The Judicial Committee of the Privy Council and the Development of Judicial Review

Author(s): Loren P. Beth

Source: The American Journal of Comparative Law , Winter, 1976, Vol. 24, No. 1
(Winter, 1976), pp. 22-42
Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/839166

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 LOREN P. BETH

The Judicial Committee of the Privy Council

and the Development of Judicial Review

It is difficult to apply the American conception of judicial review

(the power of a court to annul acts of government on constitutional
grounds) to the work of Britain's Judicial Committee. The difficulty
stems from a definitional problem. As long as a territory remains
in some sort of dependent relationship to Britain, it has in a sense
two constitutions: its own local set of working political institutions
(most likely approved by British colonial officers and the Colonial Of-
fice), and the broader set of limits set by Britain, which one may call
very loosely "the imperial constitution." This broader set of limits
was imposed in the first instance by the political arms of imperialism
-Parliament and the Crown colonial officials. But where a question
of legal interpretation arose it was settled by reference to the Judicial
Committee or (less definitely) its predecessors. In one sense, then,
any decision by the Committee in a case from a dependency is a use
of judicial review, since the Committee is interpreting and elucidating
local law so as to keep it congruent with the imperial constitution
if that is felt to be desirable.

The difficulty disappears, of course, when-as has by now hap-

pened in practically every instance-the dependency evolves into a
state of practical self-government or, after 1932, independence, but
still retains (as do Australia, New Zealand, and Malaysia in 1974) some
right of appeal to the Privy Council. The right of appeal is in some
ways anomalous even when the Crown remains the official head of
state, but when the country is a republic, like Malaysia, the anomaly
becomes almost ludicrous in legalistic terms, and only makes legal
sense by the invention of fictions, however much political sense it may
make. But this kind of legalistic difficulty, beloved of constitutional
scholars, need not detain us. The important fact is that the Judicial
Committee comes to stand in the relationship of a Super-Supreme
Court, administering not an imperial but a national constitution, un-
der whatever limitations are imposed by that constitution on the right
of appeal. Here one has, in other words, the same situation that exists
in the United States, except (of course) that the Judicial Committee

LOREN P. BETH is Professor of Political Science, University of Massachu-

setts.

22

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 BETH: JUDICIAL COMMITTEE AND JUDICIAL REVIEW 23

is largely an outside body. Perhaps this situation need not detain us

long either, since it seems to be either a transient or an unimportant
power: if it is important-that is, if the Committee hears significant
constitutional cases frequently-this seems to make it all the more
transient, since any decision the Committee can reach is going to cause
some dissatisfaction in the country of origin and thus increase the
pressure for the abolition of appeal. This happened very early in Tre-
land, and has happened successively in Canada and other countries;
Australia in 1968 abolished all constitutional appeals except for an oc-
casional case involving the constitution of a single state; and Malaysia
seems to be next. Every time an important constitutional issue goes
to the Privy Council a wave of local popular, legal and political opin-
ion arises opposing the very principle of appeal to an English court.
Thus to talk about judicial review in the easier sense seems almost
self-defeating, since it seems the less important aspect, historically,
of the Committee's work. Yet this is the aspect which has occasioned
most of the political comment and scholarly research that has been
published (mostly in the United States, Canada, and to a lesser extent
Australia) about the Committee. But the difficulties of going beyond
it are very great, since to do so would involve a detailed study of
practically every case ever decided by the Committee, in addition to
the even more impossible task of relating its decisions to the develop-
ment of local law and institutions.'
The purpose of this article is to comment briefly on the nature
of what I have called "the imperial constitution." In other words,
what law has the Judicial Committee applied? Briefly, one may de-
scribe it as British law (statute, common and equity) tempered by
a wise deference to the laws, customs and political realities of the de-
pendency, and with an occasional salting of "natural justice."
Beginning with the status of British written law, one is confronted
immediately by a host of complexities. The basic principle-early
stated-has been that British statutes are the supreme law. But this
was such an obviously unworkable principle that it has always been
largely a fiction, despite Lord Wensleydale's clear statement as late
as 1842 that "there is no doubt that the settlers from the mother-coun-
try carried with them such portion of its common and statute law
as was applicable to their new situation. .."2 Discovering what has
taken its place is not easy. Boiling it down, it seems that a British

1. An interesting attempt largely concerned with the African countries

has been made in Elias, British Colonial Law (1962).
2. Kielly v. Carson, 4 Moore 84. Ever since Lord Mansfield's dictum in
Campbell v. Hall, (1774) 1 Cowper 204, however, it had been accepted that
this doctrine applied only to "settled," not to conquered, territories, which
retained their existing law unless it was explicitly altered-a doctrine which
itself is not free from ambiguity. See also Smith, Appeals to the Privy
Council from the American Plantations 465-469 (1950).

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24 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

statute is (and always has been) applicable either (a) when it is made
applicable to all dependencies by its own terms, (b) when it is made
applicable to a particular dependency by its own terms,3 or (c) when
the Judicial Committee thinks it ought to be applicable-that is, that
its application "makes sense" to the Committee, and there is nothing
in the act which makes it clearly inapplicable.

Universal explicit applicability is relatively easy to deal with. It

constitutes the rendering of imperial policy into statute; the only thing
which distinguishes it from other acts of Parliament is that Parlia-
ment is looking outside Britain, even though the motivations may be
(and often have been) the self-interest of Britain rather than that
of the colonies. But in fact the universality of such laws was early
called into question by the development of self-government in the de-
pendencies, often upon terms which precluded its easy applicability.
In fact, a principle reason for the development of category (b) was
that self-government was inconsistent with category (a); and the laws
which granted self-government (such as the British North America
Act, 18674 or the New Zealand Constitution Act, 18525) were them-
selves prominent examples of category (b), while at the same time
cancelling for one dependency at a time many of the effects of cate-
gory (a).

The effect on all this of the enactment in 1865 of the Colonial

Laws Validity Act6 is questionable. This law extended to each colony
Acts of Parliament which had been intended to apply to it, so that
the colony could not enact "repugnant" legislation.7 This merely
amounted to making explicit what the Judicial Committee was already
doing, at least in categories (a) and (b). It certainly did not seriously
impede the development of self-government either in those places
which already had it, such as New Zealand, or in those which gained
it later. Indeed, its intent was to validate such of their laws as were
not "repugnant" as against the claims that the powers of colonial legis-
latures were limited by natural law. It thus in effect encouraged self-
government. Another effect was to lend greater weight to decisions
of the Judicial Committee.

In fact, as one might imagine, Parliament has in recent times be-

come less and less willing to legislate for the colonies, so that category
(a) has fallen largely into disuse; and even category (b) has increas-
ingly been reserved for grants of larger and larger amounts of self-
government. Once the final act of granting outright independence

3. Ibid. at 469.
4. 30 & 31 Vict., c. 3.
5. 15 & 16 Vict., c. 72.
6. 28 & 29 Vict., c. 63.
7. See Northey, "The New Zealand Constitution," in Northey, ed., The
A.G. Davis Essays in Law 152 (1965).

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1976] BETH: JUDICIAL COMMITTEE AND JUDICIAL REVIEW 25

has been performed, both categories (of course) disappear (except in

the formal sense in which it may be said that Canada cannot amend
its own constitution). It is also true that Parliament was always
somewhat reluctant to legislate for the colonies, especially after the
failure of its attempts to use commercial policy laws to control colonial
trade. The efficacy of such laws was early called into question by
the American experience, and the Navigation Acts, after successive
modifications, were repealed in 1849.8 Also, as Smith remarks, the
constitutional idea developed in Calvin's Case in 1608-that the exter-
nal dominions are not part of the realm-implied that they may be
governed by separate law, and made the status of British laws sus-
pect.9 As early as 1710 the Privy Council held that the British Statute
of Frauds did not apply in Jamaica.10
There has been less confusion about laws enacted by Parliament
explicitly for a particular dependency; but the principle reason for
this is that most such laws have been for the benefit of the dependency
itself-in many cases extending its powers of self-government, but al-
so in some instances applying British law or laws in more or less non-
controversial situations, especially when the local government had no
power to legislate. Perhaps a good example of this was the English
Laws Act, 1908, which covered a serious gap in New Zealand law by
providing that all areas in which New Zealand had not subsequently
legislated would be covered by English law as it existed in 1840.1" This
has sometimes been called the "time of settlement" rule, and was
adopted to avoid the situation which developed in the American col-
onies, where it had often been argued that pre-settlement acts of Par-
liament had no force unless reenacted locally.12 Since it had the effect
of covering all existing lacunae in New Zealand law without limiting
the power of the dominion legislature to change it, there would hardly
have been any opposition to it from New Zealand.
Even statutes which had been adopted originally with only Great
Britain in mind could, however, be applied to the dominions if the
Judicial Committee saw fit to do so, as long as Parliament had ex-
pressed no clear contrary intent. One might expect this to happen,
at least in the "English" (or "settled") colonies, in the early days when
no statutes existed locally covering many situations, or when the local
legislature had adopted a law identical or similar to a British law.
But most of the time when the question was raised on appeal, the
Judicial Committee refused to apply the British statute even for set-
tled colonies. For instance, in addition to the Jamaican case referred

8. Beales, From Castlereagh to Gladstone 1815-1885 24, 100 (1969).

9. Smith, supra n. 2 at 468; Calvin's Case, 7 Coke Rep. 1 (1608).
10. Orby v. Lang, PC 2/83/87, 170, cited in ibid. at 477; the law is 29
Charles IIL c. 3.
11. O'Keefe & Farrands, Introduction to New Zealand Law 21 (1969).
12. Smith, supra n. 2 at 469.

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26 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

to above, the Committee refused to apply the Statute of Charitable

Uses in Antigua,13 the Statute of Mortmain in Bengal,14 The Statute
on Wagering in Bombay,15 the Bankruptcy Act in Virginia and its suc-
cessor law in New Zealand,'6 the statute on joint stock companies in
Victoria,17 the Mortmain Act in British Honduras,18 or English divorce
law to Jews in Egypt.19
This was not, however, an unvarying rule, for the Committee did
apply the Statute of Limitations to India in two decisions,20 the Bank-
ruptcy Act of 1731 to Calcutta,21 parts of the Matrimonial Causes Act
of 1857 to British Columbia,22 and the law on the sale of registered
ships to Mauritius.23 The fact seems to be, in other words, that nei-
ther common law nor imperial practice provided, at least in the earlier
years, any clear rule by which the Judicial Committee could be guided
in deciding whether or not to apply British statutes.
More commonly, however, a British dependency had a statute
identical to an English one and the Judicial Committee was called
upon to interpret its meaning. Here the Committee did not hesitate
to apply the law as it had been applied in England.24 It is true that
in such cases the Committee was applying not the English law but
the English judicial precedents, and that this could be held to be the
intention of the colonial lawmakers. But since judicial interpretations
are for all practical purposes a part of the statute which they inter-
pret, this seems a distinction without a difference.
The application of English common law and equity to the de-

13. Dunbar v. Webb, (1753), cited in Goebel, Jr., Antecedents and Begin-
nings to 1801, at 80, Vol. I of History of the Supreme Court of the United
States (1971).
14. Mayor of Lyons v. East India Co., (1836) 12 E.R. 782; the law is 9
George II, c. 36.
15. R. Thackoorseydass v. Soojumnull Dhondmull, (1848) 13 E.R. 782, 18
E.R. 729; the law is 8 & 9 Vict., c. 109.
16. Rickards v. Hudson, (1762), cited in Goebel, supra n. 13 at 80; and
Bunny v. Hart, (1857) 14 E.R. 667; the latter law is 12 & 13 Vict., c. 106.
17. New Zealand Loan and Mercantile Co., Ltd. v. Morrison, [1898] A.C.
349; the law was enacted in 1870.
18. Jex v. McKinney [1889] A.C. 77; the law is 51 & 52 Vict., c. 42.
19. Sasson v. Sasson, [1924] A.C. 1007. Other cases indlude: Johnson v.
The King, [1904] A.C. 817 (Sierra Leone, Crown Suits Act. 1855, 18 & 19
Vict., c. 90); Clark v. Mullick, (1840) 13 E.R. 106 (Bengal, Bankruptcy Act,
1825).
20. East India Co. v. Paul, 13 E.R. 811 (1849 - Bengal); and Ruckmaboye
v. Lulloobhoy Mottichund, 14 E.R. 2 (1852 - Bombay); in 1859 India adopted
its own statute of limitations. The English law is 21 Jac. I, c. 16.
21. Edwards v. Ronald, (1830) 12 E.R. 317.
22. Watts v. Watts, [1908] A.C. 573; the law is 20 & 21 Vict. c. 85.
23. Chasteauneuf v. Capeyron, (1882) 7 A.C. 127; the law is the Mer-
chant Shipping Act, 1854.
24. Among many others, Trimble v. Hill, (1880) 5 A.C. 342 (New South
Wales, wagering); Permanent Trustee Co. of NSW v. Fels, [1918] A.C. 879
(NSW, evidence); Walker v. Walker, [1919] A.C. 947 (Manitoba, divorce);
Official Assignee v. Mercantile Bank, [1935] A.C. 53 (Madras, insolvency).

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1976] BETH: JUDICIAL COMITE AND JUDICIAL REVIEW 27

pendencies was extremely important. The "English" colonies, which

all regarded the common law as the basis of their legal systems, are
especially in point. Common law was less significant elsewhere; and
it should be remembered that Privy Council jurisdiction originated
for the Channel Islands, which did not have an English legal system.
But even in non-English dependencies the influence of the common
law was very strong. In the codification movement in India of the
nineteenth century, what was codified was in large part British law,
both statute and common.25 And where equity jurisdiction was in-
volved, English judges were likely to produce English equity, as in
the field of mortgages.26 In 1887 the Judicial Committee stated the
general rule, applicable to all colonies even though the case came from
India: English law is authoritative "if found applicable to Indian soci-
ety and circumstances" and if not inconsistent with valid Indian stat-
utes.27 On the effects of this, one Indian commentator has written
that:
It was through this body [the Judicial Committee] that the
common law of England was introduced into all the dominions
and colonies. . . as the bases of their legal systems .... [A]
common view of the principles of the common law and legal
issues was enforced throughout . . . the Empire wherever the
common law happened to prevail. . . . [0] therwise there
would have been inevitable a great divergence between the
different parts of the Empire . . . . The Privy Council acted
as a channel through which English legal concepts came to
be assimilated with the body and fabric of the Indian law.28
A great deal of such assimilation could, of course, have taken place
even without the intervention of the Judicial Committee, for until the
twentieth century most colonial judges were English or English
trained (with the exception of those in Canada, especially Quebec, Aus-
tralia and New Zealand); yet the Committee gave the process official
status if nothing more.
But, of course, it was not the whole of the common law that was
applied. Here again the Committee exercised what was intended to
be, and apparently usually was, a wise discretion (albeit a discretion
sanctioned by common law practice and sometimes by statute). For
instance, in the case above which refused to extend the statute on
wagering to India, this was taken to mean that the English common
law rule which allowed legal actions (and which had been amended
by the statute) was applicable.29 But on the other hand, the common

25. See Setalvad, The Role of English Law in India 6-28 (1966); cf. Jain,
Outlines of Indian Legal History 473-475 (1966).
26. Varden Seth Sam v. Luckpathy Royjee Lalah, (1863) 9 Moore's
Indian Appeals 303; cited in Setalvad, supra n. 25 at 12.
27. Waghela v. Sheik, (1887) 14 I.A. 89.
28. Jain, supra n. 25 at 473-474.
29. See n. 12 supra.

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28 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

law on the effects of suicide on property rights was held inapplicable

in preference to Hindu law.30 The English law of champerty and
maintenance was likewise held not to apply in India.31 But in a case
involving the assumption of a family name by a stranger and whether
one has property in the family name, the common law rule that one
does not was held to replace the old French law in St. Lucia,32 and
the British decisions on criminal negligence were held to apply to Tan-
ganyika as late as 1948.33 These cases are referred to as examples
only, and they give no impression of the number and variety of in-
stances; nor do they give any clue why common law was regarded
as being applicable in one case but not in another, or whether the
Privy Council's discretion was well used.
In colonies which had legal systems already established when the
English took over, the common law had, naturally, less effect. English
judges conscientiously attempted to use the French law in Quebec and
Mauritius, the Roman-Dutch Law in South Africa and Ceylon, and
the various other systems used in the Channel Islands, the Isle of Man,
Malta and other possessions, following in general Lord Mansfield's dic-
tum.34
In addition, wherever possible the Committee tried to apply local
legal rules even if these were only customary, as in India, Burma,
and East and West Africa, except in the case of "barbarous" laws re-
pugnant to the fundamental law of England, or contrary to "justice,
equity and good conscience."35 This made the role of judges unusually
creative and influential-and unusually difficult and complex. A few
illustrations drawn from India and Burma may indicate both the cre-
ativity and the complexity.
One of the most difficult tasks the Committee had was the appli-
cation of Hindu, Muslim or Buddhist family law-wills, succession
rights, adoption procedures, etc.-especially in the possibly different

30. Advocate-General v. Ranee Sur Dossee, 15 E.R. 811 (1863).

31. Ram Coomar Coondoo v. Chunder Canto Mookerjee, (1877) 2 A.C. 186.
32. du Boulay v. du Boulay, (1867-69) A.C. 430. Other cases in which
English common law was applied include: Cooper v. Stuart, (1889) 14 A.C.
286 (New South Wales, rule against perpetuities); Jephson v. Riera (1835)
3 Knapp 130 (widow's right to dower); Leong v. Lim Beng Chye, [1955]
A.C. 648 (conditions in restraint of marriage, Malaya); Mawji v. The Queen,
(1957) A.C. 126 (Tanganika, rule of unity of spouses). Other cases in
which the common law was held not to be applicable include: Mawji v. The
Queen, [1957] A.C. 126 (Tanganyika); Bamgbose v. Daniel, (1955) A.C. 107
(Nigeria); and Coleman v. Shang, [1961] A.C. 481 (Ghana)-in all of which
polygamous marriage was held legal if in accordance with local personal law,
even though it violated common law. A unique case was Re Bishop of Natal,
(1864) 16 E.R 43, which held that settlers do not take English ecclesiastical
law with them.
33. Dabolkar v. The King, [1948] A.C. 221.
34. See n. 2 supra.
35. Fabrigas v. Mostyn, (1773-74) 20 St. Tr. 82, at 181; Picton's Case,
(1804-12) 30 St. Tr. 225. at 865. See Roberts-Wray, Commonwealth and
Colonial Law at 535-41 (19uO).

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1976] BETH: JUDICIAL COMMITTE AN] JUDICIAL REVIEW 29

use of words. In one such case, which well illustrates how English
legal principles could be used to solve Indian legal questions, Lord
Davey made the following remarks:
There are two cardinal principles in the construction of wills,
deeds, and other documents which their Lordships think are
applicable to the decision of this case. The first is that clear
and unambiguous dispositive words are not to be controlled
or qualified by any general expression of intent. The second
is, . . . that technical words or words of known [English?]
legal import must have their legal effect, even though the tes-
tator uses inconsistent words, unless these inconsistent words
are of such a nature as to make it perfectly clear that the
testator did not mean to use the technical terms in their
proper sense.36
But "equity" was also important; in another case involving inheritance
rights under Hindu custom, Lord Davey admitted that the judges were
legislating-that is, making up their own rule to suit the case:
If there were any construction of the text laid down by au-
thority binding on the Courts of Bombay, or if there were
any established practice or usage in the application of the test,
their Lordships would follow it without hestitation, though
it might not commend itself to their judgment. But no such
authority has been referred to, and there is no evidence of
any such practice or usage. Their Lordships are therefore at
liberty, and are bound, to act on the opinion they have
formed.37
Sometimes the Committee paid great deference to local custom,
as in a case testing the validity of an adoption in Burma. The Com-
mittee found that among the Burmese, ceremonies and written docu-
ments are not needed to constitute a legal adoption: publicity is used
instead. The real question, then, became the relationship between the
"father" and the "adopted child." This was to be indicated by the
course of their lives, not by any ceremony. Finding that the father
and the child had acted throughout as though the adoption were real,
the Committee held it to be legal.38
Not all questions involved the family: a good example of an at-
tempt to accommodate law to local conditions, even if this meant the
adoption of a rule contrary to that used in England, came in a case
testing whether hereditary fishing rights followed a river when it
changed its channel. Finding that Indian rivers frequently change
course, the Committee felt that fishing rights should follow the river
in order to produce the least hardship.39

36. Lalit Mohun Singh Roy v. Chukhun Lal Roy, (1897) 24 I.A. 76 at 85.
37. Bai Kesserbai v. Hunsraj Morarji, (1906) 33 I.A. 176 at 197.
38. Ma Me Gale v. Ma Sa Yi, (1904) 32 I.A. 72.
39. Srinath Roy v. Dinabandhu Sen, (1914) 41 I.A. 221.

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30 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

This kind of adaptability meant that the Committee needed to be

acquainted with local conditions, customs, and even modes of thought,
as was illustrated strikingly in these words of Lord Sumner:
Their Lordships are also fully alive to the incongruity, more
striking perhaps to Western than to Indian minds, of applying
to such an occupation as Mr. Gokal Chand's an ancient rule
which had its origin in a state of society possibly simpler than
and certainly different from the state of society existing in
the present day, but this anomaly proceeds largely from the
Occidental habit of relying on mere analogy in the application
of legal rule instead of deducing the application from a logical
apprehension of the principle as the best Eastern thinkers do.
Be this as it may, they conceive it to be of the highest im-
portance that no variations or uncertainties should be intro-
duced into the established and widely recognized laws which
govern an ancient Eastern civilisation, and least of all in mat-
ters affecting family rights and duties connected with ances-
tral customs and religious convictions.40
Perhaps the highest function of equity is to provide justice in
those unique cases for which there is no existing applicable law. Such
cases are perhaps the most difficult of all. One such case raised the
question of whether one Hindu sect had the concurrent right to recite
its ritual simultaneously with another in a temple controlled by the
latter. Solving this required the Judicial Committee to go into the
details of Hindu worship and history in Madras. In deciding that,
while both Tengalais and Vadagalais may worshipi in the temples of
Tirumalai and Tirupathi, only the Tengalai ritual may be used, the
Committee apparently had one eye on the fact that there were other
temples nearby where Vadagalai ritual was used.41 Probably neither
English law nor Eastern deductive logic was of much help. The
judges were undoubtedly concerned as much with the maintenance
of "peace, order and good government" as with abstract principles of
justice, and probably rightly so.
All legal systems have a large admixture of ad hoc lawmaking
by judges; the common law tends to sanctify this, but perhaps nowhere
in English jurisprudence has there been as much scope for it as in
the work of the Judicial Committee, as the foregoing examples should
indicate. They were taken more or less at random from one area;
other colonies could as well have been used-although it must be ad-
mitted that India's elaborate set of pre-existing rules, based on reli-
gion, makes it ideal for illustrative purposes.
Even when the local law to be interpreted differed from English
law, English preconceptions and legal ideas often influenced the re-

40. Gokal Chand v. Hukam Chand-Nath Mal, (1921) 48 I.A. 162 at 174.
41. His Holiness Peria Kovil Kelvi Appan etc. v. Prathivathi Bhayank-
aram Venkatacharlu, (1946) 73 I.A. 156.

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1976] BETH: JUDICIAL COMMITTEE AND JUDICIAL REVIEW 31

sult. How much of this was deliberate, and how much unconscious
but inevitable, one cannot say, since the judgments rarely speak of
the subject. Lord Sumner's judgment quoted above shows an aware-
ness that the approach to the law of a judge trained in the English
common law tradition might be very different from that of a Hindu.42
From the standpoint of the imperial constitution this was no bad
thing: indeed, the Judicial Committee was expected to act as a bind-
ing factor whenever possible. Another effect which should not be
overlooked is that over the years the Committee's decisions may have
had important influence in the development of a Canadian, an Aus-
tralian, or an Indian law, as distinct from the separate law of Ontario,
Manitoba, New South Wales, Victoria, Bombay, Calcutta and Madras,
which could easily have developed into sovereign political bodies when
self-government was gained. There was, after all, no ineluctable logic
or force of history which brought together the disparate elements
which make up modern Canada; the forces which did so were doubt-
less internal as well as external, but among the external ones that
of an over-arching body of law (even to some extent in Quebec) was
certainly not the least important. And the centrifugal force repre-
sented by Quebec French law is one of the major aspects of the
troubles of Canada in recent years. We often refer to the advantage
for a nation of its people speaking the same language; speaking the
same legal language may well be as important as speaking the same
tongue.
"Natural justice" is another deciding factor-either acknowledged
or not-in some decisions. It is probably most common in criminal
cases, and appears particularly when the judges' "sense of injustice"
is strongly aroused. It is not surprising that natural justice tends very
strongly to be equated with English justice (even though its principles
have never been precisely spelled out). The indeterminate quality
of natural justice has been at once its greatest advantage and its most
serious fault. Judges bred in the English tradition tend strongly to
distrust it, and consequently they seldom admit that they are using
it (even when they know it themselves, which has not been all the
time). There are telltale signs: when Lord Simon says that a judge's
directions to the jury were "improper and grievously unjust," he is
using a concept of natural justice, unless he were to go on and cite
law which is being applied.43 In the final analysis, natural justice
is inseparable from the ideas of justice which have been imbued in
every judge by his social and legal background; for this reason natural
justice has been primarily an attempt to universalize the principles
of English justice, and it has been esipecially useful in this respect
since it means that as English ideas change, so do the decisions. It

42. See text at n. 40 supra.

43. Muhammed Nawaz v. King-Emperor, (1941) 68 I.A. 126.

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32 THE AMERICAN JOURNAL OF COMPARATVE LAW [Vol. 24

thus provides a highly flexible device for keeping the imperial consti-
tution in step with the developing ideals of justice in the mother coun-
try. If over-used, or used too deliberately, however, it lays the judges
open to the charge of legislating by judicial decision and of subservi-
ence to the political needs of a colonial power. The Judicial Commit-
tee has not been free of such charges, but they have been surprisingly
few, even back in the days when most of the judges were political
figures. One writer sums up in words which may slightly exaggerate
the situation:
[There is no truth] in any suggestion that the Privy Council's
power of review was used to further imperial policy. And
there is no evidence to suggest such a "political" bias in the
normal process of hearing appeals from the colonial courts
* . . .No tangible connection, either personal, constitutional,
or political, between the Judicial Committee and the Colonial
Office [existed]; indeed, the non-political nature of the Com-
mittee was clearly recognized by members of the Colonial Of-
fice. .. .44
The reason for this is that domestic political views have often had
little to do with the kinds of questions which the Committee is called
upon to answer, though judges are appointed for largely domestic
reasons. Also, the English government can, at least theoretically,
always resort to legislation when it dislikes a line of decisions, a
possibility which renders the judges more independent because their
decisions are less final.
This is not the place to discuss the Judicial Committee's constitu-
tional decisions in detail. It is important, however, to make some gen-
eral remarks.
The close relationship between federalism and constitutional re-
view is too distinct to be missed. Most of the Judicial Committee's
constitutional cases have come from the two oldest federal states in
the Commonwealth, Canada and Australia. In addition, all the federal
states set up after 1945 adopted judicial review for their own use (al-
though it proved to be stillborn in many of them, as did federalism
itself), while of the unitary states only the Republic of Ireland has
done so. Dicey believed that federal systems need judicial review as
a means of settling the inevitable conflicts arising within a federal
regime;45 but perhaps one may settle on the theory that disunity is
the factor leading to the preference for federalism over a unitary sys-
tem, and that this disunity does not disappear automatically when the
state gains its power of self-government. It lives on and provides fer-
tile soil for disputes which can be settled by courts.

44. Swinfen, Imperial Control of Colonial Legislation, 1813-1865 at 44

(1970).
45. Dicey, Introduction to the Study of the Law of the Constitution 175-
80 (10th ed. 1959).

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1976] BETH: JUDICIAL COMMITTEE AND JUDICIAL. REVIEW 33

The use of judicial review--except in the United States and Can-

ada-has not owed very much to the Judicial Committee's example.
In the later states it was copied from the earlier ones. It is significant,
however, that historians are all but unanimous that imperial review
as practiced through the Privy Council was highly influential in the
adoption of judicial review in the United States and probably in Can-
ada.46 The Privy Council thus provided the example from which one
of the most common and characteristic institutions of the British suc-
cessor states was developed.
The British judges were at some disadvantage in using constitu-
tional review. For one thing, it was a somewhat alien institution in
the land of parliamentary supremacy, and judges bred in the tradi-
tion of deference to the will of Parliament could be expected to have
some trouble acclimating themselves to this new idea. The fact that
the Canadian and later constitutions were embodied in statutes en-
acted by Parliament was a help: for it gave judges the impression
that construing a constitution was not much different from construing
a statute. In fact, they were often criticized for this, since (so the
critics said) it gave them an excessively narrow approach to the most
fundamental questions of the organization of the polity.47
It is also true that the judges' training in parliamentary suprem-
acy led them directly away from the American idea that courts,
through constitutional interpretation, can limit legislatures. The Ju-
dicial Committee fairly early declared that colonial legislatures had
all the supremacy held by Parliament itself unless limited by their
own constitutions or charters. Lord Selborne said that the Indian leg-
islature "has, and was intended to have, plenary powers of legislation,
as large, and of the same nature, as those of Parliament itself,"48 a
comment echoed a few years later by Sir Barnes Peacock in a Cana-
dian case.49 The Committee has never explicitly departed from this
rule, although critics have suggested that it actually did so in some
of the Canadian depression cases. And of course the whole theory
of judicial review of legislation is contrary to that of parliamentary
supremacy.
A second difficulty stemmed from the lack of experience with fed-
eral forms of government. British government in modern times has
always been highly centralized; how could judges deal with constitu-
tional questions centering on the degree of decentralization? Surpris-
ingly, if there has been any pattern, it has been one of favoring the

46. See Smith, supra n. 2 at 652-3; Russell, The Review of American Colo-
nial Legislation by the King in Council 227 (1915); Dickerson, American Colo-
nial Government 230 ff. (1912).
47. MacDonald, "The Privy Council and the Canadian Constitution," 29
Canadian Bar Review at 1029-30 (1951); and more especially, McWhinney,
Judicial Review in the English-Speaking World 15 ff (3rd ed. 1965).
48. The Queen v. Burah, (1878) 3 A.C. 889.
49. Hodge v. The Queen, (1883) 9 A.C. 117.

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34 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

provinces as against the central government: certainly this was true

of the Canadian cases, as the events of the 1930's demonstrate. But
it has not seemed true of Australia. No other country has provided
enough cases to mark a trend. One might speculate that any "states'
rights" bias that existed came about because British imperial policy-
reflected by the Privy Council-was to keep the central governments
as weak as possible and thus minimize the chance of independence
movements arising. If this was the reason it failed completely, for
in fact the Committee's decisions had the opposite effect. But in any
case there is little evidence that appears in the judgments which could
provide clues why the bias developed, and it is as good a guess as
any that it was due mainly to the strong personality and ideas of Lord
Watson. Speculation over why he felt as he did seems fruitless, since
little information exists which could be helpful.
Finally, by its position and composition, the Judicial Committee
was constrained to regard the legislation of dependent areas as subor-
dinate legislation: subordinate at least to the Act of Parliament which
gave the legislature its power. It was thus able and emboldened to
treat local laws with some of the same ideas that it would have applied
to the acts of a borough council in the United Kingdom. Whether
this is likely to have made much difference in the Committee's actual
decisions is, however, doubtful.
In the earlier years judicial review was, in any case, of slight im-
portance: one writer finds only four constitutional issues presented
in 265 cases from the American colonies from 1675 to 1775, and none
from any colony between 1813 and 1865.50 This underestimates the
significance of judicial review, since he counts only cases in which
local legislation was challenged. When one adds challenges to other
acts of government one finds more, but still few, cases: I have counted
16 from 1813 to 1865. These involve such issues as whether a Governor
has veto power,51 whether the British Home Secretary can abolish a
traditional office,52 the extent of a legislature's contempt power,53
various other questions concerning the powers of governors,54 the
power of the Judicial Committee to receive cases under the Bombay
charter of 1823,55 and some other minor matters.56

50. Swinfen, supra n. 44 at 7, 44.

51. Re States of Jersey, (1862) 15 E.R. 468.
52. Re States of Guernsey, (1861) 15 E.R. 345.
53. Beaumont v. Barrett, (1836) 12 E.R. 733 (Jamaica); Kielley v. Carson,
(1842) 12 E.R. 225 (Newfoundland); Fenton v. Hampton, (1858) 14 E.R. 727
(Van Dieman's Land, now Tasmania).
54. Cameron v. Kyte, (1835) 12 E.R. 678 (Berbice); Gahan v. Lafitte
(1841-2) 13 E.R. 155 (St. Lucia); Montague v. Lt.-Gov., (1849) 13 E.R. 773
(Van Dieman's Land); Cloete v. The Queen, (1854) 14 E.R. 184 (Natal).
55. The Queen v. Eduljee Byramjee, (1846) 13 E.R. 496; The Queen v.
Alloo Paroo, (1847) 13 E.R. 504; Spooner v. Juddow, (1848-50) 13 E.R. 682.
56. Tupper v. Treasurer, (1836) 12 E.R. 706 (Guernsey); Martyn v. M'Cul-

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1976] BETH: JUDICIAL COMITE AND JUDICIAL REVIEW 35

The creation of the first federal state, Canada, in 1867, led to a

pronounced increase in the number of constitutional issues coming to
the Committee, and judicial review came to be of extreme importance,
especially for Canada during the Great Depression of the 1930's.
Certainly in the period before 1867, judicial review was of less
importance than disallowance as a mode of keeping colonial laws in
line with imperial policy. Disallowance was an explicitly policy-ori-
ented practice whereby the Colonial Office (or its predecessors), act-
ing through Orders in Council, could veto laws passed by dependent
legislatures on constitutional or policy grounds. Its use varied over
time, but there was a significant number of laws nullified in this man-
ner. The nature and importance of its use are not relevant here; but
for the period before 1775, and for 1813 to 1865, works exist which
do survey it.57 The existence and use of the disallowance power, nev-
ertheless, undoubtedly had the effect of reducing the incidence and
importance of judicial review, since many laws were treated by this
process which would otherwise probably have been taken to the Judi-
cial Committee. This makes comparison with the United States diffi-
cult, since of course there is no disallowance power there. No study
that has been made so far attempts to separate disallowances on con-
stitutional grounds from disallowances for other reasons. There is lit-
tle doubt, however, that the job of the Judicial Committee was made
both lighter and easier by the use of disallowance.
As colonies gained their own constitutional powers of self-govern-
ment, of course, the possibility of using disallowance vanished, since
the powers of the local legislatures came to approximate those of the
English Parliament, and were irreversible by the disallowance tech-
nique-a fact which may have tended to increase the number of at-
tempts to use judicial review through litigation.

II

Some discussion of the way in which the Judicial Committee's

predecessors used their powers seems desirable in the light of the fore-
going remarks. Because of time limitations it has not been possible
to do as much research into the period before 1829 as would have been
desirable. I have not been able to go through the Privy Council Rec-
ords, and the printed cases do not begin to cover even most of the
cases actually decided until 1829. While secondary works already
cited cover the period to 1775 quite adequately (at least for the Ameri-
can colonies), there is no such publication for the years from 1775 to
1829. Such remarks as are here made therefore depend heavily on

lock, (1837) 12 E.R. 831 (Guernsey); Re Grant, (1850) 13 E.R. 833 (Bengal);
Re States of Jersey, (1858) 14 E.R. 717 (Jersey).
57. Smith, supra n. 2, and Swinfen, supra n. 44.

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 36 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

secondary works and do not necessarily apply to the period immed

ately following the American War of Independence.
Several factors should be kept in mind in the discussion which
follows. For one thing, during much of the early colonial period most
of the "colonies" were not thought of as such. They were instead the
"property" of companies of merchant adventurers who hoped to turn
their ventures into profitable trading enterprises. They were not at
first fully aware of the fact that their settlements would pose prob-
lems of law and order; and at first-especially in India-such problems
devolved upon them rather than upon the British government for
solution. The East India Company therefore had its own courts for
many years, as did the Massachusetts Bay Company and, much later,
Cecil Rhodes' South Africa Company in Rhodesia. The government
undoubtedly hoped, at first, that it would not be troubled by the inter-
nal problems of these companies, but as early as 1660 it was obvious
that this would not be the case. English merchants eager to share
in the lucrative colonial trade, and the settlers or native residents
themselves, kept pressing for means of appealing over the heads of
the companies, realizing that company decisions were dictated largely
by the self-interest of the proprietors. The companies-particularly
Massachusetts Bay-made strenuous efforts to keep matters in their
own hands. The Massachusetts company went so far as to transfer
its headquarters to Boston, far from the reach of London officialdom;
it also used every possible method from delay, through legal road-
blocks, and even intimidation, to prevent successful appeal to the Com-
mittee on Trade and Plantations of the Privy Council. This was one
of the reasons that the decision was made in 1683 to vacate the com-
pany's charter, though it meant that the government had to take over
active control of the colony's government, including responsibility for
its judicial system.
A second factor to bear in mind is that the appeals system was
both experimental and informal. Legal methods were not highly
developed, and it was often difficult to tell whether, in a particular
instance, the Committee on Trade and Plantations was acting as an
administrative, a political or a judicial body, since the Privy Council
was empowered to act in each capacity, and its personnel remained
the same regardless of which it was doing. In any case, one could
hardly expect a fully developed and adequate system for handling
appeals to spring full-blown from the brows of Whitehall officials
who had no experience with the problem except as posed by tiny
Jersey and Guernsey, and no clear vision of the size the Empire would
assume.

Third, there was a difficult problem posed by the fact that the
early colonies already varied widely in nature. Despite the presenc
of the Red Indians, the American colonies regarded themselves and

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1976] BETH: JUDICIAL COMMITTEE AND JUDICIAL REVWEW 37

were generally regarded by English officials as settlements of English-

men. In Bombay, Calcutta and Madras no such belief was possible.
There was therefore a continual tension between the problems and
needs of different types of colonies. The differing institutional ar-
rangements-charter, proprietor, royal-of the various colonies added
to this problem, as did the differing rates of progress toward acquiring
the institutions of self-government.
Finally, especially as regards the American colonies, one must al-
ways remember that the combination of distance from England, poor
and slow transportation, and the predominantly English character of
the population, produced a drive toward political autonomy which cre-
ated extremely difficult problems for imperial policy. The interests
of the settlers seldom seemed congruent with those of English mer-
chants and politicians, and the colonists were not backward about ex-
pressing their interests-nor above disobedience when disagreements
were settled contrary to their wishes. A loose rein would allow the
colonies to drift into autonomy; a tight one would drive them to it.
So long as the colonies remained weak, underpopulated and disunited
these tendencies could be held in check. But once the threats from
French and Indian had been disposed of and there was no longer a
need to look to England for military protection, the dissatisfactions
attending British rule quickly outweighed the advantages. Imperial
institutions were therefore always faced with the threat of fragmenta-
tion.
Appellate statistics are largely meaningless here, since mere num-
bers of cases provide no index to their importance. They nevertheless
reveal something of the workload involved, and may provide a clue
to colonial attitudes toward review. It is therefore of some interest
to know that one authority lists about 60 appeals from the American
colonies from 1674 to 1696, which included 18 from Massachusetts, six
from New Hampshire, four from New York, two from Virginia, 16
from Barbados, five from Jamaica, three from Bermuda and two from
the Leeward Islands. In 1696 the establishment of the Board of Trade
led to a more systematic approach, and statistics after that date may
be more reliable. The same authority finds that almost 1500 appeals
were made from 35 jurisdictions between 1696 and 1783 (this includes
India and other non-American colonies). 58
The century 1680-1780 saw 265 cases appealed from the thirteen
American colonies which later became the United States; of these,
Rhode Island accounted for 78,-Virginia 53, Massachusetts 44, New
York 21, Maryland 15, Pennsylvania 13, New Jersey 12, New Hamp-
shire 12, Connecticut 9, and North and South Carolina, Georgia and
Delaware 2 each. Other "mainland" colonies to 1783 accounted for

58. Smith, supra n. 2 at 73, 658.

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38 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

a few more cases: Quebec 9, Nova Scotia 9, Newfoundland 9, West

Florida 3 and East Florida 1. Of those cases for which final decisions
can be determined, the colonial courts were reversed by the Privy
Council in 76 and affirmed in only 57.59
As for India, one writer finds that from 1726 to 1833 about 300
appeals went to the Privy Council from Indian Supreme Courts and
another 14 from the Sudar Adalat courts which began functioning in
1790.60 He also points out that about a third of all these cases were
eventually dismissed because of non-prosecution-a figure which
probably holds good for the American cases as well.
Jain remarks that most of the Indian cases involved testamentary
and intestate questions, with debts on promissory notes, bonds and
insurance coming next. Again, it is probable that the American cases
involved predominantly the same types of issues.6' In any case, "few
of the appeals determined [before 1696] . . . were of importance to
any but the individual litigants."62 One should not, however, extend
such a statement too far: cases between private litigants are the stuff
of which the law is built; although individual cases may not seem
important, when combined with others they go to make up "the law."
The quality of the performance of the Privy Council Committee
during this period has been variously estimated. Smith tends to em-
phasize the degree to which appellate decisions were attuned to Eng-
lish desires, especially those of merchants; and in so doing he perhaps
overstates the degree to which laymen rather than lawyers, and people
unfamiliar with colonial conditions, composed the Committee.
Oral argument was largely devoted to discussion of English
precedents, except in those cases in which [local law] gov-
erned. In many cases decision involved the interpretation of
colonial statutes. This necessity for conciliar information as
to colonial legislation was seized upon to counteract the reluc-
tance of some chartered and proprietary colonies regularly to
transmit their laws to England. . .. Interpretation of
colonial acts might blindly follow English statutory analo-
gies, although in a few instances persons acquainted with co-
lonial practices and conditions were called upon to supply .
[information] .63
By the beginning of the eighteenth century, at least the
shrewder councillors were certainly aware that the appellate
function with reference to ancient customary law used by a
homogeneous population at the very doorstep of England was
quite a different problem than that with reference to the dis-

59. Schlesinger, "Colonial Appeals to the Privy Council," 28 Political

Science Quarterly 446-47 (1913).
60. Jain, supra n. 25 at 443 ff.
61. Ibid.
62. Smith, supra n. 2 at 131.
63. Ibid. at 295-296.

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1976] BETH: JUDICIAL COMMITTEE AND JUDICIAI REVIEW 39

putes in dominions where English law was not yet well seated,
where even the lawyers were adventurers, and where commu-
nication was hardly maintained . . . . The central principle
of appeal jurisdiction as to the American plantations becomes
the maintenance of the royal prerogative overseas, a legal doc-
trine the particulars of which were well understood, but the
limits of which were not defined. A second and subsidiary
principle was the maintenance of the trade policies embodied
in statutes and of the interests of the English merchant
class.64

It seems also to be true that many of the early councillors called

upon to perform judicial functions were not well trained for the task
except those who were borrowed from other courts, and they often
felt their colonial work to be onerous and gratuitous. Lord Langdale
was quoted as saying that he was "neglecting his own court, and sacri-
ficing the interests of the suitors there."ff5 Judges under such condi-
tions sometimes did not attend willingly or give their best attention
to the cases; one, indeed, characterized the judicial work of the coun-
cil as "discreditable."66
Smith further stresses a central flaw in the appeals system: it
was based on a medieval conception of the royal prerogative unsuited
to application to the colonies. Furthermore, in the operation of the
system "no real effort was expended to acquire an understanding of
colonial economic and social conditions, let alone the colonial philoso-
phy of life."67 Poor records, lack of written opinions, and the fact
that decisions came in the non-legal form of Orders in Council all fur-
ther detracted from the possibility of satisfactory performance.68
He does, however, admit that the system had some strengths: "it
stood aloof from the atmosphere of local altercation, and there were
active in it a succession of the most distinguished personalities of the
English bench."09 And he points out that, despite its defects, in reality
it was "contributing by a series of ad hoc determinations to the crea-
tion of a special jurisprudence governing the dominions outside the
realm"70-what I have above called the "imperial constitution."
In appraising these comments one should keep in mind possible
national biases. Smith, an American, would no doubt be better satis-
fied if he thought the Committee had adjudicated in a pro-American
spirit. But this ignores that the colonies were colonies, had a de-
pendent relationship to the mother country, and that both government

64. Ibid. at 656.

65. Finlason, The History, Constitution, and Character of the Judicial
Committee of the Privy Council, etc. 77 (1878).
66. Ibid.
67. Ibid. at 657.
68. Ibid. at 660-661.
69. Ibid. at 658.
70. Ibid. at 464.

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40 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24

and private merchants expected colonies to benefit the English. In-

deed, why else would any nation wish to have colonies?

Again, Smith seems to underestimate the extent to which the

cases involved questions which-as even he admits-were largely of
interest only to the litigants. In such cases English merchants often
had little or no interest. They were probably not interested-nor,
likely, was the government itself-in the succession laws the colonies
adopted. But legitimate appeals on the question had nevertheless to
be decided. It is difficult to conclude that such questions were decided
with English interests in mind, even the interest of conformity with
English law, since many of the cases concerned Hindu, French or some
other kind of inheritance law, and the decisions always gave full
weight to these. Nor, in the end, were even the American colonies
forced into uniformity on this subject.

Other writers, one should add, have been more favorable to the
performance of the Privy Council. Schlesinger, while admitting that
appeals served both to prevent legal changes without the consent of
the English authorities and to correct colonial court decisions which
were to the Crown's disadvantage, finds that the system was of great
benefit to individual colonists: "it represented a means of relief from
arbitrary proceedings of colonial courts, which were sometimes
swayed by local prejudices rather than controlled by considerations
of law and justice."'7' And he concludes that despite its shortcomings,
appeal

was a valuable institution and was far more effectively exer-

cised than is generally represented. Its performances were
beyond a doubt regarded as satisfactory; there were relatively
few colonial complaints against the system . . . . The person-
nel of the Privy Council was strong and its procedure insured
justice to both appellant and appellee. The average time nec-
essary for the determination of an appeal was comparatively
short... 72

Perhaps, as is often the case, the truth lies somewhere between the
conflicting views.

lIi

The most obvious, if not the most significant, legacy of the Privy
Council appeals system as it operated in North America was its influ-
ence on the adoption of judicial review by the United States in its
Constitution of 1787. For even though judicial review is, as we have
seen, a natural concomitant of a federal system, it is not likely that
the constitutional fathers knew that. Judicial review may therefore

71. Schlesinger, supra n. 59 at 279.

72. Ibid. at 449-450.

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1976] BETH: JUDICIAL COMMITTE AND JUDICIAL REVIEW 41

owe much more to the example set by the Privy Council than to the
necessities of federalism.
This result was the product of no deliberate intention. Judicial
review as exercised by the Committee on Trade and Plantations was
largely unrecognized as such; on the contrary, it was regarded by the
Committee as merely another instance of the interpretation and ap-
plication of law which all courts perform. To the colonists, however,
it looked like something different. This distinction is simple enough,
but has not often been elucidated.
The Committee always thought of itself pretty much as an ordi-
nary court, concerned only with applying the law. The law to be ap-
plied was composed of several elements: the existing law of England,
so far as that might be determined to be controlling in the colonies;
acts of the Crown, like the royal charters under which many of the
Colonies were created; acts taken under Crown prerogative, in the
form of Orders in Council or, perhaps, royal instructions to colonial
governors; acts of Parliament; and acts of the colonial legislative bod-
ies. Not much distinction was drawn between these, except that the
last was regarded as distinctly subordinate to the rest. There was
little apparent realization that taken together these elements consti-
tuted a higher law-a constitution-which unmade, for the colonies,
the principle of legislative supremacy won in England by 1689. The
same attitude was to dominate, for a time, the Judicial Committee's
approach to the Canadian constitution of 1867. It was thought of as
mere statutory interpretation, as in a sense it was.
The view from the colonies was quite different. The fact that
colonial legislative action was controlled by a higher law, be it charter,
act of Parliament, or common law, meant that colonists grew up with
the idea that legislatures are limited in their powers-an idea which
they applied in all the state constitutions and then in the national
Constitution of 1787, as well as in the federal constitutions of Canada
and Australia. That control was exercised by a judicial-or at least
semi-judicial-body gave them the idea that courts could be used to
interpret and enforce constitutional provisions. To this was added the
more effective, though non-judicial, royal veto as exercised through
the Privy Council's power of disallowance; a power which most col-
onists did not understand as being separate from judicial review.73
The question whether colonial courts themselves had the power
of judicial review was early canvassed: Chief Justice Michie of South
Carolina denied (probably rightly) that they had any such power,
holding that the colonial courts were subordinate and only the King
in Council could hold legislative acts ultra vires. But it is significant

73. Russell, supra n. 46 at 227.

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 42 THE AMERICAN JOURNAL OF COMPARATIVE LAW

that counsel in the case apparently argued that the court could assume
such a power.4 There is other evidence that the idea of judicial re-
view was familiar to late colonial lawyers and judges.
It is nevertheless true that the Privy Council seldom exercised
its power of judicial review; the main control used was the disallow-
ance power. Winthrop v. Lechmere seems to be the only unambiguous
use of judicial review: it resulted in the invalidation of Connecticut's
intestacy law of 1699 on grounds of inconsistency with English law.75
But even this case was inferentially reversed within a few years.76
It was not the frequency of use, then, but the known existence of
the power, that counted.
In this discussion one should not lose sight of the benefits accruing
to the colonies from the application of British law, or at least of some
imposed uniformity of colonial law. Without some such uniformity
the thirteen American colonies might never have felt enough of a com-
mon cause to fight their revolution and stick together once it was won.
Indeed, they almost fell apart several times as it was. One must of
course admit that the adoption of systems of law very much like the
British in their treatment of property, contracts, business matters, etc.,
was, considering their common national origin, natural enough. But
it is also true that the colonies were settled in very different ways,
at different times, and developed in some quite different directions;
by 1775 there were some fairly wide legal differences between Massa-
chusetts and Georgia, and there could have been many more had not
the Privy Council's idea of a uniform law been at least partially ap-
plied. The economic and social institutions-at least at the legal level
-were remarkably similar throughout the colonies, except for South-
ern slavery. It would be exaggerating to say that the most enduring
legacy of the judicial appeal system to 1775 was the unity of the
United States, but there is little doubt that the Judicial Committee's
decisions played a significant role in this development.77

74. Williams v. Executors, Ms Jnl So. Car. Ct. Com. Pl. 1754-63, (1759-60)
231-238; discussed in Smith, supra n. 2 at 586-592.
75. Winthrop v. Lechmere, (1728) 3 APC 112, 6 APC 367, 410, 431, 432.
The history of the case is well covered by Smith, supra n. 2 at 537-557.
76. In Philips v. Savage, (1728) 3 APC 322, and Clark v. Tousey, (1745)
3 APC 422. See Smith, supra n. 2 at 562-572. Goebel, supra n. 13 at 73-78,
argues that it was never actually reversed, but merely "distinguished," which
seems true.
77. There is no existing study of the general impact of British law o
other colonies; for interesting treatments of Africa see Elias, British C
Law (1962); Ghai & McAuslan, Public Law and Political Change in Kenya
(1970); Harvey, Law and Social Change in Ghana (1966).

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