Significance of the New Law Court buildings in London. Early efforts after law reform in Parliament. No appreciable result till 1841. Slow progress and subsequent changes, culminating in the 1869 Commission, and the 1873 Judicature Act. The popular consequences of this, and general view of our legal system as it affects to-day the Colonies as well as the mother country.Transformation in our Colonial system shown by the latest facts and figures. Special usefulness as well as Imperial value of the Colonies to England. Social fusion of the mother country and the Colonies prefigured by the presence and influence on both sides of the Atlantic of the American element in the best society in London. Individual influences which have promoted this movement, and are doing the same thing for our Colonial cousins, as for our American.
Significance of the New Law Court buildings in London. Early efforts after law reform in Parliament. No appreciable result till 1841. Slow progress and subsequent changes, culminating in the 1869 Commission, and the 1873 Judicature Act. The popular consequences of this, and general view of our legal system as it affects to-day the Colonies as well as the mother country.
Transformation in our Colonial system shown by the latest facts and figures. Special usefulness as well as Imperial value of the Colonies to England. Social fusion of the mother country and the Colonies prefigured by the presence and influence on both sides of the Atlantic of the American element in the best society in London. Individual influences which have promoted this movement, and are doing the same thing for our Colonial cousins, as for our American.
No architectural change during the age has more affected the perspective of Fleet Street and the Strand than the disappearance of Temple Bar and its replacement by the griffin which marks its former site, and the erection of the Royal Courts of Justice that now flank the central thoroughfare. This is the outward and visible sign of a transformation not less great, as regards the administration of the law within the new palace of justice itself.
The Reform Act of 1832 was followed by variousmovements in Parliament in the direction of law reform. The proposals and their very slight results were solely technical; the public reaped no appreciable benefit so long as the separation of the Common Law Courts from the Court of Chancery existed, and on different sides of Westminster Hall two legal systems, often mutually antagonistic, were at work. Ten years after the Accession, the monopoly of Serjeants of Law in the old Court of Common Pleas was swept away. Still justice was delayed. During the early days of railway enterprise, commerce was obstructed, by the postponement, for inadequate or vexatious reasons, of the trial of cases arising out of bills of exchange on which large sums of money depended, and which, till they were decided, blocked commercial enterprise. This may be looked back to now as the scholastic era in nineteenth century law administration. The categories into which causes and kinds of legal action and pleas, were divided, in their pedantic complexity, recalled the tortuous refinements of the logical school men upon the comparatively simple predicaments of Aristotle.
In 1851 a flagrant and inveterate anomaly was removed by the success of those law reformers who had long in vain protested against the absurdity of disallowing the evidence of persons immediately interested in the suit. After this, the movement did not pause till the Commission of 1869 was appointed, with the result that in 1873 there passed the Judicature Act which has amalgamated conflicting usagesinto a homogeneous system, and produced the long desired fusion between Equity and Law. The ancient divisions are perpetuated to-day not in different Courts but in different divisions of the same Court. The result briefly stated is that notwithstanding the real difference which still exists between Equity and Law, and the practical division of the Bar into two branches, Law and Equity can to-day be administered by the same Courts and one judge can give suitors the same relief as any other judge.
There is now no possibility of a question being decided by one tribunal according to Common Law principles, and by another according to the principles of Equity. To prevent any chance of confusion it has further been enacted that wherever the rules of Equity and Law seem to conflict, those of Common Law are to prevail. The principle of a division of labour still exists. Every judge, that is, does not transact every sort of business. The judges in the Chancery division are still specially charged with the execution of trusts and other such matters, even as happened in the case of their predecessors fifty years ago. To do justice with as little regard as may be to forms and precedents is the visible object of the administrators of the law in every department. That professional prejudices should have disappeared was not to be expected, and, perhaps, not to be desired. But the exclusive etiquette of judges and lawyers is not greater than prevails in other professions, among doctors, diplomatists, or divines. The plaintiff in person is no more welcome in the reformed, than in the unreformed, Courts; nor, in the interests of public timeand of common sense, is it probably to be wished that he should be. The two principal and practical defects in the administration of English law that still need attention would seem to be—one, the barbarous system which still obtains through the imperfect arrangements of the Circuit Courts of keeping untried prisoners unreasonably long in prison. Of late cases have been noticed in which persons, proved on trial to be innocent, have been detained in prison for weeks or months. The second defect is the undue licence allowed to the legal profession of protracting the hearing of cases secondary in their importance by the accumulation of unnecessary evidence and cross-examination. This has often been objected to, but has seldom been firmly controlled by the judges.
The great public benefit conferred by the reforms whose monument is the New Law Courts hard by the church of St Clement Danes, may be condensed into the remark that whereas from 1837 to 1875 it was an accident whether the right party won his case, the presumption in favour of his success in 1897 is so strong as almost to amount to a certainty.
Of another sort of fusion, that between the two divisions of the legal profession, solicitors and barristers, much has been heard. But in Canada and some other Colonies some inconvenience and disadvantage are found to result from the absence of any distinction between barristers and solicitors. Gradually, perhaps, a solution in practice is being arrived at. Without mentioning individual names it is the fact that among the men who now stand highest, whether at the Bar or on theBench, many while students at the Inns of Court have perfected themselves in the practical details of law by voluntarily attending the offices of great firms of solicitors, whether in Westminster or elsewhere.
The palace of justice whose opening marked the close of the fourth decade of the reign, commemorates, in a fashion of its own, the unity of the Empire as well as the late achieved unity of the administration of justice.
Among the Queen’s subjects are nations not only of every creed and of every colour, but trained in obedience to every code of law which human skill has devised. Since the modern era of our Colonial Empire began in 1836, the practice has been to continue to those dependencies the laws under which they were when they came into being, or when they were first acquired by diplomatic cession or military conquest, always provided that these pre-existent systems do not contradict the fundamental principles of British jurisprudence. Thus, in British Guiana, in the Cape Colony, and in Ceylon, the letter and spirit of Roman-Dutch law have been continued under English rule. In lower Canada, French forms have become so confused as to be impracticable: the laws of this province are to-day identical with those in vogue in England at the time of its acquisition in 1763, periodically of course improved by modern lights. In the Mauritius, the French Code Civile and the French Code de Commerce still exist. It is for the sovereign embodying in her own person the unity of the Empire to decide through the Privy Council, that is, to-day, through the JudicialCommittee in all disputed cases what the particular law of the locality may be.
On page 227 of the writer’s earlier bookEngland, etc., the Colonial as well as ecclesiastical jurisdiction of the Privy Council Judicial Committee was explained in detail. Since those words were written an important step has been taken under an Act passed some years ago by Lord Herschell. By this, the Chief Justice of the Cape Colony, Sir Henry de Villiers, Chief Justice Sir Henry Strong of Canada, Sir Samuel Way, Chief Justice of South Australia, have been added to the Judicial Committee of the Privy Council, in order to strengthen that body with special reference to the Roman-Dutch, French-Canadian and Australasian law, in legislation and practice. Here too, it is well to refer to the recent formation of the Society of Comparative Legislation. This body is actively engaged and has already done good work in classifying materials throughout the Empire, as well as in accumulating a compendium of information which will greatly promote the simplicity and uniformity of the laws of the world.
Some distinct idea must, however, be formed of the concrete reality connoted by the familiar expression ‘Colonial Empire,’ beginning, as in truth for our generation it did, with the founding of the Australasian capital called Adelaide, after his Queen, in the last year of William IV., but practically co-extensive in its growth with the reign of his successor. The area of the United Kingdom is 121,000 square miles. That of its possessions in foreign parts is 8,725,000square miles. In other words the mother country is only in extent a seventieth part of the Empire of which that mother country is the nucleus.
To put the facts somewhat differently this British Empire, covering some 9,000,000 square miles, occupies a fifth part of the habitable globe. No other world power such as this has been known to past or can be found in present history. The British Empire of the Victorian age is five times as large as was the Empire of Darius five centuries before the Christian Era began. It is four times the size of the Roman Empire at its zenith. Among modern Powers, the Empire of Great Britain is larger by an eighth than that of Russia; it contains 230 millions more people. It is sixteen times as great as the foreign dominions of France; forty times as great as the Empire of Germany. Seven days and nights of continuous travelling are required to cross the American Continent. The lands which owe allegiance to the monarch of these Islands are three times as extensive as those composing the Republican Empire of the United States.
The relative progress, according to the population test, of the mother country, and the nationalities, voluntarily incorporated into her government, beyond seas will best be judged by the facts and figures of a comparatively recent contrast, such as is alone practicable in the case of an essentially modern experience. Between 1871, then, and 1881, the increase in the inhabitants of the United Kingdom was at the rate of 10 per cent. In the case of our American Coloniesit was 19 per cent.; in the case of our Australasian it was 42 per cent. The same progress which has marked our recent history in other respects than numbers at home, has not been wanting with our kin beyond sea. Thus, in respect of education; in the single province of Quebec, then fairly typical of our other possessions, in 1837 barely one-fourth of the population could read; less than one-tenth could make even a pretence at writing. In 1897 there are in the same province 4,000 schools, with a total of 200,000 scholars, each of whom is periodically certified by examiners to be making gradual progress in the prescribed standards, according to age, and qualified individually to swell the claim upon the Government grant for efficiency.
As for higher teaching, all our principal Colonies have their Universities. In the mother country, corresponding progress since the legislation of 1870 was at work was shown by the ability of the framer of that measure, the late W. E. Forster, himself well known in the Colonies, before his death in 1885, to point to the fact that the school attendance from being seven per cent. before his Act was passed had within fifteen years’ operation of that measure risen to seventeen per cent. In the Australasian Colonies the results are not less striking than in the mother country or in the Canadian. In 1837 New South Wales was without a constitution as well as without any elementary education machinery of its own. Within rather less than half a century the institution of responsible government had been followed by an Education Acton the same lines as the English Act of 1870, but providing inter-mediate schools as well, with the result that the last census in Victoria shows that, of every 10,000 children of school age, 9,500 could read, and more than 8,500 could write.
These are specimen cases which establish the point that the extension of English power is accompanied by the spread of whatever advantages modern civilization can bring. As was seen in the preceding chapter, since the Colonial Bishoprics movement of 1851, religion has followed everywhere in the wake of our Empire. So, too, has education. These are the things which distinguish the Colonial methods of Great Britain from those of any other country whether in earlier or in contemporary times.
Dependencies,i.e.places necessary for the maintenance of Empire, but not suitable for permanent British habitation; Crown Colonies, controlled by a Governor, and legislated for by orders in Council, with, as soon as the soil is ripe for it, some representative Council on the spot, reduplications of the mother country under foreign suns, with Constitutions of their own and representative Government after the pattern of the United Kingdom; these are the different heads under which the Colonial Empire that has grown up in our age may be divided. As this Empire is in itself new, so the machinery for its central administration in the form in which it now exists is a product of the present reign. Evelyn the diarist, writing under date February 28th, 1671, mentions his appointment as a member of the Committee of the PrivyCouncil, that had been established in 1660 for controlling the foreign plantations. This Council in 1672 was joined to the Council of Trade, the entire body being called the Council of Trade and Plantations. That was reconstituted in 1695, and again in 1748, when India came under its charge, continuing to remain under it until the appointment of the Board of Control in 1784.
At the beginning of our century, War and Colonies formed the province of a single Secretary of State and continued to do so till 1854. The first Colonial Secretary holding that office alone was Sir George Grey, followed in 1859 by the Duke of Newcastle. This was the Peelite duke whose father had founded the Newcastle scholarship at Eton, and who himself accompanied the Prince of Wales to Canada in 1859. The Colonies were not the department he had desired when Lord Palmerston formed his last Government, but he did his work not unsympathetically and bequeathed his post in good order to Cardwell. The ablest of the earlier Colonial Secretaries was without doubt Lord Grey, son of the Reformer, who held the office in Lord John Russell’s Administration. During the forties, especially in 1849, Colonial sensitiveness was wounded by the perpetual motions brought forward in the House of Commons by Joseph Hume and others of his party for reducing the salary of Colonial Governors,[119]accompanied as these motions were by language not complimentary to the newpolities. Not without party criticism had the office of Parliamentary Under Secretary been created in 1810. The same opposition was called forth by the appointment of Permanent Under Secretaries, and Legal Advisers to the Home Government in 1867, in 1870, 1874, and by the vote for the new Colonial offices in Downing Street first occupied in 1876. In 1897 politicians of all parties take the same patriotic pride in the Colonial Empire, while an ex-Radical leader is that Empire’s Minister. The increased popularity of Colonial in preference to United States emigration is shown by the fact that in 1837 35,264 persons went to the Colonies, and some sixty years later the number was 52,029.
The pride that the Queen’s subjects take in the Empire beyond seas, created by Anglo-Saxon enterprise, and the honour they derive from it are accompanied by the growing interest with which the Colonies are regarded by political thinkers who see in their development an anticipation of the constitutional movements soon to be witnessed on British soil. The Australian legislatures have not only kept pace with, they have stolen a march on, the socialistic Radicals of the old country. New Zealand generally has led the way. This and three other Colonies, New South Wales, Victoria and Tasmania, have adopted Woman’s Suffrage with the legislative freaks which seem to be its sequel. To the action of this franchiseis attributed the proposal recently made in one of these Parliaments to give every domestic servant a statutory holiday once a week. Tasmania, too, will not apparently be satisfied till she has secured the Swiss Referendum for ending disputes between the two legislative Chambers by submitting the single point in issue to the constituencies. Tasmania, also, has made several efforts, as yet unsuccessfully, to acclimatise the Hare system of proportional representation which is now forgotten in England, save when some theorist uses a periodical re-adjustment of our franchise, to revive its interest. South Australia, Victoria, and New South Wales, have also attempted, but not as yet carried, the establishment of national banks; perilous experiments enough for any new, or for that matter old, country.
Individual effort gave England its Colonies. The same agency—as embodied in a Gibbon Wakefield, who began life by being Secretary to Lord Durham in Canada 1838, who, 1839, obtained the annexation and colonization of New Zealand, and who in 1849 publishedThe Art of Colonization; in a Sir William Molesworth, the pioneer of Colonial self-government; who, obtaining from Palmerston the great object of his ambition, the Colonial Secretaryship 1853, died shortly afterwards; more recently in the fourth Lord Carnarvon, Colonial Secretary (1866-7; 1874-8)—applied the social cement which has joined the new countries with the old in personal rather than in merely political relation. Colonial patriotism was also reasonably gratified on its intellectual side by Mr Lowe’s sojourn in NewSouth Wales 1843-50, and by Sir Robert G. W. Herbert’s share in the Administration of Queensland before he became Colonial Under Secretary in London.
A shrewd Colonial statesman not long since observed that if another flying Australian, but a born and bred Colonial horse, were to win the Derby, no whisper of separation from the British Crown would ever be heard among the most advanced of Colonial democrats. Popular enthusiasm at the Antipodean winner of the Blue Ribbon would spread from Epsom Downs throughout the kingdom; it would be flashed along every wire or transmitted by every cable to the four winds of heaven; the Colonists would cease to complain that they, or their products, were not appreciated by the mother country. This half serious remark contains more than a grain of truth; it points to the fact that the grievance alleged by our kinsman beyond sea against the headquarters of their race is sentimental, rather than practical. Pending the Derby winner from beyond seas, the less sternly democratic of England’s Colonial cousins have appreciated the peerages bestowed on a few of them, and can point to other substantial proofs that they have become a power in English society. Thus they have founded clubs in London; they possess a party of their own in the House of Commons, and entertain the social leaders of the old country at their balls and parties during the season in famous restaurants, or at their own homes.
Till the Victorian age was well developed, thelatter day American elements in London fashion were unheard of. To-day these leaven the whole of our social life. It is those born under the Stripes and Stars who relieve, at a princely rental, English nobles of house property which its owners are not occupying, and supply Countesses and Duchesses to the English peerage. The great feature of our time has been the concentration of our people in the Metropolis. A like gravitation to towns has indeed taken place throughout the whole country. Between the eighties and the nineties, the increase of the urban population has been 3,016,579; the decrease of the rural has been 139,545.[120]
With respect to this movement, as in other matters, London has shown itself the true mirror of England. For a proof of this, it would be enough to mention the Langham Hotel, and those caravanserais which have followed it, down to the latest and most palatial of all, the Hotel Cecil. That the capital thus socially re-created has been successfully reorganized as the most cosmopolitan and modish centre of fashion for two hemispheres is due largely to the agency of American dollars and American arbiters of elegance. In the thirties and the sixties the gifted men who were sent to represent the United States in the old country, a Washington Irving, and a Lothrop Motley, made their Embassies social centres for the most pleasant company of the time, attracted famous men from their own country, one of whom, the Rev. ClevelandCoxe,[121]formed a lasting link between the two chief branches of the Anglo-Saxon Church, most of these Transatlantic visitors left behind them brilliant reputations as conversationalists.
More recently a Russell Lowell and a Bayard have adorned this tradition. In their day, the American season following hard upon the London season proper has become a regular, and to all concerned most profitable, observance in the social calendar. The dictatresses of polite life from the other side of the Atlantic generally have been educated in Paris, not a few of them by the daughter of Emile Souvestre at that institution for turning intelligent girls into charming women, Les Ruches, Fontainebleau; they always bring with them to their London homes the tastes of citizens of the world. These tastes are gratified as successfully on the Thames as on the Seine; it isla belle Americainewho has most visibly impressed her image on the capital where, since the Second Empire fell, she has chiefly delighted to dwell; she decided that English life needed enlivening: she has enlivened it and continues to do so effectually. Some restlessness is constitutional to her, as also to the Anglo-Indians and Colonials who are perennially so much with us; thus largely to please her the London season is now subdivided into innumerable parts. It would be truer to say some form of that season lasts all the year round.The constant locomotion from one centre, or from one country seat to another, began, as has been already seen, with the Prince Consort. It has not been discouraged by later representatives of the Crown. From the day that in 1860 the Prince of Wales visited the tomb of George Washington, he has never lost the American heart. The new London régime exactly suits the future peeresses of the old country when they are fresh from New York.
The constant alternations of Hyde Park promenades, not only with suburban racecourses, but with long days under summer suns given to Thames-side picnics, or with rapid flittings on any opportunity to and fro between Mayfair on the one hand, the Boulevard des Italiens, Monte Carlo, or Homburg on the other: these innovations have been brought about by the American Londoner more than by any other single person. The Colonial millionaire or millionairess has not yet been so fully developed as their Transatlantic equivalents. But the process is going steadily forward, no doubt with similar results to follow.
The contrast between the amount of international friction that was caused before the Oregon Boundary dispute, and the Trent difference, between the two countries were composed in 1846 and in 1863, respectively, and the comparative ease with which the Venezuela Question in our own day was settled, suggests the solid international advantages of the arrangement under which New York and London have become socially one and the same capital, having their pleasures, their lions and lionesses, their favourite composers, authors, dramatists and players, in common.
The late Mr Samuel Ward, who is as well remembered in London as in New York, and who liked to be called the prince ofbon vivantsat Delmonico’s, the king of the lobby at Washington, was a cultivated little old gentleman, of whom it is difficult to conceive as ever having been much less, or more, than some seventy-odd years of age. He was known throughout the whole Anglo-Saxon world as ‘Uncle Sam.’ He had become popular in English society soon after the examples of the then Lord Hartington and Lord Rosebery included America in the grand tour of every educated Briton. He really did something to entitle him to his universal sobriquet. He was the founder of a social and literary Anglo-American school which has struck its roots deep in the chosen homes of English fashion. As Californian gold preceded Australian, so the Transatlantic force that has transformed the social England of our day has come before the fully organized exercise of a Colonial power of the same sort. But every year brings one visibly nearer its final development, with all the international advantages which will no doubt accompany that event.[122]
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