When once appointed, they rise partly by seniority and CH. III. partly by promotion, until they can, after twenty-five years' service, retire with a pension. They practically hold during good behaviour, though any of them can be removed at will by the Home Government. They can be suspended by the local Government of India, but cannot be removed without the approbation of the Home Government. Although in 18331 Parliament declared that a native of India should not by reason of his religion, descent, place of birth, or otherwise, be disqualified for office, yet the covenanted service continued in fact to be filled wholly by European British subjects. Even after Parliament in 18532 threw open the covenanted service to public competition, only a few natives, owing to the examination being held in London, succeeded in the competition. Parliament in 1870 passed an Act 3 for facilitating the employment of Indian natives. Under that Act rules for the purpose were made in 1879, and, on their failure, also in 1889. Under the latter rules the provincial service consists almost entirely in each province of natives of the province selected in a manner suitable to local circumstances. Of the total number of civil employees in India, ninety per cent. are natives. The offices held by the 'civil service' are under 1,000, and if these posts (which are mostly the higher posts) are excluded, there are nearly 3,000 superior administrative and judicial offices, most of which are held by natives of India. The officers of the army, whether European or native, are not included in these figures. The population thus governed is about 221 millions in British India, besides 67 millions in the native states, in which some of the officers composing the staff are employed *. 1 3 & 4 Will. IV. c. 85. 3 216 & 17 Vict. c. 95. 33 & 34 Vict. c. 3. For the rules under it, see Strachey, op. cit., p. 258; Ilbert, op. cit., p. 127. 4 See Strachey, op. cit., p. 285; Ilbert, op. cit., p. 128; India Office List. CHAPTER IV CH. IV. SELF-GOVERNING COLONIES THE Constitutions of the self-governing colonies differ amongst themselves in many points of detail, but vastly problem of more important than any analysis of differences is the colonial examination of those common principles which underlie the The selfgovernment. structure of all alike. The problem of colonial self-government is the problem of reconciling local parliamentary institutions framed after the English model with the supremacy of a Parliament at home in which the colony has no voice. To appreciate the difficulties of the problem and the form which its solution takes it is necessary to bear steadily in mind that feature of the English Constitution on which Professor Dicey has laid such stress-the essential supremacy of the legislature in our system, with the two results, (1) that the English executive is responsible to the legislature, and dependent on the will of the majority in the popularly elected House; (2) that the English judiciary has merely to interpret and apply legislative enactments, never to declare them invalid or beyond the competence of the legislature to enact. The second of these results is due to the fact that the sphere of legislative power in the English Parliament is unlimited in extent and undisputed by any rival law-making authority-that Parliament is a sovereign law-making body, in fact—and therefore obviously cannot be reproduced in a self-governing colony, where legislative powers are limited and Imperial statutes of superior force. Consequently the courts of a self-governing colony have of necessity a function not found in their proto type, the function of deciding on the validity as well as the CH. IV. meaning of colonial statutes. But the first of the two results above indicated, namely, the dependence of the executive on Parliament, is perfectly consistent with a restricted range of legislative power, and therefore is reproduced in a self-governing colony without difficulty. Such a colony has more than representative government; its characteristic feature is not merely a control of local taxation and an influence over local legislation exercised by a popularly elected Chamber. Such a colony has also responsible government: i.e. the heads of administrative departments form a ministry which continues in office only so long as it commands the confidence of the legislature. of respon ment. It is this dependence of the colonial Executive on the Meaning colonial Parliament which constitutes at once the essential sible resemblance between the constitutions of our self-governing governcolonies and that of the mother country, and the essential divergence between the constitutions of our self-governing colonies and all foreign systems. From this point of view, at any rate, the charge of 'official mendacity' brought by a learned writer1 against the preamble of the British North America Act, 18672 (because it recites the wish of the Canadian provinces to be federally united into one Dominion ' with a constitution similar in principle to that of the United Kingdom') cannot be sustained. His criticism that this statement would only be true if United States' were substituted for United Kingdom' ignores a distinction far more significant than any analogies based on features common to all 1 Dicey's Law of the Constitution, 1st ed., p. 153. In the 4th ed., p. 156, CH. IV. federal constitutions. In the Dominion of Canada, no less than in every other self-governing colony in the empire, the system of government is that of responsible, or what has been termed 'parliamentary' or 'cabinet' government, just as in the United Kingdom. The executive power is vested in the Crown, but is wielded by ministers who, though appointed by the Governor-General as delegate of the Crown, necessarily require the support and confidence of a majority of a popularly elected assembly, and are consequently responsible to that assembly. In the United States, on the other hand, the executive is in no sense dependent on the legislature. The President is elected by the people, and appoints for the administration of government ministers who are never members of the legislature, who need not enjoy the confidence of the majority of the legislature, and who are responsible to the President alone, and not to the legislature. Informal origin of responsible government. It is the more important to insist on this fundamental characteristic of the self-governing colonies, because it is not to be discovered by an examination of their 'instruments of constitution.' Whatever be the form which these documents assume1, they will be found in every case to concern themselves mainly with the establishment of colonial legislatures, and to be silent, or almost silent, as to the relations between legislature and executive. The circumstance is highly significant of the vogue, in the self-governing colonies no less than in England, of what has been termed the 'rule of law.' Just as in England parliamentary government arose, without any formal constitutional change, from William III's recognition of the necessity of choosing ministers of homogeneous opinions, able to command the support of a parliamentary majority, so in the self-governing colonies the change from merely representative to fully responsible government is due, not to imperial legislation or formal prerogative orders, but to private instructions from the Colonial Office to the Governor, directing him to select his ministers from the predominant 'See Appendix I. party in the legislature, on the understanding that they will CH. IV. respon ment in Thus the date of the introduction of responsible government Origin of into a colony is not as a rule to be discovered in Acts of sible Parliament or Orders in Council. To take the earliest governinstance, Lord Durham's famous report, the result of his Canada. appointment as Governor-General and High Commissioner after the Canadian rebellion of 1837-8 and the suspension of the Constitution of Lower Canada 2, was presented to Parliament in 1839, and recommended (1) the union of the two provinces, and (2) the introduction of responsible government. The Union Act introduced by Lord John Russell, setting up one nominated legislative council and one elected legislative assembly for the whole colony, became law in 18403, and this therefore is the date of representative institutions in the reunited province. But the legislative machine was at work for some years before responsible government began. Up to July, 1846,' wrote the statesman to whom self-governing colonies chiefly owe their autonomy, 'the problem of bringing into satisfactory operation this system of administration had certainly not been solved". Section 45 of the Union Act of 1840 (the only section in an instrument of constitution of sixty-two clauses which deals with the colonial Executive) merely refers to 'such executive council... as may be appointed by Her Majesty for the affairs of the Province of Canada,' and is silent as to the principle on which 1 Cf. C. O. R. 57, and p. 92 infr. In the two self-governing colonies of South Africa the introduction of responsible government may be referred to a colonial statute-in Cape Colony to Act No. 1 of 1872, amending the Constitution Ordinance of 1852, and in Natal to the Constitution Act, No. 14 of 1893. But even in these cases the enactments only hint faintly at the parliamentary control of administration. See below, p. 63. 2 1 & 2 Vict. c. 9. 3 3 & 4 Vict. c. 35. From 1791 to 1837 each of the two provinces enjoyed the separate representative institutions conferred by 31 Geo. III. c. 31. Earl Grey's Colonial Policy of Lord John Russell's Administration, vol. i. p. 203. |