministration in his pro- 
 vince, after his return from it : but the diflSculty of success in such 
 an accusation, the strong inducements not to come forward, and the 
 feeble inducements to come forward, as public prosecutor, appear 
 suflBciently from Cicero's first Verrine Oration. " Hoc jure sunt 
 socii (he says in another part of the Verrine prosecution), ut iis ne 
 deplorare quidem de suis incommodis liceat." — Act. ii. lib. ii. c. 27. 
 And again : *' Contempsit Siculos : non duxit homines : nee ipsos 
 ad persequendum vehementes fore, et vos eorum injurias leviter 
 laturos existimavit." — lb. Act. ii. lib. iii. c. 23. 
 
 t Sors quaesturae provinciam Asiam, proconsulem Salvium Titia- 
 num, dedit ; quorum neutro corruptus est ; quamquam et provincia 
 dives ac parata peccantibus, et proconsul in omnem aviditatem 
 pronus, quantalibet facilitate redempturus erat mutuam dissimula- 
 tionem mali. -Tacit. Agric. c. 6. Bato, the king of a Dalmatian 
 
126 EXAMPLES OF DEPENDENCIES. [CH. 
 
 pears that this change produced no benefit to the 
 provinces; that a provincial government was still 
 looked upon as a subject of legitimate gain to a 
 governor; and that his power of taking from the 
 provincials was chiefly limited by their incapacity 
 of paying.* 
 
 tribe, when asked by Tiberius, in the lifetime of Augustus, why the 
 Dalmatians had revolted from the Romans, and fought so long 
 against them, said that the Romans were the cause of the resistance, 
 in sending not dogs or shepherds, but wolves, to guard their flocks. 
 — Dion Cassius, 1. vi. c. 16. 
 
 * Cicero, speaking of Verres's corrupt exercise of his praetorian 
 jurisdiction at Rome, says : " Quid ego istius in jure dicundo libi- 
 dinem demonstrem ? Quis vestrum non ex urbana jurisdictione cog- 
 novit? quis unquam isto prgetore, Chelidone invita, lege agere 
 potuit ? non istum, ut nonneminem, provincia corrupit ; idem fuit 
 qui Romae." — Act. ii. lib. ii. c. 16. The following, after making all 
 due allowance for rhetorical exaggeration, is a remarkable testimony 
 to the excesses of the Roman provincial governors in Cicero's time. 
 " Lugent omnes provincise : queruntur omnes liberi populi : regna 
 denique jam omnia de nostris cupiditatibus et injuriis expostulant : 
 locus intra oceanum jam nullus est, neque tam longinquus, neque 
 tam reconditus, quo non, per haec tempora, nostrorum hominum 
 libido iniquitasque pervaserit. Sustinere jam populus Romanus 
 omnium nationum non vim, non arma, non bellum, sed luctum, 
 lacrymas, querimonias non potest." — In Verr. Act. vi. lib. iii.c. 89. 
 It is to be observed, that the Roman provincial governors, like the 
 chief officers of the ancient states generally, and particularly of the 
 more aristocratic states, were unpaid. The regulation that 
 governors should buy nothing in their province, likewise proves 
 their proneness to plunder the provincials. See note (I.) at the 
 end of the volume. — Nevertheless, it cannot be doubted that the 
 Roman provinces were, on the whole, governed more leniently than 
 any other dependencies in the ancient world. Although Cicero's 
 letter to his brother Quintus must be considered as a very favourable 
 specimen of the opinions and principles of a Roman respecting the 
 manner of conducting a provincial government, it may be observed 
 that the titles in the Digests concerning the offices of a proconsul 
 and a praeses (lib. i. tit. 16. 18) breathe a spirit of wise moderation 
 towards the provincials, and of an enlightened regard for their feel- 
 ings and interests. Heyne indeed thinks that the provincial govern- 
 ment of the Romans was as bad as that of the Ottomans : and he 
 
^^ OF THE 
 II.] EXAMPLES OF DEPENDENCIE^ Q J^'^^v^^Vv^ 
 
 Nevertheless, the Romans were able for 
 time to maintain the obedience of their provinces, 
 and to suppress every attempt at resistance to their 
 authority. This result was mainly owing to the 
 efficient military system of the Romans, and to the 
 masterly manner in which they occupied a province, 
 by stationing their legions in strong towns and for- 
 tified camps, and by making and maintaining their 
 communications by means of the roads and bridges 
 which they constructed.* The celebrated lines of 
 Virgil, which (after admitting the superiority of the 
 Greeks in the fine arts, literature, and the physical 
 sciences) make the characteristic excellence of the 
 Romans to consist in their practice of the art of 
 governing,! are peculiarly applicable to the system 
 
 places a Roman proconsul on the same level with a Turkish pasha. 
 " Inter pra3tores legatosque et paschas Othmanorum quid discri- 
 minis intercedat, nemo facile docuerit." — Opuscula, vol. iii. p. 151. 
 But this judgment seems to me to exaggerate the defects of the 
 Roman provincial government far beyond the truth. 
 
 * Bergier, in his Histoire des Grands Chemins de I'Empire 
 Remain, attributes the construction of the Roman roads to the fol- 
 lowing four causes. 
 
 " Le premier est, pour donner en temps de paix de I'exercice, 
 tant aux gens de guerre, qu'a la populace de chacune province, 
 pour eviter les tumultes, seditions, et autres mouvemens, que I'oisi- 
 vete, mere de tous maux, a coutume de produire. Le second, pour 
 envoyer des nouvelles en peu de temps de la ville de Rome aux ex- 
 tremites de I'empire ; et en recevoir de toutes les provinces avec 
 pareille celerit6. Le troisieme, pour conduire et transporter les 
 armees romaines en tout temps et en tous lieux ou les aifaires les 
 requ^roient. Le quatrieme, pour faciliter les voyages, soit ^ pied, 
 soit a cheval ou tL charroi." — Liv. iv. ch. 1. $ 3. (torn. ii. p. 608) ; and 
 on the number of the roads in the provinces, see Bergier, liv. iii. 
 eh. 5. (tom. i. p. 331.) 
 
 t Tu regere imperio populos, Romane, memento : 
 HsB tibi erunt artes. 
 
128 EXAMPLES OF DEPENDENCIES. [CH. 
 
 by which the latter ruled their dependencies. And 
 although Greece introduced its arts, literature, and 
 science into Rome, and is admitted by the Roman 
 writers to have civilized its fierce conqueror, yet it is 
 to be remembered that Rome, on the other hand, in- 
 troduced its system of law into Greece, where it re- 
 mained in force until the fall of the Eastern empire, 
 and, indeed, was not quite extirpated by the Otto- 
 man conquerors. It is a great error to represent 
 the Romans as having been, during their whole 
 national existence, a mere rude community of con- 
 querors, who contributed nothing to the advance- 
 ment of mankind. The Romans were as much 
 superior to the Greeks in the science and art of civil 
 government, as the Greeks were superior to them in 
 the physical and mental sciences, and in literature ; 
 and the law of the Romans has, perhaps, done as 
 much for modern civilization as the literature and 
 science of the Greeks.* 
 
 * Claudian, in his poem de Secundo Consulatu Stilichonis, says 
 of Rome, characteristically : — 
 
 " Armorum legumque potens, quae fundit in omnes 
 Imperium, primique dedit cunabula juris." — v. 136, 7. 
 and afterwards, he adds the following verses respecting the facility 
 of intercourse which the Romans had introduced into their vast 
 empire, partly by the maintenance of peace, and partly by their roads 
 and other conveniences for travelling : 
 
 "Hujus pacificis debemus moribus omnes 
 Quod veluti patriis regionibus utitur hospes ; 
 Quod sedem mutare licet ; quod cernere Thulen 
 Lusus, et horrendos quondam penetrare recegsus ; 
 Quod bibimus passim Rhodanum, potamus Orontem ; 
 Quod gens una sumus."— v. 154 — 9. 
 
 a passage which will be reduced to sober truth by the invention of 
 steam-railways. 
 
II.] EXAMPLES OF DEPENDENCIES. 129 
 
 The distinctions which originally existed between 
 different classes of dependencies in Italy, and be- 
 tween those of Italy and the provinces, gradually 
 disappeared, under the assimilating influence of a 
 common supreme government. The jus Latii, or 
 privileges of the Latin confederate states, were first 
 extended to various communities in Italy ; then the 
 rights of Roman citizenship were communicated to 
 the whole of Italy by the Julian law after the Social 
 war ;* and lastly, a constitution of Caracalla ex- 
 tended these rights to the provinces. Before the 
 time of Caracalla, many towns in the provinces had 
 been erected into municipia, and many colonies had 
 been founded in them ; but under the empire, the 
 distinction between a municipium and a colony had 
 been nearly forgotten, and the peculiar institutions 
 of the Italian municipia had become obsolete.f 
 
 * Cicero considers the liberality of the Romans in admitting 
 foreign nations to the rights of Roman citizenship, as the main 
 cause of the increase and greatness of the Roman dominion. 
 •• Illud vero sine ulla dubitatione maxime nostrum fundavit impe- 
 rium, et populi Romani nomen auxit, quod princeps ille, creator 
 hujus urbis, Romulus, foedere Sabino docuit, etiam hostibus reci- 
 piendis augeri banc civitatem oportere : cujus auctoritate et exempio 
 nunquam est intermissa a majoribus nostris largitio et communi- 
 catio civitatis. Itaque et ex Latio multi, et Tusculani, et Lanuvini, 
 et ex ceteris generibus gentes universtE in civitatem sunt receptaj, 
 ut Sabinorum, Volscorum, Hernicorum." Pro Balbo, c. 13. Dio- 
 nysius contrasts the liberality of the Romans in this respect with 
 the exclusiveness of the Greeks: Ant. Rom. ii. 17. Claudian de 
 Sec. Cons. Stilich. v. 150 — 3, says of Rome : — 
 
 "Haec est in gremium victos quae solarecepit, 
 Humanumque genus communi nomine fovit, 
 Matris, non dominae, ritu ; civesque vocavit, 
 Quos domuit, nexuque pio longinqua revinxit." 
 t See Gellius ubi sup. Towns established by the Romans in the 
 provinces appear to have been called colonies, rather than muni- 
 
 K 
 
130 ' EXAMPLES OF DEPENDENCIES. [CH. 
 
 It may be observed, with respect to the extension 
 of the rights of Roman citizenship to the provinces 
 under the empire, that it did not then imply the 
 important consequences, or produce the practical 
 difficulties, which flowed from the grant of the 
 rights of Roman citizenship to the towns of Italy, 
 by the Julian law, during the Social war."*^ 
 
 The most important right conferred upon the 
 freemen of the Italian cities after the Social war 
 was the suffragium, or right of voting in the general 
 assembly of the Roman citizens. Inasmuch as the 
 general assembly of the Roman citizens was only 
 held at Rome, and as no citizen could give his vote 
 otherwise than in person, it was necessary that every 
 inhabitant of an Italian city should, in order to 
 exercise his Roman suffrage, repair to Rome. At 
 first, all the Italians were distributed into eight new 
 tribes, in order that their votes might be nullified 
 by the preponderating numbers of the thirty-five 
 purely Roman tribes ; but when Cinna promised to 
 distribute the Italians equally through all the tribes, 
 
 cipia, according to the ancient analogy. Thus Camulodonum, in 
 Britain, was a colonia, where the lands had been divided among 
 retired soldiers ; Londinium likewise was a colonia ; whereas Verii- 
 lamium was a municipium : Tacit. Ann. xiv. 31, 33. The Colonia 
 Agrippinensis on the Rhine still preserves its name in the modern 
 Cologne. On the inaccurate use of the name municipium under 
 the empire. Roth, p. 26 ; and see Gibbon, c. 2. (vol. i. p. 48.) 
 
 * For an able statement of the causes of the Social war, (including 
 an exposition of the ancient system of subject allies,) see Encycl. 
 Metropolitana, Divis. 3, vol. ii. p. 115—8, by Dr. Arnold.) Compare 
 likewise Heyne, De Belli Romanorum Socialis Caussis et Eventu, 
 respectu ad bellum cum coloniis Americanis gestum habito (written 
 in 1783,) Opuscula, vol. iii. p. 144. 
 
II.] EXAMPLES OF DEPENDENCIES. 131 
 
 a vast multitude was (we are told) attracted to Rome 
 from the whole of Italy.* It was the want of the 
 modern contrivance of political elective representa- 
 tion, and the consequent necessity of every citizen 
 giving his suffrage in person, which rendered the 
 continuance of a republican government in Rome 
 impossible, after the rights of Roman citizenship had 
 been extended to the Italian cities. Even if no 
 animosity had existed between the old Roman citi- 
 zens and the Italians newly admitted to the rights 
 of Roman citizenship, it was impossible that the 
 republic should endure, comprehending, as it did, the 
 chief part of Italy, and governed by citizens who 
 could only give their suffrage in the general assembly 
 at Rome. Accordingly, the interval between the 
 Social war and the empire is filled with internal 
 confusion and discord ;t and the system which the 
 Julian law was intended to create, never could be 
 consolidated. Italy, after it had been conquered by 
 Rome, might, according to the ancient systems of 
 government, have been governed in one of two ways. 
 The Italian towns might either have been a cluster 
 
 * Cum ita civitas Italiae data esset, ut in octo tribus contribue- 
 rentur novi cives, ne potentia eorum et multitudine veterum civium 
 dignitatem frangeret, plusque possent recepti in beneficium quam 
 auctores beneficii, Cinna in omnibus tribubus eos se distributurum 
 pollicitus est. Quo nomine ingentem totius Italiae frequentiam in 
 urbem acciverat. Veil. Paterc. ii. 20. Compare Appian de Bell. 
 Civ. i. 49. 
 
 t The Social war began in 90 B.C. and Julius Caesar was then 
 ten years old, having been born in 100 B. C. His uncle was consul 
 In the year of the tribuneship of Drusus, which preceded and pro- 
 duced the Social war. 
 
 k2 
 
132 EXAMPLES OF DEPENDENCIES. [CH. 
 
 of dependencies around the dominant city of Rome 
 and its territory, like the dependent Laconian com- 
 munities around Sparta, and the Libyan dependen- 
 cies around Carthage ; or the whole of Italy, Rome 
 included, might have been directly subject to a 
 monarchical government established in Rome. The 
 consequences of the Social war had rendered the 
 former of these modes of government impossible ; 
 and had therefore necessitated the adoption of the 
 latter. By the establishment of the Imperial govern- 
 ment, (which was monarchical in substance, though 
 not in form,) the freeman of Mantua or Capua, 
 although he was a Roman citizen, was relieved from 
 the necessity of going to Rome, in order to exercise 
 his suffrage there ; and he was virtually equal in 
 rights to the citizen of Rome, because the latter was 
 substantially deprived of the suffrage which the for- 
 mer could not conveniently exercise. Accordingly, 
 when the Emperor Claudius advised the senate to 
 confer the full rights of Roman citizenship upon the 
 Transalpine Gauls, it was easy for him to represent 
 this extension of political rights to an excluded class, 
 as a liberal concession, analogous to the equalization 
 of the political rights of the plebeians with those of 
 the patricians in ancient times. ''^ But the patricians 
 and plebeians inhabited the same city, and the 
 latter could easily exercise their rights as citizens, 
 
 * Omnia, P. C, quae nunc vetustissima creduntur, nova fuere : 
 plebei magistratus post patricios, Latini post plebeios, ceterarum 
 Italiae gentium post Latinos. Inveterascet hoc quoque ; et quod 
 hodie exemplis tuemur, inter exempla erit. From the speech of the 
 Emperor Claudius in Tacit. Ann. xi. 24. 
 
II.] EXAMPLES OF DEPENDENCIES. 133 
 
 in person ; whereas the communication of the 
 rights of Roman citizenship, as they existed in 
 the time of the contests between the patrician and 
 plebeian orders, to the Transalpine Gauls, would 
 have rendered the conduct of the government im- 
 possible.* 
 
 In like manner, the Roman citizens who were sent 
 out as colonists were probably not at first intended 
 to be placed in a condition politically inferior to 
 that of their fellow-citizens whom they left behind 
 at Rome. But the impossibility of their exercising 
 their Roman suffrage without ceasing virtually to 
 be resident in their colony, gradually led to the 
 exclusion of the colonists from the public rights of 
 Roman citizenship.^ It is only by means of repre- 
 sentative institutions that a large tract of country 
 can (as in England, France, and the United States) 
 be subjected directly to a popular government. 
 The chief advantage of representative institutions 
 is, that they render it possible for a popular govern- 
 ment to act directly upon a large territory, and thus 
 enable it to avoid the recurrence to a system of 
 dependencies. 
 
 During the reign of Constantine, a systematic 
 re-division of the provinces of the Roman empire^ 
 and a fresh adjustment of the powers and rank of 
 the provincial governors, were made. J The financial 
 and judicial were severed from the military powers, 
 
 * See note (K) at the end of the volume. 
 
 f Sec Hopfensack, p. 146, 7. 
 
 :|: Gibbon, Decline and Fall, c. 17.. 
 
134 EXAiMPLES OF DEPENDENCIES. [CH. 
 
 and were conferred on a double set of functionaries. 
 Moreover, an attempt was made, by an improved 
 system of posts, and frequent missions of official 
 inspectors, to exercise a more efficient control over 
 the provincial governors.* By this time, the in- 
 fluence of the Roman military, administrative, and 
 judicial systems had been sensibly felt in the pro- 
 vinces, and the Roman language, institutions, and 
 law had gradually superseded those of the natives. 
 The scientific cultivation of law by the Roman 
 jurists, the vast superiority of the Roman juris- 
 prudence to that of all other nations, including the 
 Greeks,! and at a later period, the digestion of the 
 Roman law into codes, naturally led to its adoption 
 throughout the provinces. It may be added that, 
 in the age of Justinian, it was customary for the 
 civil governors of provinces to receive a legal edu- 
 cation in the Roman schools. J But notwithstanding 
 the uniformity of the legal s^^stem thus introduced 
 throughout the Roman empire, the provinces 
 always retained subordinate governments, and con- 
 sequently their character of dependencies ; and the 
 
 * Gibbon, ibid. (vol. ii. p. 307, 8vo.) 
 
 t Cicero de Orat. i. 44. Quantum praestiterint nostri majores 
 prudentia ceeteris gentibus, turn facillime intelligetis, si cum illorum 
 Lycurgo et Dracone et Solone nostras leges conferre volueritis. 
 Incredibile est enim quam sit omne jus civile, praeter hoc nostrum, 
 inconditum ac paene ridiculum. 
 
 % Justinian concludes the proem of his Institutes with the fol- 
 lowing exhortation to law students. " Summa itaque ope et alacri 
 studio has leges nostras accipite, et vosmet ipsos sic eruditos osten- 
 dite, ut spes vos pulcherrima foveat, toto legitimo opere perfecto 
 posse etiam nostram rempublicam in pariibus ejus vobis credendisy 
 gubernari." See Gibbon's full explanation of this point, ib. p. 287. 
 
II.] EXAMPLES OF DEPENDENCIES. 135 
 
 local councils of decurions, which the provinciartowns 
 had received in imitation of the municipia and 
 colonies of Italy, were the origin of the free towns 
 of the middle ages. 
 
 § 2. Dependencies of the European States in Modern Times. 
 
 It will be unnecessary for me to adduce as copious 
 examples of modern as of ancient dependencies; 
 partly because the dependencies of the modern 
 European states are better known, and partly be- 
 cause their characteristic peculiarities will be more 
 often adverted to in subsequent parts of this Essay. 
 
 The governments which arose in Europe upon the J^^ndpi,. 
 ruins of the Roman empire, though widely different ^'^'• 
 in most respects from the system to which they suc- 
 ceeded, resembled it in being, to a great extent, 
 aggregates of dependencies. In the feudal king- 
 doms, a greater baron or feudatary possessed po- 
 litical powers so extensive that they virtually ren- 
 dered him the head of a subordinate government. 
 He usually possessed the power of administering 
 justice, of maintaining public order, and of col- 
 lecting taxes for public purposes ; and the exercise 
 of these powers naturally involved the exercise 
 of a power of subordinate legislation. By con- 
 vening his court, he could make a law binding his 
 vassals, provided that it was not inconsistent with 
 the terms of his infeudation.* The tribute which 
 
 * " Le proprietaire d'un grand alien on d'un grand benefice, cn- 
 toure de ses compagnons qui continuaient de vivre aupres de hii, 
 des colons, et des serfs qui cultivaient ses terres, leur rendait la jus- 
 lice en qualite de chef de cette petite societc ; lui aussi tcnait dans 
 ses domaincs une sorte de plaid ou les causes etaient jugues, tantot 
 
136 EXAMPLES OF DEPENDENCIES. [cH. 
 
 he yielded to the king was in general rendered in 
 mihtary service; although a direct payment was 
 sometimes made. 
 
 His power of administering justice, and his power 
 of subordinate legislation involved in it, naturally 
 led to the formation of a separate system of law in the 
 territory included in his fief; thus in France, the 
 provinces retained different systems of jurisprudence, 
 even after the powers of the great feudataries had 
 been absorbed by the crown. It was only when the 
 king had encroached on the jurisdiction of the great 
 feudataries, and had brought their rere-vassals into 
 more immediate relation with himself, by means of 
 his judges and other officers, that the greater feudal 
 dependencies became directly subject to the supreme 
 government. 
 
 Another important class of dependencies in mo- 
 dern Europe arose from the reduction of several inde- 
 pendent states under the dominion of the head of 
 another independent state, by means of inheritance, 
 marriage, or conquest. 
 de'^TE- '^^^ "^^^* remarkable of these for their extent, 
 political importance, and distance from the dominant 
 country, are the European provinces of the Spanish 
 monarchy, as they existed in the sixteenth century ; 
 
 par lui seul, tantot avec le concours de ses hommes libres . 
 Ainsi, dans chaque localite, les pouvoirs individuels, inherents au 
 domaine, existaient a cote des pouvoirs publics, emancs de la deli- 
 beration commune. Le proprietaire gouvernait et jugeait dans ses 
 terres aussi bien que les hommes libres dans I'assemblee de la centene 
 ou du comte." Guizot, Essais sur I'Histoire de France, Essai 4, ch. 3, 
 (p. 253.) 
 
 cies of 
 Spain 
 
II.] EXAMPLES OF DEPENDENCIES. 137 
 
 namely, the kingdoms of Naples and Sicily, the 
 duchy of Milan, and the Netherlands. These pro- 
 vinces were not strictly dependencies of Spain, but 
 were, in form, independent kingdoms whose king- 
 was likewise king of Spain ; so that they must, if 
 the form of their institutions be alone considered, be 
 treated as communities having a common head, but 
 not belonging to the same empire.* But the rela- 
 tion in which they stood to the Spanish govern- 
 ment was such, that in practice they approximated 
 closely to dependencies. 
 
 These countries were too distant from the centre 
 of the Spanish government to admit of being 
 governed directly by the king. Accordingly, each 
 of them was placed under a Spanish governor, 
 (called a viceroy in Sicily and Naples,) possessing 
 the ample delegation of powers proper to a sub- 
 ordinate government.! The powers of the Sicilian 
 viceroy were limited in practice by the ancient 
 feudal constitution of the island ;| but in Naples 
 the elements of resistance among the native popu- 
 lation were weak, and the foreign viceroy had an 
 
 ♦ See above, p. 90. 
 
 t See Giannoiie, Storia di Napoli, xxx. 2 — 5. The following 
 form of the delegation of powers to a viceroy of the king of Spain, 
 at Naples, is cited by Ranke : " I take you from my right side, and 
 send you as my alter ego into my kingdom of the hither Sicily ; I 
 give you supreme and inferior jurisdiction, pure and mixt domi- 
 nion, and the power of the sword ; I confer on you the authority 
 of remitting punishments, legitimating bastards, making knights, 
 granting feuds and bishoprics, and even of doing those things 
 whereto the king's presence is properly requisite." Fiirsten und 
 Viilker von Siid-Europa im sechszehnten und siebzehnten Jahr- 
 hundert, vol. i. p. 28G. (ed. 2.) 
 
 X See Ranke, ubi sup. p. 257. and Leo, Geschichte von Italien» 
 vol. V. p. 28 — 31, from Gregorio. 
 
138 EXAMPLES OF DEPENDENCIES. [CH. 
 
 almost unlimited sway.* In the duchy of Milan, 
 likewise, the municipal institutions of the towns at 
 first placed some check upon the powers of the 
 Spanish governor ; by degrees, however, he became 
 absolute, and on account of the frequent wars in 
 which Northern Italy was involved, the military 
 element of the government preponderated over the 
 civil, and thus gave it a harsh character.f In the 
 Netherlands, the political powers possessed and exer- 
 cised by the provinces and towns were more ex- 
 tensive,J and the spirit of the people was more 
 active and independent. The separation of a large 
 part of the Netherlands from Spain in the sixteenth 
 century is well known to have been mainly owing 
 to the attempt of Philip the Second to force the 
 Catholic religion upon the Protestant portion of the 
 people. Nevertheless, the spirit of resistance en- 
 gendered by his religious persecutions was much 
 fomented by the discontent at the employment of 
 Spaniards in the country, and by the fear of the 
 nobles that their importance might be extinguished 
 under the Spanish influence.^ 
 
 Each of these countries paid a considerable 
 tribute to Spain, in addition to the maintenance 
 which they furnished to the Spanish troops quar- 
 
 * Ranke, ubi sup. p. 277. To the Neapolitan viceroy was asso- 
 ciated a council, styled Conseglio collaterale, which was composed 
 of two Spanish and one Neapolitan member : Ranke, p. 282. No 
 appointment to offices was made against the recommendation of the 
 viceroy. The best offices were given to Spaniards : Ranke, ibid. 
 
 t Ranke, p. 304. 209. Leo, vol. v. p. 467—70. 
 
 X Ranke, p. 314-6. 
 
 \ Ranke, p. 321. 
 
ol THE 
 
 II. I EXAMPLES OF DEPENDENC»i& *' * ^139* /) 
 
 tered upon them.* The public revenue which they 
 produced was probably considered the main advan- 
 tage which they afforded to the Spanish monarchy. 
 Thus the annual tribute of the Netherlands often 
 amounted to a million and a half of ducats. " The 
 Netherlands (said a Venetian ambassador) are the 
 real treasures, and mines, and Indies of the King of 
 Spain." t 
 
 The Spanish provinces which we have been con- 
 sidering retained their native systems of private 
 law unchanged, and the ordinary courts appear to 
 •have been composed of native judges. Even in 
 Naples, which remained for the longest time de- 
 pendent upon Spain, the legislation of the viceroys 
 does not seem to have been considerable, or to have 
 had for its object the introduction of any of the 
 peculiarities of the Spanish legal system. J 
 
 The relation of the Spanish dependencies in 
 Europe to the dominant country bears some ana- 
 logy to the relation of the Roman provinces to 
 Rome. The absolute military governor, the mili- 
 tary character of the government, the existence 
 of an ancient native civilization, and the mainte- 
 nance of the native law under the foreign govern- 
 ment, form obvious points of resemblance. The 
 Spaniards, however, did not possess that power of 
 perceiving clearly, and of pursuing steadily, the 
 
 * Concerning the public revenue of the European dependencies 
 of Spain, Ranke, p. 338—45. 365—9. 
 
 t " Questi sono li tesori del re di Spagna, questc leminere, queste 
 rindie." Soriano, Relazione di Spagna, cited by Ranke, p. 359. 
 
 \ See Giannone, xxx. 5. 
 
140 EXAMPLES OF DEPENDENCIES. [CH. 
 
 important ends of political government, which made 
 the Romans so formidable, but, at the same time, 
 so useful to their subjects, and enabled them to 
 exercise so pervading an influence over all their 
 provinces. "^ If the kings of Spain had adopted the 
 Roman policy of not interfering with the religion 
 of the provincials, they might probably have re- 
 tained for a considerable time their supremacy over 
 the United Provinces, the most valuable dependency 
 of the Spanish monarchy. 
 Dependen- Another systcm of dependencies in modern 
 
 cies of _, /»..,, 
 
 France Europc, of a Similar character, are the dependencies . 
 
 poieon. of France, which were created by the conquests of 
 Napoleon Bonaparte ; such as the kingdoms of 
 Italy, Naples, Spain, Holland, and Westphalia, and 
 the Confederation of the Rhine. These were nomi- 
 nally and in form independent states ; but they 
 were intended by Napoleon to be virtually dependent 
 on his government, and were always so treated by 
 him. Thus he informed his nephew, the Grand- 
 Duke of Berg, that his first duty was to himself (Na- 
 poleon), and his second to France ; and that all his. 
 other duties, including those to the country placed 
 under his charge, were subordinate to these.f This 
 declaration has been much censured : but it agrees 
 with the almost universally received maxim for the 
 
 * Giannone, xxx. 2, justly objects to the comparison made by 
 some modern writers between the Spaniards and the Romans ; and 
 shows that the latter governed their dependencies with far more 
 leniency, equity, and wisdom, than the former. 
 
 f See Walter Scott's Life of Napoleon, c. 52. (Prose Works, vol. 
 xiii. p. 332.) 
 
II.] EXAMPLES OF DEPENDENCIES. 141 
 
 government of dependencies, in postponing the 
 interests of the dependency to those of the dominant 
 country ; and it only differs from that maxim in 
 avowedly distinguishing between the interests of 
 the dominant country and those of its ruler. 
 
 The system of French dependencies created by 
 Napoleon was never consolidated, and therefore the 
 mode of their government presents scarcely any 
 characteristics which can be comprised in a general 
 description. It may, however, be observed that the 
 convenience of possessing an uniform system of 
 written law led to the introduction of the French 
 codes into several of those countries ; and that in 
 some of them, as in Holland, Belgium, and the 
 territory now forming the Rhenish province of 
 Prussia, these codes have been retained since the 
 separation of those countries from France. 
 
 If Napoleon had been able to consolidate the 
 system of French dependencies projected by him, 
 he would probably have established a system closely 
 resembling that of the Roman provinces. When 
 we reflect on the differences between the state of the 
 countries held in subjection by Rome, and the state 
 of Europe at the beginning of the nineteenth cen- 
 tury, this remark alone shows how little his plans 
 of conquest and government were calculated for 
 stability. 
 
 We proceed next to the consideration of the most Modem de- 
 important class of the dependencies of the modern for com- 
 European states ; namely, those which have owed purposes. 
 their origin to a spirit of commercial enterprise. 
 
142 EXAMPLES OF DEPENDENCIES. [CH. 
 
 sometimes peaceable, and sometimes accompanied 
 by a spirit of conquest. 
 
 The earliest dependencies of this class are those 
 established by the maritime republics of Italy in 
 the Levant. Although many of these settlements 
 were fortified, and strongly defended, yet they were 
 mainly intended to serve as factories, and to protect 
 and facilitate the commercial intercourse of these 
 republics with Asia and the countries lying to the 
 north of the Black Sea. 
 Dependen Durine; the short existence of the Latin empire of 
 
 ciesof '^ ^ 
 
 Genoa. tlic East, the Venetians, Genoese and Pisans had 
 factories in Constantinople, which obtained a sepa- 
 rate political existence, and were governed, to a 
 considerable extent, by their own magistrates. At 
 the return of the Greek Emperor, Michael Palseo- 
 logus, in 1261, the Venetians and Pisans were 
 allowed to preserve their respective quarters; but 
 to the Genoese, on account of their superior power 
 and services to the Emperor, was assigned the 
 suburb of Galata, or Pera, on the opposite side of 
 the harbour.^ The Genoese at Galata retained all 
 the characteristics of a Genoese colony ; but they 
 acknowledged their subjection and allegiance to the 
 Greek Emperor.f After a time, however, they 
 threw off their dependence upon the Greek empire, 
 
 * Gibbon, Decline and Fall, c. 62. (vol. viii. p. 15.) Leo, ubi sup. 
 vol. iii. p. 34. Gibbon considers Galata and Pera as different names 
 of the same place; at present, these names designate different, 
 though contiguous, places. 
 
 t Gibbon, ib. p. 67. 
 
II.] EXAMPLES OF DEPENDENCIES. 143 
 
 and, with the assistance of the Venetians, even de- 
 feated the Emperor Cantacuzenus in a sea-fight, 
 within sight of his own city.* The political subor- 
 dination of Galata to its mother-country seems to 
 have been always maintained. An annual Podesta 
 was sent out from Genoa, whose election was subject 
 to the same restrictions as the elections of the chief 
 officers of Genoa itself. The local government of 
 the comune was vested, under the real or nominal 
 supremacy of the Greek empire, in this Podest^, 
 together with a consiglio, after the manner of an Ita- 
 lian republic. There were numerous regulations re- 
 specting his duties ; and the government of Galata 
 was generally bound to observe the statutes of 
 Genoa. The power of altering the laws imposed 
 on it by the supreme government of Genoa was 
 not conferred upon the subordinate government of 
 the colony, f The Genoese, likewise, possessed other 
 factories in the Black Sea, particularly KafFa, in the 
 Crimea, which they bought from a Tartar chieftain 
 in the beginning of the fourteenth century.:}: The 
 local government of KafFa was permitted to change 
 the laws imposed on it by Genoa, without previously 
 obtaining the consent of the Genoese government 
 to the change ; a latitude which was probably 
 
 * Gibbon, Decline and Fall, c. 62, p. 70—4. 
 
 t Saiili, Delia Coloniadei Genovesi in Galata, torn. ii. p. 10 — 31. 
 (Torino, 1831.) Gibson, p. 70, treats Galata as virtually independent 
 both of the Greek empire and of the mother-country ; but this does 
 not seem to have been the case with respect to the latter at least. 
 
 I Sismondi, Hist, des R. I. ch. 40. (tom. vi. p. 93.) Leo, vol. iii. 
 p. 462. 
 
Venetian 
 dependen- 
 
 144 EXAMPLES OF DEPENDENCIES. [CH. 
 
 allowed to it on account of its distance and its 
 dangers.* These important settlements and factories 
 remained in the possession of Genoa, until the taking 
 of Constantinople by the Turks, when they all fell 
 under the Mussulman power.f 
 
 The Venetians, by the fourth crusade, acquired a 
 cies. portion of the divided Greek empire, and a district 
 
 of Constantinople. At the same time they likewise 
 acquired Candia by purchase ; and although they 
 afterwards lost their power in Constantinople, they 
 made conquests, and established colonies and fac- 
 tories in the Black Sea, the Propontis, the Archi- 
 pelago, the Morea, the coast of Syria, Cyprus, and 
 the coasts and islands of the Adriatic.^ Venice, and 
 the other Italian republics, commenced, even before 
 the Turkish conquest, the practice of establishing 
 commercial factories in the cities of the Levant. 
 These were separate walled precincts,§ (like those 
 once assigned to the Jews in the European towns,)|| 
 in which the foreign merchants lived with their 
 families, and were governed by magistrates of their 
 
 * Sauli, torn. ii. p. 30, 31. 
 
 I Sauli, torn. ii. p. 176. The last possession of Genoa in the 
 Levant was the island of Chios, which was under a sort of proprietary 
 government belonging to the Giustiniani family : Sismondi, torn. iii. 
 p. 318. 
 
 t Leo, vol. iii. p. 16, 17, 27 — 30. Daru, Hist, de Venise, liv. xix. 
 HO. 
 
 § These factories, from having been originally little more than 
 landing places, were called scale by the Italians, and afterwards 
 echelles by the French. 
 
 II 'The Jews' quarter was called ^Ae/^o by the Italians, which word 
 was derived from the German gitter ; the Jews having been enclosed 
 by a barrier drawn across the ends of the streets assigned to them. 
 
H.J EXAMPLES OF DEPENDENCIES. 145 
 
 own, according to their own laws. They resemble 
 very closely the Portuguese factory at Macao, and 
 the English factory at Canton; only that in the 
 latter, the jealousy of the Chinese never allowed 
 women to be introduced, and consequently, pre- 
 vented the permanent foundation of a settlement 
 from being laid.* The treaty of the Venetians 
 with the Emperor Michael, in 1264, contained a 
 stipulation that the Venetians at Constantinople and 
 other cities of the Greek empire were to retain their 
 own courts, with further definitions of the relations 
 of these to the native tribunals.f Similar stipula- 
 tions as to the allowance of a Bailo with jurisdiction, 
 to the Venetians, were contained in treaties made 
 with the Sultan in 1454 and 1479.;!: The system 
 thus introduced has given rise to the singular prac- 
 tice of the European ambassadors and consuls 
 exercising a criminal, and sometimes a civil juris- 
 diction over their fellow-countrymen in the Maho- 
 medan countries in the Levant and Barbary ; and of 
 withdrawing them from the native tribunals, by virtue 
 of treaties made at different times with the Porte. 
 
 * Strabo, iii. c. 4, states that the republic of Massilia founded on 
 the coast of Spain a settlement named 'Ef^'pro^iTov ("the factory"), 
 and that the Emporitae, having first occupied an island off the coast, 
 afterwards moved to the mainland, where they and the Indicetae (a 
 native Spanish tribe) dwelt in a city within a common wall, but 
 forming two distinct political communities, and divided by a wall 
 from one another. This is probably the earliest example of a fac- 
 tory constituting a part of a town : but it differs from the factories 
 mentioned in the text, in that the Emporitae probably were inde- 
 pendent both of their mother-country, and of the people of tlie 
 country which they occupied. Compare Livy xxxiv. 9. 
 
 t Leo, vol. iii. p. 35, 36. Compare p. 49. 
 
 X Leo, vol. iii. p. 162, 182. 
 
 L 
 
146 EXAMPLES OF DEPENDENCIES. [CH. 
 
 The Venetian colonial dependencies were, to a 
 certain extent, organized after the pattern of the 
 mother-country.* It was the object of the republic 
 to induce its citizens to settle in Greece, and it 
 granted fiefs to its nobles in different places with 
 this view. The isle of Candia was colonized by 
 Venetians in 1212; the land was divided into three 
 parts, of which one part was reserved to the re- 
 public, one part was granted to the church, and a 
 third part was subdivided into five hundred grants 
 to the Venetian adventurers, to be held upon con- 
 dition of their performing military service.f 
 
 " The island was presided over by a government, 
 having an organisation similar to those in the other 
 foreign possessions of Venice. The entire body of 
 the Venetian nobili, and their descendants, formed 
 the great council of the island ; at the head of 
 which was the duca (or doge), assisted by two coun- 
 cillors. The doge was originally appointed for a 
 longer time ; but afterwards held the office only for 
 two years. Two avogadori, two camerlenghi, and 
 a massaro, (the latter of whom was always a Venetian 
 colonist, and was destined for the control of the 
 camerlenghi,) discharged the administrative ofiices. 
 There was also a number of judicial officers, all of 
 whom were likewise required to be colonists. The 
 feudal cavalry was commanded by a proveditore, 
 and the entire military force by a captain-general." J 
 
 * Leo, p. 17, 18. See Darn, torn. i. p. 184. 
 f Leo, p. 21. 
 X Leo, p. 22. 
 
I 
 
 II.] EXAMPLES OF DEPENDENCIES. 147 
 
 The native Greek population of Candia often re- 
 belled against the Venetian government;* but in 
 1361, a rebellion of the Venetian colonists them- 
 selves took place, for the purpose of throwing off the 
 yoke of the mother-count r}-. The colonists refused 
 to pay a tax imposed upon them for the maintenance 
 of the harbour of the city of Canea, and demanded 
 that some of them should sit as representatives in 
 the great council of Venice. But these pretensions, 
 and the attempts to enforce them, were soon sup- 
 pressed by a Venetian army.f 
 
 It was the policy of Venice to encourage the 
 members of her noble families to migrate to the 
 colonies for the purpose of enriching themselves ; 
 and to adopt the families thus enriched into the 
 highest order of nobles.J It was only by a system 
 of the strictest control over the governors of the 
 ultra-marine dependencies, that Venice maintained 
 them in subjection to her; and the supreme govern- 
 ment, in order to avoid giving any unnecessary 
 offence to its governors, was induced to overlook 
 their oppressions of the people placed under their 
 immediate rule.§ Accordingly, the Venetian empire 
 never was firmly consolidated ; and although the 
 Dalmatian coast and the Morea were at no great 
 
 * See Daru, torn. i. p. 354. 
 
 t Leo, p. 85--7, who remarks the analogy with the grievances 
 and claims of the North American colonies of England, before their 
 war of independence. 
 
 I The Venetians are stated to have deliberated in 1225, about trans- 
 ferring the seat of their government to Constantinople: Sismondi, 
 ch. 20. (tom. iii. p. 301.) 
 
 § Leo, p. 68. 194, 5. 
 
 l2 
 
148 EXAMPLES OF DEPENDENCIES. [CH. 
 
 distance from the seat of the supreme government, 
 the dependent parts, like the subjects of Carthage, 
 Athens, or Sparta, always remained a loose aggre- 
 gate of communities, ready to fall to pieces at the 
 first blow.* 
 
 * The following is M. de Sismondi's account of the policy of the 
 Venetians towards their dependencies:— "lis ne considererent 
 jamais leurs possessions du Levant comme des parties integrantes 
 de leur etat ; ils ne les gouvernerent jamais de maniere a les faire 
 fleurir ; ils ne les defendirent jamais de maniere a les sauver ; ils 
 n'assurerent jamais aux peuples ce degre de prosperite et de paix, 
 qui auroit attache leurs sujets a la republique, qui leur auroit concilie 
 lafFection de leurs v oisins, et qui les auroit fait reconnoitre pour les 
 allies et les defenseurs naturels de tt)us les Chretiens e oumis aux 
 Turcs." ch. 80. (tom. x. p. 261.) 
 
 After having stated that the Venetian republic, in later times, was 
 formed of three classes ; 1st, the dominant Venetians ; 2d, the sub- 
 ject Italian communities of the terra firma: and 3d, the Levantines 
 and other foreign subjects, he makes the following remarks on the 
 3d class: — "Eniin Ico habitans des provinces situees au-dela des 
 mers formoient une troisiemeclasse,meprisee,opprimee,et toujours 
 sacrifice aux deux autres. Leurs ports etoient des marches reserves 
 aux seuls V^nitiens, ou ils exer9oiont, sans rivaux, un odieux mono- 
 pole ; leurs forteresses devoient contenir leurs sujets dans la crainte, et 
 assurer la domination de la mer Adriatique ; mais elles ne couvroient 
 point les frontieres, et ne protegeoient point I'agriculture et la paix 
 dans une enceinte inviolable ; leurs milices n'etoient point re- 
 gulierement armees ; les soldats, leves dans ces pays si guerriers, 
 n'etoient point incorpores avec le reste de I'armee Venitienne ; ils 
 etoient repousses au dernier rang de I'etablissement militaire." 
 ib. p. 262. 
 
 M. de Sismondi proceeds to remark that, considering the extent 
 of her ultramarine possessions, Venice ought to have aimed at being 
 an Illyrian rather than an Italian power, and to have formed a com- 
 pact empire of her Illyrian, Albanian, and Greek subjects. " Mais 
 les etats les plus sages (he adds) sont eux-memes souvent conduits 
 par leurs prejuges bien plus que par leur jugement. Chacun des 
 agens de I'autorite partageoit les preventions nationales contre tous 
 les sujets levantins de la republique. Tous les Grecs etoient estimes 
 faux et corrompus, tous les Illyriens, barbares. Le Venitien se 
 seroit senti humili^, s'il avoit et^ confondu avec de semblables 
 horames. II ne pouvoit saffectionner a ces possessions lointaines ; 
 jamais il n*y faisoit d'etablissement durable, jamais il ne vouloit y 
 
Spain. 
 
 II.] EXAMPLES OF DEPENDENCIES. 149 
 
 But, as soon as the invention of the compass, the 
 circumnavigation of Africa, and the discovery of 
 America, had given a mighty impulse to distant 
 mercantile enterprise, the civilized commercial 
 world was no longer nearly confined to the Medi- 
 terranean ; the ancient communications of trade 
 were abandoned ; and new fields of colonization and 
 conquest were opened beyond the ocean. 
 
 As the expedition which discovered America was American 
 
 dependen- 
 
 a Spanish expedition, the Spaniards naturally became cies of 
 the first colonizers of America. Having easily sub- 
 dued the half-civilized natives, they established a 
 government which was entirely conducted by 
 Spaniards, and was strictly dependent upon the 
 Spanish monarchy.* The main advantage which 
 Spain originally expected to obtain from her Ame- 
 rican colonies consisted in the revenue derivable 
 from their gold and silver mines.f To this source 
 of profit was subsequently added the supposed ad- 
 vantages of her monopoly of the colonial trade.J 
 The latter system appears to have been mainly of 
 Spanish origin, though it had been previously in- 
 troduced by the Venetians into their colonies in the 
 Levant; and, at all events, it was carried to a 
 
 etre considere autrement que comme un stranger. II y venoitpour 
 faire sa fortune; des qu'elle etoit faite, il se hatoit de Temporter 
 ailleurs." Sismondi, torn. x. p. 263. 
 
 * Robertson's History of America, book viii. 
 
 t Robertson, ib. vol. vii. p. 359. (ed. Oxford.) 
 
 X Robertson, p. 333—6. 385. 388. The Spanish dependencies 
 were not only prohibited from trading with foreign countries, but 
 also with one another. Several branches of manufacture, and the 
 culture of the vine and olive, were prohibited in them. The Romans, 
 in like manner, prohibited the culture of the vine and olive in Trans- 
 alpine Gaul, in order to increase the prices of the wine and oil pro- 
 duced in Italy. Cic. de Rep. iii. 9. 
 
150 EXAMPLES OF DEPENDENCIES. [CH. 
 
 greater extent, and persisted in with greater obsti- 
 nacy, by Spain, than by any other country. The 
 supposed advantages arising from these two sources 
 could only be secured by maintaining the American 
 colonies of Spain in a state of strict dependence 
 upon the mother-country. Accordingly, the prin- 
 ciple of the supremacy of the Spanish monarch 
 in Spanish America was strongly asserted.* The 
 ultimate property of the soil was held to reside 
 in him, and all public officers were regarded as 
 acting by his authority. The two viceroys who 
 represented the king of Spain in his Spanish do- 
 minions possessed as ample powers as was consistent 
 with their being merely the heads of a subordinate 
 government. t But, considering the distance of 
 America from Spain, and the imperfection of the 
 arts of navigation and war in the sixteenth century, 
 it is probable that the Spanish colonies in America 
 would have become independent in no long time 
 
 * Robertson, p. 327, 328, 304. The king of Spain and not the pope 
 was supreme in ecclesiastical matters in the American colonies ; 
 ib. p. 348, 9. 
 
 f •* Those viceroys not only represent the person of their sovereign* 
 but possess his regal prerogatives within the precincts of their own 
 governments, in their utmost extent. Like him, they exercise 
 supreme authority in every department of government, civil, mili- 
 tary, and criminal. They have the sole right of nominating the 
 persons who hold many offices of the highest importance, and the 
 occasional privilege of supplying those which, when they become 
 vacant by death, are in the royal gift, until the successor appointed 
 by the king shall arrive. The external pomp of their government 
 is suited to its real dignity and power. Their courts are formed upon 
 the model of that at Madrid, with horse and foot guards, a house- 
 hold regularly established, numerous attendants, and ensigns of 
 command, displaying such magnificence, as hardly retains the ap- 
 pearance of delegated authority.'" Robertson, p. 329. All important 
 offices in the Spanish colonies were filled by Spaniards ; even persons 
 of Spanish origin, but born in America, were excluded : ib. p. 339. 
 
OK THE 
 II.] EXAMPLES OF DEPENDENCI] 
 
 after their foundation, had it not been for 
 council of the Indies. This council had, under the 
 king, the chief authority over all matters concerning 
 the government of the Spanish colonies in America. 
 Its power extended to all departments, as well legis- 
 lative as executive ; and all public officers in Ame- 
 rica were appointed by and accountable to it.* The 
 establishment of the council of the Indies may be 
 considered as the earliest attempt to exercise con- 
 stantly a vigilant control over the subordinate 
 governments of dependencies, by means of a sepa- 
 rate public department in the dominant country. 
 
 A considerable body of laws peculiar to the 
 Spanish colonies in America was gradually formed 
 by the legislation of the council of the Indies and of 
 the American viceroys ; which have been collected 
 and published under the title of Recopilacion de 
 Leyes de los reynos de las Indias.'f 
 
 It has been recently shown by authentic evidence, 
 that the only solid advantage which Spain was sup- 
 posed to have derived^ from her American colonies, 
 (namely, the produce of the tax upon the mines of 
 gold and silver,) has been greatly exaggerated.:]: 
 On the results of her system of colonial monopoly, 
 we shall make some remarks lower down.§ 
 
 The tropical regions of the mainland of America Dependen- 
 remained in the undisturbed possession of the Spain and 
 Spaniards; but many of the West India islands tionsiJTthe 
 were subsequently taken . and colonized by the die?. 
 
 * Robertson, p. 332. 
 
 t Published at Madrid, 1774, in 4 vols, folio. 
 
 I Ranke, p. 351 — 9. Compare Robertson, p. 400. 
 
 § Below, ch. VI. 
 
152 EXAMPLES OF DEPENDENCIES. [CH. 
 
 Dutch, the Danes, the French,* and the English. 
 The native population of these islands having be- 
 come extinct, a working class of slaves was formed 
 in them by the importation of African negroes. 
 The culture of sugar, as well as of coffee and other 
 products suited to a tropical region, was also intro- 
 duced into them, and followed on a large scale. 
 In this manner, an uniform system of society was 
 established throughout the West India islands ; 
 which, at the same time, obtained a great value in 
 the estimation of European governments, on ac- 
 count of the large quantity of their products. Every 
 European government which acquired a West India 
 island, studied, in imitation of the Spanish policy, 
 to monopolize its trade. The regulations for ef- 
 fecting this purpose were necessarily similar; but 
 the local institutions varied according to the govern- 
 ment of the dominant nation. Thus the French 
 administered their islands by governors and in- 
 tendants, without any popular cont rol ; whereas in 
 the islands dependent upon England, the power of 
 the governors and their councils was checked by 
 popularly elected houses of assembly. 
 
 In addition to the Spanish settlements on the 
 mainland of America, and to the settlements in the 
 West India islands which have been just mentioned, 
 colonial dependencies connected with commercial 
 objects were established by the Portuguese, the 
 Dutch,t and the French, in the three other quarters 
 
 * An account of the proceedings of the Dutch, the Danes, and the 
 French in the West India islands, may be seen in Raynal, b. xiii. 
 
 t The history of the Portuguese and Dutch settlements in the 
 East Indies has been written by Saalfeld: Geschichte des Portu- 
 
II.] EXAMPLES OF DEPENDENCIES. 153 
 
 of the globe. But the most important dependencies 
 belonging to this class are comprised in the dominions 
 of the crown of England. A brief view of the 
 British empire, and of the manner in which it has 
 been formed, will throw additional light on the 
 nature of commercial dependencies, and will also 
 illustrate the process by which a single nation may 
 gradually become the head of a large empire. 
 
 In the reign of Queen Elizabeth, the territory English de- 
 directly subject to the English crown and parliament ^^ *""*** 
 was as yet limited to England and Wales. Scot- 
 land was still an independent kingdom, having its 
 own king and houses of parliament. Even at the 
 death of Elizabeth, when the crowns of England 
 and Scotland were united, the kingdom of Scotland 
 retained its independence ; which lasted until Scot- 
 land became, by the union of 1707, directly subject 
 to the supreme government of Great Britain. Eng- 
 land, moreover, possessed some considerable depen- 
 dencies in the reign of Elizabeth. These were 
 Guernsey, Jersey, and the other small islands in 
 St. George's Channel, which had been parcel of the 
 duchy of Normandy ; the Isle of Man, which had 
 once been dependent upon the kings of Norway, and 
 afterwards upon the kings of Scotland ; and, lastly, 
 Ireland. The conquest of Ireland by Henry the 
 Second, and its subsequent colonization from Eng- 
 land, established its subjection to the English crown. 
 It continued, however, to be considered a distinct 
 
 giesischen Kolonialweseiis in Ostindien (Gottingen, 1810, 1 vol. 
 12mo.,) and Geschichte des Hollandischen Kolonialwesens in Ost- 
 indien (Gottingen, 1812, 13. 2 vols. 12mo.) 
 
154 EXAMPLES OF DEPENDENCIES. . [CH. 
 
 kingdom, though (as Blackstone says)* a dependent 
 subordinate kingdom, the crown of which belonged 
 to the King of England for the time being. The 
 King of Ireland, together with the Irish Houses of 
 Parliament, formed the peculiar government of 
 Ireland ; which was subordinate to the government 
 of England, consisting of the King of England, 
 together with the English Houses of Parliament. 
 The English parliament could accordingly legislate 
 for the internal affairs of Ireland. As commonly 
 happens in similar cases, it rarely exercised this 
 power ; but, in order to restrain the Irish parlia- 
 ment in the exercise of its power of subordinate 
 legislation, the English government had carried an 
 act through the Irish parliament, which prohibited 
 the introduction of any bill into that parliament 
 without the permission of the king in council, f 
 Ireland continued (in the words of the statute 
 of 6 Geo. I., c. 5) " subordinate to and depend- 
 ent upon the imperial crown of Great Britain ;" 
 and " the king with the consent of the Lords 
 and Commons of Great Britain in parliament 
 had power to make laws binding the people of 
 Ireland," until the year 1782, in which, and the 
 succeeding year, the British parliament surren- 
 dered its sovereignty over Ireland. During the 
 eighteen years which followed 1782, Ireland was, 
 legally, an independent state, the king of which was 
 also king of Great Britain ; and its political relation 
 to Great Britain was precisely similar to that which 
 subsisted between England and Scotland in the in- 
 
 * Commentaries, vol. i. p. 99. t Poyning's Act. 
 
II.] EXAMPLES OF DEPENDENCIES. 155 
 
 terval between the union of the two crowns and the 
 union of the two kingdoms. In the year 1800, the 
 subordinate government of Ireland was extinguished 
 by its own act ; and in pursuance of a compact with 
 Great Britain, Ireland became immediately subject 
 to a newly created body, exercising the sovereignty 
 of the United Kingdom of Great Britain and Ire- 
 land.* 
 
 In consequence of the Scotch and Irish unions, 
 the whole of the British islands have become imme- 
 diately subject to a common government, with the 
 exception of the Channel islands, and the Isle or 
 Man, which continue to be governed as dependencies 
 under that government. 
 
 But, besides the territories near the seat of her 
 supreme government, England gradually acquired 
 many distant territories which she necessarily 
 governed as dependencies. The earliest of these 
 distant dependencies which England acquired, were 
 the colonies established by Englishmen in North 
 America. Some of these, as Virginia and the Caro- 
 linas, were cultivated by planters, with a view to mer- 
 cantile profit, nearly in the same manner in which the 
 West India islands were cultivated. Others, as the 
 New England colonies, were founded by Puritans, 
 who sought an asylum from the persecution of the 
 Church of England, in the reign of Charles the 
 First ; and were, therefore, unconnected with com- 
 mercial enterprise. The settlements of the English 
 in the West India islands likewise commenced about 
 the same time. Jamaica was acquired by England 
 
 ♦ See note (L) at the end of the volume. 
 
156 EXAMPLES OF DEPENDENCIES. [CH. 
 
 during the Protectorate ; but its colonization and the 
 establishment of its subordinate government date 
 from the beginning of the reign of Charles the 
 Second.* All the English colonies established iii 
 America and the West India islands, during the 
 seventeenth, and the beginning of the eighteenth cen- 
 tury, received a representative constitution, imitated, 
 for the most part, from that of the mother-country. 
 They were permitted to manage their own taxation 
 and other internal affairs, with scarcely any inter- 
 ference from the English government; but their 
 trade with England, the other English dependencies, 
 and with the rest of the world, was subjected to 
 numerous restrictions imposed by acts of the Eng- 
 lish parliament for the purpose of benefiting the 
 English traders. 
 
 Following the example of the Portuguese, the 
 Dutch, and the French, the English attempted to 
 carry on their trade with the East Indies by means 
 of a Company. The English East India Company, 
 which commenced its operations by establishing a 
 few factories in Hindostan, with the consent of the 
 native princes and upon their territory, has ulti- 
 mately come to form the chief member of the subor- 
 dinate government, which, under the British par- 
 liament, rules the vast regions on the continent of 
 
 * An attempt was made in 1678, during the governorship of the 
 Earl of CarUsle, to fetter the Jamaica House of Assembly with a 
 regulation similar to that imposed upon the Irish House of Par- 
 liament by Poynings Act. The attempt was defeated by the resist- 
 ance of the House of Assembly. — See Long's History of Jamaica, 
 vol. i. pp. 11, 15, 197, 208. His Appendix (B.) pp. 195—213, con- 
 tains a detailed and highly interesting account of the proceedings of 
 the Assembly. 
 
4 
 II.] EXAMPLES OF DEPENDENCIES. 157 
 
 Asia, now, directly or indirectly, dependent upon 
 England. 
 
 In later times, England has established dependent 
 colonies, for certain peculiar purposes different 
 from any of those hitherto enumerated. Such are 
 Sierra Leone and other stations established on the 
 coast of Africa for the purpose of checking the 
 Slave Trade ; and Sydney in Australia, which was 
 established in 1788, as a settlement for the reception 
 of convicts from England, in consequence of the 
 North American colonies, to which convicts had 
 been previously transported, having then recently 
 become independent. 
 
 England likewise possesses some distant depen- 
 dencies in Europe, which it holds partly for military 
 and naval, and partly for commercial purposes. 
 The chief of these are Gibraltar and Malta. 
 
 We will close this general survey of the British 
 dependencies, with a short statement of the natures 
 of their governments, and of the political relations 
 subsisting between them and the dominant country. 
 
 The sovereign government of the United King- 
 dom of Great Britain and Ireland (consisting of 
 the Crown and the two Houses of Parliament) is 
 supreme, for every political purpose, in every British 
 dependency. All the dependencies of Great Britain 
 have this in common, that they are bound by the 
 acts of the British parliament. The subordinate 
 government of every British dependency must 
 therefore be considered as deriving its existence and 
 its powers from the delegation of parliament, either 
 express or tacit. 
 
158 EXAMPLES OF DEPENDENCIES. [CH. 
 
 But, although all the British dependencies agree 
 with one another in being subject to the British 
 parliament, and although all their subordinate 
 governments derive their existence and powers from 
 the express or tacit delegation of parliament, they 
 differ from one another in respect of the constitu- 
 tions of their subordinate governments. 
 
 In some of the British dependencies the subordi- 
 nate government of the dependency resides in the 
 Crown exclusively ;^ so that there is not, either in 
 the dominant country or the dependency, any subor- 
 dinate authority having a power over the depen- 
 dency co-ordinate with any of the powers which the 
 Crown, as a subordinate authority, possesses over it. 
 Dependencies belonging to this class are commonly 
 known by the appellation of " Crown colonies." 
 
 In the other British dependencies, the subordi- 
 nate government resides in the Crown conjointly 
 
 * The supremacy of Parliament (i. e. the Crown with the Houses 
 of Lords and Commons) in a British dependency, and the subor- 
 dination of the Crown, as exercising a delegated power over a de- 
 pendency, to Parliament, are clearly stated by Lord Mansfield, in 
 his celebrated judgment in the case of Campbell v. Hall, 20 Howell's 
 State Trials, 239. " A country conquered by the British arms be- 
 comes (he says) a dominion of the king in right of his Crown ; and 
 therefore necessarily subject to the legislative power of the Par- 
 liament of Great Britain .*" afterwards he adds : " If the king has 
 power (and when I say the king, I mean in this case to be under- 
 stood without ' concurrence of Parliament') to make new laws for a 
 conquered country, this being a power subordinate to his own au- 
 thority, as a part of the supreme legislature in Parliament, he can 
 make none which are contrary to fundamental principles ; none ex- 
 cepting from the laws of trade or authority of Parliament, or [giving] 
 privileges^exclusive of his other subjects." pp. 322, 323. By funda- 
 mental principles in the preceding passage, Lord Mansfield means 
 those laws or rules of law made or sanctioned by Parliament, as the 
 supreme government of a dependency, which the Crown, as the 
 subordinate government, cannot alter. 
 
II.] EXAMPLES OF DEPENDENCIES. 159 
 
 with a body of persons in England or a similar 
 body in the dependency ; so that there is, in the 
 dominant country or the dependency, a subordinate 
 authority having, for some purposes, powers over 
 the dependency co-ordinate with those which the 
 Crown, as such subordinate authority, also possesses 
 over it. 
 
 The subordinate government of the dependency 
 resides in the Crown conjointly with a body of per- 
 sons in England, in the case of the territories com- 
 prised within the charter of the East India Company. 
 The subordinate government of these territories is 
 exercised by the Crown and its appointees, conjointly 
 with the body of persons forming the East India 
 Company. 
 
 The subordinate government of the dependency 
 resides in the Crown conjointly with a body of 
 persons in the dependency,* when there exists in 
 the dependency a body chosen by the inhabitants, 
 without whose consent no law can be made by 
 the Crown or its appointees. In dependencies of 
 this class, the subordinate government commonly 
 consists of the Crovm with a governor and a legis- 
 
 * If the Crown once associates with itself in the subordinate 
 government of a dependency, a body chosen by the inhabitants of 
 the dependency, it cannot thenceforth legislate alone for such de- 
 pendency: see Campbell v. Hall, cited in last note, where Lord 
 Mansfield says : '* We therefore think that by the two Proclamations 
 and the Commission to Governor Melville, the king had immediately 
 and irrevocably granted to all who did or should inhabit, or who 
 had or should have property in the island of Grenada, in general to 
 all whom it might concern, that the subordinate legislation over the 
 island should be exercised by the assembly, with the governor and 
 council, in like manner as in the other provinces under the king." 
 p. 329. 
 
160 EXAMPLES OF DEPENDENCIES. [CH. 
 
 lative council appointed by the Crown, and a house 
 of assembly whose members are chosen by popular 
 election.* 
 
 Up to the time of the American war, the colonies 
 founded by Englishmen were generally placed under 
 subordhiate governments resting upon a completely 
 democratic basis ; and England was contented to 
 allow the popular body in the dependency to ma- 
 nage its internal affairs according to their own 
 liking, provided that the dependency submitted to 
 the restraints which England imposed upon its 
 trade for the sake of promoting her own imagined 
 interest. Consequently, the relation between Eng- 
 land and her American colonies up to the middle 
 of the last century closely resembled, so far as the 
 management of their internal affairs was concerned, 
 the relation between a Greek mother-country and 
 its colony ; but the restraints which England im- 
 posed upon the commerce of these colonies were 
 copied from the Spanish system. Since the close of 
 the American war, it has not been the policy of Eng- 
 land to vest any portion of the legislative power of the 
 subordinate government of a dependency in a body 
 elected by the inhabitants. The only exception to 
 
 * There is one British dependency, viz. British Guiana, which 
 seems at first sight not to fall into either of the above classes. For 
 in this dependency a share of the subordinate government is pos- 
 sessed by a body of representatives, who are chosen indirectly by the 
 inhabitants ; and yet the Crown legislates in it by orders in council ; 
 that is to say, without the consent of this body. But it is to be re- 
 marked that, although the governor of British Guiana cannot legis- 
 late without the consent of a body elected by the inhabitants, 
 British Guiana is properly a Crown colony, inasmuch as the elective 
 body is not co-ordinate with the Crown for legislative purposes. 
 
«.] EXAMPLES OF DEPENDENCIES. 161 
 
 this uniform course of policy is furnislied by the 
 Canadian provinces, whose subordinate government 
 vtras partly vested in a house of assembly by an act 
 passed in 1791. The Ionian Isles, whose subordi- 
 nate government, likewise popular in form, was 
 created in 1817, are formally rather an independent 
 state under the protection of the British crown than 
 a dependency of the United Kingdom. 
 
 Before we conclude this outline of the political 
 relations of the English dependencies, it is neces- 
 sary to remark that their government is materially 
 influenced by the existence of separate departments 
 in the dominant country, charged with the exclusive 
 care of their political affairs. 
 
 The early English colonies were in practice 
 nearly independent of the mother-country, except 
 as to their external commercial relations ; and there 
 was scarcely any interference on the part of England 
 with the ordinary management of their internal 
 affairs. Accordingly, there was at that time no 
 separate department of the English government, 
 charged exclusively with the superintendence of the 
 government of the dependencies ; and the business 
 connected with them, being chiefly commercial, was 
 assigned first to a board, and afterwards, for a short 
 interval, to a permanent committee of the privy 
 council, which had the management of the affairs of 
 " Trade and the Plantations.*' 
 
 The affairs of the plantations and other depen- 
 dencies remained in the management of this de- 
 partment until the creation of a pernianent third 
 
 M 
 
162 EXAMPLES OF DEPENDENCIES. [CH. 
 
 secretary of state, in the year 1794.* The third 
 secretary of state had the department of war^ to 
 which the management of the colonies was annexed. 
 Since the peace of 1815, his department has been 
 styled the Colonial Department ; and all the English 
 dependencies, except the Channel islands, with the 
 Isle of Man, and the territories of the East India 
 Company, are under his administration. Although 
 the Secretary of State for the Colonial Department 
 is still nominally the minister of war, the military 
 and naval business is transacted by other depart- 
 ments of the government. 
 
 The home government of the territory belonging 
 to the East India Company was, until the year 
 1784, vested exclusively in the proprietors and 
 directors of that body, subject to the legislative 
 power of parliament. In that year a government 
 department was created by the name of the Board 
 of Control, which was to be appointed by the 
 Crown, and to exercise a supervision over the pro- 
 ceedings of the directing body of the East India 
 Company. Before the estabhshment of the Board 
 of Control, the Crown, as distinguished from the 
 parliament, had no authority over the terri- 
 tories belonging to the East India Company: 
 in other words, the Crown had no share in the 
 subordinate government of those territories. It 
 may be observed that, if a department having the 
 special charge of the dependencies, similar to the 
 
 * A third Secretary of State, styled " The Secretary of State for 
 the American Department," had existed from 1768 to 1782. 
 
II.] EXAMPLES OF DEPENDENCIES. 163 
 
 present Colonial Department, had existed in 1784, 
 Mr. Pitt would probably have proposed to add to 
 its functions the control of the proceedings of the 
 East India directors. The creation of a separate 
 Board of Control for the East India Company in 
 1784, and the subsequent formation and growth 
 of the Colonial Department, have produced the 
 singular anomaly of two departments in the domi- 
 nant country superintending separately the govern- 
 ments of different portions of the dependencies. 
 
 While England has two public departments 
 charged with the care of its dependencies, in France 
 the management of the dependencies is attached to 
 the ministry of marine, an arrangement which seems 
 less convenient than that formerly existing in this 
 country, by which the concerns of the plantations 
 were annexed to the department of trade. 
 
 The ancient states had no public department or 
 even functionary specially charged with the super- 
 intendence and control of the governments of the 
 dependencies, and of the conduct of their respective 
 governors. Such an institution would, however, have 
 scarcely failed to ameliorate the government of the 
 dependencies (whose misgovernment was the prin- 
 cipal defect of the ancient systems of polity), and 
 therefore to consolidate the empires of the great 
 states, which, from the unwilling obedience of the 
 subject communities, were always threatening to fall 
 asunder. In Rome, for example, a department or 
 officer of this sort could scarcely have failed to 
 afford some protection to the provincials against the 
 
 M 2 
 
164 EXAMPLES OF DEPENDENCIES. [CH- 
 
 oppressions of their governors, and generally to 
 introduce improvements into the method of their 
 administration. The industry and ability of Cicero 
 would have been employed far more advantageously 
 to the provincials, if he had filled an office of this 
 sort, than they were in his prosecution of Verres. 
 The constant supervision of a public department or 
 officer, however much influenced it might have 
 been by the sinister interests of classes or indi- 
 viduals in Rome, would have been far more effica- 
 cious in restraining abuses in the provinces, than 
 the slight motive caused by the fear of an accidental 
 prosecution, vigorously as such a prosecution might 
 have been followed up in an individual case. 
 
 In later times, the Roman emperors employed 
 certain agents (styled agentes in rebus) to visit the 
 provinces and furnish the supreme government with 
 information respecting their condition. These offi- 
 cers were moveable, and were not connected with 
 any separate department in Rome. They appear 
 to have been considered in the odious light of spies 
 and informers; and they are accused of having 
 ruined persons in the remote provinces by false ac- 
 cusations.* 
 
 The Spanish Council of the Indies was, as has 
 been already remarked, the first example of a 
 separate public department in a dominant country 
 
 * See Bergier, Histoire des Grands Chemins de I'Empire Roniain, 
 lib. iv. ch. 18 (torn. ii. p. 674). The agentes in rebus had extensive 
 privileges respecting the use of the horses on the public roads. 
 Concerning the functions of similar officers in ancient Persia, see 
 Xen. Cyrop. viii. 6. § 16. 
 
It.] EXAMPLES OF DEPENDENCIES. 165 
 
 for the management of dependencies. The maxims 
 by which the Council of the Indies guided its policy 
 were most pernicious to the colonies ; moreover, its 
 influence probably held those colonies in the strict 
 dependence upon Spain in which they continued 
 till near the period of their independence, and thus 
 prevented them from taking measures for obtain- 
 ing a better government. But as the maxims of 
 government which it followed were those obtaining 
 generally in the age and country, they were 
 adopted, not invented, by it ; and its influence in 
 maintaining the dependence of the colonies, which 
 proves the efficacy of its organization, was, to a 
 certain extent, counterbalanced by the checks which 
 it imposed upon the excesses of the local authorities. 
 In particular, the Council of the Indies seems to 
 have never authorized the oppressions and cruelties 
 practised by the Spanish colonists upon the native 
 Indians, but rather to have thrown over them the 
 protection of laws \\rhich were not intended to re- 
 main a dead letter.* 
 
 If it be assumed that colonial and other depen- 
 dencies are to remain in a state of dependence, 
 it cannot be doubted that they, on the whole, 
 derive advantage from the existence of a public 
 department in the dominant country, specially 
 charged with the superintendence of their poli- 
 tical concerns. The existence of such a public 
 department tends to diminish the main obstacles to 
 the good government of a dependency, viz., the 
 
 * See Robertson, History of America, b. 8 (vol. vii. p. 346, 7). 
 
166 EXAMPLES OF DEPENDENCIES. [CH. 
 
 ignorance and indifference of the dominant country 
 respecting its affairs ; and to supply the qualities 
 requisite for its good government, viz., knowledge 
 of its affairs and care for them. If the existence of 
 such a department tends to involve the affairs of 
 the dependency in the party contests of the domi- 
 nant country, it is to be remembered that this very 
 evil has its good side ; inasmuch as the public atten- 
 tion is thereby attracted to the dependency, and the 
 interest of some portion of the dominant people is 
 awakened to the promotion of its welfare. 
 
III.] MODES OF ACQUIRING A DEPENDENCY. 167 
 
 university] 
 
 CHAPTER III. 
 
 On the Modes in which a Dependency may be acquired. 
 
 Having, in the preceding chapter, illustrated the 
 general notion of a dependency by examples of 
 dependencies as they have actually existed, we 
 proceed to a consideration of some properties of a 
 dependency which have not been fully explained in 
 the first chapter. 
 
 The first subject which here requires examination 
 is the means by which a dependency may be ac- 
 quired. 
 
 § 1. Acquisition by conquest or voluntary cession. 
 
 A dependency is sometimes acquired either by a depen- 
 dency is 
 conquest, or by an express or tacit cession. sometimes 
 
 A dependency thus acquired may have been pre- by^*^'^ 
 
 con- 
 
 viously either dependent or independent. Seaty.^' 
 
 Many of the dependencies of the ancient states 
 became dependent by conquest, having previously 
 been in a condition of independence. Such was the 
 case with Egypt, Syria, Lydia, and other countries 
 which were dependent upon the Persian kingdom ; 
 such also was the case with the islands of the 
 iEgean Sea and the states of the coast of Asia 
 Minor, which were dependent upon Athens; and 
 such was the case with most of the dependencies of 
 Carthage, in the western parts of the Mediterranean. 
 
168 MODES OF ACQUIRING A DEPENDENCY. [cH. 
 
 The provinces of the Roman republic were often 
 acquired by a sort of treaty, to which the people 
 were induced to submit by the fear of the Roman 
 arms. In some cases Rome acquired a dependency 
 by forming with a weaker state an unequal treaty, 
 which, though it left the state nominally inde- 
 pendent, deprived it virtually of its independence. 
 Examples of the conquest of dependencies in ancient 
 times are furnished by Sicily and Sardinia, which 
 Rome took from Carthage, and annexed to her own 
 dominions, before she reduced the Carthaginian 
 republic itself. Examples of the transfer of de- 
 pendencies from the possession of one state to an- 
 other occur likewise in Greek history ; but the most 
 numerous and best known instances of this sort of 
 transfer have taken place in modern times, when 
 wars have frequently been carried on between Eu- 
 ropean states respecting the possession of depen- 
 dencies in America or Asia. Several of the de- 
 pendencies of the European states in North America, 
 and in the East and West Indies, have thus changed 
 masters ; and thus, for example, the French colo- 
 nies of Canada and the Mauritius, the Spanish 
 colonies of Jamaica and Trinidad, and the Dutch 
 colonies of the Cape of Good Hope and Ceylon 
 have passed into the hands of England. 
 
 It may be added that a portion of an independent 
 state, not being itself a dependency of that state, 
 but subject directly to its supreme government, 
 may be conquered from it by another independent 
 state, and be formed by that state into a dependency. 
 
III.] MODES OF ACQUIRING A DEPENDENCY. 169 
 
 This is the case with Gibraltar, which was formerly 
 an integral part of the Spanish monarchy, and is 
 now a dependency of England. In like manner, a 
 factory established on the territory of an independent 
 state may, in the progress of time, cease to be de- 
 pendent on the government of the state by whose 
 permission it was originally established, and may 
 become a dependency of the nation which esta- 
 blished it.* This was the case with the factories 
 established by the English East India Company on 
 the territory of the Mogul. 
 
 § 2. Acquisition by settlement. 
 
 A dependency is sometimes wholly or partially a (lejjen. 
 formed by emigrants, settlers, or colonists from an sometimes 
 
 1 T 1 * • formed by 
 
 independent state, who establish a new community, settlers 
 
 - . IT 1 ^""O™ the 
 
 having a government subordinate to the supreme dominant 
 government of that state. In this case the dominant ^°"" ^" 
 community is also the metropolis or mother-country, 
 and the dependency is also its colony. The Roman 
 colonice and the colonies or plantations of Spain, 
 Portugal, France, Holland, and England in Ame- 
 rica, Africa, Asia, and Australia, aifford examples of 
 this species of dependencies. The Greek and Phoe- 
 nician colonies do not, as has been already stated, 
 fall within the class of dependencies. 
 
 As modern colonies have generally been depen- 
 dencies of their respective mother-countries, and the 
 terms " colony" and " dependency" have often been 
 confounded in consequence, it will be convenient to 
 
 * See above, p. 93. 
 
170 MODES OF ACQUIRING A DEPENDENCY. [cH. 
 
 examine in this place the signification of the former 
 term. 
 Meaning of The EngHsh word " colony" is derived ultimately 
 
 the word it* i 7 • i • 
 
 colony. from the Latin word coLoma, the origin and meaning 
 of which have been already explained.* A colony 
 properly denotes a body of persons belonging to 
 one country and political community, who, having 
 abandoned that country and community,t form a 
 new and separate society, independent or dependent, 
 in some district which is wholly or nearly unin- 
 habited, or from which they expel the ancient in- 
 habitants. 
 
 It is essential to the idea of a colony, that the 
 colonists should have only formed a part of the 
 community which they have abandoned for their 
 newly adopted country. If an entire political com- 
 munity changes its country for a time, and moves 
 elsewhere, it does not found a colony : thus a roving 
 tribe of Scythians or Tartars does not found a colony 
 when it settles in the temporary occupation of a 
 new district. So the Athenians, during the Persian 
 invasion of Attica, when they embarked in their 
 ships and took refuge in Salamis, were not a colony. 
 Nor would they have been a colony, even if they 
 had permanently changed their place of abode ; for, 
 when an entire nation changes its seats, and esta- 
 blishes itself permanently in another country, (as the 
 
 * Above p. 115, note f. 
 
 t The idea of an abandonment, by colonists, of their native 
 country is contained in the Greek word a-roiKla. 
 
III.] ' MODES OF ACQUIRING A DEPENDENCY. 171 
 
 Franks in France, the Lombards in Italy, or the 
 Vandals in Africa,) it is not said to found a colony.''^ 
 
 It is likewise essential to the idea of a colony, 
 that the colonists should have belonged to a common 
 country. A new community formed of persons col- 
 lected together from various states (in the manner 
 in which the original body of the Roman citizens 
 is reported to have been formed) would not be a 
 colony of any one of those states. So the city of 
 Thurii, which was formed, a few years before the 
 Peloponnesian war, of settlers from all the principal 
 states of Greece, was not a colony of any of those 
 states.f 
 
 But in order that a community should be a colony 
 of a certain country, it is not necessary that every 
 member of the colony should have been derived 
 from that country. It is sufficient for this purpose, 
 that the bulk of the colonists or of the governing or 
 free class in the colony should have been inhabitants 
 of such country. Thus, in many of the Greek colo- 
 nies, the Greek settlers found in the new territory 
 a native population which they reduced to a servile 
 condition, and the Roman colonies were little more 
 than garrisons of Roman soldiers in conquered dis- 
 
 * See Heyne's Opuscula, voi. i. p. 294. 
 
 t Thurii was founded after the destruction of Sybaris, by the 
 ejected remnant of the Sybarite people, together with settlers from 
 Attica, and various states of Peloponnesus, and of other parts of 
 Greece. In a few years, the Sybarites were driven out, and the 
 people of Thurii were formed into ten tribes, of which the names 
 designate the constituent parts of the Thurian community. These 
 names were, 1. Arcadian. 2. Achaean. 3. Elean. 4. Boeotian. 
 5. Ampliictyonian. 6. Dorian. 7. Ionian. 8. Athenian. 9. Eu- 
 boean. 10. Insular. See Diodorus, xii. 10, 11. 
 
172 MODES OF ACQUIRING A DEPENDENCY. [cil. 
 
 tricts. Ill like manner, the importation of African 
 slaves into Virginia and Cuba did not prevent Vir- 
 ginia and Cuba from being respectively colonies of 
 England and Spain. On the other hand, a small 
 body of settlers in a new country, mixing with a 
 larger body, is merged in the larger body ; and the 
 new community which they jointly form is considered 
 as a colony of the state whose inhabitants prepon- 
 derate in it. Thus, in spite of the body of Prussian 
 protestants who left their own country on religious 
 grounds and settled in South Australia, South 
 Australia is deemed to be an English colony. 
 
 Furthermore, a colony may be established in a 
 territory, being either uninhabited or thinly inhabited, 
 as has been the case with the English colonies in 
 North America and Australia. A colony may, 
 likewise, be established in a territory, of which the 
 ancient inhabitants are either expelled or reduced 
 to a state of slavery. Thus the Athenians esta- 
 blished a colony in Melos, during the Peloponnesian 
 war, after having slain tlie adult males and enslaved 
 the rest of the native population.* The foundation 
 of a Roman colony was generally preceded by an 
 ejection of the native occupiers and cultivators. t 
 The Spanish settlers of America, likewise, extermi- 
 nated or enslaved a large part of the native popu- 
 lation. 
 
 It is, moreover, essential that the persons who 
 have abandoned their native country should form a 
 
 . * Thucyd. v. 1 16. 
 t See above, p. 114, and Virgil's first Eclogue. 
 
III.] MODES OF ACQUIRING A DEPENDENCY. 173 
 
 separate political community. Unless persons who 
 abandon their native country form a separate political 
 community, they are not colonists. For example, the 
 French protestants, who fled from France after the 
 revocation of the edict of Nantes, and took refuge in 
 Germany and England, did not constitute colonies 
 in those countries. The small body of English 
 puritans, who first sought in Holland an asylum 
 against religious persecution, did not form a colony 
 until they afterwards established themselves in New 
 England as a distinct community. Such a com- 
 munity may be politically independent, or it may 
 be dependent on the government of its mother- 
 country ; but, in order to be a colony, it must be a 
 separate, and consequently a new community. 
 
 A colony may be compared to a swarm of bees, 
 which issue from the parent hive in a separate body 
 and form a new hive. 
 
 Since a colony, though always a separate, may Confusion 
 be either an independent or a dependent community, colony and 
 it is evident that a colony is not necessarily a de- de^y" 
 pendency. It is manifest, on the other hand, that a 
 dependency is not necessarily a colony of the domi- 
 nant country ; or, indeed, of any country. 
 
 According, however, to the present acceptation of 
 the term, a colony is considered as nearly equivalent 
 to a dependency. 
 
 " The term colony,'' says Mr. Mill, " is sometimes 
 employed in a sense in which the idea of a body 
 of people drawn from the mother-country hardly 
 seems to be included. Thus we talk of the British 
 colonies in the east, meaning, by that mode of ex- 
 
174 MODES OF ACQUIRING A DEPENDENCY. [CH. 
 
 pression, the East Indies. Yet it can hardly be 
 said, that any body of people is drawn from the 
 mother-country to inhabit the East Indies.* There 
 is nobody drawn to inhabit, in the proper sense of 
 the word. A small number of persons, such as are 
 sent to hold possession of a conquered country, go ; 
 and, in this sense, all the conquered provinces of 
 the ancient Roman empire might be called what 
 they never have been called, colonies of Rome. 
 
 " In the meaning of the term ' colony,' the 
 predominant idea among the ancient Greeks and 
 Romans appears to have been that of the people; 
 the egress of a body of people to a new and per- 
 manent abode. Among the moderns, the predomi- 
 nant idea appears to be that of the territory, the 
 possession of an outlying territory ; and, in a loose 
 way of speaking, almost any outlying possession, if 
 the idea of permanency is united, would receive the 
 name of a colony. If we use the term with so 
 much latitude as to embrace the predominating 
 idea, both of ancients and moderns, we shall say 
 that a colony means an outlying part of the popu- 
 lation of the mother-country, or an outlying terri- 
 tory belonging to it ; either both in conjunction, or 
 any one of the two by itself "f 
 
 * Mr. Mill here alludes to the definition of the word " colony," 
 given by Dr. Johnson in his dictionary, which is as follows : " A 
 body of people drawn from the mother-country to inhabit some 
 distant place." I may here remark, with reference to Dr. Johnson's 
 definition, that the idea of distance from the mother-country is not 
 properly involved in the word colony. Many of the Greek and 
 Roman colonies were near their respective mother-countries : the 
 English of the pale in Ireland, and the English settlement in 
 Ulster, were likewise called colonies. 
 
 t Supplement to the Encyclopaedia Britannica, article Colony- 
 
III.] MODES OF ACQUIRING A DEPENDENCY. 175 
 
 The ancients never confounded the ideas of " co- 
 lony," and of "outlying territory," or "dependency." 
 The Greek colonies were independent from the be- 
 ginning ; and, therefore, it was not likely that the 
 Greeks should make this confusion. The Roman 
 coloniae were sometimes little more than garrisons 
 in a conquered territory, and they, therefore, might 
 be considered so far analogous to the British 
 possessions in the East Indies. But the lands of a 
 Roman colonia were always divided among the 
 coloni; and although the latter might, from time 
 to time, perform certain military services, they 
 were mainly looked upon as cultivators of the 
 soil.'^ In the Roman provinces, the soil remained 
 in the hands of the ancient proprietors, and was 
 not divided among Roman citizens. Consequently 
 the Roman provinces were not styled colonies. 
 
 The English word " colony" was formerly under- 
 stood to have a meaning similar to that of the Latin 
 word colonia. " Colony (says Stokes, in hi* work 
 on the Constitution of the British North Ame- 
 
 Mr. Merivale, in his Introduction to a course of lectures on Colo- 
 nization and Colonies, (London, 1839,) after having remarked that 
 ** the word colony is now applied, in ordinary and official language, 
 to every foreign possession indiscriminately,'' proceeds to define a 
 colony, to be " a foreign possession, of which the lands are occu- 
 pied wholly or partially by emigrants from the mother-country." — 
 p. 17, 18. M. de Beaumont, in the following passage of his work 
 on Ireland, appears to make a colony equivalent to a dependency. 
 •* II n'est point de pays sur lequel la revolution d'Amerique ait ^t^ 
 plus puissante que I'lrlande. II y avait alors analogic dans la 
 situation des deux peuples. Les colonies de I'Amerique du nord 
 <3taient, il est vrai, beaucoup plus heureuses que I'lrlande, quoiqu'elles 
 ne f assent que des colonies ; traitees comme telles, elles avaient le 
 bonheur d'etre loin de I'Angleterre." — Tom. i. p. 135. 
 * See above, p. 114. 
 
176 MODES OF ACQUIRING A DEPENDENCY. [CH. 
 
 rican Colonies, published in 1783) signifies a 
 company of people sent to a remote place to 
 dwell there and cultivate the land." " Plantation 
 in a sugar and rice colony" (he proceeds to say) 
 " denotes a piece or tract of land, which is either 
 granted to, or purchased by, a person to cultivate 
 for his own use. But in the northern British colo- 
 nies, where the produce is similar to that of Eng- 
 land, the lands they cultivate are more frequently 
 called farms than plantations ; as they informed me 
 when I was at New York. In a more extended 
 sense, a plantation is a place to which people emi- 
 grate, in order to dwell there, with an allowance of 
 land for their tillage, and immunities for the good 
 of themselves, and the metropolis or mother-country 
 to which they belong ; and in this acceptation, the 
 word plantation is used to denote a British settle- 
 ment in America. In strict propriety of speech, 
 colon]/ denotes the people emigrated, and plantation 
 the place in which they are settled ; but these words 
 are often used in a synonymous sense, both in Acts 
 of Parliament, and on other occasions."^ 
 
 Accordingly, any country, forming a separate 
 community, where Englishmen have settled in such 
 numbers as to form the bulk of the population, or of 
 the cultivators or proprietors of the soil, is properly 
 an English colony. In this sense, the New England 
 States, Maryland, Virginia, the Carolinas, Georgia, 
 Upper Canada, Australia, and the Enghsh West 
 India islands, would be English colonies. But an 
 
 * P. 1, 2. 
 
III.] MODES OF ACQUIRING A DEPEND 
 
 English dependency, in which the bulk of 
 vators or proprietors of the soil are not Englishmen, 
 and in which the bulk of the English residents re- 
 side there for purposes of government or trade (as 
 Ceylon, the East Indies, Malta, or the Ionian Isles) 
 cannot, in strictness, be called an English colony, 
 although its government may be under the Secretary 
 of State for the Colonial Department. 
 
 In ordinary language, however, every depen- 
 dency which is under the Secretary of State for 
 the Colonial Department is called a colony. Ac- 
 cording to this extensive acceptation of the word, 
 not only dependencies settled by English emigrants, 
 as Barbadoes, Newfoundland, and Sydney, but also 
 dependencies formerly settled by emigrants from 
 other countries, as Trinidad, Ceylon, and Mauritius, 
 and communities once independent, as Malta, are 
 denominated English colonies. The same name is 
 likewise applied, though less frequently, to the ter- 
 ritories of the East India Company.* 
 
 The governments of those English settlements 
 in North America, which were not proprietary or 
 charter governments, were called provincial govern- 
 ments, and the territories themselves were called 
 
 * The territories of the East India Company are included by Mr. 
 Montgomery Martin in his work on the " Statistics of the Colonies 
 of the British Empire," (London, 1S39.) Guernsey and Jersey, 
 with the other Channel islands, are not included in Mr. Montgomery 
 Martin's list of the British colonies : Mr. Clark, however, admits 
 them into the Appendix to his work on colonial law. It appears to 
 me that, according to the usual phraseology, neither these islands, 
 nor the Isle of Man, nor the territories of the East India Company* 
 would be styled English colonies ; since they are not under the super- 
 intendence of the Secretary of State for the Colonial Department, 
 
 N 
 
178 MODES OF ACQUIRING A DEPENDENCY. [CH. 
 
 provinces. Thus, we speak of the province of 
 Canada or of Nova Scotia. Mr. Haliburton states 
 in his Account of Nova Scotia, that " for some time 
 previous to the revolution in America, the popular 
 leaders affected to call the provincial establishments, 
 or king's governments on the continent, colonies 
 instead of provinces, from an opinion they had con- 
 ceived that the word ' province ' implied a conquered 
 country."* " But," he adds, " whatever distinction 
 there might once have been between the terms pro- 
 vince, colony, and plantation, there seems now to be 
 none whatever, and they are indiscriminately used 
 in several Acts of Parliament."t 
 
 A doubt may exist whether a dependency acquired 
 by conquest, which is thinly peopled, and in which 
 numerous settlers from the dominant country esta- 
 blish themselves, does not become (in the proper 
 sense of the term colony) a colony of the dominant 
 country ; provided that the native inhabitants leave 
 the territory, or bear an extremely small proportion 
 to the new settlers from the dominant country. 
 According to Mr. Burge's view, the change just de- 
 scribed actually occurred in the case of Jamaica. 
 " The number of Spaniards," he says, " at the j;ime 
 the British took possession of Jamaica, did not exceed 
 fifteen hundred. The only inhabitants who became 
 proprietors, or of whom any mention is made, were 
 the English subjects who resorted thither. The 
 
 * This opinion was doubtless founded on the derivation of pro- 
 vincia from pro and vinco ; concerning which, see note (H). 
 
 t Historical and Statistical Account of Nova Scotia, vol. ii. p. 308. 
 
III.] MODES OF ACQUIRING A DEPENDENCY. 179 
 
 island ceased to be inhabited by the conquered. It 
 was peopled and settled by the subjects of England, 
 under the invitation and encouragement of the pro- 
 clamation of Charles II."* 
 
 Whenever I have occasion to use the term colony 
 in the course of this essay, I use it in its proper 
 sense, as defined above in this chapter.f 
 
 * Biirge's Commentaries on Colonial and Foreign Laws, vol. i. 
 p. 34. 
 
 t See p. 170. The word colony has been applied, by analogy, to 
 some settlements which are not colonies, in the strict sense of the 
 word, but which agree in some respects with colonies properly so 
 called. Thus the pauper colonies of Holland are settlements of 
 unemployed able-bodied poor persons, in uncultivated districts, 
 within the territory of Holland. Such a settlement resembles a 
 colony, strictly so called, in being a settlement in an uncultivated 
 district ; but differs from it, in not being a separate community. 
 The establishments on the Russian frontier, for military purposes, 
 are also called military colonies. — See Conversations- Lexicon, in the 
 articles Armencolonien, and Militaircolonien Russlands. 
 
 n2 
 
180 REASONS FOR GOVERNING [CH. 
 
 CHAPTER IV. 
 
 Reasons for governing a Territory as a Dependency. 
 
 Sncerde- "^^ ^^^^ ^^^^ shown in the first chapter,* a supreme 
 th^diSi- government is not under the necessity of governing 
 municadon ^ territory as a dependency, unless the communica- 
 '"wrmmSit t^^^s between the seat of the supreme government 
 fjjj^^***"^ and the territory be extremely difficult, and there- 
 fore extremely slow. This extreme difficulty, with 
 the necessity to which it leads, is not entirely re- 
 solvable into the great distance between the seat of 
 the supreme government and the dependency. The 
 distance, indeed, may be so great, that it may pro- 
 duce the difficulty and necessity to a degree alto- 
 gether insurmountable. But the tendency of the 
 distance to produce the difficulty and the necessity 
 may be countervailed by various causes, of which 
 the following are the principal : — 1. A skilful 
 arrangement of the executive machinery of the 
 government, and particularly of the organization of 
 its naval and military forces. 2. The goodness of 
 the roads and bridges, and an advanced state of the 
 art of navigation, affi^rding the means of rapid loco- 
 motion both by land and sea. 
 
 The rudeness of the governments, and the im- 
 
 * Above, p. 85. 
 
IV.] A TERRITORY AS A DEPENDENCY. 181 
 
 perfection of physical science and the useful arts, 
 rendered it impossible in ancient times to subject 
 large populations and tracts of country to the imme- 
 diate action of the same government. Accordingly, 
 even in the comparatively civilized communities 
 which were situated around the Mediterranean Sea, 
 the state usually consisted only of a city with a 
 small district attached to it, and all the remaining 
 territory subject to the dominant city was par- 
 celled out into dependencies. This (as we have 
 already seen*) was the case with the republics of 
 Athens and Sparta, and afterwards with those of 
 Carthage and Rome. The greater the proximity of 
 these dependencies to the dominant state, the more 
 complete and lasting was their subjection to it. If 
 their distance from the dominant country was con- 
 siderable, their obedience was doubtful and inter- 
 mitting, f So great, indeed, was the difficulty of 
 exercising the powers of government at a distance, 
 when the art of navigation was in its infancy, when 
 permanent armies were not kept on foot, and when 
 the means of moving large masses of men were 
 imperfectly understood, that the earliest colonies, 
 namely, those of the Phoenicians and Greeks, were 
 from the beginning independent of the mother- 
 country.:!: The non-interference of the Phoenician 
 and Greek states with the government of their 
 colonies did not arise from any enlightened views 
 
 * Above, p. 102—35. 
 
 f 'EvS<j/««rT«f ccKfoutTOLt, as Thucydides says, vi. 10. 
 
 X Above, p. 107—8. 
 
182 REASONS FOR GOVERNING [CH. 
 
 of policy, and still less from any respect for the 
 rights or interests of a weak community. It must 
 be attributed exclusively (as Heeren has remarked 
 respecting the Phoenician colonies*) to the inability 
 of the mother-country to exercise a supremacy over 
 a colony divided from it by a long tract of sea. At 
 a somewhat later time, the progress of improvement 
 in the arts, and particularly in the art of war, ren- 
 dered it possible for Carthage and Rome to maintain 
 their dominion over distant territories by means of 
 a system of subordinate governments. t 
 
 The causes which led to the creation of depen- 
 dencies in ancient times, among the nations which 
 occupied the countries surrounding the Mediter- 
 ranean, have always continued in operation among 
 the Oriental nations, and have always produced 
 similar effects. The territories of the great.Ori£ntaL 
 monarchi^^^ve always been (as has been already 
 shown)! clusters of dependencies. The saying of 
 Ovid, " Quis nescit longas regibus esse manus," is 
 peculiarly inapplicable to the Oriental kings. TJieir 
 arms have always been so short that they have only 
 been able to keep a large territory in subjection by 
 parcelling it out among a number of viceroys. 
 Jr -^he civilized states of modern times hfjvp aH- 
 ^ JJPvanced so far beyond the civilized states of antiquity 
 
 Jky\ , in a knowledge of the means by which extensive 
 
 regions can be subjected ,to the efficient action of 
 
 , ll^jthe same government, that the system pursued by 
 
 f '^'"''-' Hha ancients has been completely abandoned by the 
 
 *^ . kjj-'^* Above, p. 109. t Ibid. p. Ill, 112. % Ibid. p. 96. 
 
IV.] A TERRITORY AS A DEPENDENCY. 183 
 
 modern European states. In consequence of the 
 discoveries of modern civilization, far larger tracts 
 of country may be subjected immediately to the su- 
 preme government, and far more distant territories 
 may be governed as dependencies, than the ancients 
 would have conceived possible. Aristotle speaks of 
 a population of a hundred thousand freemen (which 
 would not imply a total population of more than 
 five or six hundred thousand souls) as too large to 
 constitute a single state ;* but now thirty-five mil- 
 lions of souls are directly subject to the French 
 government, and twenty-four millions of souls to the 
 English. Again, the Phoenicians would have found 
 it impossible to maintain their supremacy over 
 their colony of Carthage, or the Phocaeans over 
 their colony of Massilia ; but the Spanish, Por- 
 tuguese, French, Dutch, and English have esta- 
 blished and retained colonial dependencies in the 
 most distant quarters of the world, in Africa, Asia, 
 America, and Australia. 
 
 But, notwithstanding the facilities for communi- 
 cation afforded by the arts of modern civilization, 
 the point is soon reached, even in the present time, 
 at which it becomes impossible for the most powerful 
 community to govern a territory without interposing 
 a subordinate government between it and the su- 
 preme government ; thus it would be impossible to 
 render the West India islands or the North Ame- 
 
 r/v. Eth. Nic. ix. 10. 
 
Ml 
 
 184 REASONS FOR GOVERNING [CH. 
 
 rican provinces directly subject to the English 
 government.* 
 
 Since a possibility of rapid communication with 
 the persons to be governed is a necessary condition 
 to the exercise of the powers of government, the 
 modem inventions for accelerating the transport of 
 persons and letters have an important influence in 
 enlarging the circle, within which the powers of a 
 government may be eiletentiy exercised. They 
 
 * Burke dwells on the obstacles to government produced by dis - 
 tance, in the following passage of his speech on conciliation with 
 America 
 
 "The last cause of this disobedient spirit in the colonies is hardly 
 less powerful than the rest, as it is not merely moral, but laid deep 
 in the natural constitution of things. Three thousand miles of 
 ocean lie between you and them. No contrivance can prevent the 
 effect of this distance in weakening government. Seas roll, and 
 months pass, between the order and the execution ; and the want of 
 a speedy explanation of a single point is enough to defeat a whole 
 system. You have, indeed, winged ministers of vengeance, who 
 carry your bolts in their pounces to the remotest verge of the sea. 
 But there a power steps in, that limits the arrogance of raging 
 passions and furious elements, and says, ' So far shalt thou go, and 
 no farther.' Who are you, that should fret and rage, and bite the 
 chains of nature ? Nothing Avorse happens to you than does to all 
 nations who have extensive empire ; and it happens in all the forms 
 into which empire can be thrown. In large bodies, the circulation 
 of power must be less vigorous at the extremities. Nature has said 
 it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as 
 he governs Thrace ; nor has he the same dominion in Crimea and 
 Algiers which he has at Brusa and Smyrna. Despotism itself is 
 obliged to truck and huckster. The sultan gets such obedience as 
 he can. He governs with a loose rein, that he may govern at all ; 
 and the whole of the force and vigour of his authority in his centre, 
 is derived from a prudent relaxation in all his borders. Spain, in 
 her provinces, is perhaps not so well obeyed as you are in yours. 
 She complies too ; she submits ; she watches times. This is the 
 immutable condition, the eternal law, of extensive and detached 
 empire."' Works, vol. iii. p. 56. 
 
IV.] A TERRITORY AS A DEPENDENCY. 185 
 
 enable the supreme government to subject a larger 
 extent of territory to its immediate action ; they 
 increase the influence of the dominant country over 
 all its dependencies ; and they also enable it to 
 govern more distant territories in that form. 
 
 Although territories lying at a considerable distance 
 must be placed under a subordinate government, the 
 facility and regularity of communication with them 
 materially aflect the amount of influence exercised 
 by the supreme upon the subordinate government, 
 and the amount of protection which their inha- 
 bitants receive from the former against the latter. 
 The extent to which the difficulty of communication 
 diminishes the influence of the supreme over the 
 subordinate government, may be illustrated by an 
 incident which occurred in the colony of New South 
 Wales. In the year 1808, a dispute arose between 
 the governor of New South Wales and some officers 
 of the New South Wales regiment, respecting the 
 trial of a prisoner in which these officers were 
 concerned. In consequence of this dispute, the 
 regiment, having its officers at its head, marched 
 with bayonets fixed, drums beating, and colours 
 fl3ang, to the government-house, seized the person 
 of the governor, formally deposed him from the 
 government, and established their own commanding 
 officer as governor in his stead. The commanding 
 officers of the regiment continued to exercise all the 
 powers incidental to the office of governor for 
 nearly two years ; at the expiration of which period 
 
186 REASONS FOR GOVERNING [CH. 
 
 a new governor, appointed by the crown, arrived 
 from England, and quietly assumed the govern- 
 ment.* 
 
 It may be remarked, that the earliest establish- 
 ment, in the nature of a post, for the speedy con- 
 veyance of letters, appears to have been formed for 
 the purpose of maintaining the influence of the 
 supreme government over the governors of depen- 
 dencies. " In order," says Heeren, " to enable the 
 King of Persia to communicate rapidly with the 
 provinces and their governors, an establishment was 
 created which has been compared, though not quite 
 accurately, with the posts of modern Europe. 
 Couriers were appointed, who were divided ac- 
 cording to stages, every stage forming a day's 
 journey ; their duty was to convey the instructions 
 of the king to the satraps, and the despatches of the 
 latter to the king. An institution of this kind is 
 so much needed in a despotic empire, where the 
 maintenance of the dependence of the viceroys is 
 one of the most diflficult problems, that it occurs in 
 nearly all such states which have had a tolerably 
 well-organized administration. They existed in a 
 similar manner in the Roman empire, and were 
 established in a still more elaborate form in the 
 
 * Governor Bligh was deposed from his oflSce on the 26th of 
 January, 1808. Lieut.-Colonel Macquarie assumed the government 
 of New South Wales on the 28th of December, 1S09. See Lang's 
 Historical Account of New South Wales, vol. i. ch. 4 and 5, where 
 there is a detailed history of this transaction. The officer who de- 
 posed Governor Bligh was subsequently tried in England by a 
 court-martial for mutiny, and cashiered. 
 
IV.] A TERRITORY AS A DEPENDENCY. 187 
 
 Mongolian kingdoms, under the immediate suc- 
 cessors of Gengis Khan."''^ 
 
 In rude times, and in imperfectly civilized 
 communities, we perpetually find the subordinate 
 governors of the more distant dependencies throw- 
 ing off their allegiance to the supreme government, 
 and attempting, often with success, to establish their 
 independence. The improved administrative ma- 
 chinery of modern governments, the better organiza- 
 tion of their naval and military forces, and their 
 means of communicating rapidly with their distant 
 dependencies, have so countervailed the tendency of 
 distance, that no governor of such a dependency 
 would attempt or think it possible to render himself 
 independent, f 
 
 It may, lastly, be remarked, that as the difficulty 
 of communicating between the seat of the supreme 
 government and the dependency is the cause which 
 renders it necessary for the supreme government to 
 govern it in that form, the insulation of a terri- 
 tory, unless productive of this difficulty, does not 
 create the necessity of placing it under a subordi- 
 nate government. Whenever a territory is suf- 
 
 * Ideen, t. i. p. 497. Concerning the Persian posts, see Xenoph. 
 Cyrop. viii. 6. § 17. The Roman posts were first instituted by Augustus, 
 in order that they might bring intelligence from the provinces : 
 " Et quo celerius ac sub manum annunciari cognoscique posset, quid 
 in provincia quaque gereretur, juvenes primo modicis intervallis per 
 militares vias, dehinc vehicula, disposuit. Commodius id visum est, 
 ut, qui a loco perferrent litteras, iidem interrogari quoque, si quid 
 res exigeret, possent." — Sueton. Oct. c. 49. Compare Bergier, 
 Hist, des Grands Chemins de I'Emp. Rom. liv. iv. c. 3—18, and 
 Gibbon, Decline and Fall, c. 17 (vol. ii. p. 307). 
 
 t See below, ch. IX. 
 
188 REASONS FOR GOVERNING, ETC. [CH. 
 
 ficiently near to be within reach of the direct action 
 of the supreme government, it may, although it 
 should be detached from the territory in which the 
 seat of the supreme government is placed, be 
 governed without the interposition of a subordinate 
 government ; for example, the Rhenish provinces of 
 Bavaria and Prussia are immediately subject to the 
 supreme governments of those two kingdoms, 
 although they are separated from them by inter- 
 vening portions of territory belonging to other 
 independent states. 
 
v.] SEPARATENESS OF A DEPENDENCY. 189 
 
 CHAPTER V. 
 
 Separateness of a Dependency, as arising from the Peculiarities 
 of its Legal System. 
 
 It has been shown in the first chapter* that, 
 in consequence of the complete organization of 
 the government by which they are immediately 
 governed, the inhabitants of a dependency form a 
 community which is essentially as separate from 
 the dominant country as is consistent with their 
 subjection to the supreme government. But besides 
 the necessary cause which thus separates a depen- 
 dency from the dominant country, there are other 
 causes which frequently, though accidentally, tend 
 to the same effect. The peculiarities by which the 
 body of law appropriate to the dependency is dis- 
 tinguished from that of the dominant country, are 
 the most important cause of this description. 
 
 It follows from the remarks in the first chapter Most of the 
 that the supreme government rarely legislates for a afflctin^'a 
 dependency, excepting as to its relations with the^^J^ade^^ 
 dominant country, with the other dependencies of ^ovem-^*^^ 
 that country, or with foreign states. f The samejs 
 likewise true of that portion of the subordinate 
 government which consists of persons resident in the 
 dominant country. Consequently most of the newly 
 enacted laws of a dependency emanate from the local 
 subordinate government ; and thus its legal system 
 
 ♦ Page 82. «• Above, p. 81. 
 
 ment. 
 
190 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 naturally acquires, to a considerable extent, a pecu- 
 liar character. 
 Even in a Even whcrc the dependency is a colony of the 
 
 dependency . i n ^ r i - t i 
 
 which is a dominant country, the lounders of which brought 
 of the do- with them the laws and institutions of the parent 
 country, statc, its legal system is peculiar. For, in the first 
 place, such laws and institutions of the mother-country 
 as are suitable to a colony, are alone considered as being 
 in force in it. Such, at least, is the rule of the English 
 law ; and a similar rule must, from the necessity of 
 the case, obtain with respect to the colonial depen- 
 dencies of every country. " It hath been held," says 
 Blackstone, " that if an uninhabited country be dis- 
 covered and planted by English subjects, all the 
 English laws then in being, which are the birth- 
 right of every subject, are immediately there in force. 
 But this must be understood with very many and 
 very great restrictions. Such colonists carry with 
 them only so much of the English law as is appli- 
 cable to their own situation and the condition of an 
 infant colony ; such, for instance, as the general 
 rules of inheritance and of protection from personal 
 injuries. The artificial refinements and distinctions 
 incident to the property of a great and commercial 
 people, the laws of police and revenue (such espe- 
 cially as are enforced by penalties), the mode of 
 maintenance for the established clergy, the jurisdic- 
 tion of spiritual courts, and a multitude of other 
 provisions, are neither necessary nor convenient for 
 them, and therefore are not in force."''^ 
 
 * Commentaries, vol. i. p. 107. 
 
v.] SEPARATENESS OF A DEPENDENCY. 191 
 
 The following is Mr. West's opinion on this sub- 
 ject, given to the Lords Commissioners of Trade 
 and Plantations in 1720 : — " The common law of 
 England is the common law of the plantations, and 
 all statutes in affirmance of the cofnmon law,* passed 
 in England antecedent to the settlement of a colony, 
 are in force in that colony, unless there is some 
 private act to the contrary ; though no statutes 
 made since those settlements are there in force, 
 unless the colonies are particularly mentioned. Let 
 an Englishman go where he will, he carries as much 
 of law and liberty with him as the nature of things 
 will bear."t 
 
 Lord Mansfield expressed himself as follows, in 
 the case of Campbell v. Hall : — " It is absurd that 
 in the colonies they should carry all the laws of 
 England with them. They carry such only as are 
 applicable to their situation I remember it has been 
 determined in the council. There was a question 
 whether the statute of charitable uses operated on 
 the Island of Nevis. It was determined it did not ; 
 and no laws but such as were applicable to their 
 condition, unless expressly enacted.''^ 
 
 Acts of Parliament made after the foundation of 
 an English colony do not extend to it, unless, P, 
 they name that colony in particular or the colonies 
 generally ; or 2'', have been adopted by an Act of 
 
 * The words which I have marked by Italics appear to he an at- 
 tempt to designate the class of statutes which are likely to he suit- 
 able to the wants of a new colony. 
 
 t 1 Chalmers' Opinions, p. 192, and compare vol. ii. p. 202. 
 
 X 20 Howell's State Trials, p. 289. Nevis was colonized from 
 England : see Clarke's Colonial Law, p. 9. n. 
 
192 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 the colonial legislature ; or 3°, have been received 
 and acted upon in the colony.* 
 
 According to the opinion of the attorney-general 
 of Jamaica, British statutes amending the common 
 law apply to a colony vrhere the English common 
 law is in force, even when they do not name the 
 colony. f This rule, however, is so vague that it 
 seems scarcely to admit of being applied. It may 
 be observed that, although the English criminal 
 law (both statute and common law) was intro- 
 duced into Canada in 1774, the statutes amend- 
 ing the criminal law, which were passed subse- 
 quently to that year, were not considered as being 
 in force in it.J 
 
 The following is the account of the English law 
 in force in Dominica, which was given by the chief 
 justice of the island to the West Indian commis- 
 sioners : — 
 
 " The common law, as far as applicable to circum- 
 stances and colonial situation, is generally followed. 
 The acts of the mother-country, antecedent to the 
 colonial establishment, comprising the common law, 
 are in force also. Many English statutes are adopted 
 and deemed in operation which passed before the 
 cession of the island, and all statutes of England 
 which affect us locally." The attorney-general of 
 the same island stated to the commissioners his opi- 
 nion, that " the rule upon this subject [viz., the 
 communication of English law to the colonies] is so 
 
 * 2 Chalmers, p. 197. 220. 
 
 t Clark's C. L., p. 343. 
 
 .j". Lord Durham's Report on Canada, p. 42. 
 
> OF THE '> 
 
 v.] SEPARATENESS OF A DEPENDfjtt^ I ^ 5S S I T I 
 
 vague and so little understood, that decisiSS^ ^fefafiS^^ L^ 
 upon it will be often contradictory."'' 
 
 The Attorney-general of 8t. Christopher s stated 
 his opinion on this subject to the West Indian com- 
 missioners in the following terms : — " We consider 
 the law of England operative here, in cases appli- 
 cable to our circumstances, except where it may he 
 modified or altered hy the acts of the colonial legis- 
 lature. We also consider acts of parliament, passed 
 previous to the cession of the island to Queen Anne 
 by the treaty of Utrecht, operative here in all cases 
 in which they are applicable"! 
 
 The following is the account of the English laws 
 affecting the Island of Barbadoes, which is given in 
 the Report of the West Indian Commissioners: — 
 " The laws in force here are, first, the common law 
 of England; secondly, such Acts of Parliament as 
 were passed before the settlement of the island, and 
 are applicable to its condition. The bankrupt 
 and poor laws, the laws of police, tithes, and the 
 mortmain acts have been treated as not applicable to 
 the condition of the colony, and are, therefore, not 
 in force in it. Of acts passed subsequently to its 
 settlement, such only are considered to aifect the 
 colony as have the island expressly named or virtu- 
 ally included in them. "J 
 
 * Cited in Clark's C. L., p. 139. Dominica, though it was declared 
 by England to be neutral for a few years after the treaty of Aix-la- 
 Chapelle, appears to be considered as having the legal incidents of 
 a country colonized by Englishmen. 
 
 f Clark, p. 164. St. Christophers is likewise considered to have 
 been colonized by Englishmen. 
 
 X Clark, p. 181 . The same is the case of Barbadoes. 
 
194 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 The most complete attempt of the government of 
 an English colonial dependency to determine how 
 much of the law of England applies to it, is exhi- 
 bited in an Act of the Bahama islands, passed in the 
 fortieth of George the Third, intituled " An Act to 
 declare how much of the Laws of England are 
 practicable in the Bahama Islands, and ought to be in 
 force within the same." As Mr. Clark remarks, " it 
 gives a full and clear account of what part of the 
 law of the mother country shall be deemed to be of 
 force and binding in the colony, instead of leaving 
 it to the varying discretion of the judges from 
 time to time, as is the case in many of the other 
 colonies."* 
 
 The Act, after reciting that, " the common law 
 of England is the best birthright of Englishmen and 
 of their descendants, but nevertheless is not in all 
 respects applicable to the circumstances and condition 
 of new and distant colonies ; and that doubts have 
 arisen how far the acts of parliament in which 
 His Majesty's colonies and plantations in America are 
 not expressly mentioned or included under general 
 words, do extend to those colonies and plantations ; by 
 reason whereof his Majesty's liege subjects of these 
 islands have sometimes been in danger of being de- 
 prived of the benefit of many good and wholesome 
 laws ; and that it is expedient that all doubt be taken 
 away concerning a subject of such high importance ;" 
 declares, " that the common law of England, in all 
 
 ♦ Clark, p. 368. See the Act in 1 Howard's Laws of the British 
 Colonies, p. 341 . 
 
v.] SEPARATENESS OF A DEPENDENCY. 195 
 
 cases where the same hath not been altered by any 
 of the acts or statutes hereinafter enumerated, or by 
 any act or acts of the assembly of these islands, (ex- 
 cept so much thereof as hath relation to the ancient 
 feudal tenures, to outlawries in civil suits, to the 
 wager of law or of battail, appeals of felony, writs 
 of attaint, and ecclesiastical matters,) is, and of right 
 ought to be, in full force within these islands, as 
 the same now is in that part of Great Britain called 
 England." Sect. 2 enacts, that " the several statutes 
 and acts of parliament hereinafter particularly enu- 
 merated and mentioned, are, and of right ought to 
 be, in full force and virtue within and throughout 
 this colony, as the same would be if the Bahama 
 islands were therein expressly named, or as if the 
 aforesaid acts and statutes had been made and enacted 
 by the general assembly of these islands." The 
 titles of a large number of English statutes are then 
 enumerated, beginning with 9 Hen. III. and ending 
 with 27 Geo. II. 
 
 Sect. 3 declares, that " all and every the acts, 
 statutes, and parts of acts and statutes of the Par- 
 liament of England or Great Britain, which relate 
 to the prerogatives of the Crown, or to the allegiance 
 of the people, also such as require certain oaths 
 (commonly called the state oaths) and tests to be 
 taken or subscribed by the people of Great Britain, 
 also such as declare the rights, liberties, and privi- 
 leges of the subject, are, and of right ought to be, 
 of full force and virtue within this colony, as the 
 same would be if the Bahama islands were therein 
 
 o2 
 
196 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 expressly named, or as if the aforesaid acts and sta- 
 tutes had been made and enacted by the general as- 
 sembly of these islands." 
 
 The following is the account given by Mr. Hali- 
 burton of the legal system of Nova Scotia : — 
 
 " Upon the first settlement of this country, as 
 there was no established system of jurisprudence, 
 until a local one was legally constituted, the emi- 
 grants naturally continued subject and entitled to 
 the benefit of all such laws of the parent country as 
 were applicable to their new situation. As their 
 allegiance continued, and travelled along with them 
 according to those laws, their co-relative right of 
 protection necessarily accompanied them. The com- 
 mon law, composed of long established customs, 
 originating beyond what is technically called the 
 memory of man, gradually crept into use as occasion 
 and necessity dictated. The statute law, consisting 
 of acts regularly made and enacted by constituted 
 authority, has increased as the nation has become 
 more refined, and its relationship more intricate. 
 As both these laws grew up with the local circum- 
 stances of the times, so it cannot be supposed that 
 either of them, in every respect, ought to be in force 
 in a new settled country; because crimes that are 
 the occasion of penalties, especially those arising out 
 of political, instead of natural and moral relation- 
 ship, are not equally crimes in every situation. Of 
 the two, the common law is much more likely to 
 apply to an infant colony, because it is coeval with 
 the earliest periods of the English history, and is 
 
v.] SEPARATENESS OF A DEPENDENCY. 197 
 
 mainly grounded on general moral principles, which 
 are very similar in every situation and in every 
 country. The common law of England, including 
 those statutes which are in affirmance of it, contains 
 all the fundamental principles of the British con- 
 stitution, and is calculated to secure the most essen- 
 tial rights and liberties of the subject. It has, 
 therefore, been considered by the highest jurisdic- 
 tions in the parent country, and by the legislatures 
 of every colony, to be the prevailing law in all cases 
 not expressly altered by statute, or by an old local 
 usage of the colonists similarly situated; for there 
 is a colonial common law, common to a number of 
 colonies, as there is a customary common law, com- 
 mon to all the realm of England. With such ex- 
 ceptions, not only the civil but the penal part of it, 
 as well as the rules of administering justice and ex- 
 pounding laws, have been considered as binding in 
 Nova Scotia. In many instances, to avoid question, 
 colonial statutes and rules of court have been made 
 expressly adopting them. Since the artificial refine- 
 ments and distinctions incidental to the property of 
 the mother country, the laws of police and revenue, 
 such especially as are enforced by penalty, the modes 
 of maintenance for the clergy, the jurisdiction of the 
 spiritual courts, and a multitude of other provisions, 
 are neither necessary nor convenient for such a co- 
 lony, they therefore are not in force here."* 
 
 A native customary law common to several depen- 
 dencies (such as that here referred to by Mr. Hali- 
 
 * Haliburton's Nova Scotia, vol. ii, p. 343 — 5. 
 
198 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 burton) is not peculiar to the North American set- 
 tlements. Its existence is also mentioned in some 
 of the West Indian islands, by the West Indian 
 Commissioners. 
 
 " The law of slavery is to be found in a sort of 
 common law of the colonies, and in the acts of the 
 local legislatures. The Chief Justice of Grenada 
 calls it ' a customary law, superadded to the law of 
 England, supplemental to the common law.' In 
 this island (Barbadoes), and I believe in all others, 
 it was not expressly instituted or established by posi- 
 tive law, but obtained insensibly, and at present de- 
 pends upon certain unwritten maxims and principles 
 (derived chiefly from the civil law), and a usage 
 founded thereon. This, though not strictly a legal 
 prescription, has been a uniform practice, recognized 
 in the earliest acts of assembly, regulated at various 
 periods of their history, and constantly admitted as 
 legal in their courts of justice."* 
 Vagueness It mav bc remarked fi^enerallv of the precedini; 
 
 of the rules "^ . ... . 
 
 respecting rulcs respecting: the applicability of the law of Ene:- 
 
 theapplica- ^ ^, / ^ ^ . ^ Y ^ ^^ ^ . ^ ^ ^ 
 
 biiity of the land in its colonial and other dependencies, that they 
 in English arc vaguc and ill defined ; that consequently, they 
 t epen en ^eg^^e a large discretion to the courts of the depend- 
 ency, and even throw a doubt upon the extent of the 
 legislative power possessed by its subordinate govern- 
 ment. 
 
 Mr. Howard, in his work on the laws of the 
 British colonies in the West Indies, and other parts 
 of America, has the following remarks on the sub- 
 
 * First Report of the Commissioners of Inquiry into the admi- 
 nistration of justice in the West Indies, p. 65. 
 
v.] SEPARATENESS OF A DEPENDENCY. 199 
 
 ject. " It is clear that the English laws are par- 
 tially in force in many of our American possessions ; 
 but it is equally clear, that for want of certain ad- 
 mitted principles, upon which the applicability of 
 those laws can be established, it is very difficult to 
 define which of them do, and which do not extend 
 to the colonies respectively ; and that, on the con- 
 trary, the greatest difference of opinion exists on the 
 subject both at home and in the colonies."* 
 
 The following passages, relating to the same sub- 
 ject, occur in the third report of the Commissioners 
 for inquiring into the administration of justice in the 
 West Indies. 
 
 " The subject first engaging the attention of the 
 Commissioners in every island was the received law 
 of the colony. This was a point which could hardly 
 be expected to present much intricacy, or to lead to 
 great difference of opinion. But unfortunately the 
 principle upon which certain laws of the mother 
 country are operative and held binding in her 
 colonies, far from being clear and precise, as is 
 desirable in presenting rules of action which all 
 men are required to obey, is involved in consider- 
 able obscurity, and often found very difficult of ap- 
 plication." 
 
 " The answer generally received in the case of free 
 persons, was, 
 
 " 1st. We acknowledge the common law of Eng- 
 
 * Introduction, p. 12. See the examples, in proof of this asser- 
 tion, adduced by Mr. Howard, p. 12 — 14, and particularly a passage 
 from Pownal's work on the Colonies, cited in p. 12. 
 
200 SEPARATENESS OF A DEPENDENCY. [CH 
 
 land ;" but always qualified by " so far as it is ap- 
 plicable to the circumstances of the colony." =^ * * 
 
 2nd. It was said, we are bound by Acts of Par- 
 liament passed before the " settlement of the colony," 
 and " applicable to its condition ;" that is to say, by 
 the statutes of England passed antecedently (making, 
 as will be perceived by the subjoined table, a differ- 
 ence in some cases of two centuries) : 
 
 In Barbadoes — to 1627, but not "by the penal laws gene- 
 rally," said the Solicitor-general 
 
 In Tobago to 1814 
 
 In Grenada to 1763 
 
 In St. Vincent to 1763 
 
 In Dominica to 1763 
 
 In Antigua to 1632, but not *' by the penal laws, at least 
 
 in the case of slaves," thought the 
 Attorney-general. 
 
 In Montserrat to 1632 
 
 In Nevis to 1625 
 
 In St. Christopher to 1713 
 
 In Tortola to 1774 
 
 " The crown officer of Nevis said, * we are bound by 
 all Acts of Parliament of the mother country, ante- 
 cedent to a certain period, but what that ' certain 
 period ' is, does not appear to have been settled by 
 any judicial decision or record here.' "* 
 
 In consequence of the rule of English law, that a 
 colony founded by Englishmen receives such of the 
 statute and common law in force at the time of its 
 foundation as is applicable to its condition, but does 
 not receive such statutes passed subsequently to its 
 foundation, as do not expressly include it, or such 
 rules of common law as are contained in decisions 
 made after the same period, it necessarily happens 
 
 * Third Report, p. 97, 98. 
 
v.] SEPARATENESS OF A DEPENDENCY. 201 
 
 that different portions of the statute and common 
 law are in force in English colonies founded at 
 different times; and that most of the alterations 
 made in the statute and common law of the mother- 
 country subsequently to the foundation of a colony, 
 do not extend to it. 
 
 The reason assigned for the rule that new colo- 
 nists take out with them the existing law of Eng- 
 land, so far as it is applicable to their condition, is, 
 that the law of England is the birthright of every 
 Englishman.* This reason, however, as so stated, 
 is too extensive ; for an Englishman going to an 
 English dependency, which is not an English colony, 
 does not necessarily live under the English law. 
 There is no system oi jpersonal law in the dependen- 
 cies of England,f such as existed in western Europe 
 soon after the conquests of the German barbarians, 
 and as now exists in Hindostan. The true reason 
 for this rule seems to be, that new colonists take 
 out with them the law of the mother-country, from 
 the necessity of the case. It is necessary for them 
 to have some system of law, regularly administered, 
 if they are to be a civilized community ; and what 
 other system of law could they adopt ? They could 
 
 * 2 Peere Williams, p. 75. 
 
 t •' The law and legislation of every dominion equally affects all 
 persons and all property within the limits thereof, and is the true 
 rule for the decision of all questions which arise there. Whoever 
 purchases, sues, or lives there, puts himself under the law of the 
 place and in the situation of its inhabitants. An Englishman in 
 Minorca, or the Isle of Man, or the plantations, has no distinct 
 right from the natives while he continues there.'* Lord Mansfield, 
 in Campbell v. Hall, 20 Howell's S. T. 323. 
 
202 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 not create ofF-hand a new body of law ; and there 
 are no persons among them who are acquainted with 
 any foreign system of jurisprudence, so as to be able 
 to administer it. Moreover, the system of law 
 under which they have hitherto lived, to which they 
 have been accustomed, and which is expressed in 
 their native language, is, on the whole, the best 
 suited to their wants, however different the circum- 
 stances of the colony may be from those of the 
 mother-country. It may be remarked, that this 
 reason does not apply to dependencies acquired by 
 cession or conquest, which already possess a legal sys- 
 tem of their own ; and accordingly the body of the 
 English law does not obtain in dependencies so ac- 
 quired. 
 The pecu- Another cause of the peculiarity of =^the legal sys- 
 cumTtlnces tcm of a dependency is, that the peculiar interests of 
 dency^ne" the dependency, growing out of its peculiar circum- 
 enactoent^ stauccs, ncccssitatc the enactment of peculiar laws. 
 of peculiar ^^^ example, the employment of New South Wales 
 and Van Diemen s Land, as places of punishment for 
 transported convicts, has necessitated the establish- 
 ment, in those colonies, of laws altogether different 
 from any of the laws of the mother-country. In 
 like manner, the system of slavery which prevailed 
 in the Spanish, French, Dutch and English colo- 
 nies of America, caused a set of legal rules different 
 from any obtaining in the legal systems of the 
 respective mother-countries to be introduced into 
 those colonies.* 
 
 * See Burge, vol. i. p. 735. (ch. 10.) 
 
v.] SEPARATENESS OF A DEPENDENCY. 203 
 
 The laws which are peculiar to a dependency are 
 sometimes, though rarely, introduced into it by the 
 direct legislation of the supreme government. More 
 frequently, however, they are introduced into it by 
 the legislation of the local subordinate government, 
 or grow up as rules of unwritten law, through the 
 indirect legislation of the local courts. 
 
 If a territory belonging to an independent state, a depen- 
 
 , . . , ^ . , , . .11 • dency not 
 
 or bemg itseli independent, is acquired by cession or being a 
 conquest, the system of law which obtains in it at the domi- 
 the time of the acquisition, can hardly fail to be try, natu- 
 considerably different from that of the dominant much of its 
 country which acquires it. In general, a country 
 thus acquiring a dependency is satisfied with re- 
 organizing its local government, and modifying its 
 public law, and is contented to leave its civil law 
 (or jus privatum) unchanged. By this mode of 
 proceeding the dominant country secures its own do- 
 minion, and avoids the production of the confusion 
 which must inevitably ensue in any community upon 
 a sudden change of its law of property and contracts. 
 Thus, as we have already seen, the Roman municipia 
 and provinces retained for a time much of their pe- 
 culiar laws and institutions under the dominion of 
 Rome.* In like manner, every country conquered 
 by or ceded to the Crown of England retains such 
 laws and rules of law (not inconsistent with the 
 general law of England affecting dependencies) 
 as were in force in it at the time of the conquest 
 or cession, until they are repealed by a competent 
 
 * Above, p. 113, 119. 
 
204 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 authority.* Now, inasmuch as many independent 
 states, and many dependent colonies of other states, 
 have become English dependencies ; many of the 
 English dependencies have retained wholly, or in 
 part, foreign systems of jurisprudence. Thus Tri- 
 nidad retains much of the Spanish law ; Demerara, 
 the Cape of Good Hope, and Ceylon, retain much 
 of the Dutch law ; Lower Canada retains the French 
 civil law according to the coutume de Paris ; St. 
 Lucie retains the old French law as it existed when 
 the island last belonged to France ; Mauritius retains 
 such of the French codes as were extended to it ; 
 Malta, which was a municipality of the kingdom of 
 Sicily, retains the old Sicilian law as modified by the 
 subsequent legislation of the grand masters ; the 
 Ionian islands retain much of their old Venetian 
 law ; and the dominions of the East India Company 
 retain much of the Hindoo, Mahometan, and other 
 native systems of law and legal usages. Blackstone 
 properly remarks, that the common law of England 
 does not obtain, as such, in an English dependency 
 acquired by conquest or treaty. 'f 
 
 It has been remarked above that the rule of 
 English law respecting the communication of the 
 statute and common law of the mother-country to 
 an English colony produces two singular conse- 
 quences : first, that different portions of the statute 
 and common law of the mother-country are in force 
 in different colonies ; and secondly, that most of the 
 
 * Sec note (M) at the end of the volume, 
 t Commentaries, vol. i. p. 108. 
 
v.] SEPARATENESS OF A DEPENDENCY. 205 
 
 alterations in the statute and common law of the 
 mother-country, which have been made since the 
 foundation of the colony, are not received in the 
 colony. An analogous effect is produced by the rule 
 of the English law respecting the retention of the 
 native law of a dependency acquired by England, in 
 cases in which the dependency has been the dependent 
 colony of another state. In these cases, the laws of 
 the mother-country, as they existed at the time of the 
 transfer of the colony, are in force in such colony, 
 without any of the alterations which may have been 
 made subsequently to the transfer. Thus the pro- 
 vince of Lower Canada has for its civil law the 
 French law, according to the coutume de Paris ; 
 although that law has long since been superseded in 
 France by the laws of the revolution and the codes 
 of Napoleon. In like manner, the Dutch colonies 
 ceded to England are subject to the Dutch law, as 
 it existed at the time of the cession. " The ancient 
 law of Holland (says Mr. Henry, in his preface to 
 his translation of Vanderlinden's Institutes of the 
 Laws of Holland), as it existed before the subjugation 
 of that country to France, and the introduction of 
 the code Napoleon, still prevails in the Dutch ceded 
 colonies, which never admitted the new code, from 
 the circumstance of their being, during the war 
 which preceded the short peace of Amiens and the 
 treaty of Paris, under the dominion, by conquest, of 
 Great Britain."* So, again, the French codes, 
 which are in force in the island of Mauritius, are 
 
 * Pref., p. 12. 
 
206 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 received in the form in which they were introduced 
 into the island, and without the modifications which 
 have subsequently been made in them by the French 
 legislature. 
 Extent to The prcscut seems a convenient place for con- 
 legisiative sidcring the extent to which the legislative power 
 SiTsubor- of the subordinate government of an English depen- 
 vernment of dency is restrained by the laws imposed on the 
 depen? '^ dependency by the supreme government. 
 stramedby It has been already stated, that a subordinate 
 the^preme govcmment Can make any law consistent with, but 
 mJnt? cannot make any law derogating from, the laws ema- 
 nating directly from the supreme government which 
 bind the dependency. It is, therefore, necessary to 
 consider what, according to the English practice, are 
 the laws of the supreme government which bind a 
 dependency. 
 
 In an English dependency which has been colo- 
 nized by Englishmen, the laws of the mother-country 
 are in force so far as they suit the condition of the 
 colony; and an English dependency acquired by 
 treaty or conquest retains generally the laws which 
 it possessed at the time of the acquisition. But the 
 laws just mentioned are not considered as being 
 among the laws of the supreme government, which 
 the subordinate government cannot alter ; probably 
 because they are considered to have been established 
 directly by the express or tacit authority of the im- 
 mediate government of the dependency, although 
 they were so established with the tacit consent of 
 the supreme government. 
 
v.] SEPARATENESS OF A DEPENDENCY. 207 
 
 The laws of the supreme government which, ac- 
 cording to the English practice, the subordinate 
 government is unable to alter, are the written laws of 
 the supreme government which apply specifically to 
 the dependency, and were, therefore, passed at the 
 time of, or subsequently to, its colonization or ac- 
 quisition ; or they are the written laws of the 
 supreme government, passed before or after its 
 colonization or acquisition, which apply to the 
 dependency by a general description. For ex- 
 ample, the -legislature of Upper or Lower Canada 
 could not make any law inconsistent with any pro- 
 vision of the Act of 1791, respecting the powers of 
 the Houses of Assembly, the clergy reserves, and 
 so forth ; nor can an English dependency escape 
 from the operation of the Navigation Acts, although 
 it might have been founded subsequently to the 
 passing of these Acts, which, therefore, would only 
 include it by a general description.* It is supposed, 
 moreover, that there are certain fundamental prin- 
 ciples of the unwritten law of England, (although it 
 is not pretended that they are very precisely defined,) 
 to which every law or legal rule of a dependency 
 must conform, and which, therefore, the subordinate 
 government is unable to alter.f Assuming that 
 there are such fundamental principles in force in 
 
 * The 3 and 4 Wm. IV. c. 59, s. 56, declares that no law or custom 
 shall be in force in any of the British possessions in America, which 
 is repugnant to any Act of Parliament made or thereafter to be made 
 in the United Kingdom, so far as such Act shall relate to and 
 mention the said possessions. 
 
 t See note (M). 
 
208 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 every English dependency, we must suppose that the 
 supreme government directly though tacitly intro- 
 duced them. 
 
 It sometimes happens that a large body of law is 
 introduced into a dependency by a legislative Act of 
 the supreme government. Thus, the criminal law of 
 England was introduced into Lower Canada by act of 
 Parliament, in 1774. It appears that the criminal law 
 so introduced has undergone some modifications by 
 the provincial legislature, but that the power of the 
 provincial legislature to make these changes has 
 been disputed.* Whether the legislature of Lower 
 Canada had or had not the power to alter the 
 English criminal law as introduced into that pro- 
 vince by Act of Parliament, it is certainly desirable 
 that, whenever a large body of law is introduced 
 into a dependency by the supreme government, a 
 power of modifying its provisions should be ex- 
 pressly given to the subordinate government, so far 
 as it concerns the internal affairs of the dependency, 
 and does not affect its political relations with the 
 dominant state. 
 
 It is probable that the practice which prevailed re- 
 specting the dependencies of Rome closely resembled 
 that which prevails respecting the dependencies 
 of England. Probably, the local government of a 
 municipium or colonia could alter any of its laws, 
 unless it was restrained by a positive enactment of 
 the Roman legislature, and a provincial government 
 could make any legislative innovation which was 
 
 * Lord Durham's Report, p. 42. 
 
v.] SEPARATENESS OF A DEPENDENCY. 209 
 
 not inconsistent with the formula of the province, 
 or any Roman law binding the provinces generally. 
 
 It has been shown in the first chapter, that a ««\erai re- 
 
 ^ marks on 
 
 dependency is characterized by its possessing a com- *'^« «epa- 
 
 * •' ./ r o ratenessofa 
 
 pletely organized though subordinate government ; ^lependent 
 and that it is necessarily as distinct from the domi- mty. 
 nant community in this respect, as is consistent with 
 their being both members of the same independent 
 political society. 
 
 The separateness of the dependency is increased 
 by the peculiarities of its legal system, the general 
 though accidental causes of which have been ex- 
 plained in the present chapter. 
 
 Having a peculiar government completely or- 
 ganized, and a peculiar legal system, it has a distinct 
 history and distinct historical associations ; it has 
 recollections and feelings which extend to all its 
 members, and are limited to them. It thus obtains 
 a peculiar national character and a separate national 
 existence. 
 
 Hence the inhabitants of a dependency are differ- 
 ent from an equal number of persons not forming a 
 separate community, but living in the midst of the 
 population of an independent state. Every measure 
 of the government of a dependency affects the in- 
 habitants of the dependency, and them alone ; 
 whereas a portion of the members of an independent 
 community (such as the inhabitants of a county or 
 department) are, in general, affected by the measures 
 of its government, not exclusively, but in common 
 with all the other members of that community. 
 
210 SEPARATENESS OF A DEPENDENCY. [CH. 
 
 It is well known how great an interest attaches 
 to the history of the small Greek and Italian states, 
 because they were separate communities. However 
 small or weak a separate community may be, its 
 history can scarcely fail to present some features of 
 interest. The interest will, doubtless, be greater if 
 the community be independent than if it be de- 
 pendent; but there can scarcely fail to be some 
 interest, provided it be a separate community. 
 
VI.] ADVANTAGES OF A DOMINANT COUNTRY. 211 
 
 CHAPTER VI. 
 
 Advantages derived by the Dominant Country from its Supremacy 
 over a Dependency. 
 
 Having in the preceding chapters attempted to ex- 
 plain and illustrate the nature of a dependency, I 
 proceed, in this and the following chapters, to exa- 
 mine the advantages and disadvantages which arise 
 severally to the dominant community and the de- 
 pendency, from their political connexion with each 
 other. 
 
 We will consider in the present chapter the 
 advantages which the dominant community may 
 derive from its supremacy over a dependency. 
 
 These advantages are various, and are determined Adyantageg 
 
 " derived by 
 
 bv the natural capabilities of the dependency, the the domi- 
 
 ^ ^ . "^"t coun- 
 
 character of its population, the policy adopted with try from its 
 
 ^ * ^ i ^ J. supremacy 
 
 regard to it by the dominant country, and other over a de- 
 
 Tfi 1111 pendency. 
 
 causes. It cannot, therefore, be stated absolutely 
 that the dominant country derives any advantage or 
 advantages from its political relations with a de- 
 pendency. 
 
 The following appear to be the principal ad- 
 vantages which dominant states have derived, or 
 attempted to derive, from the possession of de- 
 pendencies. 
 
 1 . By the civilized states of antiquity, dependencies i. Tribute 
 
 . . 1 ^^'^ revenue 
 
 were chiefly valued as furnishing a revenue to the paid by the 
 
 . depen- 
 
 government of the dominant country. The subject deucy. 
 
 p2 
 
212 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 allies of Athens all rendered a tribute to the domi- 
 nant republic, either in money or military and naval 
 supplies ; the amount of their contributions under- 
 went several changes, and the fixing of it on such 
 terms as should not produce dissatisfaction amongst 
 the allies was considered nearly the greatest feat of 
 Athenian statesmanship.^ The subject allies of 
 Carthage were likewise tributary. We have already 
 stated that the arbitrary increase and vexatious col- 
 lection of their tribute at the end of the first Punic 
 war led to the dangerous rebellion against Carthage 
 which is called the war of the mercenaries.f The 
 Roman provinces also yielded a large revenue to the 
 supreme government, from taxes which were either 
 collected by Roman oflicers or farmed out by the 
 government to contractors.;]: 
 
 The dependencies of the Oriental monarchies have 
 also paid a tribute to the monarch, after defraying 
 the expenses of their own subordinate governments. 
 This, as we have already seen, was the case with the 
 ancient Persian empire, and still continues to be the 
 practice of the Asiatic governments.^ 
 
 The states of modern Europe have not in general 
 derived any direct tribute or revenue from their de- 
 pendencies. Most of the dependencies of modern 
 European states have been colonies founded by their 
 own citizens, which, during their infancy, have 
 needed pecuniary assistance from the government of 
 the mother-country, instead of being able to con- 
 
 ♦ Above, p. 103. t Above, p. 123. 
 
 X Ibid. p. 112. § Ibid. p. 96. 
 
(jNIVERSITY 
 
 VI. J FROM A DEPENDENCY.V /> o--2l3 v j 
 
 tribute to its expenses ; and which, whefr^ rowu Yx ^ 
 maturity, were considered beneficial to the dominant 
 mother-country rather as affording to its citizens the 
 means of commercial profit than as furnishing a 
 direct revenue to its government. 
 
 The crown of Spain levied a tax of a certain 
 portion of the gross produce of the gold and silver 
 mines in its American colonies. But this tax, how- 
 ever it may have dazzled men s imaginations at a 
 time when all wealth was supposed to consist in the 
 precious metals, was not sufficiently productive to 
 form an important resource of the Spanish monarchy. 
 The colonial government of Spain was an expensive 
 government,* and the American colonies did not yield 
 any great surplus revenue to the mother-country .f 
 The principal advantage which Spain expected to 
 derive from her colonies consisted, as we shall show 
 presently, in appropriating to herself the monopoly 
 of their commerce. The colonies of France and 
 Holland were in like manner chiefly prized as open- 
 ing new fields of commercial enterprise, and no con- 
 siderable revenue was ever extracted from them for 
 the benefit of the mother-country .J 
 
 * "The colony government of all these three nations (Spain, 
 Portugal, and France) is conducted upon a much more expensive 
 plan, and is accompanied with a much more expensive ceremonial 
 than the colony government of England. The sums spent upon 
 the reception of a new viceroy of Peru, for example, have frequently 
 been enormous.*' — Smith's Wealth of Nations, b. iv. c. 7. 
 
 t Above, p. 151. 
 
 X On the taxation of the French West-India Islands see Raynal, 
 b. xiii. Turgot,inhis celebrated paper Sur les Suites de laQuerelle 
 entre I'Angleterre et ses Colonies, says, that the maintenance and 
 
214 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 The English colonies have not in general been 
 founded under the guidance or direction of the 
 government. They have either been established 
 by political and religious refugees, who sought in 
 distant countries an asylum against the oppression 
 of their own government, or by bodies of mer- 
 cantile adventurers who attempted to better their 
 fortunes by becoming planters in a virgin soil. 
 The general policy of England has been, not to 
 compel her dependencies to contribute to defraying 
 the expenses of the general government-! The only 
 exception to this policy is the remarkable one of the 
 North American colonies. During the infancy of 
 the Anglo-American colonies no attempt was made 
 by the mother-country to tax them for the general 
 purposes of the empire ; because, although they were 
 too weak to resist, they were too poor to pay. After- 
 wards, when they had grown into large and flourish- 
 ing communities, they were required by the supreme 
 government to contribute to its expenses ; but it was 
 found that, while they had acquired the means of 
 payment, they had also acquired the power and dis- 
 position to resist. 
 
 defence of the French colonies were enormously expensive to 
 France : " Dans la position de nos colonies, qui nous coutent enor- 
 mement a entretenir et a defendre." — CEuvres, torn. viii. p. 461. 
 •• Quant aux ressources de finance, il est notoire que I'imposition que 
 Ton leve dans nos colonies ne suffit pasa beaucoup'pres aux depenses 
 de surete et d'administration qu'elles entrainent." — lb. p. 459. 
 
 t " The English colonists have never yet contributed anything 
 towards the defence of the mother-country, or towards the support 
 of its civil government. They themselves, on the contrary, have 
 hitherto been defended almost entirely at the expense of the mother- 
 country." — Smith's Wealth of Notions, b. iv. c. 7. 
 
VI.] FROM A DEPENDENCY. 215 
 
 The unfortunate war between Great Britain and 
 her American colonies, which her attempt to tax 
 them for the benefit of the general government pro- 
 duced, and the irrational obstinacy with which that 
 war was continued after the firm determination of the 
 colonists not to submit to the taxation had been 
 clearly shown, generally prevent us at present from 
 doing justice to the grounds upon which the claim 
 of the mother-country was originally made. These 
 grounds were anything but unreasonable. It was 
 said that the benefit which the Anglo-American 
 colonies had derived from the wars in which England 
 had been engaged since the Revolution rendered it 
 fair that they should contribute towards the expense 
 of defraying the interest of the debts which those 
 wars had necessitated. Some of these wars, it was 
 added, had been carried on to a great extent for the 
 defence of the American colonies. It was there- 
 fore contended, that the dominant country might 
 justly levy in her American dependencies a tax of 
 which the produce should be applied to defraying 
 the expenses of the general government.* 
 
 It can scarcely be denied that this reasoning is 
 substantially correct, and that the Anglo-American 
 colonies might, without sacrificing any useful prin- 
 ciple of government, have consented to contribute a 
 moderate sum towards the expenses of the general 
 government of the empire. 
 
 But there were many reasons why the Anglo- 
 
 * See Smith's Wealth of Nations, h. v. c. 3. (vol. iii. p. 459—65.) 
 Adolphus, History of George IV. vol. i. p. 337. 
 
216 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 Americans were naturally not inclined to take this 
 view of the demand made upon them by the English 
 government. In the first place, a dependency is (as 
 we have already shown*) a separate community ; 
 and the members of it are accustomed to look upon 
 the subordinate government as that which is pecu- 
 liarly their own. The subordinate government 
 keeps a separate account of its revenue and expendi- 
 ture,f and the people of the dependency are there- 
 fore likely to acquire a habit of thinking that no tax 
 ought to be paid by them except for defraying an 
 expense of the subordinate government. Moreover, 
 the natives of a dependency are accustomed to regard 
 the supreme government as something in which 
 they have scarcely any concern, which lies beyond 
 their sphere, and to the prizes and emoluments of 
 which the members of their little community can- 
 not aspire.J The loss sustained by the dominant 
 country in defending them during war is, in their 
 opinion, amply compensated by the advantages which 
 (according to her own avowed principles) she derives 
 from regulating their external commerce. In addi- 
 tion to these general considerations, there were the 
 following peculiarities in the case of the North 
 American colonies: — 1. Since the foundation of 
 these colonies, the mother-country had not interfered 
 systematically with their internal affairs ; and, with 
 the exception of their external commercial relations, 
 
 * Above, ch. V. f Above, p. 83. 
 
 X See Smith's Wealth of Nations, b. iv. c. 7, (vol. ii. p. 453,) and 
 below, ch. X. 
 
VI.] FROM A DEPENDENCY. 217 
 
 they had been allowed to enjoy practical independ- 
 ence. 2. They had not been required at any time 
 since their foundation to contribute anything to the 
 expenses of the supreme government; and there is 
 scarcely any habit which it is so difficult for a 
 government to overcome in a people as a habit of not 
 paying. 3. The tax was imposed by Act of Parlia- 
 ment, and was attempted to be levied by officers of 
 the supreme government. The objection to the im- 
 post would probably have been less if the colonial 
 governments had been required to pay a certain sum 
 annually to the supreme government, and if the de- 
 termination of the mode of raising the revenue and 
 the duty of collecting it had been entrusted to them. 
 In consequence of the resistance of the North 
 American colonies to taxation by England, an Act 
 of Parliament was passed in 1778, declaring that 
 the King and Parliament of Great Britain would 
 not from thenceforth impose any duty, tax, or assess- 
 ment payable in any of the King's colonies, pro- 
 vinces, or plantations in North America or the 
 West Indies, except only such duties as it might be 
 expedient to impose for the regulation of commerce, 
 and that the net produce of such duties should 
 always be applied to the use of the colony in which 
 it might be levied, in the same manner as other 
 duties collected by the authority of the general as- 
 sembly of the colony (18 Geo. III., c. 12.) Although 
 this declaration was nothing more than a significa- 
 tion of the opinion of the parliament then assem- 
 bled, and is not binding upon any succeeding par- 
 
218 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 liament, yet it is not probable that the supreme 
 government of England will again attempt to de- 
 rive a revenue from any English dependency. 
 
 Adam Smith seems to be of opinion that no de- 
 pendency ought to be retained, unless it contributes 
 towards the expenses which it may occasion to the 
 dominant country. Speaking of the expenses which 
 Great Britain incurred on account of her North 
 American colonies, he says : — " It was because the 
 colonies were supposed to be provinces of the British 
 empire that this expense was laid out upon them. 
 But countries which contribute neither revenue nor 
 military force towards the support of the empire 
 cannot be considered as provinces. They may per- 
 haps be considered as appendages, as a sort of splen- 
 did and showy equipage of the empire. * * * * 
 If any of the provinces of the British empire cannot 
 be made to contribute towards the support of the 
 whole empire, it is surely time that Great Britain 
 should free herself from the expense of defending 
 those provinces in time of war, and of supporting any 
 part of their civil or military establishments in time 
 of peace."^ 
 
 It cannot, however, be laid down generally, that a 
 dependency is of no value to the dominant country 
 unless it contributes directly to the support of the 
 imperial government. Some of the advantages which 
 will be enumerated in the present chapter may be 
 sufficient to outweigh the disadvantages arising from 
 
 * Wealth of Nations, b. v. c. 3, at the end. 
 
VI.] FROM A DEPENDENCY. 219 
 
 the expense occasioned to the dominant country by 
 the possession of the dependency. It is nevertheless 
 certain, that the expense caused to the dominant 
 country by the possession of a dependency contribut- 
 ing nothing to the support of the supreme govern- 
 ment, is a constant evil which nothing but unques- 
 tionable advantages can compensate. 
 
 The notion of deriving a tribute from de- 
 pendencies, or even of making them defray all the 
 expenses incurred by the supreme government on 
 their account, is now generally abandoned; and, 
 according to the modern view of the relations of a 
 dominant state and a dependency, the advantages 
 which the former derives from the latter ought to be 
 confined to indirect advantages of trade, emigration, 
 and other matters which will be stated presently. 
 This view of the relations of a dominant state and a 
 dependency prevails in all the European states which 
 possess dependencies for commercial purposes in the 
 other three quarters of the world. The government 
 of Austria is supposed to derive from its dependency 
 of Lombardy a revenue which it applies to the 
 general purposes of the empire. 
 
 2. Another advantage accruing to the dominant 2. Assist- 
 state from its supremacy over a dependency is, that ^mt^i^ or 
 the latter may furnish men for the army and navy pol^s S- 
 of the former. The great Persian army which in- Jhf depen- 
 vaded Greece was, as we know from the description ^^^^^' 
 in Herodotus, chiefly composed of bodies of men 
 furnished by the several countries dependent on the 
 Persian monarchy. The Grecian states made no 
 
220 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 considerable use of their subject allies for this pur- 
 pose. After the citizens had ceased to serve in war, 
 the armies of the Greek states were chiefly composed 
 of mercenaries. The Roman legions in early times 
 consisted only of citizens ; but by degrees the practice 
 of recruiting in the provinces obtained, and under the 
 Emperors they were formed almost exclusively of 
 provincials. The commercial dependencies of the 
 modern European states have in general had so 
 scanty a population, and been situated at so great a 
 distance from the dominant country, that the latter 
 have not been able to draw supplies of men from 
 them for their armies and navies. With the excep- 
 tion of Hindostan, the English dependencies have 
 not in general been able to furnish men for their own 
 defence, even where there was no doubt as to their 
 fidelity to the dominant country. But whenever a 
 state possesses a dependency which is fully peopled 
 and at no great distance, it can draw upon it for 
 this purpose. Thus Napoleon derived large supplies 
 of men for his gigantic armies from the countries 
 which he had made virtually dependent upon the 
 French empire.* 
 
 A dependency may also be used by the dominant 
 state as a military or naval station. We have seen 
 above that the Roman colonies, in the early times of 
 the republic, were substantially garrisons in coun- 
 tries not yet reduced to habits of obedience, and were 
 considered as the advanced posts of the conquering 
 Roman people.f The Carthaginians seem likewise 
 * See above, p. 140. t Ibid. p. 117. 
 
VI.] FROM A DEPENDENCY. 221 
 
 to have partly used their foreign establishments for 
 military purposes. The colonial and other foreign 
 possessions of modern states have been rather disad- 
 vantageous than beneficial in a military point of 
 view. They have furnished incentives to war, and, 
 from their distance and extent, have been both diffi- 
 cult and expensive to defend. The dependencies of 
 England in the Mediterranean — Gibraltar, Malta, 
 and the Ionian Isles — must, however, be considered 
 mainly useful to England as military and naval sta- 
 tions. 
 
 It may further be argued that the possession of 
 dependencies increases the foreign trade and shipping 
 of the dominant country, and that whatever increases 
 the mercantile navy of a country, also augments its 
 resources and facilities for naval warfare. This effect 
 is doubtless produced in so far as the possession of 
 dependencies tends to increase the foreign trade of 
 a country. The extent to which the possession of 
 dependencies tends to produce the latter effect, will 
 be considered in the following remarks. 
 
 3. Another advantaeje which a dominant com- 3. Advan- 
 
 ^ ^ tage to the 
 
 munitv mav derive from its supremacv over a de- dominant 
 pendency consists m the trade which she may carry from its 
 
 . 1 . , . f, , , trade with 
 
 on With it, under circumstances more favourable to adepen- 
 her traders than if the dependency were an inde- ^"^^' 
 pendent state. 
 
 Among the ancients, dependencies were chiefly 
 considered as valuable on account of the revenue 
 which they yielded directly, in the shape of tribute 
 or military supplies, to the government of the domi- 
 
222 ADVANTAGES OF A DOMINANT COUNTRY [CH 
 
 nant country. The Phoenicians and Carthaginians 
 founded some foreign settlements in order to serve 
 as factories ; but these establishments were intended 
 rather to be places of refuge for trading vessels than 
 to secure any profit to the mother-country by open- 
 ing new markets for its productions.* 
 
 The idea of making dependencies profitable to the 
 dominant country, by securing to the latter an ad- 
 vantageous trade with the former, is of comparatively 
 modern growth. The ancient system of deriving a 
 tribute from dependencies having been abandoned, 
 the states of modern Europe which had colonial or 
 other dependencies, thought that they could extract 
 a large annual profit from them by subjecting their 
 trade to a rigorous monopoly. For this purpose they 
 excluded from the dependency all ships except those 
 of the dominant country ; and they prohibited the 
 ships of the dependency from trading with any part 
 of the world except the dominant country. 
 
 " The conquest of America," says Raynal, in his 
 History of the Settlements of the Europeans in the 
 East and West Indies, " gave the first idea of a new 
 kind of settlement, the basis of which is agriculture. 
 The governments that founded those colonies chose 
 that such of their subjects as they sent thither should 
 not have it in their power to consume anything but 
 what they drew from the mother-country, or to sell 
 the produce of their lands to any other state. This 
 double obligation has appeared to all nations to be 
 
 * Concerning Emporiae, a factory established by the Massaliots, 
 see above, p. 145, note *. 
 
VI.] FROM A DEPENDENCY. 223 
 
 consonant to the law of nature, independent of all 
 conventions, and self-evident. They have not looked 
 upon an exclusive intercourse with their own colo- 
 nies as an immoderate compensation for the ex- 
 penses of settling and preserving them. This has 
 constantly been the system of Europe relative to 
 America."* 
 
 No European nation carried its colonial monopoly 
 so far as Spain, or enforced it with so much rigour. 
 The maxims, however, by which England regulated 
 her intercourse with her colonial dependencies were 
 scarcely more enlightened. " The leading principle 
 of colonization in all the maritime states of Europe 
 (Great Britain among the rest) was," says Bryan 
 Edwards in his History of the West Indies, " com- 
 mercial monopoly. The word monopoly in this case 
 admitted a very extensive interpretation. It compre- 
 hended the monopoly of supply, the monopoly of 
 colonial produce, and the monopoly of manufacture. 
 By the first, the colonists were prohibited from re- 
 sorting to foreign markets for the supply of their 
 wants ; by the second, they were compelled to bring 
 their chief staple commodities to the mother-country 
 alone ; and by the third, to bring them to her in a 
 raw or unmanufactured state, that her own manu- 
 facturers might secure to themselves all the advan- 
 tages arising from their further improvement. This 
 latter principle was carried so far in the colonial 
 system of Great Britain as to induce the late Earl 
 of Chatham to declare, in Parliament, that the 
 * B. xiii. (vol. iv. p. 284. Engl. Transl.) 
 
224 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 British colonists in America had no right to ma- 
 nufacture even a nail for a horseshoe.'"'^ 
 
 Adam Smith goes too far in asserting that a 
 monopoly of the trade of its dependencies is neces- 
 sarily hurtful to the dominant country .t On the 
 other hand, even if it be admitted that the dominant 
 country may occasionally derive some temporary 
 benefit from a monopoly of the commerce of the de- 
 pendency, it may be safely affirmed that a monopoly 
 will, in the long run, be detrimental to those for 
 whose supposed benefit it exists. 
 
 No trade can continue long to be carried on with 
 profit which is not beneficial to both the parties 
 concerned in it. If the ships of a dependency are 
 restricted to the ports of the dominant country, this 
 restriction proceeds upon the assumption that the in- 
 habitants of the dependency, if permitted to buy and 
 sell where they pleased, would buy or sell in some 
 other country. If they are not permitted to trade with 
 
 * Vol. ii. p. 565, and see p. 443. Compare Smith's Wealth of 
 Nations, h. iv. c. 7 : — " The maintenance of this monopoly has 
 hitherto heen the principal, or more properly, perhaps, the sole end 
 and purpose of the dominion which Great Britain assumes over her 
 colonies. In the exclusive trade, it is supposed, consists the great 
 advantage of provinces, which have never yet afforded either re- 
 venue or military force for the support of the civil government, or the 
 defence of the mother-country. The monopoly is the principal 
 badge of their dependency, and it is the sole fruit which has hitherto 
 been gathered from that dependency. Whatever expense Great 
 Britain has hitherto laid out in maintaining this dependency, has 
 hitherto been laid out in order to support this monopoly." M. de 
 Pradt, in his work entitled LesTrois Ages des Colonies (Paris, 1802), 
 says : *' La dependance et le commerce exclusif constituent Tetat 
 essentiel des colonies Europ^ennes, et leur difference avec les colo- 
 nies des anciens." — Tom. iii. p. 368.. 
 
 t B. iv. c. 7 (vol. ii. p. 429). Compare Mill's Article Colony. 
 
VI.] FROM A DEPENDENCY. 225 
 
 whom they please, they will not be "able to trade to 
 the greatest advantage, and their progress in industry 
 and the accumulation of wealth will probably not 
 be rapid. Now if a community be not industrious 
 and wealthy, no profitable trade can be permanently 
 carried on with it. The best customer which a nation 
 can have is a thriving and industrious community, 
 whether it be dependent or independent. The trade 
 between England and the United States is probably 
 far more profitable to the mother-country than it 
 would have been if they had remained in a state of 
 dependence upon her. 
 
 It must be remarked, moreover, that the dominant 
 country, in monopolizing the trade of its dependen- 
 cies, disregards the opinion as well as the interests 
 of their inhabitants. In its relations to its imme- 
 diate subjects, a supreme government endeavours to 
 disguise the selfishness by which it may really be 
 determined. Though manifestly pursuing its own 
 advantage to their manifest detriment, it evinces its 
 deference to their opinion by pretending to consult 
 their interests. But the policy which determines a 
 dominant country to monopolize the trade of a de- 
 pendency is avowedly calculated to promote the good 
 of the former at the cost of the latter.* It shows 
 
 * " In most of the late speculative systems that I have seen, which 
 have treated of the British colonies, there appears this great and 
 fundamental error, that their interests in general are considered as 
 distinct from, and in some respects opposed to, the general interests 
 of the empire. We speak of them indeed as our colonies, and of 
 their inhabitants as our subjects ; but in our dealings we are apt to 
 
226 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 that the dominant country despises the opinion of 
 the dependent people ; and, by thus wounding them 
 in their feelings, as well as in their economical inte- 
 rests, it disposes them to throw off their dependent 
 condition on any favourable oppoi^tunity for success- 
 ful revolt. The tendency, therefore, of this erro- 
 neous policy is to produce a violent separation of 
 the dominant and dependent countries, and to bring 
 upon both of them the evils of war. 
 
 Another objection to a monopoly of the trade of 
 dependencies is the system of smuggling to which it 
 necessarily gives rise, if the trade from which other 
 nations are excluded is likely to be extensive and 
 profitable. Since the inhabitants of the dependency 
 have a common interest with the foreign trader to 
 defeat the monopoly, the efforts of the dominant 
 country to maintain it can scarcely be successful, 
 although she may make large sacrifices of money for 
 the purpose.^ If a nation persist in maintaining a 
 
 regard them with a spirit of rivalry or jealousy, as an unconnected 
 or hostile people, whose prosperity is our detriment, and whose 
 gain is our loss." — Edwards's Hist, of the West Indies, vol. ii. p. 532. 
 * The following is Raynal's account of the smuggling trade which 
 was carried on with the Spanish colonies in America : — "This illicit 
 trade was carried on in a very simple manner. An English vessel 
 pretended to be in want of water, wood, or provisions ; that her 
 mast was broken, or that she had sprung a leak, which could not be 
 discovered or stopped without unloading. The governor permitted 
 the ship to come into the harbour to refit. But, for form sake, 
 and to disculpate himself to his court, he ordered a seal to be affixed 
 to the door of the warehouse where the goods were deposited : 
 while another door was left unsealed, through which the merchan- 
 dize that was exchanged in this trade was carried in and out by 
 stealth. "When the whole transaction was ended, the stranger, who 
 
VI.] FROM A DEPENDENCY. 227 
 
 monopoly of the trade with numerous and important 
 dependencies, it may thereby create a system of 
 armed smuggling and piracy, which may amount to 
 a perpetual succession of petty hostilities* The 
 Buccaneers were, as is well known, the creatures of 
 the exclusive colonial policy of Spain ; and these 
 piratical traders became so numerous and powerful 
 that they prevented Jamaica from again falling into 
 the hands of the Spaniards after it had been taken 
 and occupied by the English :f and they are said to 
 have even meditated at one time the establishment 
 of an independent state in the West Indies. 
 
 It may be added that the monopoly of the trade 
 with extensive dependencies is likely to produce, not 
 merely systematic smuggling and piracy, but also 
 wars with foreign countries. It is well known that 
 jealousies respecting colonial trade led frequently to 
 misunderstandings, and sometimes to wars between 
 
 was always in want of money, requested that lie might be permitted 
 to sell as much as would pay his charges; and this was always 
 granted, though with an appearance of great diflSculty. This farce 
 was necessary, that the governor or his agents might safely dispose 
 in public of what they had previously bought in secret ; as it would 
 always be taken for granted, that what they sold could be no other 
 than the goods that were allowed to be bought. In this manner 
 were the greatest cargoes disposed of." — B. xiv. (vol. iv. p. 338. 
 Engl. Transl.) 
 
 * " Par quels moyens les metropoles pourront-elles empecher de 
 deux milles lieues une contrebande a laquelle les colonies ont autant 
 d'interet que les Strangers? Elles n'y re ussiront point ; si elles y 
 pouvoient reussir, ce ne seroit que par des d^penses im menses 
 qui surpasseroient tout le profit qu'elles croiroient tirer de leur 
 colonies, et dont tout le fruit seroit d'aliener I'esprit des colons etde 
 les rendre ennemis de la m^tropole. La contrebande se fera bientot 
 a mainarmee." — Turgot, Sur les^Suites de la Querelle entre I'Angle- 
 terre et ses Colonies, CEuvres, tom. viii. p. 450. 
 
 t Long's Jamaica, vol. i. p. 300. 
 
 q2 
 
228 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 the principal European states. The Spanish war which 
 hegan in 1738, was, as Adam Smith remarks, princi- 
 pally a colony quarrel, its main object having been to 
 prevent the search of the colony ships, which carried 
 on a contraband trade with the Spanish main * 
 
 In consequence of the numerous and weighty 
 objections to the monopoly of the trade of its de- 
 pendencies by the dominant country, and of the 
 difficulties of enforcing such monopoly, the system has 
 now been to a considerable extent abandoned, espe- 
 cially by England, whose commercial dependencies 
 exceed those of all other countries put together.f 
 
 * Wealth of Nations, b. iv. c. 7, (vol. ii. j>. 442). Turgot even an- 
 ticipates that the independence of the Anglo-American colonies 
 will so far diminish the commercial jealousy of nations as to remove 
 this prolific cause of wars:—" Sage et heureuse ]a nation," he says, 
 " qui la premiere saura plier sa politique aux circonstances nouvelles, 
 qui consentira a ne voir dans ses colonies que des provinces alliees, 
 et non plus sujettf s de la metropole ! Sage et heureuse la nation 
 qui la premiere sera convaincue, que toute la politique, en fait de 
 commerce, consiste a employer toutes ses terres de la maniere la 
 plus avantageuse pour ce proprietaire des terres, tous les bras de la 
 maniere la plus utile pour I'individu qui travaille, c'est a-dire, de la 
 maniere dont chacun, guide par son interet, les employera, si on le 
 laisse faire, et que tout le reste n'est qu'illusion et vanite. Lorsque 
 la separation totale de I'Amerique aura force tout le monde de re- 
 connoitre cette verity, et corrige les nations Europeennes de la 
 jalousie de commerce, il existera parmi les hommes une grande 
 cause de guerre de moins ; et il est bien difficile de ne pas desirer 
 un evenement qui doit faire ce bien au genre-humain." — (Euvres, 
 torn. viii. p. 460. Unhappily, Turgot's philanthropic anticipations 
 have not been verified. The prejudices, on which the commercial 
 jealousy of nations is founded, are too general, and too deeply rooted, 
 to yield to the evidence afforded by the independence of the Ameri- 
 can colonies. 
 
 t ** After all the unjust attempts of every country in Europe to 
 engross to itself the whole advantage of the trade of its own colonies, 
 no country has yet been able to engross to itself anything but the 
 expense of supporting in time of peace, and defending in time of 
 
VI.] FROM A DEPENDENCY. 229 
 
 England has, of late years, even gone to the opposite 
 extreme, and has sacrificed its own commercial in- 
 terests to the supposed interests of some of its de- 
 pendencies, — as, for example, by imposing lower 
 duties upon Canada timber. Cape of Good Hope 
 wine, and West India sugar, than upon the same 
 commodities being the growth of foreign countries. 
 
 The most plausible opinion respecting the com- 
 mercial advantages derivable from dependencies 
 seems to be, that the dominant country, by securing 
 to itself an unrestricted trade with them, can pre- 
 vent them from establishing the protecting and 
 prohibitory duties which, if they were independent 
 states, they would probably impose upon imports. 
 This advantage is, at present, a substantial one ; but 
 it is an advantage which is founded exclusively on 
 the perverse folly of independent states in imposing 
 prohibitory and protecting duties on one another's 
 productions. Thus the prohibitory duties levied in 
 Great Britain upon foreign grain and other provisions 
 have induced the United States to retaliate against 
 Great Britain by imposing protecting duties upon 
 foreign manufactures. When civilization shall have 
 made sufficient progress to diffuse generally a know- 
 ledge of the few and simple considerations which 
 prove the expediency of freedom of trade, and when, 
 consequently, independent states shall have aban- 
 
 war, the oppressive authority which it assumes over them. The in- 
 conveniences resulting from the possession of its colonies every 
 country has engrossed to itself completely. The advantages result- 
 ing from Iheir trade it has been obliged to share with many other 
 countries."— Smith's Wealth of Nations, b. iv c. 7. 
 
230 ADVANTAGES OF A DOMINANT COUNTRY [CII. 
 
 doned their present anti-commercial policy, the pos- 
 session of dependencies will no longer produce the ad- 
 vantage in question. The advantage consists in the 
 possession of a specific against the evils arising from 
 an erroneous system of policy. Whenever the errors 
 of the policy shall be generally perceived, and the 
 system shall be exploded, the specific against its evil 
 effects will be valueless. 
 
 The expectation that civilized nations may be- 
 come, in no long time, sufficiently enlightened to 
 understand the advantages of free trade is not 
 visionary. Even at present a progress towards a 
 less restrictive system of commerce is visible over the 
 whole civilized world. Protecting duties between 
 different parts of a country immediately subject to 
 the same government are now generally abandoned. 
 Yet Turgot's measure for permitting a free trade in 
 grain betv^^een the different provinces of France 
 caused an insurrection in 1775 ; the corn trade 
 between Ireland and England was first opened by 
 Lord Grenville's administration in 1806 ; and the 
 remaining protecting duties between the same two 
 countries were not removed till 1823. The prin- 
 ciple of a free commercial intercourse has been ex- 
 tended by the Prussian league to a certain number 
 of neighbouring independent states. And although 
 every nation still asserts the expediency of duties 
 intended for the protection (as it is falsely styled) of 
 native industry and commerce, and not for the levy- 
 ing of a revenue for the government, yet they all 
 show a disposition to diminish the number and 
 
VI.] FROM A DEPENDENCY. 231 
 
 rigour of the prohibitions and restrictions by which 
 this so-called protection is afforded. Thus slow and 
 painful are the advances of human reason, made, as 
 it were, by groping in the dark, and retarded at 
 every step by the opposition of short-sighted 
 interest, the listlessness of routine, and the want 
 of confidence in theoretical truths ! If, however, 
 the governments of civilized nations could once 
 acquire so much reliance on the moderation and 
 enlightenment of the governments of other civilized 
 nations as to expect that the latter would allow 
 an unrestricted trade with their own subjects, the 
 motive for the acquisition and possession of de- 
 pendencies, which is founded on the assumed folly 
 of all governments respecting commercial intercourse, 
 would no longer exist. 
 
 It may be added that, if a state of dependence 
 checks the progress of a community in wealth and 
 prosperity, the consequent limitation of its demand 
 for imported commodities will more than compensate 
 the advantages which the dominant country can 
 derive from being able to regulate its commercial 
 relations with the dependency. It is scarcely pos- 
 sible to conceive commercial prohibitions carried so 
 far in the United States as not to permit a larger 
 and more profitable trade with England than they 
 would have carried on with her if they had remained 
 English dependencies. 
 
 4. Another advantao:e which a dominant country 4. Facin- 
 
 . ° II- tiesafforded 
 
 may derive from its supremacy over a dependency is, by depen- 
 dencies to 
 
232 ADVANTAGES OF A DOMINANT COUNTRY FCH. 
 
 L. 
 
 the domi- that the latter may furnish a field where the inha- 
 
 nant coun- , 
 
 try for the bitaiits of the former may find advantao^eous employ- 
 emigration ri 1 c • 
 ofitssur- ment for themselves or profitable investments for 
 
 pluspopu- 
 
 iation,and their Capital. 
 
 vantageous With respect to public offices in dependencies, in 
 ^nt"(ffits the gift of the supreme government, it may be 
 ^^^^ ' remarked that the number of them can scarcely 
 be sufficiently large to form an important re- 
 source to the people of the dominant country, 
 although they may be convenient to its govern- 
 ment as a source of patronage. ]\Ioreover, it is 
 desirable in general (as will be shown hereafter) 
 that none but a few of the principal government 
 officers in a dependency should be natives of the 
 dominant country. Even if this be denied, it will 
 scarcely be maintained that a country ought to be 
 kept in a state of dependence merely for the profit of 
 the few natives of the dominant state who may be 
 employed in governing it. 
 
 A more solid and general advantage, which the 
 people of a dominant country may derive from the 
 possession of a dependency, consists in the facilities 
 for emigration and for the acquisition and cultiva- 
 tion of land which it may affi)rd to them. It is, 
 however, important for our present purpose to con- 
 sider whether this advantage arises from the settle- 
 ment being a dependency, or would not arise 
 although it were independent. 
 
 It has been already remarked, that a colony may 
 be independent from its first foundation ; and that 
 
VI.] FROM A DEPENDENCY. 233 
 
 such was the case with the Greek colonies, whose 
 growth was, perhaps, more rapid and vigorous than 
 that of any other colonies in ancient or modern 
 times. The Anglo-American colonies, which were 
 partly founded in order to afford employment for 
 the superfluous labour and capital of the mother- 
 country, were, as has been already stated, nearly 
 independent, and derived little benefit from the few 
 instances in which the supremacy of the mother- 
 country was exercised over them. A body of emi- 
 grants may, therefore, found a new colony, which, by 
 receiving fresh supplies of settlers from the mother- 
 country, may gradually become a flourishing com- 
 munity, although its government be independent 
 from the beginning. 
 
 The system of defraying the expenses of emi- 
 grants from the proceeds of the sale of public lands 
 in the colony* does not necessarily suppose that the 
 new settlement is a dependency of the country 
 which sends out the emigrants. If it were ad- 
 vantageous for a new settlement to employ a por- 
 tion of its public revenues (whether arising from 
 the sale of lands or from any other source) in pro- 
 curing immigrants, its government would naturally 
 devote a portion of its revenues to this purpose, 
 whether the settlement were independent or de- 
 pendent, f 
 
 * For an account of this system, see the Edinburgh Review, vol. 
 Ixxi. p. 517. 
 t It is worthy of consideration, whether, in founding new colo- 
 
234 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 It must be admitted that distant territories in a 
 state of dependence would be colonized more advan- 
 tageously than if they were independent, assuming 
 that the government of the mother-country exer- 
 cised a judicious control over their colonization. In 
 modern times, however, the success of dependent 
 colonies seems to have been owing rather to the en- 
 terprise and industry of the colonists themselves than 
 to any assistance which they have received from the 
 mother-country, though the political dependence of 
 some of them may perhaps have been necessary to 
 their security during their infancy. 
 
 On reviewing the history of the Greek colonies, 
 the conquests of Alexander and of the Romans, and 
 the settlements of the modern European nations in 
 Asia, Africa, America, and Australia, it will be seen 
 that the advancement of mankind is to be expected 
 rather from the diffusion of civilized nations than 
 from the improvement of barbarous or half-civilized 
 tribes. The promotion of successful colonization is, 
 therefore, one of the best means of advancing and 
 diffusing civilization, and raising the general condi- 
 tion of mankind ; and whoever can devise or carry 
 
 nies, the English government might not try the system of granting 
 the J and, not in perpetuity, but only for a term of years ; upon|the 
 understanding that, at the expiration of the term, the land would be 
 granted again, for a similar term, at the market price. The rents 
 of the lands thus granted might in time afford a revenue which 
 v.'ould enable the local government to defray its expenses without 
 resorting to taxation direct or indirect; and as; the experiment 
 would be tried in a country in which the land had not been appro- 
 priated, it would not disturb existing rights and interests. 
 
VI.] FROM A DEPENDENCY. 235 
 
 into execution any effectual means for facilitating 
 and improving it, is amongst the greatest benefactors 
 of his race. But there is nothing in the colonial 
 relation which implies that the colony must be a 
 dependency of the mother-country ; nor generally is 
 it expedient that such a relation should exist, even 
 in the case of a nevrly founded settlement. 
 
 Land in a dependency is sometimes purchased by 
 a native of the dominant state, who, without emi- 
 grating to the dependency, furnishes the capital 
 necessary for the cultivation of the land, and em- 
 ploys a resident agent to superintend it. The chief 
 part of the English West India Islands is owned 
 by proprietors who reside in England ; and the same 
 is likewise the case with some parts of the cultivated 
 districts of Australia. This facility might not exist 
 if the settlement were an independent state, and its 
 government, following the example of many other 
 independent states, prohibited the acquisition of 
 land by aliens.* 
 
 It may be remarked generally, that the benefit of 
 dependencies to the dominant country in promoting 
 its trade, and affording facilities for the emigration 
 of its surplus population, arises from the exclusive 
 and anti-social policy to which independent states 
 have been led by a mistaken view of their own 
 interests. It being assumed that every dependency 
 
 * This seems to be the principal advantage which a dominant 
 country derives from dependencies, according to the view of M. de 
 Pradt in the work above cited :— "Les colonies,*' he there says, "ne 
 sont que des fermes de I'Europe."— Tom. iii. p. 368. 
 
236 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 would, if it became independent, adopt this policy, 
 tlie evils of dependence are inflicted upon it for the 
 purpose of securing to the dominant state advantages 
 which the latter would possess in an equal or greater 
 degree if the dependency became independent and 
 were wisely governed. 
 5. Trans- 5. Anothcr advantage which a dominant country 
 con^ictTto i^^y derive from its supremacy over a dependency 
 dencyr" cousists in employing it at a place to which con- 
 victed criminals may be transported. 
 
 The practice of sending individual criminals to 
 islands in the Mediterranean was employed by the 
 Romans; and Tacitus states that, under the Em- 
 peror Claudius, several thousand Jews, whom the 
 Roman government wished to remove from Rome, 
 were deported to the unhealthy island of Sardinia.* 
 Some convicts were likewise sent from time to time 
 by the Spanish and Portuguese governments to their 
 American possessions. 
 
 But England was the first country which sys- 
 tematically used her dependencies as places for the 
 reception and punishment of convicts. The trans- 
 portation of convicts from England to the North 
 American colonies, having been begun in the reign 
 of Charles II., received a more regular and legal 
 form in the early part of the following century, and 
 was continued until those colonies became inde- 
 pendent. In consequence of the loss of the colonies 
 
 * Ann. II. 8ii. See Heyne's Essay, Comparatur deportatio in 
 Novam Cambriam cum deportatione Romanorum inins ulam, Opus- 
 cula, vol. iv. p. 268. 
 
_t US, 
 
 ^^^ OF THE 
 
 VI.] FROM A dependency! "U Ml I V E^'S I T Y 
 
 to which convicts were usually trans^^feft/F^n^vv^^^^ 
 settlement, intended expressly for the reception and 
 punishment of convicts, and thence styled a penal 
 settlement, was founded in 1788, (only six years 
 after the signing of the peace of Paris,) in Australia. 
 
 The transportation of convicts to the North 
 American plantations was probably suggested by the 
 practice of voluntary emigrants, who were unable 
 to defray the expenses of their passage from Eng- 
 land, obtaining an advance from the planter, and 
 redeeming the loans so advanced by working for 
 him for a specified time, at a low rate of wages. It 
 was found that the government might save the ex- 
 pense of maintaining convicts by selling them as 
 slaves for a term of years, or for life, to a Virginia 
 or Maryland planter. "^ It appears, however, that at 
 this time the working of the system of transport- 
 ation depended solely upon the interests of the pur- 
 chasers of convict labour, and that there was no 
 inspection of the convicts by any government autho- 
 rity after they had landed in the colony. Accord- 
 ingly, any convict who had the means of paying 
 to the planter the price of his services, was free from 
 the moment of his landing. 
 
 The transportation to the Australian settlements 
 has been regulated by severer rules. Since the 
 
 * See the curious account in Roger North's Life of the Lord 
 
 Keeper Guildford, vol. ii. p. 24, of the mayor and aldermen of 
 
 Bristol selling the persons whom they sentenced to transportation 
 to America. 
 
238 ADVANTAGES OF A DOMINANT COUNTRY [CH. 
 
 punishment of convicts was the main purpose for 
 which the colony was founded, all the arrangements 
 of the local government were made with reference 
 to it. Moreover, every convict who arrived in the 
 colony was suhjected, whatever might be his pecu- 
 niary means or his former station in society, to some 
 appearance of punishment, and was, at all events, 
 prevented from leaving the colony. 
 
 The purpose of this Essay does not require me to 
 give a detailed statement of the mode of managing 
 the transported convicts which has been adopted 
 in the Australian colonies, or of the changes which 
 have been recently made in it. This subject has 
 been exhausted by the reports of parliamentary 
 committees, (particularly by that of a committee of 
 the House of Commons which sat in 1837,) and by 
 the labours of Archbishop Whately and other writers. 
 
 In consequence of the evidence thus obtained, 
 the disadvantages of transportation, both to the 
 dominant country and the dependency, have been 
 shown by such convincing proofs, that the number 
 of transported convicts has lately been diminished ; 
 and the system would probably have been abandoned 
 altogether before this time, if its abandonment would 
 not lead to the necessity of building penitentiaries 
 in England. It is, however, to be hoped that this 
 improvement will be effected before many years shall 
 elapse. 
 
 It is possible that transportation might be use- 
 fully employed in combination with efficient peni- 
 
VI.] FROM A DEPENDENCY. 239 
 
 tentiaries, as a means of providing for convicts wlio 
 have completed the terms of their imprisonment. 
 It happens frequently in a thickly peopled country, 
 where employment is not easily obtained, that a con- 
 vict recently discharged from prison is incapable of 
 earning his livelihood by his own industry, and 
 that the circumstances in which he is placed almost 
 force him back into a life of crime. Now if a con- 
 vict were, upon his discharge from prison, furnished 
 with the means of emigrating to a distant colony, 
 he might, if he were willing -to accept the offer, be 
 placed in circumstances which would enable him to 
 lead a life of honest industry. 
 
 6. The principal advantages which a country may 6. Glory of 
 derive from the possession of dependencies have now dependen- 
 been enumerated and severally examined. There 
 are, however, supposed advantages flowing from the 
 possession of dependencies, which are expressed in 
 terms so general and vague, that they cannot be 
 referred to any determinate head. Such, for ex- 
 ample, is the glory which a country is supposed to 
 derive from an extensive colonial empire. 
 
 We will merely remark upon this imagined ad- 
 vantage, that a nation derives no true glory from 
 any possession which produces no assignable ad- 
 vantage to itself or to other communities. If a 
 country possesses a dependency from which it de- 
 rives no public revenue, no military or naval 
 strength, and no commercial advantages or facilities 
 for emigration which it would not equally enjoy 
 
240 ADVANTAGES OF A DOMINANT COUNTRY, ETC. [CH. 
 
 though the dependency were independent, and if, 
 moreover, the dependency suffers the evils which (as 
 we shall show hereafter*) are the almost inevitable 
 consequences of its political condition, such a posses- 
 sion cannot justly be called glorious. 
 
 * See below, ch. IX. 
 
VII.] ADVANTAGES TO A DEPENDENCY. 241 
 
 CHAPTER VII. 
 
 Advantages derived by a Dependency from its Dependence on the 
 Dominant Country. 
 
 We proceed next to consider the advantages which 
 a dependency may derive from its dependence on the 
 dominant community. 
 
 The most obvious of these advantages is pro- i. Protec- 
 tection ; since the relation between the two com- dominant 
 munities is owing to the comparative strength of ^^'^^ ^* 
 the one and the comparative weakness of the other, 
 and it is the interest of the stronger community to 
 protect the weaker against foreign aggression. The 
 dependency can hardly fail to derive great benefit 
 from the protection thus afforded to it, if it be 
 not required by the dominant country to contribute 
 to its own military and naval defence, or the general 
 military and naval defence of the empire. Even, 
 however, if it should be required to contribute to 
 those purposes, the benefits are considerable in spite 
 of the price which it pays for them. If it were 
 independent, its feebleness would expose it to fre- 
 quent aggressions from other independent states; 
 but in consequence of the protection received by it 
 from the more powerful community on which it is 
 dependent, it is comparatively secure from that 
 great evil,^though subject to the evils inherent in 
 its dependent condition. 
 
242 ADVANTAGES TO A DEPENDENCY [CH. 
 
 The benefit just adverted to is the greatest, when 
 the need of protection is the greatest ; in other 
 words, when the dependent community is in the 
 feeblest and most helpless condition. Accordingly, 
 a dependent colony recently founded, if it be exposed 
 to attacks from other civilized nations, or from 
 neighbouring tribes of barbarians, derives much 
 advantage from its dependence upon its mother- 
 country, provided that the mother-country be able 
 and willing to afford it the protection of which it 
 is in need. But even if a newly founded colony 
 should be exposed to this danger, the dominant 
 country may not always be able or willing to afford 
 it timely protection ; as is proved by the unhappy 
 fate of the French Huguenot colony in Florida, 
 which was extirpated by the Spaniards soon after 
 its foundation, and nearly all the members of it 
 massacred.^ 
 
 We may here remark that the members of a 
 dependent community which is too weak to stand by 
 itself, and whose territory possesses advantages ren- 
 dering it an object of desire to independent states, 
 ought to guard carefully against the natural error 
 of supposing that they will benefit by a change of 
 masters. They ought to remember constantly that 
 they are condemned by natural causes to a state of 
 dependence ; that the evils which they suffer under 
 their actual rulers may be inseparable from that 
 condition ; and that, though those evils may be 
 partly imputable to the misconduct of their actual 
 * See Bancroft's History of the United States, vol. i. ch. 2. 
 
VII.] FROM THE DOMINANT COUNTRY. 243 
 
 rulers, a revolt or other defection might transfer 
 them to worse masters, after it had exposed them to 
 the evils which are incidental to a political revo- 
 lution. 
 
 Another advantage which a dependency may de- 2. Pecu- 
 
 r • 1 -I • • • . , niaryassist- 
 
 rive irom its dependence, is pecuniary assistance, to a ance by thp 
 greater or less extent, from the dominant country, comi'tiy? 
 For, as a weak community benefits by its dependence 
 on a stronger one, so a poor community frequently 
 benefits by its dependence on a country richer than 
 itself. In ancient times dependencies were always tri- 
 butary, and the dominant state never expended upon 
 them any funds derived from its own immediate re- 
 sources. The great military roads and other works 
 executed by the Romans in the provinces were pro- 
 bably made in great measure at the cost of the pro- 
 vinces themselves, though the conception and the exe- 
 cution of them were due to the Romans. In modern 
 times, however, a dependency has sometimes received 
 pecuniary assistance from the dominant country. 
 Thus the English parliament has voted large sums 
 of money for the making of the Rideau canal in 
 Canada. A considerable sum of money was given 
 by England for the purpose of defraying the ex- 
 penses incurred by the local government of Malta 
 during the prevalence of the plague in that island 
 in the years 1813-14. Much money has been laid 
 out by England in constructing fortifications in 
 some of its dependencies ; these fortifications, how- 
 ever, were rather intended for the benefit of the 
 
 r2 , 
 
244 ADVANTAGES TO A DEPENDENCY [CH. 
 
 dominant country than for that of the dependencies 
 in which they were raised. The expenditure of 
 England in the penal settlements of Australia must 
 also be considered as intended for the benefit of 
 the mother-country, although the settlements derive 
 a great incidental benefit from it. The average 
 annual expenditure of the French government upon 
 Algiers has considerably exceeded three millions 
 sterling ; the chief portion of this expenditure is, 
 however, for military purposes, and will therefore 
 confer no lasting benefit upon the dependency. 
 
 3. Com- As the interests of a dependency are, in its ex- 
 
 mercial ad- . , , . , , • n ^ 
 
 vantages, tcmal Commercial relations, usually sacrificed to 
 those of the dominant state, the chief commercial 
 advantage which it can derive from its dependence 
 is the protection afforded to its trade by the domi- 
 nant country against foreign aggression. Moreover, 
 goods imported into the dominant country from the 
 dependency are sometimes admitted into it upon 
 conditions more favourable than those upon which 
 goods imported into it from other places are ad- 
 mitted.* 
 
 4. Advan- The cvils suffcrcd by a dependency, from the in- 
 dmes aris- difference of the dominant country about its inter- 
 depen- ^ ^sts, will bc particularly considered in a following 
 the"indif-™ chapter.f But we may remark appropriately in the 
 ^i^rdomt present place, that this indifference is sometimes 
 "A'^lbour advantageous to a dependency, or at least to the 
 Its interests, \yYiUi of its population. For example, let it be sup- 
 
 * Above, p. 229. t Chap. IX. 
 
/ V- or THB ^^ ^ 
 
 ' (njinvERSiTy 
 
 VII.] FROM THE DOMINANT COUNTOY^ 6tkb -«< Wy* 
 
 posed that the influence of the wealthier irmabitemtJr"''^ 
 of the dependency gives them an ascendency in the 
 local government ; and that the same influence 
 would give them the government of the dependency 
 in the event of its becoming an independent state. 
 Let it be supposed, moreover, that some institution 
 of the dependency is oppressive to the majority of 
 the inhabitants ; but that the interests or prejudices 
 of the influential and ascendent minority strongly 
 incline them to maintain it. Now if the dependency 
 were independent, its supreme government would 
 perpetuate the institution indefinitely. In conse- 
 quence, however, of its dependence, there is a 
 chance that its supreme government may abolish 
 the institution spontaneously, or may be forced to 
 the measure by the public of the dominant country ; 
 for, as the inhabitants of the dominant country are 
 generally indiiferent about the concerns of the de- 
 pendency, so are they naturally free from the in- 
 terests and prejudices which lead the minority in 
 the dependency to oppress the majority of their 
 countrymen. Thus, if the British West Indies had 
 been independent, the institution of slavery would 
 have been perpetuated in them by their slave-owning 
 legislatures; as appears from the persistence with 
 which it is maintained in the slave-owning states 
 of the American Union. But the great majority of 
 the British people, having no personal interest in 
 maintaining it, naturally felt with the slaves and 
 against their masters ; and the British parliament, 
 determined by the opinion of that impartial public. 
 
246 ADVANTAGES TO A DEPENDENCY. [CH. 
 
 abolished the institution in those islands notwith- 
 standing the opposition of the local legislatures * 
 
 * This result of the influence of the supreme government upon 
 a dependency was thoroughly understood by Sir Samuel Romilly, 
 and is clearly indicated by him in the remarks on the Slave Registry 
 Bill, which are contained in his Parliamentary Diary. — On the 13th 
 of June, 1815, Mr. Wilberforce moved in the House of Commons for 
 leave to bring in a Bill for establishing a registry of slaves in the 
 plantations. The motion was opposed by several persons who had 
 an interest in West India property. These persons (says Sir S. 
 Romilly) argued, " that the attempt to carry such a measure was 
 likely to produce very alarming consequences; that the British 
 parliament's right to legislate as to the internal concerns of the 
 colonies was disputed, and such an Act as this could not but excite 
 the greatest jealousy and alarm on their part ; and they hinted that 
 it might produce open resistance." Sir S. Romilly himself spoke, 
 and "insisted upon the right of the British parliament to make 
 such a law ; and he mentioned various instances of Acts passed to 
 regulate the internal affairs of the islands ; and showed by many 
 instances how little was to be expected for the protection of the 
 slaves, and amelioration of their condition from the colonial legis- 
 latures." Lord Castlereagh, in suggesting that the introduction of 
 the Bill should be postponed, said that " the right of the British 
 parliament to pass such a law could not be disputed ; but it was very 
 inexpedient to do it, if the colonial legislatures could be prevailed 
 on to pass such Acts themselves." Sir S. Romilly adds the follow- 
 ing remark : " A great deal has been gained by this debate. It is 
 of great importance to put an end to the notion entertained, or at 
 least proposed, by the planters, that their colonial legislatures have 
 the sole and exclusive right to make laws to regulate their own in- 
 ternal concerns." — Memoirs of the Life of Sir S. Romilly, vol. ii. p. 
 180 — 1. See some further remarks in a similar strain on the same 
 subject, Diary, June 19, ib. pp. 253—8 ; and April 22, 1818, ib. pp. 
 337—43. In p. 341, he says of a debate in the House of Commons 
 on slavery in the English West India islands : " I discussed at some 
 length this pretension of the West Indians to the exclusive right of 
 making laws for their own government, and for the regulation of 
 their slaves ; and showed how contrary it was to the practice of past 
 times, and how inconsistent with the state and condition of the 
 great mass of the population of the islands. It has never, indeed, 
 been without indignation that I have heard these boasted claims of 
 independence, and this vindication of pohtical rights on the part of 
 the West Indians." 
 
VIII.] DISADVANTAGES OF A DEPENDENCY. 247 
 
 CHAPTER VIII. 
 
 Disadvantages arising to tiie Dominant Country from the possession 
 of a Dependency. 
 
 Having considered the advantages which arise to Disadvan- 
 the dominant country and the dependency from the ing^toThe" 
 relation between them, I proceed to consider the co^t^"^ 
 disadvantages which may arise to the former from ^''''°' '^^ 
 
 the same cause. ^nd^. 
 
 1 . It has been shown in a previous chapter that the Expens 
 
 ive- 
 
 dominant country can rarely succeed in compelling Se^nden! 
 or inducing a dependency to contribute to the ex- dominant 
 penses of the supreme government ; and, conse- ^°""*'y- 
 quently, that the dominant country generally defrays 
 from its own resources the expenses caused by the 
 protection of the dependency in peace and in war.* 
 These expenses are a disadvantage to the dominant 
 country, even if they should be more than com- 
 pensated by advantages which it derives from the 
 possession of the dependency. It may be added, 
 that the possession of a dependency often proves a 
 powerful incentive to improvident and useless expen- 
 diture on the part of the supreme government ; as is 
 shown by the fortifications which have been raised 
 in some of the English dependencies, and the pro- 
 digalities of the French government at Algiers. 
 
 2. In consequence of the prevailing errors respect- commer- 
 
 ^. . , cial restric- 
 
 * Above, p. 212—9. 
 
248 DISADVANTAGES TO THE DOMINANT [CH. 
 
 tions caused ing the nature of the advantages arising from trade, 
 pendency, it is usual for the dominant country to grant com- 
 mercial privileges, by discriminating duties and 
 other similar regulations, to its dependencies. Thus 
 the duties upon timber, wines, and sugar imported 
 into England from Canada, the Cape of Good Hope, 
 and the East and West Indies are lower than the 
 duties upon similar commodities imported into 
 England from foreign countries. But one effect of 
 such privileges is, that the dominant country pur- 
 chases the commodities imported from its depen- 
 dencies at higher prices than it would purchase 
 commodities of the same sorts imported from other 
 countries, if the privileges did not exist. Moreover, 
 as commercial privileges granted by the dominant 
 st^te to its dependencies imply corresponding pro- 
 hibitions against other independent states, they 
 provoke the governments of those states to foster 
 the trade and manufactures of their own dominions 
 by granting similar privileges to their own trading 
 and manufacturing subjects. They, therefore, pre- 
 vent that extensive commercial intercourse between 
 independent communities, which would not only 
 secure to each of them the greatest possible advan- 
 tages of a merely economical nature, but would bind 
 them together in mutual amity by the strong tie of 
 common interest. 
 Wars 3. Another evil arising from the possession of 
 
 de^nden^ dependencies is, that they tend to involve the domi- 
 nant country in wars. A dependency may be 
 situated at a great distance from the dominant 
 
 cies. 
 
VIII.] COUNTRY FROM THE DEPENDENCY. 249 
 
 country ; or it may have a long and vulnerable 
 frontier confining on the territories of other in- 
 dependent states. For these and other reasons it 
 often happens that a dependency is difficult of 
 defence, and that foreign governments are therefore 
 tempted to invade it. 
 
 The probability that the possession of depen- 
 dencies will engender wars is further increased by 
 the jealousies which the commercial policy of the 
 dominant country towards its dependencies pro- 
 duces. The alienation between independent states, 
 arising from commercial jealousies of this sort, has 
 just been pointed out. It has also been shown in a 
 former chapter that Adam Smith considers disputes 
 about colonial trade as one of the most prolific 
 sources of war in modern times ; and that Turgot 
 expected that the independence of the American 
 colonies would diminish the causes which disturb 
 the peace of the world.* 
 
 It may be said on the other hand, that the division 
 of the civilized world into a few extensive empires, 
 each consisting of a dominant country and its de- 
 pendencies, would be more favourable to the pre- 
 servation of peace than the division of the same 
 region into independent states. It would ap- 
 pear from the perpetual hostilities between the re- 
 publics of ancient Greece and Italy, and between 
 those of Italy in the middle ages, that a multiplicity 
 of independent and small states multiplies the 
 chances of war. It is certain, moreover, that the 
 
 * Above, p. 228. 
 
250 DISADVANTAGES TO THE DOMINANT [CH. 
 
 mutual wars of the numerous independent states 
 subdued by the Roman arms were extinguished by 
 their common subjection to the imperial city ; and 
 that the peace of the civilized world was commonly 
 preserved by the imperial government, so long as 
 the dependence of the provinces was not substan- 
 tially impaired.* 
 
 It may be replied, however, that the formation of 
 extensive empires is not favourable to the preserva- 
 tion of peace, inasmuch as the subjection of depen- 
 dencies to the dominant country is liable to frequent 
 disturbance. If the strength of the dominant 
 country is not overwhelming, and if (as frequently 
 happens) the people of the dependency are dissatisfied 
 with its government, the latter will probably at- 
 tempt to throw off their dependence ; and in conse- 
 quence of such attempts, wars are likely to arise 
 between the dominant country and the dependency, 
 or between the dominant country and those inde- 
 pendent states whose governments suppose them- 
 selves interested in wresting the dependency from 
 her. We have remarked in a preceding chapter 
 that an ancient state, engaging in a foreign war, 
 often began the contest with striking at the con- 
 nexion between its enemies and their dependencies. f 
 The same policy determined the government of 
 France to interfere in the war between England 
 and her American colonies ; and it is said that 
 
 * See the passage of Claudian on the pacific influence of the 
 Roman empire, cited above, p. 128, note * 
 t Above, p. 111. note *. 
 
VIII.] COUNTRY FROM THE DEPENDENCY. 251 
 
 England in the last century meditated an attempt 
 to detach the Spanish colonies of America from 
 Spain. 
 
 The only effectual security against unjust wars 
 between independent communities is to be found in 
 an improved international morality, and in the ge- 
 neral existence of a conviction that the interest of 
 such communities is not promoted by a system of 
 mutual aggression and rapine. So long as indepen- 
 dent states think it their interest to attack weak 
 communities, for the purpose of enlarging their 
 empire, and they are free from any moral restraint 
 which might check them in the pursuit of this sup- 
 posed interest, unjust wars between civilized nations 
 must take place, although many small communities 
 should be kept in a state of dependence. And if 
 the governments of independent states should become 
 sufficiently wise to abstain voluntarily from aggres- 
 sions of this sort, the existence of numerous inde- 
 pendent communities would not produce war. 
 
 4. Lastly, we may reckon amongst the disadvan- Political 
 
 . /• 1 corruption 
 
 tages arising to the dominant country irom the caused by 
 
 „,,.,., dependen- 
 
 possession oi dependencies, that it tends to generate cies. 
 or extend a system of official patronage in the 
 dominant country, and thus to lower the standard 
 of its political morality. 
 
252 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 CHAPTER IX. 
 
 Disadvantages arising to a Dependency from its Dependence on the 
 Dominant Country. 
 
 Thedisad- HAVING considered the disadvantages which may 
 questiw! "^ arise to the dominant country from the possession of 
 8a^"or na- a dependency, I shall consider such of the disad- 
 sequences' vantagcs affccting a dependency, as are necessary or 
 enct?^""^" natural consequences of its dependence on the domi- 
 nant country. Since the disadvantages are necessary 
 or natural consequences of dependence, all depen- 
 dencies are subjected or exposed to them. It must 
 be remarked, however, that they affect the inha- 
 bitants of different dependencies in different degrees ; 
 and where they are powerfully counteracted by 
 special causes inherent in the special position and 
 circumstances of a dependency, their pressure may 
 be too gentle to affect its inhabitants seriously. 
 Thedisad- Bcforc wc procccd to a particular examination 
 question of any of the disadvantages in question, we will 
 cipaify""^ advert to the source from which they principally 
 ignm-ance arisc ; viz. the natural ignorance and indifference 
 fe"enceof of thc dominant country about the position and 
 nantcTun- intcrcsts of the dependency. The dependency is 
 the pSon necessarily separated from the dominant state by the 
 reste'ofthe distinctness of its immediate government;* and 
 dependen- Q^j^g ^q (^^ijg ncccssary Separation, the inhabitants 
 of the dominant state are naturally more indifferent 
 
 * Above, chap. V. 
 
IX.] FROM ITS DEPENDENCE. 253 
 
 and ignorant about the concerns of the dependency 
 than those of any district of their own country. 
 But the ignorance and indifference consequent upon 
 this necessary separation are often increased by 
 accidental causes which estrange the dominant 
 country from the dependency. It often happens, 
 for example, that the two countries are divided by 
 distance ; or that the dependency is too insignificant 
 and obscure to attract the attention of the dominant 
 country ; or that the inhabitants of the two countries 
 are of different races and speak different languages ; 
 or that their religions, their morals and manners, 
 or their laws and other political institutions, are 
 more or less dissimilar. 
 
 The ignorance of the dominant country about 
 the position, circumstances, and interests of the 
 dependency is productive of numerous evils, some of 
 which we shall hereafter consider in detail. It may 
 be here stated in general terms, that the dominant 
 country, in consequence of this ignorance, often 
 abstains from interfering with the concerns of the 
 dependency where its interference would be expe- 
 dient ; and where it does interfere with the concerns 
 of the dependency, its interference, as not being 
 guided by the requisite knowledge of those concerns, 
 is frequently ill-judged and mischievous. 
 
 The evils arising to the dependency, from the 
 ignorance of the dominant country respecting its 
 concerns^ are enhanced by its indifference. Not 
 only does the dominant country know little of those 
 concerns, but it has little desire to know anything 
 
254 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 of them. Mens sympathies are in general too 
 narrow to comprehend a community which is dis- 
 tinct from their own, although it may be ultimately 
 subject to the same supreme government. Accord- 
 ingly, the maxim that government exists for the 
 benefit of the governed, is generally considered by 
 the immediate subjects of a supreme government as 
 applicable only to themselves ; and it is often pro- 
 claimed openly that dependencies are to be governed, 
 not for their own benefit, but for the benefit of the 
 dominant state. 
 
 Nor are the ignorance and indifference of the 
 dominant country about the concerns of the de- 
 pendency limited to the supreme government. 
 Hence, if any dispute should arise between the 
 dependency and the supreme government, and if 
 the dependency should appeal from the government 
 to the people of the dominant state, it will probably 
 find that it has not appealed to a better informed or 
 more favourable tribunal. On the subject of the 
 dispute, the people of the dominant country can 
 scarcely be so well informed as their government ; 
 and in any struggle for power between their own 
 country and the dependency, they are likely to share 
 all the prejudices of their government, and to be 
 equally misled by a love of dominion and by delusive 
 notions of national dignity. 
 
 As the main obstacles to the good government 
 of a dependency are the ignorance and indifference 
 of the dominant country respecting its affairs, what- 
 ever tends to diminish them is likely to promote its 
 
IX.] FgOM ITS DEPENDENCE. 255 
 
 good government. On this account, newspapers 
 and other periodical writings having a special 
 reference to the affairs of dependencies, and pub- 
 lished in the dominant country, are eminently 
 useful. For the same reason it is the duty of 
 those public departments in the dominant country, 
 which are specially charged with the care of the 
 dependencies, to provide for the publication of 
 statistical and other information respecting their 
 condition, at stated intervals, and in a cheap and 
 commodious form. 
 
 Having stated that the disadvantages affecting a Review of 
 
 J 1 r • "L • J.* • ^1 ^ some of the 
 
 dependency, which are m question m the present aisadvan- 
 chapter, are necessary or natural consequences of its qSion. 
 dependence, and having adverted to the source from 
 which they principally arise, we proceed to consider 
 the nature of some of these disadvantages, in some 
 degree of detail. 
 
 One of these necessary or natural disadvantages peculiar 
 is the peculiar liability of the laws of a dependency the law's of 
 to technical objections. dency^to 
 
 The powers of a subordinate legislature are ol^tction*. 
 expressly or tacitly delegated to it by the supreme 
 government. In order, therefore, to determine 
 whether an act of such legislature has a binding 
 force, it is necessary to look to the nature and 
 extent of the delegation. If the act be not within 
 the scope of the delegation, it is without any binding 
 force, and will be annulled upon application to a 
 competent tribunal. It is difficult to delegate a 
 power of subordinate legislation in terms exactly 
 
256 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 expressing its purpose and extent; but unless this 
 difficult task be perfectly accomplished, the validity 
 of the laws which are made by virtue of the power 
 is always questionable. Consequently, the laws of 
 subordinate legislatures are liable to technical ob- 
 jections from which those of supreme governments 
 are necessarily exempt ; for, as the legislative power 
 of a supreme government is not derived from any 
 political superior, the validity of its laws cannot be 
 questioned for want of authority in the lawgiver. 
 
 As the immediate government of a dependency is 
 a subordinate legislature, its laws, like those of other 
 subordinate legislatures, are liable to the technical 
 objections noticed in the preceding paragraph. But, 
 owing to causes which are peculiar to the legal 
 systems of dependencies, its laws are also liable to 
 technical objections from which those of other 
 subordinate legislatures are exempt. For example, 
 any law of an English dependency (whether colo- 
 nized by Englishmen, or acquired by cession or con- 
 quest) may be impugned as not being consistent with 
 certain fundamental principles to which the laws of 
 an English dependency must, it appears, conform.* 
 The vagueness of the terms in which these fun- 
 damental principles are expressed may afford a 
 plausible ground for objections to the laws of an 
 English dependency, although it should have been 
 colonized by Englishmen, and therefore possesses a 
 legal system closely resembling that of its mother- 
 country; but if the dependency should have been 
 
 * Above, p. 207. 
 
IX.] FROM ITS DEPENDENCE. 257 
 
 acquired by cession or conquest, and its laws there- 
 fore differ in many respects from those of the 
 dominant country, the objection has a much wider, 
 and indeed an almost unlimited application. So 
 again, if the supreme government introduces a large 
 portion of its own law (written and unwritten) into 
 a dependency by a general description, it may be 
 doubted whether any of the rules comprised in the 
 body of law so introduced can be altered by the 
 subordinate without the express permission of the 
 supreme government ; although it may be scarcely 
 possible for the subordinate government to legislate 
 without altering some of them.''*' 
 
 That this liability to objection on technical 
 grounds is a great evil will not be disputed. It is 
 manifest that all attempts to get rid of a law by 
 impugning its validity, rather than by proving its 
 inexpediency, and applying to the legislature to re- 
 peal it, are mischievous. Their mischievousness is 
 owing mainly to the following causes: — 1. Such 
 attempts, being founded on a principle of general 
 application, throw a doubt upon the validity of 
 other laws than those which are directly attacked. 
 2. The annulling of a law has a retroactive ope- 
 ration ; inasmuch as the acts done under it are also 
 annulled: hence, unless the legislature should in- 
 terfere specially, a law is rendered ah initio void, by 
 which people have regulated their conduct, and upon 
 
 * An example of this inconvenience is afforded by the intro- 
 duction of the English ' Criminal Law ' into Canada. See above, 
 p. 208. 
 
258 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 which prudent men have founded reasonable expec- 
 tations. 3. This mode of proceeding is equally 
 applicable to good and to bad laws ; since the defects 
 in the form of the law are wholly unconnected with 
 its practical operation.* 
 
 In general it is desirable that all rules (even 
 though inexpedient) which have been long ac- 
 quiesced in by common usage, and which have been 
 believed to be invested with the legal sanction, 
 should be considered by the courts and by the 
 government to have a binding force, until repealed 
 by a competent authority; and in most countries 
 the courts have acted upon this principle. 
 
 It may be added, that the necessary vagueness of 
 the rules respecting the portion of the law of the 
 mother-country, which is in force in a new colony, 
 (for example, of the rule of the English law, that a 
 new colony acquires as much of the law of England 
 as is suited to its condition,) confers a very extensive 
 power upon the courts of such a dependency, and 
 invests them with legislative rather than judicial 
 functions. It may, moreover, happen that the dis- 
 position of the courts to question the validity of the 
 existing laws may be increased by a rivalry between 
 
 * "Le philosophe qui cherche a reformer une mauvaise loi ne 
 nie pas I'existence de cette loi et n'en conteste pas la validity ; il ne 
 preche point I'insurrection centre elle. II expose ses raisons ; il 
 fait sentir les inconv^niens de cette loi et les avantages qu'on 
 trouveroit k la revoquer. Le caractere de Tanarchiste est tout 
 different. II nie I'existence de la loi ; il en rejette la validity ; il 
 veut exciter les homines a la meconnoitre comme loi, et a se soulever 
 contre son execution." Bentham, Tactique des Ass. Legisl. torn. ii. 
 p. 290. 
 
IX.] FROM ITS DEPENDENCE. 259 
 
 lawyers of the dominant country and native lawyers 
 in the dependency,'* or even by a more ambitious 
 attempt of the judges to supersede the subordinate 
 government, and to get the entire management of 
 the dependency into their own hands. f 
 
 Another of the necessary or natural disadvantages introduc- 
 affecting a dependency, is its liability to an improper laws^ian-^ 
 introduction of the laws, language, or religion of the feT^on^of 
 
 1 • , . the domi- 
 
 dommant country. nant coun- 
 
 The ignorance of the dominant country respect- aJpenden- 
 ing the concerns of the dependency, combined with dueTegard* 
 the habit, common to all nations, of preferring its [j'on^cir-^' 
 own institutions and opinions to those of other com- l^^^^^ ^nd 
 munities, disposes it to dislike the laws, language, ^»^®'^«**»- 
 and religion of the dependency, and to substitute its 
 own for them, without adequate reasons for making 
 the change, and without a due regard to the position, 
 circumstances, and interests of the dependent com- 
 munity. 
 
 The tendency to an improper introduction of the 
 laws of a dominant country into a dependency is 
 so strong that the question as to the extent to 
 which, and the manner in which, the supreme 
 government ought to introduce the laws of the 
 dominant country into the dependency deserves a 
 careful examination. 
 
 According to the rule which must, from the ne- 
 cessity of the case, obtain almost universally, new 
 
 ♦ See Long's Jamaica, vol. i p. 70. 72, 
 
 t See the account of the proceedings of the Supreme Court at 
 Calcutta, in Mill's History of India, b. v. ch. 6. 
 
 s2 
 
260 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 colonists take out with tliem the laws of their 
 mother-country, so far as such laws are suited to 
 the condition of the colony.* The question just 
 stated, therefore, does not arise in the case of a 
 dependency which is a colony of the dominant 
 country ; and it arises only in the case of a de- 
 pendency which has been acquired by treaty or 
 conquest, and has preserved its original laws and 
 institutions, which are different from those of its 
 dominant country .1 
 
 Some of the most important considerations re- 
 specting the transplantation of laws from one 
 to another have been stated by Mr. Bentham in 
 his Traites de Legislation. The following are the 
 two first maxims which he lays down : — " No law 
 ought to be changed, and no custom ought to be 
 abolished, without some special reason." " No cus- 
 tom ought to be changed simply on the ground 
 that it is repugnant to our habits and feelings."J 
 
 These two maxims, however obvious and however 
 important, have frequently been violated in the 
 transplantation of the laws of a dominant country 
 to a dependency. Many laws in dependencies have 
 been changed, not because they produced inconve- 
 nient consequences, but because they differed from 
 the corresponding laws of the dominant country, or 
 because they were inconsistent with opinions which 
 the people of the dependency did not share with the 
 people of the dominant country. 
 
 * Above, p. 190. f Ibid. p. 203. 
 
 t Tom, iii. p 366. 
 
IX.J FROM ITS DEPENDENCE. 261 
 
 In deciding how far the native institutions of a 
 ceded or conquered dependency shall be maintained, 
 and how far the institutions of the dominant country 
 shall be introduced in their stead, the persons con- 
 ducting the government of such a dependency have 
 strong inducements to adopt the latter course. It 
 is far easier to administer laws with which one is 
 familiar than laws which one has to learn by a 
 laborious process of study. It is likewise far easier 
 to carry on the business of government in one's own 
 language than in a foreign language with which 
 one is imperfectly acquainted, or which perhaps one 
 is compelled to learn. INIoreover, it requires a con- 
 siderable sacrifice of self-love, and some magna- 
 nimity, for a ruler to subject himself to the necessity 
 as it were of going to school, and to place himself 
 voluntarily in a situation of inferiority, in respect of 
 knowledge, to the persons whom he is to govern. 
 Whereas, if the opposite system be adopted, the 
 ruler is placed in a situation of almost immeasurable 
 superiority to the natives, inasmuch as he is as far 
 superior to them in knowledge as in power. Fur- 
 thermore, there is the disinterested attachment 
 which most men acquire for the institutions of 
 their native country, partly from being ha])ituated 
 to live under them, and partly from being accus- 
 tomed to hear them extolled and to be told that it 
 is patriotic to admire and love them. Consequently, 
 when we see a native of the dominant country 
 aiming at an injudicious introduction of its institu- 
 tions into a dependency, it ought not to be inferred 
 
262 DISADVANTAGES TO A DEPENDENCY [CH 
 
 that he is actuated solely by a desire of increasing 
 his own power or importance. Many such attempts 
 have been made from a sincere, though mistaken, 
 notion of the intrinsic excellence of the institution, 
 and from a supposition that it was suited to all 
 countries and all states of civilization. The intro- 
 duction of the tenure of land into Hindostan, which 
 is known by the name of the permanent settlement, 
 was prompted by the desire of creating in Hindostan 
 such a body of wealthy landowners as exists in Eng- 
 land ; and though the measure has been most dis- 
 astrous in its consequences, yet there is no doubt 
 that the author of it thought that the state of 
 things which he attempted to introduce would re- 
 generate Hindoo society. In like manner an English, 
 lawyer would naturally, from ancient habit, seek to 
 introduce trial by jury in any dependency where he 
 was employed, however little suited to the circum- 
 stances of the country this mode of trial might be. 
 
 But a government which attempts to change sud- 
 denly the law of a dependency will soon find that 
 it has undertaken a difficult, and, in part, an im- 
 practicable task. 
 
 In the first place, the civil law of a country can 
 hardly be supplanted by a foreign system of juris- 
 prudence without throwing into confusion all titles 
 to property and all rights founded on contracts. 
 The wholesale importation of a foreign system of 
 jurisprudence necessarily creates great confusion in 
 this respect, even if it should be effected by the com- 
 munication of written laws. But the confusion is 
 
IX.] FROM ITS DEPENDENCE. 263 
 
 increased still further, if an attempt should be made 
 to import a body of unwritten law. Law existing in 
 the form of a statute or a code can be transferred 
 from one country to another with certainty, since a 
 precise designation of the law intended to be trans- 
 ferred can be given. Thus (as we have already 
 stated) the act styled the Declaratory Act of the 
 Bahama Islands, determined how much of the statute 
 law of England should be deemed to be in force in 
 those islands, by enumerating the statutes to which 
 it refers.* But unwritten law, which does not exist 
 in a compact or explicit form, and which must be 
 collected from the decisions of courts and from au- 
 thoritative textwriters, cannot be designated with 
 precision, and can be described only by terms of 
 which the import is unfixed and fluctuating. Thus 
 the " criminal law" of England was introduced into 
 Canada in 1774 ; but it is not at all clear (as Lord 
 Durham states in his Report) what is the extent of this 
 phrase. Again, in Canada the French law of evidence 
 obtains in all civil proceedings, with the exception of 
 " commercial cases," to which the English law of 
 evidence is to be applied ; but (as Lord Durham 
 further states) no two lawyers agree in their defini- 
 tion of " commercial cases."'f 
 
 There is, moreover, great difficulty in introducing 
 into any country a foreign system of judicial pro- 
 cedure, and expelling the system established in the 
 practice of the courts. The rules of judicial pro- 
 
 * Above, p. 194. 
 
 t Report on the Affairs of British North America, p. 42. folio ed. 
 
264 DISADVANTAGES TO A DEPENDENCY [CH, 
 
 cedure commonly exist as usages, and not in the 
 form of legislative regulations ; and these usages are 
 mainly preserved among the body of advocates. The 
 advocates may, therefore, be considered as a sort of 
 voluntary auxiliaries to the government, for the pur- 
 pose of administering justice ; so that any change 
 which renders their acquired knowledge useless, 
 must for a time throw serious impediments in the 
 way of the regular conduct of the government. 
 
 In the next place, it is to be remembered that a 
 large part of the habit of obedience to a government 
 rests upon associations with ancient institutions and 
 ancient names ; and that a sudden introduction of 
 foreign laws and usages into a dependency is likely 
 to breed serious discontent, and to embarrass the 
 operations of the government, even if these laws and 
 usages should be intrinsically better than those 
 which they supplant. An example of such a wanton 
 change of laws is afforded by the conduct of the 
 French during their short-lived possession of the 
 island of Malta in 1798. Although the govern- 
 ment had been, up to the moment of their arrival, in 
 the hands of a monastic order, and although the 
 people were completely imbued with the old Catholic 
 ideas, the French nevertheless, almost immediately 
 after they had assumed the administration of the 
 government, set about introducing the modern laws 
 of revolutionized France, such as the secularization 
 of the church property, the suppression of convents 
 and monasteries, the abolition of entails, and so 
 forth. The consequence was that the inhabitants 
 
IX.] FROM ITS DEPENDENCE. 265 
 
 sooii rose in insurrection against their new rulers, 
 and called in the assistance of the English, who 
 blockaded Valletta, and ultimately compelled the 
 French garrison to capitulate. The recent conduct 
 of the French at Algiers appears likewise to have 
 been dictated in some respects by a similar disregard 
 for the peculiar opinions and usages of the native 
 inhabitants. 
 
 If the rulers of a ceded or conquered dependency 
 should be determined, by the considerations to which 
 we have adverted, to retain the body of the native 
 institutions and usages, then another class of dif- 
 ficulties arises. 
 
 The government of a dependency which is vir- 
 tually dependent must be superintended and mainly 
 conducted by the dominant country, and, to a certain 
 extent, by natives of the dominant country. Now 
 the natives of the dominant country who are em- 
 ployed in governing a dependency are necessarily 
 ignorant, to a great degree, of its peculiar insti- 
 tutions, and they are perhaps ignorant of its 
 language. They may, however, to a considerable ex- 
 tent, overcome these obstacles to good government. 
 They may acquire a competent knowledge of the 
 peculiar institutions of the country, and before 
 deciding on any legislative innovation they may 
 consult a person versed in the native law. They 
 may also learn the language of the place ; a task 
 of no great difficulty for a few educated persons, 
 though impossible for an entire population. 
 
 Yet, however unprejudiced and candid such a 
 
266 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 ruler may be, it is scarcely to be conceived that he 
 should not have some undue bias in favour of the 
 institutions of the dominant country, and against the 
 institutions of the dependency : so that he is likely 
 to incline to the improper introduction of the former 
 in the place of the latter, and may thus not only 
 produce confusion in the laws of the place, but may 
 also unnecessarily ofiPend the opinions and disturb 
 the habits of the people. 
 
 After all, the rulers of such a dependency may 
 find that their best intentioned efforts to promote 
 the general welfare are misconstrued, attributed to 
 bad motives, and received with coldness, mistrust, 
 and ingratitude, either because they do not coincide 
 with the prevailing sentiments and opinions of the 
 people, or because they emanate from natives of the 
 dominant country. 
 
 These remarks show that much mutual forbear- 
 ance, on the part both of government and people, is 
 requisite in a dependency so situated. 
 
 On the one hand, the rulers should not expect 
 that the government of such a dependency is to be 
 as easily and satisfactorily conducted as that of an 
 independent state; and they, therefore, should be 
 prepared to meet with many crosses and disappoint- 
 ments in the management of its affairs. The people 
 are inevitably prejudiced against them and their 
 mode of carrying on the government, and involun- 
 tarily refer measures and actions to standards of 
 which the rulers are ignorant ; while they naturally 
 see the prejudices of the people in a strong light, 
 
IX.] FROM ITS DEPENDENCE. 267 
 
 because those prejudices are different from their own. 
 Under these circumstances, it is the duty of such 
 a ruler to view with an indulgent and favourable 
 eye the character and manners of the people placed 
 under his care ; to be kind to their virtues, and a 
 little blind to their defects. As Coleridge says in 
 his remarks on Sir A. Ball : " A more venial and 
 almost desirable fault can scarcely be attributed to a 
 governor than that of strong attachment to the 
 people whom he is sent to govern."* 
 
 On the other hand, the people in such a depen- 
 dency should remember that they hold their peculiar 
 laws and institutions at the pleasure of the domi- 
 nant country ; and that the government can at any 
 moment throw everything into confusion, by setting 
 the public opinion of the dominant country against 
 the dependency, and by raising a cry that its interests 
 are sacrificed to those of its dependency; which, 
 though not a popular cry in the dependency, is a 
 popular cry in the dominant country. They should 
 remember that the government, by retaining the 
 native institutions of the dependency, necessarily 
 subjects itself to some of the errors of ignorance ; 
 since persons who are not natives of the dependency 
 cannot thoroughly understand its peculiar institu- 
 tions. They should also make allowance for the 
 natural preference of nearly all men for their native 
 laws and usages, and their sincere desire to introduce 
 them iiy other countries, without any intention of 
 
 * The Friend, vol. iii. p. 325. 
 
268 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 aggrandizing themselves, or depressing the natives. 
 They should likewise be prepared for some religious 
 repugnance, for the religious intolerance which 
 shows itself in opinion, if not in the law, and perhaps 
 for attempts to convert them to the faith of the domi- 
 nant country, which may spring from benevolent 
 though mistaken motives. 
 
 In general, the natives of such a dependency 
 should always seek to put a fair and candid construc- 
 tion on the conduct of the government ; they should 
 abstain from condemning it hastily, and should make 
 due allowance for the difficulties and disadvantages 
 of its position ; they should excuse slight errors of 
 judgment where they see a generally good disposition, 
 and should remember that the ultimate appeal lies 
 to a quarter (viz. the public opinion of the dominant 
 country) where there is little knowledge of the 
 peculiar opinions and feelings of the dependency, and 
 little disposition to sympathize with them. More- 
 over they should avoid the error of blaming a politi- 
 cal measure, merely because they themselves had no 
 concern in it. 
 
 So great are the disadvantages of dependence, 
 that it is in general fortunate for a civilized country 
 to be sufficiently powerful to have an independent 
 government, and to be ruled by natives. But if a 
 civilized country is, from its size, and other natural 
 circumstances, condemned to political dependence, it 
 is incumbent on every wise and patriotic man whose 
 lot is cast in it, not to lament the inevitable results 
 of the smallness of its territory or the scantiness 
 
IX.] FROM ITS DEPENDENCE. 269 
 
 of its population, or its political weakness, but to 
 seek to procure for it all the benefits compatible 
 with its position, and to render its dependence 
 on the dominant country as little onerous as pos- 
 sible. 
 
 Having concluded these general remarks on the 
 tendency of a dominant country to make unneces- 
 sary changes in the institutions of a ceded or con- 
 quered dependency, by the introduction of its own 
 peculiar institutions, we proceed to consider some- 
 what more in detail the circumstances which ought 
 to determine the dominant country to a greater or 
 less extension of its peculiar institutions to such a 
 dependency. 
 
 The preceding remarks have been intended to 
 show that, unless the dependency is a colony which 
 has carried out with it the laws, opinions, and 
 customs of the dominant country, it is subject to 
 violent changes of its laws, dictated by the insuffi- 
 cient knowledge of its peculiarities, and the reasons 
 of such peculiarities, which is possessed by its rulers, 
 or by their want of sympathy with the opinions and 
 usages of its people. 
 
 When the dependency is a colony of the dominant 
 country, which settled in an uninhabited district, or 
 which has reduced the native population to a con- 
 dition of slavery, or has completely absorbed them 
 into its own body (as was the case with the Greek co- 
 lonies on the coasts of the Mediterranean), or which 
 has expelled or exterminated the aboriginal inhabit- 
 ants (as has been done by the Spanish and English 
 
270 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 colonies in America and Australia) — there is a 
 general agreement between the laws of the mother- 
 country and the dependency, and the mother-country 
 has no inducement to disturb the laws of the de- 
 pendency, for the purpose of introducing its own 
 laws in their stead. 
 
 The question can arise only respecting a depen- 
 dency which, not being a colony of the dominant 
 country, possesses peculiar laws and institutions, 
 either formed under an independent government of 
 its own, or derived from its own mother-country. 
 The cases in which the question arises may be con- 
 sidered to be threefold ; the difference between them 
 being, however, a difference only of degree. 
 
 In the first of the three cases, a civilized nation 
 acquires a territory completely occupied by a people 
 in a low state of civilization, and governs it as a 
 dependency. The British dominions in Hindostan 
 afford a remarkable and well-known example of this 
 case of the problem. In the circumstances just stated, 
 it is desirable to introduce into the half-civilized 
 dependency as much as possible of the laws of the 
 civilized dominant country. But unless the intro- 
 duction of the institutions of the dominant country 
 into a dependency thus situated be made with great 
 caution, circumspection, and skill; and unless the 
 persons employed in administering the government 
 qualify themselves for the task by much previous 
 study and reflection, great evils may be expected to 
 result from it, as has been proved by the experience 
 of the English rule in the East Indies. 
 
IX.J FROM ITS DEPENDENCE. 271 
 
 The following are some of the evils which have 
 resulted from the rule of the English in the East 
 Indies. Hasty and crude acts of legislation have 
 emanated from the government, making extensive 
 changes in large classes of existing rights, and 
 thereby creating a general feeling that property 
 and industry are insecure.* This conduct of the 
 British government in India has been the more re- 
 markable, since the English are in general averse 
 to sweeping political changes, and are not, like the 
 French, accustomed to carry out principles in prac- 
 tice to their furthest logical consequences. While 
 these sweeping and almost revolutionary changes of 
 property have been going on, no attempt has been 
 made to dissolve the alliance between the law and the 
 
 * " Our countrymen complain that they are refused the trial by 
 jury in civil causes ; that the judges have, in many particulai* cases, 
 acted partially and illegally ; that they have denied Magna Charta 
 to have force in India, &c. &c. But the wrongs of the natives are 
 much more insupportable. The judges, in order to extend their 
 authority, have given to the Act of Parliament the most literal, 
 rigid, unfair construction : for example, all persons who rent farms 
 of the company are, they say, servants of the company, and there- 
 fore, by the letter of the Act, subject to the English court of justice. 
 By such means, multitudes of Indians are brought under the English 
 law ; that is, a complicated system of law, so voluminous that years 
 of study are requisite to enable even Englishmen to acquire a know- 
 ledge of it, is at once transplanted into a country whose inhabitants 
 are strangers even to the language in which it is written. The ar- 
 bitrary institutions of a commercial republic, in which all men are 
 equal, are made the laws of a despotic empire, where distinctions 
 between every class of men are religiously observed, and where 
 such distinctions are even become necessary to subordination and 
 government. In a word, a law is given them, which clashes with 
 their own law and their own religion, and shocks their manners and 
 prejudices in a thousand instances." — Letter of Sir Samuel Romilly 
 to Mr. Roget, March, 1781 : in the Memoirs of Sir Samuel Romilly, 
 vol. i. p. 157—8. 
 
S72 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 religion of the country, which is the great obstacle 
 to social progress in Hindostan, as in the other 
 oriental states. Up to the present day the muftis 
 and the pundits are the only professors of Mahome- 
 dan and Hindoo law in India, and the judges and 
 advocates have recourse to them for the solution and 
 decision of any question belonging to their respec- 
 tive systems of laws, which may arise in actual prac- 
 tice. The code which has been prepared by the 
 recent commission in India will for the first time 
 confer on the Hindoos the inestimable benefit of a 
 body of positive law, which professes to rest on 
 merely human authority, and which may therefore 
 be reasoned about or even altered without impiety.* 
 
 It may be remarked, that where a civilized people 
 (such as the English in India) make any extensive 
 and mischievous change in the laws of a people of 
 inferior civilization, the latter are unable to resist 
 the change, on account of the greater energy, know- 
 ledge, and resources of the ruling class, their mu- 
 tual reliance and their powers of co-operation and 
 assistance. 
 
 Although British India may have derived consi- 
 derable benefit from the superior honesty and intel- 
 ligence of the English office-holders, yet the prac- 
 tice of employing Englishmen exclusively in all im- 
 portant o£&ces has, on account of the necessity of 
 giving them high salaries and the inadequacy of the 
 native public revenue, led to the accumulation of an 
 
 ♦ See Trevelyan on the Education of the People in India, p. 152. 
 
IX.] FROM ITS DEPENDENCE. 273 
 
 enormous mass of duties on the head of a single per- 
 son, and has produced a practical denial of justice, 
 and an abdication of the most useful functions of go- 
 vernment, in many parts of the country. The in- 
 sults often offered to the feelings of the natives by 
 the overbearing behaviour of the English would be 
 of less importance, if the more permanent and seri- 
 ous interests of the people were efficiently protected. 
 But unhappily it seems that, in most parts of the 
 country, life and property are scarcely more secure 
 than they were under the native governments, and 
 that the main benefit which the people have derived 
 from the British rule is the exemption from foreign 
 invasion.* 
 
 Though a prospect of benefit to the people of 
 India has been recently opened by the measures of 
 the government for the improvement and diffusion 
 of education, and the more extended employment of 
 the natives in the public service, it is lamentable to 
 think how little good has hitherto resulted to them 
 from the acts of a government which has of late 
 years been, perhaps, the most benevolent which 
 ever existed in any country. 
 
 In the second of the three cases, a civilized na- 
 tion acquires a dependency inhabited by a civilized 
 people, but only thinly or partially inhabited, and, 
 therefore, offering facilities for the settlement of 
 immigrants from the dominant country. This is 
 the case with Canada, and it is a case which offers 
 peculiar difficulties in practice. The struggle of the 
 
 * See Shores Notes on India. 
 
 T 
 
274 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 two populations on the same soil is likely to lead to 
 a conflict between them, which will not be settled 
 without the interference of the dominant country. 
 It is difficult to decide upon what principles this 
 interference should be made. On the one hand, 
 the new immigrants may reasonably demand the 
 alteration of any laws which debar them from occu- 
 pying and cultivating the land, or which otherwise 
 impede their industry or prosperity. On the other 
 hand, the original possessors of the country have a 
 just ground of complaint, if the institutions of the 
 dominant state are introduced to a greater extent 
 than is necessary for accomplishing these purposes. 
 
 In the last of the three cases, a civilized nation 
 acquires a dependency inhabited by a civilized 
 people, but fully peopled and affording no facilities 
 for the introduction of new settlers. In this case it 
 is fit that the dej^endency should retain its peculiar 
 institutions; that its government shouldj as far as 
 possible, be administered by natives ; and in short 
 that the dominant country should create as little 
 disturbance in the political management of the de- 
 pendency as is consistent with its dependent position. 
 The provinces of the Roman state afford an example 
 of the mode of government in question ; for although 
 the Roman provincial governors were often rapa- 
 cious, insolent, and cruel, yet (as has been already 
 remarked)* it was the policy of the Roman govern- 
 ment to interfere sparingly with the native institu- 
 tions of the provinces. Every reader of the New 
 
 * Above, p. 119. 
 
IX.] FROM ITS DEPENDENCE. 275 
 
 Testament is aware how little the Romans interfered 
 with the very peculiar institutions of the province 
 of Judaea, before they were provoked by the insub- 
 ordination of the Jews to destroy Jerusalem. 
 
 Lombardy is a modern instance of the same sort 
 of rule : for though this dependency of the Austrian 
 empire is subject to the general control of the impe- 
 rial government, yet the details of its administration 
 are managed by natives, and the Italian is the lan- 
 guage of the government and the law. The govern- 
 ments of Malta and the Ionian isles afford other in- 
 stances of the same system. 
 
 It may be remarked generally of dependencies 
 belonging to the latter class, that when any of their 
 laws is changed, the change ought to be made in 
 the spirit of the existing institutions. 
 
 But if it be inexpedient for the government to 
 change suddenly the laws of a dependency, it is still 
 more inexpedient for the government to attempt to 
 make a sudden change in its language. The acqui- 
 sition of a new language is a slow and laborious 
 process ; and it implies an amount of diligence, 
 leisure, and intelligence which cannot be expected 
 of an entire community of adults. The great mass 
 of mankind never acquire a language by study ; they 
 only know the language which they imperceptibly 
 imbibe during infancy and childhood. It is no 
 more possible for a government, by the expression of 
 its will, and by offering rewards or threatening 
 punishments, to change suddenly the language of its 
 subjects, than to add a cubit to their stature or to 
 
 t2 
 
276 DISADVANTAGES TO A DEPENDENCY [CH 
 
 give them a sixth sense. A government may publish 
 its laws and other acts in a foreign language, but it 
 cannot cause the people to understand them ; it may 
 prohibit advocates from pleading in their native 
 tongue, but it cannot enable them, however much 
 they may desire it, to plead in an acquired language ; 
 it may declare that contracts and testaments made in 
 the language of the country are invalid, but it can- 
 not enable parties to contracts or testators to com- 
 prehend the meaning of instruments drawn in a 
 foreign tongue. Many examples might be given of 
 the mischievous effects which have been produced by 
 an attempt to force the language of a government 
 upon the people. Thus when Joseph II. attempted 
 to treat Hungary as a dependency, to incorporate it 
 with Austria, and to reform its law^s by his own 
 authority, the people for a time submitted, unwil- 
 lingly, to his useful though too hastily introduced 
 reforms ; but when he ordered St. Stephen's crown 
 to be carried to Vienna, and issued an edict making 
 German the language of government throughout 
 Hungary, the people rose in insurrection against 
 him.* In like manner, the measures of the King of 
 Holland for introducing the use of the Dutch lan- 
 guage into Belgium, in the place of the French 
 language which was spoken by the educated classes, 
 created a general discontent throughout Belgium, 
 and contributed materially to produce the Belgian 
 revolution, and the consequent separation of Belgium 
 from Holland. 
 
 ♦ See note (N.) at the end of the volume. 
 
IX.] FROM ITS DEPENDENCE. 277 
 
 Without going at length into the question of the 
 influence of a common language in assimilating the 
 opinions and customs of diiferent parts of the same 
 empire, and in cementing national union, we may 
 remark that the use of a common language is con- 
 sistent with the existence of the strongest antipathies 
 between different communities, as is proved by the 
 mutual hatreds of independent states, derived from 
 the same national stock and speaking the same 
 language, in ancient Greece, and in modern Italy 
 and Germany. Even, therefore, if a dominant 
 country should succeed in diffusing its own lan- 
 guage among the people of a dependency, it might 
 fail in creating the attachment to its government, 
 which was the end sought by the introduction of 
 its language. And if by a forcible or over-hasty 
 introduction of its language it engendered discontent 
 in the dependency, it would produce an eflfect the 
 very opposite to that intended ; since, instead of 
 attaching the people of the dependency to itself, it 
 would strengthen their aversion to its supremacy. 
 It is obvious that the best mode of incorporating a 
 body of people with the rest of an empire is to render 
 them contented and happy ; and that any measure 
 which renders them discontented is likely to prevent 
 that incorporation. 
 
 In like manner, it can rarely happen that any 
 reason should exist why the supreme government 
 should attempt to change the religion of a depen- 
 dency, whose people have a religion different from that 
 
278 DISADVANTAGES TO A DEPENDENCY [CH, 
 
 of the dominant country. The religion of a people 
 is in general less easily changed by a government 
 than their language. The history of Europe abounds 
 with examples of the misery produced by the in- 
 effectual attempts of governments to convert their 
 subjects to another creed by force or civil disabilities. 
 Even Mr. Gladstone (whose principles seem to lead 
 to the conclusion that a sovereign legislature ought to 
 use all the means in its power for diffusing among its 
 subjects the religious faith which the majority of its 
 members believe to be true) admits that a dominant 
 country is not bound to deprive a church in a de- 
 pendency of its endowments, although the doctrines 
 of that church may be different from those of its 
 own established church or churches.* Indeed, de- 
 pendencies have been so far treated as separate from 
 the dominant country for religious purposes, that the 
 English North American colonies were regarded as 
 asylums against religious persecution, and no attempt 
 was made by the government of the mother-country 
 to interfere with their peculiar religious tenets and 
 modes of church government. 
 
 The self-partiality which leads the dominant 
 country to introduce its own laws, language, and 
 pendency rcliffion iuto a dependency, without due regard to 
 
 from offices ° ^ . 
 
 in their own the circumstanccs and interests of the latter, also 
 
 country. 
 
 brings upon the dependency other evils of a similar 
 nature. Thus it causes the appointment of natives 
 of the dominant country to offices in the dependency, 
 
 *• The State in its relations with the Church, ch. viii. § 68. (p. 276.) 
 
 Exclusion 
 of natives 
 of the de- 
 
IX.] FROM ITS DEPENDENCE. 279 
 
 and the exclusion of natives of the dependency from 
 them, without sufficient reason for the preference.* 
 
 The following remarks will serve to indicate the 
 principal disadvantages arising to the dependency 
 from this source. 
 
 The natives of the dominant country are in ge- 
 neral imperfectly acquainted with the circumstances 
 
 * The following account of the former practice in this respect in 
 the English dependencies is given by Long, in his History of Ja- 
 maica : — " * Without doubt,' says Davenant, * it must be very pre- 
 judicial, both to the southern and northern colonies, that many 
 offices and places of trust there should be granted by patent to 
 persons in England, with liberty to execute such employments by 
 deputies. By which means, they are generally farmed out to indi- 
 gent persons, who grind and fleece the people ; so that, although 
 many of the inhabitants are rich, sober, and judicious men, yet 
 they are excluded from offices of trust, except such as are charge- 
 able in the execution ; which is inconsistent with all the rules of 
 well-governing a country.' There is, I am sorry to own, too much 
 of prophetic truth in this remark. The natives in our colonies, as 
 if proscribed for some defect of ability or good morals, cannot, 
 without the utmost difficulty, creep into any lucrative employments. 
 Having little, if any, interest among the distributors of office, they 
 are driven to an humble distance ; whence they have the morti-» 
 fication of observing the progress to wealth of those more favoured 
 subjects, who are sent across the ocean to pamper themselves on 
 the fatness of their land. The most lucrative offices in this island 
 (the governor's excepted) are granted by the crown to persons re- 
 siding in England, and by these patentees are farmed or rented to 
 deputies and sub-deputies acting in Jamaica, who remit annually 
 several thousand pounds to their principals. The rent of these 
 deputations being screwed up to the very highest pitch, some of 
 the officers have made no scruple formerly to exert their utmost 
 industry towards enlarging their fees and perquisites at the expense 
 of the aggrieved inhabitants. Before these places became so pro- 
 fitable as to be objects of sufficient value to the ministry for gratify- 
 ing their dependents, tj^e assembly made some attempts to restrain 
 the patentees." — (History of Jamaica vol. i. p. 70, 80.) On the 
 preference of Spaniards to natives for offices in Naples, the Nether- 
 lands, and the American colonies, see above, p. 138. 150. 
 
280 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 of the dependency, with its laws and customs, and 
 sometimes with its language. They are, therefore, 
 not qualified to fill any office in it, of which the 
 duties are not merely mechanical. The appointment 
 of natives of the dominant country is also naturally 
 viewed with dislike by the people of the dependency, 
 and therefore renders the government unpopular 
 among those who are immediately subject to it. 
 Moreover, the exclusion of the natives of the de- 
 pendency from offices in their own country dimi- 
 nishes their incentives to industry and useful 
 exertion. It is, likewise, more expensive to employ 
 natives of the dominant country in the public 
 offices of a dependency, than natives of the depen- 
 dency itself; since the former must be compen- 
 sated for the sacrifice which they make in leaving 
 their home and native country, and often in living 
 in a climate pernicious to their health. 
 meSfof ' ^^^ only, however, is the dominant country in- 
 natives of (Juccd bv its sclf-partiality to appoint natives of its 
 
 dominant •' ^ ^ i i 
 
 country to Qwn to officcs in the dependency, but from its general 
 the depen- indifference about the welfare of the dependency ; 
 
 dency, 
 
 without a it often selects these persons without a due regard 
 
 due regard ,.^. -^t i ' i 
 
 for their for their qualifications. Hence the wish to pro- 
 
 qualifica- .,/. ,.., . . r-ji 
 
 tions. Vide for political partizans or private iriends, by 
 placing them in public offices, has frequently been 
 gratified at the cost of dependencies. This is no 
 modern evil ; for, from the time of the Romans 
 downwards, a provincial governorship or other 
 appointment seems to have been regarded as a 
 
IX.] FROM ITS DEPENDENCE. 281 
 
 legitimate means of repairing a shattered for- 
 tune.* 
 
 The preceding remarks respecting the appoint- 
 ment of natives of the dominant country to offices 
 in a dependency are applicable, though not with 
 
 * ** The French colonies, settled by profligate men who fled from 
 the restraints or punishment of the law, seemed at first tp stand in 
 need of nothing but a strict police ; they were therefore committed 
 to chiefs who had an unlimited authority. The spirit of intrigue, 
 natural to all courts, but more especially familiar to a nation where 
 gallantry gives to women an universal ascendant, has at all times 
 filled the highest posts in America with worthless men, loaded with 
 debts and vices. The ministry, from some sense of shame, and the 
 fear of raising such men where their disgrace was known, have sent 
 them beyond sea, to improve or retrieve their fortunes, among 
 people who were ignorant of their misconduct. An ill-judged com- 
 passion, and that mistaken maxim of courtiers, that villany is ne- 
 cessary, and villains are useful, made them deliberately sacrifice the 
 peace of the planters, the safety of the colonies, and the very inte- 
 rests of the state to a set of infamous persons only fit to be imprisoned. 
 These rapacious and dissolute men stifled the seeds of all that was 
 good and laudable, and checked the progress of their prosperity 
 which was rising spontaneously." — Raynal, b. xiii. (vol. iv. p. 289). 
 
 " Armed with such various authorities, and possessing such tran- 
 scendent pre-eminence and privileges as I have described, it is not 
 to be expected, from the common fallibility of human nature, that 
 every colony-governor (placed at so great a distance from the 
 mother-country) should, on every occasion, bear his faculties meekly. 
 Great caution is therefore undoubtedly necessary, on the part of a 
 British minister, in the choice of persons for a trust of so great 
 weight and dignity ; the powers with which our plantation governors 
 are invested being more extensive than those which the laws of 
 England allow to the sovereign himself. It is however a melan- 
 choly truth, that party merit and connexions are commonly the 
 most forcible recommendations with which a candidate for a distant 
 government can present himself; and that persons equally devoid 
 of character, ability, and fortune, have sometimes been sent to pre- 
 side in our most important settlements, as if justice and public 
 virtue were best administered and promoted by men most distin- 
 guished for ignorance and profligacy, and that they would prove 
 the best protectors of other people's fortunes, who by vice and pro- 
 fusion had dissipated their own !"— Edward's West Indies, b. vi. 
 c. i. (vol. ii. p. 390). Sec also Longs Jamaica, vol. i. p. 27. 
 
282 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 quite equal force, to dependencies of all descrip- 
 tions. 
 
 If the dependency is a colony of the dominant 
 country, and its founders have consequently taken 
 out with them its law, language, religion, and 
 customs ; natives of the dominant country are gene- 
 rally fitted, or can, without any great difficulty, fit 
 themselves, for public offices in the dependency. But 
 unless there should be in such a dependency an in- 
 sufficient number of persons competent for public 
 offices, it is inexpedient, for the reasons already 
 assigned, systematically to appoint to them natives 
 of the dominant country. If the dependency have 
 been acquired by conquest or cession, and if its 
 laws, language, religion, and customs should in 
 consequence be different from those of the dominant 
 country, it is extremely difficult for a native of the 
 dominant country to qualify himself for the per- 
 formance of official duties in the dependency. It 
 may sometimes be necessary (though this necessity 
 can seldom arise) to introduce the laws of the domi- 
 nant country into a dependency of the latter sort. 
 If such a necessity should occur, natives of the do- 
 minant country must be employed for the purpose 
 of introducing them. 
 
 Inasmuch as the natives of a dependency do not 
 iispire to offices in the dominant country, they rea- 
 sonably expect to be appointed to those in their 
 own little community. Not only, therefore, are 
 their feelings wounded by their exclusion from these 
 offices, but this injury to their feelings is aggravated 
 
IX.] FROM ITS DEPENDENCE. 283 
 
 by the incompetency of the natives of the dominant 
 country who are appointed to them. The appoint- 
 ment of incompetent persons to offices, and the ex- 
 clusion of competent persons from them, is of pecu- 
 liar importance in a dependency; for, as will be 
 more fully shown in the next chapter, much depends, 
 under any circumstances, upon the character and 
 composition of the official body in a dependency 
 which is not virtually independent. They cannot 
 fail to exercise a considerable power ; partly, on 
 account of the necessary ignorance of the home go- 
 vernment respecting the dependency, and of their 
 having the chief means of furnishing it with in- 
 formation ; partly, on account of the distance of the 
 dependency from the dominant country, and the 
 consequent latitude of discretion which must be 
 allowed to them in the execution of political mea- 
 sures. 
 
 It may be here remarked that the arrangement of 
 placing the civil and military government of a de- 
 pendency under a common head, which convenience 
 or economy has dictated in the early stages of a new 
 settlement, or under other peculiar circumstances, 
 has often been continued for a longer time than the 
 circumstances of the case justified, and when a due 
 regard for the interests of the dependency would 
 have led to a separation of the military command 
 from the civil government. 
 
 Owing to the general indiffiirence and ignorance interests of 
 of the dominant country and the supreme govern- deuc^iVa- 
 ment respecting the condition of a dependency, they sacrificed 
 
284 DISADVANTAGES TO A DEPENDENCY [CH. 
 
 to the party do not think about its concerns in ordinary times 
 political and under ordinary circumstances. But if, on any 
 the depen- extraordinary occasion, any question affecting a de- 
 ^^^^' pendency should happen to excite the attention of 
 the dominant country and the supreme government, 
 it is rarely treated (especially if the form of the 
 supreme government be popular) with reference to 
 the true interests of the dependency itself, or 
 even of the dominant country as regards the depen- 
 dency ; but it is commonly sacrificed to the tem- 
 porary interests of the political parties in the 
 dominant country v^hich are contending for the 
 possession of political pow^er. In this manner the 
 people of the dependency become the sport of ques- 
 tions and interests in vrhich they are not concerned, 
 and the nature of vrhich they do not even under- 
 stand. 
 
 It may be observed generally, that the more for- 
 bearing, considerate, and rational the conduct of the 
 dominant country tovrards its dependency may be, 
 the less onerous is the dependent condition of the 
 latter, and the less cogent stre the objections to its 
 continuance. On the other hand, the more irra- 
 tional and unvrise may be the conduct of the domi- 
 nant country, and the more it sacrifices the permanent 
 interests of the dependency to its own party con- 
 flicts, (conflicts which are alien not only to the 
 interests, but also to the feelings of the dependent 
 people,) the more desirable is it that the dependency 
 should enjoy practical, and ultimately obtain legal, 
 independence. 
 
IX.] FROM ITS DEPENDENCE. 285 
 
 Before we quit this topic we may remark gene- The depen- 
 rally, that in consequence of the political relation invoWed in 
 which subsists between a dependency and the domi- the domi° 
 nant country, the dependency bears a share, to a J'^^|*^°""" 
 greater or less extent, of many of the calamities in 
 which the dominant country may be involved through 
 the errors of its government or from any other 
 cause. For example, if the dominant country should 
 be plunged in wars, either from the necessity of self- 
 defence, or through its own ambition, or the ambition 
 of other states, the dependency is necessarily a party 
 to them. Hence its trade may be disturbed, its mer- 
 chant-vessels exposed to the risk of capture, and its 
 territory even made the theatre of war, without its 
 having done anything to provoke hostilities, or having 
 had any means of preventing them, and although it 
 is only, as it were, a formal party to the dispute. 
 
 We shall consider at length, in the next chapter. Evils am- 
 the disadvantages arising to a dependency from the pendency*" 
 various forms which may be given to its immediate subjlctfon 
 government. We will here briefly indicate a class ^er^ents. 
 of evils produced by its subjection to two distinct 
 governments. 
 
 It has been stated above, that the establishment 
 of a local subordinate government is intended as a 
 remedy against the evils arising from the impos- 
 sibility of maintaining a sufficiently rapid communi- 
 cation between the supreme government and the 
 people of the dependency.'* The remedy is, however, 
 imperfect ; for, as the subordinate does not supersede 
 
 * Above, Chap. IV. 
 
286 DISADVANTAGES TO A DEPENDENCY. fCH. 
 
 the supreme government, cases not unfrequently 
 arise in which applications are made by inhabitants 
 of the dependency to authorities in the dominant 
 country. There is likewise the enormous evil of 
 appeals from courts in the dependency to courts in 
 the dominant country. Sometimes the existence of 
 a subordinate government aggravates the evils natu- 
 rally arising from the distance of the supreme go- 
 vernment, since an applicant may be referred back- 
 wards and forwards from one government to the 
 other, and may be unable to obtain a distinct or 
 final answer from either. The contrivance of a 
 subordinate government renders the government of 
 a distant territory possible, but does not render it 
 good. 
 
X.] INCONVENIENC|:S OF T^E yARl^US FORMS, &C. 287 
 
 CHAPTER X. 
 
 The respective Inconveniences of the various Forms which may be 
 given to the immediate government of a Dependency. 
 
 From the disadvantages affecting the dominant 
 country in consequence of its relation to the de- 
 pendency, and the disadvantages affecting the de- 
 pendency in consequence of its relation to the 
 dominant country, we proceed to certain disadvan- 
 tages (affecting one or both of the related commu- 
 nities) which cannot be referred exclusively to either 
 head. The disadvantages now in question are the 
 respective inconveniences of the various forms which 
 may be given to the immediate government of a de- 
 pendency. For our present purpose, these various 
 forms may be conveniently arranged under the 
 following general descriptions. 1. A body of per- 
 sons representing the inhabitants of the dependency, 
 or representing a larger or smaller part of them, 
 exercises a constitutional control over the executive 
 authority ; or, in other words, it shares the powers 
 of government, to a larger or smaller extent, with 
 the authority in which the executive powers exclu- 
 sively or principally reside. 2. The executive au- 
 thority is not constitutionally controlled by any such 
 body of representatives; or, in other words, the 
 powers of government are exclusively possessed by 
 
Inconve- 
 niences of 
 the subor- 
 
 288 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 the authority in which the executive powers are 
 placed. 
 
 In considering the inconveniences of the various 
 forms which may be given to a subordinate govern- 
 ment, we shall begin with the inconveniences of the 
 forms which fall under the latter description. 
 
 Where the form of the subordinate government 
 falls under the latter description, the dependency 
 dinate go- jjj^y j^g fl^Qvemed in either of the following modes. 
 
 vernments ./ o o 
 
 in which The principles of its legislation and administration 
 
 the execn- ^ ^ '-' ^ 
 
 tive autho- may be determined, and their details may be habit- 
 
 rity 18 not 
 
 constitu- ually conducted, by the supreme government or the 
 controlled homc department of the subordinate government; 
 
 by a body n i i • i • i • 
 
 represent- or thc local govcmmcnt may manage its legislation 
 pendency, and administration without any frequent interference 
 from any authority in the dominant country. In 
 either of the supposed cases, the dependency is ex- 
 posed to the evils naturally suffered by the governed 
 from a government over which they have no con- 
 stitutional control ; and in the first of those cases, 
 it is also exposed to the evils naturally suffered by 
 the governed from a government placed at a distance 
 from their territory. It may be remarked, however, 
 that the dependency, in the first of the supposed 
 cases, would be a dependency in form rather than 
 in substance ; for as its legislation and administra- 
 tion would be habitually managed by direct inter- 
 ferences from the dominant country, it would, in 
 substance, be directly subject to the supreme go- 
 vernment. 
 
 In the second of the supposed cases, the local 
 
X.] OF A SUBORDINATE GOVERNMENT. 289 
 
 government may reside exclusively in the governor (or 
 other head of the local authorities) ; or inferior officers 
 of the local government, appointed by the home go- 
 vernment, and holding their offices permanently, may 
 control the governor in the exercise of his powers. 
 
 Where the local government resides exclusively 
 in the governor, it is probable that the dependency 
 will suffer from his incapacity, if not from other 
 mischiefs naturally consequent on his uncontrolled 
 authority. Generally speaking the governor of a 
 dependency is incompetent to govern it in a manner 
 fitted to promote its interests, on account of his im- 
 perfect acquaintance with its position and circum- 
 stances ; and where he is not controlled by a repre- 
 sentative body familiar with its position and circum- 
 stances, the natural consequences of his ignorance 
 are not prevented or even corrected. It will appear 
 sufficiently from a few brief considerations, that the 
 governor (generally speaking) is imperfectly ac- 
 quainted with the concerns of the dependency, or, 
 for some other reason, is incompetent to manage 
 them to its advantage. In the first place, he is 
 commonly a native of the dominant country, or not 
 a native of the dependency ; and on his accession to 
 his office, he, therefore, is necessarily ignorant of 
 the concerns of the latter. In the next place, as 
 the office is rarely held by the same person for any 
 long period, a governor is commonly removed from 
 it just as he has acquired some knowledge of the 
 concerns of the dependency; and, on his removal, 
 he is followed by some successor who probably 
 
290 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 brings the same ignorance to the office, and who is 
 probably removed from it just as he is beginning to 
 qualify himself for it. This frequent change of 
 governors imperfectly acquainted with the position 
 and circumstances of the dependency, and un- 
 checked by a representative body familiar with them, 
 tends to produce (independently of other inconve- 
 niences) an instability in the legislation and admi- 
 nistration of the dependency, which is highly de- 
 trimental to the interests of its inhabitants.* In 
 
 * Thisincom enienceof a frequentchange of governors is illustrated 
 by the following remarks of Raynal, in his account of the adminis- 
 tration of the French West India islands nnder the old Fiencli 
 monarchy: — "The few governors who escaped corruption, meeting 
 with no support in an arbitrary administration, were continually 
 falling from one mistake into another. Men are to be governed by 
 laws and not by men. If the governors are deprived of this com- 
 mon rule, this standard of their judgments, all right, all safety, and 
 all civil liberty, will be extinct. Nothing will then be seen but 
 contradictory decisions, transient and opposite regulations and 
 orders, which, for want of fundamental maxims, will have no con- 
 nexion with each other. If the code of laws was cancelled, even in 
 the best constituted empire, it would soon appear that justice alone 
 was not sufficient to govern it well. The wisest men would be in- 
 adequate to such a task- As they would not all be of the same mind, 
 and as each of them would not always be in the same disposition, 
 the state would soon be subverted. This kind of confusion was 
 perpetual in the French colonies, and the more so as the governors 
 made but a short stay in one place, and were recalled before they had 
 time to take cognizance of anything. After they had proceeded 
 without a guide for three years, in a new country, and upon un- 
 formed plans of police and laws, these rulers were replaced by 
 others, who, in as short a space, had no time to form any connexion 
 with the people they were to govern, nor to ripen their projects into 
 that justice, which, when tempered with mildness, can alone secure 
 the execution of them. This want of experience, and of precedents, 
 so much intimidated one of these absolute magistrates, that, out of 
 delicacy, he would not venture to decide upon the common occur- 
 rences. Not but that he was aware of the inconveniences of his 
 irresolution, but, though an able man, he did not think himself 
 qualified to be a legislator, and therefore did not choose to usurp 
 
X.] OF A SUBORDINATE GOVERNMENT. 291 
 
 the last place, it often happens (from causes adverted 
 to in the preceding chapter) that the governor is a 
 military or naval officer, and, therefore, is unfa- 
 miliar with the principles and practice of civil 
 government, as well as imperfectly acquainted with 
 the position and circumstances of the dependency. 
 
 Where the governor is controlled in the exercise 
 of his powers by such inferior officers as we have 
 described above, another set of evils arises. 
 
 Officers of this sort, as holding their offices per- 
 manently, would probably know more than the 
 temporary governor respecting the position and cir- 
 cumstances of the dependency ; and to this extent 
 their influence over the governor would produce a 
 better administration of the government than if his 
 power were altogether uncontrolled. 
 
 But the officers controlling the governor would 
 form an oligarchy legally independent of the people 
 of the dependency, and practically almost indepen- 
 dent of the supreme government. 
 
 Such an oligarchy, unchecked by a body repre- 
 senting the dependency, would be more likely to use 
 their, powers for their own advantage and to the 
 disadvantage of the dependency, than a governor in 
 a similar predicament; for, as public opinion is 
 always a less powerful restraint upon a body thnn 
 
 the authority of one." Settlements of Europeans in the East and 
 West Indies, b. xiii. (vol. iv. p. 291. Engl. Transl.) Raynal here 
 confounds a government not administered according to laws (above, 
 p. 15 sqq.) with a government in which the laws are frequently 
 altered ; but the general drift of his remarks is sufficiently intel- 
 ligible. 
 
 u2 
 
292 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 an individual, the opinion of the people of the de- 
 pendency, and of the government and people of the 
 dominant country, would impose a more effectual 
 check upon an uncontrolled governor than upon an 
 uncontrolled official oligarchy. It may be added, 
 that the check imposed upon such an official 
 oligarchy by the opinion of the people of the depen- 
 dency would be almost nugatory, if (as commonly 
 happens) the members of it were natives of the 
 dominant country and not of the dependency itself. 
 
 As an official oligarchy thus situated is imper- 
 fectly checked either by the direct interferences of 
 the supreme government, or by the indirect influ- 
 ence of the opinion of the dependency or the domi- 
 nant country, frequent disputes naturally arise be- 
 tween the members of it, about their respective 
 shares in the government, or about their respective 
 emoluments or ranks ; to the neglect of the affairs 
 and interests of the dependency, and perhaps to the 
 danger of a disturbance of its tranquillity. A 
 striking example of the evils arising from this form 
 of government is afforded by the conduct of the 
 various local governments in India, before the pro- 
 ceedings in Hastings's trial and other circumstances 
 had forcibly turned the attention of the English 
 public to Indian affairs. 
 
 We have begun by supposing that this form of 
 government would be better than that of an uncon- 
 trolled governor, on account of the greater know- 
 ledge of the concerns of the dependency possessed 
 by the members of the official oligarchy. But if 
 
X.] OF A SUBORDINATE GOVERNMENT. 293 
 
 (as commonly happens) they are natives of the do- 
 minant country, their knowledge of the real con- 
 dition and interests of the dependency would, in 
 many cases, and especially in the case of a depen- 
 dency acquired by cession or conquest, be not much 
 greater than that of a temporary governor ; although 
 they would naturally excel him in a knowledge of 
 the routine of the actual government. Consequently, 
 this circumstance of superiority in the oligarchical 
 form of government would have little in it to com- 
 pensate for the various respects in which it is inferior 
 to that of an uncontrolled governor. 
 
 It may be here remarked in conclusion, that where 
 the temporary governor is not, according to the con- 
 stitution of the government, sul)jected to the legal 
 control of such an oligarchy, he is in general con- 
 trolled by one in fact. On account of his ignorance 
 of the position and circumstances of the dependency, 
 and, above all, of the routing of its actual govern- 
 ment, he must trust to those who cannot fail to have 
 acquired a considerable knowledge of the latter, 
 although their knowledge of the former may be but 
 superficial. Whenever, therefore, the executive 
 government is uncontrolled by a body representing 
 the community, all the powers of the local govern- 
 ment will, in general, be vested, formally or virtually, 
 in the hands of an oligarchy of the worst descrip- 
 tion: — an oligarchy unchecked by public opinion, 
 and, if its members are not natives of the dependency, 
 having little or no knowledge of the real condition 
 and true interests of the governed, and little or no 
 sympathy with their opinions and feelings. 
 
294 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 It should not be overlooked that a popular form 
 of the supreme government counteracts to a con- 
 siderable (or, at least, to some) extent the evils 
 arising from the absence of popular institutions in 
 a dependency. Although the popular form of the 
 supreme government does not afford to the inha- 
 bitants of a dependency any of the characteristic 
 securities of popular institutions, (namely, a power of 
 electing their own representatives,) yet the publicity 
 of the system of government, and the probability 
 that some member of the supreme legislative body 
 will take up their cause and obtain a hearing for 
 them, afford them a considerable protection. 
 
 It may be here observed, that in rude commu- 
 nities the governor of a dependency has great faci- 
 lities for throwing off his dependence, on account of 
 the complete organization of the government over 
 which he presides, the usual discontent of the de- 
 pendency with the dominant country, and the small 
 control exercised by the latter over the former. 
 In barbarous or half civilized countries, the defects 
 in the administrative machinery of the government, 
 and in the means of communication, have led to 
 various contrivances for securing the dependence of 
 the provincial governors : for example, the shortening 
 their period of office, the employment of agents to 
 watch and report their proceedings, the fomenting 
 of disputes between different governors, and so on.* 
 These contrivances, however, have often failed to ac- 
 
 * Above, p. 187. See the description of the policy of the Portu- 
 guese with respect to their possessions in the East Indies, cited in 
 note (O.) at the end of the volume. 
 
X.] OF A SUBORDINATE GOVERNMENT. 295 
 
 complish their end ; for the defections of satraps in 
 the ancient Persian kingdom, of governors under 
 the Roman empire, and of pashas and other similar 
 officers in Oriental states in modern times, have been 
 frequent, and have produced repeated wars, with 
 their attendant evils. 
 
 Where a representative body of the foregoing inconve- 
 description has a share in the government, the de- the subor- 
 pendency escapes the evils which would naturally vemments 
 fall upon it, if the government resided exclusively IL^execu- 
 in the executive authority. But where a dependency rity i^con- 
 (not doomed to dependence by its natural condition ally con- 
 and circumstances) has such a security against the bo°dy repre- 
 executive authority, its subjection to the dominant depra? '^* 
 country is likely to be nominal rather than real. ^^^^^^ 
 Such, at least, is the probable consequence of the 
 security, where the representative body is invested 
 with extensive powers, and where its members 
 (from their holding their places by popular election, 
 or from some other cause) represent the opinions 
 and feelings entertained by the mass of their coun- 
 trymen. It is extremely difficult to reconcile the 
 powers of such a representative body with the 
 virtual subjection of the dependency to the dominant 
 country. If the government of the dominant 
 country substantially govern the dependency, the 
 representative body cannot substantially govern it ; 
 and, conversely, if the dependency be substantially 
 governed by the representative body, it cannot be 
 substantially governed by the government of the 
 dominant country. A self governing dependency 
 
296 INCONVENIENCES OF THE VARIOUS FORMS [CH 
 
 (supposing the dependency not to be virtually inde- 
 pendent) is a contradiction in terms. 
 
 Various plans have been tried or suggested for 
 giving a dependency efficient popular securities 
 against misgovernment, and for reconciling those 
 securities with its perfect dependence on the domi- 
 nant country. It should, however, be observed, that 
 the trial of these plans has been nearly confined to 
 the dependencies of England, since England is nearly 
 the only country which in modern times has given 
 its dependencies popular institutions. 
 
 The first plan which we shall examine is that 
 proposed by Adam Smith, in his "Wealth of 
 Nations," with reference to the English North 
 American colonies. We will give this plan in his 
 own words, for the purpose of explaining the views 
 with which he proposed it. (The " Wealth of 
 Nations," it should be observed, was first published 
 in the year 1775, in which the American war of 
 independence broke out.) 
 
 " Should the parliament of Great Britain be ever 
 fully established in the right of taxing the colonies, 
 even independent of the consent of their own assem- 
 blies, the importance of those assemblies would from 
 that moment be at an end, and with it, that of all 
 the leading men of British America. Men desire 
 to have some share in the management of public 
 affairs, chiefly on account of the importance which 
 it gives them. Upon the power which the greater 
 part of the leading men, the natural aristocracy of 
 every country, have of preserving or defending their 
 
X.] OF A SUBORDINATE GOVERNMENT. 297 
 
 respective importance, depends the stability and 
 duration of every system of free government. In 
 the attacks which those leading men are continually 
 making upon the importance of one another, and 
 in the defence of their own, consists the whole play 
 of domestic faction and ambition. The leading men 
 of America, like those of all other countries, desire 
 to preserve their own importance. They feel, or 
 imagine, that if their assemblies, which they are 
 fond of calling parliaments, and of considering as 
 equal in authority to the parliament of Great Bri- 
 tain, should be so far degraded as to become the 
 humble ministers and executive officers of that par- 
 liament, the greater part of their own importance 
 would be at an end. They have rejected, therefore, 
 the proposal of being taxed by parliamentary requi- 
 sition, and, like other ambitious and high-spirited 
 men, have rather chosen to draw the sword in de- 
 fence of their own importance." — 
 ***** 
 
 " The parliament of Great Britain insist upon 
 taxing the colonies, and they refuse to be taxed by a 
 parliament in which they are not represented. If 
 to each colony, which should detach itself from the 
 general confederacy. Great Britain should allow 
 such a number of representatives as suited the pro- 
 portion of what it contributed to the public revenue 
 of the empire, in consequence of its being subjected 
 to the same taxes, and in compensation admitted to 
 the same freedom of trade with its fellow subjects 
 at home, the number of its representatives to be 
 
298 INCONVENIENCES OF T^E VARIOUS FORMS [CH. 
 
 augmented as the proportion of its contributions 
 might afterwards augment; a new method of ac- 
 quiring importance, a new and more dazzling object 
 of ambition, would be presented to the leading men 
 of each colony. Instead of bidding for the little 
 prizes which are to be found in what may be called 
 the paltry raffle of colony faction, they might then 
 hope, from the presumption which men naturally 
 have in their own ability and good fortune, to draw 
 some of the great prizes which sometimes come 
 from the wheel of the great state lottery of British 
 politics. Unless this or some other method is fallen 
 upon (and there seems to be none more obvious 
 than this) of preserving the importance and of gra- 
 tifying the ambition of the leading men of America, 
 it is not very probable that they will ever volun- 
 tarily submit to us." * 
 
 The plan here proposed is limited in its terms to 
 the British colonies of North America ; but, as the 
 reasons advanced in support of it are general, they 
 would apply to every dependency which has made 
 any considerable progress in civilization, or possesses 
 popular securities against misgovernment. 
 
 It ,may be objected to this plan, that any colony 
 to which it might be applied, would cease to be a de- 
 pendency; since its inhabitants would become, in 
 common with the inhabitants of the dominant 
 country, directly subject to the supreme govern- 
 ment. Consequently, the plan would solve the dif- 
 ficulty respecting the best constitution of a subor- 
 
 * B. iv. ch. 7. ' 
 
X.] OF A SUBORDINATE GOVERNMENT. 299 
 
 dinate government, by abolishing the subordinate 
 government altogether. The change in the re- 
 lations of the dominant country and the dependency 
 which would be affected by its adoption, would re- 
 semble that which would have been produced in the 
 relations of England and Ireland by the incor- 
 porating union of 1800, if the events of 1782 had 
 not occurred. Adam Smith, indeed, seems to have 
 perceived that such would be the effect of his pro- 
 posal. For, having remarked in a subsequent part 
 of his work, that " by the Union with England the 
 middling and inferior ranks of the people of Scot- 
 land gained a complete deliverance from the power 
 of an aristocracy which had always before oppressed 
 them," and that " by an union with Great Britain 
 the greater part of the people of all ranks in Ireland 
 would gain an equally complete deliverance from a 
 much more oppressive aristocracy," and having added 
 " that no oppressive aristocracy has ever prevailed in 
 the colonies ;" he proceeds as follows : " Even they, 
 however, would in point of happiness and tran- 
 quillity gain considerably by an union with Great 
 Britain. It would at least deliver them from those 
 rancorous and virulent factions which are inseparable 
 from small democracies, and which have so frequently 
 divided the affections of their people and disturbed 
 the tranquillity of their governments, in their form 
 so nearly democratical. In the case of a total sepa- 
 ration from Great Britain, which, unless prevented 
 by an union of this kind, seems very likely to take 
 
300 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 place, those factions would be ten times more viru- 
 lent than ever." * 
 
 But the main objection to the plan (an objection 
 which its author has not noticed) lies in the 
 distance of those colonies from England. Where 
 a supreme government is prevented by distance (or 
 by any other cause) from communicating rapidly 
 with any of its territories, it is necessary that the 
 distant territory should be governed as a depen- 
 dency.f Consequently, even if the colonies had 
 sent representatives to Parliament, agreeably to the 
 plan recommended by Adam Smith, they must still 
 have been governed as dependencies : that is, by 
 subordinate governments completely organized, and 
 possessing every power consistent with their subor- 
 dinate character. But since the colonies would still 
 have been governed as dependencies, they would still 
 have thought themselves in need of popular secu- 
 rities against the executive departments of their 
 local governments. They would probably have 
 thought their voice in the British Parliament an 
 insufficient security against those departments, and 
 have insisted on the continuance of the securities 
 which the ancient constitutions of their govern- 
 ments had afforded them. Consequently, the local 
 representative assemblies would probably have con- 
 tinued, and would probably have retained substan- 
 tially their former structures and powers. The 
 
 * B. V. ch. 3. 
 
 t Above, Ch. IV. ; and see the passage from Burke, cited in p. 184, 
 with his remarks on the difficulties of an American representation, 
 in Note (P.) at the end of the volume. 
 
X.] OF A SUBORDINATE GOVERNMENT. 301 
 
 plan, therefore, would have failed. It would not 
 have obviated the embarrassments arising to the 
 mother-country from those assemblies, but would 
 rather have brought upon her other embarrassments 
 arising from the representatives of the colonies in 
 her own legislature.* 
 
 It seems desirable, however, that a dependency 
 should have a representative agent in the dominant 
 country to watch over the interests of his consti- 
 tuents, and serve as an organ of communication 
 between them and the supreme government; and 
 the mode of determining the functions of such an 
 agent, so as to enable the dependency to exercise a 
 useful influence over the supreme government, is a 
 question which deserves more attention than it has 
 received. The agents who have been appointed by 
 the colonial dependencies of England have been 
 intended to serve this purpose ;'\ but their functions 
 have been so ill-defined, and their official powers so 
 limited, that they have only partially accomplished 
 the ends of their appointment. During the reign 
 
 * Adam Smith's plan seems to have been framed mainly for the 
 purpose of rendering possible the taxation of the colonies for the 
 benefit of the general government of the empire. He was right in 
 thinking that the existence of a subordinate government is the 
 principal cause of the unwillingness of a dependency to contribute 
 to the expenses of the dominant country. But the plan proposed 
 by him would not be practicable, if it proceeded to the entire abo- 
 lition of the subordinate government ; and if a subordinate govern- 
 ment were left standing, though with a diminished legislative 
 activity, this would go far to defeat the main purpose of his recom- 
 mendation. 
 
 t Concerning the functions of a colonial agent, see Long's Ja- 
 maica, vol. i. p. 114. 
 
302 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 of Charles the Fifth, there existed in Spain a high 
 council formed of members who represented the 
 several provinces of the monarchy. There was one 
 councillor for Sicily, one for Naples, one for Milan, 
 one for Burgundy, one for the Netherlands, one for 
 Aragon, and one for Castile. By these officers the 
 interests of each European dependency of the Spanish 
 monarchy were, to a certain extent, represented in 
 the councils of the supreme government.^ 
 
 Although a dependency which has efficient 
 popular securities against misgovernment cannot be 
 kept completely in a state of practical dependence, 
 an approach has been made in practice to the 
 accomplishment of the purpose, by the plan which 
 is briefly stated in the next paragraph.']" 
 
 The following is a short description of the position 
 of a dependency which is governed by the dominant 
 country agreeably to the plan in question. In 
 respect of its relations to foreign countries, its 
 practical dependence on the dominant country is 
 €omplete. It is related amicably to every foreign 
 country with which the dominant country is at 
 peace. It is related hostilely to every foreign country 
 with which the dominant country is at war; al- 
 though it does not maintain a standing army or 
 navy of its own, and is defended by the arms of the 
 dominant country from foreign aggression or insult. 
 
 * Ranke, Fiirsten und Volker, vol. i. p. 146. 
 
 t The plan described in the next paragraph seems to agree 
 substantially with that contemplated by Mr. Haliburton, in his 
 account of Nova Scotia ; for which see note (Q.) at the end of 
 the volume. 
 
X.] OF A SUBORDINATE GOVERNMENT. 303 
 
 The dominant country, moreover, regulates the 
 commercial intercourse of the dependency with 
 other independent states. In respect, however, of 
 its internal affairs, the condition of the dependency 
 approaches closely to a state of practical indepen- 
 dence. The dominant country determines the form 
 of the government by which the dependency is im- 
 mediately governed. But for other purposes, the 
 dominant country interferes as little as possible 
 with the internal concerns of the dependency ; and 
 especially the dominant country does not require the 
 dependency to contribute to the expenses of the 
 general government of the empire. 
 
 It has been found in practice, that the embar- 
 rassments which are naturally brought upon the 
 dominant country by popular institutions in the 
 dependency may be partly obviated by the plan of 
 government which is briefly stated in the preceding 
 paragraph. The British American colonies, which 
 now form the United States, were long governed in 
 this manner; and until an attempt was made to 
 govern them in another mode, their dependence on 
 the mother-country was not interrupted or dis- 
 turbed. 
 
 But, though the plan in question partly obviates 
 those embarrassments, it is not free from serious 
 inconveniences. 
 
 In the first place, although the dominant country 
 interferes as little as possible with the internal 
 concerns of the dependency, occasions demanding 
 its interference with those concerns will necessarily 
 
304 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 or naturally arise. For example, such occasions 
 arose from the strong expression of public opinion 
 in England against the continuation of slavery in 
 the English West India islands,* and the disorders 
 coiisequent upon the conflict of the English and 
 French races in Canada. And the question is now 
 agitated, whether the disposition of waste lands in 
 the English dependencies should be made under the 
 direction of the supreme or the home government, or 
 whether it should be left to the local government of 
 the dependency. But, however sparingly and tem- 
 perately the dominant country may interfere with the 
 concerns of the dependency, its interferences will be 
 regarded with jealousy and discontent by the people 
 of the latter, and especially of the representative body 
 which is the organ of their opinions and feelings. 
 Although the measures of the dominant country 
 may be in themselves advantageous to the depen- 
 dency, they may be distasteful to the people, and 
 more distasteful still to the representatives and 
 leaders of the people, because they are imposed upon 
 the dependency by another community. 
 
 In the next place, in every dependency which 
 possesses popular securities against misgovernment, 
 there is a popular political party ; and the position 
 and objects of this party, or of its leaders, are 
 pregnant with embarrassments to the dominant 
 country which the plan in question would not suf- 
 ficiently obviate. 
 
 This popular party, however influential in the 
 ♦ See the remarks of Sir S. Romilly, cited above, p. 246. 
 
X.] OF A SUBORDINATE GOVERNMENT. 305 
 
 dependency, cannot obtain the complete direction of 
 its government, since the power of directing that 
 government resides ultimately in the government of 
 the dominant country. This obstacle to their ab- 
 solute ascendency, the popular party naturally desire 
 to overcome ; and, as they cannot surmount it com- 
 pletely so long as the dependency is tied to the 
 dominant country, they naturally desire, consciously 
 or unconsciously, to render their country an inde- 
 pendent state. Accordingly, the consequences which 
 are produced in an independent state by a growing 
 tendency to popular institutions, are different from 
 those which it produces in a dependency. Whilst 
 it usually resolves itself, in an independent state, 
 into a struggle between different classes of the com- 
 munity, it naturally leads in a dependency to a 
 struggle for independence. And thus, whilst the 
 acquisition of additional power by a popular party 
 in an independent state, naturally leads to peaceable 
 concessions on the part of its opponents, the acqui- 
 sition of such power by a popular party in a depen- 
 dency is likely to lead to a mischievous, or, at the 
 best, fruitless contest with the dominant country. 
 
 It may be remarked, moreover, that the adminis- 
 trative of&ces of the local government are commonly 
 filled by persons who hold them permanently, and 
 who are not appointed to them by the popular re- 
 presentative body, or in pursuance of its opinions 
 and wishes. In a dependency, therefore, the leaders 
 of the popular party are excluded from office ; and 
 in consequence of this exclusion, they are free from 
 
306 INCONVENIENCES OF THE VARIOUS FORMS [ciI. 
 
 a powerful restraint by which they would be checked 
 if a chance of office was before them. A main cause 
 of the moderation which is sometimes evinced by a 
 party in opposition, is their chance of being called 
 to office. It restrains them from courting the public 
 by proposing impracticable or pernicious measures ; 
 for, on their accession to office, they would naturally 
 be compelled, by the necessity of preserving their 
 public reputation and influence, to attempt the exe- 
 cution of the public purposes which they now pro- 
 fess to entertain. 
 
 In order to prevent the embarrassments arising 
 to the dominant country from the position and 
 objects of the popular party in the dependency, 
 the supreme government might fill the offices of the 
 local government with persons acceptable to the 
 body by which the dependency is represented.* In 
 consequence, however, of this arrangement, all the 
 officers of the local government would be virtually 
 appointed by the representative body, and not by 
 the supreme government or by the home department 
 of the subordinate government ; and, consequently, 
 the arrangement would render that body complete 
 masters of the local government, and virtually 
 emancipate the dependency from its dependence on 
 the dominant country. 
 
 It is manifest, therefore, that the inconveniences 
 arising to the dominant country from popular in- 
 
 * See Lord Durham's Report on Canada ; Lord John RusseJl's 
 Despatch on Responsible Government ; and the pamphlet entitled 
 " Responsible Government for the Colonies." 
 
X.] OF A SUBORDINATE GOVERNmJUt.^ J^7 ^ Vw, 
 
 • ••... &Lm^i^ 
 
 stitutions in the dependency would not be 
 obviated by the plan which we have last stated. In 
 respect, at least, of its internal affairs, a dependency 
 governed agreeably to that plan would be merely 
 dependent in name. 
 
 If a dependency be already independent in effect. Means of 
 or it be expedient (for any other reason) that the thig popu- 
 dominant country should treat it as if it were, it rrtLrh" the 
 ought to be governed on the plan which we have cy'wUh^lte 
 just examined, or on some plan of a similar purport pendent!" 
 and tendency. It may be expedient, however, that 
 a dependency which is dependent in effect, and which 
 it will be necessary to keep as far as possible in that 
 condition, should receive popular securities against 
 misgovernment ; and, on the occurrence of such a 
 case, it would be necessary to consider the means 
 of conciliating those securities with the virtual 
 subjection of the dependency to the dominant 
 country. Though these conflicting objects could 
 not be perfectly reconciled, an approach might 
 possibly be made to the attainment of the purpose, 
 by means of the precautions and measures which we 
 shall now venture to suggest. 
 
 In the first place, the constitution of the local i. Thesub- 
 
 . ordinate 
 
 government ought not to be conceived in a lorm, or government 
 its provisions expressed in terms, by which the in- have the 
 habitants of the dependency might be naturally led of^rsu^-"*'^ 
 to suppose their country a virtually independent Jerm^enti 
 state. 
 
 The English government; in framing the political 
 institutions of its dependencies, has not been suf- 
 
 x2 
 
308 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 ficiently careful to give them such a form as might 
 suggest the idea of their subordinate character. So 
 far, indeed, has it been from observing this caution, 
 that it has formed them after the model of the 
 supreme government, and has acquiesced in the use 
 of forms and language by the legislature of the 
 dependency, which seem to imply that its govern- 
 ment was co-ordinate with, and not subordinate to, 
 the government of the dominant country. 
 
 The following passages, extracted from books of 
 authority, which describe the form of the subordinate 
 governments in the English dependencies in North 
 America and the West Indies, will show the extent 
 to which the error adverted to was likely to be 
 created or increased by the neglect of the supreme 
 government to observe this precaution. 
 
 " The governor, council, and assembly in every 
 American colony," says Stokes, "is a subordinate 
 legislature, subject to the control of the king and 
 parliament, who are supreme over all the British 
 empire. The governor, as the king's representative, 
 is the first branch of this subordinate legislature, 
 and hath the sole power of convening, adjourning, 
 proroguing, and dissolving the general assembly. 
 The Council, or (as it is called) Upper House of 
 Assembly, is an humble imitation of the House of 
 Lords. The Assembly, or (as it is called in most of 
 the colonies on the continent) Commons' House of 
 Assembly, represents the people at large, and is 
 chosen by them. The proceedings of the Houses of 
 Assembly in the colonies are conducted, and their 
 
X.] OF A SUBORDINATE GOVERNMENT. 309 
 
 journals kept, in a manner much conformed to those 
 of the two houses of parliament."* 
 
 " The British establishments in the West Indies," 
 says Bryan Edwards, " are commonly termed King's 
 Governments, and from what has been stated in 
 some preceding parts of this work, the reader must 
 have observed how very nearly their internal con- 
 stitutions conform to that of the mother-country. 
 Their different orders of judicature are exactly 
 like those of England, and their legislatures in 
 general respectively consist of three distinct 
 branches, i. e., a governor representing the crown ; 
 a council or upper house ; and a body of delegates 
 representing the people at large."f . . . ** Provincial 
 parliaments, or colonial assemblies, (it matters not 
 by what name they are called,) being thus established 
 and recognized, we shall find that in their formation, 
 mode of proceeding, and extent of jurisdiction within 
 their own circle, they have constantly copied, and 
 are required to copy, as nearly as circumstances will 
 permit, the example of the parliament of Great 
 Britain. The freeholders are assembled in each 
 town or parish respectively by the king's writ ; their 
 suffrages are taken by an officer of the crown ; and 
 the persons selected are afterwards commanded, by 
 royal proclamation, to meet together at a certain 
 time and place in the proclamation named, to frame 
 statutes and ordinances for the public safety. When 
 met, the oaths of allegiance, &c., are administered 
 
 * Constitution of the British Colonies, p. 241 — 3. 
 
 + History of the West Indies, b. vi. ch. i. (vol. ii. p. 385.) 
 
310 INCONVENIENCES OF THE VARIOUS FORMS [cH. 
 
 unto each of them, and a speaker being chosen and 
 approved, the session opens by a speech from the 
 king's representative. The assembly then proceeds 
 as a Grand Provincial Inquest to hear grievances, 
 and to correct such public abuses as are not cog- 
 nizable before inferior tribunals."* 
 
 Mr. Long, in his history of Jamaica, gives the 
 following account of the government of that 
 island : — " In pursuance of the royal promise, and as 
 soon as the colony was numerous and considerable 
 enough to make it an object for civil government, a 
 civil government was instituted, in most respects the 
 same as what now exists. The king could not give 
 any other form of civil government or laws than 
 those of England, and accordingly, the form of 
 government here resembles that of England almost 
 as nearly as the condition of a dependent colony can 
 be brought to resemble that of its mother-country, 
 which is a great and independent empire. Here, as 
 in England, we have coroners, constables, and jus- 
 tices of the peace. We have a Court of Common 
 Pleas, Court of Exchequer, and Court of King's 
 Bench. We have grand and petty juries. We have 
 a Court of Chancery, a Court of Ordinary for the 
 probate of wills and granting of administrations ; 
 a Court of Admiralty, for the trial of offences on 
 the high seas, and other business, civil and maritime ; 
 Courts of Quarter Session, vestries, and in time of 
 law martial, a Military Court. The coroner is elected 
 by the people, the constables are appointed by the 
 * History of the West Indies, b. vi. ch. ii. (vol. ii. p. 419.) 
 
X.] OF A SUBORDINATE GOVERNMENT. 311 
 
 justices of the peace, and the judges of all the 
 Courts act by authority of the king's commission, 
 under the broad seal of the island. The different 
 orders of judicature are then exactly like those in 
 England, subsisting by the same authority, and are 
 instituted for the same purposes. There is some- 
 what the same resemblance preserved in the forms 
 of our legislature. It is composed of three estates, 
 of which the governor, as representing the king, is 
 head. Having no order of nobility here, the place 
 of a house of peers is supplied by a council of twelve 
 gentlemen appointed by the king, which, in the 
 system of our legislature, forms the Upper House. 
 The Lower House is composed, as in Britain, of the 
 representatives of the people elected by the free- 
 holders."* '' The Assembly," Mr. Long afterwards 
 adds, " consider their privileges as derived to them 
 from their constituents, and that they are not con- 
 cessions from the crown, but the right and inhe- 
 ritance of the people, and that the privileges which 
 they claim are absolutely necessary to support their 
 own proper authority, and to give the people of the 
 colony that protection against arbitrary power which 
 nothing but a free and independent assembly can 
 give. Their right they found on this presumption, 
 that the Assembly of this island holds the same rank 
 in the system of their constitution as a British 
 House of Commons does in that of the mother- 
 country."'!' 
 
 Mr. Haliburton describes the constitution of the 
 House of Assembly of Nova Scotia in the following 
 
 * Vol. i. p. 9. t Vol. i. p. 56. 
 
312 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 terms: — *' The Assembly resembles the Lower House 
 of Parliament in its formation, mode of procedure, and 
 power within its jurisdiction, as far as the different 
 circumstances of the country permit. The free- 
 holders are assembled, in the several counties and 
 towns entitled to representation, by the king's writ, 
 and their suffrages taken by the sheriff. The 
 members thus elected are required by the governor 
 to meet at Halifax, the capital of the province, at a 
 certain day, when the usual oaths being admi- 
 nistered, and a speaker chosen and approved, the 
 session is opened by a speech from the person 
 administering the government, in imitation of that 
 usually delivered from the throne, in which, after 
 adverting to the state of the province, he calls their 
 attention to such local subjects as seem to require 
 their immediate consideration."* 
 
 In several of the British colonies the local sub- 
 ordinate government was originally not a tripartite 
 body, but consisted only of the governor and a 
 House of Assembly. In progress of time, however, 
 the executive council of the governor was allowed 
 to acquire a legislative power, at first jointly with 
 the governor, and afterwards separately ; and it 
 began to occupy a place in the subordinate govern- 
 ment, which was considered analogous to that of 
 the House of Lords in the supreme government.^ 
 Mr. Haliburton makes the following remarks on the 
 council of Nova Scotia : — " As an Upper House, 
 
 * Account of Nova Scotia, vol. ii. p. 319, 320. 
 f See Edwards, vol. ii. p. 405—8. Long, vol. i. p. 164. Hali- 
 burton's Nova Scotia, vol. ii. p. 314. 
 
X.] OF A SUBORDINATE GOVERNMENT. 313 
 
 their proceedings, though conducted with closed 
 doors, are formal, and in imitation of the usage of 
 the House of Lords ; and although they cannot vote 
 by proxy, they may enter the reasons of their dissent 
 on their journals. Dissimilar as this body is in many 
 important particulars to the House of Lords, any 
 nearer approach to the original appears, from the 
 state of the country, to be very difficult."* 
 
 The principles which have been just stated were 
 fully recognized and adopted by the British parlia- 
 ment in remodelling the constitution of Canada in 
 1791. A tripartite legislature was established in 
 both provinces, avowedly in imitation of the tri- 
 partite legislature of Great Britain ; and the go- 
 vernor was expressly enabled to give his consent to 
 Acts of the legislature, and such consent was final 
 unless the Act was disallowed by the Crown within 
 two years. 
 
 Moreover, according to the former practice in seve- 
 ral of the English colonies, an Act of the local legis- 
 lature was in force as soon as it received the assent of 
 the governor, without its being remitted to England 
 for the approbation of the crown ;-[ at the present 
 day, a legislative measure which has been passed by 
 a local legislature of a British colony is called an 
 Act (and not a Bill) when it is remitted to England 
 for the assent of the crown. 
 
 * See Edwards, vol. ii. p. 405—8. Long, vol. i. p. 164. Hali- 
 burton's Nova Scotia, vol. ii. p. 315. 
 
 t See Edwards, vol. ii. p. 408. Long's Jamaica, vol. i. pp. 20. 56. 
 196. Story's Commentaries on the Constitution of the U. S., vol. i. 
 p. 145. 158. 
 
314 INCONVENIENCES OF THE VARIOUS FORMS [cH. 
 
 Such having been the course of the dominant 
 country with respect to the matter in question, it 
 was natural that its conduct should diffuse an opinion 
 amongst the inhabitants of its dependencies, that 
 their governments were co-ordinate with its own ; 
 it was natural, to use the words of Adam Smith, that 
 the people of the colonies should be fond of calling 
 their assemblies parliaments, and should consider 
 them as equal in authority to the parliament of 
 Great Britain.* 
 
 There is a constant tendency, from inevitable 
 causes, to a misconception of the character and 
 powers of a subordinate government. The relation 
 of a subordinate to a supreme government is a com- 
 plicated relation, which the people both of the 
 dominant country and the dependency are likely to 
 misunderstand, and the incorrect notions enter- 
 tained by either party are likely to give rise to 
 unfounded expectations and to practical errors in 
 their political conduct. It is the duty of the go- 
 vernment of the dominant country to do every- 
 thing in its power to diffuse correct opinions and to 
 dispel errors respecting its political relations with 
 the dependency, and still more to avoid creating an 
 error on this subject ; since, in case of any collision 
 between the dominant country and the dependency, 
 which an error on this subject is likely to produce, 
 the weaker party, that is the dependency, can 
 scarcely fail to be the chief sufferer. Unless the 
 dominant country should be prepared to concede 
 * See above, p. 297. 
 
X.] OF A SUBORDINATE GOVERNMENT. 315 
 
 virtual independence, it ought carefully to avoid en- 
 couraging the people of the dependency to advance 
 pretensions which nothing short of independence 
 can satisfy. If a dominant country grants to a de- 
 pendency popular institutions, and professes to allow 
 it to exercise self-government, without being pre- 
 pared to treat it as virtually independent, the domi- 
 nant country by such conduct only mocks its depen- 
 dency with the semblance of political institutions 
 without their reality. It is no genuine concession 
 to grant to a dependency the names and forms and 
 machinery of popular institutions, unless the domi- 
 nant country will permit those institutions to bear 
 the meaning which they possess in an independent 
 community ; nor do such apparent concessions pro- 
 duce any benefit to the dependency, but, on the con- 
 trary, they sow the seeds of political dissensions, and 
 perhaps of insurrections and wars, which would not 
 otherwise arise. 
 
 In the next place, a dominant country ought not, 2. The do- 
 by neglecting a dependency, to allow it to form habits country 
 of practical independence, unless it be prepared to t" Lgkct 
 follow this system to its legitimate consequences, dencyr"' 
 and to recognize formally the independent govern- 
 ment which has grown up though its sufferance. 
 
 If a dependent colony be neglected during its 
 youth by the dominant mother-country, it enjoys 
 the advantages of practical independence which that 
 neglect implies, and being weak and small it is not 
 tempted to assert its independence : it feels the need 
 of protection by the mother-country, and does not 
 
316 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 as yet think of entire separation from it. When it 
 has grown older and stronger, its wealth naturally 
 suggests to the mother-country the policy of re- 
 quiring it to contribute to the expenses of the 
 general government. But if it has been neglected 
 up to that time by the mother-country, it will 
 probably proceed to assert its independence, and the 
 mother-country must either resort to coercive mea- 
 sures or yield to its pretensions. The history of 
 the Anglo-American colonies makes it probable 
 that a mother-country will neglect a colony while 
 it is weak and needs assistance, and will attempt 
 to tax it when it has become strong and is likely to 
 resist. 
 
 The neglect of a dependency by the dominant 
 country is a snare and a deceit to the people of the 
 former ; it lures them on to their destruction, unless 
 the dominant country should be prepared to grant 
 them the independence which they will infallibly 
 seek to obtain. 
 3. The do- Por the purpose of preventing such neglect, and 
 country the mischicvous consequences which it entails, the 
 
 ought to le- ^ ^ ^ 
 
 gisiate for dominant country ought to legislate for the depen- 
 dency, dency, whenever such legislation would be useful to 
 
 whenever 
 
 such legia- the latter. 
 
 would be It will appear from preceding parts of this 
 Essay, that the occasions upon which the supreme 
 government can legislate directly for a dependency 
 to the advantage of the latter, are not numerous. 
 There are, however, cases in which such legislation 
 is expedient. In every such case the supreme go- 
 
X.] OF A SUBORDINATE GOVERNMENT. 317 
 
 vernment ought to legislate for the dependency, not 
 merely on account of the utility resulting from the 
 particular act of legislation, but also in order to 
 remind the dependency of its dependence, and to 
 avoid the neglect of the dependency with the mis- 
 chievous consequences which that neglect involves. 
 
 But, for the purpose of accomplishing this object, 
 all formal obstacles in the dominant country to such 
 legislation ought, as far as possible, to be removed. 
 
 It often happens that the supreme government, 
 owing to its form being popular, or to the mul- 
 tiplicity of the demands upon its attention, is unable 
 to legislate directly for a dependency, except upon 
 extraordinary occasions. In this state of things it 
 is expedient that the legislation for the dependency 
 which proceeds from the dominant country should be 
 conducted by some subordinate authority in it. But 
 the subordinate authority best fitted for this purpose 
 is that part of the subordinate government of the de- 
 pendency which is placed in the dominant country. 
 The legislation by such a subordinate authority and 
 the legislation of the supreme government itself 
 would, it is manifest, equally emanate from authori- 
 ties representing the opinions and interests of the 
 dominant country. 
 
 In applying this remark to the English depen- 
 dencies, we find that the crown, which forms that 
 part of the subordinate government of a dependency 
 which is placed in the dominant country, can legis- 
 late (by orders in council or by instructions through 
 the secretary of state) for a crown colony ; but that 
 
318 INCONVENIENCES OF THE VARIOUS FORMS [cil. 
 
 the crown cannot legislate for a dependency in which 
 the local government is partly composed of a house 
 of assembly or other body coordinate with itself. 
 
 The rule which prevents the English crown from 
 legislating for a dependency in which the form of 
 the local subordinate government is popular does 
 not lead to inconvenient consequences, provided that 
 the dependency be allowed to manage its own in- 
 ternal affairs and to enjoy a virtual independence. 
 But the application of this rule to dependencies to 
 which England does not intend to allow a virtual 
 independence is inconvenient, since it is impossible 
 for parliament to legislate frequently for a single 
 dependency ; and therefore, when a necessity arises 
 for the legislative interposition of the dominant 
 country, it is likely that the interposition will come 
 at too late a period, or will be made otherwise under 
 unfavourable circumstances. Accordingly, in a de- 
 pendency belonging to the latter class, it seems expe- 
 dient that the house of assembly should be considered 
 mainly as a check upon the legislative powers of the 
 governor and his council ; and that the crown should 
 possess a power of legislating for such a dependency 
 in the same manner as it legislates for a crown 
 colony. 
 
 The following reasons may be alleged in support 
 of this conclusion : — 
 
 If England is to legislate at all respecting the 
 internal affairs of any of its dependencies, the pos- 
 session of this power by the crown would, in general, 
 enable it to legislate under the most favourable cir- 
 
X.] OF A SUBORDINATE GOVERNMENT. 319 
 
 cunistances. Since the crown would act upon the 
 advice of the department peculiarly charged with 
 the affairs of the dej)endency to which the law would 
 relate, its interposition would probably be made at 
 a sufficiently early time to prevent the various evils 
 arising from delay. The persons so advising the 
 crown would be exempt from local interests and 
 passions, and would probably not be influenced ma- 
 terially by any political party in the dependency. 
 They would, moreover, be directly responsible to 
 parliament for the advice so given by them, and 
 their responsibility might be increased if every order 
 in council, or other legislative act issued by the 
 crown to a dependency, were presented to parlia- 
 ment, together with a written statement of the pur- 
 pose and grounds of the measure. 
 
 The concession of a power of this kind to the 
 crown would not diminish the legislative power of 
 parliament over the dependencies. The crown would 
 act by powers expressly delegated to it by parlia- 
 ment. Now when a supreme legislature delegates a 
 power of subordinate legislation respecting a certatin 
 subject, it does not diminish its own power of legis- 
 lating respecting that subject. An order in council 
 affecting a dependency might be repealed or modified 
 by parliament as soon as it was issued ; and no pro- 
 vision of an order in council would be valid which 
 was inconsistent with an act of parliament. 
 
 It may be objected to legislation for a dependency 
 by orders in council that they are advised by persons 
 who are not the chosen representatives of the people 
 
320 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 of the dependency, and over whom the latter exer- 
 cise no direct influence. But this objection 
 equally applies to legislation for a dependency by 
 parliament, since the people of a dependency are 
 not directly represented in parliament, and it, in 
 fact, involves a claim inconsistent with a state of 
 dependence. 
 
 It may be remarked that the Secretary of State 
 for the Colonial Department and his official assist- 
 ants know more about the condition and interests 
 of the British dependencies, than Parliament or the 
 public, inasmuch as their attention is more ex- 
 clusively directed to the subject. It is likewise 
 probable that they will care more for the interests 
 of the dependencies committed to their charge, on 
 account of their being under a responsibility to 
 public opinion, by which Parliament is not affected 
 in an equal degree, and from which the public at 
 large is nearly exempt. 
 
 The preceding remarks have been intended to 
 show, that a dependency which is likely to remain 
 virtually dependent for a considerable time ought 
 not to be placed under popular institutions of such 
 a character as will probably tempt the people to 
 aim at practical independence ; that a popularly 
 elected body and other popular institutions are 
 expedient as a check and an assistance to the go- 
 vernor and his council or other local executive au- 
 thorities ; but that facilities should be given to the 
 home authorities to legislate for the dependency 
 without a recurrence to the authority of the supreme 
 
X.] OF A SUBORDINATE GOVERNMENT. 321 
 
 government. These ends may be best attained, with 
 respect to an English dependency having popular 
 securities against misgovernment, by requiring the 
 consent of a popularly-elected body in a depen- 
 dency to every act of the local subordinate govern- 
 ment, by establishing in it a liberty of the press and 
 popular municipal bodies, and, at the same time, by 
 granting to the crown a power of legislating for the 
 dependency without the concurrence of the local 
 popular body. 
 
 Before we conclude the series of remarks upon Plan of a 
 
 ^ cousulta- 
 
 the means of reconciling popular institutions in a tive council 
 
 . . in a depen- 
 
 dependency with its virtual dependence, we will dency, or a 
 
 T • 1 '11 • ^ n council re- 
 
 advert to a plan which might be tried for giving to presenting 
 
 a dependency many of the advantages resulting of the de- 
 
 from popular institutions, without exposing it or but not 
 
 the dominant country to their countervailing dis- anyTegis? 
 
 J , lative or 
 
 advantages. executive 
 
 This plan consists in subjecting the governor (or p°^®"' 
 other head of the local subordinate government) to 
 the control of a council representing the opinions 
 and feelings of the more intelligent portion of the 
 people, but not possessing any legislative or admi- 
 nistrative powers strictly so called. The governor 
 would be bound to consult this council upon every 
 legislative measure; but neither he nor the home 
 department of the subordinate government would 
 be concluded by its opinion. It would have the 
 powers of petitioning the governor to introduce any 
 law, and of dissenting from any law proposed by 
 him, or of suggesting amendments in it; but the 
 
322 INCONVENIENCES OF THE VARIOUS FORMS [CH. 
 
 governor would be at liberty to refuse the request 
 or reject the advice. In case, however, he decided 
 against such request or advice, he would be bound 
 to report to the home authorities the grounds of his 
 decision. 
 
 The establishment of such a council as we have 
 just stated would possess the following advantages. 
 By concentrating the opinion of the intelligent and 
 proprietary classes of the dependency upon its go- 
 vernment, it would increase the influence of the most 
 enlightened public opinion in the dependency upon 
 the acts of its immediate rulers ; and also (though 
 in a less degree) upon those of the home authorities 
 and even of the supreme government. It would 
 likewise provide an authentic organ through which 
 the local government and the home authorities could 
 easily learn that opinion. Without such a council 
 the home authorities have no means of learning 
 authentically the opinions and feelings of the more 
 intelligent part of the people, in a dependency whose 
 local government is not controlled by a representa- 
 tive body. Accordingly, when a complaint upon 
 any political matter is made by any of the inhabit- 
 ants of such a dependency, the home authorities 
 run the risk of falling into serious error, from their 
 necessary ignorance of the characters and purposes 
 of the complainants. If they entertain the complaint, 
 they may do an injustice to the local government, 
 and may even lower its credit and weaken its au- 
 thority ; if they do not entertain the complaint, they 
 may refuse redress of a real grievance, and create 
 
X.] OF A SUBORDINATE GOVERNMENT. 323 
 
 an opinion that the authorities in the dominant 
 country are deaf to the prayers of the dependency. 
 
 Such a council, as representing the more intelli- 
 gent classes of the dependency, and as destitute of 
 legislative and executive powers, would probably 
 conduct itself, in general, with discretion and for- 
 bearance. Instead, like a representative body pos- 
 sessing legislative powers, of prepossessing the do- 
 minant country against the dependency by a dis- 
 ingenuous and indiscriminating opposition to the 
 measures of the local government, it would rather, 
 by the general moderation of its proceedings, create 
 a favourable disposition towards the dependency in 
 the government and public of the dominant country, 
 upon which (especially if it be condemned by its 
 weakness to dependence) it must ultimately and 
 permanently rely for obtaining a good administration 
 of its political concerns. But although such a 
 council would possess no proper legislative or exe- 
 cutive powers, and would therefore be unable to 
 arrest the machine of government, it would, by 
 giving the people of the dependency an authentic 
 legal organ of their political opinions and wishes, 
 and affording them a considerable security against 
 the misrule of the local and even of the home authori- 
 ties, tend to conciliate their affections towards the 
 government, and to mitigate the discontent which 
 they would naturally feel if they were excluded from 
 taking any part, or having any voice, in the manage- 
 ment of their own political affairs. 
 
 It may l)e objected to the plan just described, 
 
 y2 
 
324 INCONVENIENCES OF THE VARIOUS FORMS, ETC. [CH 
 
 that such a council, though nominally destitute of 
 legislative powers, would, in a short time, come to 
 possess them practically ; since the governor and the 
 home authorities would be afraid or unwilling to 
 act in opposition to its opinion, and would therefore 
 treat it as if it were virtually a co-ordinate authority 
 and not a merely consultative body. But such a 
 council could only acquire a legislative power by 
 the sufferance of the governor and the home autho- 
 rities, inasmuch as the subordinate government 
 could legislate without its consent ; and the known 
 inconveniences of a representative body in a depen- 
 dency possessing a legislative power would afford a 
 strong inducement to the members of the subordinate 
 government to assert constantly, and occasionally to 
 exercise, their exclusive power. It may likewise be 
 objected to the plan, that such a council would 
 afford a centre in which the discontent of the de- 
 pendency might be collected, and round which it 
 could organize itself. To this objection it may be 
 answered that, supposing the people of the depen- 
 dency to be discontented with their government, 
 their discontent will find a more dangerous vent in 
 voluntary and probably illegal associations, if it has 
 no legitimate and constitutional organ. It may be 
 added, that if the people of the dependency are 
 generally dissatisfied with their government, and if 
 they are likely to resist its authority by force with 
 any reasonable prospect of success, the dependency 
 can scarcely be considered as belonging to those 
 which the dominant country ought to retain in a 
 state of virtual dependence. 
 
Xr.] HOW A DEPENDENCY MAY CEASE TO EXIST. 325 
 
 CHAPTER XI. 
 
 How a Dependency may cease to exist as such, or may lose its 
 distinctive character. 
 
 I HAVE attempted in the first five chapters to ex- 
 plain the nature of a dependency; and I have 
 endeavoured in the following chapters to state the 
 advantages and disadvantages which arise to the 
 dominant country and the dependency from the 
 relation of supremacy and dependence by which 
 they are connected. I shall consider, in conclusion, 
 how a dependency may cease to exist as such ; or 
 how it may lose the character by which it is dis- 
 tinguished from an independent state, and from a 
 dependent community directly subject to the su- 
 preme government. 
 
 There are two modes in which a dependency may Modes by 
 
 ... , J J which a de- 
 
 lose its distmctive character : first, it may become pendency 
 
 Til* 1 r» 1 ™^y ^°^® 
 
 directly subject to the supreme government of the its distinc- 
 
 country on which it is dependent (or to the supreme racter. 
 government of some other independent country) ; 
 and, secondly, it may become an independent state. 
 As a dependency is a territory governed by an im- 
 mediate government of a peculiar class or descrip- 
 tion, an essential alteration in a dependency, con- 
 sidered as such, supposes that its immediate go- 
 vernment is destroyed or essentially altered. 
 Consequently, if the immediate government sur- 
 
326 MEANS BY WHICH A [CH. 
 
 vives, on either of the two events which we have 
 just supposed it undergoes an essential change. 
 On the first of those events it remains subordinate, 
 but loses its complete organization : on the second, 
 it retains its complete organization, but becomes 
 supreme. 
 1. It may A dependency cannot lose its distinctive character 
 
 become ^ ^ *' 
 
 directly in the first of these modes, unless the dependent 
 
 subjcet to , 
 
 the su- territory be so near the dominant country that the 
 
 premego- , . . , , . . . p 
 
 yernment. latter may rule it without the interposition oi a 
 subordinate government.* When a dependency is 
 so situated, the supreme government may incorpo- 
 rate the dependency with the parts of its dominions 
 which it governs directly. For example, in conse- 
 quence of the concession made by the Romans in 
 the Social war, the Italian communities were con- 
 verted from dependencies into integral portions of 
 the territory directly subject to the sovereign go- 
 vernment of the Roman republic. Their citizens 
 were no longer limited to the right of voting in a 
 subordinate local assembly, but obtained a vote in 
 the supreme assembly of the citizens at Rome.f 
 The Union of Ireland with Great Britain in 1800 
 may be considered as an example of the same 
 change; inasmuch as Ireland continued to be de- 
 pendent in fact until the Union,J though it had 
 become nominally and legally independent from the 
 year 1782. Since the Union, although the practice 
 of sending a viceroy to Ireland has been retained, 
 
 * Above, chap. iv. 
 
 t Above, p. 130. See the passage of Wachsmuth cited in p. 106. 
 
 X See Note (L.) 
 
XI.] DEPENDENCY MAY CEASE TO EXIST. 327 
 
 the Irish government has lost its former complete- 
 ness and separateness, and the country is no longer 
 a dependency. So, if it were deemed expedient, 
 Guernsey and Jersey, with the other Channel islands, 
 and the Isle of Man, might be deprived of their 
 character of dependencies, and be governed directly 
 by the English government, like the other small 
 islands adjacent to Great Britain. 
 
 Adverting to the second mode in which a depen- 2. it may 
 dency may lose its distinctive character, we will indepen- 
 consider the various ways in which it may become 
 an independent state. 
 
 1. A dependency may become an independent By a revolt 
 state by a successful revolt of the local subordinate ordinate 
 government from the supreme government; or by a mJntorthe 
 successful revolt of the people of the dependency p®*^p^®' 
 from both governments. 
 
 In the first case, the revolt may amount to little 
 more than a refusal of the local subordinate govern- 
 ment to obey the commands of the supreme govern- 
 ment ; the relations of the people of the dependency 
 to the former government remaining unchanged. / 
 It has been remarked, in previous parts of this essay, 
 that the nature of a subordinate government, and 
 the ordinary temper of the inhabitants of a depen- 
 dency, afford considerable facilities for the success 
 of such a revolt ; and that the dependencies of half 
 civilized countries have often become independent 
 in this manner.* It may be remarked, moreover, 
 that the revolt of the English colonies in North 
 
 * Above, pp. 188. 277. 
 
328 MEANS BY WHICH A [cH 
 
 America was substantially a revolt of the local 
 governments ; for the political institutions of every 
 colony were so popular, that the defection of the 
 mass of its inhabitants implied the defection of the 
 body in whose hands the local government was 
 placed. Accordingly, the relations of the insurgent 
 colonists to their local governments were not sub- 
 stantially changed by the success of the insurrection ; 
 the political institutions which the colonies severally 
 possessed, while they were dependent upon Eng- 
 land, being the basis of the several states' govern- 
 ments which they established after they had made 
 themselves independent. 
 
 Of a successful revolt of the people of a depen- 
 dency from the local and supreme governments, the 
 revolt of the Spanish colonies in South America is 
 an example ; for, in none of those colonies was the 
 local government in the hands of the colonists, or 
 of any considerable portion of them. 
 
 The complete organization of its immediate go- 
 vernment gives to a dependency a great facility for 
 establishing its independence by a revolt. In that 
 event the structure of the subordinate government, 
 and even the persons of whom it is composed, may 
 remain unchanged ; and the people may yield to it, 
 as a supreme government, the obedience which they 
 paid to it in its subordinate character. But a country 
 immediately subject to a supreme government has 
 no such facility for bringing about a revolution. It 
 has no subordinate government completely organ- 
 ized ; and on revolting from its supreme govern- 
 
XI.] DEPENDENCY MAY CEASE TO EXIST. 329 
 
 ment, it must frame a new government to meet the 
 exigencies of the occasion. Thus, if the local go- 
 vernment of Egypt established its independence, it 
 probably would undergo no further change than 
 the severance of the slight connexion which binds it 
 to the government of the Porte. But when Belgium, 
 which was an integral part of the kingdom of the 
 Netherlands, separated itself from Holland, it was 
 compelled to create a new government; a work 
 which it accomplished by establishing a constitution 
 formed of a king and two legislative chambers, and 
 by placing a prince of a foreign family on the newly 
 erected throne. 
 
 Where the people of a dependency, who have been 
 excluded from all share in the subordinate govern- 
 ment, revolt from their subordinate as well as their 
 supreme rulers, their political institutions may be 
 so nearly dissolved that the creation of a new go- 
 vernment may become necessary. Such was the 
 origin of the recently created kingdom of Greece, 
 which was not founded upon the Turkish provincial 
 government, but was formed out of new elements. 
 
 The revolt of the Maltese from the French go- 
 vernment, in 1798, affords a parallel to the case to 
 which we have just adverted. The government of 
 Malta resided in the Order of St. John when the 
 island was taken from them by the French ; but, on 
 the expulsion of the order, the island became a part 
 of the French dominions and was governed as a 
 dependency of France. As the government of the 
 order was dissolved on their expulsion, the govern- 
 
330 MEANS BY WHICH A [cH. 
 
 ment which the French established in its place was 
 the only government in the island at the time of 
 the revolt. Consequently, the Maltese insurgents 
 who shut up the French in Valletta, and occupied 
 the open country, were compelled to create a go- 
 vernment formed of the leaders of the insurrection ; 
 and this government, hastily and rudely run up to 
 meet a pressing exigency, administered the part of 
 the island not in the possession of the French, till 
 the French in Valletta surrendered the place to the 
 English. 
 
 The difficulty of forming, at the moment of the 
 transition, new political institutions suited to the 
 circumstances of the community, naturally deter- 
 mines a dependency which passes from dependence 
 to independence, to retain its subordinate govern- 
 ment without any other changes than those which 
 the transition renders inevitable. The difficulty is 
 clearly shown by the nature of the common go- 
 vernment, which, at the close of the war of inde- 
 pendence, the revolted English colonies in North 
 America substituted for the common authority of 
 the mother-country. At the close of the war, every 
 colony was virtually an independent state, since it 
 possessed a government of its own, which, though 
 formerly subordinate, had become substantially 
 sovereign. The several colonies, therefore, were 
 bound together by no other tie than the loose con- 
 federacy which they had hastily formed for the 
 limited purpose of conducting the war against 
 England. Through the influence of Washington 
 
r/ ^^ OF TIIK '^ 
 
 [(UNIVERSITy, 
 
 XI.] DEPENDENCY MAY CEASE TOs^:^ISjr^ *^^3Jf\^* 
 
 and other leading statesmen, this con] 
 independent states was converted into a federal 
 state ; the several states retaining their several go- 
 vernments, but submitting to a common government 
 invested with specified powers. The limited extent 
 of the powers given to the common government, 
 and the indefinite extent of the powers reserved by 
 the several governments, are certainly important 
 defects in the political system of the United States ; 
 threatening to bring about a disruption or dissolu- 
 tion of their union, and involving the federal state, 
 which arises from their union, in wars or disputes 
 with other independent communities. But the pre- 
 judices and interests, which, in each of the revolted 
 colonies, supported the powers of its peculiar go- 
 vernment, would have opposed invincible obstacles 
 to a perfect fusion of those colonies into one inde- 
 pendent state ; and, instead of wondering that such 
 a fusion was not accomplished by Washington and 
 his coadjutors, we should rather admire the genius 
 and wisdom which enabled them to approach so 
 closely to that unattainable object.* 
 
 2. A dependency may become an independent By the vo- 
 state, in consequence of the dominant country vo- cewion of 
 
 , , .-, T • 1 • •, the autho- 
 
 luntarily relmquishmg its supremacy. ntyofthe 
 
 Adam Smith is of opinion that no dominant co^'^y? 
 
 * It may be remarked, as an example of the tendency of depen- 
 dent communities which become independent to retain the political 
 institutions which they possessed in their state of dependence, that 
 the chief officer of each of the American State Governments still 
 continues to bear the title of governor ; although this title is in 
 general conferred exclusively on the head of a local government in 
 a dependency. 
 
332 MEANS BY WHICH A [CH- 
 
 country will ever voluntarily relinquish its power 
 over a dependency. " To propose," he says, " that 
 Great Britain should voluntarily give up all autho- 
 rity over her colonies, and leave them to elect their 
 own magistrates, to enact their own laws, and to 
 make peace and war, as they might think proper, 
 would be to propose such a measure as never was, 
 and never will be, adopted by any nation in the 
 world. No nation ever voluntarily gave up the 
 dominion of any province, how troublesome soever 
 it might be to govern it, and how small soever the 
 revenue which it afforded might be in proportion 
 to the expense which it occasioned. Such sacrifices, 
 though they might frequently be agreeable to the 
 interest, are always mortifying to the pride of every 
 nation ; and, what is perhaps of still greater conse- 
 quence, they are always contrary to the private 
 interest of the governing part of it, who would 
 thereby be deprived of the disposal of many places 
 of trust and profit, of many opportunities of acquir- 
 ing wealth and distinction, which the possession of 
 the most turbulent, and, to the great body of the 
 people, the most unprofitable province seldom fails 
 to afford. The most visionary enthusiasts would 
 scarce be capable of proposing such a measure, 
 with any serious hopes at least of its ever being 
 adopted." * 
 
 It is true that there has not been hitherto any 
 instance of a dependency becoming independent by 
 the voluntary act of the dominant country. The 
 * Wealth of Nations, b. 4. ch. 7. Part III. (vol. ii. p. 443.) 
 
XI.] DEPENDENCY MAY CEASE TO EXIST. 333 
 
 Greek colonies form no exception to Adam Smith's 
 remark, since they were independent from their first 
 establishment; and, therefore, the mother-country 
 possessed no power over them, which it could sub- 
 sequently relinquish. The most remarkable changes 
 from dependence to independence have been pro- 
 duced by insurrection against the dominant country ; 
 and the dominant country has not consented to 
 recognize the independence of the formerly depen- 
 dent communities, until it had exhausted all its 
 means of reducing them to obedience. Examples 
 are furnished by the Swiss Confederacy, the United 
 Provinces of the Netherlands, the United States of 
 America, and the various independent states which 
 have been formed out of the revolted Spanish and 
 Portuguese colonies in North and South America. 
 
 It is, however, conceivable that, in a given case, 
 the dominant country might perceive that it derives 
 no benefit from the possession of a dependency, and 
 that the dependency is able and willing to form an 
 independent state ; and that, consequently, a domi- 
 nant country might abandon its authority over a 
 dependency for want of a sufficient inducement to 
 retain it. A dominant country might, for example, 
 see that the dependency contributes nothing to its 
 military defence, or to the expenses of the supreme 
 government ; that it adds nothing, as a dependency, 
 to the productive resources or commercial facilities 
 of the dominant country ; that it is a constant source 
 of expense to the supreme government, is likely to 
 engender many economical evils, and may even 
 
334 MEANS BY WHICH A [CH. 
 
 involve the dominant country in war on its ac- 
 count. It might, moreover, perceive that the depen- 
 dency is sufficiently populous and wealthy to form 
 an independent state, and that the people of the 
 dependency desire independence. 
 
 If a dominant country understood the true nature 
 of the advantages arising from the relation of su- 
 premacy and dependence to the related commu- 
 nities, it would voluntarily recognize the legal 
 independence of such of its own dependencies as 
 were fit for independence ; it would, by its political 
 arrangements, study to prepare for independence 
 those which were still unable to stand alone ; and 
 it would seek to promote colonization for the pur- 
 pose of extending its trade rather than its empire, 
 and without attempting to maintain the dependence 
 of its colonies beyond the time when they need 
 its protection. 
 
 The practical difficulties and inconveniences in- 
 herent in the government of dependencies, which 
 have been stated in preceding chapters, are neces- 
 sary or natural consequences of the relation of supre- 
 macy and dependence, and of the imperfect though 
 necessary expedient of a subordinate government. 
 Now if a dependency is considered as in training 
 for ultimate independence, the difficulties naturally 
 incident to its government, if they do not vanish, 
 are nevertheless greatly reduced. If a dependency 
 were so considered, the free and forcible action of 
 its local institutions would be encouraged as an un- 
 mixed good, not discouraged as a source of strife 
 
XI.] DEPENDENCY MAY CEASE TO EXIST. 335 
 
 with the dominant country, and of vain resistance 
 to its power ; and all precautions on the part of the 
 supreme government for the purpose of preventing 
 the people of the dependency from regarding their 
 subordinate government as virtually supreme, would 
 be needless. If a dependency be distant, if its terri- 
 tory be large, and its population numerous ; and if 
 the powers of its local subordinate government re- 
 side, to a considerable extent, in a body chosen by 
 the inhabitants; it is difficult for the dominant 
 country to prevent it from forming habits and opi- 
 nions which are scarcely consistent with its virtual 
 dependence. But if such a dependency be regarded 
 as in training for independence, the local popular 
 institutions leading to, and implying, self-govern- 
 ment, may be allowed to have free play, and the 
 interferences of the dominant country with the po- 
 litical affairs of the country may cease almost 
 insensibly. 
 
 Admitting the impossibility of the prevailing 
 opinions concerning the advantages of extensive 
 empire being so far modified as to permit a domi- 
 nant country to take such a view of its political 
 relations with its dependencies as that now indi- 
 cated, it is proved by the example of England that 
 the dominant country may concede virtual inde- 
 pendence to a dependency, by establishing in it a 
 system of popular self-government, and by abstain- 
 ing almost constantly from any interference with its 
 internal affairs. 
 
 Such a relation of the dominant country and the 
 
336 MEANS BY WHICH A [CH. 
 
 dependency as has been described in the preceding 
 paragraph seems, however, scarcely consistent with 
 the duration of the dependence of the latter for any 
 considerable period. At all events the long duration 
 of its dependence under such circumstances implies 
 as much moderation and rationality on both sides 
 as would be implied on the side of the dominant 
 country by a voluntary cession of its authority over 
 the dependency. 
 
 It is obvious to remark, that the dominant country 
 ought not to abandon its authority over a depen- 
 dency, unless the people of the dependency consent 
 to the cession, and are capable of forming an inde- 
 pendent community. It is bound morally, not to 
 throw off a helpless dependency, although the pos- 
 session of it should promise no advantage to itself. 
 Mode in ^^q ^iH closc the urescnt chapter with some 
 
 which a *■ ^ 
 
 district im- remarks on a case not fallins: strictly under the 
 
 mediately ^ •^ 
 
 subject to above heads, but related by a close analogy to the 
 
 a supreme , ^ ^ 
 
 government subjcct uudcr cousidcratiou. 
 
 rvpf*o*mPS 3< 
 
 dependency It may happen that the inhabitants of a territory 
 
 or an inde- . -i- ^ i • i 
 
 pendent immediately subject to the supreme government 
 desire to form themselves into a separate community, 
 independent or dependent, not by a violent insur- 
 rection against that government, but with its consent 
 and by peaceable means. Examples of this state of 
 things are afforded by Scotland during the first half 
 of the last century, by Sicily during the revolution 
 of 1820,^ and by Ireland at the present time, 
 
 * See Colletta, Storia di Napoli, lib. ix. (torn. iv. p. 148.) 
 
Xr.] DEPENDENCY MAY CEASE TO EXIST. 337 
 
 The demand of the advocates of the repeal of the 
 Act of Union between Great Britain and Ireland 
 appears to be, that Ireland should be placed in the 
 same political relation with Great Britain as that 
 which existed immediately before the Union. 
 
 Ireland (as we have already seen*) was both 
 legally and in fact a dependency of England or 
 Great Britain until the year 1782. In that 
 year the Parliament of Great Britain surrendered 
 its supremacy over Ireland ; but the King of 
 Great Britain continued to be, as such, King 
 of Ireland. The change which took place at this 
 time in the political relations of Great Britain and 
 Ireland was, therefore, of the following nature. 
 Before the year 1782, the King of Great Britain 
 was, as a constituent part of the Parliament of 
 Great Britain, a member of the sovereign govern- 
 ment of Ireland. Before the same year the King of 
 Great Britain was, as such, likewise King of Ireland ; 
 and, as King of Ireland, he was a constituent part, 
 together with the Irish houses of parliament, of the 
 subordinate government of Ireland. Before this 
 year, therefore, the political relations between Great 
 Britain and Ireland closely resembled those between 
 Great Britain and a British dependency whose 
 subordinate government consists of the Crown, with 
 a legislative council appointed by the Crown and a 
 house of assembly elected by the inhabitants ; with 
 this difference, however, that a dependency of this 
 sort is not considered a separate kingdom, annexed 
 
 * Above, p. 92. 154, and see note (L.) 
 
 Z 
 
338 MEANS BY WHICH A [CH. 
 
 to the British Crown. But after the year 1782, the 
 body which was sovereign in Great Britain ceased 
 to be sovereign in Ireland ; the sovereign govern- 
 ment of Ireland consisted of the Crown, with the 
 Irish houses of parliament; and the only political 
 connexion between the two countries was, that the 
 King of Great Britain was also King of Ireland, the 
 rules of succession to the two crowns being, more- 
 over, so long as they both might remain unaltered, 
 identical. The political relation between Great 
 Britain and Ireland during the eighteen years fol- 
 lowing 1782 was similar to the political relation 
 between Hanover and the United Kingdom during 
 the reign of William IV. ; with this exception, that 
 the rules of succession to the two crowns were iden- 
 tical in the case of Great Britain and Ireland, and 
 not identical in the case of the United Kingdom and 
 Hanover. 
 
 But although Ireland ceased in 1782 to be legally 
 and in form, it did not then cease to be, vir- 
 tually and in fact, dependent upon Great Britain. 
 The great body of the Irish people continued to be 
 excluded from all effective participation in the ex- 
 ercise of political rights ; the country was managed 
 by a native party devoted to the English interest 
 and to the maintenance of the connexion with Eng- 
 land ; and, consequently, the government was sub- 
 stantially, though covertly, directed by English 
 influence. Although the form of the Irish govern- 
 ment was completely altered in regard to its relation 
 with England, by the events of 1782, the extent of 
 
XI.] DEPENDENCY MAY CEASE TO EXIST. 339 
 
 the indirect influence of England over it had not, 
 before the Union, been materially affected by that 
 change. 
 
 Now it may be assumed that the advocates of a 
 repeal of the Act of Union between Great Britain 
 and Ireland do not wish to place Ireland in the 
 same legal relation to Great Britain as that in which 
 it stood prior to 1782, and to make it a dependency 
 of Great Britain. Their desire doubtless is, that 
 the legal relation of Great Britain and Ireland 
 should be restored to the state in which it was at 
 the time of the Union. 
 
 But although the legal relation which subsisted 
 between Great Britain and Ireland at the time of 
 the Union might be restored, the general political 
 relations subsisting between the two countries would 
 necessarily be very different. The internal changes 
 which have taken place in Ireland since 1800 have 
 rendered it impossible that the bulk of the people 
 should be excluded from the effective exercise of all 
 political rights, and that the country should be 
 governed by a merely English party. The Irish 
 House of Commons would, if the Act of Union were 
 repealed, be elected by constituencies not less po- 
 pular than those by which the Irish members of the 
 House of Commons of the United Kingdom are 
 elected. An Irish House of Commons, so elected, 
 could not fail to obtain the chief influence in the 
 government of the country, and would, therefore, 
 render Ireland, for some time at least, both legally 
 and virtually an independent state. The power of 
 
 z 2 
 
340 MEANS BY WHICH A [cH» 
 
 the Crown would, under these circumstances, be 
 insufficient to render Ireland virtually dependent on 
 Great Britain, or even to procure to Great Britain 
 any sensible influence upon the proceedings of the 
 Irish Parliament. 
 
 The natural relations of Ireland to Great Britain 
 would, however, eventually secure to the government 
 of the latter a considerable influence over that of the 
 former island. The close proximity of their coasts, 
 the identity of their languages, their close com- 
 mercial relations, the ownership of land in Ireland 
 by Englishmen, together with the superior wealth, 
 power, and general importance of Great Britain, 
 must ultimately lead to this result. The inconve- 
 niences which Ireland would sufler from becoming 
 an independent state (such as the increased taxation 
 necessary for maintaining a separate army and 
 navy, and a separate body of representatives with 
 foreign powers, and the loss of the free commercial 
 intercourse with Great Britain and her dependen- 
 cies) would conspire with many other causes to 
 render a large body of the Irish people dissatisfied 
 with their government. It may, therefore, be rea- 
 sonably doubted whether, if the Act of Union be- 
 tween Great Britain and Ireland were repealed, and 
 the government of Ireland were restored to the state 
 in which it existed immediately before the Union, 
 Ireland would long remain a virtually independent 
 state.* 
 
 * It has, I believe, been thought by some persons that in case 
 the act of Union between Great Britain and Ireland were repealed. 
 
XI.] DEPENDENCY MAY CEASE TO EXIST. 341 
 
 a federal relation might conveniently be established between the 
 two countries. It is, however, manifest that in order to establish a 
 federal relation between Great Britain and Ireland, it would be ne- 
 cessary to convert the British parliament into a state legislature, 
 leaving limited functions with respect to Great Britain ; to create a 
 similar body having similar functions with respect to Ireland, and 
 also to create a new federal body distinct from the British and the 
 Irish parliaments ; a change to which the people of Great Britain 
 would be less likely to assent, than to the independence of Ireland. 
 
( 343 ) 
 
 NOTES. 
 
 NOTE A. (p. 1.) 
 
 By the executive power, Bentham understands any subordinate 
 power of government ; any power which is not the supreme legis- 
 lative power. 
 
 "Ce mot, pouvoir executif, ne pr^sente qu'une seule idee claire; 
 c'est celle d'un pouvoir subordonne a un autre, qu'on designe par 
 I'appellation correlative pouvoir Ugislatif.'" — Traites de L6gisla- 
 tion, torn. i. p. 324. (ed. 1802.) 
 
 He divides the executive power into twelve branches, some of 
 which are obviously legislative powers. Thus he describes the 
 first of these in the following manner : 
 
 " Pouvoir subordonne de legislation sur des districts particuliers, 
 sur des classes de citoyens, m^me sur tous, lorsquHl s*agit cCune 
 fonction particuliere du gouvernement.^'' — lb. p. 321. 
 
 The latter words describe the limitation to a class of subjects, 
 which characterizes the delegation of legislative powers, in every 
 case except that of a subordinate government. 
 
 Bentham also makes the following remark respecting the ordinary 
 conception of the distinction between legislative and executive 
 powers. 
 
 " On est tres port^ a appeler pouvoir legislatif celui qu*on volt 
 s'exercer par un corps politique, et pouvoir executif^ celui qu'on 
 voit s'exercer par un seul." — lb. p. 319. 
 
 Mr. Austin, after a detailed investigation of the subject, likewise 
 arrives at the conclusion that the distinction between legislative 
 and executive powers of government cannot be supported. The 
 result of his investigation is contained in the following passage : 
 
 ♦* Of all the larger divisions of political powers, the division of 
 those powers into supreme and subordinate is perhaps the only 
 precise one. The former are the political powers, infinite in num- 
 ber and kind, which partly brought into exercise, and partly lying 
 dormant, belong to the sovereign or state : that is to say, to the 
 monarch properly so called, if the government be a government of 
 one : and, if the government be a government of a number, to the 
 sovereign body considered collectively, or to its various members 
 considered as component parts of it. The latter are those portions 
 of the supreme powers which are delegated to political subordi- 
 nates: such political subordinates being subordinate or subject 
 merely, or also immediate partakers in those very supreme powers 
 of portions or shares wherein they are possessed as ministers and 
 trustees."— Province of Jurisprudence Determined, p. 248, 9. 
 
344 NOTES. 
 
 The inquiry in the text will explain my reasons for not adopting 
 this conclusion, and for thinking that the legislative and executive 
 powers of a sovereign government may be precisely distinguished, 
 although different portions of these powers are often or always 
 vested in the same political body or functionary. 
 
 NOTE B. (p. 26.) 
 
 The weakness of the laws, and their liability to be' set aside in 
 practice, are often complained of by the Athenians. Thus in two 
 verses of Plato the comic poet : 
 
 u^atriv 'hfjLuv oi vo/juei rovroicri rolcri XiTToi? 
 a^a^vlois, av roTtri roi'xo'S h (piXay^ v<pa/vii. 
 
 (Meineke, fragm. Poet. Com. Ant. Pars II. p. 620.) 
 
 The same thought is attributed to Zaleucus, Solon, and others ; 
 see Meineke ad loc. 
 
 So Aristotle was accustomed to say, that the Athenians had in- 
 vented bread-corn and laws ; but that they used the former, and 
 
 not the latter. <^oXkdxi; ^i xu) ccroTUVDf/.ivoi rolg 'A^yivaiovs 'i<puirxtv ivotixivai 
 Tv^ovs Kot.) vofAovS' aXXa. ttv^oTs f^h x^^<r^a/ vofcoi; ll fjun. — DlOg. Laert. V. 17. 
 
 The possession of written laws, and the enforcement of them 
 against the arbitrium of the magistrates, were, however, con- 
 sidered peculiarly characteristic of a democracy. Thus the 
 Athenian law in Andocides de Myst. § 85. ed. Bckker, says : a.y^ci(pc^ 
 llvofjoMTx; a^;)^ccs f/.h x^^°'^xi fjuTiVi ^i^) Uog. Compare the law of Solon, 
 
 •^^(ptcfici Ti (A-nhiv, iJb'ATi (iovXiis fjt-viri 'h^f^.ou, vo/jCou kv^iuti^ov uvai^ DemOSth. adv. 
 
 Aristocrat, p. 649. ed. Reiske. ^schines adv. Ctesiph. § 6. ed. 
 Bekker, distinctly opposes the legality of democratic to the arbitra- 
 riness of despotic and oligarchical governments, tl ya^ 'lffri,u av^a 
 
 ' Ainyouoi, on r^iTs iifft ToXinTeii ^a^a TTutriv av&^ai'roiSf rv^ocvy)? xoc) oktyap'^ioi xa.) 
 ^nfjt,ox^aria,, "^loixouvrai oai fjulv rv^avvtois xcc) oXiyu^-)(^tai to7s r^OTfots ruv \(piaTYixo'ruv, 
 
 al Ti ToXiis ctl 'hrjfjbox^aTovfjbiva.i to/"V vo/*o/j ro7s xiif^ivots. Euripides, likewise, 
 contrasts despotic and democratic governments in the same manner : 
 
 ovolv Tv^uvvou otifffiivicrri^ov ';roXi/, 
 
 O-^OV -TO fJjiV 'Pr^eoTlffTOV olx llfflv VOf/,01 
 
 xoivo), x^ariT V its rlv vofjbov xiXTTj/uuivos 
 ttUTOs Tcc,^' aiiTcf, xa) reV ovxir iffr 'Iffov. 
 yiy^xfjbf/,ivuv ^l tZv vo/JjUV o t affhvhs 
 •rXovtrios rs rriv S;«>iv "irvv s'xs/. 
 
 Suppl. 429—34. 
 Compare the words of Theseus to CEdipus, in Soph. CEd. Col. 913. 
 
 offTis "hixut kaxovactv ilaiX&m •jr'oXiv 
 xciviu vofjbov x^xlvovffav ohViv. 
 
 Other passages are collected in Hermann's Greek Antiquities, ^ 
 54, note 3, who cites a remark from a treatise by Weisse : " Graeci 
 leges scriptas semper habuerunt pro palladio democratiae." 
 
 On the other hand, the oligarchic Sparta had no written laws. 
 One of the three rhetras or oracular decrees said to have been pro- 
 mulgated by Lycurgus, contained a prohibition of written laws : 
 
 (jt.ia, Tuv pnr^aJv h fxh x(^'^^^^ vof/,on iyy^u<pois, Plutarcll, LyCUrg. C. 13. 
 
 Compare Miiller's Dorians, b. i. ch. 7. s^ 4. Aristotle, moreover, 
 in speaking of the judicial powers of the ephors in the Spartan 
 
NOTES. 345 
 
 const itution, says that it would be better if tbey decided according 
 to written laws, and not arbitrarily : S/o^£^ ol/x alroyvu/jbovas (itXTtov K^'mtv, 
 
 aXXa, xuTOi to, y^x/u,ju,a,Ta xa) rovi vofitov;, Pollt. II. 9. (As tO the USC of 
 
 the word auToyvM/jMv for arbitrary, compare the ex]iressions of Aris- 
 totle in another passacje of the Politics respecting the distinction 
 between the government of a fixcnXiv; and that of a rv^avm : v'^xv 11 
 
 iia fjutv TO xara, vofAov (ixiriXixa) xa) S/a to fjuova^x^** ix'ovruv, TU^uvvixat Ti 5/a to 
 
 "iiffTortxu; ec^x^iv xbcto. rrjv aoruv yvufjurtv, iv. 10.) Sce also Miiller's re- 
 marks in his Dorians, b. iii. ch. 6. $ 2. respecting the arbitrary 
 powers of the Spartan Gerontes, which he conceives to have been 
 exercised according to certain unwritten rules of conduct, handed 
 down by tradition ; and he refers to Plato's explanation of cly^atpa 
 v!>f4.,y.a. in his Treatise on Laws, lib. vif p. 793. But the &ypa.(px v'o 1^.1(^0, 
 of Plato and the other Greeks were not equivalent to " unwritten 
 law" in the judicial sense (2. e. rules of law adopted by the courts, and 
 not issued in a written form by the supreme legislature) ; they were 
 merely moral or political maxims, without any compulsive sanction ; 
 and therefore they could not have served the purposes of positive 
 law to any considerable extent. See the Penny Cyclopaedia, article 
 Law, $ 3. 
 
 NOTE C. (p. 29.) 
 
 In the first of the passages cited in the note, Locke evidently 
 means to say that a government is morally hound to govern accord- 
 ing to laws, and not that it has not a legal 'power to govern arbi- 
 trarily. But as similar exi)ressions are sometimes employed in 
 contexts where the meaning is not so obvious as in the passage just 
 cited, and where they may lead to dangerous consequences, I will 
 adduce some remarks of Bentham upon this confusion. The Decla- 
 ration des Droits, made by the Constituent Assembly, contained, in 
 its first article, an announcement that " les distinctions sociales ne 
 peuvent etre fondees que sur I'utilite commune." On these words 
 Bentham comments as follows : 
 
 " Mais qu'entend-on par ces mots, ne peuvent pas f Veut-on dire 
 que ces distinctions ne sont point etablies — ou quelles ne doivent 
 pas Tetre — ou que si elles existent sans etre fondles sur I'utilite 
 commune, il faut les regarder comme nulles et non avenues ? On 
 pent choisir, car ces mots ont ces trois significations parfaitement 
 distinctes. Si Ton veut dire que ces distinctions n'existent pas, 
 e'est un appel aux faits et a I'observation ; si Ion veut dire qu'elles 
 ne doivent pas exister, c'est un appel au jugement des individus sur 
 une matiere de fait. Mais si Ton veut dire qu'elles ne peuvent pas 
 exister parce qu'elles sont nulles en elles-memes, c'est un attentat 
 contre la liberte d'opinion, c'est une invitation a se soulever centre 
 les lois. 
 
 '• Dans le premier sens, la proposition n'est pas dangereuse, mais 
 elle est 6videmment fausse. Dans le second sens, elle est fondee en 
 raison, mais il falloit Vexprimer clairement, et non employer un 
 terme passionn6. Dans le troisieme sens, elle contient une doctrine 
 seditieuse. Dire que la loi ne pent pas, au lieu de dire que le loi ne 
 doit pas, c'est preparer I'insurrection et la justifier d'avance. Je ne 
 saurois com])arpr ces expressions qu'a ces instruments qui ne pre- 
 sentent rien dottensif aux yeux, mais dans lesquels on cache un 
 poignard." — Tactiquc des Assemblees Legislatives, torn. ii. p. 292, 3. 
 
346 NOTES. 
 
 NOTE D. (p. 33.) 
 
 The following instances of the expressions referred to in the 
 text occur in the ancient authors. 
 
 In Herod. VII. 104, Demaratus says to Xerxes of the LacedaR- 
 
 nionians : IXiv^i^oi ya^ lovn; oh 'xu.vra, XXivh^o'i itiri' 'iTurri ya.^ trtpt 'hicr-prorns vofios, 
 Tov vTohifjcatvoutn ^toXXm irt /ubuXkov >? ot ffoi cri. In Plato Leg. III. p. 700. 
 
 A. the Athenian says : olx, «v hf^v l-r) ruv <7ra.xu,iZv v'o[ji,uv o "hfifMs tivuv 
 
 x'Spiosi akXa, T^oTTov ma ixuv ihovXivi rols vof^ot?. Ibid. 715 I). £» >J /t**" 
 ykp av l^ToXii] a^^of/,ivos « xa) uko^o; \>ofAo;, (pSo^civ o^aj <rln roiocvrri iroifi.7^v ovffctV 
 iv ?) 'h\ av %i(T-7roTm ruv a^;^ovrwv., ol oi a^'^^ovrig ^ouXoi rod vofjuov, ffum^iav. 
 Plato Leg. VI' 762. E. ^u'hh favr avl^a hxvoua-^ai -pn^) a^avrav av^^euTuVf 
 ui /jjh oovXivira;, ovo av onr^oTr/S yivoiro a^io; i^alvov' xu) xaXKwTn^KT^ai %p>j tu 
 xaXcog oouXiuffai /jbaXXov ri nC xaXuf ei^^ai' ^r^ajrov fAv ro7s vo/aois (&»? TayTJjv to7s 
 hols ovaxv SoyXs/av), 'i^ura to7§ 'pr^ifffivri^oi; n xa.) hri/Jbeas ^ifhiuxtxri robs vsowj. 
 
 A similar meaning is contained in an axiom ascribed to Zaleucus ; 
 
 U9r av6^u'Xuv fiiv hrrxtrSai rovs xtifcivou? vo/jtov; ov xaXov ouhi ffVf/.'p'i^ov' vto 21 vo/aou 
 fiiXrlovos hrrufiivov xarax^aruffdai xa) xaXiv xa\ avfJt,<piQ^ov, Stob. Florilcg. tit. 
 
 44. J 21. (vol. ii. p. 200. ed. Gaisford.) Compare likewise the cele- 
 brated expression of Pindar, vo^LOi h -ravruv ^aaiXiv?, fragm. 48. ed. 
 Dissen, and Cicero de Leg. III. 1. Ut enim magistratibus leges, 
 ita populo praesunt magistratus ; vereque dici potest magistratum 
 legem esse loquentem, legem autem mutum magistratum. Also 
 an extract from a work jrjg) ^affixdas written in the Doric dialect 
 by Diotogenes the Pythagorean, in Stob. Florileg. tit. 48. ^S 61 . 
 
 (vol. ii. p. 313.) ro fjiXv Vtxa.iov iv ru vo/nu Ivri, o §£ yt vo/ut.o; a'i'rw? ru 'hixa'ico 'o li 
 P>affiXibs viroi vo/^o; ifA-^vx^S ivri, ri vofjLif/jOS a^xuv' 'hia ravr oZv 'hixoc.ioraros xui 
 vofjiifiuTaros. 
 
 A distinction between the government of men and the govern- 
 ment of laws is made in the following passage of Machiavelli. " Le 
 citta, e quelle massimamente che non sono bene ordinate, le 
 quali sotto nome di repubblica si amministrano, variano spcsso i 
 governi e stati loro, non mediante la liberta e la servitii, come molti 
 credono, ma mediante la servitu e la licenza. Perche della liberta 
 solamente il nome dai ministri della licenza (che sono i popolani), 
 e da quelli della servitu (che sono i nobili) e celebrato ; desiderando 
 qualunque di costoro non essere ne alle le^gi ne agli uomini sotto- 
 posto." Istorie Fiorentine, lib. iv. ad init. Ideas similar to those 
 expressed in the passage of Cicero de Legibus cited above, are con- 
 tained in the following passage of Mercier de la Riviere's Ordre 
 Naturel des Societes Politiques (chap. 13. ad init.) 
 
 " Les magistrats depositaires, gardiens et organes des loix, devien- 
 nent, en quelque sorte, des loix vivantes ; et par cette raison, la 
 magistrature occupe necessairement dans la societe la place marquee 
 pour les loix, entre la puissance legislatrice et tous ceuxqui doivent 
 obeir aux loix. Dans tons les temps on I'a regard ee comme formant 
 le lien commun qui unit TEtat gouverne a TEtat gouvernant, et 
 c'est a juste titre ; car ce lien si precieux est I'ouvrage des loix : 
 sans elles il seroit impossible au corps politique de se former. Or 
 tout ce qu'on doit necessairement attribuer aux loix, on doit egale- 
 ment I'attribuer a la magistrature, dont les fonctions sont de faire 
 parler et agir les loix, d'exercer I'autorite des loix, de manifester la 
 volonte des loix, d'en faire I'application, et de leur donner ainsi une 
 existence, une r6alite qu' elles ne peuvent obtenir que par le minis- 
 tere des magistrats qui s'identifient, pour ainsi dire, avec les loix." — 
 Ordre Nat. et Ess. des Soc. Politiques, ch. xiii. (torn. i. p. 146.) 
 
NOTES. 347 
 
 NOTE E. (p. 37.) 
 
 Locke's opinions on the separation of the legislative and execu- 
 tive functions are stated in the following passage of his Essay on 
 Civil Government. 
 
 •' The legislative power is that, which has a right to direct how 
 the force of the commonwealth shall be employed for preserving 
 the community and the members of it. But because those laws 
 which are constantly to be executed, and whose force is always to 
 continue, may be made in a little time, therefore there is no need 
 that the legislative should be always in being, not having always 
 business to do. And because it may be too great a temptation to 
 human frailty, apt to grasp at power, for the same persons who have 
 the power of making laws, to have also in their hands the power to 
 execute them ; whereby they may exempt themselves from obedi- 
 ence to the laws they make, and suit the law, both in its making 
 and execution, to their own private advantage, and thereby come to 
 have a distinct interest from the rest of the community, contrary to 
 the end of society and government : therefore in well ordered com- 
 monwealths, where the good of the whole is so considered, as it 
 ought, the legislative power is put into the hands of divers persons ^ 
 who, duly assembled, have by themselves, or jointly with others, a 
 power to make laws ; which, when they have done, being separated 
 again, they are themselves subject to the laws they have made ; 
 which is a new and near tie upon them, to take care that they make 
 them for the public good. 
 
 *' But because the laws, that are at once, and in a short time 
 made, have a constant and lasting force, and need a perpetual exe- 
 cution, or an attendance thereunto ; therefore it is necessary there 
 should be a power always in being, which should see to the execu- 
 tion of the laws that are made, and remain in force. And thus the 
 legislative and executive power come often to be separated." — Essay 
 on Civil Government, Part II. Sec. 143, 144. 
 
 And he afterwards adds, " that in all moderated monarchies and 
 well framed governments, the legislative and executive powers are 
 in distinct hands." — (s. 159.) 
 
 Montesquieu, in his Esprit des Lois, adopted Locke's opinions, 
 and expressed them in the following form. 
 
 " Lorsque, dans la meme personne, ou dans le merae corps de 
 magistrature, la puissance legislative est rfiunie a la puissance exe- 
 cutrice, il n'y a point de liberty, parce qu'on pent craindre que le 
 meme monarque, ou le meme senat, ne fasse de lois tyranniques 
 pour les executer tyranniquement. 
 
 " II n'y a point encore de liberte, si la puissance dejuger n'estpas 
 separ6e de la puissance legislative et de I'executrice. Si elle etoit 
 jomte a la puissance legislative, le pouvoir sur la vie et la libert6 
 des citoyens serait legislateur. Si elle etoit jointe a la puissance 
 ex6cutrice, le juge pourroit avoir la force d'un oppresseur. 
 
 *• Tout seroit perdu, si le meme homme, ou le meme corps des 
 principaux, ou des nobles, ou du peuple, exer^oient ces trois pou- 
 yoirs : celui de faire des lois, celui d'ex^cuter les resolutions pub- 
 liques, et celui de juger les crimes ou les difFerents des particuliers. 
 
 " Dans la plupartdcs royaumes de I'Europe, le gouvernementest 
 modcre, parce que le prince, qui a les deux premiers pouvoirs, 
 
348 NOTES. 
 
 laisse a ses sujets I'exercice du troisieme. Chez les Turcs, ou ces 
 trois pouvoirs sont reunis sur la tete du sultan, il regne un affreux 
 despotisme. 
 
 " Dans les republiques d'ltalie, ou ces trois pouvoirs sont reunis, 
 la liberte se trouve moins que dans nos monarchies. Aussi le gou- 
 vernement a-t-il besoin, pour se maintenir, des moyens aussi violents 
 que le gouvernement dcs Turcs ; temoin les inquisiteurs d'etat, et 
 le tronc ou tout delateur pent, a tous les moments, jeter avec un 
 billet son accusation. 
 
 " Voyez quelle pent etre la situation d'un citoyen dans ces repub- 
 liques. Le meme corps de magistrature a, comme executeur, des- 
 lors toute la puissance quil s'est donnee comme legislateur. II pent 
 ravager letat par ses volontes generales ; et comme il a encore la 
 puissance de juger, il peut detruire chaque citoyen par ses volontes 
 particulieres. 
 
 *• Toute la puissance y est une ; et, quoiqu'il n'y ait point de pompe 
 exterieure qui decouvre un prince despotique, on le sent a chaque 
 instant. 
 
 " Aussi les princes qui ont voulu se rendre despotiques ont-ils 
 toujours commence par reunir en leur personne toutes les magistra- 
 tures, et plusieurs rois d'Europe, toutes les grandes charges de 
 leur etat." (xi. 6.) 
 
 The opinions of Locke' and Montesquieu on this subject are 
 adopted, with a few developements, by Sir W. Blackstone, in his 
 Commentaries, vol i. p. 146. 154. 269. 
 
 Le Mercier de la Riviere, in his " Ordre Naturel et Essentiel des 
 Societes Politiques," after having laid down that the members of a 
 political community ought to be convinced of the justice and 
 necessity of the positive laws by which they are governed, proceeds 
 to say : — 
 
 " La premiere consequence que nous devons tirer de ces verites 
 preliminaires, c'est qu'il est socialement impossible que I'autorite 
 legislative et la magistrature, ou I'administration de la justice dis- 
 tributive, soient reunies dans la meme main, sans detruire parmi 
 les hommes toute certitude de la justice et de la necessite de leurs 
 loix positives : aliens plus loin encore, et disons, sans detruire ces 
 loix elles-memes ; car elles n'auroient plus ni la forme, ni aucun 
 des caracteres essentiels aux loix." — (ch. xii. tom. i. p. 136.) 
 
 In a later part of his work, after having attempted to show that 
 every system of legislation by a body of persons is inexpedient and 
 absurd, he adds : — 
 
 " A la contradiction ^vidente et absurde qui regne dans un tel 
 systeme, ajoutez qu'il tend a aneantir la magistrature et la puissance 
 executrice; car dans cette supposition, il n'y auroit de juges 
 souverains, ni d'autorite souverame, que dans Tassemblee de la 
 nation : ainsi la nation en corps seroit tout a la fois puissance 
 legislatrice, puissance executrice et corps de magistrature : par ce 
 moyen tout seroit confondu: lorsqu'elle seroit assemblee, elle 
 formeroit une puissance absolument et n6cessairement independante 
 des loix deja faites; tout parti qui auroit pour lui le plus grand 
 nombre des opinions no reconnoitroit aucune autoriie superieure 
 a la sienne ; et dans cet etat il n'existeroit qu'une autorite sans loix, 
 qu'un Etat gouvernant sans Etat gouverne ; mais des qu'ellc seroit 
 dispersee, il ne resteroit plus apres la dissolution de cette puissance 
 arbitraire, que des loix sans autorite, et un Etat gouverne sans 
 
NOTES. 349 
 
 Etat goiivernant : les suites n^cessaires d'un tel d^sordre sont trop 
 sensibles, pour que je puisse me permettre aucune reflexion k leur 
 sujet."— (Ibid. eh. xii. p. 211.) 
 
 The following arc Paley's remarks on the subject in his " Principles 
 of Moral and Political Philosophy :" — 
 
 " The first maxim of a free state is, that the laws be made by one 
 set of men, and administered by another ; in other words, that the 
 legislative and judicial characters be kept separate. When these 
 offices are united in the same person or assembly, particular laws 
 are made for particular cases, springing oftentimes from partial 
 motives and directed to private ends : whilst they are kept separate, 
 general laws are made by one body of men without foreseeing 
 whom they may affect ; and, when made, must be applied by the 
 other, let them aifect whom they will. 
 
 *' For the sake of illustration, let it be supposed in this country 
 either that. Parliaments being laid aside, the Court of Westminster 
 Hall made their own lav^ s, or that the two Houses of Parliament, 
 with the King at their head, tried and decided causes at their bar. 
 It is evident, in the first place, that the decisions of such a judica- 
 ture would be so many laws ; and in the second place, that, when 
 the parties and the interests to be affected by the law were known, 
 the inclinations of the law-makers would inevitably attach to one 
 side or the other; and that where there were neither any fixed 
 rules to regulate their determinations, nor any superior power to 
 control their proceedings, these inclinations would interfere with 
 the integrity of public justice. The consequence of which must be, 
 that the subjects of such a constitution would live either without 
 any constant laws, that is, without any known pre-established rules 
 of adjudication whatever, or under laws made for particular persons, 
 and partaking of the contradictions and iniquity of the motives to 
 which they owe their origin. 
 
 " Which dangers, by the division of the legislative and judicial 
 functions, are in this country eifectually provided against. Par- 
 liament knows not the individuals upon whom its acts will operate : 
 it has no cases or parties before it, no private designs to serve ; 
 consequently its resolutions will be suggested by the consideration 
 of universal effects and tendencies, which always produces impartial 
 and commonly advantageous regulations. When laws are made, 
 courts of justice, whatever be the disposition of the judges, must 
 abide by them ; for the legislative bemg necessarily the supreme 
 power of the state, the judicial and every other power is accountable 
 to that ; and it cannot be doubted that the persons who possess the 
 sovereign authority of the government will be tenacious of the laws 
 which they themselves prescribe, and sufficiently jealous of the 
 assumption of dispensing and legislative power by any other." — 
 (Book VI. ch. viii.) 
 
 To the remarks in p. 13, 14 (note on the meaning of the word 
 executive), I may add, that the term is sometimes limited to the 
 cases in which a law is enforced by the direct application of its 
 sanction. It is in this sense that we speak of the execution of a 
 judgment of a court in a civil action, or of a capital execution.— See 
 also the article Executions ordnung, in Rotteck's and Welcker's 
 Staats- Lexicon. According to this acceptation of the word, a law 
 which receives voluntary obedience is not executed, but only a law 
 
350 NOTES. 
 
 which is neglected or resisted, and is enforced by the proper 
 authorities. 
 
 I may likewise mention that, in the language of the English 
 law, certain acts which fall within the meaning of the term 
 administrative, as defined in p. 13, are %\.y\e(\ judicial, because the 
 functionary who performs them exercises a judgment or discretion 
 with respect to their performance. Acts which the functionary is 
 bound to perform, and as to which he has no discretion, are, in the 
 English law, styled ministerial. 
 
 NOTE F. (p. 88.) 
 
 " The government oi^i province may be committed to an assembly 
 of men wherein all resolutions shall depend on the votes of the 
 major part, and then this assembly is a body politic, and their power 
 limited by commission. This word provi?ice signifies a charge or 
 care of business, which he whose business it is committeth to 
 another man, to be administered for and under him ; and, therefore, 
 when in one commonwealth there be divers countries that have 
 their laws distinct one from another, or are far distant in place, the 
 administration of the government being committed to divers per- 
 sons, those countries where the sovereign is not resident but 
 governs by commission, are called provinces. But of the govern- 
 ment of a province by an assembly residing in the province itself 
 there be few examples. The Romans who had the sovereignty of 
 many provinces, yet governed them always by presidents and 
 praetors, and not by assemblies as they governed the city of Rome 
 and territories adjacent. In like manner, when there were colonies 
 sent from England to plant Virginia and Sommer Islands, though 
 the governments of them here were committed to assemblies in 
 London, yet did those assemblies never commit the government 
 under them to any assembly there, but did to each plantation send 
 one governor. For though every man, where he can be present by 
 nature, desires to participate of government, yet where they cannot 
 be present they are by nature also inclined to commit the govern- 
 ment of their common interest rather to a monarchical than to a 
 popular form of a government; which is also evident in those men 
 that have great private estates, who, when they are unwilling to 
 take the pains of administering the business that belongs to them, 
 choose rather to trust one servant than an assembly either of their 
 friends or servants." — (Hobbes, Leviathan, Part II. ch. xxii.) 
 
 NOTE G. (p. 93 ) 
 
 The theory stated in the text is proposed by Bryan Edwards in 
 his History of the British Colonies in the West Iridies. The fol 
 lowing are the chief passages in his work in which it is to be 
 found. 
 
 " On the whole, subject to the restriction that their trade-laws 
 are not repugnant to those of Great Britain, there are no concerns 
 of a local and provincial nature, to which the authority of the 
 colonial laws does not extend. 
 
NOTES. 351 
 
 " This restriction was intended probably as an auxiliary to other 
 means for preserving the unity of the empire, and maintaining the 
 superintending and controlling power of the mother-country in 
 matters of trade : but it implies also a reciprocal engagement or 
 obligation on the part of the British Parliament not to interpose 
 its authority in matters to which the colonial assemblies are suffi- 
 ciently competent. With powers so extensive and efficient, these 
 assemblies must necessarily be sovereign and supreme within their 
 own jurisdiction ; unobstructed by, and independent of, all control 
 from without ; for nothing can be more absurd than to suppose, 
 that a people can be subject to two different legislatures exercising 
 at the same time equal powers, yet not communicating with each 
 other, nor from their situation capable of being privy to each other's 
 proceedings. 
 
 " It has, I know, been urged, that the principles I have thus laid 
 down, and the rights which I have allotted to the inhabitants of 
 the British colonies, tend immediately to sovereign and national 
 empire, distinct from, and independent of, the government of the 
 parent state. It will be found, however, that the dependency of the 
 colonies on, and their allegiance to, the crown of Great Britain, and 
 also their proper subordination to the British Parliament, are se- 
 cured by sufficient ties, regulations, and restraints ; some of which 
 seem at first inconsistent even with the premises I have stated. 
 Thus, as to the supremacy of the crown : among various other pre- 
 rogatives, the king reserves to himself not only the nomination of 
 the several governors, the members of the council, and most of the 
 public offices of all descriptions, but he possesses also at the same 
 time, as we have seen, the right of disallowing and rejecting all 
 laws and statutes of the colonial assemblies, even after they had re- 
 ceived the assent and approbation of his own lieutenant in the 
 colony. Hence the affirmative voice of the people in their repre- 
 sentatives is opposed by three negatives ; the first in the council, 
 the second in the governor, and the third in the crown ; which 
 possesses likewise the power of punishing the two former branches 
 by dismission, if they presume to act in opposition to the royal 
 pleasure."— Edwards's History of the West Indies, vol. ii. p. 420 
 —430. 
 
 The preceding passage is so self-contradictory that it is difficult 
 to infer from it confidently that Edwards intended to assert that 
 the English West India islands were legally independent of the 
 English Parliament. But in the following passage this assertion is 
 distinctly made. 
 
 "As the legislative power of Great Britain therefore is supreme 
 only in a relative sense, even within the realm, where the people 
 themselves participate in its authority, much less can it be said to 
 be supreme, in all cases whatsoever, over the colonies. It has 
 indeed been solemnly declared by parliament itself, that parliament 
 has such a power: but if parliament had not the power before, cer- 
 tainly their own declaration could not invest them w ith it. 
 
 " Considering the constituent branches of the British legislature 
 separately, it will be difficult to point out any just authority what- 
 ever, existing either in the peers or the representatives of the 
 people, over the colonies. We have seen that the first settlers in 
 most of the British plantations were a part of the English people, 
 in every respect equal to them, and possessed of every right and 
 
352 NOTES. 
 
 privilege at the time of their emigration, which the people of Eng- 
 land were possessed of, and irrefragably of that great right of con- 
 senting to all laws by which they were to be governed. The people 
 of England therefore, or their representatives, having no rights, 
 powers, or privileges to bestow on the emigrants, which the latter 
 were not already possessed of equally with themselves, had no 
 claim to their allegiance, or any pretence to exercise authority over 
 them. 
 
 " As to the English peers, they are possessed of very eminent 
 privileges ; from none of which however can they communicate any 
 advantage to the colonies. They are a court of justice in the 
 dernier resort for all appeals from the people of Great Britain ; but 
 they act in no such capacity for the inhabitants of the colonies ; the 
 house of peers having never heard or determined causes in appeal 
 from the plantations in which it ever was, and is, their duty to 
 serve the subjects within the realm. 
 
 " Thus, incapable from their situation of being admitted to a 
 participation with the people and peers of Great Britain in the 
 British legislature, the colonists have legislatures of their own, 
 which are subject to the king of Great Britain, as to their own 
 proper head. The person, who, by the laws of Great Britain, is 
 king of Great Britain, is their king ; but they owe no allegiance to 
 the lords and commons, to whom they are not subjects, but fellow 
 subjects with them to the same sovereign." — Ibid., p. 435, 436. 
 
 See also some similar remarks of Mr. Haliburton, in his account 
 of Nova Scotia, below, note (Q.) 
 
 NOTE H. (p. 117) 
 
 Provincia is derived by Festus from pro and vincere, according 
 to which etymology it would mean a country formerly conquered. 
 This etymology has been adopted by the moderns, with no other 
 modification than that suggested by Vossius, viz. that fro should 
 be taken not for ante, but for procul. Provincia would thus signify 
 a country conquered at a distance. This etymology however seems 
 objectionable on two grounds : 1. Provincia is not formed by a 
 proper analogy from vinco : it ought rather to be formed from a 
 past tense or participle, like victor, victoria. 2. The derivation 
 from vinco does not satisfactorily explain the other meaning of 
 provincia, viz. function, department, business ; which it appears to 
 have had at an early period, since this usage occurs in familiar lan- 
 guage : see the examples from Plautus and Terence cited by For- 
 cellini in v. Hence, too, Livy uses the word for the division of 
 the duties of the consuls generally ; as viii. 22. Inter consules pro- 
 vinciis comparatis, hello Grseci persequendi Publilio evenerunt ; 
 Cornelius altero exercitu Samnitibus, si qua se moverent, oppo- 
 situs. xxvii. 36. Consulatum inde ineunt C. Claudius Nero et M. 
 Livius iterum ; qui, quia jam designati provincias sortiti erant, 
 prsetores sortiri jusserunt. C. Hostilio urbana evenit; addita et 
 peregrina, ut tres in provincias exire possent. xxx. 27. Principio 
 insequentis anni, M. Servilius et Ti. Clavidius, senatu in Capito- 
 lium vocato, de provinciis retulerunt. Italiam atque Africam in 
 sortem conjici, Africam ambo cupientes, volebant. xxxiii. 25. 
 L. Furius et M. Claudius Marcellus, consulatu inito, quum de pro- 
 
NOTES. 353 
 
 vinciis apjeretiir, et Italiam utrique provinciam senatus decerncret, 
 ut Macedoniam cum Italia sortirentur petebant. See also xl. 18, 
 and the oration of Cicero De Provinciis Consiilaribiis. 
 
 It seems to me therefore most probable that provincia is con- 
 tracted from pf'ovidentia, and originally meant that which a person 
 had to look after, to attend to, to care for ; that its primitive mean- 
 ing was business, function, department ; and that it acquired 
 the secondary sense of a foreign dependency of Rome, because the 
 management of the district was the department ef one of the con- 
 suls or prajtors. 
 
 The contraction of provincia from providentia is not greater than 
 in other similar words ; and the change of t into c after n has 
 nothing remarkable. Concio from conventio affords a parallel to 
 both changes. " In words of common use (says Mr. Donaldson), 
 when they exceed a certain length, and especially in those which 
 are compounds, the process of shortening and softening always 
 takes place, sometimes to an extent which renders it difficult to 
 discern the elements of which they were originally made up. Who 
 would suppose, on the first inspection, that concio was con-ven-tio f 
 — New Cratylus, p. 194. In some of the languages derived from 
 the Latin, t is regularly changed into c in the terminations antia 
 and entia ; as fragrancia, creencia, dolencia, Spanish ; esperance, 
 bienveillance, &c. French. — See Diez, Rom. Gramm., vol. ii. p. 317. 
 
 Similar changes of signification have taken place in other 
 words. Thus the word hoUvinst instead of its original sense of 
 administration, came to mean a division of the Roman empire 
 (see Gibbon, c. 17), and afterwards a district subject to a bishop. 
 In like manner, the word cura or curCj, as used in France, first sig- 
 nified the sphere of the duties of a parish priest, or his office, and 
 afterwards the district over which his cure of souls extended. (See 
 Ducange in cura.) The word scir, A. S., a share or shire, (/. e. a 
 part cut off or divided ; compare sceran, A. S., to shear or share,) 
 likewise underwent an analogous change of meanings, though 
 they succeeded one another in the reverse order. Having origi- 
 nally signified a division or district of a country, it came afterwards 
 to signify the superintendence of such a district, and then super- 
 intendence, stewardship, or charge generally. Thus in the Anglo- 
 Saxon version of St. Luke, xvi. 2, the words " redde tuam dispensa- 
 tionem " are rendered " Agyf H^e scire," " give an account of thy 
 stewardship.'' See Bosworth's A. S. diet, in Scir. Compare 
 Grimm's Deutsche Rechtsalterthiimer, p. 533. 
 
 NOTE I. (p. 126.) 
 
 The nature of some of the restrictions imposed upon a Roman 
 provincial governor affords a pregnant evidence of the abuses of 
 power which he was expected to commit. 
 
 The restrictions upon his power of buying in his province, and 
 the reasons of them, appear in the following passages of Cicero's 
 Verrine Orations. 
 
 " Videte majorum diligentiam, qui nihil dum etiam istiusmodi suspi- 
 cabantur ; veruntamen ea quae parvis in rebus accidere poterant, 
 providebant. Neminem qui cum potestate aut legatione in provin- 
 ciam esset profectus, tarn amentcm fore putaverunt, ut emeret 
 
 2 A 
 
354 NOTES. 
 
 argentum ; dabatur enim de publico ; iit vestem ; praebebatur enim 
 legibus. Mancipium piitaverunt ; quo et omnes utimur, et non 
 prsebetur a populo. Sanxerunt ne quis emeret mancipium, nisi in 
 demortui locum. Si quis Romae esset demortuus ? immo, si quis 
 ibidem. Non enim te instruere domum tuam voluerunt in pro- 
 vincia ; sed ilium usum provinciae supplere. Quae fuit causa, cur 
 tarn diligenter nos in provinciis ab emtionibus removerent ? haec, 
 judices, quod putabant ereptionem esse, non venditionem, cum ven- 
 ditori suo arbitratu vendere non liceret. In provinciis intelligebant 
 si is qui esset cum imperio ac potestate, quod apud quemque esset, 
 emere vellet, idque ei liceret ; fore, uti, quod quisque vellet, sive 
 esset venale, sive non esset, quanti vellet, auferret." In Verr. 
 Act. II. lib. iv. c. 5. 
 
 " Sunt vestrum, judices, aliquam multi, qui L. Pisonem cognove- 
 runt, hujus L. Pisonis, qui praetor fuit, patrem. Is cum esset in 
 Hispania praetor, qua in provincia occisus est, nescio quo pacto, 
 dum armis exercetur, annulus aureus, quem habebat, fractus est et 
 comminutus. Cum vellet sibi annulum facere, aurificem jussit 
 vocari in foro, ad sellam, Cordubae, et ei palam appendit aurum. 
 Hominem in foro sellam jubet ponere, et facere annulum. omnibus 
 praesentibus. Nimium fortasse dicet aliquis hunc diligentem, 
 hactenus reprehendat, si quis volet : nibil amplius. verum fuit ei 
 concedendum. filius enim L. Pisonis erat, ejus qui primus de pe- 
 cuniis repetundis legem tulit." Ibid. c. 25. 
 
 *' Quid enim tibi nave opus fuit ? qui, si c^uo publico proficisceris, 
 et praesidii et vecturae causa, sumtu publico navigia praeberentur, 
 privatim autem nee proficisci quoquam posses, nee arcessere res 
 transmarinas ex iis locis, in quibus tibi habere, mercari nihil 
 liceret." Act. II. lib. v. c. 18. 
 
 According to the earlier Roman practice, a provincial governor 
 was not allowed to take his wife into his province. (See Heinecc. 
 Ant. Rom. lib. i. § 109.) This regulation appears to have been a 
 remnant of the old military discipline. Suetonius says of Augustus: 
 " disciplinam severissime rexit ; ne legatorum quidem cuiquam nisi 
 gravate hibernisque demum mensibus permisit uxorem inter- 
 visere." (Oct. c. 24.) The rvile was gradually relaxed under the 
 empire : see in Tacitus Ann. iii. 33-4, a debate in the senate on a 
 proposal to change the law, containing a statement of the argu- 
 ments on both sides of the question. Even, however, at a later time 
 it was thought to be better that a provincial governor should not 
 be accompanied by his wife. Thus Ulpian says in a passage of his 
 treatise De Officio Proconsulis, preserved in the Digests: " Pro- 
 fiscisci autem proconsulem melius quidem est sine uxore ; sed et 
 cum uxore potest, dummodo |sciat senatum, Cotta et Messala con- 
 sulibus, censuisse futurum, ut, si quid uxores eorum, qui ad officia 
 proficiscuntur, deliquerint, ab ipsis ratio et vindicta exigatur." 
 Dig.lib. i. tit. I6.fr. 4. §2. 
 
 The Theodosian Code declared that if a governor, or any of his 
 sons, grandsons, friends or servants, should contract to marry any 
 woman in the province, the contract should not bind her. The law 
 begins thus : " Si quis in potestate publica positus atque honore 
 provinciarum administrandarum, qui parentibus aut tutoribus aut 
 curatoribus aut ipsis quae matrimonmm contracturae sunt potest 
 esse terribilis, sponsalia dederit," &c. Cod. Theod. lib. iii. tit. 6. 
 1. 1. Compare Bingham's Christian Antiquities, b. xxii. ch. 2. § 7. 
 
NOTES. 355 
 
 A passap;e iii the Digests however allows a governor to take a con- 
 cubine from his own province : " Concubinam ex ea provincia in 
 qua quis aliquid administrat, habere potest." Lib. xxvi. tit. 7. fr. 5. 
 
 NOTE K. (p. 133.) 
 
 According to ^Suetonius, Augustus attempted to place the 
 citizens resident in the Italian colonies on a footing ot practical 
 equality with those resident at Rome, by enabling the former to 
 transmit their votes in writing to Rome. " Ad hunc modum urbe 
 urbanisque rebus administratis, Italiam duodetriginta coloniarum 
 numero deductarum ab so frequentavit, operibusque ac vecti- 
 galibus publicis plurifariam instruxit: etiam jure ac dignatione 
 urbi, quodam modo pro parte aliqua, ad£3equavit ; excogitato genere 
 suffiagiorum, qua? de magistratibus urbicis decuriones colonicti in 
 sua quisque colonia ferrent, et sub diem comitiorum obsignata 
 Romam mitterent." Oct. c. 46. 
 
 The partial adoption of this contrivance shows the impracticable 
 nature of the constitution which the Julian law was intended to 
 introduce. 
 
 Under the empire, the colonies and municipia of Italy, and even 
 the provinces, obtained a sort of representation in the senate. " At 
 this time (says Walter, in his History of the Roman Law), the senate 
 was no longer composed exclusively of persons born in Rome, but 
 the most distinguished persons from the municipia and colonics, 
 and even from the provinces, were received into it ; which, for a 
 time, produced a favourable influence upon the morals of the city. 
 A senator of this sort acquired by his appointment a domicile in 
 Rome ; though he retained an honorary right of citizenship and a 
 domicile in his native town. But he was not able to visit his estates 
 in the provinces (excepting Sicily and Gallia Narbonensis), with- 
 out the special permission of the emperor. It was also subse- 
 quently ordained, in order to bind the foreign senators more 
 closely to Italy, that they must purchase land in Italy to the value 
 of a certain proportion of their property." (p. 286-7.) 
 
 If the Italian communities at the end of the social war had been 
 close oligarchies, it is conceivable that an arrangement might have 
 been made for deputing two or three members of each oligarchy to 
 the Roman senate. Such a deputation would, however, have ap- 
 proached closely to the modern idea of political representation. 
 
 NOTE L. (p. 155.) 
 
 As the political relations of Great Britain and Ireland in the last 
 century are frequently adverted to, by way of illustration, in the 
 above essay ; as the changes in those relations which took place in 
 1782 and 1783 are not now generally remembered; and as the 
 political relations of Great Britain and Ireland have still a prac- 
 tical importance, on account of the continued agitation of the 
 question of a repeal of the Union, I subjoin in this note a succinct 
 statement of the nature and grounds of those changes, together with 
 some introductory remarks in explanation of the system by which 
 Ireland was governed during the preceding part of the century. 
 
 2a2 
 
356 NOTES. 
 
 The political relations of Ireland and England before the Revo- 
 lution of 1688 partook of the indeterminate character which 
 belonj^ed to the institutions of both countries prior to that event ; 
 but, during this period, Ireland seems to have been constantly 
 regarded as a dependency of England, and not (like Scotland) as 
 an independent kingdom whose king was also king of England. 
 Sometimes Ireland was considered as a dependent colony, planted 
 by Englishmen in a country inhabited by a semi-barbarous race ; 
 at other times it was regarded rather as a dependency ac- 
 quired by conquest from tlie natives. After the expulsion of 
 James II. and the final success of King William's arms, the prac- 
 tical subjection of Ireland to England was considered as established 
 beyond all doubt, and the English or British parliament legislated 
 for the internal affairs of Ireland without hesitation whenever there 
 appeared to be any occasion for its interference. — (See Plowden's 
 Historical Review of Ireland, vol. i. p. 195. 197. 229.) The Irish 
 Catholics were excluded from the Irish parliament at the revolution, 
 and were shortly afterwards subjected to numerous civil disabilities, 
 so that (to use Mr. Plowden's words) they had a physical, not a 
 political existence. The project of a union of Ireland with England 
 was started in Queen Anne's reign, but was rejected by the English 
 ministry as a less easy mode of governing the country than the 
 existing practice of keeping it in a state of permanent debility, and 
 managing it through a few of the heads of the Irish aristocracy. — 
 (Plowden, ib. p. 218.) 
 
 The more frequent exercise of the legislative power by the 
 English parliament was not, however, silently acquiesced in by 
 Ireland. In 1698 Mr. William Molyneux, one of the members for 
 the University of Dublin, published a tract entitled, " The case of 
 Ireland's being bound by Acts of Parliament in England stated." 
 Molyneux was a friend and admirer of Locke, and the idea of 
 composing this tract (in which he called in question the dependence 
 of Ireland upon England) was probably suggested to him by some 
 of the principles contained in Locke's Essay on Government. The 
 tract was thought of sufficient importance to be referred to a select 
 Committee of the English House of Commons ; and upon a report 
 of this Committee the house resolved, " That the book published by 
 Mr. Molyneux was of dangerous tendency to the crown and 
 people of England by denying the authority of the king and Par- 
 liament of England to bind the kingdom and people of Ireland, and 
 the subordination and dependence that Ireland had and ought to 
 have upon England as being united and annexed to the imperial 
 crown of England." Other resolutions strongly asserting the su- 
 premacy of the English Parliament over Ireland were added. The 
 Irish Parliament made no answer to these proceedings. — (Plowden, 
 vol. i. p. 202—5. 389.) 
 
 In the year 1719, a decree of the Irish court of Exchequer in 
 favour of the defendant in the cause was reversed upon appeal by 
 the Irish House of Lords. The cause was afterwards carried by 
 appeal to the English House of Lords, which confirmed the original 
 decree. The plaintiff then petitioned the Irish House of Lords to 
 support its decision ; whereupon the Irish House of Lords resolved 
 that the fines imposed on the sheriff' (who had obeyed the order of 
 the Irish House of Lords) should be taken off, and ordered that the 
 barons of the Irish exchequer should be taken into the custody of 
 
NOTES. 857 
 
 the black rod. When the English House of Lords became aware 
 of these proceedings, they passed resolutions strongly supporting 
 the barons of the Irish exchequer, and caused a bill to be intro- 
 duced '• for better securing the dependency of the kingdom of Ire- 
 land upon the crown of England." This bill became the Act of 
 6 Geo. I. c. 5, which, after reciting that " attempts have been lately 
 made to shake off the subjection of Ireland unto, and dependence 
 upon, the imperial crown of this realm which will be of dangerous 
 consequence to Great Britain and Ireland," and that " the lords of 
 Ireland in order thereto have of late, against law, assumed to them- 
 selves a power and jurisdiction to examine, correct, and amend the 
 judgments and decrees of the courts of justice in the kingdom of 
 Ireland," provides " that the said kingdom of Ireland hath been, is, 
 and of right ought to be subordinate unto, and dependent upon, the 
 imperial crown of Great Britain, as being inseparably united and 
 annexed thereunto ; and that the king's majesty, by and with the 
 advice and consent of the lords spiritual and temporal and commons 
 of Great Britain in Parliament assembled, had, hath, and of right 
 ought to have full power and authority to make laws and statutes 
 of sufficient force and validity to bind the people and the kingdom 
 of Ireland." And it further provides that " the House of Lords of 
 Ireland have not, nor of right ought to have, any jurisdiction to 
 judge of, affirm, or reverse any judgment, sentence or decree, given 
 or made in any court within the said kingdom ; and that all pro- 
 ceedings before the said House of Lords upon any such judgment, 
 sentence, or decree, are and are hereby declared to be utterly null 
 and void to all intents and purposes whatsoever." 
 
 But although in the first half of the 18th century the English 
 Parliament would not allow its direct supremacy over Ireland to be 
 questioned, the ascendency of England over Ireland was maintained 
 by indirect means The nature of the means by which the English 
 power was upheld in Ireland is explained by Plowden in the follow- 
 ing passage. After having stated that Lord Townshend was ap- 
 pointed lord lieutenant in October, 1767, he proceeds thus:— "This 
 nobleman was selected to introduce a very important change in the 
 system of governing Ireland. The choice was, in many points, 
 judicious. In order to attempt the arduous task of supplanting the 
 deep rooted influence of the Irish oligarchy, it was requisite that 
 the lord lieutenant, to whom that power was to be transferred, 
 should be endowed with those qualities that were most likely to 
 ingratiate him with the Irish nation. The new lord lieutenant 
 excelled all his predecessors in that convivial ease, pleasantry, and 
 humour, so highly prized by the Irish of every description. The 
 majority, which had been so dearly bought in the Commons by 
 those who had heretofore had the management of the English 
 interest, was now found not altogether so tractable as it had hereto- 
 fore been. There were three or four grandees, as Dr. Campbell 
 observed, who had such an influence in the House of Commons 
 that their coalition would, at any time, give them a clear majority 
 upon any question. To gain these had been the chief anxiety of 
 former governors. They were sure to bring over a proportionate 
 number of dependents ; and it had been the unguarded maxim to 
 
 Eermit subordinate graces and favours to flow from or through the 
 ands of these leaders whom experience now showed to be as 
 irritable and versatile as the most insignificant of their followers. 
 
358 NOTES. 
 
 Formerly these principals used to stipulate with each now lord 
 lieutenant, whose office was biennial and residence but for six 
 months, upon what terms they would carry the king's business 
 through the House ; so that they might not improperly be called 
 undertakers. They provided that the disposal of all court favours, 
 whether places, pensions, or preferments, should pass through 
 their hands, in order to keep their suite in an absolute state of 
 dependence upon themselves. All applications were made by the 
 leader, who claimed as a right the privilege of gratifying his 
 friends in proportion to their numbers. Whenever such demands 
 were not complied with, then were the measures of government 
 sure to be crossed and obstructed ; and the session of Parliament 
 became a constant struggle for power between the heads of parties, 
 who used to force themselves into the office of lord justice according 
 to the prevalence of their interest. This evil had been seen and 
 lamented by Lord Chesterfield ; and his resolution and preparatory 
 steps for undermining it probably contributed not a little to his 
 immediate recall upon the cessation of the danger, which his 
 wisdom was thought alone competent to avert. 
 
 •' This was the system which Lord Clare said, the government of 
 England at length opened their eyes to the defects and dangers of ; 
 t^ey shook the power of the aristocracy, but were unable to break 
 It down. The monopoly of civil power long survived the adminis- 
 tration of Lord Townshend. No small share of it rested with that 
 noble earl, who thus faithfully describing it practically knew the 
 inability of the English government to break it down. The 
 primary object of LordTownshend's administration was to break up 
 the monopolizing system of this oligarchy. He, in part, succeeded, 
 but by means ruinous to the country. The subalterns were not to 
 be detached from their chiefs but by similar though more powerful 
 means than those by which they had enlisted under their banners. 
 The streams of favour became not only multiplied but enlarged, 
 consequently the source of remuneration the sooner exhausted. 
 Every individual now looked up directly to the fountain head, and 
 claimed and received more copious draughts. Thus, under colour 
 of destroying an overgrown aristocratic power, all parliamentary 
 independence was completely secured by government. The inno- 
 vation naturally provoked the deserted few to resentment : but they 
 were bereft of their consequence when left to their individual 
 exertions. They took refuge under the shelter of patriotism, and 
 they inveighed with less effect against the venality of the system, 
 merely because it had taken a new direction and was somewhat 
 enlarged. The bulk of the nation, and some, though very few, of 
 their representatives in Parliament were earnest, firm, and im- 
 placable against it." — (Plowden, ib. p. 385, 386.) 
 
 The English party in Ireland continued to submit to the su- 
 premacy of Great Britain until the successful revolt of the American 
 colonies suggested to them the idea of independence ; whilst, at 
 the same time, the weakness of England and the imposing attitude 
 of the Irish volunteers afforded them facilities for obtaining it. 
 Ireland, being at this time (as Burke called it in the House of 
 Commons, 2nd of April, 1778) the chief dependency of the British 
 crown, naturally aspired to follow the example of other weaker 
 though more distant dependencies. Accordingly, Mr. Grattan, on 
 the 19th of April, 1780, moved in the Irish House of Commons a 
 
NOTES. 359 
 
 resolution that " no power on earth, save the king, lords, and 
 commons of Ireland, had a right to make laws for Ireland." The 
 question was debated, but not put from the chair* 
 
 On the 11 til December, 1781, Mr. Flood moved resolutions re- 
 lating to Poyning's law, and he brought the subject under the 
 consideration of the House on several subsequent days. This 
 Irish Act (passed in the 10th of Hen. VII.) was considered one of 
 the main obstacles to the independence of Ireland. Its most im- 
 portant provision was that which prohibited any bill from being 
 introduced into either house of the Irish Parliament which had not 
 been approved by the king in council. Mr. Flood maintained, in 
 his first speech on the subject, that this law was originally intended 
 as a restraint, not on the Irish Parliament but on the viceroy, over 
 whom the king, on account of the difficulty of communicating with 
 Ireland, exercised an imperfect control.t This view of the pur- 
 pose of Poyning's law seems to be correct ; but, at all events, its 
 main provision was evaded by the practice of introducing the heads 
 of a bill which had been adopted in the Irish Parliament. The 
 law had, in truth, little practical importance ; and it might have 
 been repealed without any alteration in the system by which the 
 virtual dependence of Ireland upon England was secured. — 
 (Plowden, ib. p. 395. 552.) 
 
 On the 22d of February, 1782, Mr. Grattan moved in the Irish 
 House of Commons an address to the crown, of which the following 
 are the most material clauses : — *' To assure His Majesty that the 
 people of Ireland were a free people ; that the crown of Ireland was 
 a distinct kingdom, with a Parliament of their own, the sole legis- 
 lature thereof. To assure His Majesty that by their fundamental 
 laws and franchises which they, on the part of this nation, claimed 
 and challenged as their birthright, the subjects of that kingdom 
 could not be bound, affected, or obliged by any legislature save 
 only the king, lords, and commons of that His Majesty's realm of 
 Ireland, nor was there any other body of men who had power or 
 authority to make laws for the same.'' The motion of the attorney- 
 general, that the consideration of the address should be postponed 
 until the 1st of August, was carried by 137 to G8. 
 
 On the 26th February, Mr. Flood followed up Mr. Grattan's 
 motion by moving the two following resolutions :— " First, that the 
 members of this House are the only representatives of the people 
 of Ireland. Second, that the consent of the Commons is indis- 
 pensably necessary to render any statute binding." Upon a 
 division, these resolutions were negatived by 137 to 76. 
 
 By this time the fall of Lord North's ministry had been decided, 
 and the Rockingham administration had succeeded. But before 
 
 * The following dates are important with reference to the transactions 
 described in the text :— Convention of Saratoga, 1777; Capitulation of 
 Lord Cornwallis at York-town, 19th October, 1781 ; Recognition of Ame- 
 rican independence by England, 24th September, 1782. 
 
 t Mr. Flood remarked that, in the days of Henry VII., voyages between 
 England and Ireland were less frequent than between Europe and 
 America in his own time ; aiad that, consequently, many things happened 
 in Ireland which were not known till long after in England — (Plowden, 
 ib, p. 552.) This remark illustrates the change in the power of governing 
 a territory which is produced by an increased facility of communication. — 
 (See above, ch, iv.) 
 
360 NOTES. 
 
 the new ministers had time to take any step with respect to Ireland, 
 Mr. Eden, the late secretary for Ireland, returned to London ; and, 
 without communicating his intention to the new ministry, on the 
 8th of April moved in the English House of Commons for leave to 
 bring in a bill to repeal so much of the Act 6 Geo. I. as asserted 
 the right of the king and Parliament of Great Britain to make 
 laws to bind the kingdom of Ireland. The motion was withdrawn 
 in compliance with the general wish of the House ; and, on the 
 following day, Mr. Fox communicated a message from the king, 
 recommending a consideration of the discontents and jealousies in 
 Ireland, in order to such a final adjustment as might give satisfac- 
 tion to both kingdoms. The address was agreed to unanimously. 
 
 In the first debate which took place after the arrival of the Duke 
 of Portland as lord lieutenant of Ireland, it was evident from the 
 statements of Mr. Hutchinson, the secretary of state, that the new 
 administration had resolved to concede the independence of Ire- 
 land. In the course of this debate Mr. Grattan said, " The people 
 of Ireland protest against a dependent legislature, against the 
 abomination of a foreign legislature. We are friends to England 
 on perfect political equality. This House of Parliament knows no 
 superior ; the men of Ireland acknowledge no superiors ; they 
 have claimed laws under the constitution and the independence of 
 Parliament under every law of God and man. I cannot imagine 
 that the present ministers of England will oppose those rights of the 
 Irish nation : they have been for many years advocates for the 
 liberties of England and of the colonies; it was the great rule of 
 their opposition, and it is impossible that men who are ready to 
 grant independence to America can oppose the independence of 
 Ireland." Mr. Grattan then moved an address to the crown (which 
 was agreed to unanimously), containing the following passages : — 
 " To assure His Majesty that his subjects of Ireland were a free 
 people ; that the crown of Ireland was an imperial crown in- 
 separably annexed to the crown of Great Britain, on which con- 
 nexion the interest and happiness of both nations essentially 
 depended ; but that the kingdom of Ireland was a distinct king- 
 dom with a Parliament of her own, the sole legislature thereof: 
 that there was no body of men competent to make laws to bind this 
 nation except the king, lords, and commons of Ireland, nor any 
 other parliament which had any authority or power of any sort 
 whatsoever in that country save only the Parliament of Ireland. — 
 To assure His Majesty that they had seen with concern certain 
 claims advanced by the Parliament of Great Britain in an Act 
 intituled, * An Act for the better securing the dependency of 
 Ireland ;' an Act containing matter entirely irreconcileable to the 
 fundamental rights of that nation. That they conceived that Act, 
 and the claims it advanced, to be the great and principal cause of 
 the discontents and jealousies in that kingdom." 
 
 On the 17th of May resolutions were moved in the English 
 Houses of Parliament by Lord Shelburne and Mr. Fox, and carried 
 unanimously, to the following effect : — 
 
 " First, that it was the opinion of that House that the Act of 
 6 Geo. L, intituled &c., ought to be repealed. Second, that it was 
 the opinion of that House that it was indispensable to the interest 
 and happiness of both kingdoms that the connexion between them 
 should be established by mutual consent upon a solid and per- 
 
NOTES. 361 
 
 manent footing, and that an humble address should be presented 
 to His Majesty, that His Majesty would be graciously pleased to 
 take such measures as His Majesty in his royal wisdom should 
 think most conducive to that important end." 
 
 On the 27th of May, in a debate upon the Duke of Portland's 
 speech from the throne, Mr. Graitan expressed his satisfaction 
 with the concessions made by the British Parliament. " I under- 
 stand (he said) that Great Britain gives up in toto every claim to 
 authority over Ireland. I have not the least idea that, in repealing 
 the 6 Geo. I., Great Britain should be bound to make any declara- 
 tion that she had formerly usurped a power. Another act of great 
 magnanimity in the conduct of Britain is, that everything is given 
 up unconditionally. This must for ever remove suspicion." He 
 then moved a series of resolutions, of which the following is the 
 most important : — " To assure His Majesty that we conceive the 
 resolution for an unqualified unconditional repeal of the 6 Geo. I. 
 to be a measure of consummate wisdom and justice, suitable to the 
 dignity and eminence of both nations, exalting the character of 
 both, and furnishing a perpetual pledge of mutual amity." These 
 resolutions were passed almost unanimously. 
 
 In consequence of this agreement between the Parliaments of 
 Great Britain and Ireland, the Irish Parliament passed a bill 
 repealing the material provision of Poyning's law, and the British 
 Parliament passed a bill repealing the 6 Geo. I.— (22 Geo. III. 
 c. 53.) 
 
 In the mean time the existing administration had been dissolved 
 in consequence of Lord Rockingham's death, and Lord Shelburne's 
 ministry had succeeded (13th July), in which Lord Temple was 
 lord lieutenant of Ireland. 
 
 During the proceedings which have been just described, Mr- 
 Flood and the small number of his adherents in the Irish House of 
 Commons threw doubts upon the sincerity of England and the 
 completeness of the concession which she had made. — (Plowden, 
 vol. 1. p. 619.) On the 19th December, Colonel Fitzpatrick made 
 some complaints to the same effect in the English House of 
 Commons, in consequence of the recent decision of an Irish cause 
 by the court of King's Bench in England. In this debate Mr. Fox 
 stated " that the intention of those ministers who had sent [assented 
 to?] the repeal of the declaratory law was thereby to make a com- 
 plete, absolute, and perpetual surrender of the British legislative 
 and judicial supremacy over Ireland." On the following day Mr. 
 William Grenville, the secretary to the lord lieutenant, stated, 
 " that there was not a man in either kingdom more decidedly of 
 opinion than his excellency was that the faith of England was 
 pledged to Ireland for the truth of this proposition, that England 
 had fully and completely renounced all legislative and judicial 
 jurisdiction, and that nothing could be more conducive to the 
 harmony and interests of both kingdoms than that this national 
 faith should be preserved inviolate " On the 22nd of January, 
 1783, Mr. Secretary Townshend moved for leave to bring in a bill 
 ** for removing and preventing all doubts which have arisen or may 
 arise concerning the exclusive rights of the Parliament and courts 
 of Ireland in matters of legislation and judicature, and for prevent- 
 ing any writ of error or appeal from any of His Majesty's courts in 
 
362 NOTES. 
 
 that kingdom from being received, heard, or adjudged in any of 
 His Majesty's courts of the kingdom of Great Britain." The motion 
 was seconded by Mr. W. Grenville, and was carried without a 
 division. Before this bill had been read a second time in the 
 House of Lords, the coalition ministry had come into office, 
 (2d April,) and there was some hesitation as to proceeding with the 
 bill. A long debate upon it took place in the Lords on the 14th of 
 April, when Lord Abingdon opposed the bill, saying that he was 
 willing to concede to the Irish Parliament the right of internal but 
 not of external legislation. He also asked " if the people of 
 Ireland wished to remain subjects of the crown of England. If 
 they did, the moment that bill passed they were no longer so ; for 
 the subjects of the crown of England must be, and are of continual 
 necessity, under the legislative authority of this country. The 
 crown itself is under the legislative authority of this country; and 
 of course those who are dependent upon this crown, so far as the 
 constitution admits of it, must be so too. That they may be sub- 
 jects of the king of England is true, and so they will be, and so are 
 the people of Hanover subjects of the king of England. But does 
 Ireland wish to be upon the footing of Hanover with this country ? 
 — and yet the case must and will be so. Do the people of Ireland 
 wish to have seats in the British Parliament ? — this bill incapaci- 
 tates them from being members of the British legislature. It was 
 by Acts of Parliament that the right of sitting in the two Houses 
 of Parliament was regulated ; and the people of Ireland not being 
 to be bound by Acts of Parliament, they are in so much aliens 
 quoad their claim to this right. From the moment that Act 
 passed the Irish were no longer our fellow subjects." The Duke of 
 Richmond supported the same view, saying that "not only in regard 
 to peace and war, but in regard to rivalship in commerce, in regard 
 to ecclesiastical matters, the separation created by the present bill 
 would be materially alarming to England. Suppose that England 
 should have occasion to go to war, and Ireland should find herself 
 disposed to remain at peace, should refuse to give aid, and furnish 
 her quota to the cause of her empire ; suppose that, in negotia- 
 tions for peace, the terms agreed on by the English ministers should 
 be objected to by the Irish ; suppose that in regulations and treaties 
 of commerce with foreign states the Irish should contend with the 
 English, — in these and a thousand other possible suppositions, was 
 it possible that this total separation could be submitted to by the 
 people of England ? But there were other most important dangers 
 to be apprehended." After adverting to the probable conse- 
 quences of an admission of the Irish catholics and dissenters to an 
 equality of political rights with the members of the established 
 church, he added : "These were reasons that made it indispensably 
 necessary for their lordships to inquire whether this was to be 
 followed by any other measure, and whether the present ministers 
 had adopted it as a part of a system upon which the mutual con- 
 nexion of the two countries was to be established." The bill, how- 
 ever, ultimately passed without a division. — (See 23 Geo. III. c. 28.) 
 In the midst of the rapid ministerial changes which occurred at 
 this period, and the differences of opinion which existed on other 
 subjects, all parties (as Plowden remarks, vol. ii. p. 20) were agreed 
 in giving independence to Ireland. This agreement of opinion 
 
NOTES. 363 
 
 was probably owing to a conviction of the necessity of concession 
 in the actual weakness of England, and not to any belief of the 
 permanent advantages of the arrangement. The Duke of Port- 
 land had entertained a hope of inducing the Irish Parliament 
 to recognise the supremacy of Great Britain over all the external 
 relations of Ireland (Plowden, vol. i. p. 611 ; Hansard's Pari. 
 Hist. vol. xxxiv. p. 977.) ; and Mr. Pitt, in his speech on the Union, 
 alluded to the resolutions proposed by Lord Shelburne and Mr. 
 Fox (above, p. 360), as provmg that the arrangement of 1782 was 
 not considered by its authors as final. But whatever might be 
 thought of the policy of the arrangement, the English Parliament, 
 after it had been once made, abstained scrupulously from interfering 
 with the affairs of Ireland. In the discussion of the commercial reso- 
 lutions of 1785, Ireland was constantly treated as an independent 
 state, for which the English Parliament could no more legislate 
 than it could for France ; and the prospective j)rovision for the 
 regency made by the Irish Parliament in 1789 differed from that 
 made by the British Parliament. — (See also Lord Grenville, 21st 
 March, and Mr. Fox, 23rd March, 1797.) But although the English 
 Parliament did not legislate for Ireland, no substantial change was 
 made in the system of management by which the virtual depend- 
 ence of Ireland was secured. — (Plowden, vol. ii. p. 277.) The 
 virtual dependence of Ireland, notwithstanding the concessions 
 which had been made by England, was more than once adverted 
 to in Parliament after 1782. Thus Mr. Burke said on the 19th 
 May, 1785, " To Ireland independence of legislature had been 
 given: she was now a co-ordinate, though less powerful state; 
 but pre-eminence and dignity were due to England ; it was she 
 alone that must bear the weight and burden of the empire ; she 
 alone must pour out the ocean of wealth necessary for the defence 
 of it. Ireland, and other parts, might empty their little urns to 
 swell the tide; they might wield their little puny tridents; but 
 the great trident that was to move the world must be grasped by 
 England alone — and dearly it cost her to hold it. Independence 
 of legislature had been granted to Ireland ; but no other inde- 
 pendence could Great Britain give her without reversing the order 
 and decree of nature. Ireland could not be separated from Eng- 
 land ; she could not exist without her ; she must ever remain 
 imder the protection of England, her guardian angel." And in a 
 discussion on the commercial treaty with France in 1787 in the 
 English House of Commons, Mr. Flood remarked that " the Par- 
 liament of Great Britain was the imperial Parliament, and it was, 
 therefore, the indispensable duty of that Parliament in every 
 great national measure to look to the general interests of the 
 empire, and to see that no injurious consequences followed to the 
 peculiar interests of any part of it ;" a view which, as Mr. Plowden 
 remarks, vol. ii. p. 176, was inconsistent with the supposition of the 
 virtual independence of Ireland. Mr. Grattan even opposed the 
 commercial resolutions of 1785, on the ground that they would 
 bring about the subordination of Ireland to England by producing 
 a similarity of their institutions. " It is here said," he remarked, 
 " that the laws respecting commerce and navigation should be 
 similar, and inferred that Ireland should subscribe the laws of 
 England on those subjects, that is, the same law, the same legisla- 
 ture ; but this argument goes a great deal too far, it goes to the 
 
364 NOTES. 
 
 army, for the mutiny bill should be the same : it was endeavoured 
 to be extended to the collection of your revenue, and is in train to 
 be extended to your taxes ; it goes to the extinction of the most 
 invaluable part of your parliamentary capacity ; it is an union, an 
 incipient and a creeping union ; a virtual union establishing one 
 will in the general concerns of commerce and navigation, and 
 reposing that will in the Parliament of Great Britain ; an union 
 where our Parliament preserves its existence after it has lost its 
 authority ; and our people are to pay for a parliamentary establish- 
 ment without any proportion of parliamentary representation." — 
 (Speech in the Irish House of Commons on the 12th August, 
 1785.) Mr. Grattan, however, in along address to the crown which 
 he moved in the Irish House of Commons on the 6th of June, 
 1800, treated Great Britain and Ireland as parts of the same 
 empire. The following is a passage of this address : — " That giving 
 the name of Union to the measure is a delusion ; the two kingdoms 
 are already united to each other in one common empire, — one in 
 unity of interest and unity of constitution, as has been emphatically 
 pronounced from the throne by your Majesty's former viceroy, 
 bound together by law, and, what is more effectual than law, by 
 mutual interest, mutual affection, and mutual duty, to promote the 
 common prosperity of the empire ; and it is our glory and happi- 
 ness that we form an inseparable part of it." 
 
 The virtual dependence of Ireland was frequently adverted to in 
 the debates on the Union, both in the English and Irish Parliament. 
 Thus, Mr. Conolly dwelt upon the fact that there had been 116 
 placemen and pensioners at one time in the Irish House of Com- 
 mons ever since the year 1782. Lord Castlereagh said, " You talk 
 of national pride and independence, but where is the solidity of this 
 boast ? You have not the British constitution, nor can you have it 
 consistently with your present species of connexion with Great 
 Britain, That constitution does not recognise two separate and in- 
 dependent legislatures under one crown. The greater country must 
 lead, the less naturally follow, and must be practically subordinate 
 in imperial concerns ; but this necessary and beneficial operation 
 of the general will must be preceded by establishing one common 
 interest." — (22d January, 1799.) Mr. W. Smith, in a subsequent 
 debate, after having indicated the evils of a separation of Ireland 
 from England, went on to say, " Some might reply, the British 
 influence would operate as an antidote to the mischiefs appre- 
 hended, and would prevent legislative dissensions from weakening 
 and tearing asunder the energies of the empire, or Irish inde- 
 pendence from checking the views or injuring the interests of 
 Britain. But that supposition he thought insultingly derogated 
 from the practical independence of the Irish Parliament, which 
 was thus allowed to be subordinate to that of Great Britain. Where 
 an actual subjection thus existed, it might be rendered only the 
 more mischievous and oppressive by being concealed behind a 
 mask of nominal independence ; and the desired antidote would 
 be more effectually found in an union than in a division of legis- 
 latures." Lord Castlereagh, in a later debate, " referred to a 
 more frequent and just ground of complaint in that House, that 
 the Irish minister, acting as he did under the direction of a British 
 cabinet, was not responsible to the Irish Parliament from the 
 moment of his withdrawing from this kingdom, unless, by a de- 
 
NOTES. 365 
 
 rogation from our independence, we should impeach him at the 
 har of the Parliament of Great Britain for offending against the 
 constitution of Ireland. Who advised the measures of the Irish 
 government ? — The English minister. And how could the Irish 
 Parliament meet him ? Who administered the great seal of Eng- 
 land, without which no legislative Act could be ratified ? — An 
 English minister. And how could the Irish Parliament meet 
 him ? In short, how could an efficient and constitutional responsi- 
 bility be obtained but by making the jurisdiction of Parliament 
 as comprehensive as the executive power? And this could be 
 effected by an union alone." — (15th February.) Lord Lansdowne 
 had remarked in a debate in the House of Lords on the 21st of 
 March, 1797, that " the lord lieutenant of Ireland as a minister was 
 accountable to the British as well as to the Irish Parliament ; and, 
 therefore, the British House of Lords had a right to watch over 
 the measures of his administration, and to censure or advise him 
 as they might deem proper :" and Mr. Fox made similar remarks 
 in the House of Commons at the same time. Lord Minto adduced 
 the following proofs of the virtual subordination of Ireland to 
 England, in the debate on the Union, in the House of Lords: — 
 " Ireland claims a sovereign independent government, and that 
 claim is freely admitted by our own ; while we exercise, neverthe- 
 less, with the acquiescence of Ireland, an open ascendency and 
 
 control in every one of its concerns Ireland must take 
 
 her part in all the wars of Great Britain : she must bear her share 
 of their burthens, and incur all their hazards. She may lose a 
 province, or may become herself a province of the enemy ; yet 
 Ireland cannot, by the utmost success of the war, acquire an acre of 
 new territory to the Irish dominion. Every acquisition made by 
 the forces of the empire, however great her share may have been 
 in the danger or exertion, accrues to the crown of Great Britain. 
 
 Ireland claims no sovereignty in any one of the foreign 
 
 possessions or provinces of the British empire. The Irish Parlia- 
 ment has never asserted or conceived the right of legislating for 
 any of the conquests of the king of England, that is to say, of the 
 king of Ireland. Ireland has planted no Irish colonies, but has 
 furnished planters to all those of Great Britain. In a word, this 
 whole class of sovereign rights and capacities, however inherent in 
 the very nature of sovereignty, is wholly wanting in that of Ireland. 
 If we were asked to define, or at least to describe an independent 
 sovereignty, should we err much by saying it is a state which can 
 make war and peace, which can acquire dominion by conquest, and 
 which can plant colonies and establish foreign settlements ? And 
 if we would describe a subordinate and dependent country, could 
 we do it better than by saying it is a country which must contribute 
 her quota to all the wars of a neighbouring kingdom, must incur 
 all the risks of those wars, and partake in all their disasters ; while 
 all that is acquired by their success falls, like the lion's share, to 
 that country with which it claims to be co-ordinate and co-equal." 
 In form, however, Ireland at this time was an independent state, 
 and the connexion between the two crowns did not render Great 
 Britain and Ireland parts of the same empire. That the rules of 
 succession to the crown might become different was proved by the 
 proceedings of the Irish Parliament respecting the regency in 1789. 
 The insufficiency of the union of the crowns to ensure the supre- 
 
366 NOTES. 
 
 macy of Great Britain over Ireland was pointed out by Lord 
 Abingdon in his remarks already cited, (above, p. 3G2;) and was 
 proved more cogently by Lord Grenville in his speech on the Union. 
 After having observed that the settlement in 1782 did not supply 
 the link which by the abrogation of the former system had been 
 destroyed. Lord Grenville proceeds to say, "In looking further into 
 the relative state of the two countries, he would examine into the 
 nature of their connexion, and what was the bond which held 
 together countries ruled by separate and independent legislatures ? 
 it was merely this, that one common sovereign ruled over them, — 
 a sovereign constituted equally by the laws of both countries. Tliis 
 identity of the royal power was now the only remaining bond of 
 connexion. In a pure and absolute monarchy such a bond of con • 
 nexion might possibly be sufficient ; but in a mixed government 
 and limited monarchy as was the British, and the other component 
 parts of the government of the countries distinct and separate, such 
 a bond of union must be obviously imperfect With re- 
 spect to the supposed existing bond of connexion between Great 
 Britain and Ireland, he was not afraid to say that it was absolutely 
 null. If by the British constitution, the royal power could be 
 exercised free from the control of Parliament, then, indeed, the 
 regal identity might be a bond of connexion ; but if the whole 
 system of the regal power was not only under the control, but could 
 not go on without the aid and assistance of Parliament, and the 
 Parliaments of each kingdom were to remain distinct and separate, 
 then, he repeated, the bond of connexion was absolutely null." 
 
 The relations of Great Britain and Ireland during the period 
 after 1782 were upon so unsound a footing that they could scarcely 
 be permanent; but they might have remained unchanged some 
 years longer if a crisis had not been precipitated by the disastrous 
 events of the rebellion of 1798, the intrigues of some of the Irish 
 malcontents with the French government and the French expe- 
 ditions against Ireland. The attempts of the French upon Ireland 
 are stated as the main ground for the Union in the king's message 
 to the House of Lords, by which the subject was brought before the 
 British Parliament on the 22nd of January, 1799. " His Majesty 
 is persuaded that the unremitting industry with which our enemies 
 persevere in their avowed design of effecting the separation of 
 Ireland from this kingdom cannot fail to engage the particular 
 attention of Parliament ; and His Majesty recommends it to this 
 House to consider of the most effectual means of counteracting and 
 finally defeating this design ; and he trusts that a review of all the 
 circumstances which have recently occurred (joined to the senti- 
 ments of mutual affection and common interest) will dispose the 
 Parliaments of both kingdoms to provide, in the manner which 
 they shall judge most expedient, for settling such a complete and 
 final adjustment as may best tend to improve and perpetuate a 
 connexion essential to their common security, and to augment and 
 consolidate the strength, power, and resources of the British 
 
 empire." 
 
 NOTE M. (p. 204.) 
 
 I propose in this note to state the doctrines of the English courts 
 as to the existence and purport of certain fundamental principles 
 
NOTES. 367 
 
 to which tliG lans and other acts of the subordinate government of 
 an En«];lish dependency (and especially of one acquired by conquest 
 or cession) must conform. 
 
 The first attempt to lay down a rule upon this subject is in Lord 
 Coke's report of Calvin's case, which involved the question as to 
 the status of the Scotch postnati. 
 
 " There is a diversity between a conquest of a kingdom of a 
 Christian king and the conquest of a kingdom of an infidel ; for if 
 a king come to a Christian kingdom by conquest, seeing that he 
 hath ' vitcB et necis potestatem' he may at his pleasure alter and 
 change the laws of that kingdom ; but until he doth make an 
 alteration of those laws, the ancient laws of that kingdom remain. 
 But if a Christian king should conquer a kingdom of an infidel, and 
 bring them under his subjection, then ipso facto the laws of the 
 infidel are abrogated, for that they be not only against Christianity 
 but against the law of God and of nature contained in the Deca- 
 logue ; and in that case, until certain laws be established amongst 
 them, the king by himself, and such judges as he shall appoint, 
 shall judge them and their causes according to natural equity in 
 such sort as kings in ancient times did with their kingdoms before 
 any certain municipal laws were given, as before hath been said. 
 But if a king hath a kingdom by title of descent, there, seeing by 
 the laws of that kingdom he doth inherit the kingdom, he cannot 
 change those laws of himself without consent of Parlament. Also 
 if a king hath a Christian kingdom by conquest, as Henry II. had 
 Ireland, after John had given unto them, being under his obedience 
 and subjection, the laws of England for the government of that 
 country, no succeeding king could alter the same without Parlia- 
 ment.' '— (2 Howell's State Trials, 638.) 
 
 The next attempt is in a statement by the Master of the Rolls of 
 some principles laid down by the Privy Council upon an appeal 
 from the plantations in 1722. According to that statement, the 
 Council decided that " until the laws given by the conquering 
 prince, the laws and customs of the conquered country shall hold 
 place, unless were these are contrary to our religion, or enact 
 anything which is malum in se, or are silent ; for in all such 
 cases the laws of the conquering country shall prevail."— (2 P. 
 Williams, 76.) 
 
 The first case of importance in which the doctrines on this sub- 
 ject were considered is that of Fabrigas v. Mostyn, in 1773. This 
 was an action for an assault and false imprisonment, brought in the 
 Court of Common Pleas by Mr. Anthony Fabrigas, a native of 
 Minorca, against Lieutenant-General Mostyn, the governor of the 
 island. The facts proved at the trial were, that Governor Mostyn 
 had arrested the plaintiff, imprisoned him, and transported him to 
 Spain without any form of trial, on the ground that the plaintiff had 
 presented to him a petition for a redress of grievances in a manner 
 which he deemed improper. Mr. Justice Gould, who tried the 
 cause, left it to the jury to say " whether the plaintiffs behaviour 
 was such as to afford a just conclusion that he was about to stir up 
 a sedition and mutiny in the garrison, or whether he meant no more 
 than earnestly to press his suit and to endeavour to obtain redress 
 for what seemed to him to be a grievance." If they thought that 
 the latter was the case, he informed them that the plaintiff was 
 
368 NOTES. 
 
 entitled to recover in the action.* The jury gave a verdict for the 
 plaintiff, with 3,000/. damages. In the following Michaelmas Term 
 an application was made for a new trial, which was refused by the 
 whole Court. In delivering his opinion upon this application, Lord 
 C. J. De Grey made the following remarks. After having described 
 the imprisonment of Fabrigas by Governor Mostyn in Minorca, he 
 proceeds thus: — " He is then confined on board a ship, mider the 
 idea of a banishment to Carthagena. I do believe Mr. Mostyn was 
 
 * The following remarks of the counsel for the defendant in this trial 
 contain a plain and 7iaive expression of the feeling, that a dependency is to 
 be governed not for its own interest but for that of the dominant state : — 
 
 *' Gentlemen, it will be time noAV for me to take notice, as I have gone 
 so far into the general liistory, of another circumstance, which is notorious 
 to all the gentlemen who have been settled in that island, as well governors 
 as the other military gentlemen that have been there, that the native inha- 
 bitants of Minorca are but ill affected to the English and to the English 
 government. It is not much to be wondered at. They are the descendants 
 of Spaniards : they consider Spain as the country to which they ought 
 naturally to belong ; and it is not at all to be wondered at that these 
 people are not well disposed to the English, whom they consider as their 
 conquerors. A strong instance of that happened at the time of the inva- 
 sion of Minorca by the French, when the French took it, which I believe 
 was in the year 1756, the beginning of last war ; and it is very singular that 
 hardly a Minorquin took arms in defence of the island against the French, 
 the strongest proof in the world that they were very well pleased at the 
 country being wrested from the hands of the English. The French did 
 take it, as we all very well know ; but, thank God, we have it again. Of 
 all the Minorquins in that island perhaps the plaintiff stands singularly and 
 most eminently the most seditious, turbulent, and dissatisfied subject to the 
 crown of Great Britain that is to be found in the island of Minorca. 
 Gentlemen, he is, or chooses to be, called the patriot of Minorca. Now, 
 patriotism is a very pretty thing among ourselves, and we owe much to it ; 
 we owe our liberties to it : but we should have but little to value, and 
 perhaps we should have but little of the liberty we now enjoy, were it not 
 for our trade. And for the sake of our trade it is not fit we should en- 
 courage patriotism in Minorca ; for it is there destructive of our trade, and 
 there is an end to our trade in the Mediterranean if it goes there. But 
 here it is very well ; for the body of the people of this counti-y they will 
 have it : they have demanded it ; and in consequence of their demands 
 they have enjoyed liberty which they will continue to posterity, — and it is 
 not in the power of this government to deprive them of it. But they will 
 take care of all our conquests abroad. If that spirit prevailed in Minorca, 
 the consequence of it would be the loss of that country, and of course our 
 Mediterranean trade. "We should be sorry to set all our slaves free in our 
 plantations." — (20 Howell, 105.) Concerning the neglect of Minorca by 
 England, and the confusion and uncertainty of its laws, see a passage from 
 Baron Maseres' Canadian Freeholder, cited in 20 Howell, 339. As to the 
 ignorance of the English respecting Minorca when it was a dependency of 
 England, compare the remark of Armstrong in his History of Minorca, 
 (ed. 2. 1756.) " Allow me to tell you that, though there are many nations 
 in Europe whose character is more interesting, whose affairs are more im- 
 portant, and whose virtues are more conspicuous, I am far from regretting 
 the time I have spent in withdrawing the veil that has so long hid these 
 islanders from the observation of their neighbours ; and continued them, 
 though they make a part of our British dominions, as utter strangers to the 
 good people of England as the hunters of .Ethiopia or the artificers of 
 Japan." — (p. 213.) 
 
NOTES. 369 
 
 led into this under tlie old practice of the island of Minorca, by 
 which it was usual to banish. I suppose the old Minorquins 
 thouf;ht fit to advise him to this measure. But the governor knew 
 that he could no more imprison him for a twelvemonth than that 
 he could inflict the torture ; yet the torture, as well as banishment, 
 was the old law of Minorca, which fell of course when it came into 
 our possession. Every English governor knew he could not inflict 
 the torture ; the constitution of this country put an end to that 
 idea." — (20 Howell, S. T. 181.) Governor Mostyn afterwards 
 brought a Writ of Error in the King's Bench, which, after full 
 argument, confirmed the judgment of the Court of Common Pleas. 
 
 It may be observed that, in this case, the Court of Common 
 Pleas appears to have treated the governor of Minorca as not pos- 
 sessed of a legislative power. Lord C. J. De Grey says : — " One of 
 the witnesses in the cause represented to the jury that, in some par- 
 ticular cases, especially in criminal matters, the governor resident 
 upon the island does exercise a legislative power. It was gross 
 ignorance in that person to imagine such a thing. I may say, it 
 was impossible that a man who lived upon the island in the station 
 he had done should not know better than to think that the governor 
 had a civil and criminal power vested in him. In the island, the 
 governor is the king's servant : his commission is from the king, 
 and he is to execute the power he is invested with under that 
 commission, which is to execute the laws of Minorca under such 
 regulations as the king shall make in council." — (p. 178.) Lord 
 Mansfield, in the King's Bench, adds the following remarks upon 
 the legal responsibility of a governor : — " To make questions upon 
 matters of settled law, where there have been a number of actions 
 determined which it never entered into a man's head to dispute ; 
 to lay down in an English court of justice such monstrous propo- 
 sitions as that a governor, acting by virtue of letters patent under 
 the great seal, can do what he pleases ; that he is accountable only 
 to God and his own conscience ; and to maintain here that every 
 governor in every place can act absolutely ; that he may spoil, 
 plunder, affect their bodies and their liberty, and is accountable to 
 nobody, — is a doctrine not to be maintained ; for if he is not ac- 
 countable in this Court he is accountable nowhere. The King in 
 Council has no jurisdiction of this matter ; they cannot do it in any 
 shape ; they cannot give damages, they cannot give reparation, 
 they cannot punish, they cannot hold plea in any way. Whenever 
 complaints have been before the King in Council, it has been with 
 a view to remove the governor ; it has been with a view to take 
 the commission from him which he held at the pleasure of the 
 crown. But suppose he holds nothing of the crown, suppose his 
 government is at end, and that he is in England, they have no 
 jurisdiction to make reparation to the party injured ; they have no 
 jurisdiction to punish in any shape the man that has committed the 
 injury. How can the arguments be supported that, in an empire 
 so extended as this, every governor in every colony and every 
 province belonging to the crown of Great Britain shall be absolutely 
 despotic, and can be no more called in question than the king of 
 France ; and this after there have been multitudes of actions in all 
 our memories against governors, and nobody has been ingenious 
 enough to whisper them that they were not amenable?"— (p. 231.) 
 
 The other case of importance with reference to this subject is 
 
 2b 
 
370 
 
 NOTES. 
 
 that of Rex v. Picton. This was an indictment against Thomas 
 Picton, Esq., for a misdemeanour in causing the torture to be 
 inflicted upon Luisa Calderon, a free mulatta, in the island of 
 Trinidad, when he was governor of the island. The indictment 
 was found by a Grand Jury of the county of Middlesex in Hilary 
 Term, 1804 ; and, after the issue of a mandamus to examine wit- 
 nesses in Trinidad, it was tried in the King's Bench before Lord 
 Ellenborough and a special jury, on the 24th February, 1806. In 
 this trial it was proved that Luisa Calderon, who in December, 1801, 
 was living in Trinidad with a man named Pedro Ruiz as his 
 mistress, was suspected of being the accomplice of a person who 
 had entered Ruiz's house, and had robbed it of some dollars there 
 deposited. She was taken before a judicial officer for examination, 
 but denied all knowledge of the offender. Being unable to obtain 
 the desired confession, the judge applied to the governor for 
 authority to put the girl to the torture, and the governor thereupon 
 gave a written dire(;tion to that effect. Luisa Calderon w^as, in 
 pursuance of this direction, twice subjected to the infliction called 
 piqueting, and the desired confession was thereby extracted from 
 her. It was alleged, in Governor Picton's defence, that the law 
 of Trinidad authorized the use of the torture in cases of this sort 
 before the cession of the island to Great Britain, and that this law 
 had not been repealed since the cession ; but the existence of any 
 such law or legal practice was denied on the part of the prosecution. 
 Lord Ellenborough left it to the jury to determine whether any 
 such law existed ; and he directed them first to consider " w hether 
 torture could be applied at the discretion of the judge, and if so, 
 whether the application of torture to witnesses formed a part of 
 the law of Trmidad at the time of the cession of that island." 
 Upon receiving the opinion of the jury that there was no such law 
 existing at the time of the cession, Lord Ellenborough said, "Then 
 Governor Picton cannot derive any protection from that law. If 
 no law obtained in that island at the time which authorized the 
 severities practised upon this youn^ woman, your verdict must be 
 that the defendant is guilty." The jury accordingly found a verdict 
 of guilty. It will be observed that, throughout this trial. Lord 
 Ellenborough treated the legality of Governor Picton's conduct as 
 exclusively dependent upon the existence of a law authorizing the 
 use of the torture for witnesses at the time of the cession of the 
 island, (see his remarks in p. 488 and 529, his summing up in 
 p. 536—40, and his report of his own summing up in p. 584;) and 
 that he nowhere expresses an opinion that the law, if it had existed, 
 would have ceased to be in force when the island became an 
 English dependency. 
 
 An application for a new trial in the case was made to the King's 
 Bench on April 26, 1806. After argument, and the admission of 
 additional affidavits, a new trial was granted on two grounds ; first, 
 because new evidence had been produced, showing the existence of 
 the law of torture prior to the cession of the island : secondly, that 
 a special verdict might be found, in order to raise the question, 
 whether such a law could remain in force in an English depen- 
 dency.— (p. 803, 4.) 
 
 The second trial came on before Lord Ellenborough and a special 
 jury on June 11, 1808. In summing up the case to the jury. Lord 
 Ellenborough said that the existence of the law of torture at the 
 
NOTES. 371 
 
 time of the cession had, in his opinion, been proved by unquestion- 
 able evidence ; and this being admitted, the next question to be 
 considered was, " whether, when an island is ceded to the British 
 arms, a species of punishment, a mode of investigating the truth so 
 utterly inconsistent with the constitution and laws of Great Britain, 
 and with the habits of its people, is virtually abrograted, and whether 
 His Majesty, in continuing the former laws of the conquered 
 country, must not be considered as doing so with an exception of 
 the power to inflict torture." Lord Ellenborough proceeds to sa^r 
 that he will not intimate his opinion on this point, but he states it 
 to be a matter of great doubt, referring to the expressions of Lord 
 C. J. De Grey on the subject in Fabrigas v. Mostyn, which have 
 been cited above, p. 369 ; and he then directs them to find a special 
 verdict, in order that this point may be argued. The jury accord- 
 ingly found " that, by the law of Spain, torture existed in the island 
 of Trinidad at the time of the cession of that island to Great 
 Britain." A special verdict containing the facts of the case was 
 afterwards agreed to, (p. 863 — 884.) 
 
 The argument upon the special verdict subsequently came on, but 
 the judgment of the Court upon the case was never given. The 
 following is Mr. Howell's final note upon it: "No further pro- 
 ceedings took place in this case until Hilary Term, 52d Geo. III. 
 A. D. 1812, when the Court ordered the defendant's recognizances 
 to be respited until they should further order. It was thought by 
 the bar that, had the opmion of the Court been delivered, judgment 
 would have been given against General Picton ; but that, upon a 
 consideration of the merits, it would have been followed by a 
 punishment so slight, and so little commensurate with the magni- 
 tude of the questions embraced by the case, as to have reflected but 
 little credit upon the prosecution ; and I have been informed, that 
 it was by the advice of one of the learned counsel, who greatly dis- 
 tinguished himself in arguing the questions which arose in this 
 case, that it was not again agitated."— (p. 955.) 
 
 In his argument for the Crown on the special verdict, Mr. Nolan 
 attempts to prove that torture cannot be legally inflicted in a British 
 dependency ; inasmuch as it is repugnant to the fundamental prin- 
 ciples of the British constitution, and as exemption from torture is 
 a right of every British subject in every part of the dominions of 
 the British Crown, (p. 892 — 901.) Lord Ellenborough, however, 
 does not appear to have assented to Mr. Nolan's conclusions on tliis 
 head, as may be inferred from his interlocutory remarks in this part 
 of Mr. Nolan's argument. 
 
 Lord Ellenborough. — Do you mean that the king could not receive 
 an island by capitulation under the protection of the Crown of 
 Great Britain, with a continuation of all the laws, civil and eccle- 
 siastical, as they subsisted in that island, before the cession, some of 
 those being radically repugnant to the general principles of the 
 constitution ? for instance, this is a Spanish island, in which the 
 authority of the inquisition had obtained, and which was in the 
 habit of inflicting torture ; would you say, if there had been an 
 unconditional acceptance by the Crown of Great Britain, in all 
 respects preserving the laws, civil and ecclesiastical, that supposing 
 the inquisition and infliction of torture made a part of the law, the 
 king coujd not have made a valid capitulation, so as to continue tliat 
 constitution generally in the island of Trinidad ? 
 
 2b2 
 
372 
 
 NOTES. 
 
 Mr. Nolan. — My Lord, that is a question I did not mean to agitate 
 upon the present occasion, as not being before the Court. 
 
 Lord Fdlenbnrough. — Yes, incidentally it is ; I want to know the 
 extent of your proposition, and whether you contend that the 
 Crown upon a conquest would, in making the capitulation, be limited 
 to the extent I have stated. 
 
 Mr. Nolan. — I deliberately avoided going into that qu.^stion ; 
 but if your Lordships w4sh me to argue it, I think there are very 
 strong reasons which induce me to believe that the Crown is so 
 limited. 
 
 Lord Ellenborough. — It made a part of your argument, and I 
 wished to know if you could sustain it to that extent : you stated that 
 the king could not make laws contrary to fundamental principles. 
 
 Mr' Nolan. — Whether the Crown can by stipulation accede to 
 laws contrary to fundamental principles, I have not made a part of 
 my argument. 
 
 Lord Ellenborough. — You must necessarily make it a part of 
 your arginnent. 
 
 Mr. Nolan.' — I think I shall be able to sustain the proposition 
 that the Crown would be so limited. — p. 897, 8;J8. 
 
 Lower down Mr. Nplan argues that the laws of a dependency 
 conquered by or ceded to England are, from the time of the con- 
 quest or cession, replaced wholly or in part by the English laws. 
 The following dialogue then takes place. 
 
 Lord Ellenborough. — If they are not governed by the old laws, 
 by what laws are they governed? Either the old laws continue, or 
 they cease on the conquest ; the laws of the conquering country 
 supersede them, or the old laws remain under certain qualifications. 
 Who is to find out these qualifications ? Some of the persons who 
 are sent out from this country, judging for themselves, may say 
 some of these laws are not consistent with the principles and spirit 
 of the British constitution, and therefore it is not incumbent on us 
 to obey them. 
 
 Mr. Nolan. —^hSit is one of the points on which the learned 
 judges have anticipated difficulty ; and yet the rule is laid down in 
 the way which I contend for it, in 2 P. Williams, 75, namely, that 
 the laws and customs of the conquered country shall hold place, 
 unless they are contrary to our religion, or enact any thing that is 
 malum in se, or are silent ; for in all such cases the laws of the 
 conquering country shall prevail. But I am asked how the person 
 who is to administer the law is to know it? In fact, the persons 
 who administer the laws there must be Englishmen, or immediately 
 under their control, and subject to their explanation and direction 
 as to what the law is. 
 
 Lord Ellenborough. — The former laws they knew, because they 
 lived under them, and obeyed them before but now the two laws 
 are compounded. You will find sufficient difficulty in compounding 
 the two laws. It is supposed to be a part of the customs of China 
 to expose infants. It would be difficult, prima facie, to say that was 
 murder in them, and yet that is malum in se ; it is as much malum 
 in se as anything can be supposed to be. 
 
 Mr. Nolan. — Your Lordships observe that the position in 2 P. 
 Williams says, the laws of this country shall prevail where those of 
 the conquered country are either contrary to the laws of God or 
 are totally silent. 
 
NOTES. 373 
 
 Lord Ellenborough.— My difficulty is about these exceptions: 
 "fundamental principles'' and ''mala in se* introduce some diffi- 
 culty. 
 
 Mr. Nolan. — There is undoubtedly a difficulty of drawing the 
 precise line ; but so there is in all human matters, and this duty 
 must be reposed in judicial discretion. 
 
 Lord Ellenborough.—All difficulty in drawing the line is avoided, 
 if, in conformity to the bth Resolution in Campbell and Hall, you 
 say, " that the laws of a conquered country continue in force until 
 they are altered by the conqueror.'" That leaves no uncertainty or 
 difficulty, as the colony is to remain as it was before. — (p. 944, 945.) 
 
 Mr. Dallas, in his argument in support of the motion for a new 
 trial, admits that the dictum of C. J. De Grey in Fabrigas v. Mostyn 
 respecting torture is against him, but contends that it is a mere extra- 
 judicial opinion not necessary to the decision of the case. The 
 following remarks of Mr. Dallas upon Mr. Garrow's argument, that 
 torture is contrary to the laws of England, are likewise deserving of 
 attention. " It seems to me, as far as the authorities go, that not 
 one of them touches the question. They appear to be cases in 
 which the consideration is confined to the custom of England, and 
 there being no such custom in England there can be no such law. 
 But, independent of these authorities, the gentlemen on the other 
 side contend that, on general grounds and principles, the abolition 
 of torture must be understood, whatever were the terms of the 
 capitulation which has taken place. I do not think Mr. Garrow 
 referred us to any decided case, much less to the positive enact- 
 ment of any statute ; but he contented himself with stating what 
 he deemed a parallel case. ' There can,' he said, * be no such thing 
 as slavery in England. The moment a slave puts his foot on Eng- 
 lish ground he becomes free.' I admit it ; I admit that the case is 
 parallel, and it leads to this conclusion, — there can be no such 
 thing as torture in England. But in order to make it applicable to 
 his argument, Mr. Garrow must push his doctrine to this extent, 
 viz., that because there is no torture in England there can be no 
 torture in any other country ; he must contend that because slavery 
 cannot exist in England, therefore slavery cannot exist in the 
 colonies. If his doctrine, that because there is no torture in 
 England, there can be no torture in a colony subject to England, 
 could prevail, it would have this effect : according to my learned 
 friend's analogy, if by force of arms any foreign dominion has been 
 acquired, for instance St. Lucie, Martinique, or any other colony, 
 it would follow that, because there was no slavery in England, there 
 could be none in those colonies. If it were true that, because there 
 is no torture in England, there can be no torture in Trinidad, the 
 doctrine and the principle on which it is founded would let loose 
 all the slaves in every island that ever was acquired by force of 
 British arms. It seems to me that the argument built upon my 
 learned friend's analogy tends the other way, and is against him- 
 self. 'There can be no such thing,' says my learned friend, 'as 
 slavery in England, but there may be such a thing as slavery in the 
 colonies;' and I say, in like manner, though there can be no such 
 thing as torture in England, there may be in the colonies. His 
 illustration establishes nothing for himself, but is directly at vari- 
 ance with what it is meant to support.'' — (p. 774, 775.) 
 
 On a review of the pre«:eding statement it will be seen, that the 
 
374 NOTES. 
 
 law on the subject under consideration rests exclusively on judicial 
 dicta; and that the authority or applicability of some of these 
 dicta is subject to doubt, seeing that they are (as the dictum of 
 C. J. De Grey in Fabrigas v. Mostyn) unnecessary to the decision 
 of the question before the Court, or (as the rules in Peere Williams) 
 unaccompanied with a statement of the facets of the case. The only 
 principle which has been expressly decided is that involved in 
 Fabrigas v. Mostyn ; where the governor's proceeding was pro- 
 fessedly exceptional and without legal precedent, and could only be 
 justified on the ground that the governor had the power of arbitrary 
 imprisonment without necessity. 
 
 The rule as to the cessation of laws in a conquered pagan country 
 which are inconsistent with the law of God (laid down in Calvin's 
 case) is treated by Lord Mansfield in Campbell v- Hall, and also 
 by Mr. Justice Gould in his summing up in Fabrigas v, Mostyn, 
 (20 Howell 162) as obsolete. (See further in Clark's Colonial Law, 
 p. 4, note.) 
 
 With respect to the cessation of laws which contain anything 
 malum in se, or contrary to the fundamental principles of the 
 British constitution, all that has been decided is to be collected from 
 the cases of Fabrigas v. Mostyn, and Rex v. Picton, the material 
 parts of which have been cited above. 
 
 The expressions of Lord Ellenborough during the argument of 
 Rex V. Picton render it probable that if any similar case should 
 hereafter come before the Courts, the doctrine as to fundamental 
 principles would not be extended. If is certain that no favour would 
 be shown to this doctrine if the argumentumab inconvenienti were 
 allowed to have any weight ; for if the judges of a dependency 
 could nullify any law by declaring it to be inconsistent with what they 
 might deem to be a fundamental principle of the British consti- 
 tution, all its laws would manifestly be at their mercy ; inasmuch 
 as the phrase " fundamental principles of the British constitution'* 
 has not obtained any determinate meaning. The most convenient 
 course clearly is (as Lord Ellenborough suggests), that all the laws 
 of a conquered or ceded dependency should remain in force until 
 they are expressly repealed by competent authority. 
 
 It may be remarked that in the cases cited above, the doctrine in 
 question is considered only with reference to the laws of a con- 
 quered or ceded dependency. But if the existence of any such 
 fundamental principles be admitted, it is manifest that the laws of 
 a dependency acquired by colonization must conform to them not 
 less than the laws of a dependency acquired by conquest or 
 cession. 
 
 NOTE N. (p. 276.) 
 
 The following account of the attempts of the Austrian Govern- 
 ment to extirpate the Bohemian language, and to substitute the 
 German language in its place, is given by Mr. Turnbull, in his work 
 on Austria. 
 
 " The language of Bohemia, except in a few of the western dis- 
 tricts immediately bordering on Saxony, is still that old Slavonic, 
 which, with some variations of dialect, forms likewise the vernat'ular 
 tongue in Poland, Russia, a large portion of Hungary, the lllyrian 
 
NOTES. 375 
 
 provinces, and the northern parts of European Turkey. To abolish 
 this characteristic distinction between the Bohemian and Austrian 
 subjects was long a favourite object of that policy which has sought 
 to establish an absolute identity of language, laws, and institutions, 
 in all the provinces of the empire: but the religion, the language, 
 and the domestic habits of a people can be changed only by very 
 slow degrees, even in cases where the change can be effected at all ; 
 and it not unfrequently happens that the measures pursued to en- 
 force the alteration are precisely those which prevent its adoption. 
 * * * * In vain were ordinances issued, commanding the ex- 
 clusive use of the German tongue in all transactions between the 
 public functionaries and the people, in all parochial and districtual 
 conoerns, even in the schools of primary and of general instructioa. 
 In proportion as this policy was more eagerly pursued, the Bohe- 
 mians clung with the greater attachment to their ancient dialect, 
 which they justly regarded as the principal remaining badge and 
 guarantee of their distinct nationality. However the highest mag- 
 nates may have been inclined upon the subject, the great body of 
 resident nobility at all events, the landowners, traders, and men of 
 science, partook the feelings of the people. Their ancient national 
 dislike to the Germans burst forthwith unwonted vehemence; and 
 on the occasion of certain royal ordinances issued some years ago, 
 bearing strongly on the point in question, evident indications oc- 
 curred that the measures proposed, if attempted to be carried into 
 effect, would be forcibly resisted. It was then that the Crown, 
 with its usual tact and wisdom, completely changed the course of 
 its policy. * * * * In the present instance, not only were the 
 ordmances abandoned, but the Crown seemed to throw itself into 
 the opposite extreme. An ofl&cial patronage was afforded to the 
 popular dialect, which it had not enjoyed before. Societies have 
 been formed under the immediate patronage of the grand burg- 
 grave, and the direction of Count Sternberg, for the cultivation of 
 Bohemian literature : and plays are performed in the Bohemian 
 language, at the theatre of Prague." — Vol. i. p. 110 — 2. 
 
 Mr. TurnbuU adds the following remarks on the policy of the 
 Austrian Government in this respect in other parts of Austria. 
 
 "It has been the policy of Austria to introduce, as far as in her 
 lay, a uniformity, not of institutions only, but of language also, in 
 the several portions of her dominions ; but her success in doing so 
 has been far from perfect. The feelings of a people are generally 
 more interwoven with the familiar sounds and the small every day 
 habits which they have derived from their parents, than with those 
 great political maxims on which their government may be based. 
 It was the decree of Joseph II. ordaining that the German lan- 
 guage alone should be taught and used in Hungary, that roused 
 the spirit of national resistance ; and this has gone on increasing 
 in force, until at length, subverting alike both the German and the 
 Latin, it has compelled the Crown to ratify a law, whereby the still 
 meagre and unformed Asiatic dialect, termed the Magyar or proper 
 Hungarian, is made the language of the schools, the diet, and the 
 courts. In Italy also, the government is now engaged in a some- 
 what similar attempt. It is striving to introduce the German lan- 
 guage into the pritaary schools, evidently aiming at its establish- 
 ment as the official, and even, if possible, the vernacular tongue : 
 but slow and cautious must be its proceedings in this respect, or 
 
376 NOTES. 
 
 they will be subversive of its own designs, and cause a reaction 
 fearful as that of Hungary."— Vol. ii. p. 402. 
 
 NOTE O. (p. 294.) 
 Translation. 
 
 " The first important step towards restricting the power of the 
 viceroys was the custom first introduced after Aiboquerque's death 
 of never allowing a viceroy to remain above three years in office, 
 which, in process of time, became a fixed principle of the Por- 
 tuguese Government. It is manifest that as far as this became an 
 inviolable rule, (and the government never departed from it but 
 in extreme cases,) it must have exercised an important influence on 
 the affairs of the Portuguese in India. Many arguments may be 
 adduced in favour of this regulation : in the first place, the danger 
 of allowing so much power to remain long in the possession of one 
 individual, lest he should in the end be tempted by it to make him- 
 self independent. Another motive was the power which the govern- 
 ment thus acquired of more frequently rewarding distinguished 
 merit by conferring so high a dignity, and sometimes even of re- 
 moving in an honourable manner those obnoxious to the hatred of 
 the court. It cannot, however, be denied that the consequences of 
 this custom generally were most injurious to the Portuguese in- 
 terests ; for, although a frequent change of the governors was in 
 some cases highly advantageous and even indispensable, it was 
 nevertheless extremely unwise to erect this practice into an inva- 
 riable rule, and particularly to change the viceroys at stated and 
 foreknown periods. 
 
 "In the first place, the Portuguese were, by the operation of this 
 rule, deprived of the advantages which their Indian affairs would 
 have derived from a longer continuance of the government of such 
 men as Ataide and many more. In the short space of three years, 
 a period barely sufficient for acquiring a knowledge of the intricate 
 affairs of the Portuguese in their distant and extensive territories, 
 it was impossible for a viceroy to undertake any substantial im- 
 provements, or to execute measures of general importance. We 
 frequently find it recorded that a viceroy, on the point of carrying 
 into effect some long prepared and most important reform, was 
 arrested by the arrival of his successor ; and in later times, it was a 
 common subject of complaint that a viceroy spent the first year 
 solely in learning the actual posture of affairs ; tlie second in en- 
 riching himself; and that at the utmost, in the third year he went, 
 accompanied by a considerable fleet, to visit the Portuguese pos- 
 sessions from Coulan to Ormuz, and to make arrangements for the 
 arrival of his successor. 
 
 " Another evil resulting from the certainty of being recalled in 
 three years, without reference to their merits or demerits, was tliat it 
 destroyed on the part of the viceroys any exertion which the hope 
 of being continued in office might have induced them to make, and 
 in many cases it even acted as an incentive to avarice and rapacity. 
 Experience had but too clearly shown that a viceroy returning from 
 India with sufficient riches could always, in case of need, find lenient 
 judges. Thus, in course of time, this important office came to be 
 considered merely as a benefice held for three years, and the sole 
 object of those on whom it was bestowed was to enrich themselves. 
 
NOTES. 377 
 
 The pernicious effects of this state of things naturally increased the 
 more, as in later times it was usual to appoint men who, when even 
 distinguished for merit in other departments of the government, 
 (\A hich was often not the case,) were unfit for the office of viceroy, 
 never having been in India ; and those who had served there were 
 seldom or never chosen. By this means the office of viceroy was 
 conferred on men totally ignorant of the affairs of Portuguese 
 India, and it is manifestly impossible that the best intentions could 
 have enabled them to do anything at all important in the short 
 space of three years. 
 
 " In addition to the disadvantages already enumerated, the 
 frequent changes of the chief governors naturally caused corre- 
 sponding changes in the whole system of government. The ap- 
 pointments to subordinate governorships and other offices also were 
 in the hands of the viceroys, and these they commonly filled with 
 their relations, friends, and dependents, immediately upon their 
 accession to the viceroyalty. 
 
 " It was natural that this power should lead to great abuses ; though 
 it appears scarcely credible that a viceroy should appoint a son 
 twelve years old to the important office of Governor of Ormuz ; a fact 
 related by a trustworthy historian. Thus to the constant changes 
 in the principles of government produced by these frequent altera- 
 tions of all the authorities was added the unavoidable evil that the 
 subaltern officers of government followed the example of the vice- 
 roy, and were only intent upon gaining all the wealth they could 
 during their short stay in office, and then returning loaded with it 
 to their own country, where money was the chief, and indeed almost 
 sole recommendation. Another most serious evil was, that even 
 from the time of Almeida, the Portuguese viceroys seem to have 
 made it a sort of rule, to which there were very few exceptions, 
 that the actual viceroy should be the implacable enemy of 
 his predecessor, doing everything in his power to destroy what the 
 other had done, and, if possible, by following an entirely opposite 
 course of policy, to raise his own merits at the expense ^ his pre- 
 decessor's reputation. 
 
 " The limitation of the power of the viceroys to the short space of 
 three years was not the only measure of the Portuguese Govern- 
 ment for diminishing their seemingly formidable influence ; other 
 steps were taken with the same purpose. In the first place, a 
 council was associated to the viceroy, which was to be consulted on 
 all occasions of any importance ; and, without the approval of this 
 body, nothing decisive could be done. Another measure was the 
 repeated formation of several Indian governorships independent of 
 the viceroy ; as might be anticipated, the envy and jealousies which 
 these territorial divisions soon caused among the difterent governors 
 contributed to the decline of the Portuguese power already ex- 
 tremely feeble in their eastern possessions. 
 
 " Even under the vice-regency of the great Alboquerque we find 
 frequent mention of a council composed of the principal officers, 
 without whose approval he could do nothing of importance. The 
 same body is often alluded to under the governments of his succes- 
 sors, and we are informed that the irresolution of this council caused 
 the miscarriage of many of the most useful measures. This 
 inconvenience was to be anticipated, as the inferior officers rarely 
 possessed the distinguished talents of many of the viceroys ; and 
 
378 NOTES. 
 
 envy and party feeling would naturally prevail in a council thus 
 constituted. We have not been able to find any exact information 
 as to the manner in which this body was organized. It appears, 
 however, to have been at first composed of the principal officers of 
 the army, and therefore to have controlled the power of the viceroy 
 much more in military than in civil affairs. Its consideration and 
 influence seem to have constantly increased imder the succeeding 
 viceroys, as its interference in all matters of importance is more 
 and more frequently recorded. The mischievous effects of this 
 council must have been doubly felt from the difficulty of appealing 
 to the decision of the Court of Lisbon in case of a dispute, owing 
 to the great distance and the length of time required for commu- 
 nication. 
 
 " The increased dependence of the viceroy upon his council was 
 accompanied by a corresponding increase in the weakness of the 
 Portuguese government. It was seldom that a viceroy was gifted 
 with tlie courage of an Alboquerque or a Joao de Castro, who more 
 than once ventured on the perilous step of doing what they 
 judged to be for the advantage of the public, in spite of the oppo- 
 sition made by the council ; and indeed it was fortunate for them 
 that the beneficial results justified a proceeding so contrary to the 
 rules of the Portuguese Government. By far the greater number 
 of viceroys were too much devoted to their own interests ever to 
 dream of incurring so heavy a responsibility for the public good. 
 In the year 1551, when Alfonso de Noronha was appointed viceroy, 
 we find the first account of a formal council, consisting of ten or 
 twelve persons chosen by the government, whose advice the viceroy 
 was to follow on all occasions, even when he did not ask it. 
 
 " A second most injudicious arrangement, which the kings of Por- 
 tugal had very early attempted to introduce into India, and by 
 which the Portuguese power in those regions must have been 
 seriously enfeebled, was the division of their eastern possessions 
 into several distinct governments independent of each other. As 
 early even as during Alboquerque's vice- regency, this division was 
 begun. In the year 1510, Emanuel the Great appointed a governor 
 to the colonies on the south-eastern coast of Africa, whose power 
 extended from Sofala to Cambaya, independently of the captain - 
 general. At about the same period, Malacca was made an inde- 
 pendent government. It is true that the arguments advanced in 
 Portugal in favour of this proceeding were very plausible. The 
 principal reason was, that the vast region stretching from the Cape 
 of Good Hope to the remotest boundaries of India was too exten- 
 sive for the supervision of one individual. But even then Albo- 
 querque took an opposite, and, as the event has proved, a just view 
 of the affair. He saw that, by thus breaking up these settlements 
 into several governments independent of each other, no good result 
 could be effected ; but, on the contrary, that a death-blow would be 
 given to the power of Portugal in the East. He perceived that it 
 was only by the union of all the Portuguese forces under one head, 
 — a union which would permit the force of the whole body to be 
 brought in a moment to bear on any point where danger was im- 
 pending, — that it was possible to retain possessions, the size of 
 which was out of all proportion to their means of defence. Besides 
 this, Alboquerque could not fail to foresee that the envy and jealousy 
 which would inevitably arise amongst the different governors would 
 
NOTES. 379 
 
 in itself be quite sufficient to prevent any beneficial results. He 
 did not, therefore, rest until he had averted the impending evil. 
 
 "The Portuguese government, nevertheless, by no means gave up 
 the idea, and during the vice-regency of Alboquerque's successor, 
 Lopez Soarez do Albergaria, fresh attempts were made to execute 
 this favourite project, and were frequently renewed under his suc- 
 cessors, though usually without success. Since the time of Lopez 
 Soarez de Albergaria, it was also customary to summon the viceroys, 
 on their return from India, to render an account before the Por- 
 tuguese Tribunal of Finance, but those who came back rich 
 usually found means to elude the severity of this court. 
 
 " The project of dividing the Indian possessions into several 
 distinct governments was eagerly resumed during the reign of 
 Sebastian. In the year 1572, when Antonio de Noronha was sent 
 out as viceroy to India, the Indian possessions were divided into 
 three separate governments, and Noronha, who saw the evils of 
 that division, and rejected the demands of the two governors under 
 different pretexts, was deposed in consequence of their accusations. 
 Nevertheless, his successor Baretto, who had been governor of 
 Malacca, and had caused Noronha's recal, found himself compelled 
 to act in the same manner towards Pereira, who succeeded him in 
 the governorship of Malacca ; contrary to the express commands 
 of the Court, which on this occasion did not think it necessary to 
 assert Pereira's dignity so strongly. 
 
 •' From the preceding data we may safely conclude that the con- 
 stant endeavour of the Portuguese government was to diminish the 
 power of the viceroy of India as much as possible. The circum- 
 stance that these endeavours most frequently failed, especially 
 when really great men were at the head of the Indian affairs, affords 
 the most convincing proof that the mischievous tendency of this 
 policy was strongly felt in India itself.'* — Saalfeld, Geschichte des 
 Portugiesischen Kolonialwesens in Ostindien, pp. 236 — 47. 
 
 NOTE P. (p. 300.) 
 
 Burke, in his " Observations on a late State of the Nation," (pub- 
 lished in 1769,) makes the following remarks on the plan of a 
 representation of the American colonies in the British Parliament. 
 
 " Perhaps it may be some time before this hopeful scheme can be 
 brought to perfect maturity, although the author seems to be no 
 wise aware of any obstructions that lie in the way of it. He talks- 
 of his union, just as he does of his taxes and his savings, with a* 
 much sangfroid and ease as if his wish and enjoyment were exactly 
 the same thing. He appears not to have troubled his head with 
 the infinite difficulty of settling that representation on a fair balance 
 of wealth and numbers throughout the several provinces of Ame- 
 rica and the West Indies, under such an infinite variety of circum- 
 stances. It costs him nothing to fight with nature, and to conquer 
 the order of Providence, which manifestly opposes itself to the 
 possibility of such a parliamentary union. 
 
 " But let us, to indulge his passion for projects and power, suppose 
 the happy time arrived, when the author comes into the ministry, 
 and is to realize his speculations. The writs are issued for electing 
 members for America and the West Indies. Some provinces receive 
 
380 NOTES. 
 
 them in six weeks, some in ten, some in twenty. A vessel may be 
 lost, and then some provinces may not receive them at all. But let 
 it be, that they all receive them at once, and in the shortest time. 
 A proper space must be given for proclamation and for the election ; 
 some weeks at least. But the members are chosen ; and if ships 
 are ready to sail, in about six more they arrive in London. In the 
 meantime the parliament has sat, and business far advanced without 
 American representatives. Nay, by this time, it may happen that 
 the parliament is dissolved ; and then the members ship themselves 
 again, to be again elected. The writs may arrive in America before 
 the poor members of a parliament in which they never sat can 
 arrive at their several provinces. A new interest is formed, and 
 they find other members are chosen, whilst they are on the high 
 seas. But if the writs and members arrive together, here is at best 
 a new trial of skill amongst the candidates, after one set of them 
 have well aired themselves with their two voyages of 6,000 miles. 
 
 '* However, in order to facilitate every thing to the author, we will 
 suppose them all once more elected, and steering again to Old 
 England, with a good heart, and a fair westerly wind in their stern. 
 On their arrival they find all in a hurry and bustle ; in and out, 
 condolence and congratulation ; the Crown is demised. Another 
 parliament is to be called. Away back to America again on a 
 fourth voyage, and to a third election. Does the author mean to 
 make our kings as immortal in their personal as in their political 
 character? or, whilst he bountifully adds to their life, will he take 
 from them their prerogative of dissolving parliaments, in favour of 
 the American union ? or, are the American representatives to be 
 perpetual, and to feel neither demises of the Crown, nor dissolu- 
 tions of parliaments ? 
 
 " But these things may be granted to him without bringing him 
 much nearer to his point. What does he think of re-election ? Is 
 the American member the only one who is not to take a place, or 
 the only one to be exempted from the ceremony of re-election ? 
 How will this great politician preserve the right of electors, the 
 fairness of returns, and the privilege of the House of Commons, 
 as the sole judge of such contests? It would undoubtedly be a 
 glorious sight to have eight or ten petitions, or double returns, from 
 Boston and Barbadoes, from Philadelphia and Jamaica, the members 
 returned, and the petitioners with all their train of attorneys, soli- 
 citors, mayors, select men, provost marshals, and above five hundried 
 or a thousand witnesses, come to the bar of the House of Commons. 
 Possibly, we might be interrupted in the enjoyment of this pleasing 
 spectacle, if a war should break out, and our constitutional fleet, 
 loaded with members of parliament, returning officers, petitions, 
 and witnesses, the electors and elected, should become a prize to 
 the French or Spaniards, and be conveyed to Carthagena or to La 
 Vera Cruz, and from thence perhaps to Mexico or Lima, there to 
 remain until a cartel for members of parliament can be settled, or 
 until the war is ended. 
 
 "In truth, the author has little studied this business, or he might 
 have known, that some of the most considerable provinces of Ame- 
 rica, such, for instance, as Connecticut and Massachusetts Bay, have 
 not in each of them two men who can afford, at a distance from 
 their estates, to spend a thousand pounds a-year. How can these 
 provinces be represented at Westminster? If their province pays 
 
NOTES. 381 
 
 them, they are American agents, with salaries, and not independent 
 members of parliament. It is true, that formerly in England 
 members had salaries from their constituents ; but they all had 
 salaries, an<l were all, in this way, upon a par. If these American 
 representatives have no salaries, then they must add to the list of 
 our pensioners and dependents at Court, or they must starve. 
 There is no alternative." — (Works, vol. ii. p. 138 — 42.) 
 
 NOTE Q. (p. 302.) 
 
 The following is Mr. Haliburton's account of the power of the 
 supreme government of England over its dependencies. 
 
 " To what extent the British Parliament has a right to interpose 
 its authority, or how far the power of the Colonial Assembly extends, 
 it is impossible to ascertain with accuracy. The doctrine of the 
 omnipotence of the one, and the independence of the other, has at 
 different times been pushed to an extreme by the advocates of each. 
 The true distinction appears to be, that parliament is supreme in 
 all external, and the Colonial Assembly in all internal matters. 
 The unalterable right of property has been guaranteed to the colo- 
 nies, by the Act renouncing the claim of taxation, the 18th Geo. III. 
 ***#«* Taxation is ours, commercial regulation is 
 theirs ; this distinction, says a distinguished statesman, is involved 
 in the abstract nature of things. Property is private, individual, 
 abstract ; and it is contrary to the prmciples of natural and civil 
 liberty, that a man should be divested of any part of his property 
 without his consent. Trade is a complicated and extended consi- 
 deration ; to regulate the numberless movements of its several 
 parts, and to combine them in one harmonious effect for the good 
 of the whole, requires the superintending wisdom and energy of the 
 supreme power of the empire. The colonist acknowledges this 
 supremacy in all things, with the exception of taxation, and of 
 legislation in those matters of internal government to which the 
 local assemblies are competent. * * * But in matters of a local 
 nature, the regal control is well secured by the negative of the 
 governor ; by his standing instructions not to give his assent to any 
 law of a doubtful nature svithout a clause suspending its operation, 
 until His Majesty's pleasure be known, and by the power assumed 
 and exercised, if disagreeing to any law withm three years after it 
 has passed the Colonial legislature. With these provinces it is 
 absurd to suppose, whatever may be said to the contrary, that the 
 local assemblies are not supreme within their own jurisdiction ; or 
 that a people can be subject to two different legislatures ; exercising 
 at the same time equal powers, yet not communicating with each 
 other, nor, from their situation, capable of being privy to each other's 
 
 proceedings." 
 
 ****** 
 
 " I have already observed that the true line is that Parliament is 
 supreme in all external, and the Colonial assemblies in all internal 
 legislation ; and that the colonies have a right to be governed, 
 within their own jurisdiction, by their own laws, made by their own 
 internal will. But if the colonies exceed their peculiar limits, from 
 other alliances, or refuse obedience to the general laws for the re- 
 gulation of commerce or external government, in these cases there 
 
3S2 NOTES. 
 
 must necessarily be a coercive power lodged somewhere ; and can- 
 not be lodged more safely for the empire at large than in parliament, 
 w^hich has an undoubted right to exercise it in such cases of neces- 
 sity. It is in this manner the passage alluded to, in tlie Commen- 
 taries, must be understood, which states those laws to be binding on 
 the colonies that include them by express words, and the English 
 Act of Parliament is generally received in the same sense." — 
 (Vol. ii. p. 346.) 
 
 From the last of the preceding passages it appears to be Mr. 
 Haliburton's opinion that there are certain subjects in which the 
 local government of an English dependency is legally, as well as 
 practically, supremo. If this be his meaning, the statement is 
 erroneous. 
 
 THE END. 
 
ERRATA. 
 
 Page 81, line 8. For " subordinate legislature," read, " subordinate 
 government." 
 
 Page 82, line 24. For " remembered," read, ** remarked," 
 
 Page 88, note * For « eh. VIII. § 2." read " eh. IX." ib. note f, 
 dele § 2. 
 
 Page 155, line 3. For '* the subordinate government of Ireland," read, 
 " the supreme government of Ireland." 
 
 Page 260, line 12. For *• from one to another," read *«from one country 
 to another." 
 
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