(^‘ll
Ch '0-
H
TERS ON
IMPERIAL RELATIONS
INDIAN REFORM
CONSTITUTIONAL AND
NTERNATIOXAL LAW
i 9 i6 - j 935
BY
ARTHUR BERRIEDALE KEITH
D.C.L., D.Litt.
Of the Inner Temple, Barrister-at-law, and Advo¬
cate of the Scottish Bar; Regius Professor of
Sanskrit and Comparative Philology and Lecturer
on the Constitution of the British Empire at the
University of Edinburgh; formerly Assistant
Secretary to the Imperial Conference
OXFORD UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
r 935
IN MEMORIAM
MARGARET BALFOUR KEITH
PREFACE
r-riHESE Letters were written for the most part at the sug-
-L gcstion of my wife; in all cases their contents formed the
subject of discussion between us, and they were approved by
her in the final form. Copies of them were preserved by her
with the intention of publishing them after my death. In no
part of my work did she take a greater interest, and I publish
them now in her memory as some slight acknowledgement of
twenty-one years of constant help.
During my service in the Dominions Department of the
Colonial Office, and as Assistant Secretary to the Imperial
Conference, I came to recognize that after sixty years the time
had arrived when the formula devised by the practical sagacity
of Lord Durham no longer sufficed to define the system of
Imperial relations, and when a system must be devised under
which the Dominions should assume control over the conduct
of foreign affairs to the same extent as they exercised author¬
ity over internal matters. The solution favoured by a strong
body of contemporary opinion was the creation of a true
federal system, but this, I was satisfied, for reasons explained
in my Imperial Unity and the Dominions (19x6), was negatived
by the strength of the Dominion feeling for autonomy. It
was, therefore, inevitable that the Constitution of the Empire
should be remoulded in such a manner as to grant to each of
the great Dominions external sovereignty without, if possible,
destroying in the process the unity of the Crown. Even before
the war of 1914-18 practical considerations had compelled
for the Radiotelegraphy and Safety of Life at Sea Conferences
a striking innovation in the representation for international
purposes of the Crown by distinct sets of delegates, and
the way had been made ready for the concession of Sir R.
Borden’s epoch-making demand for the separate representa¬
tion of the Dominions at the Peace Conference. This led to
the decisive step of granting the Dominions membership of
*
vm PREPACK
the League of Nations, and within the League international
status.
It was the aim of these Letters to indicate as they arose
the different problems involved in the changes in Imperial
organization. A fundamental difficulty in the process of evolu¬
tion has been presented by the fact that tin- Irish Free State
since its creation has never acquiesced in the doctrine of the
unity of the Crown, and has from the first, worked steadily
towards the attainment of Republican status, while the United
Kingdom is not yet prepared to find a place for a Republic
within the British Commonwealth. Some support for Irish
claims has been lent by the Union of South Africa, to whose
Prime Minister we owe the doctrines of the divisibility of the
Crown, the right of neutrality, and the l ight of secession.
Under the influence of such ideals strange forms have been
assumed by principles themselves of general acceptability.
When the Imperial Conference of 192G assimilated the posi¬
tion of the Governor-General to that of the King, it hardly
realized that the Conference of 1930 would hold it a logical
necessity to make over the appointment of the Governor-
General to the Dominion Ministry of the day, still less that
the Dominion Ministry could claim the right at pleasure to
dismiss the Governor-General. It may be doubted if the
Conference of 1926, which coupled equality of status with
diversity of function, contemplated as a logic,al consequence
the complete elimination of the British Foreign Office from
the conduct of foreign affairs by the Free Stale and the
Union. Even the Statute of Westminster, 1931, has proved a
bone of contention, for the British Government denies, and the
Irish Government asserts, that it gave the latter full licence
to abolish the appeal to the Privy Council. The difficulties,
of course, have arisen from the adoption by the Conferences
of 1926 and 1930 of vague formulae and their anxiety to avoid
definite confrontation of dissentient views.
Difficult as are the problems affecting the Dominions, their
interest is rather theoretical than practical. In India
PREFACE
IX
ture promise of Dominion status has resulted in an attempt
to devise a constitution which shall at one and the same time
grant responsible government to Indians, and yet retain for
the British Government effective powers of control. The two
aims arc contradictory, as my service in 1919 on the commit¬
tee on the Home Administration of Indian Affairs proved
to me; but a solution is sought in the association in the Central
Legislature and Government of nominees of Indian auto¬
cratic rulers with representatives elected from British India.
It seems inevitable that either responsibility will be rendered
unreal or that the safeguards will fail, and it is especially un¬
fortunate that the original scheme of protecting British com¬
mercial interests by an agreement with India should have
been discarded in favour of legislative restrictions of Indian
authority which may seriously hamper legitimate develop¬
ment of Indian economic power.
In an Empire which now presents the form of a number of
autonomous sovereignties the necessity of a tribunal of per¬
manent character to determine issues arising between the
members, which involve matters justiciable in character,
appears to be incontestable, and the United Kingdom and
the other parts of the Empire are, in principle, as signatories
of the Optional Clause of the Statute of the Permanent Court
of International Justice, in favour of judicial settlement of
disputes. It has, however, proved impossible to secure agree¬
ment on anything of greater value than the mere possibility
of reference to a tribunal ad hoc, and even this shadowy
expedient has still to be tried in practice. Nothing perhaps is
more significant of the utter incoherence of the present situa¬
tion than that in 1934 all the Dominion Governments con¬
cerned save that of the Union should have reasserted the right
of the British Government to disallow legislation impairing the
rights of holders of Dominion stocks admitted to trustee status
in the United Kingdom, and that the Union Government,
despite its assertion of absolute sovereignty, should have
undertaken to alter or repeal any legislation of this character
as
X
PREFACE
at the bidding of the United Kingdom. So artificial a situa¬
tion, and one so incompatible with Dominion status, cannot
well endure, and investors will sooner or laler in their own
interests have to seek more practicable safeguards or to
recognize that none arc possible.
My sincere acknowledgements arc due to the Editors of
The Scotsman , The Times, the Morning Post, the Manchester
Guardian, and the Glasgow Herald for their courtesy in assent¬
ing to the inclusion in this collection of the communications
which appeared in their papers.
A. RERRJKDALE KEITH.
UNIVERSITY OF EDINBURGH,
Jan. I, 1935.
PS.—I have added as an epilogue some haters, written
while this work was in the press, which deal with the out¬
standing problems of Dominion status.
ty 1916 .
I Federation, 24 July 1916
Propaganda and the Referendum in Aus¬
tralia, x November 1916
Mr. Hughes and Preference, 3 August 1918 .
Imperial Unity, 19 August 1918
The Dominions and the Peace Conference, 13 Novem¬
ber 1918 ......
The Air Convention: Representation of the British
Empire, 20 September 1919 .
Dominion Status: Negotiation of Treaties, 12 July 1919
The Territorial Ambit of Dominion Legislation,
2 March 1920 ......
The Dominions and the League, 26 April 1920
Ireland and the Empire, 23 July 1920
Lash Settlement on the Basis of Dominion Status,
18 August 1020 .....
South Africa and Ireland and the Empire, 7 Decem¬
ber 1920 ......
Imperial Relations, 2>5 April 1021
The Imperial Cabinet: A Misnomer, 27 April 1921 .
The Disarmament Conference: Dominion Representa¬
tion, 14 July 1921
Dominion Appeals, 29 November 1921
Dominion Status in Ireland, 28 November 1921
Lord Aberdeen on Home Rule, 11 November 1922 .
Self-determination for Ireland, 17 November 1922
The Elfect of the Irish Treaty, xo December 1921
The Irish Treaty and Irish Sovereignly, 9 January
1922 .
Irish Free State Leaders and the Republican Move-
Wj L f A A ITMH! 1 T tf”\ n o
JUILLllp IU X \ JlJl l « » * * *
The Collins-De Valera Compact, 22 May 1922
XU
CONTENTS
i n
25. The Irish Free State Constitution, i(> June 192:
26. The Irish Constitution: Fundamental Issues, idjune
1022 * ■ ■ * * * *
27. Mr. Hughes and Dominion Sovereignty, 14. May 1923
28. The Dominions and the Treaty Power, if> March 1923
29. Britain and the Australian Debt, 14 December 1923
30. Imperial Conference Resolutions: Their Effect,
18 December 1923 .
31. Imperial Conference Resolutions: Their Ffleet,
28 December 1923 .
32. Canada and the Treaty of Lausanne, to April 1924, .
33. The International Status of the Dominions, to June
1924 .......
34. The League of Nations Covenant and the British
Commonwealth, 16 December 1924.
35. The Locarno Pact, 25 October 1925 .
36. The Dominions and the Locarno Pact, November 1925
37. Appeals from the Irish Free State, 13 April Tpeb
38. The Canadian Constitutional Crisis of 1926, 8 July
1926 .......
39. The Canadian Election, 1 September 192b
40. The Imperial Conference of 1926, 22 November 192b
41. The Imperial Conference and the Govemor-Oenrral,
26 November 1926 .....
42. The Significance of the Imperial Conference,
16 December 1926 .
43. Constitutional Issues in Canada, 15 March 1927
44. Canada and the Constitution, 10 May 1927 .
45. Nationality in the Empire: Dominion Citizenship,
1 June 1927 .
46. The South African Flag, 22 October 1927
47. General Hertzog’s Native Policy, 16 December 1927.
48. General Hertzog and the Imperial Conference,
9 March 1928 ......
49. The Privy Council and the Irish Free State, 2b April
*928 ^.
5°. The Empire and the Peace Pact, 20 July 1928
5 1 * Imperial Policy Consultations, 22 February 1929
52. General Hertzog and the German Treaty, 2 March 1929
44
45
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(58
CON T E N T S
63.
64.
G 5 -
66 .
Britain and the; World Court, 18 March 1929
Inter-Imperial Disputes, 2 May 1929 .
The Washington Hours Convention, 12 June 19129 .
The Government and Russia, 13 July 1929 *
The Russian Negotiations, 2 October 1929
The Irish Free State and the Optional Clause,
17 September 19*29
The Optional Clause and the Union of South Africa,
20 September 1929 .
The Dominions and Privy Council Appeals, 22 Novem¬
ber 1020 ......
h*/
The Removal of the Limitations on Dominion Legisla¬
tion, 5 February 1930 .
Mr. Baldwin’s Proposals for a Referendum, 5 March
1020 .......
Hi/
Shipping and the Empire, 15 April 1930
South Africa and Secession, 21 May 1930
„ 1 . » l <):s»
The Dominions and the Right of Secession, 23 Septem¬
ber 1930 ......
Privy Council Appeals, 3 October 1930
The Imperial Conference and Constitutional Issues,
15 November 1930 .....
The Imperial Conference and Shipping, 1 December
1930 .......
The Appointment of Govcrnors-C Jeneral, 6 December
1930 .......
Dominion Govcrnors-Generat, io December 1930
The (h>vernor~Gcneralslup of Australia,, 10 January
1931 .......
Australia’s Debt to Britain, 10 February 1931
The Crown and the Dominions, ib November 1931 .
The Statute of Westminster: Anglo-Irish Treaty
Rights, 16 November 1931 .
The Term British Commonwealth of Nations,
26 November 1931 .
The Ottawa Conference Results, 22 August 1932
The Five-Year limit for the Ottawa Agreements,
20 October 1932 .
xui
ioi
102
103
109
1 of j
107
108
I < SJ
11I
I 12
XXV
CONTENTS
79. The International Status of the Irish Free State,
19 January 1932 .
80. Ireland and India: The Oath and Debt (Questions,
22 February 1932 .
81. Mr. de Valera and the Oath, 30 March 1932
82. „ ,, „ 23 April 1932 .
83. „ ,, ,, 28 April 1932 .
84. Mr. Thomas and Mr. de Valera, G May 1932
85. An Irish Republic: Effects on Nationality, 2 May 1932
86. The Irish Situation, 11 June 1932
87. Mr. de Valera and the Government: The Legal Issues,
18 June 1932 ......
88. The Governor-General of the Irish Free State, 12 July
1 93 2 ......
89. Mr. de Valera and the Crown, 4 October 1932
90. Irish Free State Claims, 31 October 1932
9 1 * 55 5) „ 18 November 1932
92. Mr. de Valera and the Governor-General, 31 January
1933 .
93. The Bail and the Oath of Allegiance, 5 May 1933 .
94. The Crown and the Irish Free State, xo August 1933 .
95. The Privy Council and the Irish Free State, to Octo¬
ber 1933 • • . .
96. Britain and the Irish Free State, 15 November 1933
97 * 53 33 ,, „ 17 November 1933
9 ^* 33 ,3 33 33 6 December 1933 .
99. The Irish Free State and the Crown, G December
1933 .
100. The Irish Free State and the Appeal to the Privy
Council, 7 December 1933 .
iox. Mr. de Valera’s Claim of the Right of Secession,
26 July 1934.
102. The Irish Free State Citizenship Bill, 29 November
*934 * ..
10 3. The Irish Free State Citizenship Bill, 3 December 1934
104. The Irish Free State Citizenship Bill, 10 December
1934 .
105. The Irish Free State Citizenship Bill, n December
*934 .
t13
1 iG
i, 17
118
119
120
121
*2f)
I2G
129
* 3 °
FT
132
1 34
* 34
13G
137
1 ;{8
I40
142
144
147
149
1 CO
1
I Cr.
JJ
CONTENTS
XV
106. The Oath of Allegiance, 20 December 1934 .
107. South Africa and the Empire, 16 March 1934
108. The South African Constitutional Bills, 16 April 1934
109. South Africa’s Proposed Constitution: Drastic Changes,
11 April 1934 ......
no. Fundamental Alterations of South African Law,
18 July 1934 ......
in. Fundamental Alterations of South African Law,
5 September 1934 .....
112. The Neutrality of South Africa, 18 October 1934
113. General Smuts and South Africa, 20 October 1934 .
114. South Africa and the Empire, 24 October 1934
115. South Africa and the Native Territories, 28 April 1934
116. South Africa and the Colonial Stock Bill, 5 July 1934
117. The Colonial Stock Bill and an Inter-Imperial
Tribunal, 17 July 1934 .
118. Western Australia and Secession, 20 November 1934
119. „ ,, „ 26 November 1934
II. INDIAN CONSTITUTIONAL REFORM
1. India and the Dominions, 29 June 1918
2. The Government of India Bill: Immunity of Ministers,
4 December 1919
3. Indian Autonomy: Lack of Appreciation, 5 October
1920 .......
4. Indians in Kenya: Equality of Treatment, 1 August 1921
5. Indians in Kenya: Equality of Treatment, 4 August
1921 .......
6. The Indian Legislature and the Esher Committee’s
Report, 9 November 1921 .
7. The Situation in India, 9 March 1922
8. Indians in Kenya, 1 May 1923
9. The Indian Problem, 14 November 1930
10. Lord Reading and the Indian Constitution, 6 January
1931 .......
11. Responsibility in the Central Government of India,
13 January 1931 .
12. Mr. Churchill and India, 21 January 1931
13. India and the Debt Question, 5 February 1931
*57
*59
162
164
165
166
167
168
169
170
171
172
*74
1 79
180
181
182
183
184
185
187
188
189
191
*93
*94
XVI
CONTENTS
14. Lord Sankey and India, 19 March 1931
15. British Exports to India, 26 March 1931
16. The Indian Situation, xi July 1931 .
17. Lord Irwin and Dominion Status, 20 July 1931
18. Indian Liberals 5 Demands, 3 August 1931
19. The Premier and India, 8 October 1931
20. Mr. Gandhi and the Indian States, 14 October 1931
21. British Commercial Interests in India, 7 December r 931
22. British Companies in India, 27 February 1932
23. Mr. Churchill and India, 5 October 1932
24. Indian Safeguards, 10 February 1933
25. Lord Irwin on Safeguards in India, 14 March 1933 .
26. The Indian Constitution: Commercial Safeguards,
18 March 1933 .....
27. Unsatisfactory Character of Proposed Safeguards,
28 March 1933 .....
28. Safeguards in part inadequate, in part excessive,
4 June 1933 . . . ■
29. Paradoxes of the Indian Constitution, 7 April 1933 .
30. Mr. Baldwin’s Indian Policy, 13 May 1933
31. The Danger of Executive Discrimination, 26 June 1 933
32. Dominion Status for India, 4 September 1933
33. The Rule of Law in India, 21 October 1933 .
34. Indian Pensions, 26 October 1933
35. „ „ 31 October 1933
36. Administrative Discrimination, 10 November 1933 ,
37. Indian Financial Safeguards, 14 November 1933
38. Malta, Newfoundland, and India, 22 November 1933
39. The Future of India, 27 October 1934
40. The Report of the Joint Select Committee, 22 Novem¬
ber 1934 ......
41. Draft Commercial Agreement between the Govern¬
ments of the United Kingdom and of British India,
5 September 1931 .....
III. CONSTITUTIONAL LAW IN THE UNITED
KINGDOM
1 Or,
»,/ >r
197
K)<)
2(H)
Of) t
202
203
203
20f)
2 <)()
207
20(J
2 H>
o ro
4 A 1K1
4 >
ti'S
x(j
ny
2x9
221
222
223
225
226
o O '7
220
230
234
The King’s Visit to France: Ministerial Respon-
sibihty, 27 November 1918 . . . .247
CONTENTS
y c^onmcis as essential
Progress, 8 December 1919
Premier on Honours and Party Politics, 1 8 July 192 3
4. The Crown and Dissolution of Parliament, 22 January
1924 .......
5. The Responsibility of Party Leaders, 29 April 1929
6. The Political Situation, 3 June 1929
7. The Constitutional Rights of the House of Lords,
t July 1920 ......
8. House of Lords Reform, 30 June 1927
9. ,, ,, ti November 1932 .
o. ,, ,, 20 December 1933 .
Alteration of the Constitution, 9 February 1934
etlcral Constitution for the United Kingdom,
14. Scottish Self-government, 28 October 1932
Jt 1 * %J kJ
Dominions Analogy,
Contract by Workers,
W * * •
l Strike, 12 May 1926 .
247
248
249
250
252
253
254
255
256
257
258
259
261
262
263
264
265
1, Dominion Governorships: Constitutional Theory and
Practice, 14 September 1917 . . . 269
а. Dominion Governorships: Constitutional Theory and
Practice, 25 September 1917 , . . 270
3. Labour Enactments in Queensland: Constitutional
Issues, 25 May 1920 . . . . .271
4. Labour Laws in Queensland: Security of British
Investors, 29 May 1920 .... 273
5. Labour Laws in Queensland: Security of British
Investors, 5 June 1920 . 276
б. Second Chambers as a Check on Labour Legislation,
22 May 1929 ...... 277
7. New South Wales: The Attempt to abolish the Upper
House, 13 March 1926 , . . . 279
XV111
CONTENTS
8. The Constitutional Issue in New South Wales,
16 November 1926 .
9. New South Wales Politics, 3 March 1927
10. New South Wales: The Governor and his Ministers,
7J ul Y I 93 I ■ ■ ■ ' , .
11. New South Wales: The Governor and his Ministers,
9 July 1931 . . - *
12. The Governor and the Premier of New South Wales,
4 February 1932 .
13. The Financial Agreements Enforcement; Bill of the
Commonwealth, 19 February 1932 .
14. The Effect of the Act on the Premier's Position,
14 April 1932 ......
15. The Constitutional Powers of the Governor, 14 April
1932 .......
16. The Duty of the Governor to vindicate the Law,
13 May 1932 ......
17. The Propriety of the Governor’s Action, 14 May 1932
18. The King’s Ministers in Malta, 20 May 1929
19. The Validity of Laws passed by the Joint Sittings of the
Parliament of Malta, 20 February 1930
20. The Malta Commission, 13 February 1932
21. Elections in Malta, 21 May 1932
22. The Troubles in Malta, 2 November 1933
23. The Status of Newfoundland, 18 October 1924
24. Great Britain and Newfoundland, 15 December 1933
25. The Award of Honours: Hereditary Titles in the
Dominions, 28 April 1919
26. The Dominions and the Titles of the Royal Family,
31 March 1927
27. The Relation of the Commonwealth and the States as
regards Honours, 4 January 1925
28. British Policy in Ceylon, 31 July 1934
280
281
i 1
0
284,
28 ej
286
287
288
289
290
292
2 94
a 94
29b
297
m
300
30 1
302
V. INTERNATIONAL LAW AND THE CONFLICT
OF LAWS
INTERNATIONAL LAW
1. The Future of the German Colonies, 11 March 1918 . 307
CONTENTS
XIX
2. The Peace Terms of President Wilson, 30 September
* 9 l8 .
3. America and Armenia, 1 November 1919
4. Dominion Status: New Zealand and Samoa, 22 Octo¬
ber 1919
5. Secret Negotiations and Treaties, 31 January 1920 .
6. Mesopotamian Oil, 21 October 1920 .
7. The Labour Organization Glauses of the Peace
Treaty, 28 May 1921 .
8. The Treaty with Japan: Revision an Obligation,
4 July 1921 ......
9. Lord Lloyd’s Resignation, 25 July 1929
10. The Proposed Treaty with Egypt, 7 August 1929
11. The Egyptian Situation, 17 July 1930
12. The Palestine Mandate, 24 October 1930
13. The Optional Clause and Neutrality, 25 January
1930 .......
14. Persia and the Oil Concession, 6 December 1932
15. „ ,, „ 9 December 1932
16. ,, ,, ,, 14 December 1932
17. „ „ „ 20 December 1932
18. The Persian Oil Dispute, 27 December 1932 .
19. ,, ,, „ 31 December 1932 .
20. Germans in South-West Africa, 29 May 1934
21. South-West Africa and the Mandate, 5 June 1934
22. „ „ „ „ 11 June 1934 .
23. General Smuts and the Treaty of Versailles,
13 November 1934 .....
24. The Law of Nationality, 12 September 1928
25. Diplomatic Privilege, 17 July 1934
26. If Seadromes come: Problems of International Law,
20 November 1934 .....
308
309
310
311
312
313
3*5
316
3*7
318
3^9
320
321
322
323
324
325
326
328
329
330
33 1
221
333
334
THE CONFLICT OF LAWS
1. Indian Divorces, 24 February 1921 . . . 337
2. Indian and Colonial Divorces, 27 April 1926 . 337
3. Divorce Laws within the Empire, 10 August 1932 . 338
4. Indian-Scottish Marriage Case, 19 December ig28 . 339
XX
CONTENTS
VI. EPILOGUE
DOMINION STATUS IN 1935
1. Britain and the Free State, 4 January 1935
2. Western Australia and Secession, 1 February 1935
3. Dominion Fisheries and Imperial Defence, (> February
I 035 • . . • • a
4. The Government of India Bill, 25 January 1935
5. India and Dominion Status, 12 February 1933 .
6. A Dominion’s Neutrality, 20 February 1935
7. The Princes of India and Federation, 1 Man'll 1935
8. South Africa and Appeals to the Privy Council, ub Feb
ruary 1935 ......
343
344
345
347
35 °
351
INDEX
3r,3
* f v*
nrr*
.155
i. THE IMPERIAL GOVERNMENT AND THE
DOMINIONS
To the Editor of the Scotsman, 13 May 1916.
In your interesting discussion in The Scotsman of to-day of
‘The Problem of the Commonwealth’ you concede to Mr.
Fisher’s complaint of the lack of control of Dominion Govern¬
ments over Imperial policy the element of truth that ‘outside
the Committee of Imperial Defence, to which Dominion
Ministers have been invited and which they have attended,
and with whose deliberations it is believed they are in more or
less intimate touch, there is no regular channel of communica¬
tion’. May I point out that this statement of the position does
something less than justice to the efforts made by the Imperial
Governments to induce the self-governing Dominions to in¬
terest themselves in Imperial policy, and to the actual steps
taken by Canada, the Dominion par excellence, to avail herself
of the offers of the Imperial Government?
When Sir R. Borden was in England in 19x2 he arrived at an
arrangement with the Imperial Government under which a
Minister of the Dominion Government should reside in Lon¬
don for the purpose not merely of keeping in touch with the
Committee of Imperial Defence, but also of having free and
full access to the Prime Minister and the Secretaries of State
for Foreign and Colonial Affairs for information on all ques¬
tions of Imperial policy. After some delay this arrangement
was given effect to by the appointment of Sir George Perley,
who, unlike Lord Strathcona, is a member of the Dominion
Cabinet, and who has therefore served throughout the war as
an admirable means of keeping the Government of the United
Kingdom and that of the Dominion in harmony. The same
offer of welcoming a resident Minister and giving him full
information was made by Mr. Harcourt to the other self-
governing Dominions in a dispatch of the 10th December
1912; unfortunately, it has up to the present time not been
IMPERIAL RELATIONS
4
acted upon by any of these Governments, for reasons no doubt
of importance, but perhaps not conclusive*. The position of
Mr. Fisher as High Commissioner for the Commonwealth is
that not of a Minister, but of a civil servant ; it is, however,
possible that it may be the intention of the* Commonwealth
Government to utilize his services In much the same way as
has been done in Canada in the ease of Sir George IVrley.
In the whole circumstances it appears to me that, without
a complete constitutional change In the position ofthe United
Kingdom and the Dominions, for which, like yourself, I doubt
if the time is yet ripe, the Imperial Government cannot be
blamed for any failure to seek the interest ofthe self-governing
Dominions in Imperial policy generally.
2. IMPERIAL ITERATION
To the Editor of the Scotsman, zf July
At a time when questions oflmperial reorganization arc of
special interest, It may be of value to indicate some* of the
fundamental difficulties which must lx; met by any scheme of
Imperial federation. It seems sometimes to be forgotten that
a very definite scheme oflmperial federation for cltdeaiet* pur¬
poses only was proposed by Sir Joseph Ward at tin* Imperial
Conference of 1911, and that it was rejected decisively by
Mr. Asquith, Sir Wilfrid Laurier, Mr, Fisher, General Botha,
and Sir Edward Morris, and that the rejection was really 1 ntsed
on the ground that it was not necessary to secure eo-operation
for defence purposes, while it would affect the principle ofloeal
autonomy, which was the life-blood of the Empire.
It is now contended that the war has completely altered the
position, and that Imperial federation is now essential for the
maintenance ofthe Empire, and its effective action in support
of the peace ofthe world. It is clearly impossible to accept this
view in the sense that only by the creation of a Central Legis¬
lature and Government can effective arrangements be made
IMPERIAL RELATIONS 5
for combined action in war and in preparation for war; the
history of the past ten years has shown that the Dominions are
prepared to take such measures for organization as are re¬
quired from time to time, and the actual events of the war have
shown their readiness and ability to help. The argument,
therefore, must rest on the view that no Dominion can in the
long run be content with less than nationhood, and that, there¬
fore, it must either obtain through federation a share in the
control of foreign policy or by claiming independence attain
full development. The first part of this argument is as true as
it is trite, but the conclusion drawn has no cogency, since time
is an essential element in all political affairs, and it may well
be that for the present the Dominions are too weak to set up
as independent Powers, and too inferior in population and
resources to the United Kingdom to render it desirable for
them to enter into a federal relation, and that, therefore, the
proper course is for the development of some system of con¬
sultation and discussion on foreign affairs and defence, such
as has since 1912 been in effective and successful operation
between the United Kingdom and Canada.
If, with the usual disregard of theorists for practical con¬
siderations, we seek to bring about a full measure of federation,
it is well to consider what the results would be. The United
Kingdom would have to allow its fiscal policy to be deter¬
mined, it may be, by the votes of Dominion representatives,
and to surrender its exclusive ultimate control of foreign
policy. These sacrifices would, however, be greatly mitigated
by the fact that for a considerable period it would possess an
overwhelming majority of the votes in the Federal Parliament.
The Dominions, however, would have to surrender much of
their Customs revenue, to find new sources to replace the loss,
to contribute in much larger measure to Imperial expenditure,
and, what is most of all, to abandon the protection of their
industries against the manufacturers of the United Kingdom.
This consideration alone disposes of the idea that such a form
of federation is ever possible, and the ‘Round Table 9 group
6
IMPERIAL RELATIONS
expressly reject as utterly impossible any such conception of
federal union; but this action, which brings them into tin;
position of Sir J. Ward, though they hardly admit their obliga¬
tion, leaves still most serious difficulties to be met.
On this conception a Federal Parliament and Covernment
would deal with foreign affairs and defence. It would decide
the expenditure on these subjects which would have to be met
by the different parts of the Empire, the basis of contribution
being decided on grounds of population, wea 11 h, an d a ny o (her
relevant considerations, by a Commission, and readjusted
from time to time, and coercive power to exact tlx- contribu¬
tions being accorded to the Imperial Covernment and Par¬
liament. It is obvious that there would thus be created the
same defect as was pointed out by Sir W. Lauricr as fatal to
Sir J. Ward’s scheme—the rate of expenditure would be fixed
by a body which would have no real responsibility for raising
the money. The defect is also one which cannot bo removed,
since the power of taxation is one which can be used vitally to
affect internal matters in a country (e.g. Custom and Excise
duties, land taxation, &c.), and the scheme aims at preserving
local autonomy, save for foreign affairs and defence. Secondly,
control of military and naval affairs would mean that, the
Imperial Parliament could, c.g., enact compulsory service for
Canada (though both political leaders then; repudiate it, and
Quebec would not have it at any price), merge the Australian
fleet in the British, compel Canada to abandon any idea, of
ever having a fleet of her own, and make foreign service; com¬
pulsory on the Dutch in South Africa. It may be hoped that a
Federal Parliament would do none of these things, but a body
which had ex hypothesi nothing else to do would certainly lx;
active, and the controversy over Home Rule in this country
shows how vain it is to expect moderation in Parliaments. 11
follows, therefore, that no Dominion is in the slightest degree
likely to consider for a moment such a proposal of (federation,
while if per impossibile it were brought about in a fit of enthu¬
siasm, it would in a very short time result in the disintegration
IMPERIAL RELATIONS
7
of the Empire. Many other objections present themselves; a
foreign policy for the federation which had no control of tariffs
or immigration—matters reserved as essential to local auto¬
nomy to the Dominions—would find itself helpless, and quasi-
diplomatic relations between the members of the federation
and foreign Powers would take its place. Again, the proposal
to place India under the federation ignores entirely the fact
that national feeling in India would repudiate the idea that
the Dominions, from which Indians are rigidly excluded, and
in some of which resident Indians are unfairly treated, should
have any voice in their government, while both in the case of
foreign affairs and in the matter of the government of depen¬
dencies it would be deplorable to place power in the hands of
a Parliament which from lack of any other work to do would
insist on interference in detail.
It is doubtless a sense of the grave difficulties of any form of
federal union which has prevented practical statesmen, how¬
ever favourable to closer relations, such as Sir R. Borden and
Mr. Hughes, from coming forward as champions of federation.
Sir W. Lauricr still maintains, as do the majority of his great
party in Canada and the most of Quebec, his preference for
isolation, and the same opinion is notoriously held by General
Botha.
3. FEDERAL PROPAGANDA AND THE
REFERENDUM IN AUSTRALIA
To the Editor of the Scotsman, x November xgx6 .
In your leader on the question of the referendum in Australia
in your issue of to-day the opinion is expressed that Mr. Hughes
could probably have carried a compulsory measure through
the Legislature, as has been done in New Zealand, without
troubling to take the individual opinion of the electors. I ven¬
ture, however, to think that this view is based on a misappre¬
hension of the actual position and of the motives which affected
Mr. Hughes’s action.
8
IMPERIAL RELATIONS
When Mr. Hughes left Australia on his visit lo the United
Kingdom, he was in the position of having pledged his party
to the view that conscription should not be resorted to. On
his return, when he announced his change of policy, he found
that the majority ofhis supporters were not ready for the action
required. He could indeed leave carried a Hill for conscription
through the House of Representatives, but only by the help
of the Opposition, which was practically solid in support of
conscription, and by using the votes of the minority ofhis own
party. In the Senate, as a result of the unhappy mode of
election, which eliminates minorities, Labour has a majority
of five to one, and it is not, I believe, doubted that it would
have been impossible for Mr. Hughes to have carried any Bill
for conscription through that House. He derided, therefore,
to adopt the referendum, which is of course popular with his
own party, as a means of securing, in the event of success,
sufficient popular pressure to induce the Senate to accept the
measure. For this purpose an effective victory in the referen¬
dum was obviously necessary, and this he has failed to secure.
But it should injustice to Mr. Hughes be recognized that no
alternative policy was really open to him.
Among the causes of Mr. Hughes’s failure to convince the
Labour party of the necessity of compulsion, importance
attaches to a consideration which is not; mentioned in your
leader. The Labour party in the Commonwealth is intensely
suspicious of any appearance of interference from without, and
the somewhat exaggerated honours bestowed on Mr. Hughes
during his stay in this country, while regarded here as no more
than a graceful recognition of the services rendered by Austra¬
lia to the Empire, were interpreted by Labour as indicating
that Mr. Hughes had been captured by the spirit of British
Imperialism, and that whatever he proposed was suspect. The
feeling now manifested to Mr, cjs is ;rr*l^y^ t ri^ 1
cence of the spirit with which Sir E. Barton was greeted when
he asked the Commonwealth Parliament to make good the
naval defence undertakings assumed by him on behalf of the
IMPERIAL RELATIONS
9
Commonwealth at the Colonial Conference of 1902, and its
importance lies in the fact that it forms an insuperable barrier
to the establishment in the near future of any form oflmperial
federation. It is significant that in New Zealand, where com¬
pulsion has been adopted, and in that Dominion only, is there
any real feeling for the consummation of a closer constitutional
union between the different parts of the Empire, and that not
only Sir Wilfrid Laurier in Canada, but also General Botha
in South Africa have laid emphasis on their total opposition
to any scheme for Imperial federation.
4. MR. HUGHES AND PREFERENCE
To the Editor of the times, 3 August igi8>
While it may be felt that the Radical Council take too
seriously the excursion of Mr. W. M. Hughes into British
politics, it is not desirable to dismiss as lightly as most sup¬
porters of the policy of protection and preference are disposed
to do, the constitutional aspect of the problem. The interest
of Australia in the tariff policy of the United Kingdom is
secondary and derivative; that of the people of these islands
primary and immediate, and both political parties in Canada
have emphatically approved the doctrine, so clearly laid down
by Sir Robert Borden, that the question of that policy is one
which must be decided by the people of the United Kingdom
without pressure from the Dominion. Mr. Hughes’s action
therefore stands condemned by Sir Robert Borden, no less
than by the Radical Council, and his only reply is that, if he
were a Bolshevist, he would be at liberty to urge his policy on
the United Kingdom. This apologia completely ignores the
fact of Mr. Hughes’s official position, which carries with it
obligations as well as privileges. Prima facie Mr. Hughes
speaks for the Commonwealth of Australia; the attention
which his utterances command is largely based on his repre¬
sentative position, and his action constitutionally amounts to
io IMPERIAL RELATIONS
an effort by the Commonwealth Government to intervene in
a matter primarily of British domestic policy.
A simple parallel will show the impropriety of action of this
nature. It cannot be denied that the failure of Australia to
enact conscription has added gravely to the burden ofmililary
service in this country, and that the interest of the l Initial
Kingdom in the adoption of conscription is at least as great as
that of Australia in the grant of preference. Yet, if a member
of the British Government proceeded to Australia and ad¬
dressed public meetings in support of conscription, his action
would be denounced as unconstitutional by every section of
opinion in the country, and certainly not least so by those
upon whose political support Mr. Hughes now rests. We
in this country arc less sensitive to breaches of the rules of
constitutional propriety, but they arc none the less to be
deprecated. The recognition of the full autonomy of the
Dominions and of their position as equal members of the
Empire demands, as Canada readily admits, similar recogni¬
tion of the autonomy of the United Kingdom. To produce
such measure of harmony as may be possible between the
action ofthesc autonomous units is the function of the Imperial
Conference at which the Governments of the Empire take
counsel together, and the sharp opposition between Mr.
Hughes and Sir R. Borden which has already emerged is
sufficient indication of the confusion and bitterness which will
arise if Dominion Governments seek to carry on electioneering
campaigns in favour of any political parly in the United
Kingdom.
5. IMPERIAL UNITY
To the Editor of the Scotsman, 19 ujtS.
May I point out that the measures to secure continuity of
consultationbetween the United Kingdom and tin; Dominions*
1 See Keith, War Government of the British Dominions, p. ;jz.
IMPERIAL RELATIONS
11
announced in your issue of to-day are not only valuable in
themselves, but have the great merit of making effective, in a
form adapted to war conditions, the proposals of Mr. Asquith's
Government which were communicated to the Dominion
Governments by Mr. Harcourt on December io, 1912? The
essential feature of these proposals, 1 which were matured after
consultation with Sir Robert Borden, was that the Dominions
should each be represented in London by a Minister, who
would have direct access to the British Prime Minister and the
Secretaries of State on all matters of Imperial policy, and be
invited to take part in the proceedings of the Committee of
Imperial Defence on all occasions when matters interesting
the Dominions were under discussion. It was, however, added
that if any other mode of securing the object desired, effec¬
tive consultation, were preferred by any Dominion, the Im¬
perial Government would be glad to accept it. Unfortunately,
even in 1912, the dislike of the Dominions to be involved in
any way in Imperial affairs was too strong to permit of any
Dominion except Canada aedng on the suggestion, and it
is no small thing that the lessons of the war have enabled
the Dominions Prime Ministers to accept the principle with¬
out reserve.
The changes in the new proposals arc practically only of
form. The suggestion of direct communication between Prime
Ministers will, it may be hoped, not be interpreted in the sense
that the Resident Minister is to be ignored, or his utility will be
almost entirely lost, since the essence of his appointment is to
create a ministerial link between the Governments. The Im¬
perial War Cabinet necessarily takes the place of the Com¬
mittee of Imperial Defence, and there is thus a change to a
body which takes decisions from one with advisory functions.
The difference is, however, one of form rather than of sub¬
stance; before the war the composition of the Committee of
Imperial Defence was such that its advice was practically
certain to be accepted by the Cabinet and in the Imperial War
1 See Keith, Imperial Unity, pp. 322-6, and No. 1, ante*
*
12
IMPERIAL RELATION'S
Cabinet itself, in case of disagreement, it is inevitable that the
decision should lie in the last resort with the British Prime
Minister.
6. THE DOMINIONS AND THE PEACE
CONFERENCE
To the Editor of the times, 13 November hji 8.
It is deeply to be regretted that the Prime Minister of the
Commonwealth should have ground to complain that the.
principles of the terms of peace should have: been decided upon
without consultation with the Dominion Governments. 1 The
defence of the action of the Imperial Government in this
matter given by you on Friday diminishes greatly the effect
of Mr. Hughes’s representations, but it leaves unsolved a
difficulty which immediately presents itself on reference to
Mr. Lloyd George’s statement regarding the proceedings
of the Versailles Conference in the House of Commons on
November 5. The Conference was attended, among others,
by representatives of Greece and Portugal, hut not by any
representatives of the Dominions. The interest; of Australia
in the war is as great as that of any of the minor Powers, and
every consideration of expediency and prudence demanded
that Mr. Hughes should have been asked to accompany the
British Ministers to Versailles, where he could have learned, in
communication with the representatives of the Allied Powers,
the cogent reasons which rendered it desirable to abandon the
natural demand for an indemnity for the costs of the war, and
which justified the failure to state expressly that the Allies
interpret Mr. Wilson’s terms as rendering impossible the ret urn
to Germany of her colonies.
The Dominions are to be represented at the Peace Con¬
ference, but it is not stated in what manner this representation
is to be accorded. Are their representatives to be members
of the British delegation simpliciter, or arc they to be granted
separate powers to represent His Majesty in respect of each
See Keith, War Government of the British Dominions , pp, 14,6-50.
IMPERIAL RELATIONS
13
of the Dominions? The question is not a merely formal one;
it involves constitutional considerations of the utmost impor¬
tance, 1 and it will be of the highest interest to learn which
position is desired by the Governments of the Dominions.
7. THE AIR CONVENTION: REPRESENTATION
OF THE BRITISH EMPIRE
To the Editor of the times 20 September igig.
Scarcely enough attention appears to have been directed
to the remarkable provisions of the Convention relating to
International Air Navigation regarding the position of Great
Britain, the Dominions, and India. While the Covenant of
the League of Nations frankly recognizes the right of the
Dominions and India to the status of European Powers, such
as Belgium, the Air Navigation Convention makes a serious
inroad on this doctrine in a manner affecting markedly the
position of the United Kingdom itself. On the International
Commission for Air Navigation, to which under the Con¬
vention many important duties arc entrusted, the British
Empire as a whole is to have only the same voting power as
the United States, France, Italy, and Japan, thus departing
entirely from the principle adopted in the League Covenant.
Moreover, the Convention leaves it utterly obscure whether or
not the total British vote must be cast as a unit, and, if so, in
what manner it is to be determined. The representation on
the Commission, as distinct from voting power, is allocated on
the basis of two members to each of the other four Great
Powers, and one member to the United Kingdom, to each
of the Dominions, and to India. If the votes of the Empire
arc to be determined by the majority of the representatives, the
United Kingdom will plainly be deprived of its just influence;
if by the United Kingdom, the Dominions and India lose
their separate status.
1 Separate representation was urged by me in 1916 in the Canadian Law
Times, xxxvi. 856.
14 IMPERIAL RELATIONS
The arrangement adopted in the Convention is doubtless
a timid effort at compromise to avoid international jealousies
such as have manifested themselves in the United Slates over
the voting power of the British Empire. But surely the time
is past when timidity in regard to these issues was appropriate?
The United Kingdom, the Dominions, and India, alike ought:
not to yield for a moment the position justly claimed and con¬
ceded by the Powers which signed the Covenant of tin-1 .eague
of Nations. 1
8 . DOMINION STATUS: NEGOTIATION OK
TREATIES
To the Editor of the times, is July igig.
Viscount Milner’s emphatic and admirable assertion of (he
necessity of the recognition of the complete equality of status
between the United Kingdom and the Dominions, in its appli¬
cation to the sphere of trade relations, renders it desira ble to
draw attention to a difficulty which immediately arises from
the recognition in the proceedings and actions of (he Peace
Conference of the international status of the Dominions. In
the past, when at international law the Dominions wore not
recognized as possessing any personality of their own, it was
possible with success to argue that preferential arrangements
between the Dominions and the United Kingdom did not.
conflict in any measure with most-favoured-nation clauses in
treaties and did not confer on any nation possessing such a
treaty the right to the preference accorded. Under the new
regime, however, when the Dominions have an international
status of their own, and when their relation to the United
Kingdom is that of alliance and not dependency , can the old
contention be maintained? Will it not be expedient, even if
not absolutely essential, that in concluding any future treaty
j^ h :r ation w f!i notr< ; cti ^ ed ^ M ay i 7 , i !)33 , w i„. n :i „,i KiV j 11K
^ach State represented on the Commission one vote was ratified ((!md. 44113,
IMPERIAL RELATIONS
15
containing a most-favoured-nation clause the United King¬
dom and the Dominions should make it clear that the clause
is not to be deemed to come into operation in respect of any
inter-imperial preference ? Unless this is done, I do not see
how foreign Powers could be denied the right to argue that,
as they had conceded the international status of the Domi¬
nions, they were entitled to the advantages flowing from such
a concession. 1
A further consideration is suggested by Lord Milner’s refer¬
ence to the independent representation of the Dominions at
international conferences. At the Peace Conference the Domi¬
nion representatives acted for the Dominions in virtue of full
powers granted by His Majesty, a procedure for which prece¬
dents had been made prior to the war in the case of the inter¬
national conferences on radio-telegraphy and safety of life at
sea. These full powers were necessarily granted by His Majesty
on the responsibility of the Secretary of State for Foreign
Affairs, that is, ultimately on the advice of the Government of
the United Kingdom, acting, of course, in accordance with
the wishes of the Dominion Governments. Is it proposed now
to depart from these precedents, and to adopt the practice by
which the Governors-General of the Dominions should grant
full powers to representatives of the Dominions, as has from
time to time been suggested? Would any such procedure not
inevitably lead to an emphasis of the distinctness of the parts
of the Empire which might render formal separation inevit¬
able? On the other hand, the Dominion Governments cannot
be expected to admit, as in the past, the right of the Govern¬
ment of the United Kingdom to control their power of negotia¬
tion, but this difficulty might be evaded by the adoption of the
constitutional convention that the issue of full powers to
Dominion representatives on the request of their Governments
should be incumbent on the Secretary of State for Foreign
Affairs as a ministerial function, excluding any exercise of dis¬
cretion on the part of the Government of the United Kingdom.
J Sec No. 77 f post.
16 IMPERIAL RELATIONS
9. THE TERRITORIAL AMBIT OF
DOMINION LEGISLATION
To the Editor of the times, 2 March 1920.
Exceptional importance attaches to the proposal of the
Canadian Government to obtain an amendment of the British
North America Act, in order to authorize the Dominion Par¬
liament to enact laws to take extra-territorial effect to the same
extent as laws can be enacted by the Parliament of the United
Kingdom. The proposal is the first formal step to carry out the
principle of the equality of status of the Dominions with the
United Kingdom, enunciated at the Imperial War Conference
of 1917. The limitation of the operation of Dominion legisla¬
tion to territorial limits arises directly from tl 10 (lolonial status
which the Dominions have now outgrown, and the necessity
of the removal of the restriction became obvious more, than a
decade ago, when Canada proposed to create a naval force of
her own, since it was clear that the Dominion Parliament had
no adequate power to regulate a force destined to operate
outside the territorial limits of Canada.
An obvious difficulty, however, arises from the form in
which the Canadian proposal is couched. If Canada obtains
the same right of extra-territorial legislation as is possessed
by the United Kingdom, cases may arise to which both a
Canadian and a British law may be applicable. As matters
at present stand, the Canadian law, if divergent: from the,
British, would be void in so far as it was repugnant to it, but
the whole doctrine of invalidity on the ground of repugnancy
is, like the doctrine of the British power of disallowance of
Canadian legislation, in contradiction with the Dominion’s
claim to autonomy, and must in due course be formally re¬
pealed. 1 Conflict between British and Canadian jurisdiction
will then fall to be dealt with on the basis that each Legislature
will confine the extra-territorial operation of its legislation to
those British subjects over whom it normally exercises control,
1 Effected by the Statute of Westminster, 1931, s. a.
«
IMPERIAL RELATIONS I7
so that Canada will legislate for Canadian British subjects
when outside Canada. Though, there are dhlieultles in this
mode of procedure, they are not insuperable, 1 Canada has
already In her immigration legislation had to determine what
constitutes Canadian citizenship, and the Dominion cannot
be expected to forgo any of the powers which are justly her
own in virtue of the international status which she has achieved
as a member of the League of Nations.
xo. THE DOMINIONS AND THE LEAGUE
To the Editor of the times, 26 April rgso.
The Duke of Devonshire has reiterated the determination
of Canada to remain part and parcel of the British Empire
while enjoying full national status. How these conflicting
aspirations arc to be realized should have formed the subject;
of an Imperial Conference, but we know now that there is no
possibility of the holding of a Conference this year, and, as
Sir James Allen’s statement reported in your issue of April zz
proves, steps in the reorganization of Imperial, relations are
already being taken which will largely predetermine the
decisions of the Conference. It is impossible not to regret
such a result; the relations of the Dominions and the United
Kingdom arc matters to be determined in hill publicity, for
the changes which arc now being carried out are, however
inevitable and desirable, revolutionary in character.
There can hardly be any doubt as to the answer which the
greater Dominions must return to the question of the mode of
conducting their relations with the League of' Nations. To
consent to forward their representations through the Govern¬
ment of the United Kingdom, as New Zealand may be willing
to do, would be a negation of their true national status, and
the Canadian reception of Viscount Grey’s suggestion regard-
1 Unfortunately the Statute of Westminster, mim s. 3> merely gives general
power, leaving conflict possible; see Keith, Constitutional Low of th 4 ' Hrithh
Dominions, pp. 32-4, auCr 30.
0
l8 IMPERIAL RELATIONS
Ing voting power within the League is clear proofhow deeply
felt is the necessity of insisting on the new position of the
Dominion—a view which is further embodied in the decision
of the Government at Ottawa to secure Canadian diplomatic
representation at Washington, The establishment of a. Secre¬
tariat in London to co-ordinate representations from the
Dominions to the League is incompatible with anything; short
of a federal constitution, which is out of the question. There
remains only, therefore, the plan of consultation among all
the members of the League within the Empire before repre¬
sentations to that body arc made, and it should be easy to
secure agreement in the principle that neither the United
Kingdom nor any Dominion should address any communica¬
tion to the League save after consultation with the other parts
of the Empire. 1 The adoption of this mode of procedure would
diminish, even if it would not eliminate, the possibility of acute
divergence of views between the various Governments, and
no Dominion could object to acting on a principle which was
applied equally to the United Kingdom. On the other band,
any proposal which might seem to maintain any superiority
of the United Kingdom to the Dominions would, t feel con¬
vinced, increase rather than diminish the risk which Sir James
Allen properly emphasizes, of the formal separation of the
Dominions from the United Kingdom—a step which would
be in the ultimate interest of neither party.
ii. IRELAND AND THE EMPIRE
To the Editor of the Scotsman, 23 July 1920*
It is surely impossible to anticipate any substantial improve¬
ment in Irish affairs as a result of the new measures annou need
by the Chief Secretary in the House of Commons yesterday.
It must be remembered that not only is the great majority of
the Irish outside Ulster in open opposition to the Government,
but that in all political parties in the United Kingdom there
1 This procedure has not yet been adopted.
IMPERIAL RELATIONS
I 9
are many who hold that after championing the doctrine of
self-determination against the central Powers the United
Kingdom cannot refuse to consider how far it can be applied
to the British Empire. Measures of repression sufficiently
vehement to suppress even for a time the Sinn Fein movement
could not possibly be carried out in view of the attitude of
British Labour.
Order will be restored only when the majority of Irish people
outside Ulster is convinced that their desires for self-deter¬
mination have been sufficiently met. The present Government
of Ireland Bill is obviously useless for this purpose; pursuing
the vain ideal of an undivided Ireland, it creates a Council
with illusory functions and an Ulster Parliament, which is
neither desired by Ulster nor in itself advantageous, and denies
to the Parliament for the rest of Ireland essential powers of
taxation. Nor can any success be expected from the Prime
Minister’s suggestion of private negotiations, for Sinn Fein has
nothing to gain from debate with the Government. What is
required is the passage through Parliament without further
delay of an Act representing the utmost concessions which can
be made to Ireland in the hope that thus the Republican
movement may be defeated.
Such an Act should grant to Ireland, excluding the six
Ulster counties which should remain under the present control
of the Imperial Parliament, the measure of sclf-government
which was possessed by the Dominions before the war. The
present position of the Dominions (other than Newfoundland)
is practically that of independent powers, possessing an inter¬
national status which the people of the United Kingdom are
not prepared to concede to Ireland. Under the Constitution
which would be granted, Ireland would have complete control
ofher taxation, including her tariff, and be entitled to the good
offices of the United Kingdom in concluding commercial
treaties applicable to Ireland, subject, however, to the rule
that any terms given to a foreign Power were conceded auto¬
matically to the United Kingdom. She would be entitled to
20
IMPERIAL RELATION'S
maintain military forces for protection against external attack,
and would make only voluntary contribution to the genera!
cost of Imperial defence. The advantages of such a position
might well be judged by the bulk of the Irish people to out-
weigh a republican status, especially if the latter can be at¬
tained only by war, while the loss of a fixed Irish contribution
to Imperial expenses would be a small price to pay for the
restoration of peace in Ireland.
It is of course possible that, even if such an Act were passed,
the Irish might refuse to work it, either because there was no
coercion of Ulster, which would be loll free to unite, later with
the rest of Ireland, or because the republican status was not;
conceded. But it can hardly be doubted that in this event the
Government of the United Kingdom would be in a more
effective position to enforce its authority in Ireland, since it
would command far more united and loyal support in England
and Scotland alike.
12. IRISH SETTLEMENT ON THE BASIS OK
DOMINION STATUS
To the Editor of the times, x8 August x<)s>o.
The Prime Minister’s policy of repression in Ireland,
coupled with an offer to negotiate which, obviously will not
be accepted, is conclusive evidence of the bankruptcy of his
statesmanship on this vital issue. It is obviously the duty of
the Government to produce and to pass through Parliament
on their own authority a measure embodying the utmost limit
of concession to Ireland consistent with the safely of the United
Kingdom and the due protection of minorities. That the
people of Ireland would refuse to work a constitution of this
kind cannot be predicted with any certainty; if they did, the
Government would be morally in a position to enforce its
authority.
Is there any really valid reason for refusing to give to Ireland
(excluding of course north-cast Ulster) the status possessed
IMPERIAL RELATIONS
21
by the self-governing Dominions prior to the war? The
Dominions have, of course, attained, as members of the
League of Nations and for other reasons, since then a position
of practical independence which the people of this country
are not prepared to concede to Ireland. This would involve
the cessation of any save a voluntary contribution to Imperial
expenditure, and the grant of full fiscal autonomy subject
to the rule that no foreign Power received better terms than
the Empire. The Imperial Government would be bound to
negotiate, if desired, commercial treaties for Ireland, but Ire¬
land would have no diplomatic status and no foreign policy
of her own. If Ireland desired to possess naval forces, she
would have to arrange the matter with the Admiralty, and to
agree that her ships would on the outbreak of war come under
immediate Admiralty control. She could raise military forces,
but neither in peace or wartime could she close her harbours
to British ships.
Have the Prime Minister and his colleagues forgotten the
effect of the grant of self-government to the Transvaal?
Generosity may, repression certainly will, fail to restore peace.
13. SOUTH AFRICA AND IRELAND AND THE
EMPIRE
To the Editor of the Scotsman, 7 December 1920.
The interpretation in your issue of to-day of Mr. Asquith’s
proposal to grant Dominion Home Rule to Ireland in the light
of General Smuts’s programme for the future of the Dominions
seems to me to rest on a misunderstanding of Mr. Asquith’s
position. That statesman has now made it perfectly clear that
what he contemplates for Ireland is the position occupied by
the Dominions during his tenure of office as Prime Minister,
which alone, it may be added, can with any propriety be
styled Dominion Home Rule. The basis of General Smuts’s
position is the concession to the Dominions of an international
status as members of the League of Nations, and his ideal is
22
IMPERIAL RELATIONS
not Home Rule as hitherto, but; Dominion independence
within the British Commonwealth and the League of Nations.
Mr. Asquith has, I believe, been careful to avoid the sugges¬
tion that Ireland should be admitted a member ofthe I ,eague.
Apart from this issue, it may be hoped that your leader will
induce a fuller realization ofthe extraordinary extent to which
the war has loosened the effective ties between the United
Kingdom and the Dominions. The Constitutional C lonforcnce
of 1921, which was to have found some means for closer con¬
sultation on matters of Imperial concern, has been abandoned,
and there is no sign that any really satisfactory system has
been devised to secure that, despite the new status of the
Dominions, there shall be a single foreign policy for the whole
of the Empire.
14. IMPERIAL RELATIONS
To the Editor of the times, 25 April
The essential facts regarding Imperial relations to-day are
the recognition at the Peace Conference ofthe international
status ofthe Dominions, and the absence of any agreement as
to the method in which this recognition is to be made effective
in practice. The process of development of Imperial relations
was inevitably accelerated in an unprecedented manner by
the formation of the League of Nations. The !)< miinions were
thus compelled at a much earlier date than had been antici¬
pated to assume a status for which they were nol fully pre¬
pared, a fact which Mr. Fielding has emphasized mure than
once in the Canadian House of Commons. This lack of pre¬
paration is evinced most conclusively by the unwillingness of
the House of Commons and of die Dominions, even including
Australia, to face the burden of a just share in the cost ofnaval
defence; years, it must be admitted, will elapse before the
United Kingdom can expect any serious aid in this regard,
save possibly from the Commonwealth.' General Smuts,
, ° '^35 onl X Australia and New Zealand had assumed any serious
s are in the burden of naval defence, and in ail cases prelection is st ill essentially
IMPERIAL RELATIONS 23
despite his wholehearted doctrine of autonomy, has admitted
his misgivings regarding the part which the Union can play
as regards naval defence.
Imperial relations, therefore, are now in a transitional state,
which may be of considerable duration, and the immediate
problem for the Imperial Conference (Cabinet is a misnomer
which merely excites misgivings in the Dominions) meeting
in June is to seek to devise some reasonably effective way of co¬
ordinating Imperial foreign policy. The Empire at least ought
to be united on the issue of reparations, and Dominion states¬
men must realize that an international status implies that
foreign policy must now occupy their serious attention from
a broader point of view than mere Dominion interests. But
the process will be gradual, for it must be one of spontaneous
evolution in the public feeling of the Dominions themselves.
15, THE IMPERIAL CABINET: A MISNOMER
To the Editor of the times, 27 April 1921.
With reference to your leading article of to-day, may I
explain briefly why the term Imperial Cabinet still seems to
me a misnomer, likely to prove a stumbling-block to the
development of Imperial co-operation? In the Dominions as
in the United Kingdom the term c Cabinet’ carries with it, as
a result of constant usage, the suggestion of a body of Ministers
who (1) owe a common responsibility to a single Legislature;
(2) are united by loyalty to a Prime Minister; and (3) arc wont
to decide policy by majority votes, the minority being bound
to accept and faithfully execute majority decisions.
None ofthese criteria apply to the Imperial Cabinet. 1 There
is no Imperial Legislature to which it could be responsible. The
British Prime Minister may preside, but only, as Sir R. Borden
insists, as primus inter pares . But, what is still more important,
it cannot take a majority decision. When you write e it will
provided by the British fleet. In 1934 the Union of South Africa decided to
confine its efforts to coastal defence works as opposed to a naval force.
1 The term was dropped from this time onwards; cf. Keith, War Government
of the British Dominions , pp, 33-5.
IMPERIAL RELATIONS
24
make decisions on matters affecting the common interests of
the British group of nations’, you do not, 1 am sure, mean that
a Dominion Minister is bound to accept a majority vote of the
Cabinet to the extent of asking his Parliament to carry out, any
policy so decided upon. When such a doctrine was attributed,
doubtless in error, to Lord Milner, General Smuts immediately
repudiated it. If a Dominion Premier dissents from a, line of
policy proposed by the majority of the Imperial (labinet, the
decision of the majority is null as regards his Dominion. Even,
however, if he accepts it, he is under no obligation of any sort
to resign office if his colleagues or his Parliament will not
honour his acceptance.
The essence of the work to be done is consultation with a
view to secure by agreement co-operation, not tire taking of
decisions in the sense which is normally attached to Cabinet
deliberations. Now this is precisely the work done by tire
Imperial Conference of 1911, and ‘Conferenexf is therefore in
my opinion the only appropriate term for the meeting of this
year. You object that the Imperial Conference only met at
distant intervals and passed resolutions, and that its advice
was seldom taken. The Imperial Cabinet has not met for two
years; it cannot, as I have shown, take binding decisions; and
it is unduly pessimistic to hold that the advice of the imperial
Conference was seldom taken. The only 11 a,grant instance of
refusal to act on a Conference resolution known to me is that
of His Majesty’s Government in failing to honour the pledge
regarding the admission of Canadian cattle given at the
Imperial War Conference of 1917. 1
16. THE DISARMAMENT CONFKRKNGLi:
DOMINION REPRESENTATION
To the Editor of the times, 14 July
The President’s action in refraining from extending any
separate invitation to the Dominions to be represented at the
Disarmament Conference is a necessary deduction from the
1 The pledge was honoured in 19*4 a.
IMPERIAL RELATIONS
25
refusal of his party to accept the separate voting power allotted
to the Dominions in the League of Nations. The same con¬
sideration has prevented the appointment of an independent
Canadian representative at Washington and necessitated the
compromise which has not yet been carried into effect.
For practical purposes the difficulty can be surmounted by
the inclusion of Dominion representatives in the British dele¬
gation, but the episode is of fundamental importance as a
reminder that, as far as concerns the United States, the
Dominions have not attained the international status which
must be recognized as theirs by all the Powers which ratified
the treaty of peace with Germany. The inchoate recognition
conferred by the negotiations of President Wilson was obliter¬
ated by the refusal of the Senate to approve his action, and
it must be recognized that the status of the Dominions is still
imperfect, so long as it is not recognized by the greatest of the
world Powers. 1
17. DOMINION APPEALS
To the Editor of the times, sg November 1Q21 .
Lord Cave’s reply in your issue of to-day to Mr. J. S. Ewart’s
criticism of his views on appeals to the Privy Council is doubt¬
less justified in so far as it insists that the balance of legal
opinion in Canada still upholds the value of the appeal, though
obviously lawyers cannot be quite disinterested in such a
matter. On the other hand, Lord Cave is clearly in error in
endeavouring to dispose of the evidence against the appeal
contained in the utterances of Mr. Hughes, Mr. Rowell, and
Sir R. Borden by suggesting that Mr. Ewart’s quotations are
misleading if severed from their context. Read with their
context, they entirely bear out the view of Mr. Ewart; they
intimate clearly that public opinion in the Dominions is
1 Recognition was fully accorded in 1924 when an Irish Minister was received
on a footing of equality with the British Ambassador, and the proposal that the
Canadian representative should act for the Ambassador in his absence was
dropped. See Keith, Responsible Government (ed. 2), ii. 894, 895, 1252, 1253.
20 imperial relations
steadily adopting the doctrine that the carrying of appeals to
the Judicial Committee is derogatory to the national status of
the Dominions. 1 Nor, of course, can this view he successfully
disputed. The appeal is a relic of Imperial supremacy and of
a time when colonial Courts might have; perpetrated grave
injustice, had they not been subjected to effective control.
Under the Constitution of the Union of South Africa appeals
have de facto practically ceased to 1)0 allowed, and t here is some¬
thing frankly incongruous thatappeals should come more, freely
from courts certainly not inferior in status to those < >f the l In ion.
The action of the Legislature of Quebec.* cannot, I fear, he
defended on the grounds adduced by Lord Cave, who perhaps
has not had occasion to study the altitude- of the Provincial
Legislature to the Judicial Committee-. The. fact that the
Legislature has not attempted to extinguish the appeal has a
simple explanation: owing to the Imperial Act of tH.p). no
legislature in Canada has the power to prevent appeals being
brought to the Committee. 3
The only hope for the preservation of the appeal lies in the
expedient, suggested first in 1900 and revived with his wonted
energy by Mr. Hughes, that the Judicial Committee and the.
House of Lords should be merged in a single. Imperial Court
of Appeal. The project has practical diOiculties: it is regarded
with little favour in legal circles in the United Kingdom, and
there is only too much reason to fear that the chance of creating
a lasting expression of Imperial unity is now being permitted
to pass away for good.
18. DOMINION STATUS IN IRELAND
To the Editor of the Scotsman, 28 November i<)2i.
Political memories arc notoriously short, but it is hardly
credible that Lord Birkenhead should have forgotten so abso¬
lutely the famous definition of Dominion Home Rule given
1 Keith, War Government of the British Dominions, pp. 285 8,
2 Keith, Imperial Unity , pp. 375-8.
3 This statement was proved correct by Nadan v. It, A.C. 48'j,
IMPERIAL RELATIONS
A M
27
by Mr. Bonar Law, when Leader of the House of Commons,
on March 30,1920. The Lord Chancellor, as reported in your
issue of to-day, states that, ‘with these exceptions (namely,
tariff questions and naval arrangements), wc have oilered to
the population of Ireland exactly the same powers as are
exercised by the citizens of Canada 5 .
Now what in the view of Mr. Bonar Law is the effect of
Dominion Home Rule? Replying to Mr. Asquith in the dis¬
cussion of the Government of Ireland Bill he said: ‘But it goes
much further than that. To say that he is in favour of Domi¬
nion Home Rule means something much more. There is not
a man in this House, and least of all my right hon, friend, who
would not admit that the connexion of the Dominions with
the Empire depends upon themselves. If the self-governing
Dominions, Australia, Canada, choose to-morrow to say, “We
will no longer make a part of the British Empire 55 , we would
not try to force them. Dominion Home Rule means the right
to decide their own destinies. 5
None of Mr. Bonar Law's colleagues in either House contra¬
dicted his views at the time, and his opinion must accordingly
be regarded as the official announcement, not merely of one,
but of both wings of the Coalition. If, therefore, Lord Birken¬
head’s statement is true, even if Sinn Fein accepted at; present
Dominion Home Rule, and Northern Ireland amalgamated
with the rest of the country with provincial status, it would be
open to the Irish Parliament at pleasure to terminate its con¬
nexion with the British Empire. 1
I cannot imagine that Lord Birkenhead really contemplates
anything of the sort, but his statements as they stand are open
to the most dangerous misconstruction.
19. LORD ABERDEEN ON HOME RULE
To the Editor of the Scotsman, ii November XQ22.
I regret to find that the Marquis of Aberdeen still clings to
the doctrine of the coercion of Ulster. Mr. Asquith abandoned
1 For the raising of the issue, sec Nos. 98-101, post*
2 8 imperial relations
that policy fully and frankly in 1914, and has never since varied
his position. In 1921 the Unionists gave up the convictions of a
generation, and to the great advantage of the Umpire agreed
to concede self-determination within the Umpire to Southern
Ireland. No Liberal, I trust, would over be a party to any pro¬
posal to force Northern Ireland under the control of the Irish
Free State. If unity is to be achieved, there is one means only
by which it can satisfactorily be attained the free consent
of the two Irish Parliaments.
Lord Aberdeen’s arguments against Ulster have often boon
refuted, and it may suffice to say that what matters is not Lord
Aberdeen’s views of the rights of the people, of U Ister, but their
own wishes voiced through their chosen representatives, and
to remind him, as a former Governor-General ol Ganada, ol
the instructive contrast between the assurances of Lord
Durham, which brought about tin; union of Upper and
Lower Canada, and the actual results of that enforced union,
which had to be undone a quarter of a. century later, with the
most satisfactory results. Would Canada have attained its
present good fortune had Quebec ruled Ontario or Ontario
Quebec?
20. SELF-DETERMINATION FOR IRELAND
To the Editor of the Scotsman, 17 November
The Marquis of Aberdeen’s letter in your issue of to-day
leaves me still doubtful as to his views on coercion in Ireland.
From the first I have maintained what is now, 1 believe, the
faith of the vast body of Conservatives and Liberals, that
Northern and Southern Ireland have an equal right to self-
determination within the Empire, and that it is unjust and
unwise to coerce either, whether directly or indirectly.
That both parties should agree on this point is unquestion¬
ably the most favourable augury for the creation of a demo¬
cratic party of the future which you forecast in your issue ol'
IMPERIAL RELATIONS
Oi
to-day. But such a party can conic Into being only through
the definite rejection by Conservatives of reactionary tenden¬
cies and the frank acceptance of democratic ideals, of width
signs have been given in their treatment of the Irish, Indian,
and Egyptian problems. The result of the elections has given
Mr. Bonar Law a unique opportunity to prove whether he
has the constructive statesmanship to enter upon a policy of
ordered but effective progress; the country is doubtless tired
of rash experiments, but it will certainly not; tolera te a policy
of mere negation which will play directly into the hands of
extreme Socialism.
si. THE EFFECT OF THE IRISH TREATY
To the Editor of the Scotsman, to December kjxi .
It is natural that the Lord Advocate should grudge Mr.
Asquith due credit for his contribution to ihe solution of the
Irish problem, but it is unfortunate that lie should misrepre¬
sent the facts in his effort to discredit a former leader. Mr.
Asquith proposed at Ayr the policy of Dominion Home Rule
for Ireland (reserving the position of Ulster); the criticisms
made on his proposals were due to misunderstanding of
the real nature of Dominion status, and the modifications
and restrictions alleged by the Lord Advocate were not, as
he implies, changes made in Mr. Asquith's proposals, but
explanations showing the real nature of the Dominion status
proposed.
Strangely enough, the Lord Advocate seems not to compre¬
hend the true nature of the settlement embodied in the new
document, but to think that the arrangement: preserves the
principles asserted as essential by the Prime Minister on
November n, 1920, which denied to Ireland the power to
set up an army and a navy and to conduct foreign relations.
As a matter of fact, the settlement expressly adopts the status
of Canada as the premier Dominion for the model of the
position of the Irish Free State. It concedes the right of that
3 0 IMPERIAL R K L A T I O N S
State to maintain an army, subject only to the principle of the.
international limitation of armaments which is equally appli¬
cable to Great Britain and Canada. It allows the Irish Free
State to establish its own coast defence after a, period of five
years, while Canada is not prepared to undertake even so
much naval responsibility. What is far more important, the
Irish State receives, in a much more distinctive manner than
Canada, international status so far as Great Britain can cooler
it. Docs the Lord Advocate not realize that theollicial descrip¬
tion of the instrument as a Treaty between Great Britain and
Ireland 5 implies the recognition of Ireland as a, sovereign
Power, and that any foreign Power which so desired could
claim that Great Britain had recognized full I rish sovereignty
in this instrument? Docs he not; realize that Ireland can now
demand the use of the influence of the British Empire to
support her claim for admission as an independent member
of the League of Nations, 1 and that, like Canada, she can
assert the right to be represented at foreign capitals by
ministers plenipotentiary reporting direct to and taking (heir
instructions from the Irish Government alone? Moreover,
Great Britain will no longer be able to bind the Irish Kree State
by any treaty, and, to secure harmonious action, Irish pleni¬
potentiaries will have to be associated with British pleni¬
potentiaries in any negotiation.
Indeed the new arrangement in one respect goes beyond
anything contemplated by Mr. Asquith, for it contains nothing
to assure the permanence of the allegiance: of Ireland to the
King; on the contrary the official attitude of the present
Government, as asserted as recently as March go, i<)l>o, by
Mr. Bonar Law, is that the right of secession is inherent in
Dominion status, and, so far as I can see, those Irish leaders
who may to-day accept the treaty are perfectly entitled to
argue next year that they can declare Irish independence, as
they accepted Dominion status as defined by the Government
with which the treaty was negotiated.
1 Accorded in 1923; Keith, Sovereignty of the British Dominions, pp. 347 IF.
IMPERTAL RELATIONS
V
22. THE IRISH TREATY AND IRISH SOVEREIGNTY
To the Editor of the Scotsman, r; January jtyxx.
Surely your condemnation of Professor MaenrilPs proposed
resolution 1 regarding Irish sovereignty in your issue of to¬
day rests on a misapprehension of the implication of the
arrangements made by His Majesty's Government with the
Irish delegates. The matter is of great importance'; nothing
can be more inimical to the restoration of good relations be¬
tween Ireland and Great Britain than the feeling that the
Irish Legislature and those whom it, represents are acting in
bad faith.
The Speaker's proposal is fully justified by the mere (net of
the conclusion of the treaty between Great Britain and I rclarnl
of December G, 1921. The conclusion of that agreement is a
formal admission of Irish sovereignly, and Professor Macneilt
can hardly be censured for asserting what the British (Severn-
ment has formally conceded. The further conclusion that this
sovereignty is derived from the will of' the people will not, I
imagine, be seriously disputed by any person.
It is, in fact, important; to realize that the Dominion status
of the Irish Free State rests on a. different foundation fr< an that
of any of the Dominions. These obtained it as a, free grant from
the Imperial Government and Parliament; the Irish State
owes it to a successful rebellion followed by a. treaty. Wo may
deplore the lack of statesmanship which has resulted in this
position, but we must, dearly, accept loyally a result approved
by the Imperial Parliament as the only alternative to an un¬
popular and purposeless wax.
Similarly, it seems to me impossible to take any exception
to the action of those members of the Irish Legislature who
have accepted the treaty as a stepping-stone to national
1 Proposed in Dful Kircann, Jan, 7, npat; ‘D.iil Kireauu ailimw tlml Ireland
is a sovereign nation deriving its sovereignty in all respects from the will of the
people of Ireland.*
IMPERIAL RELATIONS
32
independence. The treaty contains no suggestion of perma¬
nent allegiance, and the right to secede has been declared
to be inherent in Dominion status by Mr. Bonar Law on
behalf of His Majesty’s Government.
23. IRISH FREE STATE LEADERS AND THE
REPUBLICAN MOVEMENT
To the Editor of the Scotsman, 10 April rgax.
Is there not a very simple explanation of the inaction of the
Provisional Government of the Irish Free State on which you
comment in your issue of to-day? It is contained in the
assertion of Mr. Gavan Duffy, contained in the same issue,
that ‘we are all republicans’. The Free Stair; leaders arc; con¬
fessedly believers in the Republic, who merely accept the
Free State as a stepping-stone to independence. In these;
circumstances, how can they wage, or be; exporter! to wage,
effective warfare politically or materially against lbe;ir oppo¬
nents, whose ideals they share?
Moreover, in Ireland, if not in Great Britain, there is full
recognition of the fact that the withdrawn I of the; British forces
deprives the British Government of the; possibility of pre¬
venting the establishment dc facto of a Republic, in Southern
Ireland. Mr. Churchill and others indeed have; claimed that
there are economic weapons which can be used to prevent:
the establishment of an Irish Republic. It is difficult. to believe
that the Colonial Secretary can be blind to the fallacies of his
own contentions. An economic ble>ckade; of Inland would
inflict on the people of the United Kingdom far greater losses
by (1) the increase in the cost of food, and (2) the loss of a
profitable export market, than would be inflicted on tin;
people of the Republic, and no sane British Government would
enter on a course of action which could only end in one more
of those surrenders with which recent history of our relations
with dependencies has made us painfully familiar.
IMPERIAL RELATIONS
24. THE COLLINS-DE VALERA COMPACT
To Lhe Editor of the Scotsman, iu* May ty-'i'.
The general surprise at tlu; action ol'Mr. (kilims in his agree-
ment with Mr. clc Valera 1 seems hardly just iliable. As I have
already pointed out, Mr. Collins is an avowed and unrepentant
Republican, who admittedly accepted the I'Vee State merely
as a stepping-stone to a Republic, and, at the time when I )omi~
nion status was conceded to Ireland, the oflieial view of His
Majesty’s Government, expressed in categorical terms by the
Leader of the House of Commons on March 20, 1 <p>n, was tli.it
Dominion status carried with it the ultimate right or.seeesi.iott.
It is true that the right has once been denied by Mr. ('.hnr-
chill, but it is equally true that it is not in (he power of one
party to a contract to alter the meaning of its terms r.v (mtjmin ,
and Mr. Collins has made it clear that be has never fettered in
any way his right to work for a Republic as his ultimate aim.
In these circumstances it would be absurd to expert him to
wage war against other Republicans, whose only divergem e
from him is on a point of tactics.
The sooner the people of Great Britain realize that tu keep
Southern Ireland a part of the British Empire means the
determination to reconquer it and to hold a nation in subi'er-
tion in contradiction with the action taken in other m eat
cases, the better for all concerned.
25. THE IRISH FREE STATE CONSTITUTION
To the Editor of the Scotsman, ; 6‘ June uj
•JM »
off* m* m
The Free State Constitution, even in its revised lurm, seems
hardly to alter in any degree the situation created bv the
if
treaty. II the right of secession exists under that instrument*
This agreement contemplated nou~oppu,sitiun by either puny a* the irfimt
to the D&il of the candidates ot (hr other ;U (hr general election of June ipv‘ 4 *
but it. was largely rendered nugatory hy independent voting by the elec tun*
under the system of proportional representation, which gave Mr. Culit m an
effective pro-treaty majority.
I)
34 IMPERIAL RELATIONS
as is generally contended in Ireland, then the Constitution
does not alter the position. On the contrary, by its emphatic
declaration of the sole sovereignly of the Irish people, it con¬
forms with Mr. Collins’s doctrine that it is impossible to set
bounds to the progress of a nation. In no Dominion constitu¬
tion is any such claim of sovereignty made.
It must also be noted that the power of disallowing Irish
laws is in effect abandoned. The only right formally asserted
is that of the right of the Governor-General to refuse assent or
to reserve Irish Bills, but this apparent right is nugatory, since
it is to be exercised in accordance with Canadian constitu¬
tional usage, and by such usage the withholding of assent is
wholly obsolete, and reservation takes place only under the
terms of Imperial Acts which arc no longer to apply to Ireland.
In effect, Irish legislation will be wholly exempt from Imperial
executive or legislative authority, while the judicial control
in constitutional matters is precarious and ineffectively safe¬
guarded.
The admission of common citizenship is rather farcical, since
the Constitution expressly creates a new Irish citizenship and
the bond is really one of common allegiance.
The concessions now made in Southern Ireland are such as
naturally to raise the question why the Republic , *4i ii(14 Lin y
on a struggle for what is little more than a form. < )n tin: other
hand, the Republicans have some right to ask: Why deny us a
form which we value, when wc arc ready to concede all you
really need as regards foreign policy and defence? Is not the
Constitution of the British Commonwealth of Nations elastic,
enough to include a Republic?
26. THE IRISH CONSTITUTION:
FUNDAMENTAL ISSUES
To the Editor of the times, 16 June 1922.
The Irish Free State Constitution unquestionably accords
g A* «r
with the Irish treaty, for like it, it recognizes the sovereignty
IMPERIAL RELATIONS
35
of the people of Ireland, while leaving utterly vague the
relations of Britain and Ireland. The following points merit
special notice:
(1) Nothing is decided as to the right of Ireland to secede
from the Empire. If the treaty allows it, as is arguable, the
right remains, and is accentuated by the wide claim of
sovereignty for the people of Ireland.
(2) The Constitution vests legislative power in the Irish
Parliament, but is ineffective as it stands to exclude the pre¬
dominance of Imperial legislation and the application of the
Colonial Laws Validity Act, 1865, which applies to all British
possessions abroad, save where specially excluded. It will be
necessary to confer £ sole and exclusive power 5 on the Irish
Parliament; the Imperial Act approving the Constitution
will then operate as a renunciation of Imperial legislative
supremacy.
(3) No power of disallowance of Acts assented to by the
Governor-General is reserved to the Crown contrary to Domi¬
nion practice. The right of the Governor-General to reserve,
or withhold assent to, a Bill is maintained, but its lUv* Cml I'' (1*^ l C 5 jlak)
to be governed by Canadian constitutional usage. This
means in effect that no Bill will be refused assent or reserved,
for reservation in Canada is obsolete save under Imperial
Acts which arc no longer intended to be valid in Ireland,
and the withholding of assent is absolutely obsolete. In effect
Irish legislation will be utterly unfettered by the Imperial
Government or Parliament.
(4) The only safeguard for the observance of the Constitu¬
tion will be the Irish Courts with a possible appeal by special
leave to the King in Council. Attempts to safeguard this
appeal are made, but inadequately; the essential provision
that decisions by the King in Council shall be binding on
Irish Courts is omitted, and as Australian precedent shows
cannot be assumed. Further, the Constitution leaves it utterly
vague whether the right of appeal may be abolished by the
Irish Parliament. Can Ireland be denied a right expressly
IMPERIAL RELATIONS
36
recognized in the case of Australia and the Union of South
Africa? Is the Constitution as worded sufficient to deny it? 1
(5) It must be made clear by Imperial Act that: Irish legis¬
lative authority extends beyond territorial waters; the point
requires to be settled for other Dominions also/
27. MR. HUGHES AND DOMINION SOVEREIGNTY
To the Editor of the morning post, /./ May
Just stress is laid by Mr. Hughes, in his most interesting
article on the future of the British Empire, on (lie measure of
autonomy attained in practice by the Dominions. It is, how¬
ever, necessary to remember that there are limits to this
autonomy, and that in practice, as well as in theory, the
Dominions, even as regards their internal affairs, are not
equal members of the Empire. It is true that the power of
disallowance is, or should be, obsolete, and that it is hardly
conceivable that the Imperial Parliament should ever legis¬
late to override a Dominion statute without the assent of (he
Dominion. But IMr. Hughes may have forgotten three: real
operative limitations on Dominion legislative power which
are inconsistent with ccjuality of s tutus; (1) the territorial
limitation on Dominion legislation, which, with st riot ly
limited exceptions, confines the operation of' the Dominion
Acts to the territorial limits of the Dominions; (2) the* invali¬
dity of any Dominion Act which is repugnant to an Imperial
Act, e.g. the Merchant Shipping Acts or the British Nation¬
ality and Status of Aliens Acts; and (3) the invalidity of any
Dominion Act inconsistent with the sovereignty of the (Irowu,
The reality of the first two of these limitations is shown by
the address to the Crown voted in 1920 by the Parliament of
Canada asking for the removal of the territorial limitation, an
appeal to which His Majesty’s Government has not yet re-
1 See No. 100, post.
G ° UrtS aSSWtwl thp ri « h,: R - v - '«'«* <Smut
court [Judge), [1925] 2 I.R. 165; Keegan v. Dawson, [1934] UL 232.
IMPERIAL RELATIONS 37
sponded, and by the long controversy in which Mr. Hughes
had a share, over the Commonwealth Navigation Bill. Adjust¬
ment of these matters presents real difficulties, especially in
view of the fact that the position of the Irish Free State is
governed by that of Canada; but the existence of these limita¬
tions on autonomy is not to be ignored.
IMPERIAL CONFERENCE OF I 9 I I
It is also in some degree misleading to hold that before the
war the Dominions took no part whatever in shaping foreign
policy, unless the statement is qualified by the very important
consideration that in all matters directly affecting the Domi¬
nions their Governments were consulted by the Imperial
Government, and the desires of the Dominions formed a
most vital element in determining the attitude finally adopted
by the Imperial Government. What is indubitable is that,
until the Imperial Conference of 1911 the Dominions were
not consulted on matters of general foreign policy, which
was treated as a matter exclusively for the Imperial Govern¬
ment, a position which was regarded, as Mr. Hughes indicates,
with complacency by the Dominions. After the discussion of
foreign policy, however, at the Committee of Imperial Defence
in 1911 and the decision arrived at, with the assent of the
Dominion Premiers, to renew the Anglo-Japanese alliance,
the possibility of war with Germany being forced on Britain
must have been present to some Dominion Ministers at least,
as is shown by Sir Robert Borden’s effort immediately to
strengthen the British fleet, when similar information was
given to him on his visit to London in 1912. It is, however,
plain that the Dominions were not, and could not be, effec¬
tively consulted in the brief period when the war hung in
the balance, and it is equally clear that nothing effective has
been done to arrange for consultation at present. The cases
of Egypt and of the appeal to the Dominions to give help
against Turkey in September last 1 are clear illustrations that
* See Keith, The Sovereignty of the British Dominions^ pp. 455-60.
IMPERIAL RELATIONS
3 8
the existing system leaves foreign policy generally, as opposed
to matters specifically affecting the Dominions, in the control
of the Imperial Government.
A FUNDAMENTAL QUESTION
At this point, however, there rises a fundamental question
which Mr. Hughes docs not discuss. How far do the Domi¬
nions desire at present to take part in deciding the general
foreign policy of the Empire? The present, Government of
the Commonwealth apparently desires a change in the exist¬
ing conditions, but it docs not seem clear that in New Zealand
there is any feeling on this head or desire to question British
monopoly of control. In Canada the Pacific Fisheries 'Treaty
of March suggests an almost exaggerated desire to assert
autonomy, and Mr. Mackenzie King is too faithful to the
tradition of Sir Wilfrid Lauricr to be likely to demand, or
even to accept, responsibility for British action in the troubled
field of European politics. General Smuts is hampered by the
bitter opposition of the Nationalists to any intervention out¬
side Africa. In such a state of Dominion feeling it seems
impossible to expect that any substantial step can be taken
towards the consolidation of the Empire in respect of responsi¬
bility for foreign policy.
Even were it otherwise, Mr. Hughes himself admits the
extraordinary difficulty of the problem. His repudiation of
federation may help to open the eyes of some of those who in
the past decade have endeavoured to induce the British pub¬
lic to believe that any real desire for this solution exists in the
Dominions, though even the shortness of political memories
does not excuse his forgetting that Sir J. Ward brought
forward a federal scheme in 1911 to the equal annoyance of
Mr. Asquith and Sir W. Lauricr. It is perhaps to be regretted
that the scheme of Resident Ministers from the Dominions
in London in close touch with the Foreign Office docs not
seriously commend itself to Mr. Hughes. If the Dominions
are equal members of an Empire, it would seem to follow
IMPERIAL RELATIONS 39
that each should be represented at the heart of the Empire by
Ministers to serve as effective links of communication, espe¬
cially as Mr. Hughes is evidently satisfied that existing methods
of giving information are unsatisfactory and inadequate. The
one serious argument against the use of Ministers, in the case
of Dominions which desire to participate in foreign policy, is
the risk that the British Government might win the Minis¬
ter’s assent to some course, and claim that his views bound
the Dominion, and this contention seems to me to imply a
measure of unfair dealing on the part of Britain and of incom¬
petence on the part of the Minister, which is frankly incred¬
ible. The true ground so far for the failure of the scheme to
materialize is, I suspect, the fact that the Dominions have
not been anxious, immersed as they have been in domestic
affairs, to take upon them responsibility in foreign issues.
It must be a boon to Ministers with so many difficulties to
face as in Canada or the Commonwealth to be immune
from defending or attacking the proceedings of the Saar
Commission.
RESIDENT MINISTERS
Mr. Hughes’s position regarding a Resident Minister, as
shown by the fact that he took no steps to appoint one, is, I
think, somewhat inconsistent with his insistence on effective
communication as essential to the existence of the Empire.
Wireless telephony is a thing of the future, perhaps for effec-
tive communication with Australia of a far distant future, and
a Resident Minister discussing with the British Cabinet issues
of foreign politics seems to me to promise more for effective
Dominion knowledge of, and, when desired, intervention in,
foreign affairs than Prime Ministers sending those intermin¬
able telegrams in which with persistent regularity each seems
to fail to appreciate the other’s point of view. If, as Mr.
Hughes contends, and we all agree, frequent contact of Domi¬
nion Prime Ministers with the British Government is desirable,
it seems to follow that constant and intimate contact of a
would be excellent.
Mr. Hughes, however, doubtless expresses Dominion feeling
in his distrust of a Resident Minister, and, this being so, It is
well to realize that the effective participation of the Dominions
in moulding foreign policy Is still a matter for perhaps a
somewhat distant date. It would be premature to expect any
change in communications which will render annual confer¬
ences possible in the near future, and even annual conferences
are inadequate for effective participation in policy, as Mr.
Hughes’s own instances show. The conclusion is inevitable
that, in the present conditions of political development, the
Dominions are not yet desirous or able to take full responsi¬
bility for foreign policy, and this view is confirmed when we
remember that not even the Commonwealth has attempted
to maintain armed forces on a scale proportionate with such
a responsibility, while in Canada expenditure on these matters
has been reduced to nearly vanishing point.
For the time being it must suffice to give the Dominions
such share in foreign politics as they care to assume, but there
is one change to which Mr. Hughes does not: allude, but which
seems to merit consideration. That the Dominions should
have separate representation in the League of Nations Is a just
recognition of their status, but, while the expression of diver¬
gent views on labour and commercial issues is natural and
proper, is it necessary or desirable that on political Issues
several parts of the Empire should present different opinions
without making a preliminary attempt by conference to arrive
at a common policy? If there arc differences of a fundamental
kind, it is proper that they should be expressed; what seems
to me desirable, and even demanded by common sense, is
that before each Assembly meeting, the representatives of the
various units of the Empire should confer together and seek
to arrive at a common policy. It is idle to ignore; the danger
that separate membership of the League may otherwise tend
towards the disruption of the Empire, and, having regard to
IMPERIAL RELATIONS 4 I
the state of Europe, it would be a very unwise policy that
accepted the view that membership of the League should be a
substitute for membership of the Empire.
28. THE DOMINIONS AND THE TREATY POWER
To the Editor of the Scotsman, 16 March 1923.
As the Prime Minister of the Commonwealth of Australia
appears to share the popular view that Canada in her treaty
with the United States as to the fisheries in the North Pacific
has exercised the treaty power independently of the Imperial
Government, it may be well to point out that this view rests
on a complete misapprehension of diplomatic procedure. The
treaty in question was signed by a Minister of the Canadian
Government acting under full powers granted by the King,
and it will doubtless be ratified formally in due course by an
instrument authorized by His Majesty. In the issue of powers
and in ratification His Majesty acts, and must act, on the
advice of the Imperial Government, tendered through the
Secretary of State for Foreign Affairs, and thus the Imperial
Government controls absolutely the grant of the necessary
power to conclude a treaty and its formal ratification. Nor¬
mally and constitutionally 1 the Imperial Government will
issue powers and ratify on the request of the Dominion Govern¬
ment, but it has still a right of control, and in any case it might
postpone action until discussion with the other Governments
of the Empire. This mode of procedure secures the mainten¬
ance of the Empire as a whole; if each Dominion, including
the Free State, has an independent power to make treaties,
the unity of the Empire is ipso facto hopelessly dissolved and
its break-up merely a matter of time. The only innovation in
the present treaty is the dispensing with the formal signature
of the British Ambassador, which was never more in such
cases than a formality, and has very properly been dispensed
with in a matter exclusively Canadian in interest. Much of
1 See No. 0 , ante; Keith, The Sovereignty of the British Dominions, pp. 370-4.
entailed no obligations on the Imperial Crown or the Imperial
Government, and the objections to such incomplete agree¬
ments are recognized as strong both in Canada and the
United States.
29. BRITAIN AND THE AUSTRALIAN DEBT
To the Editor of the Scotsman, 14 December njzy.
It is decidedly unfortunate that the Prime Minister of the
Commonwealth in his laudable desire to make his stay in this
country of immediate profit to Australia should have drawn
an unfavourable contrast between the harsh terms exacted
by the United Kingdom in respect of the liquidation of the
Australian debt to Britain and those accorded to Britain by
the United States. Mr. Bruce doubtless does not, share the
popular belief in Australia that Britain is in cll'eet charging
Australia two per cent, more for the money lent to Australia
than she is paying the United States for that money, but, it is
inevitable that opinion in the Commonwealth should inter¬
pret his attack on the British Government in this sense;.
Yet it cannot too clearly be recognized that the British debt
to the United States was contracted in order to provide funds
for allied Powers to whom the United States would not laid
money to the amount requisite, and that Britain has received
so far nothing from these Powers, and has a very problematic
chance, of receiving anything comparable to what she pays
the United States. To make this fact an excuse for demanding
a reduction of the interest on the loan to Australia is really
IMPERIAL RELATIONS 43
rather an amazing point of view. We readily recognize the
great burden of debt incurred by Australia for the war, but
Mr. Bruce seems to have forgotten the far greater burden
imposed on Britain, and that no later than December 10 he
assured us at Edinburgh that ‘Australia particularly wanted
nothing from us. They were doing very well at the moment.
They had no unemployed, no problems that were worrying
them. 5 We rejoice in this happy condition, and we may ven¬
ture to hope that Mr. Bruce will not insist on aggravating in
any degree the burden of taxation pressing on us at a time of
widespread unemployment and misfortune.
Mr. Bruce’s attitude is the more disappointing, because, as
he has readily recognized, on Britain rests the burden of
Empire defence, to which even Australia makes a relatively
negligible contribution, especially in view of the fact that her
defence involves great burdens, of which the proposed works
at Singapore are only a minor feature. Nor does the Common¬
wealth contribute to the expense of the diplomatic service,
though, very properly, Mr. Bruce has reiterated her demand
for consultation and a voice in the decision of foreign affairs.
Valuable as is the Commonwealth preference to British trade,
it cannot seriously be set against the vital considerations of
defence and participation in the direction of foreign affairs.
If in future interest rates fall materially, there may be a case
for reconsideration of the terms charged to the Common¬
wealth, but for that the time is obviously wholly premature,
nor has the present Government the full authority to justify
new terms.
30. IMPERIAL CONFERENCE RESOLUTIONS:
THEIR EFFECT
JL (A* nAia w An A>\i n Jl w ^i -At «*i u A iil ^4 .A.
To the Editor of the times, 18 December 1923.
Mr. Massey’s doctrine, apparently also held by General
Smuts, that undertakings by the Imperial Government at an
Imperial Conference bind the British people, is surely at
IMPERIAL RELATIONS
44
once revolutionary and undemocratic. I cannot conceive of
Canada or Australia sending delegates to any Conference on
the understanding that, whatever these delegates m ight accept,
would bind these Dominions, and the whole theory contra¬
dicts the whole history of the Imperial Conference.
A Government which concurs in any recommendation of
an Imperial Conference undertakes, at the highest, no more
than an obligation to bring the matter before its Parliament
with a proposal to make the recommendation effective. ft
does not even come under an obligation to make acceptance
of the proposal a matter of confidence, and the Parliament is
clearly under no sort of obligation whatever to homologate
the action of the Government, if it disapproves it. Needless
to say, there is still less obligation on the nation, as a, whole, or
on a new Parliament in which the Government responsible
for the actions of its delegates at the Conference has not a
majority. Any attempt to negate this position would doubt¬
less render Imperial Conferences impossible.
The suggestion has been made that, if the proposed now
preferences are withheld, Dominion preferences may be re¬
vised. It may therefore not be out of place to recall (hat the
original preferences were originally largely accorded of their
own free will by the Dominions in recognition of the enor¬
mous benefits of Imperial protection, and that even, now
by far the greatest part of the burden of Imperial defence is
defrayed by the comparatively poor population of the United
Kingdom.
31. IMPERIAL CONFERENCE RESOLUTIONS
Ts the Editor of the Glasgow herald, 28 December /r/g'/,
Itis regrettable that Mr. Massey persists in his revolutionary
doctrine that resolutions adopted at Imperial Conferences
bind, not merely the Governments which concur in them, but
the nations they represent. This view is wholly new; it flatly
contradicts the theory and practice of the Conference from its
IMPERIAL RELATIONS
45
initiation, and as regards the Conference of 1923 it has been
repudiated in the clearest manner by the Prime Minister of
Canada. Nothing more undemocratic can be imagined than
the idea that the Premiers of the Empire, in secret session,
can bind their peoples, and not a single Dominion Parlia¬
ment would ever send a Premier to London if it believed that
he could when there enter into engagements which it would
be bound to ratify. The Dominions rightly claim the final
decision on all Conference agreements for their Parliaments,
and they cannot deny the same right to the United Kingdom.
Mr. Massey may have a grievance in that Mr. Baldwin did
not ask Parliament to grant the preferences he promised before
he risked an election, but that gives him no claim on the new
Parliament or the people. It is difficult to sec what advantage
would accrue to the Dominions from the cessation of Confer¬
ences, which afford them the one real chance of influencing
Imperial foreign policy, and it is absurd to argue that, because
preference is not extended, the work of the Conference of
1923 is wasted. Unfortunately the question of preference
seems to have obscured the great value of the resolutions on a
wide sphere of other important interests, including communi¬
cations and emigration, arrived at unanimously, and calcu¬
lated to benefit alike the United Kingdom and the Dominions,
without entailing sacrifices on any part of the Empire.
32. CANADA AND THE TREATY OF LAUSANNE
To the Editor of r he times, to April rpzp
It is easy to understand Mr. Mackenzie King’s reluct since
to ask the Canadian Parliament to approve ratification of the
Treaty of Lausanne, since such action would imply the under¬
taking by Canada of a definite and positive responsibility to
render aid in case action became necessary under the Straits
Convention, and, as the controversy over Article N of the
League of Nations Covenant proves, Canadian opinion is
united in the view that Canada should iiur.u.ni rm nhlioit< u vn
46 IMPERIAL RELATIONS
to action which would fetter the decision of future Canadian
Parliaments.
But the parliamentary discussions leave obscure the vital
question whether Mr. King really holds that the Treaty of
Lausanne, if and when ratified simplicilcr, will not be binding
on Canada because it was not signed by Canadian representa¬
tives acting eo nomine for Canada. This, of course, is the view
suggested by the opinion of Mr. Doherty in 1919 when he
explained to the Canadian House of Commons the doctrine
of signature of treaties, and asserted that Canada could be
bound only by treaties concluded in this manner. But: I am
unable to find any doctrine of international law on which this
doctrine could be supported, and it appears clear that, unless
and until international recognition is accorded to this new
doctrine, a ratification without express exclusion of (lanada
must bind Canada in international law, as much as it binds
the rest of the Empire. On this view, however, though ratifi¬
cation will bind Canada, it will remain open to Canada as
freely as in the past to decide what steps she will take to assist
actively in securing the observation of the Straits (lonvcntion,
if the need should ever arise, and for all practical purposes
this position should be satisfactory enough for Canada.
The alternative, the exclusion of Canada from ratification,
would raise such grave issues that it may be assumed that
Mr. King does not contemplate asking for such action. 1
33. THE INTERNATIONAL STATUS OF THE
DOMINIONS
(morning post, 10 July 1924.)
The publication of the correspondence between His
Majesty’s Government and that of Canada regarding the
signature and ratification of the Lausanne Treaty, and the
intimation of the desire of the Irish Free State to secure the
1 For Mr. King’s acceptance of the views in ihis letter, see Keith, Hpctchts and
Documents on the British Dominions, rgiS-iggi, pp. 335, 33(5.
IMPERIAL RELATIONS 47
appointment of a diplomatic representative at Washington,
have raised once more in a somewhat acute form the problem
of the measure of autonomy which is compatible with the
continued unity of the Empire. The matter indeed would be
simple enough if we could accept the doctrine, which is cur¬
rent in South Africa, and which asserts that the Dominions
are States of International Law, whose unity depends on the
allegiance to one sovereign and on that alone; but even
General Smuts, who has carried to its farthest limits the doc¬
trine of autonomy, has not officially adopted this position, and
Mr. Massey has emphatically repudiated it. The situation is
complex, and no simple theory is of value in attempting to
explain it.
The dominant fact, however, is that the Dominions have as
yet no international status other than that which they enjoy
in virtue of their membership of the League of Nations. The
terms of the Covenant of the League are sufficient to show
that membership does not convert a Dominion into a State
of International Law for all purposes; membership of the
League gives a Dominion certain definite powers and duties,
but, in matters not directly arising out of membership of the
League, a Dominion retains its former position, and therefore
is without international character. It is true that the treaties
of peace, save that with Turkey, were duly signed by separate
plenipotentiaries in respect of each Dominion, but, important
constitutionally as this method of procedure was, it was inter¬
nationally of no consequence. The signatures were for and
in the name of His Majesty, and the authority to append them
rested ultimately on His Majesty’s Government in the United
Kingdom; the significance of the mode of signature was essen¬
tially domestic, indicating that the Dominions by their partici¬
pation in the war had acquired the right to consultation on all
issues of foreign policy, while by signing the treaties they made
it clear that they recognized their obligation actively to assist
the United Kingdom in securing their due performance. The
true nature of the signatures is admirably shown by the fact
IMPERIAL RELATIONS
that the important—though abortive- part between the
United States, France, and FI is Majesty regarding the defence
of France was signed only by the Prime Minister of tlu* United
Kingdom, while express provision had to be inserted to render
the obligations of the treaty binding only on the Dominions,
if approved by their Parliaments.
In the light of these facts the controversy as to Lausanne
admits of easy solution. The suggestion that any question
of international law is involved is erroneous; no issue arises as
to the possibility of Canada standing out from the peace or
remaining at war with Turkey, while peace prevails as regards
the rest of the Empire. The Canadian Government: does not
claim that the British ratification of the treaty does not make
the treaty applicable to Canada, or that Canada is an inde¬
pendent State; what it asserts is something very different and
perfectly reasonable, and it is a misfortune that its attitude
should have been so widely misunderstood. Canada was not.
given the chance of being represented during the negotiation
of the treaty, and therefore, very naturally, the Dominion
Government declined to consent to the treaty being signed in
respect of Canada separately, or to express concurrence in the;
ratification of the treaty, while taking no exception to such
action as regards ratification as Flis Majesty’s Government
might determine upon.
The result, therefore, is that the treaty through ratification
becomes binding on Canada as far as international law Is con-
cerned, but that in regard to it Canada stands in a different
attitude constitutionally than to the earlier treaties of peace.
In the case of those treaties she accepted full responsibility to
play, her part in the execution of their provisions, a fad
strikingly illustrated by her efforts to secure the modification
of the grave burdens imposed by Ardcle X of the Covenant of
the League of Nations. In the case of the Treaty of Lausanne
she has expressly stated that she holds that the obligations
imposed by the treaty, including the Straits Convention, arc
essentially incumbent on the United Kingdom. In the event,
IMPERIAL RELATIONS
49
therefore, of any breach of that Convention Canada remains
morally and constitutionally free to decide to what extent, if
any, she will assist the United Kingdom to vindicate the terms
of the treaty. From the point of view of the domestic relations
of the Empire the distinction is of great practical importance,
but it has no significance for international law. The position
of the Irish Free State in this regard is identical both in law
and in fact. The Treaty of Lausanne binds the Free State, but
constitutionally the Free State remains free to determine how
far she will accept the duty to participate actively in dealing
with any breach of the Convention.
The attitude of Canada and the Free State in this regard
affords a practical solution of what prima facie is a grave
difficulty, the possibility of carrying on an Empire foreign
policy without deadlocks or destroying the unity of the Em¬
pire. It is plainly impossible, under present conditions of
feeling in the United Kingdom and the Dominions, for British
relations with European Powers to be controlled by a truly
Imperial body, and the only practical solution lies in consulta¬
tion, and, if agreement is not possible, in the conclusion of
treaties by the Crown on the authority of the Government
of the United Kingdom, subject to the constitutional under¬
standing that it remains for the Dominions to decide, if and
when the cause arises, to what extent they will actively assist
the United Kingdom. How far it may prove possible in
concluding treaties of a political character, as opposed to
commercial treaties, to make clear to what extent they are
applicable to the Dominions is a matter remaining to be ex-
plored; but it is not unlikely that in practice the attempt would
prove unfruitful and might tend to endanger Imperial unity.
*
SEPARATE MINISTERS
The same danger is far more directly threatened by the
question of the appointment of a minister plenipotentiary of
the Irish Free State at Washington. The Irish demand rests
on a very strong basis, the promise given by the Treaty of
E
IMPERIAL RELATIONS
50
December 6, 1921, of a status equivalent to that of the
Dominion of Canada, for on May rr, 1920, Mr. Bonar Law
announced in the House of Commons the conclusion of an
arrangement between the British and Canadian Governments
for the appointment at Washington of a minister plenipoten¬
tiary to have charge of Canadian affairs. It is true (hat (lanada
has hitherto refrained from making a recommendation to the
King under this arrangement, but this is not, strictly speaking,
relevant, and it is difficult except on very technical gr< >unds to
refuse the Free State the benefit of a similar appointment,
provided, of course, that the United States concurs in it.
There are, of course, obvious objections to the procedure
proposed, as well as considerable difficulty in estimating the
manner in which the proposal would operate. The appoint¬
ment, according to the agreement with Canada, would be
intended to operate in such a manner as not. to violate the
diplomatic unity of the Empire, and the Government of the
United Kingdom would be responsible for the advice to make
the appointment tendered to the Crown. The minister pleni¬
potentiary would be empowered to represent His Majesty at
Washington, but not, like the British Ambassador, generally,
his sphere being restricted to matters of purely (lanadian or
Free State concern, and on these he would lake his instruc¬
tions direct from the Canadian or free Stale' Government.
The immediate difficulty arises as to the authority to deter¬
mine what matters were of purely Canadian or Free State
concern, and the relations of the Ambassador to the Minister
m respect of questions which might have, or he. held by the
British Government to have, an Imperial interest. It is patent
that a commercial arrangement between, the United Slates
and Canada or the Free State is precisely the sort of question
with which a Minister representing cither of these territories
would be expected to deal, and equally plain that any such
agreement might deeply affect Imperial interests generally,
as was the case with the reciprocity agreement of x 9 n. Fur¬
ther confusion may be expected if and when Australia or
IMPERIAL RELATIONS
5 1
South Africa feels it incumbent to ask for a Minister of its own,
and the United States Government may be excused if it feels
no enthusiasm for any such splitting up of British representa¬
tion, even unaccompanied by any suggestion of recognition of
the Dominions as distinct units of international law.
On the other hand must be set the fact of the natural Cana¬
dian feeling that, as the bulk of the Embassy business in the
United States is connected with Canadian affairs, it is desir¬
able that these matters should be dealt with by a Canadian,
whose responsibility is direct to the Canadian Government.
As matters stand, the Dominion Government communicates
direct with the Ambassador, and he acts normally in accord
with Dominion wishes, but he is responsible to His Majesty’s
Government and is not a servant of the Dominion. Useful
service could doubtless be rendered by a Canadian Minister
who was willing and able to co-operate effectively with the
British Ambassador; but even diplomats are often deficient in
tact, and the reluctance of several prominent Canadians to
accept the post indicates effectively the delicacy and complex¬
ity of the position which such a Minister must occupy at
Washington. 1 The situation would be far more serious if the
Minister represented a Government which had no desire to
work cordially with the British Government, and if his ap¬
pointment were pressed with a view to establish ultimately
the independent status of the territory which he represented.
One misunderstanding should in any case be avoided. The
appointment of a Dominion Minister would in no wise in¬
crease the power of the Dominion in treaty matters. Such a
Minister could not negotiate or sign for the Crown any treaty
without the express authority of the British Government as
well as his own Government, and any treaty so signed could
only be ratified with like assent. He might, of course, act as
the intermediary for the conclusion of informal agreements,
not ranking as treaties, between his own Government and
1 The post was only filled by Mr. Vincent Massey after the Imperial Confer¬
ence of 1926.
IMPERIAL RELATIONS
52
that of the United States, but for this purpose diplomatic sta¬
tus is unnecessary; such agreements have in the past been made
without diplomatic intervention, their existence is recognized
and approved by the Imperial Conference of 1923, but it is
made clear that they have no true international character.
34. TI-IE LEAGUE OF NATIONS COVENANT AND
THE BRITISH COMMONWEALTH
To the Editor of the morning post, i(> December rrjmf.
The notification of His Majesty’s Government of November
1924, now made public, that it does not regard the League of
Nations Covenant, or any conventions concluded under the
auspices of the League, as applicable to the relations inter sc
of the various parts of the British Commonwealth, raises ques¬
tions ofthe utmost importance on which further enlightenment
from the Government is urgently required.
In the first place, is this view shared by the Governments
of the Dominions other than the Irish Free State, which in
point of fact has definitely and consistently adopted the oppo¬
site point of view? In particular, what is the opinion of the
Dominion of Canada, having regard to the fact that the status
of Ireland is expressly defined in the Treaty of 1921 by t hat of
Canada? Obviously there has been ample time to obtain
the views of the Dominions on this head, aud, if they share
the British view, then the intimation to the League of Nations
would have acquired infinitely more fora; if supported by
their authority.
In the second place, on what grounds is the British claim
based? The Covenant certainly lends no direct assistance to
the claim, however reasonable it seems and however anxious
we are to maintain it. Moreover, it must be admitted that in
conventions concluded under the auspices of the League ex¬
press provision has been made to exclude from their operation
the relations inter se ofthe parts of the Empire, as in Article 23
0 the Statute on the International Regime of Maritime Ports.
IMPERIAL RELATIONS 53
If express provision was requisite in such conventions, was it
not requisite in the Covenant itself? And is the British view
really compatible with the separate membership of the League
accorded to the Dominions and India?
35. THE LOCARNO PACT
To the Editor of the times, 20 October 1925.
Article 9 of the Security Pact provides that it shall impose
no obligation upon any of the British Dominions or on India
unless the Government of such Dominion or of India signifies
its acceptance thereof. There is thus a curious deviation from
the terms of the Anglo-French Treaty of June 28, 1919, for
Article 5 of that instrument referred only to the Dominions
and required approval of that instrument by their Parliaments
in lieu of acceptance by their Governments. The change of
form may conceivably be motived by the addition of India,
in itself clearly justifiable, but otherwise it can hardly be re¬
garded as satisfactory. It is clear that any acceptance of obli¬
gations under the treaty must be based on the most formal
sanction of Dominion Parliaments. The fact was recognized
in 1919 and dictated the terms of the treaty of that year, and
there seems no adequate grounds for adopting a form which
suggests that it rests with the executive governments of the
Dominions to decide the question of the acceptance of the
Pact. The Dominions have consistently asserted the rights
of their Parliaments in treaty matters, the innovation of 1919
had their support, and departure from it seems to require
explanation.
36. THE DOMINIONS AND THE LOCARNO PACT
[November 1926: J.C.L, viii. 125-6.)
The conclusion of the Locarno Pact has evoked from the
Dominions the normal response. In New Zealand the Prime
Minister, following closely in the footsteps of Mr. Massey, has
IMPERIAL RELATIONS
asserted the intention to secure approval of the Pact; by Pa rlia¬
ment in clue course, and has explained the fact that the Pact
was not signed by a New Zealand representative for the Domi¬
nion on the score that Parliament had not; been consulted,
and that such a step would have been improper. The argu¬
ment is not wholly satisfactory on logical grounds; the signa¬
ture of the treaty of peace with Germany was given before
Parliament was or could have been consulted; but dearly Now
Zealand could not well have acted alone. In the other Domi¬
nions this eagerness to accept British policy has not been
evinced. Both Mr. Mackenzie King and Mr. Mcighen de¬
clined to commit themselves to expressions ofintention during
the electoral campaign, and Mr. King’s warm congrat ulations
to Sir Austen Chamberlain on his K.G. must not be taken as
signifying more than admiration for the achievement of the
Pact, and certainly not any desire to ask the Dominion Parlia¬
ment to assume responsibility under it. Mr. Meighen indeed
has made any such action extremely difficult by propounding,
under the fire of criticism for his party's share in adopting
compulsory military service in the late war, the doctrine that
Canada should not take part in any war by dispatching troops
unless and until a decision to that effect has been obtained
from the people at a general election held for the purpose.
The doctrine has not, it; is plain, been received with much
enthusiasm by many of his English supporters, and it is clearly
intended to secure the Conservative party a better chance of
success in Quebec by assuring the habitants that any participa¬
tion of Canada in future wars will be very fully authorized.
It is, however, clear that it will be hard for any political leader
in future to repudiate the doctrine and that in these circum¬
stances it will be more and more difficult for Canada to accept
international obligations with any assurance of being able to
honour them effectively when the time comes. Canada, it
will be remembered, took no step to accept obligation under
the treaty with France of June 28, 1919, to secure the protec¬
tion of France in case of German attack, which fell through
IMPERIAL RELATIONS
55
owing to the abstention of the United States, and every
consideration of prudence suggests that her action as regards
the Locarno Pact will follow that model. It is equally unlikely
that General Hertzog, who recognizes the merit of the Pact,
will seek to induce his followers to reverse the policy of ab¬
staining from obligations in respect of European politics, and
there is no unanimity even in governmental ranks in the
Commonwealth as regards the wisdom of bringing Australia
formally under any obligation.
General Smuts has not unnaturally shown anxiety lest the
Locarno precedent may not lead to the various parts of the
Empire going their several ways, and has pointed to the danger
of the time coming when there will not be the feeling of the
obligation of each part to assist in defending the right of any
other part. More pessimistically it has been contended that
Mr. Merriman was right in holding that the creation of the
League would lead to the disintegration of the Empire. There
is no doubt that the fact that Britain was driven to separate
action is really to be regretted, but the defence made for her
decision by the Government is clearly unanswerable. It was
felt—and the reasons adduced seem convincing—that op¬
portunity should be taken of the chance of bringing European
relations back to something approaching normality, and it
was obvious that the Dominions were not in a position to
accept responsibility in the matter.
37. APPEALS FROM THE IRISH FREE STATE
To the Editor of the Manchester guardian, 13 April ig26.
Recent discussions of the desire of the Irish Free State to
limit appeals to the Privy Council, and not least the observa¬
tions of the Lord Chancellor, 1 appear to ignore the real value
of the appeal. Its importance lies not in the decision of difficul¬
ties arising out of the ordinary law, but in disposing ofconstitu-
tional questions. If it has been accepted so long by Canada, it
1 Lord Gave; see Keith, Responsible Government, ii. 1090.
56 IMPERIAL RELATIONS
is because it is felt that in a Dominion with two grail. races of
different language and religious outlook a perfectly impartial
board is anideal court of final appeal. Similarly, in the Union
of South Africa the appeal was allowed to stand, when union
was brought about, that there might lie a court which would
be swayed by no local racial influenexs.
So in the case of the Irish Free State the one appeal of value
is that on constitutional issues, and this is the appeal which the
Free State Constitution leaves beyond the power of the Free
State. Appeals lie only from the Supreme Court of the State,
and it is within the power of the Parliament under Article 66
of the Constitution to prevent appeals on other matters being
dealt with by the Supreme Court, but it cannot alfeet constitu¬
tional appeals. As long as this principle is recognized, it seems
a matter of indifference what the Free State does as regards
appeals in ordinary cases, and denunciations of its ad ion seem
wholly out of place in view of the dear intention of the Consti¬
tution and of the approval accorded to it by the Imperial
Parliament.
38. THE CANADIAN CONSTITUTIONAL CRISIS OF
1926
(MANCHESTER GUARDIAN, 8 July XQs6.)
Lord Byng by refusing the dissolution asked for by Mr.
Mackenzie King has challenged effectively the doctrine of the
equality of status of the Dominions and the United Kingdom,
and has relegated Canada decisively to the colonial slat us which
we believed she had outgrown.
His action affects not Canada alone, for Canada, is by con¬
stitutional law solemnly asserted in the Irish Treaty to be the
model for the Irish Free State, and despite the provisions of
the Irish Constitution the Governor-General is now legally
empowered to disregard, and constitutionally capable of dis¬
regarding, the advice of the Free State Ministry. 'The matter,
then, is one far transcending local politics.
IMPERIAL RELATIONS
57
Lord Byng’s action is, of course, absolutely constitutional
—whether wise or not we need not consider—if Canada has
the same status as the States of Australia or her own provinces.
Doubtless it is the modern usage for a Governor to hesitate
long ere he refuses ministerial advice and prefers his own
judgement to that of the head of the Government. The Gover¬
nor of New South Wales lately consented to add twenty-five
members to the Upper House on the advice of a Ministry,
which had no mandate to abolish that body and which was
sustained by a slender majority in the Lower House. It is true
that, when some of the newly-made honourable members be¬
lied their style by refusing to vote for their own extinction, he
declined to add further members. But he was encouraged to
take this step because his Ministers would not advise him to
dissolve, having a natural hesitation to ask the public to judge
their manoeuvre, and it is significant that he made no attempt
to dismiss them from office as would have been their fate in
earlier days.
But Mr. King’s whole contention against Lord Byng and
Mr. Meighen, who becomes technically bound to defend the
former’s decision, is that the colonial status is outworn, and
that the Governor-General’s action ought to be based on the
principles observed in the United Kingdom. The issue, there¬
fore, at once arises whether on British principles 1 Lord Byng’s
action can be sustained.
Mr. Asquith’s dicta form the chief support of those who thus
defend the Governor-General. Now it is clear that Mr. As¬
quith did contemplate the possibility of the King refusing a
dissolution if asked for by Mr. MacDonald, at least until he
ascertained whether an alternative Government was not avail¬
able. This doctrine when enunciated appeared to the writer
wholly contrary to constitutional usage, and the dissent which
I then expressed appears to me to have been substantiated
beyond doubt by the action of the King when the occasion
arose. Under colonial usage a dissolution would not have been
1 See Ridges, Constitutional Law of England (cd. Keith), pp. 146-8,
IMPERIAL RELATIONS
accorded until both Mx, Asquith and Mr. Baldwin had been
asked to form ministries and had failed. But: His Majesty
accepted without demur or delay his Prime Minister's advice
thereby affirming the fundamental principle on which rests
our loyalty to the Throne—that the sovereign governs as a
purely constitutional monarch. That: occasions may be ima¬
gined where sovereigns would have to disregard such advice
may be admitted; that such will ever arise in (his country is
most improbable, and no one seriously suggests that in like
circumstances in the United Kingdom there would have been
any hesitation on the part of the King in granting a Prime
Minister the dissolution for which, after full consideration, he
formally asked.
Moreover, the whole weight of Dominion precedent, since
the Imperial Conference of 1911 when first the Dominions ap¬
peared on equal terms with the United Kingdom, tells directly
against Lord Byng’s decision. In 19 1 4 Sir ,R. Munro Ferguson
in Australia was confronted by the demand from a Ministry
which had a majority of one in the Lower I louse and was in a
hopeless minority in the Upper House, that he should grant
it, not merely a simple dissolution of the Lower I louse, but a
dissolution of both Houses. Such a demand on ordinary colo¬
nial principles would have been rejected without hesitation,
but the Governor-General gave effect to the new status of the
Commonwealth. He accepted the advice of his Prime M mister
despite the objections of the Opposition. The people by their
vote condemned the Prime Minister’s action, but it was recog¬
nized that the Governor-General’s action was based on a
fundamentally sound principle, and the only one compatible
with national status. 1
Throughout his term of office the Governor-General ad¬
hered steadily to this line of conduct, though well aware that
if matters had been treated as open to the exercise of his
personal discretion, he could not have homologates cl such it clc-
Keith, Imperial Unity, pp. 106-12; War Government of the British Dominions,
pp. 246, 251.
IMPERIAL RELATIONS 59
cision as that of Mr. Hughes to remain in office, after a formal
resignation in 1918, after a solemn pledge not to retain power
if his compulsory service proposals were rejected at the refe¬
rendum of December; and the Governor-General, it will be
remembered, was of long parliamentary experience, and thus
he could, even far more fully than Lord Byng go into the
fundamental issues involved in Dominion status.
The practice in South Africa and New Zealand since 1911
has been entirely in accord with British usage, and it is a matter
for serious regret that Lord Byng should thus have ignored
the new status of the Dominions as coequal members of the
British Commonwealth of Nations.
The result of his false step is seen in the deplorable irregu¬
larity in which he has been compelled to acquiesce in the
administration of the departments of state by persons who had
not been formally appointed as Ministers, in order to avoid
the necessity of their absence from the House of Commons
pending their re-election.
Whatever may be said of Lord Byng’s action generally in
this matter, it is clear that he has failed in the fundamental
duty of securing the observance of the law and customs of the
Constitution. 1
39. THE CANADIAN ELECTION
To the Editor of the Scotsman, i September 1Q26.
I would suggest that two reasons go far to account for the
turnover of votes in Ontario in favour of Mr. Mackenzie King.
In the first place, Mr. Mcighen not merely wounded the
feelings of many Conservatives by his unwise surrender to the
extreme demands of Mr. Patenaude as regards the necessity
for a general election before Canada participated in any
British war, but he committed himself to the doctrine, which
General Hcrtzog in the Union of South Africa has applied
1 Mr. Mackenzie King accepted the arguments of this letter; see Keith, Speeches
and Documents on the British Dominions , igiS-iggr, pp. 152, 153.
6 o
IMPERIAL RELATIONS
with damaging effect to British trade, of the necessity of placing
the British preference on a strictly reciprocal basis. Many
Conservatives feel that this is a poor return for the protection
of the British fleet and the services of British diplomacy, and
doubtless some at least expressed their British affiliations by
their vote.
Secondly, the constitutional issue was unwisely represented
by Mr. Meighen’s supporters to raise an inter-imperial ques¬
tion. This was never the case, and Mr. Amerydenietl with much
emphasis any interest in Lord Byng’s decision, 'flic question
was simply one whether, under the status of (lanatla as a, co¬
equal member of the British Empire, the (Mvcrnor-Cenend
had, or had not, a discretion to refuse a. dissolution. Mr. King’s
speech at Ottawa on July 23, which was distributed broadcast
over Canada, presented a complete case against Lord Byng\s
action, and to the end Mr. King stressed the constitutional
issue. He had on his side the absolutely clear declaration of
Sir Robert Borden in his Constitutional Studies in precisely the
same sense, and Sir Robert Borden has just; reputation among
Conservatives, not merely as a great leader, but as a constitu¬
tional authority of high rank, and the pronouncement of Ins
former chief unquestionably told against M r. Mcighcn.
Lord Byng’s action was, of course, prompted merely by his
desire to serve Canada, and no one has been more generous
in his eulogy of his character and motives than Mr. King; but
he lacked experience of politics and parliamentary govern¬
ment, and the record of Lord Novar’s handling of even more
delicate and difficult situations as Governor-General of the
Commonwealth of Australia proves how valuable such expe¬
rience is to one who has to represent the Crown in an oversea
Dominion. In any case, however, it may safely be said that,
as Lord Byng was the first Governor-General of Canada to
refuse a Prime Minister a dissolution, so he will be the last, ft
is useless to ignore the evolution of the Dominions, and to
apply to Canada the principles which may still be effective as
regards Victoria or Newfoundland.
IMPERIAL RELATIONS
61
40. THE IMPERIAL CONFERENCE OF 1926
(Glasgow herald, 22 November ig26.)
The fundamental proposals for change in the constitution
of the Empire were presented to the Imperial Conference by
the Union of South Africa and the Irish Free State. As was
inevitable, these have failed of acceptance as the outcome of
the resistance to hasty change of Canada, the Commonwealth,
and New Zealand. It is however, no longer argued, as by
Mr. Hughes in 1921, that the Dominions have nothing to
desire; an expert committee will submit recommendations as
to the vital question of the power of the Imperial Government
to prevent Dominion legislation; the territorial restrictions
imposed on Dominion legislation; and the paramount power
of the Imperial Parliament, reasserted as regards the Irish
Free State in 1922, to legislate for the whole Empire. The very
important issue of merchant shipping, in which Imperial
control has been retained down to the present, will similarly
engage the attention of a sub-committee. Even on the appeal
to the Privy Council nothing has been actually conceded, and
the Irish Free State has been induced to withdraw for the
present its demand for the abolition of the appeal. If the
theoretic defence of this attitude of caution is sought, it may be
found in the agreement that £ the principles of equality and
similarity appropriate to status do not universally extend to
function 9 .
None the less a certain amount of progress has been made.
The change in the royal title is obviously an improvement,
and out of the unfortunate episode of Lord Byng’s refusal of
a dissolution to Mr. Mackenzie King has resulted a definite
declaration that the Governor-General of a Dominion is to
hold in all essential respects the same position in regard to the
administration of public affairs as is held by the King in Great
Britain. The decision is unquestionably wise, but it is by no
means clear that it involves the further proposal that the
62
IMPERIAL RELATIONS
Governor-General should no longer act, as the channel of
communication between the Imperial and Dominion Govern¬
ments. Fortunately the latter resolution is facultative, arid it
may be doubted if the Dominions in general have any desire
to see the existing plan suspended or to welcome; the appoint¬
ment therein of any other Imperial officer to art as a, channel
of communication. The reduction of the oilier of (mvernor-
General in importance would undoubtedly render it harder
than ever to find men of ability and standing to undertake the
duties. In so far, of course, as the arrangement may meet Irish
wishes, it is clearly innocuous.
In the sphere of foreign relations the Imperial Government
has secured an important victory. The Irish Free State
claimed that the treaties concluded by it with the United
Kingdom were matters of true international concern and
therefore registered them with the League of Nations. The
Imperial Government denied this doctrine, insisting that,
relations between the several parts of the Umpire must be
deemed not to lie in the sphere of the League. It is now agreed
that general treaties should now be regarded as inapplicable
between different parts of the Empire unless expressly so
stated, and that where international agreements arc to be
applied between parts of the Empire, the form of a treaty be¬
tween heads of States should be avoided. This may nol prove
easy in practice, but it is dear that a distinct defeat for the
Irish Free State must be recorded. On another vital issue no
concession seems to have been made to Dominion demands;
it has been claimed that full powers to enter into treaty ar¬
rangements with foreign States should be issued by the King
to Dominion representatives on the advice of the Domi¬
nion Governments only, without the intervention of the
Imperial Government, and that ratification should similarly
be expressed on Dominion advice alone. Such a procedure
would, however little its advocates realize it, mean an end to
the unity of the Empire, and it is dear that the Conference
preferred the wiser course of urging greater consultation
IMPERIAL RELATIONS 63
among the members of the Empire and not independent
powers of action.
It has therefore amplified the obscure arrangements of 1923
as to treaties by making it incumbent on every part of the
Empire, when it desires to make a treaty with any foreign
State, to consult the other parts and to allow them to decide
whether or not they are interested, and wish to participate in
negotiations. The procedure will secure that the diplomatic
representatives of the Irish Free State and Canada at Washing¬
ton will be in no doubt as to their duty of consulting His
Majesty’s Ambassador; the correlative duty of consulting the
Dominions has long been recognized in practice as in theory.
Another decision of value is the determination to abandon
the use of the term 'British Empire 5 in the conclusion of
treaties, and make them instead in the name of the King, with
specific mention in every case of the parts of the Empire
affected. It is recognized that at International Conferences
the exact mode of the representation of the Empire must be
determined by agreement, and must depend in part on the
consent of other Powers; but the duty of seeking to secure that
foreign States shall recognize the propriety of the separate
representation of the Dominions is now clearly imposed on the
Imperial Government as still the dominant factor in Imperial
foreign policy.
Of effective means to secure co-operation between the
United Kingdom and the Dominions nothing has yet been
devised, and, if the Conference has resulted in the fortunate
decision that no part of the Empire shall accept the compulsory
jurisdiction of the Permanent Court of International Justice
without further consultation, failure must be recorded regard¬
ing acceptance of responsibility by the Dominions under the
Locarno Pact. They have congratulated His Majesty’s Govern¬
ment and have left it alone to bear the grave burden involved.
Nothing else could be expected, but the grave fact remains
that we arc still without any real machinery for securing
the adoption of a truly Imperial foreign policy.
64
IMPERIAL RELATIONS
41. THE IMPERIAL CONFERENCE AND THE
GOVERNOR-GENERAL
To the Editor of the Scotsman, 26 November igNL
It is clear from the expressions of opinion in the Dominions
on the conclusions of the Imperial Conference on inter¬
imperial relations that the resolution regarding the position
of the Governor-General is that most susceptible of misinter¬
pretation. Mr. Baldwin’s reply in the House of Commons
yesterday should have removed one misapprehension. The
Governor-General at present is the only oiled ive nutans by
which a Dominion may be pinvented from passing legislation
inimical to Empire interests, and unless and until tint Imperial
Government decides to surrender absolutely the right to inter¬
vene—e.g. to prevent a Bill for secession on the pari of the
Union of South Africa or the Irish Free State luting passed-
the Governor-General must remain charged with tint duty of
carrying out the wishes of the Imperial Government.
The real significance of the new suggestion has relevance
to the field of foreign affairs. The opinion has been put for¬
ward that the Governor-General should act as an essential
link in relations between the Imperial and Dominion Govern¬
ments in this regard. But Sir Robert Borden and, it is now
clear, Mr. Mackenzie King hold that it is desirable not to
combine in the hands of one officer the distinct functions of a
diplomatic agent and the constitutional head of the Dominion
Government. The resolution of the Conference, therefore,
leaves it open for Canada or any other Dominion which so
desires to cut out the Governor-General as a channel of cor¬
respondence in such cases, and to communicate direct; with
the Imperial Government. If desired, the Imperial Govern¬
ment may send to Ottawa or other capital a High Commis¬
sioner or other representative to keep in touch with Dominion
views on foreign affairs, in much the same way as Domi¬
nion High Commissioners in London keep in touch with
IMPERIAL RELATIONS
6 5
British views. There is clearly nothing in this objectionable,
though some Dominions 1 may not wish to limit the Governor-
General’s functions, for the present at least.
The agitation which appears to have arisen in the States of
Australia lest the resolution should prejudice their position
vis-a-vis the Commonwealth is clearly based on a complete
misunderstanding. The Conference had not the right, and
assuredly had not the wish, to interfere in any degree with the
affairs of the States. Any change must rest on their own
action.
42. THE SIGNIFICANCE OF THE IMPERIAL
CONFERENCE
To the Editor of the Scotsman, 16 December 1926.
I do not imagine that many people will be inclined to share
the view of the work of the Imperial Conference expressed by
Mr. R. Macdonald, M.P., as reported in your issue of to-day.
The idea that a meeting of Prime Ministers sitting in private
should dream of separating the Empire into seven Crowns,
without mandate from their Parliaments, seems incredible;
and, whatever the view of General Hertzog may be, no funda¬
mental change in Imperial relations can be accomplished
without the deliberate assent of the Parliaments of the United
Kingdom, Canada, and Australia.
Mr. Macdonald’s assertion that in future the King will not
even consult British Ministers regarding communications from
Dominion Governments cannot be supported by anything in
the Conference resolution. It contradicts flatly the definite
assertion by Mr. Baldwin in the House of Commons on
November 25 that Govcrnors-Gcncral would continue to
exercise the power of reservation of Bills for the signification
of His Majesty’s pleasure, and it would place the King in an
1 Australia made the change only after the appointment of Sir Isaac Isaacs
as Governor-General, and New Zealand and Newfoundland retained the old
arrangement.
F
66 IMPERIAL RELATIONS
impossible position as regards his British Ministers. The union
of the Crowns of Hanover and Great Britain was possible
only because the King of Hanover was not a constitutional
monarch. But apart from constitutional issues, has Mr. Mac¬
donald considered what his doctrine would mean in its bearing
on Dominion loans as trustee securities? In conferring on
these loans the great benefit of admission to this status, the
Treasury has properly insisted on requiring a formal admis¬
sion by each Dominion Government that any law impairing
the security of investors in these loans would properly be
disallowed. On the new doctrine this assurance is rendered
valueless, and every holder of Dominion loans is compelled
to face the possibility of an impairment of his rights by un¬
fettered Dominion legislation. It is idle to argue that the'
safeguard is unnecessary. The Treasury clown to the present
has refused admission of provincial loans in Canada to the
list of trustee securities on the score of the impossibility of
Imperial disallowance of such Acts.
That disallowance of Dominion legislation is now out of
harmony with Dominion development I have; long argued,
but it cannot be surrendered without some security for adjust¬
ing difficulties which may arise from its disappearance; and
it seems to me that a very strong case exists for the suggestion,
which I made ten years ago, 1 that differences of opinion
between Empire Governments which are incapable of settle¬
ment by correspondence or discussion at a Conference should
be referred to arbitration; an obvious tribunal is available in
the Judicial Committee of the Privy Council, with full Domi¬
nion representation.
43. CONSTITUTIONAL ISSUES IN CANADA
To the Editor of the Scotsman, 15 March igaj.
The constitutional issues in Canada, the Conservative view
of which is very clearly set out in the message from your
1 Keith, Imperial Unity, pp. 165, 166, 388. See No. 117, past*
IMPERIAL RELATIONS 67
Ottawa correspondent in your issue of to-day, are so important
that a comment based on constitutional practice may be ad¬
missible. The alleged ‘gentlemen’s agreement 5 has been
declared by Mr. Mackenzie King a complete fabrication, and
it need only be added that, since the well-known case of Sir
W. Ellison-Macartney in Tasmania in 1914, 1 it has been
clearly unconstitutional for a Governor to make any bargain
with Ministers as to the terms on which they are to remain
in office, and it is quite unfair to attribute to Lord Byng a
breach of a clear rule of constitutional usage.
The vital question of Mr. King’s action in advising Lord
Byng to consult Mr. Amery appears to me to have been
seriously misunderstood. No one could deny that Lord Byng
was an Imperial officer subject to the royal instructions con¬
veyed through the Secretary of State. The point at issue was,
What did these instructions enjoin in the case where a Prime
Minister asked for a dissolution, and presented for approval
an Order in Council for that purpose? Was it Lord Byng’s
duty to investigate the political situation for himself, and
decide on his own responsibility what was best for Canada?
Or could he follow the British practice—recently signally illus¬
trated by the immediate acceptance by His Majesty of Mr.
Ramsay MacDonald’s advice in 1924—and act on the advice
of his Ministers? The custom of the Australian States sup¬
ported the use of a personal discretion, but no Canadian
Governor-General since federation had ever declined advice.
Lord Byng was without political experience, and it appears
to me that Mr. King acted with much common sense in advis¬
ing him, before taking a decision which, as he rightly anticipa¬
ted, would have very far-reaching consequences, to ask the
Secretary of State what the royal instructions really meant.
I confess that, while I have always held that Lord Byng erred
in his decision, it appears to me that much of the responsibility
really rests with a system under which a Governor-General is
sent out without any clear instructions as e to the place which
1 Keith, Imperial Unity , pp. 99-104.
68 IMPERIAL RELATIONS
he is to occupy in the structure of government. Happily,
the resolution of the Imperial Conference of t 926 should effec¬
tively prevent any Governor-General in future being placed
in so uncomfortable a position as was Lord Byng.
44. CANADA AND THE CONSTITUTION
To the Editor of ti-ie Scotsman, 10 May rgsy.
May I correct a misconception of my view of Lord Byng’s
action which appears from your Ottawa correspondent’s mes¬
sage to be held by Mr. Cahan, K.G.? Mr. Caban suggests
that it is proposed that ‘at all times and under all circum¬
stances the Prime Minister is to have a dissolution upon re¬
quest’. What, however, I have advocated since- 1915/ and
what has now received the imprimatur of the Imperial Con¬
ference of 1926, is something very different. It is that the
Governor-General of a Dominion should in his official actions
adopt the principles accepted by the Crown in the United
Kingdom. This disposes at once of the dilemma posed by
Mr. Cahan, when he argues that on the new rule a Prime
Minister who obtained a dissolution and was defeated at the
polls could still advise and receive another dissolution. No
one, I imagine, seriously contends that His Majesty could con¬
stitutionally grant a second dissolution in such circumstances,
even assuming that a Prime Minister was so lacking in public
duty as to suggest it. On the other hand, the action of the
King in respect of Mr. Ramsay MacDonald’s request for
a dissolution is a striking confirmation of the rule that it is
not proper for the Crown to refuse to give the electorate an
opportunity of pronouncing its verdict on disputed issues. If
Lord Byng disapproved Mr. King’s avoiding a parliamentary
vote, he might properly have pressed him to wait for a decision
before dissolving, but, in my view, he was not entitled to
refuse to allow him to appeal to the people, whose verdict
1 Keith, Imperial Unity , pp, 97, 590.
IMPERIAL RELATIONS 69
ultimately, It must be remembered, was given unmistakably
in his favour.
I must add that my criticism of Lord Byng was based not
merely on his refusal to grant a dissolution to Mr. King, but on
that refusal coupled with the grant to Mr. Mcighcn. Colonial
precedents would have justified the refusal to Mr. King, had
Mr. Meighen been able to form a Government and command
a majority in the Commons. When Mr. Meighen found that
this was impossible, and when the Commons actually censured
him, he should clearly have advised Lord Byng to invite Mr.
King to resume office on the understanding that he would
have a dissolution, and his failure thus to act and his asking in
lieu for a dissolution placed Lord Byng in a most unfortunate
position and one without any real colonial parallel.
45. NATIONALITY IN THE EMPIRE: DOMINION
CITIZENSHIP
(MANCHESTER GUARDIAN, I June IQ2J.)
Lord Balfour in his address of January 2G, 1927, at Edin¬
burgh insisted that the essential characteristic of the Report
on Inter-Imperial Relations of the Conference of 1926 was
the enunciation of a dominant principle, that of the equality
of the self-governing parts of the Empire, and lie declined to
express any opinion on the working out in detail of that funda¬
mental rule. The debates on the Report in the Canadian and
Union Parliaments have proved the difficulty of the under¬
taking, but they have also made it clear that matters will not
be left indefinitely in their present condition. On the other
hand, discussion has brought to the surface the serious issues
affecting British nationality which might be compromised by
any hasty action, and has revealed a gratifying insistence that
national status shall not be permitted to interfere with the
position of Dominion citizens as British subjects.
The true doctrine on this topic was established as far back
as 1921 by the Canadian Parliament when it passed an Act
70 IMPERIAL RELATIONS
to define Canadian nationals. The immediate cause of the
enactment was the creation of the Permanent Court of Inter¬
national Justice, for under its constitution each member of
the League has the right to nominate two of its nationals as
candidates for election to membership ofthe (louncil. Clearly
under this provision, if Canada desired to make nominations,
she must have defined her nationals, and she took steps to do
so in a simple and effective manner. The status of national
was given to all Canadian citizens in the sense defined in the
Immigration Act of 1910, to the wives of such citizens, and to
persons born out of Canada whose fathers were Canadian
citizens at the time of their birth, while clue provision was
included for the renunciation of such citizenship. Nothing,
however, was provided to affect in the slightest degree the
status of Canadian citizens as British subjects, and in the
South African Nationality and Flag Bill of 1925, and seem¬
ingly also in the Bill now before the Union Parliament, the
same principle is adopted. 1 Dominion citizenship is a matter
of differentiation within the greater whole of British nationa¬
lity; it is essentially a matter for independent regulation by
each Dominion, while British nationality, as common to the
Empire, cannot be altered save with the assent of all the self-
governing members of the Empire. Citizenship in any Domi¬
nion confers special privileges, especially that ofthe right to
enter, but it need not be made the basis of political rights to
the exclusion of the wider test of British nationality. Canada
and South Africa do not seek thus to differentiate, agreeing
herein with the view of the United Kingdom, It; is otherwise
in the Irish Free State, which denies political rights to non¬
citizens, though its citizens as British subjects enjoy in the
United Kingdom and other Dominions full political privi¬
leges. The United Kingdom has so far declined to establish
a favoured class of British citizens as opposed to British sub¬
jects. Yet the matter has been discussed, especially in Scotland,
Citizenship as a basis for the franchise was only adopted in the Union in
IMPERIAL RELATIONS
71
which finds that its population is slowly but surely being
affected both in racial composition and religion by the influx
of citizens of the Irish Free State.
Nothing, of course, short of a declaration of complete
independence can alter the fact that all citizens of the Domi¬
nions are British subjects. This was laid down in Calvin’s
Case under James I, when it was held that on the union of
the Crowns of Scotland and England Scotsmen born after the
accession to the English throne of their king were born in
the allegiance of the King, and were thus subjects of England
as of Scotland. Similarly, it was ruled that Hanoverians born
during the union of the Crowns were British subjects, though
the kingdoms were completely distinct in government, and
lost their allegiance only when, on the accession of Queen
Victoria, Hanover ceased to be connected with the British
Crown. For the Dominions the fact has long had one great
advantage, though probably it has seldom been fully realized.
As British subjects, citizens of the Dominions are entitled to
whatever privileges are secured in commercial treaties for
British subjects, without regard to the fact whether the Domi¬
nion has agreed that the treaty in question shall apply to her
territory or not. Thus, for example, under Article I of the
Anglo-Japancse Treaty of 1911 Australians arc at liberty to
enter, travel, and reside in the Empire of Japan, although
Australia has not accepted the treaty and no Japanese citizen
can enter Australia save as a matter of courtesy. Foreign
Powers doubtless might take exception to the existence of
such a differentiation, but they can only do so when framing
fresh treaties, and it may safely be assumed that the whole
of the influence of the British Government and the Govern¬
ments of the Dominions would be exerted to counter any such
attempt to vary the existing practice. The matter, of course,
has another side: when, for example, the United Kingdom
surrendered by the Treaty of Lausanne her extraterritorial
jurisdiction over British subjects in Turkey, or renounced in
1926 similar rights in Albania, she neither could nor would
IMPERIAL RELATIONS
72
limit the renunciation by excluding its application to Domi¬
nion citizens. Nor is it desirable that any change should lake
place; it is no part of the report of i<)2(> to destroy (he unity
of the Empire; its aim is to assert and extend the autonomy of
the units whose interaction is essential to the whole.
Another problem of a more material kind has been created
by the assertion of the report in favour of the removal of any
sign of superiority on the part of the Imperial Parliament
and Government over those of the Dominions, The Domi¬
nions have profited greatly by the recognition, at their earnest
request, of their loans as trustee securities, {'or without this
recognition it is absolutely certain that they must have paid
substantially more for the enormous amounts which, very
naturally, they have borrowed in pursuance of the essential
work of developing their virgin, lands. Now one | >rineiple
has been insisted on by the British Government as a condition
of placing Dominion loans on the list of trustee stocks: each
Dominion Government has been required to place on record
the view that any Dominion legislation impairing the security
for the loan would properly be disallowed. The power of the
Crown, on the advice of the British Government, to disallow
any Dominion Act remains still absolute in law, but (he: Con¬
ference referred this, with other technical points, for considera¬
tion by an expert committee. The matter is complicated by
the fact that the Australian States are also deeply concerned
as constant borrowers on the London market, and, while it
would not be impossible to discriminate between the case of
the States and that of the Dominions, a vital change as regards
the latter would evoke strong claims for similar treatment by
the States. 1 In any case the use of disallowance is too drastic
a weapon to be relied upon, and the obvious solution which
suggests itself is the adoption of an agreement for the reference
to an impartial authority within the Empire of any dispute of
This issue has been solved in part by the financial agreement under which
the Commonwealth is responsible for State debts; see Keith, CkmUitutknal Urn
Of the British Dominions, p, 315,
IMPERIAL RELATIONS 73
a pecuniary character which may arise between the British
and a Dominion or State Government. An obvious tribunal
is present in the Judicial Committee of the Privy Council,
with a fuller representation of Dominion judges, which might
well play the part of determining inter-imperial disputes, just
as the Supreme Court of the United States decides inter-State
disputes issues, and it may be noted that as early as 1879
some such conception of the development of the Committee
was present to Sir Michael Hicks-Beach as Secretary of State
for the Colonies.
46. THE SOUTH AFRICAN FLAG
To the Editor of the Scotsman, 22 October 1927.
Your correspondent 'South African 5 in your issue of to-day
contends that the new constitutional position 'converts the
legitimate aspiration for a national flag into a moral necessity 5 .
It is interesting to contrast with this view the opinion of the
Premier of Quebec, whose right to speak for French Canadians
is sufficiently established by the elections of May 16 which
gave the party under his leadership 74 seats in a House of 85.
Speaking at Toronto on June 15, after asserting that 'the pro¬
vince of Quebec will stick to the British tie and the British
connection as long as the British Empire shall endure 5 , he
added, 'The British flag has given us liberty, and the British
flag docs not interfere with our national aspirations. 5 It is
clear that Mr. Taschercau does not share the view that the
equality of the Dominions with the United Kingdom demands
the creation of a distinctive flag.
But, granting the legitimacy of the aspiration for a national
flag, it is clearly unfortunate that it should be found necessary
to impose it by mere weight of numbers, and no satisfactory
explanation appears to have been offered why the Govern¬
ment of the Union has refused to accept the design proposed
by the majority in the Senate under the suggestion of General
Smuts, under which the Union flag would accord equal
74 IMPERIAL RELATIONS
space to the Union Jack, to the old flag of the South African
Republic and to that of the Orange Free State. The doc¬
trine of equality asserted by the Conference of uyA) was,
after all, that of equality in the Umpire, and the opposition
in the Union can hardly be blamed if it resents (Joncral
Hertzog’s description of the Union Jack as an intruder
there. 1
47. GENERAL HERTZOG’S NATIVE POLICY
To the Editor of the Scotsman, 16 December kjtj.
Three causes may be suggested for the remarkable, petulance
of General Hcrtzog, on which you comment to-day. In the
first place, the position of the British Government in respect
of the abolition of the native franchise as it exists at present;
in the Cape of Good Hope must inevitably be discussed When
union was agreed upon, the British Government naturally
suggested that Cecil Rhodes’s ideal of equal rights for every
civilized man might be borne in mind when the franchise was
discussed, while, on the other hand, the representatives of the
Transvaal and the Orange River Colony stood firmly for the
exclusion of natives from the vote, for the time being at any
rate. The result was a compromise which afforded a special
constitutional protection to the Gape native vote, and that
protection was strengthened by the British Government in
deference to the wishes of the House of Commons, for a special
clause was inserted in the Royal Instructions to the Governor-
General requiring him to reserve in particular any Bill taking
away the native vote in the Cape. As such a Bill under the
Constitution itself must be reserved, this unusual procedure
was adopted to distinguish between ordinary cases of constitu¬
tional change to which, after reservation, assent would be
given practically as a matter of course, and the exceptional
1 For the final compromise see Keith, The Sovereignty of the British Dominions,
pp. 6o, 61, 273.
IMPERIAL RELATIONS
75
case of the native franchise, alteration in which would require
serious consideration by the British, Government No change
in this position has been made by the Imperial Conference
Report in 1926; that Janus-like document expressly qualifies
the right of each Dominion Government to advise the Grown
in all matters relating to its own alfairs by the words "apart
from provisions embodied in constitutions or in specific sta¬
tutes expressly providing for reservation 5 . Where reservation
is provided for by statute, we have Mr. Baldwin’s authority
for the view that no constitutional change has taken place so
far, nor is the matter open to doubt. A reserved Bill must be
assented to by His Majesty in Council, and nothing can be
done in Council save on the advice of a British Minister.
General Hcrtzog doubtless desires to prevent any opposition
in the British Parliament to the acceptance of any measure
which may finally be reserved for the royal assent: but it is
clearly inconceivable that any British Government would
interfere in the deliberate decision of the people of the Union,
whatever views it might hold regarding the wisdom of the
native policy of that Dominion.
Secondly, General Hcrtzog is doubtless concerned with the
bearings of his native policy on the question of the transfer of
Basutoland and the Bechuanalaml and Swaziland Protecto¬
rates to Union control. These territories have so far been
administered by the British Government, on the principle of
trusteeship for the natives; transfer to the Union would mean
that the natives would be relegated to a definite status of
inferiority and their interests subordinated to those of the
European population. It, is clearly a very difficult issue to
decide whether His Majesty's obligations, in view of past
promises given in the name of the Crown to the natives of
these territories, arc compatible with the transfer of the terri¬
tories to the Union. When the possibility of such transfer was
considered by the British Government in 1909, the British
Government; of the day had no expectation that the native
franchise in the Cape would disappear, and, instead, hoped
76 IMPERIAL RELATIONS
that gradually a measure of native represenUition on an equi¬
table basis would be introduced. 1
Thirdly, General Hertzog is aware of the criticism which
has been directed against the mode in which the Union has
interpreted the ‘sacred trust of civilization 1 entrusted to it in
the form of the mandate for South-West Africa. Admittedly,
that territory is governed primarily in the interests of the
European population, and it is not; surprising that Germany
and other members of the League of Nations should question
the adoption of a line of policy which, after all, was the justi¬
fication of the deprivation of Germany of the territory. But
the British Government has sedulously abstained from any
criticism or suggestion of intervention.
48. GENERAL HERTZOG AND THE IMPERIAL
CONFERENCE
To the Editor of the Scotsman, cj March kjx8 .
It is interesting to find that General Hertz,og has finally
decided to adopt the view that the resolution of the Imperial
Conference of 1926 has conferred upon the Union complete
sovereign international status, with the result that, when war
is declared by His Majesty on the advice of the Imperial
Ministry, the Union will not be affected by the declaration,
but will be in the same position as any neutral foreign State.
By asking the Union Parliament to accept the resolution of
the Imperial Conference on this understanding, he has gone
much farther than a mere expression of opinion, and the
matter can hardly be allowed to remain ambiguous. The
new claim must be distinguished dearly from the fact, ad¬
mitted for the last twenty years at least, that It is entirely lor
each Dominion to decide in the event of war to what extent
active assistance shall be given to the United Kingdom; it has
far-reaching consequences for practical life, for, if the declara¬
tion is sound, during a British war British South Africans will
1 See No. 115, post.
IMPERIAL RELATIONS
77
be free to trade at their pleasure with the enemy, and the
Union Government will be bound to secure that they render
no non-neutral services to the mother country, unless it defi¬
nitely departs from neutrality and nullifies the advantage of
its new status by taking upon itself deliberately participation
in the war.
Now from the Imperial point of view the claim made by
General Hertzog is decidedly amazing. The Imperial Confer¬
ence, in his opinion, sitting in secret, none of the Prime Minis¬
ters having any mandate whatever from their Parliaments on
the topic, was competent, with the sanction of the King, to
break up the diplomatic unity of the Empire, and to create
instead a number of sovereign independent States. No more
amazing negation of democratic control can be imagined,
and the absurdity of the contention is increased when we find
that, while the Parliaments of the United Kingdom and the
other Dominions have also discussed the report, in none has
the view been affirmed that the Dominions arc sovereign
independent States in the sense asserted by General Hertzog;
even in the Irish Free State the issue was evaded, and Messrs.
Mackenzie King, Bruce, and Coates would clearly decline to
homologate the assertion of General Hertzog. They recognize
that this is a matter which can only be dealt with deliberately
and frankly, with the full assent of their Parliaments, and
that the fate of the Empire is not to be disposed of at a secret
conclave.
From the international point of view, of course, the decision
of an Imperial Conference is only of subsidiary importance,
and it may safely bo assumed that no state in friendly relations
with the United Kingdom would treat the Dominions as
sovereign in General Hertzog's sense merely on the strength
of it. There is a perfectly simple way to dispose of the issue.
If the British Government agrees with General Hertzog, it
has merely to send a circular to the Powers of Europe and the
rest of the world, intimating, as it did in the ease of Egypt,
that it recognizes the Dominions as sovereign independent
IMPERIAL RELATIONS
78
States, subject, as In that ease, if it thinks fit, to any qualifica¬
tions. It Is clear, of course, that the British, Government could
not take any such step without the approval of Parliament and
the other Dominions, and this fact really disposes of the
validity of General Hertzog’s claim.
It is, however, clearly to be regretted that the Conference
of 1926 fell back on the device of seeking under ambiguous
phraseology to reconcile very opposite views, and, as General
Hertzog is so refreshingly frank in the assertion of his views,
it would be satisfactory to have like candour from some
representative of the British Government. Vague rhetoric is
not always adequate when definite issues are, legitimately
enough, posed.
49. THE PRIVY COUNCIL AND THE IRISH
mu r-rr* 1
^iMir JL >^1 tJ L
To the Editor of the Scotsman, 26 April rgzH.
The Privy Council has now twice come into conflict: with
the Government of the Irish Free State, in both cases with
disastrous results. In the first the issue was a purely domestic
one in which it would doubtless have been wiser for the Judi¬
cial Committee to refrain from granting leave to appeal. The
Free State Parliament forthwith disposed of it by enacting
that the law meant what it was held to mean by the Supreme
Court. The second ease was very different: it turned on the
interpretation of the Treaty of 1921, and there is no doubt
whatever that it was the deliberate intention of the British
Government that the Judicial Committee should have the
final voice in the issue of the meaning of the treaty. The Irish
Free State has never disguised its intention that its own
Courts shall have the final say, and it attempted, though
ineffectively, to have this conceded at the Imperial Conference
of 1926. But in fact, as has just been seen, the Judicial Commit¬
tee has been driven to confess error, and the Parliaments of
the United Kingdom and the Free State ate pledged to undo
Jk k J?
IMPERIAL RELATIONS yg
that error, unless an exit can be found in the unprecedented
action of the Privy Council in reversing one of its own judge-
ments.
As the determination of the Free State is clear, and as
episodes of this kind arc fatal to the prestige of the Judicial
Committee and will do great injury to it in the rest of the
Empire, has not the time come for the abandonment of the
claim that the Judicial Committee shall be the arbiter in
disputes as to the meaning of the treaty? Would it not be
far more digni Qed and more in keeping with the interests of
the Empire for the British and Free State Governments to
agree to arbitration by a tribunal representative of the United
Kingdom and all the Dominions of issues of this kind? Such
a procedure seems open to no objection on score of principle.
The Irish Free State; cannot claim that it is to have the last
word as regards the interpretation of a treaty, and it is obvious
that, as matters stand, the possibility of using the Judicial
Committee as a Court: with final powers of interpreting the
Constitution has disappeared. 1
50. THE EMPIRE AND THE PEACE PACT
To the Editor ofrtm Scotsman, to July I'jEt.
Whatever its merits on other grounds, it is clear that the
acceptance of tlu; new treaty renouncing war entails a further
weakening of the cohesion of the British Empire, and at last
presents a tangible argument to those who, like General
Hcrtzog, maintain that a Dominion can adopt the. legal status
of neutrality during a war in which the United Kingdom is
engaged.
The British Government has reserved the right to treat an
attack on Egypt or on Iraq as in effect an attack on British
territory and as justifying war. The mode of dealing with the
new treaty under which it will be accepted for each Dominion
separately will create a very difficult position, if there should
1 See Keith, Constitutional I/ixo of the British Dominions, pp. 277 IT.
8 o
IMPERIAL RELATIONS
arise a position of affairs in which the British Government
believes that it must go to war, while that of Canada or South
Africa holds a different opinion.
The Canadian Government has already made it clear in
connexion with the proposed treaty of alliance wilh Egypt
that Canada would be unlikely to take active steps to aid the
United Kingdom in a war arising out of this alliance. The
matter now, however, goes much farther. Canada, might well
feel that under an international engagement she could not go
to war, and must therefore preserve complete neutrality, while
in view of the treaty such neutrality would be accorded
recognition by the Powers.
A comparison with the Locarno Pact will show how much
farther we have advanced in the disintegration of the inter¬
national unity of the Empire. The advantages of this weaken¬
ing to foreign Powers arc obvious, and it may be assumed that
if there has been some lack of enthusiasm in the Foreign (Hlice
in regard to the treaty, it has not been unconnected wit h reflec¬
tions on the danger of weakening an Empire which, by unity
in the past, has served very substantially the cause of peace.
51. IMPERIAL POLICY CONSULTATIONS
To the Editor of the Scotsman, 22 February
With all due deference to your London correspondent, I do
not think that Mr. Mackenzie King 1 can be held to have ‘mis¬
interpreted unintentionally the rules of procedure laid down
by the Imperial Conference of 1926’ regarding treaty negotia¬
tion. It is perfectly true that the decision of the Conference
authorizes any Government, which lias notified to the other
Governments of the Empire its intention to proceed with a
treaty negotiation, to proceed with that negotiation if it has
received no adverse comments, and its proposals involve no
* King criticized in the Canadian House of Commons the failure of (lie
British Government to keep Canada au courant with the Anglo-Kreach naval
negotiations; see J.P.E. x. 313.
IMPERIAL RELATIONS
81
active obligation on the part of other Governments. But I
can find no authority for the view that this rule was intended
to absolve a Government in these circumstances from keeping
the other Governments informed of the process of its negotia¬
tions, and it appears clear that the giving of such information
is most desirable. A negotiation of any importance may at
any moment develop issues which may interest a Dominion,
and it can never be safe for the Imperial Government to
assume that it is able to judge effectively whether its proposals
do or do not impose what is vaguely styled an ‘active obliga¬
tion 5 on any Dominion. Moreover, in view of the specially
intimate relations between Canada and the United States
and France, it would seem that information should have been
tendered as a matter of course, nor is any explanation obvious
for the lact that Canada was informed of the final outcome
only after some Governments had been notified of it through
the British Embassies.
I have always understood that the rule was that the Domi¬
nions should be kept informed of the course of all important
negotiations unless they intimated that; they did not; consider
this necessary, and it seems dear that any other procedure is
dangerous to Imperial harmony.
5 2,
GENERAL HERTZOG ANT) THF
GERMAN TREATY
To the Editor of mu Scotsman, x> March ./pap.
General Hertzopfs claim that the ratification of a treaty 1
is an executive act, and that it is within the discretion of a
Government to decide whether it will or will not take both
Houses or Parliament into consultation on the advisability of
action, is doubtless sound as a general proposition. Nor is
there any doubt that, if ratified, a treaty becomes binding,
1 The Treaty of upd! with < lermany precluded any further British preference
over that; power and was objected to in the Senate on that score. J his anomaly
was rescinded only after the Ottawa agreement with the United Kingdom ol
* 93 *-
u
ippears to
ugn legisiauo
nicipal law. 1
ed: the cfFcct
xcndmcnl Act
•cement for reciprocal cuuerc
the Union with a foreign Slate is to have no force or effect until
approved by resolutions of both Houses of Parliament, so that
prima facie there is a constitutional duty on the Prime Minister
to secure these resolutions before ratification is decided upon.
Of course, if ratification is carried out without obtaining the
lcurrcncc of tl
the matter cai
uc passed, in cvuu ui uisa-giecmciu uciwecn me nouses, in a
joint session. The reports do not make it clear what plan has
procedure proposed is in any case not in accord with the
arrangements accepted by Parliament in 1925, and is, there¬
fore, open to substantial objections on constitutional grounds.
May I, when writing, point out that the action of Lord
Strickland, which appears to have excited ecclesiastical in¬
dignation, seems to have consisted in the main in his energetic
efforts to assert in Malta, as against Italian, the rights of
English, on the one hand, and of Maltese, the speech of the
great majority of the people, on the other? It is incredible
that he should really be hostile to the Roman Catholic Church
in Malta.
53. BRITAIN AND THE WORLD COURT
To the Editor of the Scotsman, 18 March X929.
There are, I think, serious objections both on international
and national grounds to the proposal, which is being pressed
forward by the British Government, 1 that in a dispute before
the Permanent Court of International Justice, to which a
1 It failed to secure acceptance on the ground in
relevant to the discussion in which it was raised,
mined.
primis that the issue was not
The matter is still undeter-
IMPERIAL RELATIONS 83
Dominion is a party, the Dominion should be entitled to a
national judge in addition to a British judge.
Internationally, in a dispute between Germany and Canada
this would mean that Germany would be expected to regard
as just the fact that as against a single German judge there were
two judges representing nations owing a common allegiance
and associated in the British Empire, and, what is even more
significant, both exponents of the English school of Inter¬
national Law. It is really asking too much to expect that this
position would be acceptable. Consider also the position if
the United States should consent to accept the jurisdiction
of the Court in a dispute with Canada.
Nationally, it cannot be overlooked that, if the Britishjudge
were to disagree with the Canadian judge, the average Cana¬
dian would regard his action with the same disfavour that was
meted out to Lord Alverstonc’s ‘betrayal 3 of Canadian interests
in the Alaska boundary case. What is more important is that
the British insistence on the distinct character of the Dominions
is wholly opposed to the claim which is made that the Irish
Free State cannot demand that a dispute with the United
Kingdom can be dealt with by the Permanent Court. If
membership of the Empire limits thus the status of the
Dominions, it is reasonable that it should be admitted that it
cannot be claimed, as against foreign States, that British and
Dominion judges are totally distinct.
What is required is simply that, if a Dominion is concerned
in litigation, it should have the right to have its own judge on
the Court in lieu of the Britishjudge, unless it prefers to waive
the claim. That would afford it the fullest admission of status
without infringing the rights of other States and diminishing
the validity of the doctrine of Empire solidarity.
54. INTER-IMPERIAL DISPUTES
To the Editor of the Scotsman, 2 May igsg.
While the case against the immediate acceptance by the
Empire of the optional clause is doubtless conclusive, one of
IMPERIAL RELATIONS
the arguments used by the Lord Chancellor is dist inctly cl is-
appointing. He adduced as a matter which would require
reservation inter-imperial disputes, 1 and it must be concluded
that in his view this issue has not, as most of us Imped, been
finally disposed of by the Imperial Conference of i ()•*>(>. I t: was
then agreed that the terms of international conventions must
not be regarded as regulating inter sc the rights and obligations
of various parts of the Empire, a principle asserted by the Legal
Committee of the Arms Traffic Conference of 1925, and it has
been generally held that this agreement was a definite negation
of the former claim of the Irish, free State that inter-imperial
arrangements were treaties of international law.- A natural
deduction from this principle has been that questions a,rising
between parts of the Empire are not: within the sphere of
the Permanent Court, and that this issue is irrelevant to the
question of acceptance of the optional clause.
As the Lord Chancellor has thrown doubt on the soundness
of that deduction, it is plain that the point should be cleared
up as early as possible. If there is agreement on the point
among the Governments of the Empire, a formal intimation
of the accepted view might be made to the League Assembly
at its next meeting, when an appropriate opportunity would
be afforded on the occasion of the discussion of the revision of
the Statute of the Permanent Court. If such agreement un¬
happily docs not exist, the issue should be dealt with by the
next Imperial Conference. 3
55. THE WASHINGTON HOURS CONVENTION
To the Editor of the Scotsman, 12 June xgsg.
There arc two sets of difficulties regarding the ratification
of the Washington Hours Convention. The first consists of the
fact that foreign Powers notoriously interpret its terms in
1 The Labour Government in accepting the clause in i<)'2<) made this
reservation; see Speeches and Documents on the British Dominions, ujtH p. 413.
See No. 40, ante.
Sec No. 58, post.
IMPERIAL RELATIONS 85
many matters far less strictly than does the United Kingdom,
so that in practice the Convention must operate against
British interests. It is clear from the history of the Convention
that this disadvantage cannot be removed; acceptance of the
interpretations arrived at in 1926 at the London Conference,
even were it possible, would still leave much unsatisfactory.
The second difficulty is presented by the fact that certain
British practices may be held not to be warranted by the Con¬
vention, though they are beneficial to the workers, and that
international action against the United Kingdom might be
taken in respect of these practices if the Convention were
ratified without amendment. In this case it may be possible
to avoid any real danger of international complaint. The
Government, in view of its policy in 1924, will doubtless
seek the approval of the House of Commons for ratifica¬
tion, and the House can place on record its interpretation
of the ambiguous clauses of the Convention, and the
ratification can be expressed as being based on that inter¬
pretation. It would, of course, not be binding on other
States as regards their own interpretation, but it would
doubtless preclude them from challenging the legality of the
British practices.
While the governmental rule of 1924 as regards ratification
deserves to be followed, it may be hoped that there will be
no repetition of the grave error of that year when recognition
de iure was accorded to the Russian Government without
obtaining the concurrence of the Dominions. It is understood
that the Prime Minister gave a definite assurance that this
procedure would not be repeated, and the appointment of
Mr. Ponsonby to the Dominions Office may be explained by
a desire to use his diplomatic talents to secure Dominion con¬
currence in foreign policy. Recognition is clearly an issue in
which Imperial division is seriously to be deprecated, and
Canada in special has very strong views on propaganda by
Bolshevist agents in her territory.
86
IMPERIAL RELATIONS
5 '
,6. THE GOVERNMENT AND RUSSIA
To the Editor o/'tiie Scotsman, rj July /. <y~\<).
Mr. Ramsay MacDonald’s attitude towards the resumption
of official relations with Russia raises two points of difficulty.
Even the late Government, despite its control of the. House of
Commons, made its final determination to sever relations
dependent on the approval of the House of Commons, and it
seems far more essential that this approva l should be accorded
when the Government in office; controls only a minority of
votes. Moreover, when it is remembered lu >w much stress was
laid in 1924 by the Labour Government on the necessity of
parliamentary sanction for treaty ratification, it is difficult to
understand why a mere executive decision in regard to the
resumption of full diplomatic relations should be. deemed
adequate.
Much more serious, however, is tin; fact (hat. the Prime
Mi n ister seems to contemplate as possible such a resumption
by the United Kingdom, even if one or more of the Dominions
do not agree. In 1924 recognition of the Russian (Jovernment
de iure was accorded without Dominion assent; it was generally
held that it bound the Dominions, and, in deference to their
objections to such a course of action, pledge's not. to act again
without consultation were given. 1 But: it: will be. most un¬
fortunate if it is finally decided that the United Kingdom can
resume relations, while one or more of the Dominions may re¬
fuse to do so. This would create a new precedent of breaking
up Imperial unity, and one for which the prime responsibility
would rest with the British Government. Before anything of
this sort occurs, it would seem incumbent on the. Prime
Minister to use every possible effort to secure; agreement in
united action, and recourse to separate action should be had
only if Dominion opinion should prove wholly unreasonable,
of which there is at present no suggestion.
1 See Keith, The Sovereignty of the British Dominions, ]>p. viii, 3 ( l r »
IMPERIAL RELATIONS
87
57. THE RUSSIAN NEGOTIATIONS
To the Editor of the Scotsman, 2 October ig 2 g.
The Foreign Office announcements on the Russian negotia¬
tions remain silent on the vital question of Dominion concur¬
rence in the proposed resumption of full diplomatic relations.
In 1924 recognition de jure was accorded to Russia without
Dominion assent, and admittedly bound the whole of the Em¬
pire. Under the Conference resolutions of 1926 it is clear that
action of the type of 1924 would be unconstitutional, and that
it must be made clear, if diplomatic relations are resumed, to
what portions of the Empire their sumption applies. There
is no precedent for partial resumption of diplomatic rela¬
tions, and it is manifestly most undesirable that one should be
created unless in case of absolute necessity. Has the Foreign
Secretary secured the concurrence of the Dominions and India
in the resumption of diplomatic relations? If not—and the
attitude of Australia suggests grave doubt—are there sufficient
reasons for breaking the rule of joint action in foreign policy,
just recognized in the case of the acceptance of the optional
clause by all parts of the Empire save the Irish Free State? It
may be hoped that these matters will be taken up seriously
when Parliament meets. No doubt to concert action with the
Dominions is tedious, and it is simpler for each part of the
Empire to go its own way; but the process must be destructive
ultimately of that Imperial unity which each Conference
assures us all the Governments of the Empire are determined
to uphold.
58. THE IRISH FREE STATE AND THE
OPTIONAL CLAUSE
To the Editor of the Scotsman, 17 September ig2g.
The action of the Irish Free State in respect of the optional
clause of the Statute of the Permanent Court of International
Justice, reported in your issue of to-day, indicates the desire of
88 IMPERIAL RELATIONS
the State to reopen the controversy, which seemed to be closed
by the resolution of the Imperial Conference of i <)*(), regarding
the relation of the British Empire to the League Covenant.
This attitude increases the ncccssi ty of care being t ake.n by other
parts of the Empire in signing the clause to exclude from the
operation of compulsory reference to the Court disputes arising
between different parts of the Empire, for, while the general
view within the Empire is that such disputes could not fall
within the sphere of the Court, it is plain that the Irish Free
State docs not homologate that view. Express reservation by
the United Kingdom and the rest of the parts of the Empire
will remove any risk of misunderstanding or controversy.
It is clear also that it is most desirable that not only matters
of prize law but also immigration issues should be expressly
excluded. No doubt the prevailing doctrine regards immigra¬
tion as an issue of a domestic character which would not fall
within the sphere of the Court, but the matter should not
be left in the slightest ambiguity; Canada, Australia, New
Zealand, and the Union should not expose themselves to the
possibility of having their exclusion policy questioned before
an international tribunal which on the merits might have very
little sympathy with it.
59. THE OPTIONAL CLAUSE AND THE
UNION OF SOUTH AFRICA
To the Editor of the Scotsman, 20 September 1929.
The High Commissioner for the Union, in his assertion that
but for the reservation made in accepting the optional clause
inter-imperial disputes i
Permanent Court, cites
ference Resolutions of 19:
that the Imperial Conference definitely laid it down that the
terms of any international convention ‘must not be regarded
as regulating inter se the rights and obligations of the various
territories on behalf of which it has been signed in the name of
KJ
IMPERIAL RELATIONS
89
the King 5 . This doctrine was accepted by the Parliament of
the Union, and clearly cannot be repudiated by the executive
of its own authority. Mr. Louw’s further argument that the
making of the reservation is an admission that without it such
disputes are justiciable by the Court is wholly untenable, for
the Governments concerned have also expressly reserved
questions falling exclusively within domestic jurisdiction. In
both cases they have acted ex majore cautela in order to prevent
the possibility of misunderstanding.
The reference to ‘situations or facts 5 in the acceptance is,
I think, not an effort to exclude from the cognizance of the
Courts decisions on points of law or of treaty interpretation.
It is intended to meet the necessity of preventing the Court
from dealing with the issues as to naval warfare which were
contested by foreign powers during the war. This is brought
about by confining jurisdiction to disputes arising after
ratification with regard to situations or facts subsequent to
ratification; the double safeguard will clearly prevent prize
questions being reviewed, while it may be hoped that in the
next ten years such progress will be made in defining inter¬
national law as to render it possible to avoid continuation of
the reservation of issues as to maritime war. It may, however,
be doubted whether so wide a reservation was really necessary;
at any rate it very greatly diminishes the significance of the
acceptance of the optional clause and contrasts curiously with
the stress placed on the issue by supporters of the Labour party
before the general election.
60. THE DOMINIONS AND PRIVY COUNCIL
APPEALS
To the Editor of the Scotsman, 22 November 1929.
In your London correspondence to-day it is suggested that
‘Australia and South Africa have already abandoned appeals
to the Privy Council without attracting much notice 5 , and that
the Free State objection to the appeal is dictated by these
IMPERIAL RELATIONS
precedents. There is, however, clearly a misunderstanding in
this suggestion. In Australia appeals lie. and a,re. regularly
brought, when desired, from the Supreme Courts of the States
and the High Court of the Commonwealth on all issues save
the narrow class of questions connected with the rights inter se
of the Commonwealth and the States and of the States among
themselves. The exclusion of this class of ease is provided for
in the Commonwealth Constitution of r 900, and it was agreed
to by the Imperial Government only after the fullest discussion
in Parliament. In the case of South Africa there is no pro¬
hibition whatever of appeals on any issue from the final court
of appeal there. Power to limit the appeal is given to the
Parliament, subject to reservation of any Bill on this head. But
no such measure has yet been passed, and General I Iertzog has
not committed himself to such action at present. Appeals are
few, because constitutional issues rarely arise in a unitary
constitution and in other matters the Privy Council has no
special competence, for the Union enjoys a unique legal
system.
In the Irish Free State an appeal on any issue constitutional
or otherwise lies from the final tribunal, and under the scheme
of the Constitution that appeal in constitutional matters can¬
not be destroyed by any Act of the Free State Parliament.
HillRH
due to the insistence of the Imperial Government,, and its
insistence again was due to the essential provision of the
Irish Treaty of 1921 that the Free State was to enjoy the con¬
stitutional rights of Canada. In Canada the appeal is pre¬
served essentially because of the protection it affords to racial
or linguistic or religious minorities, and in the Free. State
it was hoped thus to secure the position of the minority in
Southern Ireland. The gravamen of the charge against the
Free State is that it is violating its obligation under the treaty
of respecting the right of appeal and is overriding the clear
terms of its own Constitution. It is true that the means adopted
are not so far absolutely illegal, but most of us will agree that
IMPERIAL RELATIONS
9 1
the proper method of procedure would have been by means
of agreement with the United Kingdom and the formal altera¬
tion with its assent of the Constitution.
6x. THE REMOVAL OF THE LIMITATIONS ON
DOMINION LEGISLATION
To the Editor of the Scotsman, 5 February 1930.
The recommendations of the Conference on Dominion
Legislation in one very serious issue go substantially beyond
the proposals of the Imperial Conference of 1926. That
Conference contemplated the extension of the powers of the
Dominions to allow of extraterritorial legislation ancillary
to provision for the peace, order, and good government of the
Dominions, a limitation of the utmost importance, though
open to objection in point of form. The present Conference
has swept away this limitation, has refused to accept the pro¬
posal to limit the power to Dominion nationals, and has
proposed to give Dominion laws full extraterritorial validity.
The result will be of the gravest importance to Northern Ire¬
land. The Irish Free State will have the full power to regulate
the fisheries of Ireland and to penalize breaches of its enact¬
ments by British subjects in Northern Ireland. It will also be
in a position to pass financial and other legislation which will
exert a severe pressure on Northern Ireland to enter the Free
State. Some years ago, I understand, the Prime Minister of
Northern Ireland was fully aware of the danger of the grant of
full authority in this regard to the Free State, and it does not
appear that the risk of unfair pressure is now diminished.
Similarly, Australian efforts to tax British residents in the
United Kingdom in respect of profits derived in any degree
from the Commonwealth have been hampered by the decisions
ofthe High Court based on the territorial limitation; this with¬
drawn, it may confidently be assumed that Commonwealth
legislation will go even farther than it has attempted to go in
the past.
92 IM P E RIA L R E L A T X O N S
The issue is even more serious in its application to merchant
shipping. For the last twenty-five years tin' provisions of'the
Merchant Shipping Act, 1894, coupled with the restriction
on extraterritorial legislation, have ambled the Imperial
Government to prevent the (Commonwealth and Now Zea¬
land imposing on British shipping, not engaged in t he ('ousting
trade, Australian conditions of manning, pay, &c., whose
impracticable character is sufficiently attested by the ruin
which they brought on the Commonwealth Governmental
shipping adventure. In the same way both those Dominions
were restrained from excluding British Indians from employ¬
ment on British ships trading to these territories. 'Hus pro¬
tection is now to be thrown away on the strength of a vague
hope of agreement to restrict: the exorcist', of the legal powers
to be conferred. When the fate of the agreement unanimously
arrived at in 1907 on this head is remembered, the absurdity
of the proposal is obvious. It is clear that the purpose of the
Imperial Conference agreement of 1926 would be adequately
and justly implemented if the power of extra,territorial legis¬
lation were restricted to (1) Dominion nationals, and (2)
Dominion registered shipping and shipping engaged in the
coasting trade; as regards both these categories of shipping it
is indeed probable that the Dominions already legally possess
full power, but the matter might be made absolutely dear.
It is further unfortunate that the proposals as to reservation
and disallowance will afford the strongest grounds for Republi¬
cans in the Union of South Africa and the Irish Free State to
renew their efforts to bring about formal secession. 1 ('carried
out without further safeguards, it will be open to them to argue
that secession by simple Dominion Act is legal, a doctrine
which General Smuts has consistently denied; and the position
of those who are opposed to separation will be seriously
weakened. 1 The Free State will certainly claim the right to
abolish the appeal to the Privy Council. 2 As Dominion status
is asserted to be the goal of Indian progress, it is unfortunate
1 See No. 111, post. 2 See No. io<>, post.
IMPERIAL RELATIONS
93
that the Conference did not make it clear that that status does
not include the right to sever the Imperial connexion at the
pleasure of any member of the Empire.
It must be added that the proposed clauses of an Imperial
Act arc so badly drafted as to leave room for interminable legal
dispute. It is clearly desired not to interfere with the Canadian
Constitution; yet, as matters stand, it will probably be
open for the Federal Parliament to cut off the appeal from
the Supreme Court to the Privy Council, 1 and to enable the
Supreme Court to decide finally constitutional issues which
might overthrow the rights of the Provinces. It may be hoped
that this error at least will be corrected.
62. MR. BALDWIN’S PROPOSALS FOR A
REFERENDUM
To the Editor of the Scotsman, 5 March 1930.
However much one may sympathize with Mr. Baldwin in
the difficulties induced by the United Empire movement, his
own solution appears to be open to most serious constitutional
objections. In the first place, the idea of inter-imperial tariff
arrangements is, after all, only a revival in a modified form of
Mr. Chamberlain’s proposals, and to be of value it implies
that the Dominions shall check the progress of industrial deve¬
lopment as regards secondary industries. Now, students of
Dominion politics realize that the widest industrial develop¬
ment is part of the ideal of nationhood, which is accepted as
fundamental by public opinion in the Dominions, and, just
as Imperial federation has been absolutely rejected by the
Dominions, it will undoubtedly be found that they will equally
reject any proposal to hamper their industrial growth. Mr.
Baldwin’s suggested referendum is, therefore, never likely to
be put to service on this account.
In the second place, the whole idea of a non-political
1 In criminal causes this action was taken in 1933 by the Criminal Code
Amendment Act.
IMPERIAL RELATIONS
94
referendum seems chimerical when the Issue Is, as Mr.
Baldwin insists, £ a constitutional issue if ever there was one 5 .
The Commonwealth of Australia included in its Constitution
the referendum on constitutional changes, and experience has
shown that the referenda have been bitterly lought on party
lines, utterly falsifying the predictions of those who, like Mr.
Baldwin, fancied that an appeal to the people to change the
Constitution could be conducted in an atmosphere of detach¬
ment from political party. The Irish Free State has so clearly
recognized the dangers of the referendum that It has ejected it
for normal purposes from the Constitution, and even for con¬
stitutional change has relegated its application to a distant
future. A study of Dominion referenda will prove that they
can be held without involving political party action only when
the matters involved cut clean across party hading, as in the
case of liquor prohibition. To cite foreign practice is, I (ear,
useless, because the British parliamentary system of govern¬
ment differs essentially from continental practice, and I agree
entirely with the conclusions of Sir John Marriott: 'The
referendum is a natural product of conditions which differ
widely from those which prevail in England ; while it has
flourished on a soil impregnated with principles of federalism
and direct democracy, and among a people few in numbers but
keenly and closely interested In the art of government, its
transplantation to an alien soil might nevertheless be attended
with results disappointing if not actually dangerous.*
63. SHIPPING AND THE EMPIRE
POWERS OF THE DOMINIONS
To the Editor of the times, 15 April ig^o.
It appears from the memorandum of the Chamber of Ship¬
ping summarized in your issue of April 15 that the Chamber
is unaware of the nature of the proposals of the Confer cnee on
the Operation of Dominion Legislation and Merchant Ship¬
ping Legislation, 1929, accepted by the Imperial rep resent a—
IMPERIAL RELATIONS gc
tives at that Conference. These proposals contemplate the
complete abrogation of the whole of the protection accorded
to British shipping by the restrictions on Dominion legislation,
imposed by the Merchant Shipping Act, the abolition of the
supremacy of Imperial legislation hitherto secured by the
Colonial Laws Validity Act, and the grant to the Dominions
of unrestricted power of extraterritorial legislation.
It is thus proposed completely to depart from the agreement
achieved after prolonged discussion by the Colonial Merchant
Shipping Conference of 1907, which fully represented shipping
interests, and at which Australia had as spokesmen such pro¬
nounced Nationalists as Sir W. Lync and Mr. Hughes. It was
then agreed to be just and proper that each part of the Empire
should exercise complete control over its registered shipping
and all British vessels engaged in its coasting trade. This
principle conceded the full constitutional equality of the
several Governments, and there seem to be no adequate
grounds for the present proposal to accord to every part of the
Empire power to deal with all British shipping. No doubt the
framers of the Conference Report cherish the hope that legisla¬
tive chaos will be avoided by intcr-Impcrial agreements, 1 but
no one familiar with the trend of opinion on merchant shipping
legislation in the Commonwealth or New Zealand in the last
twenty-five years or with Indian aspirations on this topic will
feel any confidence in the fulfilment of this ideal.
64. SOUTH AFRICA AND SECESSION
To the Editor of the Scotsman, 21 May kmo.
There can. be no question that General Smuts's views on
the constitutional question of the right of secession arc legally
sound as contrasted with those of General liertzocr. The latter
1 See the Commonwealth Merchant Shipping Agreement, December 10,
1931; Speeches and Documents on the British Dominions* igrS 1931, pp, 12120-30.
Legislation to give odbcl to the agreement has been prepared by Canada and
I M P E RIA 'L R E R A T IONS
()6
has himself admitted that the Imperial Conference of 192G did
not deal with the claim of the right of secession, and it is clear
that it would have declined to consider it. The (lonlcrence of
1929 was held merely under a resolution of the Conference of
1926 in order to clarify the general principles enunciated by
the Conference of192G. 1 1 was a body essentially of teelmieal
representatives, not of Prime Minis tea's, and its agreement is
a matter for consideration by the Imperial Conference this
year. It would have been wholly improper for any such
subordinate body to introduce any fundamentally novel prin¬
ciple, and as matter of fact it is perfectly clear, as General
Smuts has pointed out, that the Conference recognized that no
right of secession had ever been conceded. Apart from the
question of the necessity of Imperial, accord in regulating the
issue of the Royal succession to which General Smuts has called
attention, the reference to the power of the Irish Free State to
alter its Constitution is carefully chosen to exclude the ad¬
mission of any right of secession.
Fortunately the proposal of redefining by Imperial Act the
powers of the Dominion Parliament will compel the due con¬
sideration by the House of Commons and the I louse of Lords
of the nature of Imperial relations. It is most unsatisfactory
and contrary to the spirit of the Constitution that these matters
should be left to secret deliberations of Prime Ministers and to
vague declarations open to such divergent interpretations as
those given by Generals Smuts and Hcrtzog. The Parliaments
of the Union and the Irish Free State alone attempted to define
what they understood by the resolutions of 1926, and their
interpretations would obviously have been rejected in the rest
of the Empire, The promise of Dominion status to India
renders it absolutely imperative that General Hertzog\s de¬
mand should be answered, and it be made dear whether any
part of the Empire has now the right by simple unilateral
action to retire from the Empire, or whether the consent of the
United Kingdom and the other Dominions must be obtained.
The same rule must apply to India, and it is earnestly to be
IMPERIAL RELATIONS
hoped that the issue will now be definitely faced by Parliament.
There is much to be said both for and against conceding the
right, but as General Hertzog is determined to raise the issue,
and is supported by the majority of the Union Parliament, it
is unwise to seek indefinitely to postpone serious discussion.
65. SOUTH AFRICA AND SECESSION
To the Editor o/t he Scotsman, p July rgp.
General Hertzog assures us that the Imperial Conference
most certainly will honour and uphold the resolution of the
Union House ofAssembly approving the results oft he Imperial
Conference oft 929, subject to the specific, proviso that the right
of South Africa to secede shall he maintained. The proviso,
which was passed on, a party vote by a majority of 12, is general,
applying to all the Dominions, and General Mertzog’s claim,
therefore, involves the view that the Imperial Conference- has
the right to declare that any Dominion may til, its pleasure
secede from the British Empire. It may lie (hat the right should
be conceded, in which ease, as India has been promised
Dominion status, the basis will be laid for a truce between the
parties in India, who contend for Dominion status and those
who demand full independence. But the immediate question
is, What mandate has the forthcoming Imperial Conference
to pronounce the opinion demanded by General Hertzog?
Certainly the doctrine for which lie contends was not conceded
by the Imperial Conference of 192b, and the Imperial Con¬
ference of 1929 was so far from conceding it that it laid it down,
with the assent oft he representatives of the Union, that ‘any
alteration in the law touching the succession to the Throne,
or the Royal Style and Titles, shall hereafter require the
assent as well ol the Parliaments of all the Dominions as
of the Parliament of the United Kingdom’. If there were
any doubt possible as to the meaning of this agreement,
it is removed by the express admission of the Minister for
External Allairs ol the Irish f ree State, who was a member of
u
Lament that that Parliament could not alloc,1 by any action
of its own the succession to the Throne.
General Hcrlzog, therefore;, is demanding' that the Con¬
ference shall nullify a resolution unanimously agreed to in
1929 on the strength of a vote in a single l louse of Parliament,
which he could with difficulty carry in the Senate, In no
other Dominion has any Parliament, oreven any I mwer 1 louse,
claimed the right to secede, and the House of (lommons has
never been invited to express any view on the issue. The
Imperial Conference, therefore, could not with any propriety
concur in the proviso suggested by General Ilrrtxog, and it; is
earnestly to be hoped that the issue will frankly he faced by
the present Government, and that it: will be made plain that no
pronouncement on the issue can be made unless and until the
question has been discussed in the Parliaments of the Empire,
66. THE DOMINIONS AND THE RIGHT OF
crprcci ANT
To the Editor of the Scotsman, set September row.
As it seems that the way is being prepared for an admission
status, it appears
exercising the right of secession shall undertake (1) to fulfil any
financial and commercial obligations existing towards the
United Kingdom, and (2) to respect; absolutely the (tarns of
any loans raised in the United Kingdom and admitted to the
status of trustee stocks. It will be remembered that the Im¬
perial Conference on Dominion Legislation in 1929 admitted
that the Imperial Government should continue to enjoy the
power to disallow Dominion legislation impairing the security
of holders of such loans, but the exercise of the right of scccs-
sion would sweep away this safeguard.
IMPERIAL RELATIONS gg
The practical necessity of some such provision is seen in
the fact that there is a widespread demand in India for the
repudiation in whole or part of the obligations of that Empire
both to the United Kingdom and to private investors, that the
Trade Union movement in Australia supports the repudiation
of the war debt to the British Government and of loans from
British investors, while the Commonwealth Prime Minister is
understood to be bent on securing the scaling down at least of
Australia’s war debt. There is, of course, the moral justifica¬
tion for these aspirations that the Irish Free State, despite its
treaty engagements, has succeeded in forcing the cancellation
of its obligation to bear a portion of the British debt; but there
should be limits to the burdens imposed on the British public,
and, if the right ofscccssion is to be recognized, it is submitted
that its exercise should not be encouraged by being made
profitable from the financial point of view. It is not inappro¬
priate to remember that the desire to be relieved of the burden
of private indebtedness to British creditors played no small
part in the secession of the American Colonics from the first
Empire.
67. PRIVY COUNCIL APPEALS
To the Editor of the Scotsman, 3 October 1930.
It is clear from the remarks of your London Correspondent
that some confusion exists as to the question of appeals to the
Privy Council from the Irish Free State. As matters stand at
present Ulster traders can derive no profit from the existence
of the right, and the real issue is whether the Free State is to
be allowed to deny to the Privy Council the final decision of
questions affecting the interpretation of the Constitution; for
instance, issues of the protection of the Protestant minority
from discrimination based on religious grounds, and the inter¬
pretation of the Treaty of 1921, which is the fundamental law
of the Free State, and in respect of which the Privy Council has
recently overruled the Supreme Court. These are matters
100
I M P E RIA L R E l, A TI O N S
which might be assigned to the new body which may be de¬
vised to deal with inter-1mperial disputes, for it is impossible
to accept the claim of the Free State to lx* da* sole arbiter of
the meaning of its treaty engagements. The Free State, of
course, contends that it is willing to go to tin* Permanent Court
of International Justice, but it is absurd to expect that; the
United Kingdom should consent to submit such an issue to the
decision of a Court; whose members are to an overwhelming
majority foreigners.
In the case of the Union of South Africa, the appeal to the
Privy Council could be abolished under the Constitution as it
stands by a Union Act, though, this would lx* resented by the
Opposition, and General Hertzog has not committed himself
to action in this sense. The Union is less opposed to the
erection of a Court to deal with Inter-Imperial disputes than
is the Free State, but the difficulty arises of so framing its
jurisdiction as to exclude the possibility of India, bringing
before it issues of the treatment of her citizens in South Africa,
It must be remembered that the idea of such a tribunal was
first mooted in respect of the illegal deportation, in 1914, of
certain British subjects from the Union, and no Dominion is
prepared to contemplate questions of immigration being re¬
ferred to a tribunal.
In Canada, retention of the appeal depends not so much on
popular sentiment—the appeal is the privilege of wealthy
corporations—but on the support given to it by the Provinces
—above all, Quebec, which regards It as assuring her privileges
as to religion, language, and education under the Constitution,
and by the fact that Canadian counsel now regularly act in
London in respect of these appeals, and that they attach great
value to the opportunity thus afforded of coming into close
contact with the Metropolis and its legal life. The objections
to it rest essentially on the feeling of loss of status; but, as the
present Prime Minister recently pointed out: , t»I'll t l^lil l
diate prospect of getting rid of the necessity of Imperial legisla-
1 See Keith, Imperial Unity, pp. 165 ff.
*
Docs any person imagine that His Majesty, in any issue of
1 See No, 79, post, and No. 8, ante.
I M P E RIA I, R E I., ATIONS
T no
serious character, would not feel bound to mention (lie matter
to his Prime Minister in the United Kingdom, or that he would
feel bound to act implicitly and without inquiry on the advice
of a Ministry whose members and position ho cannot', by reason
of distance, know accurately? At present, the formal interven¬
tion of the Foreign Secretary secures to the Imperial Govern¬
ment the power to ask a Dominion Government to consider
the effect of any proposed action on the interests of the Empire
at large. On the new theory, the King himself would have to
perform this function, and in effect this would mean in practice
that his Private Secretary would have to be in communication
with the Foreign Secretary on these issues. The fact is that,
whatever form be adopted, the connexion of the ’Dominions
with the Grown negates the absolute independence of action
which belongs to a State existing in isolation, and it is the duty
of statesmen to recognize facts.
69. THE IMPERIAL CONFERENCE AND SHIPPING
To the Editor of nm Scotsman, x December 10*i<>.
There is one matter only in which British interests are
substantially affected by the conclusions of the Imperial Con¬
ference. The Statute of Westminster will duly accord to the
Dominions full legislative authority over merchant shipping,
a just and long-urged concession of autonomy, which removes
the question from the constitutional sphere. But, as every
part of the Empire will enjoy full legal authority to regulate
shipping trading therewith, it is dearly essential that the
exercise of this plenitude of legal authority should be regulated
by agreement, if the result is not to be chaos. An agreement,
accordingly, has been drafted, but it is impossible to regard
the terms as in any way satisfactory. The net result of its
numerous clauses is merely to urge uniformity of treatment,
and the Governments of the Empire will fulfil their whole
duty thereunder when they ask their Parliaments to adopt
the principles therein laid down. Their Parliaments are left
cxi, at any rate, it
st on applying to
conditions which
ad whose burden-
pping enterprise,
tires that, subject
rt of the Empire
powcrca to scour
may apply to any
the agreement. £
the autonomy of 1
and would obviat
ping. The preser
shall not be aflbr
shipping, but it i
in practice impo;
can impose on B
great need of mai
as recent events
measures in the I
c would re
»f the Unit
cfcrence tc
:cs that Br
treatment
at no Do]
he restrict
3 exporting
arc singul
shown, i
s
be too strongly cmpliasimi tnai me. parallelism netween
the Dominion Constitutions and that of the United Kingdom
demands that the head of the Government should be free
from suspicion of partisanship. Upon him depends in the last
resort the maintenance of the balance of the Constitution and
the protection of the territory from tlie misuse of ministerial
power. To select, as has been done in Australia, a former
convinced supporter of Labour, whose views have manifestly
remained unaltered, is necessarily wholly improper. It is true
that Sir Isaac Isaacs will endeavour to act. impartially, but
it cannot be expected that opponents of Labour will ignore
the fact that in all likelihood he will have to determine the
very delicate question of a double dissolution of the Houses of
Parliament, nor will they forget that Labour nominees when
acting asGovcrnors in the States have flagrantly departed from
the duty of impartiality. Thus the Acting Governor of Queens¬
land swamped the Upper House in the I'ae.e of the decision ol'thc
country by referendum against its abolition, and the Acting
Governor of Tasmania assented to a Bill which, had been passed
by the Lower House only, 1 an unprecedented illegality, and
one committed by an officer who was also Chief Justice.
The most unfortunate part of the matter Is the unfair posi¬
tion in which His Majesty has been put. He should never have
Deen advised to make
;he alternative, if he r
mently attacked in An
that, of course, it wil
should be victorious ;
or not to advise the Crown to terminate the appointment of
the Governor-General, who holds office during pleasure. This
possibility is sufficient in itself to condemn action which
General Hertzog, despite strong pressure, declined emphati¬
cally to take as regards the Union.
1 Keith, Responsible Government (ed. 2), i. 489; ii. 1,246, 1,247.
the Grown should be one unconnected with the public life
he taken the same ground.
If Mr. Isaacs was ever a. member of the old Free Trade
Liberal party, he must early have abjured that faith. When
in office in Victoria he was a member of the Protectionist
Ministry of Sir G. Turner, and when in office in the Common¬
wealth lie was a member, not of the Free Trade Reid Ministry,
but of the Protectionist Ministry of Mr. Deakin. That Ministry
existed solely through Labour support, and Mr. Isaacs’s views
as a member thereof had the closest affinity with Labour aims.
He was translated to the High Court along with Mr. Higgins,
whose Labour affinities no one can dispute, and since then
he has steadily and consistently maintained a view of the
Commonwealth Constitution, which is in harmony with Labour
ideals. Most significant of all, he has defended energetically
the Commonwealth Court of Conciliation and Arbitration,
the question of whose continued operation was the vital issue
leading to the fall of the late Government. The sincerity and
ability of Sir Isaac Isaacs are unquestionable, but impartiality
cannot be expected from men with dee)) convictions, held and
acted upon for many years.
Needless to say, there was no necessity of selecting a British
lord, open to the suspicion of class bias. This country could
easily have supplied, had Mr. MacDonald been consulted, a
Governor-General free from all suspicion of partiality, and
of high distinction, whose age would have permitted him to
e
ik Dciwccn me
ere is, frankly
lien a judge
tire JtScncJti, He is ripe for the office oi uovernor-uenerai,
apart from the very grave objection to the creation of the
ure judges rm
eferment in tl
To the Editor of the Scotsman, io January 195/.
tooK no part m me appointment 01 me uovernor-Genenu ot
the Commonwealth of Australia is correct in the sense that
no Imperial Minister participated in the appointment, then
there is no ground to differ from his view that Sir Isaac Isaacs
has not been duly appointed. The Letters Patent demand
that the Governor-General shall be appointed under the Sign
Manual and the Signet, and this requirement precludes action
by any Minister who cannot control the use of the Signet.
Assuming for the sake of argument that the Sign Manual
could be affixed on the strength of a counter-signature by a
Commonwealth Minister, still the Signet can be added only
on the authority of the Secretary of State in whose control it
is. It must, however, be presumed that Mr. Thomas has duly
performed his part, and that therefore technically he has
assumed responsibility, though the real advice tendered to
the King was that of the Commonwealth Ministry through
the Prime Minister. If not, the sooner the matter is remedied
the better. The Letters Patent, of course, can be altered to
eliminate any Imperial intervention, and doubtless that is the
logical course to follow
To the Editor of the Scotsman, io February rggx.
It is most disappointing- to find that Mr. Scullin and Mr.
Theodore consider that the funding arrangements between
Great Britain and the United States justify an application to
the British 'Government for a reduction of the Australian war
debt, at the expense of the unfortunate British taxpayer. The
treatment accorded to Australia in 1921 in respect of its in¬
debtedness of over £92,000,000 was most generous. Australia
pays interest at £4 i8.v. 4 d. and sinking fund of £1 is. t Id. per
cent., spread over about thirty-five years, and most of us will
agree with Mr. Bruce’s declaration in 1927 that The only
possible attitude in this matter for a self-respecting country
like Australia is that we are prepared to honour every obliga¬
tion into which we have entered’. All that he suggested was
that the British Government might fix the rate of interest at
the average amount which the United Kingdom was paying
for its war debt, which he thought was £4 15.9. per cent.; and
this suggestion, which was based on a very dubious view of the
facts, was rejected by the Chancellor of the Exchequer.
Mr. Hogan claims that the British Government should do
all that it can to help Australia in her difficulties, and it is
therefore relevant to point out that; the British Government,
again at the expense of the taxpayer, has already done much
in this direction. It has gladly consented to maintain its
burdens for the defence of Australia, while for her part the
Commonwealth has abandoned her former efforts to supply
an effective Fleet unit, has parted with her submarines, and
has given up compulsory service. No contribution has been
asked for in respect of Singapore, though New Zealand has
readily recognized that it is her duty to contribute to a scheme
dictated by the needs of Australasia. Moreover, the British
Government has waived the carrying out of Australia’s obliga¬
tions under the migration agreement of 1925, permitting
kina* the settle
108 IMPERIAL RELATIONS
igrecmcnl was made, while in Victoria itself the allegations of
the unjust treatment of immigrants under the scheme have
been so circumstantial and pressing that Mr. Hogan’s Govern¬
ment has been forced to appoint a Royal Commission to
investigate the facts.
It is consoling to find that Mr. Theodore’s experience of the
closing of the London money market to Queensland after
measures of a confiscatory character 1 has convinced him that
repudiation of debt would be ruinous to Australia. But it is
clear that with the acquisition of tlieir new status the question
of the security for Dominion loans assumes a new aspect, and
that the Treasury must reconsider and redefine the. conditions
on which Dominion stocks can be grunted trustee rank.
74. THE CROWN AND THE DOMINIONS
APPEALS TO THE PRIVY COUNCIL
Irish Free Stale under New Statute
To the Editor of tub, times, 16 November igyr.
While it is easy to sympathize with Lord Carson in his desire
to secure the interests of the Protestant minority in the Irish
a:
to conserve their interests by any provision in the Statute of
Westminster. The Treaty of 1921 cannot be interpreted by
to the Privy Council is implicit in the treaty is a purely legal
issue. The Privy Council has ruled that it Is implicit; but that
ruling was doubtless based in large measure on the fact that,
when it was given, the Parliament of Canada Intel no power
i, JL J X »
to the King in Council. If, as on one view, the result of the
Statute of Westminster is to permit the Dominion to abolish
the appeal, it seems probable that the Privy Council itself
would be bound to hold that under the treaty the Free State
1 See Keith, War Government of the British Dominions, pp. a58 JX; Responsible
Government (ed. 2), ii. 768, 769.
IMPERIAL RELATIONS
109
had acquired the like power, for it has been consistently held
by both the British and the Free Slate Governments that the
true meaning of the treaty is that the Free State can do any¬
thing which Canada has the right to do, whether Canada
exercises the right or not.
But, apart from legal rigid, the. question is whether the
retention of the appeal is really in the interest of the minority.
Would it not be better to make the decision of the Supreme
Court final, and thus to remove- one topic, of incessant friction
between the two Governments? The Irish Free State has
shown no disposition to violate the safeguards for the minority,
nor, if it desired to do so, need we assume that the Court would
fail to afford due protection. But in any event there would
remain to the British Government, if it held that the treaty
rights of the minority were being violated, that it could de¬
mand arbitration of the issue. The one concession which the
Free State might: well be asked to make is that it should for¬
mally agree that any question of the interpretation oft ho treaty
should be referred to an iutor-Imperial tribunal, of the typo
discussed at the Imperial Conference of iqgo, and should not
reserve any right, to refuse arbitration or to insist on an inter¬
national tribunal.
The only enduring basis of Imperial co-operation is equality,
and this implies settlement of disputes by arbitration, and
not by the decision of a tribunal representing essentially the
United Kingdom. Moreover, what applies to the Free State:
must ultimately be the model for relations between India, and
the United Kingdom, a fact which makes a wise settlement,
of the present issue of the greatest importance.
75. THE STATUTE OF WESTMINSTER: ANGLO-
IRISH TREATY RIGHTS
To the Editor of'vnv. Scotsman, it! Nomnhtr n/7/.
Lord Carson’s suggestion of the safeguarding of the Anglo-
Irish Treaty of 1921 in the Statute of Westminster is clearly
110
IMPERIAL RELATIONS
impracticable. The British Parliament cannot derogate from
any rights which the Free State has under the Treaty, and the
question of the right of appeal must rest on the interpretation
of that instrument. The British negotiators most unfortunately
failed to deal with the issue, despite its fundamental impor¬
tance, in the treaty itself, and the Irish Free State; c an, with
some show of justice, argue that it cannot he; expected to
accept as decisive as to the existence of the right as a matter of
treaty obligation the pronouncement of the: Privy Council as
to its own competence. Moreover, and this is the insuperable
difficulty, the British Government has from the first admitted
that the Free State is entitled on all matters not: specifically
regulated in the treaty to the rights of Canada. If, therefore,
as may well be held, the effect of the Statute is to allow the
Dominion to abolish any appeal from the; Supreme Court
to the Privy Council, it follows that the Privy Council itself
would rule that the Irish Free State has tlu; power to
cut off any appeal from its Supreme Court. The Irish
Free State’s view of its right to abolish lhe appeal may
thus be consistent with the treaty even in the view of the
Privy Council itself.
It will be seen, therefore, that such action by the Free State
is irrelevant to the question of its duty to honour its obligations
under the treaty in respect of aid of certain kinds for defence
purposes. It can be relieved of these obligations merely by
change of the treaty. In like manner the safeguards for Protes¬
tants cannot be
tion of the tre;
Supreme Courl
arbitration. What is really needed is the explicit acceptance
by the Free State of the obligation to arbitrate on request, and
to accept an inter-imperial tribunal of the type discussed at
the Imperial Conference of 1930. This is a concession which
the British Government, which has recently made concessions
of authority in external affairs of the most far-reaching kind,
IMPERIAL RELATIONS
III
ought to be able to secure if the Free State really desires to
respect its obligations.
The whole history of the appeal question is suggestive of
the danger which lies in the proposal that European commer¬
cial rights should be safeguarded merely by statutory prohibi¬
tions to be interpreted by the Indian Supreme Court with
appeal to the Privy Council 1 The result will be that any
reversal of a Supreme Court decision by the Privy Council
will be denounced as an unjust interference with the authority
of the Supreme Court, and maintenance of the appeal will
become impracticable. It will be most unfortunate if this
proposal supersedes that accepted on January 19 by the Round
Table Conference, under which the rights of Europeans would
be secured by a convention, based on reciprocity, whose in¬
terpretation would rest with an inter-imperial tribunal.
76. THE TERM BRITISH COMMONWEALTH OF
NATIONS
To the Editor of the Scotsman, 26 November 1931.
While one sympathizes with the Solicitor-General in the
thankless task of explaining away the many ambiguities of the
Statute of Westminster, it is unfortunate that he should have
added a fresh perplexity to the number in asserting that the
well-known term British Commonwealth of Nations is the
accurate description of the autonomous Dominions as a part
of the British Empire. Strange to say, Mr. Thomas seems to
have concurred in this statement, and to believe that this is
the meaning of the term when used in the Balfour Declaration
of status. In fact, of course, the term is derived from the Irish
Treaty of 1921, where it is synonymous with the term British
Empire, and this use has been constant ever since. The
Solicitor-General might have remembered that the Agree¬
ment of 1931 as to Commonwealth Merchant Shipping uses
the term British Commonwealth of Nations to cover the
1 See II, Nos. 19, 31, 40, and 41 > post.
112
IMPERIAL RELATIONS
United Kingdom and India, and that the Imperial Confer-
cncc of 1930 recommended the setting up of a Commonwealth
Tribunal, which is not to deal with disputes between the
Dominions only, but also with disputes between the United
Kingdom and a Dominion or a Dominion and India.
The true force of the term is one of aspect. It is used when
the whole mass of the territories of the King are regarded as
falling into co-equal and autonomous sovereignties, of which
the United Kingdom is but one. That is perfectly clearly the
sense in which it is used in the preamble to the Statute of
Westminster, and nothing but confusion can result if its mean¬
ing is suddenly to be restricted, with the inevitable suggestion
that the Dominions arc not really, as they claim to be, on the
same footing within the Empire as the United Kingdom so far
as formal sovereignty is concerned.
77. THE OTTAWA CONFERENCE RESULTS
To the Editor of the Scotsman, 22 August 1952.
There are two constitutional aspects of the Ottawa Confer¬
ence results which deserve to be stressed.
In the first place, there has been a unanimous reassertion of
the doctrine laid down by the Imperial Conference of 1926
that the relations of the several parts of the Empire arc not
governed by the principles of international law. If that were
not the case, the whole system of intcr-Imperial prefer¬
ences would be Impossible, as the operation of the most¬
favoured-nation clause in treaties with foreign Powers would
render it nugatory. There is no doubt that the rapid develop¬
ment of Dominion international status of late might have
threatened this position, and it is most satisfactory that econo¬
mic considerations have brought about recognition of the
grave character of interfering with this measure of unity. 1
Clearly the Conference resolution strengthens the case of the
British Government in insisting that, while the tribunal to
1 Sec No. 8, ante.
IMPERIAL RELATIONS 113
deal with the land annuities issue may be constituted other¬
wise than as contemplated by the Imperial Conference of
1930, the Irish Free State cannot expect derogation from the
principle that foreigners cannot act as arbitrators in an inter¬
imperial dispute.
Secondly, the action of the British Government in bringing
the Colonics and Protectorates into the proposals is a welcome
reminder that these territories are in essential connexion with
the Dominions as parts of the same Empire, whether or not
they arc regarded as belonging to the British Commonwealth
of Nations. It may be taken from the phraseology used that
the circumstances of each of the Colonies will be duly con¬
sidered before they arc actually brought into the schemes
prepared.
78. THE FIVE-YEAR LIMIT FOR THE OTTAWA
AGREEMENTS
To the Editor of the Scotsman, 20 October 1332.
May I call attention to certain considerations to which
sufficient regard hardly appears to have been paid in the
recent discussions on the five-year limit for the Ottawa agree¬
ments?
(1) A treaty with a foreign State and an agreement with
a Dominion are equally binding, though the obligation in
the former case is international, in the latter inter-imperial.
Parliament may refuse to honour such agreements; in the case
of a treaty, an arbitral tribunal or the Permanent Court will
then adjudicate on the breach; in the case of an agreement an
inter-Impcrial tribunal will act or there will be retaliation, as
in the case of our dispute with the Irish Free State. It is in
either event deplorable that a contract should be broken, and
Parliament will always be most anxious to avoid international
or inter-imperial default.
(2) It follows therefore that no Government should pledge
itself in such a way that it cannot reasonably expect to be able
1
11 4
IMPERIAL RELATIONS
to carry out. This has clearly been the criterion in all the
eases of treaties concluded for a period of years yet adduced.
When the great parties in the State arc agreed on a line of
policy, it is obvious that a duration of considerable length is
just and proper; but, even when Free Trade was our national
doctrine, it is to be noted that the Government of 1890 when
it promised Greece a low duty on currants limited its obliga¬
tion to proposing the reduction to Parliament, which accorded
unhesitating approval. The German Treaty of 1924, which
has a minimum duration of five years, was concluded by
a Conservative Government, with the hearty approval of
the leader of the Labour party, and represented an agreed
policy. The new Greek Treaty of 1926, with its concession for
currants, was limited to three years, and again was an agreed
measure.
(3) Now that we have two definitely opposed policies, it
seems clear that the only fair doctrine is that no Government
should pledge the country beyond the normal period which
it can expect to remain in office with the existing Parliament.
Otherwise a Labour Government might pledge itself to Rus¬
sia or some other Power in a way as distasteful to Conservatives
as the Ottawa agreements arc to Sir Herbert Samuel. Judged
by this criterion, the five-year period of these agreements is
on the whole not unreasonable, for the present Parliament has
a normal expectation oflifc of four years’ activity, and it may
be claimed that an extra year is not excessive, to allow for
consideration of readjustment. For Australia, with its three
years’ Parliament, the case is different, and Mr. Scullin is
probably justified in his strong criticisms, nor is the ease of
Canada without difficulties. It is probable that it would have
been wiser to restrict the period even in that ease to three or
four years, but that is a matter which the Dominion Govern¬
ments had to decide for themselves. It must, however, be
remembered that agreements with the Dominions arc valuable
only so long as they are welcome to the great masses of people
here and in those territories, and there is every reason for
IMPERIAL RELATIONS
1 *5
making such agreements as flexible as possible, a principle
which the Dominions inter se regard as absolutely vital.
79. THE INTERNATIONAL STATUS OF THE IRISH
FREE STATE
To the Editor of the Scotsman, ig January ig% 2 .
The handing over to the Free State of its new Great Seal by
the King, recorded in your Court news to-day, marks the
final establishment of the complete international sovereignty
of the Free State and the elimination of any British control.
Hitherto 1 the Free State has been subject to the restriction,
applicable to the other Dominions, that full powers to sign
treaties and the King’s ratifications of treaties have been
passed under the Great Seal of the Realm, which can be
affixed only on the authority of a British Minister, a procedure
which attested the maintenance of the diplomatic unity of the
Empire. With the elimination of this intermediary, and the
introduction of the practice of direct relations with the King
either through the Minister for External Affairs personally or
the High Commissioner, the Free State emerges as united to
the United Kingdom solely through the possession of the same
Sovereign, on the basis of the Treaty of 1921.
The position of the King under the new regime is inevitably
different from his position towards the Government of the
United Kingdom. History, the loyalty of his people, and his
constant concern actively with all important affairs of govern¬
ment give the Sovereign as regards United Kingdom affairs
a definite measure of authority, as opposed to formal power.
In the case of the Free State, it has been made clear by the
Government that the King is expected to act automatically
on the advice of Ministers as does the Governor-General in
internal affairs, and it would be obviously fatal for His Majesty
to endeavour to guide in any degree Irish Ministers. On the
other hand, it may be hoped that the Irish theory will in
1 See Nos. 8 and 68, ante .
practice be realized, and that complete freedom will result in
a cordiality of co-operation in external issues which is stated to
be impossible as long as any appearance of superior authority
remains.
It may be hoped that the system will now be completed by
Irish readiness to accept agreement to refer to an Imperial
tribunal any issues as to the interpretation of the Treaty oi
1921 which may arise between it and the British Government.
It is now obvious that retention of the right of appeal to the
Privy Council is impossible, and its formal abolition by a fresh
treaty miedit well be included in connexion with an aorccmeni
out tin
ain ma
factory
carryir
edied t
ight th
ation 0
on is d
01 me yji
State, ftar. ue v aiera s aratuac pi
value, and his technical argument
eliminate it is distinctly of the sai
attitude towards the appeal to th
substantial importance of the appeal was far greater than that
of the Oath.
For withholding payment of the sums due in respect of land
IMPERIAL RELATIONS
1X7
ities, Mr. dc Valera can cite the success of the present
xnment in securing exemption from payment of Ireland’s
hare of the British National Debt, and in compelling the
h Government to pay a part of the compensation which
ed under the Treaty to Irish Civil Servants. Why, he
well ask, should the British Government not continue in
ath of wholesale surrender of British rights in the interests
;er-Imperial amity? The chief objection to the indefinite
nuation of the policy is its effect on India. Practically
vhole of Indian political opinion is agreed that, on the
)gy of the treatment of the Free State, the United King-
ought to shoulder the burden of a very large portion of
e to
Government cannot make good its claims against the Free
State, it will be necessary for him at no distant date to face
the obligation of responsibility for much of the debt of India.
It is not an enlivening prospect, but it seems foolish to ignore it.
81. MR. DE VALERA AND THE OATH
To the Editor of the Scotsman, 30 March 1332,
Is there not a tendency both on the part of Mr. Thomas
and of the Independent Labour party to exaggerate the im¬
portance of the issue as to the oath taken by members of the
Irish Free State Parliament? It seems to me a very small item
in the issue of the relations between the United Kingdom
and the Free State, which are in vital matters clearly laid
down in the Treaty of 1921 and its subsequent modifications
and explanations, including the Statute ofWestminster. What
practical effect would the disappearance of the Oath from the
treaty as well as the Constitution have upon relations between
the two countries? Certainly there would be no change in
constitutional relations.
Mr. de Valera, of course, is utterly wrong in his mode of
r 18
IMPERIAL RELATIONS
procedure by unilateral action, and Iris only excuse is that he
is advised that the treaty does not impose the duty of taking
the oath, but merely defines its terms if an oath is to be taken.
This is a view which will hardly approve itself to judicial
minds, and, even if the Senate agreed to eliminate the Oath,
the Supreme Court might find itself bound to rule the aboli¬
tion invalid, for the Constitution is subject to the treaty.
Common sense suggests that Mr. dc Valera should seek to
negotiate an agreement to alter the form of oath, and to
substitute his own famous proposal c that for purposes of the
wealth) Ireland shall recognize His Britannic Majesty as head
of the association 5 . But the really important thing is that the
tion of an inter-imperial character on the issue of the land
annuities; that is a matter of practical importance, and a
deplorable precedent will be set for the Dominions and India
alike if it becomes accepted that debts due to the United
Kingdom or to United Kingdom subjects can be repudiated
at pleasure. Moreover, a pecuniary issue is one which essen¬
tially lends itself to impartial handling, and refusal to accept
arbitration would be tantamount to an admission that the
Free State had no case.
82. MR. DE VALERA AND THE OATH
To the Editor of the Scotsman, 23 April 1332.
Mr. de Valera has evidently decided to challenge once and
for all the validity of the Treaty of 1 921 and the constitutional
provision forbidding its violation. This goes far beyond his
original contention that the treaty did not impose the Oath,
and that it could legally be removed from the Constitution.
He has probably realized that in point of law his position
is untenable, so long as s. 2 of the Constitution Act, No. 1,
of 1922, provides that no amendment of the Constitution
can override the Treaty, and that he must therefore secure
IMPERIAL RELATIONS Iig
the removal of that clause. But it is clear that the method at¬
tempted, simple repeal by an Irish Act, is legally absolutely
void. The Irish Free State Parliament has only such legisla¬
tive authority as was granted to it by the Constituent Assembly,
representing the will of the people, in 1922, and the judges
are sworn to uphold the Constitution as by law established.
They must therefore, when the issue comes before them in due
course, rule invalid the attempt to overrule s. 2 of the Act of
192 2, or be false to their duty. The Governor-General also will
be placed in a very difficult position ifheis asked to assent to the
Bill, for it is one thing to assent to a measure ofdoubtful legality,
another to accept one whose illegality is patent and deliberate. 1
Mr. Cosgrave’s suggestion is clearly sound, and the Senate
has the power to bring pressure on the Government to adopt
it. There is room for accommodation on the issue of the Oath
if Mr. de Valera is prepared to revert to his own proposal in
1922, and the Ottawa Conference affords an obvious opportu¬
nity of using the combined wisdom of the Governments of the
Empire to reach accord. If the Free State will not compromise
then no doubt there will be no alternative to separation, but
Mr. de Valera’s majority is ludicrously inadequate to justify
his carrying the matter to extremes, while the British Govern¬
ment could, without serious injury, consent to modification of
the Oath so long as the King remains an essential element in
the Constitution.
83. MR. DE VALERA AND THE OATH
To the Editor of the Scotsman, 28 April 1932.
Mr. de Valera is well acquainted with American affairs and
has often expressed his admiration of the republican constitu¬
tion of the United States. It is therefore remarkable to read
his denunciation of making municipal law dependent upon
treaties, for his favourite Constitution provides that ‘all trea¬
ties made, or which shall be made, under the authority of the
1 Hence he was removed from office; see Nos. 88 and 89, post
120
IMP E RIAL R E L A T I O N S
United States, shall be the supreme law of the land, and the
udges in every State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwith¬
standing". From this, of course, is derived the principle which
the Constituent: Assembly enacted as abiding law for the Free
Mr. dc Valera’s argument from Mr. Lloyd George’s ex¬
planatory letter to Mr. Grillith unfortunately breaks down on
the vital issue. Mr. Lloyd George admitted that any extension
of tire status of Canada as it existed in 1921 would enure to
the benefit of the Free State. If, therefore, Mr. de Valera’s
assertion that: the Parliament of Canada could abolish the
Oath required under the Dominion Constitution were true,
he would have a strong case for arguing that the Irish, Free
State was entitled to abol ish the taking of an oath,, for it could
then be argued that the treaty provision for the Oath was
intended to prescribe the special form differing from the Cana¬
dian, and that it could not be read as forbidding abolition if
and when Canada had that power. But the Parliament of
Canada has no power whatever to abolish the Oath; it is ex¬
pressly forbidden to amend the British North America Acts
by the Statute of Westminster, and Mr. de Valera’s assertion
Is therefore wholly incorrect and his argument unsound. The
fact, of course, that the Union of South Africa could abolish
the oath affords an argument for approaching the British
Government for a reconsideration of the issue of the Oath,
the practical value of which appears to be negligible, and it
is certainly most unfortunate that Mr. de Valera’s legal ad¬
visers have not pointed out to him that this is the one simple
and honest course of action.
84. MR. THOMAS AND MR. DE VALERA
To the Editor of the Scotsman, 6 May 1932.
It is rather surprising and disappointing to find that Mr.
Thomas is not prepared to suggest reference to an Inter-
IMPERIAL RELATIONS 121
Imperial tribunal, of the type suggested by the Imperial
Conference of 1930, of the issue of the legality of the proposed
omission of the Oath from the Irish Constitution. The sugges¬
tion of the Permanent Court of International Justice, of course,
is a very different thing, and could not possibly be adopted
without running counter to views which have been consis¬
tently held by successive British Governments, and which are
on the whole generally approved in the Dominions. But an
inter-imperial tribunal seems the only proper manner in
which issues arising between autonomous kingdoms, parts of
the same Commonwealth of Nations, can be justly decided,
and the British Government would strengthen its position if
it adopted the policy of proposing reference to such a body.
Mr. cle Valera would then be compelled either to admit
that he has no case by refusing to accept the reference,
or to agree to the proposal. In the latter event we would
have a pronouncement which must be honoured by both
parties.
It must be remembered that during the discussion of the
Statute of Westminster Mr. de Valera’s action was clearly
anticipated as probable, and Sir Stafford Cripps, doubtless
with the present contingency in view, was insistent on the
wisdom of organizing the system of reference to an inter¬
imperial tribunal as a necessary complement to the extension
of Dominion autonomy by the Statute.
85. AN IRISH REPUBLIC: EFFECTS ON
NATIONALITY
(MANCHESTER GUARDIAN, 2 May 1932 .)
A good deal has been said of late regarding the position of
citizens of the Irish Free State in the United Kingdom in the
event of a formal separation of the Free State from the British
Commonwealth of Nations. It has, however, seldom been
recognized how very complex the issue is, and quite often the
122
IMPERIAL RELATIONS
effect of such a separation has not been correctly stated. It
may, therefore, be worth while to consider the position from
the purely legal and constitutional aspect.
It is essential, in the first place, to realize that at present
the Irish Free State is a kingdom, totally independent of the
United Kingdom, and connected with it merely through
the possession of a common sovereign and by the terms of the
Treaty of 1921. This is the result of the Statute ofWestminstcr
as regards internal alfairs, and in external affairs of the decision
of the British Government in 1931 to sanction, the creation of
an Irish Seal to replace the Great Seal, of the Realm for use in
i 1V‘/‘
any save Irish Ministers, and the British Government has no
power of intervention in Irish affairs. The only possibility of
further separation lies in the declaration of a republic and the
termination of the Crown as part of the Irish Constitution.
This step, it must be noted, cannot legally be taken under the
State. The Constituent Assern-
enaeted that the; Treaty of 1921
amendment thereof, and the Irish Free State Parliament
cannot, therefore, legally pass any enactment which runs
counter to the Treaty. Any such measure which purported to
have been passed, even if assented to by the Governor-General,
would have to be held invalid by the Irish courts as a mere
matter of law. If, therefore, there were to be separation, it
must be brought about in one of two ways. Either the British
Government must agree to the abrogation of the Treaty or the
Irish Free State must deliberately declare the Treaty ended,
abandon its present Constitution, and as a new State provide
itself with a new Constitution.
RESULTS OF IRISH ACTION
If the matter were determined by a new treaty, no doubt
that instrument would contain definite provision for the regu-
IMPERIAL RELATIONS 123
lation of the position of Irish citizens in the United Kingdom
and vice versa. But if the separation were effected extra-
legally by unilateral action, issues of difficulty would at once
present themselves. It has been freely assumed that the result
of such a declaration of independence would be to deprive
Irish citizens of the status of British subjects, both in the United
Kingdom and throughout the Empire, and to endanger their
right to hold positions in the British Civil Service, to be owners
of British ships, to enjoy the franchise, and to profit by pension
legislation. This, however, rests on a misunderstanding. The
separation of a part of the Empire by revolutionary action is,
unhappily, not unprecedented, and some guidance can also be
drawn from the conditions which arose when the union of the
Crowns of the United Kingdom and Hanover terminated on
the accession of Queen Victoria. The decisions of the British
courts show clearly that a declaration of independence would
have no effect on the nationality of British subjects—and the
vast majority of Irish citizens are British subjects—unless and
until independence were recognized by the British Crown. If,
then, we assume that recognition was accorded, without any
treaty being agreed to regulating the issue of nationality, then
the British courts would no doubt hold that all British subjects
resident in the Free State who remained there on the declara¬
tion of independence had ceased to be British subjects. They
would probably be willing to hold also that British subjects
whose domicile was in the Irish Free State, and who claimed
to have ceased to be British subjects, had lost their British
nationality. But they would certainly have the gravest diffi¬
culty in holding that Irish citizens who were resident in the
United Kingdom, or in any other part of the Empire, on the
declaration of independence had ceased in law to be British
subjects. 1
To put it quite simply, the condition of a British subject is
conferred by British legislation, extending the common law of
England; that legislation cannot be altered for the United
1 See Keith, The Theory of State Succession , ch. vi.
I MP KR 1 A L R KLAT 10 NS
124
Kingdom by any legislation of the Irish Free State. No State
has any right under international law to expect any other
State to give effect to the laws of the former on the territory of
the latter, and if any persons who tinder existing British legis¬
lation arc British subjects in the United Kingdom arc to be
deprived of that status, it must be as the result ol'an alteration
by the British Parliament of British law. It. cannot, seriously
be supposed that the British Parliament would legislate
against persons resident in any part of the British Umpire
outside the Irish Free State who were British subjects at the
moment of separation and who desired to continue to be
British subjects.
IRISH IMMIGRATION
Irish citizens who remained Identified with the Free, State
would, on the other hand, become aliens pure and simple, and
would be exposed to the limited disabilities which are imposed
on aliens in the United Kingdom. In addition to such issues
as those of the franchise, employment In the services, and
pension legislation, they would be subject; to one very impor¬
tant restriction, that on the immigration of aliens. This
matter, of course, has hardly appeared as a serious issue in
England, but it has evoked prolonged investigations in Scot¬
land. There has grown up a very strong feeling in that part
of the United Kingdom that the freedom of entry accorded to
Irish citizens on the score of British nationality operates
seriously to the disadvantage of the Scots people^ that cheap
Irish labour depresses the standard of living, and that the
immigrants are responsible for a disproportionate amount of
crime, while they resort far too readily to the benefits of public
assistance, and thus impose a grave burden on the community.
No doubt the demerits of the immigrants have been exag¬
gerated, but it is equally impossible to ignore the danger to
Scottish interests from this immigration. It is clear that if
Irish citizens ceased to be British subjects it would be quite
impossible to resist the growing strength of Scottish opinion in
IMPERIAL RELATIONS
125
favour of the exclusion from the country of all immigrants who
are not likely to add to the prosperity and moral value of the
population.
86 . THE IRISH SITUATION
To the Editor of the Scotsman, ii June 1932.
As we arc to have a debate on Irish affairs, may I suggest
that attention should be paid to the following points, in view
of the confused state of Dominion as well as British opinion
on these issues?—
(1) It seems to be widely thought that in some way the Bill
passed by the Bail affects the allegiance of Irish citizens to the
Crown. This is clearly a complete misunderstanding. Allegi¬
ance is part of the common law of the Irish Free State, and is
wholly unaffected by the fact that it is desired to remove from
the Constitution the obligation on members of Parliament to
take an oath of allegiance. 1 The allegiance and its obligations
will stand as securely under the law even if the Oath were to
disappear—a fact which, incidentally, explains why many
loyal Irish citizens contemplate the possibility of removing the
Oath, if that can be done without breach of the Treaty of 1921.
(2) Mr. de Valera’s claim that the Oath can be removed
without breach of the Treaty rests on a far stronger basis than
is often admitted. Indeed, if it were true, as he has asserted,
that under the Statute ofWestminster Canada could omit from
her Constitution any oath, I think it might quite fairly be
argued that the Free State was entitled to the right conceded
to Canada, and that the removal of the Oath was thus a purely
domestic issue. Unluckily for Mr. de Valera, the Statute gives
no such power to Canada directly, though Canada might by
petitioning the Imperial Parliament secure the deletion of the
Oath if Canadian opinion became hostile to it. This fact of the
1 This doctrine was accepted by Sir Stafford Cripps, ParL Deb. s cclxvii. 668.
See Nos. 102-5, P osi > f° r the repeal of the common law.
126
IMPERIAL RELATIONS
power to petition, coupled with the undoubted power, c.g., of
the Union of South Africa of its own authority to eliminate an
oath, would strongly support a request from the Free State for
British concurrence in its omission, but it clearly does not give
the State a legal power of abolition, 1
(3) If the omission of the Oath is really strongly objected
to by the British Government, cannot it oiler to compromise
on the famous alternative form once suggested by Mr. clc
Valera himself? But, seriously, is the retention of the Oath of
any real value to the Grown or any one?
(4) If no agreement can be reached, is it not obligatory on
the British Government to propose reference to an inter-
imperial tribunal, such as was suggested by the I mperial Con¬
ference of 1930, both of the issue of the Oath and of that of the
land annuities? Then the onus of refusal would be put on the
Free State.
87. MR. DE VALERA AND THE GOVERNMENT
THE LEGAL ISSUES
To the Editor of the Manchester guardian, 18 lime jrm.
It is most unfortunate that the legal issues involved in the
Irish question should so ineffectively have been dealt with in
the debate yesterday. Sir R. Mitchell Banks seems to coun¬
tenance the supposition that the removal of the Oath from the
Constitution would affect the allegiance of members of the
Dail, which is clearly an illusion. Mr. Thomas insists that Mr.
de Valera’s Bill takes away the right of Irish citizens to chal¬
lenge in the courts the validity of the proposed abolition of the
Oath, forgetting that it is for the courts to decide whether Mr.
de Valera’s Bill, if passed as he desires, would be valid, and
that it is impossible for the Legislature to deprive the courts of
the power to decide as to the legality of the Oath. Mr. Thomas,
1 See No. 106, post.
IMPERIAL RELATIONS
127
again, objects to Mr. de Valera’s suggestion of reference to
arbitration of the obligations of the annual payments made
by the Free State, so far as not ratified by legislation, in addi¬
tion to the issue of the annuities; but this is surely an indefen¬
sible position. The agreement of 1930 clearly covers any such
issue, however plain the British case may seem, and it is
decidedly unfortunate that the British Government should
seem to refuse to arbitrate a justiciable question. If the British
case is sound—as it probably is—why not consent to let it go
before a tribunal?
On the question of the personnel of the tribunal the agree¬
ment of 1930 is unequivocal in providing that the tribunal
shall be constituted of five members, none of whom may be
drawn from outside the Commonwealth, two to be selected
from other members of the Commonwealth than the parties
to the dispute, two without limitation, the four selecting their
chairman. Mr. clc Valera could thus have two nominees of
his own, the British Government two, and the fifth would be
selected by the agreement of these four. It will appear to most
minds that this is an absolutely fair arrangement and that
Mr. clc Valera’s position is unwise. But it must be remembered
that the late Government of the Free State claimed the right
to have recourse in intcr-Impcrial issues to the Permanent
Court of International Justice, and Mr. de Valera has gone
so far in accepting the principle of arbitration that with
further reflection he might be induced to go farther. At
least it is good to find the British Government seriously
taking up arbitration, and an obvious compromise would
be for the latter to agree to widen the scope of arbitration,
and for the Free State to accept a purely Commonwealth
tribunal.
On the issue of the Oath Sir S. Cripps has gone so far as to
maintain that Mr. de Valera can abolish the Oath without
reference to the British G0vernment—that is, that the Treaty
has been so modified by the agreement of the Conferences of
1926 and 1930 as to render British agreement superfluous, and
128
I MP KRIAL RK LATIONS
that legally the Free Slate has, since the passing of the Statute
of Westminster, an absolute right to abolish the Oath. This
contention is of fundamental importance, but it still appears
to me to be unsound in strict law. The Statute of Westminster,
it is true, does enable the Irish Legislature to repeal the Im¬
perial Acts of 1922 ratifying the agreement of t 921 and approv¬
ing the Constitution of the Free State. But that is not the
question. The Irish Legislature is the creation of an Irish
Constituent Assembly which definitely restricted the power
of the Legislature to amend the Constitution established by
the constituent body to changes consistent with the Treaty of
1921.
The legal issue, therefore, is whether the omission of the
Oath is consistent with the Treaty. Prima facie the answer is
in the negative, for the argument once used but; now apparently
not pressed by Mr, de Valera that the Oath is not mandatory
in the Treaty can hardly be taken as valid. Does the Statu te of
Westminster alter the position? If so it can only do so indirectly
in the following manner. The Treaty gives the Free State the
status of Canada, and if the Statute gave Canada the power to
abolish the Oath then the Free State might claim that under
the Treaty itself the grant of Canadian status operated to confer
the increased powers of Canada and so permitted the deletion
of the Oath. The fatal objection to this view is the fact, which
Sir S. Cripps admits, that Canada cannot under the Statute
abolish the Oath except with the co-operation of the British
Parliament, and it appears, therefore, clear that legally the
Free State remains bound to maintain the Oath until the
Treaty is modified by consent. But it Is fair to point out that, if
Canada should ask for the omission of the Oath, the United
Kingdom would be constitutionally under obligation to accept
omission, and Mr. de Valera would have put himself in an
infinitely stronger position if he had asked the Senate to
combine in requesting the omission of the Oath, for the
British Government could not, I think, have refused com¬
pliance on any constitutional ground.
IMPERIAL RELATIONS
129
88 . THE GOVERNOR-GENERAL OF THE
IRISH FREE STATE
HIS CHANGED POSITION
To the Editor of the Manchester guardian, 12 July 1932.
Mr. McNeill’s statement that he knows that the President of
the Council in possession of a majority in the Bail can secure
his removal from the office of Governor-General calls attention
to one of the many grave problems created by the new Con¬
stitution of the Empire.
The Governor-General of a Dominion under the old regime,
as head of the Dominion Government, owed his appointment
to the King on the advice of the British Government, though
the Dominion Government concurred informally in his selec¬
tion, and could be removed prior to the normal expiry of his
tenure of office only on similar advice. He was thus indepen¬
dent of the Ministry of the day, and could play the part of a
safeguard of the Constitution in the same way as the King in
the United Kingdom.
The result of the Imperial Conference of 1930 was to bring
about the surrender by the British Government of the right
of recommendation to the King, as was shown in the appoint¬
ment of the present Governor-General of the Commonwealth
of Australia. On the other hand, the necessity of passing his
instrument of appointment under the Signet required the
intervention of the Secretary of State, and thus secured British
participation in the appointment. In the case of removal from
office it seems clear that, under the existing arrangements, the
Governor-General can be deprived of office on the recom¬
mendation of the Executive Council, and that the Crown
could not resist such a recommendation.
The result is clear: the Dominion loses all the advantage to
be derived from the possession of an impartial representative
of the Crown, and the Constitution is left without safeguard.
It is very dubious if the Conference of 1930 realized the
K
IMPERIAL RELATIONS
130
implications of its attitude, which was certainly not under¬
stood by public opinion in the Dominions. That the Govern¬
ment of the moment in a Dominion should have unrestricted
authority is dangerous—how dangerous may be realized by
reflecting what would now be the position in Australia had
Mr. Lang had the power of ridding himself of the Governor
and putting in a partisan to wage war with the Common¬
wealth on the debt issue. 1
The actual issues involved in the dispute seem perhaps
rather trifling, and it may be regretted that accommodation
was not secured on the lines of Mr. de Valera’s letter of April
30, which was perhaps meant to be more conciliatory than
the Governor-General held it to be. The publication of the
correspondence against the advice of the Council was perhaps
unwise, seeing that a statement might have sufficed, but the
Council clearly acted unwisely in refusing assent to its issue
when the Governor-General pressed the point.
89. MR. DE VALERA AND THE CROWN
To the Editor of the Scotsman, 4 October 1332.
No more effective manner of discrediting the position of the
Crown in the Irish Free State could well have been devised by
Mr. de Valera than his action in compelling the King to dis¬
miss from office a Governor-General against whom his only
ground of complaint was that he had taken exception to the
deliberate efforts of Ministers to show him disrespect because
he represented the Crown. That His Majesty acted constitu¬
tionally in accepting the advice tendered is as clear as that
there is pressing need to eliminate the possibility of the Crown
being again compelled to dismiss an officer whose one fault is
loyalty to his office. The episode shows how completely the
balance of the Dominion Constitutions has been upset by the
adoption in 1930 of the new principle of appointment by local
governments. The safeguard provided for the British Con-
See Keith, Constitutional Law of the British Dominions , pp. 158, 159.
IMPERIAL RELATIONS
I31
stitution by the independent position of the King has been
discarded for the Dominions and nothing invented to replace
it, and it must be admitted that the Imperial Conference of
1930 appears to have been quite unconscious that its action
was revolutionary.
Mr. de Valera’s material motive for action, first to secure
the voluntary resignation of the Governor-General, and later
to remove him from office, is obvious. His Bill to remove the
Oath from the Constitution includes the removal from that
instrument of the rule that the Constitution is to be read sub¬
ject to the Irish Treaty as the supreme law of the land. Now
it is clear that the Bill is ultra vires the Irish Legislature, which
is not a fully sovereign body but was accorded by the Con¬
stituent Assembly a strictly limited power of constitutional
change. It is plain that a Governor-General who is sworn to
maintain the Constitution could not assent without breach of
duty to such a Bill, and that to secure assent there must be
placed in office a partisan of Mr. de Valera who will feel no
compunction in assenting to a Bill however much it may
violate the Constitution which he is sworn to maintain. 1 If
Mr. de Valera is satisfied that the Free State desires Repub¬
lican status, it is greatly to be hoped that he will obtain a man¬
date to that effect from the electorate and negotiate frankly for
independence in lieu of resorting to courses of patent illegality.
90. IRISH FREE STATE CLAIMS
To the Editor of the Scotsman, 31 October 1932.
In its memorandum of October 15 to the Irish Free State
representatives the British Government has appealed to the
recognized practice of nations to show that the agreements of
1923 and 1926 are binding on the Free State. This action
raises a very grave difficulty. The demand for an inter¬
imperial tribunal to deal with the present disputes has
generally been supported on the score that our relations with
1 See No. 82 3 ante.
132 IMPERIAL RELATIONS
the Free State are constitutional, not international, and that
accordingly we must refuse to accept any foreign intervention
in our arbitral tribunals. But, if our case is based on inter¬
national law, the rationale of our refusal to accept an inter¬
national tribunal, if not destroyed, is greatly weakened. It
seems, indeed, very dubious whether it is worth while refusing
to accept an ordinary international tribunal, if our arguments
are to be based on international law.
On the other hand, if wc base our claim on constitutional
law, we encounter the very serious objection that it is an
essential part of the constitutional law of the Dominions
asserted by the Privy Council, the High Court of Australia, and
the Supreme Court of Canada with gratifying unanimity, 1
that the promises of a Dominion Government are necessarily
to be understood to be subject in matters of finance to approval
by Parliament. It may be said that the agreement of 1923
was so confirmed by the Free State, though the point is argu¬
able. But that of 1926 clearly was never permanently accepted
by the Irish Free State Parliament. It is obvious that our
negotiators made a very bad mistake when they failed in 1925
to effect a final financial settlement in treaty form duly ap¬
proved by the British and Free State Parliaments, and I have
no doubt that sooner or later we shall pay heavily for it in the
inevitable waiver of part of our claims.
91. IRISH FREE STATE CLAIMS
To the Editor of the Scotsman, 18 November
In reply to 'Irishman’s 3 inquiry in your issue of to-day, may
I point out that the question is not one of the invalidity of the
agreements of 1923 and 1926 between the United Kingdom
and the Irish Free State? The agreements were unquestion¬
ably valid as governmental accords; they were duly executed
by Mr. Cosgrave’s Government, and no steps were taken to
See Keith, Constitutional Law of the British Dominions, p. 387.
IMPERIAL RELATIONS 133
show that this action was in any sense illegal. Prima facie, they
were just, perhaps even generous, settlements by the British
Government of its claims upon the Free State.
The real issue is whether the mode of carrying out the agree¬
ments adopted by the parties was such as to convert them into
obligations binding subsequent Governments and Parliaments
in either country either (1) constitutionally or (2) inter¬
nationally. I have already stated that I do not think that the
agreement of 1926, which is the vital agreement, has been
effectively made so binding under constitutional law, and I
am strengthened in this opinion by the fact that the British
Government has, inconsistently with its general attitude in
these matters, appealed to international law as justifying its
claim that the agreement binds the Free State. On this head
much might be said in abstractor but in my view the Permanent
Court of International Justice, if the issue came before it,
would be profoundly impressed by the fact that pecuniary re¬
lations between the United Kingdom and the Irish Free State
were on three occasions, 1921, 1925, and 1929, deliberately
regulated by formal instruments, which were duly submitted
for the approval of the Parliaments in accordance with their
express provisions. That these agreements bind every Govern¬
ment and Parliament of the Irish Free State is perfectly clear;
if, therefore, an agreement of similar character is allowed to
assume the form of a mere governmental accord, then it seems
the legitimate conclusion that the parties to it deliberately
refrained from taking the necessary step to bring it into the
same condition as these permanent agreements. It may be
that the British Government acted carelessly, or that Mr.
Cosgrave was unwilling to apply to his Parliament for an Act,
but I do not think that Mr. de Valera is under either inter¬
national or constitutional law bound by the agreement of
1926. But his refusal to submit the issue to inter-imperial
arbitration suggests the doubt whether there may not be facts
as yet undisclosed which render his legal advisers opposed to
judicial settlement.
I
[34 IMPERIAL RELATIONS
92. MR. DE VALERA AND THE
GOVERNOR-GENERAL
To the Editor of the Scotsman, 31 January 1333.
There is one reform proposed by Mr. de Valera to which we
may hope that the British Government will give ready assent,
the abolition of the office of Governor-General. The Imperial
Conference of 1930 placed it in the power of Mr. de Valera to
remove one Governor-General and to appoint another, the
King being helpless to intervene. The office has now been
shorn of all ceremonial trappings, and is frankly useless, a
mere burden on the revenues of the Free State. The Governor-
General has neither power, prestige, nor influence, and this is
a position which does discredit to the Grown.
It was arranged by the Government of Mr. Cosgravc that
all essential issues of foreign affairs should be dealt with direct
by the King himself. There is no reason why part of the
functions performed by the G ovcrnor-Gcncral on its behalf
should not be performed by His Majesty personally, thus
emphasizing the position of the Free State as a distinct king¬
dom. Part, again, could be delegated by the King to the Chief
Justice, or even to the President of the Council, who might,
for instance, recommend money votes. 1 There is no sub¬
stantial difficulty, merely a few details to arrange between
His Majesty and his Government in the Free State. It would,
therefore, be a serious blunder if this unimportant issue were
not eliminated as a source of discord. Most people probably
now realize that the Oath question in itself was never worth
the amount of controversy which it excited.
93. THE DAlL AND THE OATH OF ALLEGIANCE
To the Editor of the Scotsman, 5 May 1333.
It is satisfactory that Mr. Thomas has at last appreciated
the fact that allegiance in the Irish Free State is in no way
1 See No. 96, post.
IMPERIAL RELATIONS 135
connected with the oath provided for members in the Legisla¬
ture by the Treaty of 1921. But, that being so, it is impossible
not to ask why the British Government should have allowed
Mr. de Valera to enjoy for so many months the tactical advan¬
tages of his Oath Bill instead of announcing its readiness to
agree forthwith to the excision of the Oath by formal treaty
alteration. British inaction was the less excusable because,
by the Statute of Westminster, the Union of South Africa was
given plenary power as regards the Oath under its Constitu¬
tion, and such a right could not be denied, under the inter¬
pretation from the first placed on the Treaty, to the Free State.
Moreover, far more important concessions, involving great
pecuniary losses, were readily made to the Government of
Mr. Cosgrave. Mr. de Valera, of course, would not have
welcomed such an overture, but that is precisely one of the
reasons why it should have been made, instead of leaving him
with a popular basis of attack on the United Kingdom.
As it is, Mr. de Valera has secured far more than the aboli¬
tion of the Oath. He has eliminated from the Constitution any
restraint whatever; he has his nominee to assent to all his Bills,
and a Supreme Court which can be counted upon to uphold
any legislation, though strictly speaking it is clearly illegal.
There is nothing now to prevent legislation to declare the
abolition of the position of the Governor-General, and the
elimination of the name of the Crown from the Constitution,
including the formal disappearance of the appeal to the Privy
Council The only factors to render Mr. de Valera cautious are
the prospect of further commercial restrictions, though British
efforts in retaliation have not been so far a brilliant success, and
the desire to secure the inclusion of Northern Ireland in the
Republic. It seems unfortunate that neither Mr. de Valera
nor the British Government appears capable of suggesting
some new conventional arrangement under which the Free
State might remain within the British Commonwealth, while
enjoying in name the Republican Constitution which de facto
she actually possesses.
136 IMPERIAL RELATIONS
94. THE CROWN AND THE IRISH FREE STATE
To the Editor of the Scotsman, 10 August 1933.
The new Bills promoted by Mr. de Valera carry into logical
effect the decisions of the Imperial Conference of 1930. By
converting the G overnor-General into a nominee of the
Government of the day, his purpose was destroyed, and his
elimination from the Constitution became desirable. The
appeal was successfully rendered worthless by Mr. Cosgrave’s
Government; to meet the views of that Government the
Statute of Westminster was passed in such a form as to render
it legal for the Free State to eliminate the appeal from the
Constitution, and Mr. Cosgrave’s Government had under¬
taken to carry out such elimination. Mr. Cosgrave’s Govern¬
ment, of course, had already secured the virtual exclusion of
the Governor-General and the Crown from any part even
formal in the Executive Government.
There still remains the personal intervention of the King in
the formal acts with regard to the accrediting of Irish Ministers
to foreign Powers, and the signature and ratification of treaties.
This contact with the Crown is, of course, of considerable inter¬
national significance, and at present it can be avoided only by
the Free State ceasing to become a party to treaties concluded
in the names of heads of States and insisting on the form of
treaties between Governments. It has not yet been made clear
if the Free State proposes thus to act; even so, the question
of accrediting Ministers would remain to necessitate Royal
action.
As Mr. Cosgrave and Mr. de Valera are at one in their
determination to eliminate the Crown as a real factor in
government and no doubt represent the predominant view
in the Free State, the question arises whether the British
Government is to persist in the present attitude of hoping that
something will turn up to render relations easier, or whether it
ought not to attempt to recast relations with the Free State.
Can any substantial ground be adduced for refusing to permit
IMPERIAL RELATIONS 137
the Free State the right to adopt by a plebiscite, if it so desires,
a republican constitution, and to regulate relations with it by
a treaty proper? If such a ground exists, why are we not in¬
formed of its nature instead of being left with the uncomfort¬
able impression that we are contending for a shadow to the
detriment of our economic interests no less than those of the
Free State?
95. THE PRIVY COUNCIL AND THE
IRISH FREE STATE
To the Editor of the Scotsman, 10 October 1333.
It is reported that the Privy Council has granted special
leave to appeal from the decision of the Supreme Court of the
Irish Free State in the matter of the fishing rights in the River
Erne in Donegal. If this is so, the decision must be regarded as
a most unfortunate exercise of the discretion of the Judicial
Committee.
There is unanimity in the Irish Free State as represented by
the late and the present Governments in desiring the abolition
of the appeal. A Bill for that purpose has been introduced into
the Dail and has elicited no serious protest from any quarter.
The appeal is not formally included in the Treaty of 1921. It
has been held by the Privy Council that its existence is entailed
by the rule that the Constitution of Canada is the model for
Irish constitutional rights. But, accepting this view—which is
not admitted in the Free State—the fact that under the Statute
ofWestminster, 1931, the Dominion of Canada can abolish the
appeal can be adduced with much cogency to prove that the
Irish Free State can abolish it without even a technical breach
of the treaty.
The Bill is not yet law, and the legality of the Judicial Com¬
mittee’s action is clear. But the grant of leave in a case which
does not touch the interests of minorities under the treaty and
is concerned only with private rights, runs plainly counter to
the principles on which leave to appeal from the Free State fell
IMPERIAL RELATIONS
138
to be granted, as formally announced by Lord Haldane in the
leading case of Hull v. M'Kenna, 1 and to the doctrines formally
accepted by the British Government at the Imperial Con¬
ferences of 1926 and 1930. No more unfortunate use of a
discretionary authority can well be imagined, and it may be
hoped that the Free State Parliament will lose no time in
passing the necessary legislation to terminate this unhappy
conflict.
96. BRITAIN AND THE IRISH FREE STATE
To the Editor of the Scotsman, 75 November 1933.
I fear that our Government, after swallowing a camel, is
straining at a gnat in its fulmination against Mr. de Valera.
Mr. Cosgrave was permitted without protest to eliminate the
Crown from its proper connexion with (1) the Civil Sciwice;
(2) the armed forces; (3) the administration of justice; (4)
stamps and coinage, and to ascribe to the Executive Council
powers of every kind normally accorded to the Crown or its
representative in Council, tie was permitted to nullify the
appeal to the Privy Council, and to compel the British Govern¬
ment to pay the sums which his Government under a Privy
Council award should have paid. Mr. de Valera himself was
permitted to insult His Majesty by compelling him to dismiss
summarily a Governor-General whose one offence was that he
resented gross disrespect by Ministers to the Crown, and to
install as his successor a gentleman who refused to kiss hands on
appointment, on condition that, in flat defiance of the Con¬
stitution, he accepted a bare fifth of his salary and occupied a
suburban villa in lieu of the Viceregal Lodge, and that he
acted in his capacity of ‘Seneschal 5 as a mere instrument of
Mr. de Valera’s Government. Mr. de Valera was also per-
mitted to remove the Oath from the Constitution in flat de¬
fiance of the actual treaty, and Mr. Thomas’s admonition of
May 4 was amazingly feeble.
1 [1926] I.R. 402.
>ERIAL R
\ TI O N S
. to take serio
;e Parliamen
legislation c<
the two Acts a
d to accept Mr
cts in importa
with the Treaty of 1921 5 . I agree with Mr. de Valera that c the
passing of these measures is in no way inconsistent with any
legal or moral obligations of the Irish Free State 5 , and I have
no hesitation in holding that any Imperial or international
tribunal would take that view. Before we are asked to make
this a point of quarrel with the Free State, let us at least know
the grounds of the governmental view, and, better still, let the
Privy Council be asked for an opinion as an advisory judge¬
ment. The case to me seems overwhelmingly in favour of
Mr. de Valera.
(1) Amendment No. 20 to transfer to the Executive Coun¬
cil from the Governor-General the formal recommendation of
the purpose of the appropriation of money is a purely formal
change which any Australian State or Newfoundland could
make at will without any person having any objection.
(2) Amendment No. 21 omits from the Constitution the
right of the Governor-General to withhold assent from or
reserve Bills. This omission is clearly in accordance with the
decisions of the Imperial Conference of 1930, and the British
Government is clearly estopped from contesting the action
now taken, unless it is prepared to repudiate the findings of that
Conference and the terms of the Statute of Westminster.
(3) The elimination of the appeal to the Privy Council is
the inevitable result of the Imperial Conference resolutions of
1926 and 1930, and of the Statute of Westminster. Since I
wrote on this matter, Canada has acted and has cut off by law
all appeals to the Privy Council on criminal matters, a term
which includes those most important constitutional issues
which arise under Provincial Acts imposing penalties for
matters not properly criminal in the ordinary sense. As the
Treaty of 1921 expressly places the Free State on the same foot¬
ing as Canada, to deny the Free State legislative power now is,
I fear, an attempt by the British Government to repudiate the
140 IMPERIAL RELATIONS
treaty. I have never pretended to think that the changes in
Imperial relations of 1926-31 were wholly wise, agreeing in
this with the statesmen of Australia and New Zealand and
certain Canadian authorities, but what has been done cannot
be undone, and this point seems now clearly within Irish
power.
Finally, it seems to be a confession of bankruptcy of British
statesmanship to deny the possibility of a formal Republican
Constitution within so strange an edifice as the British Com¬
monwealth of Nations. Rather should the effort be made to
work out an effective system if, as I presume is the case, any
importance is attached to maintaining close relations with the
State. Otherwise why not concede independence, making it
clear, of course, that Northern Ireland remains within the
Commonwealth ? 1
97. BRITAIN AND THE IRISH FREE STATE
To the Editor of the Scotsman, 27 November 1933.
It is the Nemesis of a long letter that its last sentence only
should be read. But the preceding sentences of my letter in
your issue of the 16th inst. make it clear that what I urged
was that we should not throw away the present chance of
making a settlement with Mr. de Valera on the basis of the
Free State enjoying a Republican Constitution within the
Commonwealth, a settlement which it is clear would be wel¬
comed by Mr. Cosgrave, Mr. MacDermot, and the vast body
of Free State opinion. If there are any valid reasons against
such a plan, why are they not adduced?
It cannot be too clearly understood that for all practical
purposes the Free State enjoys the position of a Republic.
Mr. Cosgrave eliminated the Crown from the internal govern¬
ment of the State so completely that nothing is left except a few
1 This letter and Nos. 99 and 100, and a Memorandum of Dec. 30, 1933, on
the Legal Aspects of the Anglo-Irish Dispute, were published in April 1934
by The Irish News and Information Bureau as a pamphlet.
IMPERIAL RELATIONS 141
formal functions in the Constitution which are performed by
a Governor-General at the bidding of the President of the
Council, His Majesty having no legal or moral right to give a
single instruction to his representative. In external affairs, His
Majesty must act absolutely on the advice of the Irish Free
State, British Ministers being debarred from advice, and he
cannot, if he wishes, refuse to accept the advice tendered, for
he cannot dismiss the Ministry, and he cannot act without
advice. The Free State claims, with the Union ofSouth Africa,
the right to remain neutral in British wars, and Mr. Cosgrave
and Mr. MacDermot have united in declaring that the Free
State has the right to determine whether or not to remain
within the Commonwealth. The people of the Free State
nominally owe allegiance to the Crown, but the Constitution
itself denies to British subjects the privileges accorded to Irish
citizens.
Under a Republican Constitution within the Common¬
wealth, formal allegiance would be replaced by interchange of
rights of citizenship, the Crown would cease to be an object
of hostility and derision, co-operation in foreign affairs on a
treaty basis would replace the present chaotic relations, and,
last not least, instead of treaty rights for coastal defence, which
the best naval and military opinion considers would be a snare
and delusion if the Irish Government and army were hostile,
there would be arrangements for cordial and effective co¬
operation, precluding any return of the dismal days of 1916.
We may regret that the Irish should demand a Republican
Constitution, but, when we are prepared to take vast risks in
India, it is fantastic to throw away a chance of settlement
for mere words. Moreover, an offer to negotiate on this
basis would prove at once whether Mr. de Valera is, as I
believe, sincere in his offer, or is relying on the stupidity of
his adversaries to decline to consider the project. He has
apparently conceded that he must leave Northern Ireland to
decide freely her own future.
The issue of the annuities, of course, could not be allowed
IMPERIAL RELATIONS
142
to block a settlement. Mr. Cosgrave and Mr. MacDermot
have made it clear that they have no intention to pay them,
and the Free State has already been excused its treaty obliga¬
tions in respect of the British debt.
98. BRITAIN AND THE IRISH FREE STATE
MANCHESTER guardian, 6 December 1933.
The statement of Mr. Thomas on November 14 regarding
Anglo-Irish relations has now led to a further grave error on
the part of the British Government. That statement was
wholly unjustified by the terms of the measures impugned, for
Amendments 20-2 of the Free State Constitution afford
neither moral nor legal ground for criticism, Mr. Thomas
now refuses definitely to consider the suggestion that the Free
State should be allowed to adhere to the Commonwealth on
definite terms with power to assume a Republican Constitu¬
tion and insists on the maintenance of the nominal sovereignty,
already reduced to nullity by the Cosgrave Government.
It is undeniable that the Treaty of 1921 was forced on
Ireland by a threat of war, and the Free State now has a
moral right to its reconsideration. The flexibility of the Com¬
monwealth Constitution should easily permit of Republican
status with the recognition of the King as head of the Common¬
wealth, and it would be deplorable if the Free State were lost
to the Commonwealth through lack of constructive thought
and narrow legalism, as were the American colonics. There
is urgent need of the generous statesmanship which secured
the Transvaal’s loyalty in 1914.
FAILURE TO CONSULT THE DOMINIONS
The deliberate failure to consult the Dominions on vital
issues deeply affecting them under the Statute of Westminster
shows a deplorable lack of statesmanship and ignores their
partnership in the Commonwealth.
The declaration of an Irish Republic would not justify
IMPERIAL RELATIONS 143
warlike measures in view of the Paris Pact. It would not
affect the British nationality of Irish-born residents in the
United Kingdom nor justify their removal from the civil or
other services. The United Kingdom could bar the entry of
the Irish as aliens, but could deport only those accepted
by the Free State as citizens. The relations of the Free State
with the Dominions would remain unaffected except in so far
as the Dominions chose to act.
So far as the British case against the Irish Free State rests on
the Amendments Nos. 20-2 of the Constitution it appears to
have neither legal nor moral warrant. The transfer to the
Executive Council of the formal recommendation of appro¬
priations is not merely harmless, but there is a precedent in
the Ceylon Constitution of 1931 drawn up by the Colonial
Secretary which gives the like power to the Board of Ministers,
not to the Governor, a fact which renders a British protest
absurd.
The removal of the power to reserve Bills was deliberately
discussed and agreed to at the Imperial Conference of 1929,
whose report was adopted without hesitation by the Imperial
Conference of 1930, and the way was made open for Irish
action by the Statute of Westminster. The same Act author¬
ized the Dominions to abolish the appeal to the Privy Council;
Canada has under it abolished the appeal in all criminal cases,
and the right of the Free State to abolish it is absolutely clear.
MR. COSGRAVE’S POLICY
Moreover, the intention of the Free State to use the powers
to be given under the statute in the manner in question was
made plain by Mr. Cosgrave’s Government before the statute
was passed, and the British Government, though warned of
the result of passing the statute, persisted in doing so without
safeguarding these issues. To denounce Mr. de Valera for
carrying out the long-established policy of Mr. Cosgrave seems
indefensible. The elimination of the Crown from the Con¬
stitution of the Free State was the deliberate purpose of Mr.
146 IMPERIAL RELATIONS
Mr. Thomas’s attitude must play directly into the hands of
the Republicans in South Africa who have denied the reality
of autonomy under the Statute. The Union also is deeply
interested in Mr. Thomas’s refusal to give Mr. de Valera an
assurance that the United Kingdom would not regard as a
cause of war a decision by the Irish people to sever their
connexion with the Commonwealth. 1 This, of course, is a
direct challenge to General Hertzog’s assurance that the Im¬
perial Conference recognized the right of secession, and must
encourage republican agitation. Needless to say, in view of
the League Covenant and the Paris Pact, any warlike action
by the British Government is unthinkable, and if attempted
would result in unanimous disapproval by the Dominions and
the end of the Commonwealth.
(6) Mr. Thomas shows no anxiety for parliamentary dis¬
cussion of an issue which demands its fullest attention. Is it
forgotten 2, that it was Mr. Thomas who, acting on a most
generous interpretation of the resolutions of the Imperial
Conference, handed over to Mr. Cosgravc complete and un¬
fettered control of all Irish foreign relations without com¬
municating his intention to Parliament, and that, when later
questioned, he contented himself by referring to Mr. Cos-
grave’s statements? If the House of Commons is not to dis¬
cuss such issues, it serves no useful purpose. What is urgently
needed is an effort by all parties in the country, with the aid
of the Dominions, to work out a position which may preserve
unity in essentials with the gratification of Irish aspirations,
however needless we here may think them.
(7) Needless to say, the declaration of an Irish Republic
would in no way affect the British nationality of Irish-born
residents of the United Kingdom at the time of the declara¬
tion, nor would it debar such residents from the Civil Service.
That could be done only by a British Act of Parliament, and
it is absurd to suppose that such an Act would be passed
1 Repeated by Lord Lucan, House of Lords, Dec. 20, 1934.
2 See No. 79, ante .
IMPERIAL RELATIONS 147
against persons who desired to retain British nationality. De¬
portation would only be possible in cases where the Free
State was willing to accept the deportees as citizens. A tariff
war, of course, would be possible, but one already is being
waged. The position of Irishmen in the Dominions would,
moreover, depend wholly on the views taken by the Dominions
of the quarrel. I fear that the Union at least would sympathize
with the Free State rather than with us.
100. THE IRISH FREE STATE AND THE APPEAL
TO THE PRIVY COUNCIL
To the Editor of the Scotsman, 7 December 1933.
I presume that none of us desires to be unfair towards the
Irish Free State, and I shall be glad if you will allow me to
correct the grave errors on the subject of the appeal to the
Privy Council committed by Lords Danesfort and Hailsham
as reported in your issue of to-day.
(1) Prior to 1844 the prerogative right of appeal could be
and was at times barred by local Acts in the colonies, and for
that express reason the Judicial Committee Act of 1844 gave
statutory power to admit appeals from any court whatever
in the colonies.
(2) Notwithstanding this Act, the effect of which was over¬
looked in the Colonial Office as also in Canada, the Canadian
Criminal Code provided for the extinction of the appeal in
criminal cases. Many years later, in Nadan v. R. ([1926] A.C.
482), the Privy Council having had their attention called to
the Act of 1844, ruled that Canada could not override the
Act, and that also, as Canada had no extra-territorial power
of legislation, the local Act might not be able to affect an
action, i.e. the grant of leave, taking place in London.
(3) The decision was deeply resented in Canada, and, as
the Union of South Africa and the Irish Free State concurred
in these objections, the Statute of Westminster, 1931, by s. 2
gave full power to these Dominions to repeal in its application
148 IMPERIAL RELATIONS
to them the Act of 1844, and by s. 3 the right to give such
repeal effect in London.
(4) On the strength of the Statute of Westminster, which is
a solemn declaration of Dominion rights accepted by the
whole Commonwealth, Canada has abolished the form of ap¬
peal which there is disliked, and the Irish Free State the whole
appeal. To deny the validity of the Canadian Act will be a
direct and fatal derogation from the Statute of Westminster,
which will have grave repercussions in the Commonwealth. 11
(5) There is not a word in the Treaty of 1921 regarding the
appeal. As I pointed out at the time, this was a most grave
omission, and raised the question whether it could be held to
be implied. The Irish Free State denied that it was implicit,
and it was only under British pressure that the Constitution
contained a compromise solution, under which the Free State
could by legislation prevent appeals being brought in all ex¬
cept constitutional eases. This, of course, was very different
from the position in Canada, the model under the treaty for
the Irish Free State, but the British Government: was advised
that it was sufficient to comply with the treaty.
(6) Mr. Cosgrave’s Government never admitted that the
treaty demanded the insertion of the appeal. It therefore
nullified every appeal brought by private persons by legisla¬
tion, and compelled the British Government to pay the extra
compensation awarded to Civil Servants by the Privy Council,
refusing absolutely to pay a penny. It co-operated with Canada
in obtaining the clauses above mentioned in the Statute of
Westminster, and it formally intimated that it was its delibe¬
rate intention when the Statute was passed to abolish wholly
the appeal. Despite these facts, Mr. Thomas in his dispatch
of December 5, wrote: ‘The period which elapsed between
1921 and 1932 was marked by the progressive development
of friendly relations and co-operation between the two coun-
* In the Judicial Committee, Dec. 4,1934, it was stated that an appeal would
arise where the validity of the Act of 1933 of Canada abolishing the appeal
might be raised. Canadian feeling on the subject repudiates the possibility of
the Act being invalid.
IMPERIAL RELATIONS
1 49
tries. 9 In the face of these words, how can the British Govern¬
ment honestly denounce Mr. de Valera for carrying out
precisely the policy unswervingly followed by Mr. Gosgrave ?
(7) For the reasons given above the passing of the Statute
of Westminster rendered it a matter of indifference whether
the appeal was implied in the treaty or not. The Privy Council
in the musical copyright case ([1930] A.G. 377) incidentally
held that it was, but unfortunately the case was not argued
for the Free State, and the judgement therefore ignores essen¬
tial arguments which seem not to have been presented to it.
The Privy Council, of course, cannot disobey the Statute of
Westminster, so that a final decision cannot now be obtained.
101. MR. DE VALERA’S CLAIM OF THE RIGHT OF
SECESSION
To the Editor of the Scotsman, 26 July 1934.
In Lord Hailsham’s brilliant defence of the British refusal
to admit Mr. de Valera’s claim of the right of secession there
is one vital weakness. He asserts that the Balfour Declaration
of 1926 is conditioned by the terms of the Irish Treaty of 1921.
This is a claim of the highest importance, but of very dubious
validity, and it is certainly not one which Irish opinion can
be expected to accept as valid. The argument against it can
be put briefly as follows:
The Treaty of 1921 conferred on the Free State the status
of Canada, and the Free State was assured contemporaneously
that it would be entitled to receive any advantages which in
future should accrue to Canada. The Declaration of 1926,
therefore, must be regarded as paramount as an interpreta¬
tion of Dominion status, and as according to the Free State
powers, which may exceed those of the treaty. There is no
saving of the treaty in the Declaration, no attempt to differen¬
tiate between the Free State and the other Dominions. If,
therefore, the Declaration accords the right of secession to
the Dominions, the Free State can claim that right.
IMPERIAL RELATIONS
150
This argument appears to be incapable of refutation, and
the only point that arises is whether the Declaration docs con¬
fer the right of secession. On this subject General Hertzog’s
view is categorical, and the Union Parliament has passed the
Status of the Union Bill and the Royal Executive Functions
and Seals Bill, which provide for the possibility of such seces¬
sion by unilateral declaration. Lord Hailsham has naturally
refused to commit himself to a denial that the Declaration
confers on the Union the right of secession, for such a denial
would raise a grave constitutional issue with the Union, and
he must therefore affirm the superior validity of the treaty.
Yet to do so is wholly unconvincing, for the Declaration has
been recognized as the fundamental constitutional law of the
Commonwealth by the Statute of Westminster, 1931, and by
every Parliament in the Dominions. Moreover, the Govern¬
ment expressly refused to insert any saving in the Statute of
the Irish Constitution and Treaty, and the Statute overrules
any earlier legislation.
The promises of Lords Irwin and Willingdon that India
shall have ultimately Dominion status render the constant
evasion by the Government of the issue of secession as inherent
in such status a matter of grave consequence. Surely it could
declare frankly that it docs not regard the Declaration as
according such a right, if that is its view, and face the anger
of General Hertzog; to evade difficulties docs not normally
solve them.
102. THE IRISH FREE STATE CITIZENSHIP BILL
To the Editor of the Scotsman, 29 November 1994.
Mr. Thomas, I fear, reckons too lightly the effect of his
own handiwork, the Statute of Westminster, 1931, when he
assures us that the Citizenship Bill of the Irish Free State ‘does
not purport to, and could not, in any case, deprive any person
of his status as a British subject 5 . He refers to the status as
IMPERIAL RELATIONS 151
existing within the State, as appears from the terms of the
question to which he was replying, and his meaning clearly
is that the Bill does not purport to eliminate from the internal
law of the State the doctrine of British nationality, nor would
it be effective if it were amended to purport to have such
effect.
The first of these propositions seems certainly wrong. The
Bill by clause 28 deliberately repeals the British Nationality
and Status of Aliens Acts, 1914 and 1918, which in statute
form contain the doctrine of British nationality. Mr. de Valera
would deny that on their repeal the common law would re¬
vive, and it is probable that the Supreme Court, whence no
appeal now lies to the Privy Council, would agree with him,
and not with Mr. Thomas.
The second proposition is in part certainly wrong. Mr.
Thomas has forgotten that the common law does not con¬
fer British nationality on numerous classes of persons, whose
British nationality rests therefore solely on statute law. The
repeal of that statute law, which is clearly valid under
the Statute of Westminster, does deprive these persons of
British nationality in the State, and this would be held by
English as well as by Irish Courts. As regards the far wider
category of persons, British subjects by common law, Mr.
Thomas, I take it, asserts that the Free State by unilateral
action cannot sever the connexion of allegiance between the
Crown and persons born on Irish territory within Free State
limits. This is to deny that the Free State can by unilateral
action secede from the Commonwealth, a doctrine in which
Mr. de Valera shares the views of General Hertzog. Here we
clearly reach a position which passes beyond the control of
the Courts, and on which the Irish and the English Courts,
owing no common obedience to superior authority, might
well differ in toto. Once more we see how unwise was the
passing of the Statute ofWestminster without achieving agree¬
ment on the submission to an inter-imperial tribunal of all
disputes between parts of the Commonwealth.
!5 2
IMPERIAL RELATIONS
103. THE IRISH FREE STATE CITIZENSHIP BILL
To the Editor of the Scotsman, 3 December 1934.
Though Mr. Thomas, like an eminent predecessor in office,
adheres to the spoken word, 1 it is clear that lie has realized
that his statement in the House of Commons was too absolute.
In his speech at Derby he has implicitly jettisoned the un¬
tenable doctrine that persons whose British nationality rests
only on statute of the Parliament of the United Kingdom
remain within the Irish Free State such nationals, if the Irish
Parliament under the powers conceded by the Statute ofWest-
minster repeals for the Free State the statutes giving them
British nationality. To persist in such a doctrine would be
to assert that the Statute of Westminster was an idle farce.
Mr. Thomas, therefore, by abandoning this claim of
superiority for the United Kingdom, which, persisted in,
would embroil him with the other Dominions, reduces the
British position to much more tenable form. He now recog¬
nizes that Mr. de Valera’s Bill does purport to deprive many
people of their status as British subjects, though in the Com¬
mons he denied this, and his proposition now is that the tie
of allegiance constituted by birth on British territory is such
that it cannot be extinguished by any Dominion legislature,
even with the Royal assent, the control of which he himself
handed over to Mr. de Valera. I presume that Mr. Thomas
would contend that the bond of allegiance could be broken
only by the concurrent action of the United Kingdom and
the Dominions, or at least by the action of the United King¬
dom and the Free State.
Now this is clearly a legal question, and the value of any
opinion on it depends entirely on the degree in which it
approaches the view which the law courts would take. That
compels us to examine the attitude of the Courts in general,
and it requires no special powers of prediction to hold it prob-
1 Mr. Thomas on Dec. i, 1934, reiterated his assertion criticized in No. 102.
See No. 85, ante.
IMPERIAL RELATIONS 153
able that the Supreme Court of the Irish Free State would
hold that it was within the powers of the Irish Parliament to
extinguish in Irish law the existence of such a bond, and can¬
dour compels the admission that on strict legal reasoning a
most powerful case can be made out for this view. What Eng¬
lish Courts would hold is far less easy to predict. But the
essential fact is that the Irish Courts are on a footing of equality
with the English as exponents of law, and, thanks to the lack
of statesmanship and prescience on the part of Mr. Thomas
and his colleagues, the Statute of Westminster was passed
without any provision being made for the effective determina¬
tion by an inter-imperial tribunal of disputes such as this.
Nor should it be forgotten that the Union of South Africa
seems bent on getting rid of the idea of British nationality.
104. THE IRISH FREE STATE CITIZENSHIP BILL
To the Editor of the Scotsman, 10 December 1934.
Mr. de Valera has very properly profited by Mr. Thomas’s
criticisms to make perfectly explicit the meaning ofhis Citizen¬
ship Bill. He has taken the precaution to negative any possible
revival of the common law in consequence of the repeal of
the British Nationality and Status of Aliens Acts, 1914 and
1918, and he has made it plain that in the Irish Free State
citizens shall not be reckoned as being British nationals or
subjects. I have no doubt that, if his Bill as proposed to be
amended is passed, the Irish Courts will be bound to hold
and will hold that under Irish law the citizen of the State is
not a British subject.
The minority in the Free State which desires to remain in
possession of British nationality is placed in an unfortunate
position, and may well resent the light-hearted action of the
Government which passed the Statute of Westminster, 1931,
without appreciation of the meaning of their own handiwork.
But they have two courses open to them: (1) They may decide
to remain Irish citizens in the Free State, content with the
IMPERIAL RELATIONS
154
fact that in the rest of the King’s dominions they remain British
subjects 1 and nationals, and will be recognized as such, and
that they will be entitled in foreign countries to be treated
as British subjects. It is true that Mr. dc Valera intends to
provide that a citizen of the Free State shall be such for all
international purposes. Outside the Free State, however, the
enactment comes into competition with the rules of law made
by the Imperial Parliament, and it is extremely unlikely that
any foreign Power, free to make a decision, would refuse to
recognize a British claim that British protection could be
extended to a British subject, despite the fact that he was
also an Irish Free State citizen, if that subject claimed that
protection. (2) They may take advantage of the power to rid
themselves of Irish citizenship on attaining age 21 which the
Bill recognizes. That, however, involves the loss of the fran¬
chise and other advantages, and on consideration the first
course may well commend itself to the minority.
The whole trouble is due to the virtual surrender of insis¬
tence on British nationality by the Imperial Conference of
1930 and its homologation in the Statute of Westminster,
1931. Mr. de Valera has the precedent of the action of Gene¬
rals Hertzog and Smuts, who, with the overwhelming support
of their followers, have asserted that nationality is not British
but South African, and that common status does not mean
common nationality. With the spectacle of British approval
of the Union action, Mr. de Valera may well wonder why so
much bitterness is shown at his declaration that Irish citizens
are not British nationals. The time may come when our poli¬
ticians will realize that, when they substituted a common status
based on allegiance for a common nationality, they destroyed
the effectiveness of the essential link of Empire. Consciousness
of a common nationality, not subjection to a single head, is
the only basis on which a Commonwealth can endure.
1 Lord Danesfort’s view to the contrary (House of Lords, Dec, 20 1934,) is
based on an error of law. The Bill as amended on report was renamed The
Irish Nationality and Citizenship Bill, 1934.
IMPERIAL RELATIONS 155
105. THE IRISH FREE STATE CITIZENSHIP BILL
To the Editor of the Scotsman, ii December 1934.
It will be found on reference to p. 64 of my Constitutional
Law of the British Dominions, which you do me the honour to
quote in your leader to-day, that my statement as to the
Dominion view on common status is preceded by an exposi¬
tion of the views of the Irish Free State Government on the
subject. My statement naturally was intended to be read
subject to the immediately preceding paragraph, and to refer
to the attitude of those Dominions which, as is well known,
accept loyally the Commonwealth ideal—Canada, Australia,
New Zealand, and Newfoundland. These Dominions differ
vitally from the Union of South Africa and the Irish Free
State in that they do not claim the right of secession.
(2) It will further be found from pp. 63-4 of my work that
in 1931 the Free State Minister responsible in the matter
enunciated a view of the effect of the Statute of Westminster
on the issue of Irish nationality which, in the essential points,
is the precursor of the legislation proposed by Mr. de Valera.
It cannot be too clearly recognized that in this matter, as in
the abolition of the appeal to the Privy Council, Mr. de Valera
is following, not merely in substance, but in detail, in the
footsteps of Mr. Cosgrave’s Government, a Government with
which Mr. Thomas was on cordial terms. There is nothing
on public record to show that Mr. Thomas ever took ex¬
ception to Mr. M c Gilligan 5 s views. As Mr. de Valera has
admitted, little in the way of destroying the connexion of the
Free State with the British Commonwealth was left for him to
do by his predecessor, who arrogated to himself the right to
appoint the Governor-General, and took out of British hands
all control over Irish foreign relations. When the fact of this
vital surrender, in which Mr. Thomas concurred, is borne in
mind, it is a little difficult to take tragically legislation, whose
practical effect, as I have shown in my letter in your issue of
to-day, is probably negligible.
X56 IMPERIAL RELATIONS
(3) Even were Mr. de Valera not treading in the footsteps
of Mr. Cosgrave, it must be remembered that resolutions of
the Imperial Conference do not bind a Government not party
to them. This was laid down definitely by Mr. R. MacDonald
in 1924 when he refused to give effect to Mr. Baldwin’s under¬
takings in 1923, butit has always been part of the Constitution
of the Empire. 1 Mr. de Valera has never pretended at any time
that he acquiesces in the Constitution of the Commonwealth
as it stands, and he has the clear approval of the electorate
for his action.
(4) When I wrote in 1932 (not 1933 as you state) I could
not criticize Mr. Thomas for sacrificing the bond of British
nationality for the sufficient reason that there existed no pub¬
lished evidence on which I could base that criticism, though
suspicion existed. All doubt was dispelled this year when the
Union of South Africa adopted in set terms the doctrine that
there was no bond of British nationality, and that the common
status was not nationality, and no protest was made by the
British Government. This is conclusive confirmation of the
position adopted in 1931 by Mr. M'Gilligan, and shows that
in 1930 the British Government included in its surrender at
discretion to the demands of the Union and the Irish Free
State the principle of British nationality. Surely it is not un¬
reasonable to criticize politicians who made so vital a surren¬
der and who were meticulously careful to conceal from the
British public the fact that they had done so, and surely it is
not belated to make the criticism on the first occasion when
it is relevant and proof to substantiate it exists.
(5) In view of the surrender in 1930 it seems to me to be
stressing trivialities and to be playinginto Mr. de Valera’s hands
to insist on criticism of his Bill. Will such action further the in¬
terests of the minority in the Free State? The answer seems
clearly in the negative, and there is assuredly sufficient ill-will
already between Britain and the State to deter even politicians
from augmenting it by contentions over legal niceties.
1 See Nos. 30 and 31, ante.
IMPERIAL RELATIONS
157
106. THE OATH OF ALLEGIANCE
To the Editor of the Scotsman, 20 December 1934.
May I point out that the decision of the majority of the
Supreme Court as to the validity of the Constitution (Amend¬
ment No. 17) Act of the Irish Free State, and of the tribunals
established under it, in no wise covers the case of the validity
of the Act abolishing the oath to the King? The former Act
could be declared invalid only on the Chief Justice’s theory
that the Act of 1929, extending to sixteen years the period
within which constitutional changes could be made by simple
Act without a referendum, was itself invalid. But that the
Chief Justice was wrong on this head can hardly be denied.
Article 50 of the Constitution, which gave the power for eight
years to effect changes by simple Act, did not prevent altera¬
tion of that Article itself, and, when the Constitution was
enacted, it was part of the constitutional law of the Empire
that a power of change granted by a Constitution applies to
authorize change of the power itself, unless it is safeguarded,
as it normally is, by forbidding change of the section giving
the power. The omission of this precaution in the Free State
Constitution must have been intentional, and therefore it was
natural that the Bail, at Mr. Cosgrave’s suggestion, and with
the full approval of Mr. de Valera, then in opposition, should
extend the period for change without a referendum.
The Act abolishing the Oath is in quite a different position.
It not merely abolishes the Oath which is part of the treaty,
but in order to do so it abolishes the provision in the Act of
the Constituent Assembly of 1922 which makes the Constitu¬
tion subject to the Treaty of 1921. I cannot conceive of any
reasoning which in law would justify the attempt of the Bail
to override the fundamental limitations put on its constituent
power by the authority which created it. I have no doubt
that the British Government shares this view, but I cannot
imagine that it holds that the Act of 1929 was invalid, nor has
it any interest in so holding.
i 5 8
IMPERIAL RELATIONS
107. SOUTH AFRICA AND THE EMPIRE
To the Editor of the Scotsman, 16 March 1934.
It seems paradoxical to claim that the tic between the Union
and the Empire is strengthened rather than weakened by the
measures to be passed by the Union Parliament, or that they
will consolidate the constitutional position of the Crown in
regard to South Africa. The real effect of the proposals may,
I think, rather be summed up as follows:
(1) Their primary purpose is to secure that every function
of the Crown in respect of the Union shall be exercised,
whether by the Crown personally or by the Governor-General,
solely on the advice of the Union Ministry, and that the Crown
or its representative shall be under legal obligation to act on
that advice. In particular, the Crown will have no voice
(except by courtesy) in the appointment of the Governor-
General, nor in his removal, and will have no power to give
him any instructions save such as are desired by the Union
Government.
(2) The Constitution of the Union will thus be assimilated
to that of the Irish Free State, and be differentiated from that
of the United Kingdom. In this country the Crown retains
powers which can and doubtless would be used to prevent
unconstitutional action by a Ministry or Parliament; for in¬
stance, the continuation in office of a defeated Ministry, or the
prolongation of the life of a Parliament beyond the normal
period if it had ceased to represent the will of the electorate.
In the Union, as in the Free State, the Ministry and the Parlia¬
ment now are exempt from any form of legal control.
(3) From the point of view of the supporters of secession
and neutrality the measures have distinct value. General
Hertzog’s ideal was the right of the Union Parliament, by a
simple majority in either House, to declare the termination
of the connexion of the Union with the Empire. General
Smuts used to deny that the Governor-General could assent
to such a Bill, and, so long as he was not selected by and subject
IMPERIAL RELATIONS
159
to removal by the Union Government, it was at least probable
that he would refuse assent. We have seen in the Free State
the removal of a Governor-General in order to assure that
assent should be given to a Bill violating the Constitution, 1
and any Ministry which desired to secure an Act of Secession
would simply place in the office of Governor-General one of
its supporters, and then could enact a measure which no
Court could impugn. Similarly, it will now be clear that His
Majesty will be unable to declare war for the Union except
on the advice of the Union Government, and must declare
neutrality if it so advises.
(4) There is only one point of substance in the matter, for
all that is being done is the inevitable, if perhaps unrealized,
outcome of the Conference of 1926 and the Statute of West¬
minster. Is the right of disallowance still permitted to the
Crown on the advice of the Secretary of State in the event of
a measure being passed which infringes the conditions under
which Union stocks have been admitted to trustee rank? The
Conferences of 1929 and 1930 agreed that the right must re¬
main in such a case, as to remove it would be a breach of
faith, It would, no doubt, be much better to substitute another
form of control, but, unless that is offered, it is clearly im¬
proper that the right should be taken away, though the legal
power to do so is beyond question. 2
108. THE SOUTH AFRICAN CONSTITUTIONAL
BILLS
To the Editor of natal mercury, 16 April 1534.
It is impossible to accept General Smuts's contention that
the assertion of Sovereign Independence by the Union is in
accord with the definition of Dominion Status by the Imperial
Conference of 1926. That Conference with great care avoided
anything derogating from the essential international unity of
the Commonwealth and stressed this unity by styling the
1 See Nos. 88 and 89, ante.
2 See Nos. 116 and 117, post.
IMPERIAL RELATIONS
160
United Kingdom and the Dominions as Autonomous commu¬
nities within the British Empire 5 and by insisting that equality
of status was conjoined with diversity of function. Lord Bal¬
four in his exposition of his work claimed that he had estab¬
lished the basis of the maintenance of that unity.
On the other hand, the Declaration of 192G is not sacrosanct,
and by stressing the negative aspect of autonomy it is easy to
arrive at a claim for Sovereign Independence, but it is inde¬
fensible to ascribe to the Conference of 1926 the responsibility
for a one-sided development which certainly was never con¬
templated by the majority of the members of the Conference.
For practical purposes by far the most important issue is
the destruction of any safeguard for the maintenance of the
Constitutional Government by taking away all check on the
powers of the Ministry which has the support of Parliament for
the time being. The King’s personal intervention can be dis¬
pensed with under the Royal Executive Functions measure, and
the Governor-General if, as would doubtless be the case, he was
the Ministry’s nominee would interpose no control of any kind.
The Ministry could then (x) sweep away the Cape Fran¬
chise which under the Status measure ceases to be effectively
safeguarded in any way; (2) abolish the Provinces; 1 (3) extend
the duration of Parliament, thus depriving the electorate of
the power of control of its representatives; and (4) declare the
secession of the Union from the Empire.
No such unfettered authority exists in any other part of the
Commonwealth and the new Constitution thus differs essen¬
tially from the British Constitution. It may be that the absence
of a strong partisan feeling and the conservatism of the people
render so remarkable an experiment innocuous in the Union.
It appears, indeed, to be proposed to give the Governor-
General the right to dismiss Ministers, but such a right would
1 This difficulty led to the passing of the South Africa Act Amendment Act,
x 934 > which declares that no province shall be abolished, have its powers
abridged, or its boundaries altered save on the petition of the Provincial Coun¬
cil. But it was admitted by the Ministry that the Act has no binding power, as
the Constitution is now without safeguards.
IMPERIAL RELATIONS l6l
be meaningless as a safeguard, since Mr. de Valera in the Irish
Free State established in 1932 the right of the Ministry to
remove from office the Governor-General as a preliminary to
the passing of unconstitutional legislation. It will now be
open for the Governor-General to exercise at the discretion of
the Ministry all sovereign powers, including the declaration
of war, peace, or neutrality and the making of treaties. This,
of course, is a fundamental change, for external sovereign
action has hitherto in the Dominions been taken by the King
on Dominion advice.
It appears to me, as I have often pointed out, that a change
is desirable. If neutrality is to be proclaimed in a British war
or a treaty inimical to British interests is to be made it ought
not to be done by the King personally, for such action would
lead to misunderstanding and might endanger the loyalty of
the people of the United Kingdom to their Sovereign. No
doubt the Imperial Defence Committee will take due con¬
sideration of possible Union neutrality in future plans for the
defence of the Empire.
The possibility of secession will compel reconsideration of
the question of the transfer of the Protectorates and Basuto¬
land to the Union. It involves a vital change in circumstances
that prevailed when the possibility of transfer was mooted.
Moreover, the abolition of any authority on the part of the
King over the Union in itself is inconsistent with the schedule
to the South Africa Act.
Insistence on Union Nationality as opposed to British
Nationality no doubt will accelerate the tendency of foreign
countries to refuse to accord to nationals of the Dominions
which do not accept British treaties rights stipulated for British
subjects in general.
But the claim of Dominions which stand apart from British
treaties to secure for their nationals rights accorded to British
subjects has always been anomalous, and I have never believed
that it could have been enforced at international law if foreign
countries had disputed it.
M
162
IMPERIAL RELATIONS
It is useless to answer the abstract question whether an Act
of the Imperial Parliament could now be passed to bind the
Union in spite of the new measures, as it is certain that no
such Act would ever be passed.
It is most satisfactory to note that, while the new legislation
technically facilitates secession, the re-cnactmcnt as a Union
Act of the Statute of Westminster, whatever its legal value,
including provision as to succession to the Throne, affords the
reassurance that m the eyes of the IVIinistiy a vital difference
exists between the right to secede and the exercise of that
right. If, despite the dangers involved in an uncontrolled
Constitution, the new measures bring satisfaction to the na¬
tional sentiment of the Union, they will undoubtedly deserve
to rank as a landmark in the evolution of the Commonwealth,
especially if all the people in the Union now feel at liberty to
promote—in their sovereign independence co-operation in
the Commonwealth.
109. SOUTH AFRICA’S PROPOSED CONSTITUTION
To the Editor of the morning post, ii April 1934.
As few of your readers will probably have before them the
text of the important South African Bills, it may be worth
while to call attention to one or two salient features which
seem hardly sufficiently to have been brought out in the
cabled summaries.
(1) The essential innovation is the taking of power to elimi¬
nate the personal action of the Crown in respect of external
affairs. Hitherto in the Dominions, while all action in external
no less than in internal matters has been taken on the advice
of the Dominion Government, there has been the marked dis¬
tinction between these spheres in that in external issues the
personal action of the Crown has been required, and the King
has acted in treaty making, and would, of course, act in issues
of neutrality or war and peace. The Royal Executive I unc¬
tions and Seals Bill still permits the King to act, but, at the
IMPERIAL RELATIONS 163
discretion of the Union Ministry, enables it to substitute action
by the Governor-General, if, for instance, His Majesty declined
to declare neutrality in a British war or war against an ally of
the British Crown. It may fairly be said that this procedure is
desirable, for the King ought not personally to be placed in a
position in which his action might raise resentment here. But
it is a revolutionary change.
UNFETTERED POWER
(2) As the Bills stand, the Union Constitution loses all
checks on the power of the Ministry in office at any moment,
and thus departs vitally from the model of the Constitution of
the United Kingdom. The Governor-General is the nominee
of the Ministry, and with his concurrence the Parliament can
legally extend its existence at pleasure, declare the Union a
republic, or sweep away the Cape native franchise. Should
a Governor-General be recalcitrant, the precedent of the
Governor-General of the Irish Free State is conclusive of his
fate. I do not doubt that the Union Parliament will act wisely,
but it is right to note this enormous concession of unfettered
power to what may be a chance majority secured in a moment
of public excitement. The Irish Free State at least has the
safeguard of proportional representation to control the com¬
position of the Dail.
(3) As the legal assertion of sovereign independence is now
taking place, it will be necessary to reconsider the position of
the Protectorates and Basutoland. The proposal to hand them
over to the Union was contemplated when the South Africa
Act, 1909, was passed, because the Union was intended to
remain an integral part of the Empire. It would clearly now
be impossible to transfer these territories without their full
assent, and that of the British Parliament, to an independent
kingdom whose connexion with the Crown of the United King¬
dom could in law be severed by a simple Act passed by a bare
majority in either House.
The South African action can unquestionably be regarded
IMPERIAL RELATIONS
164
as a legitimate, though not the necessary, outcome of the
Conference of 1926, and no one will desire to criticize the
decision taken. But I think it well to realize how complete the
change of status is. It appears, indeed, that the Union Govern¬
ment is prepared to adopt the view that the Governor-General
should be given the discretionary power to dismiss a Ministry
as a measure of safeguard for the rights of the electorate as
against their spokesmen in Parliament, but this is clearly use¬
less in view of the certainty that any Ministry would take the
precaution, as did Mr. de Valera, to secure that the office was
in trustworthy hands.
no. FUNDAMENTAL ALTERATIONS OF
SOUTH AFRICAN LAW
To the Editor, gape times, 18 July igg^.
In your issue of June 28 you criticize a letter of mine to
Mr. Marwick, which appears to have been deemed by the
latter worthy of publication, on the ground that it does not
give my views on the relation of the Status of the Union Bill
to pre-existing constitutional practice and the Statute of West¬
minster. I must remind you that as early as April 16 the Natal
Mercury, and I understand certain other papers, published a
full statement of my views obtained by your representative in
London, and that it would have therefore been absurd to
repeat them in my letter to Mr. Marwick.
The essential point which I made was that the new Constitu¬
tion confers on the Ministry of the day complete control over
the representative of the Crown, and authorizes the latter on
advice of Ministers to exercise even in external affairs the
prerogatives of the Crown. It results, therefore, that under the
new Constitution the Ministry might secure a declaration of
neutrality by the Governor-General for the Union without
any action on the part of the King, and it might secure his
assent to an Act to eliminate the Crown from the Constitution,
again without the King’s consent. These matters constitute
IMPERIAL RELATIONS 165
the carrying out in legal form of the principles of the right of
secession and of neutrality asserted by General Hertzog, but
apparently denied by General Smuts, and thus in my opinion
the new measure, instead of leaving unaltered the status quo
as regards the Constitution, definitely solves the former doubts
in favour of General Hertzog’s views.
I note with satisfaction that Professor J. H. Morgan has
altered the extreme views which he rather hastily expressed
on the appearance of the Bill, but neither he nor Sir Lynden
Macassey deals with the points raised by me. I note that in
the parliamentary debates the Government studiously re¬
frained from any endeavour to refute them, and it still appears
to me that to pass legislation without a definite understanding
of its meaning, when such vital questions as those of neutrality
and secession are concerned, was deeply regrettable. Nor does
it make the matter any better that in the British Parliament
also during the discussion of the Statute of Westminster, 1931,
the same issues were burked, and it is pertinent to remember
that several confident assertions by governmental spokesmen
on that occasion were promptly shown to be illusions by the
action of the Irish Free State. The public is entitled to know
exactly what Parliament enacts, and ambiguity is not normally
deemed a merit in legislation.
hi. FUNDAMENTAL ALTERATIONS OF
SOUTH AFRICAN LAW
To the Editor, gape times, 5 September igg^
In commenting on the views expressed in my letter ofjuly 18
in your issue of August 8, you assert that my view is completely
in conflict with that of Professor J. H. Morgan, Sir Lynden
Macassey, and others. I have to point out that, so far as I am
aware, neither of these authorities has attempted to deal with
my arguments as to the effect of the Union legislation of 1934,
and that, if these arguments can be refuted, it is eminently
desirable that some effort to do so should be made.
l66 IMPERIAL RELATIONS
But, assuming that my arguments are capable of refutation,
then two results follow, (i) It is impossible to regard the
Status Act as a 'vital landmark 5 in the history of the Common¬
wealth, for it carries matters no farther than the Statute of
Westminster, 1931, and must be regarded as merely imple¬
menting for the Union that essential statute. (2) It is clear
that General Hertzog has failed to implement the categorical
and emphatic assurances which he gave in February to Mr.
Erasmus, that he would legislate to bring South Africa's
position into full accord with its sovereign independent status,
as defined by General Hertzog and the Head Committee.
Personally I cannot for a moment believe that General Hert¬
zog has broken his pledged word, and I recognize in his legis¬
lation a vital landmark because it for the first time provides a
legal basis for (1) the divisibility of the Crown; (2) the right
of separation; and (3) the right of neutrality. To me, as
General Hertzog and to Colonel Stallard and his friends, these
matters appear far more than legalistic quibbles. They are
the essence of sovereign independence, and their assertion
marks the culmination of General Hertzog’s most essential
work.
112. THE 'NEUTRALITY 5 OF SOUTH AFRICA
To the Editor of the morning post, 18 October 1934.
I note that General Hertzog has again committed himself
to the doctrine that the Union of South Africa may remain
neutral in a war declared by the King on the advice of the
British Government, and has at last 1 faced the issue of the
position of the British naval base at Simonstown. His con¬
tention regarding the latter is that in the event of a British war
the Union would stand in the same position to Simonstown as
does Spain to Gibraltar.
I fear that this assertion is patently untenable. In 1921,
1 See Keith, The Sovereignty of the British Dominions , p. 469, where his earlier
failure to envisage the situation is shown.
IMPERIAL RELATIONS . 167
when a transfer of certain lands and buildings was made to the
Union, the Admiralty was assured of the right of the perpetual
user for naval purposes of the lands and buildings then occu¬
pied for these ends. Further, the Union Government under¬
took responsibility for the defence of the naval dockyard at
Simonstown as a base and naval fuelling station for the British
Navy, and to keep them in a state of defence for Imperial
purposes, so that the station would be able to discharge its
function in the scheme of Imperial defence.
Unless General Hertzog proposes to repudiate this obliga¬
tion—which is most improbable—he cannot claim effectively
in International Law, as it now stands, that an enemy of the
King should respect Union neutrality. The case is closely
analogous to that of the Irish Free State, where Mr. de Valera
has quite correctly insisted that the obligations as to facilities
for naval defence imposed by the Treaty of 1921 negate the
possibility of true neutrality for the Irish Free State.
The analogy of Spain, of course, is worthless: Spain is under
no obligation to defend Gibraltar, and the Union is still united
to the United Kingdom by the bond of common allegiance.
113. GENERAL SMUTS AND SOUTH AFRICA
To the Editor of the Scotsman, 20 October 1Q34.
Political memories are notoriously short, but it is really
amazing to find General Smuts under the impression that self-
government in South Africa was the gift of the United
Kingdom as a whole. In point of fact, it was conceded to the
conquered colonies by the Liberal party in the teeth of bitter
opposition of the Conservatives and Unionists, and the grant
would never have been made in 1906-7 but for the fact that it
was found that it was possible to establish responsible govern¬
ment in the two colonies by the Royal prerogative. No one
can seriously suppose that an Act for this purpose could ever
have been passed through the House of Lords.
General Smuts, again, in painting for us the picture of a
l68 IMPERIAL RELATIONS
South Africa wholeheartedly co-operating with the rest of the
Commonwealth, forgets to remind us that the latest measure
of the Union Parliament is, as explained by the Prime Minister
of the Union, intended to assert the essential doctrines of (i)
the divisibility of the Crown; (2) the right of secession; and
(3) the right of neutrality. The Prime Minister has also made
it clear that there is no understanding of any sort with the
British Government that the Union will co-operate in a
Bridsh war, and he has pointed out that in the event of the
Union declaring neutrality in such a war its position as regards
the United Kingdom will be analogous to that of Spain. Those
who, while most anxious to further political reforms in India,
suggest caution and deprecate placing India at any early date
in the position of the Union are hardly deserving of the censure
of placing party above principle.
114. SOUTH AFRICA AND THE EMPIRE
To the Editor of the Scotsman, 24 October 1934.
British faith and statesmanship unquestionably saved the
Union to the Empire in the Great War. But the view that
Afrikaans-speaking South Africa really accepts the Empire is
open to grave doubt. If it does, why does it assert the doctrines
of divisibility of the Crown, of secession, and of neutrality?
Why does it demand the abolition or weakening of the rule
that Union citizens are British subjects? Why, again, does the
constitution of the fusion party provide for the right of its
members to work within the party for the declaration of a
Republic? Why does General Hertzog assure the supporters
of the party in the Backveld (1) that South Africa has the right
to sell goods to any nation with whom Great Britain is at war,
and (2) that South Africa is so free and independent that she
could select the King of the Belgians as her king?
The truth is that British faith and statesmanship have to
contend against a deep-rooted love of Republicanism, and the
ultimate result no man can foretell. The South Africa pre¬
cedent was adduced to justify the Irish experiment. Yet
IMPERIAL RELATIONS 169
Mr. Cosgrave left Mr. de Valera nothing of consequence to
do as regards the elimination of the Crown from connexion
with the government of the Free State. In this case again faith
has failed to alter obstacles based on centuries ofhistory. Faith
has solved neither the problem of South Africa nor that of the
Irish Free State, and Indian policy must be decided with due
recognition of the fundamental differences between India and
the Union or the Free State and of the fact that concession of
authority on the lines of the White Paper would be irrevocable.
To prevent misunderstanding it is desirable to point out
the fundamental distinction as regards a British war between
Canada and Australia and the Union. The former Dominions
have no legal power to declare neutrality or secession; their
Prime Ministers have never claimed any such right; Canadians
and Australians still accept the status of British subjects. If
Britain is at war, they are at war also ipso facto. In the case of
the Union, on the outbreak of war Britain may be confronted
with a declaration of neutrality, which might prove most
damaging to British schemes of naval operations, for, if the
Union is declared neutral, the British Fleet cannot use Simons-
town as a base without violation of that neutrality, a fact which
General Hertzog unfortunately has failed to realize.
115. SOUTH AFRICA AND THE
NATIVE TERRITORIES
To the Editor of the morning post, 28 April 1934.
In the controversy which has arisen in the Union of South
Africa on the legal aspect of the transfer of the native terri¬
tories to the Union no reference appears to have been made
to the vital question of the effect of Clause 7 of the Royal
Executive Functions and Seals Bill. Under that clause the
authority of the King in Council under the South Africa Act,
1909, is to be transferred to the Governor-General in Council,
unless the latter decides that the exigencies of the case require
that action should be by the King in Council.
170 IMPERIAL RELATIONS
It is obviously very unsatisfactory that there should be no
express saving of the provision for action by the King in Coun¬
cil only in regard to transfer of the native territories. It would
be impossible for the British Government to admit that they
could be transferred by order of the Governor-General in
Council, either legally or constitutionally, and the Bill should
be amended to secure the position.
It has been suggested that the Union Parliament would be
willing to enact as Union law the restrictions on government
contained in the schedule to the South Africa Act. The diffi¬
culty is that, as the Union Parliament is of full sovereign
capacity, such enactment could at any time be cancelled, for,
even if power to disallow any Union Act altering the con¬
ditions were given, no British Government would dare to act
on that power. It seems, therefore, inevitable that the transfer
of the territories must wait until the Union Government can
persuade the native communities that their interests will be
safe under Union control.
116. SOUTH AFRICA AND THE COLONIAL
STOCK BILL
To the Editor of the times, j July 1934.
May I suggest that the Governments of this country and of
the Union of South Africa in their agreement regarding safe¬
guards for holders of Union trustee stocks have neglected
an excellent opportunity of applying the principle of inter¬
imperial judicial settlement of disputes?
Hitherto the British Government has possessed a discretion¬
ary right recognized by the Imperial Conference of 1930 to
disallow Union legislation which it considers injurious to stock¬
holders or to involve a departure from the original contract.
In lieu it has accepted the obligation of the Union Government
to ‘take the necessary steps to ensure such amendment as may
be requested 3 by the British Government in such legislation.
IMPERIAL RELATIONS
171
Imagine the position of the Union Government when it brings
down to Parliament a Bill to carry out a request by the British
Government of which it does not approve. Parliament can
hardly be expected to accept such a proposal on British
authority. The obvious course is to provide for reference to
an inter-imperial tribunal of such a dispute, both sides agree¬
ing to accept its decision; for the Union Parliament would
doubtless honour an obligation thus affirmed where it would
decline the mere request of the British Government. As it
stands the new agreement replaces disallowance by a proce¬
dure which if brought into action would probably involve a
bitter inter-imperial conflict, so that the British Government
in practice would decline to take action.
117. THE COLONIAL STOCK BILL AND AN
INTER-IMPERIAL TRIBUNAL
To the Editor of the Scotsman, 77 July 1934.
It is natural that the Government of the Union of South
Africa should have proposed the form of undertaking in respect
of Union trustee stocks now adopted in the Colonial Stock Bill.
In lieu of the undoubted power of disallowance of Union
measures, reaffirmed by the Imperial Conference of 1930 as
still proper to be employed if the Union should pass legislation
unjust to investors, has been substituted a mere undertaking
by the Union Government to secure the amendment by the
Union Parliament of any such legislation at the request of the
British Government. It is obvious that a Union Parliament
would be most unwilling to alter an Act originally passed at
the invitation of a Union Government, because of any British
request. The Nationalist spirit would be deeply offended by
any such action, and the British Government, unwilling to
raise an issue of first-class importance, would, doubtless, prefer
to acquiesce in injustice to investors.
It is perfectly true that disallowance is an unsatisfactory
mode in which to deal with such an issue, but the substitute
172 IMPERIAL RELATIONS
is no better. The real safeguard for investors is the right to
invoke the jurisdiction of an inter-imperial Court, for it is clear
that a Dominion Parliament can accept the decision of such
a Court where it could not yield to British authority. Similarly,
the British Government would be in a far stronger position if,
when injustice is alleged, it had the right to refer the issue to an
impartial Court. It is incompatible with the present state of
inter-imperial relations that the British Government should
be assigned the right to determine at its discretion that a
Dominion Parliament had acted unjustly. 1
Mr. Chamberlain’s argument against a permanent intcr-
Imperial tribunal is unconvincing. His suggestion that the
question of the Irish land annuities could not be solved by a
tribunal is wholly unsatisfactory. It is essentially a justiciable
issue, and it is most unfortunate that, through disagreement
on the tribunal, we are without any judicial pronouncement
on the questions involved. The disadvantage of the absence
of such a tribunal is illustrated by the recent decision of
the Privy Council to have argued before it the question of the
validity of the Irish Act of 1933 abolishing the appeal to the
Crown in Council. 2 It is impossible to expect the Free State
to treat as in any way binding the proceedings of a tribunal
on which it is not represented, and, in the absence of arguments
for the validity of the Act by representatives of the Free State,
the tribunal cannot be in a position to deal with full effect with
the matter.
118. WESTERN AUSTRALIA AND SECESSION
To the Editor of the Scotsman, 20 November 1Q34.
Constitutionally, it must be recognized, Western Australia
has clearly no case for action by the British Government or
1 The case for a tribunal was urged by Sir Stafford Cnpps, House of Com¬
mon^ July 11 and 16, 1934 {Debates, ccxcii. 338 AT., 899 ff.).
2 See The Times, Dec. 4 and 5. It is most invidious for any tribunal to have
to decide its own competence as against a sovereign legislature, and for the
Lord Chancellor to deal judicially with an issue on which the British Cabinet
has announced a definite view in which he must as a Cabinet minister concur.
IMPERIAL RELATIONS
W3
Parliament. Nothing is more clear than that the Common¬
wealth Constitution which was deliberately accepted by the
majority of the people of the territory on the referendum leaves
amendment solely to the Commonwealth Parliament and the
people. In precisely the same spirit, the final interpretation of
the Constitution was reserved to the High Court, unless it
thought fit to allow a decision by the Privy Council. It is per¬
fectly true that the Imperial Parliament could, so far as mere
law was concerned, destroy the Commonwealth Constitution,
and that the Commonwealth has not declared the Statute of
Westminster in force. But it would be a revolutionary action
and wholly unconstitutional for the British Parliament to pass
at the instance of one State any legislation interfering with the
federal tie, and it is inconceivable that the Government of the
State can expect any such action. It would be equally un¬
constitutional for the British Government to urge any further
concessions to the State by the Federal Government. What¬
ever is to be done will have to be done by the action of the
State and its people in persuading the rest of Australia of the
justice of the claim for better terms. It must, however, be
noted that Tasmania and South Australia have been in some
measure reconciled to their position by generous increases in
their federal grants, and that Western Australia for many
reasons is rather isolated.
The truth is that Wes tern Australia acted unwisely in accept¬
ing federation, and the obvious lesson to be derived from her
fate is that the Indian States will be well advised to consider
closely the position which they will occupy if they accept
federation without securing the right on due notice to with¬
drawal. Federalism in theory and practice may easily mean
the sacrifice of some part of a whole for the benefit of other
parts. It is quite arguable that the maritime provinces of
Canada have lost by federation, into which Nova Scotia at
least was impelled by the British Government, while Par¬
liament turned a deaf ear to her appeal for release, though
made immediately after federation, and supported by the
174 IMPERIAL RELATIONS
almost unanimous voice of the electorate. It is essential to
remember that the vote in Western Australia is not over¬
whelming.
119. WESTERN AUSTRALIA AND SECESSION
To the Editor of the Scotsman, 26 November 1934.
I have always held that Western Australia made a grave
error in entering federation, and I sympathize deeply with the
present plight of the State, which should serve as a warning
to Indian princes to think long before they commit themselves
to an indissoluble federation. But the delegation errs when it
ttiinVs that I have an imperfect knowledge of the extent of the
State’s disabilities. 1 I have studied the Case with great care,
but it is fair to the Commonwealth to point out that there is
another side to the matter. It is set forth in chapters v-xii of
the Case for Union, compiled by Sir R. Garran and Mr. J. H.
Keating, two of Australia’s leading jurists, and by Messrs.
Somerville and Gilbert of Western Australia, the former of
whom is a member of the Arbitration Court. No candid stu¬
dent of the two cases will deny that Western Australia has
grievances, but equally he will feel with the overwhelming
weight of Australian opinion outside Western Australia that
it is a serious exaggeration to talk of ‘a matter of economic
life and death’.
Moreover, the case for the State is gravely weakened by the
fact that on the referendum 138,653 voted for secession, but
70,706 against it, and that at the same time the electors re¬
turned to power a Labour Government, headed by Mr. Collier
who on May 14, 1934, reiterated his personal opposition to
secession and who on November 22,1932, admirably summed
up the constitutional position in the words: ‘The Imperial
Parliament has learnt its lesson and would not give a consent
1 The delegation, sent to support the petitions for secession, replied to No.
118 in a letter which appeared in The Scotsman, Nov. 26, 1934. To No. 119 the
Delegation attempted no reply.
IMPERIAL RELATIONS 175
which might cause disruption in any Dominion of the British
Empire. 5 The Labour Government, in sending the delegation,
is acting loyally under the result of the referendum, but it is
perfectly clear that the demand from the State lacks entirely
that unanimity which alone would render British intervention
conceivable.
The view of the unconstitutionality of British action which
I expressed in 1931 1 was elicited by the request of an able and
ardent supporter of secession; it is shared, I believe, by the
overwhelming majority of Australian jurists, and I have no
doubt that it will be homologated by the Law Officers of the
Crown and the British Government and Parliament. The
delegation has a definite duty to perform but its purpose
cannot be achieved without disaster to the Empire. 2
1 Published in the Western Australia Daily News, Nov. 27, 1931. It ran as
follows: ‘That decision (i.e., the original decision to federate) binds the State
unless and until it is proved that continued membership of the Commonwealth
is destructive to its welfare, when the right of separation might be claimed.
The Imperial Parliament’s authority is in formal law absolutely sovereign, and
cannot be relinquished; therefore it still has power to exclude a State from the
operation of the Commonwealth Constitution Act, nor will the passing of the
Statute of Westminster diminish in law its sovereign power, but its exercise
would be totally unconstitutional and could not be contemplated by the
British Government unless proof of absolute necessity for the innovation could
be adduced. It would be extremely difficult to adduce such proof.’
2 So doubtful was the right of the Houses of Parliament to entertain such a
petition held to be that in both it was held that a special report must be pre¬
pared as to the admissibility of the petitions presented.
II
INDIAN CONSTITUTIONAL REFORM
i. INDIA AND THE DOMINIONS
To the Editor of the times, 2g June igi8.
It is earnestly to be hoped that the representatives both of
the Dominions and of India at the Imperial Conference will
act on the advice given in your leading article of the 28th inst.
and will arrange for the speedy carrying into effect of the
principle of reciprocity in immigration matters which was ac¬
cepted at the meeting of 1917. 1 Nothing has done more to
lessen the value of the Conference as an institution than the
interminable delays which have taken place in making effec¬
tive agreements arrived at.
Delay, however, is clearly inevitable in this case if Imperial
legislation is required, as suggested in your article, to confer
powers on the Government of India. But I would suggest
that there is no necessity for such legislation, and that the
Government of India can be clothed with all the powers re¬
quired by the action of the Governor-General in Legislative
Council. The Government of India Act 1915, re-enacting
much earlier legislation, confers by Section 65, power on the
Governor-General in Legislative Council to make laws ‘for
all persons, for all courts, and for all places and things within
British India’, and ‘for all subjects of his Majesty and servants
of the Crown within other parts of India’. There is no restric¬
tion on the exercise of this power which does not apply equally
to the legislation of the Dominion Parliaments, while the
Crown Colony Government of the Transvaal obtained its
power to exclude Indian immigrants from a legislature
erected merely by the Royal prerogative. All, therefore, that
now seems requisite is for India and the Dominions to deter¬
mine the mode in which control of Dominion immigrants into
India is to be applied, and the responsibility for doing this
rests primarily with India’s representatives.
1 Keith, Speeches and Documents on Indian Policy } ii. 135.
l8o INDIAN CONSTITUTIONAL REFORM
2. THE GOVERNMENT OF INDIA BILL: IMMUNITY
OF MINISTERS
To the Editor of the times, 4 December igig.
That the India Office should defend, as is done in your issue
of yesterday, the draftsmanship which extends in the Govern¬
ment of India Bill to Ministers immunities granted to the
Governor-General, Governors, Lieutenant-Governors, and
Executive Councillors is natural, but Sir E. Chamier’s reply
to my criticism reveals how far he is from comprehending the
vital character of the change in the government of India
brought about by Mr. Montagu’s Bill.
In this country and in the self-governing Dominions it is
an essential principle that every Minister is amenable to the
law courts for his actions, and it is owing to this admirable
principle that British subjects in these countries are secure in
person and property against ministerial wrong-doing. When
the office of Minister is created in India, every considera¬
tion of precedent and principle demands that he should,
as regards the Courts, be placed in the same position as
every other holder of ministerial office in the British
Empire. Instead of this, the Bill places Ministers in the
position of freedom from control which was first granted
to Warren Hastings. Comment on such a proposal in 1919
seems needless.
But, I must repeat, Ministers will be even better off than
Warren Hastings, who desired to return to England, and so
brought himself within risk of retribution, and than Executive
Councillors, who, if European, suffer from the same disabi¬
lity. In the case of Ministers the safeguards of (1) control by
official superiors and ultimately Parliament, and (2) possibi¬
lity of action in the High Court of England are non-existent;
the proposed extension of immunity to Ministers is therefore
wholly unjustifiable, and is explicable only on the theory that
it slipped in, as I apprehend was the case, as a consequential
INDIAN CONSTITUTIONAL REFORM 181
amendment, which unhappily, the India Office is not now
willing to disavow. 1
3. INDIAN AUTONOMY: LACK OF APPRECIATION
To the Editor of the times, 5 October IQ20.
Your comment of Saturday on the report of the Army in
India Committee, and the apologia which it has elicited from
the India Office, serve to illustrate the curious lack of appre¬
ciation prevalent in the United Kingdom of the fundamental
facts of the position of India. The Committee, the India
Office, and Parliament alike are plainly under the impression
that the development of responsible government in India will
be a leisurely process, conducted at the rate of speed which
seems good to them. They ignore the fact that nothing save
the abstention of Indian politicians from the use of the powers
now put in their hands can prevent the growth of Indian
autonomy with a swiftness wholly beyond their anticipation.
Two considerations alone are sufficient to show that forecasts
made in 1917 are wholly out of date. India has been accorded
a place in the League of Nations, which is justifiable only on
the assumption that almost immediately she will be a com¬
pletely autonomous part of the Empire on the same plane as
the Dominions, and Egypt has been assured of practically
complete independence in internal affairs. Any attempt to
hold India long in a position of virtual dependence is bound
to fail, and it is a fundamental defect of the report of the
Army Committee that this fact has never been clearly appre¬
hended by them. Every consideration of prudent statesman¬
ship demands that before any final decisions are taken on the
recommendations of the report, the matter should be brought
before the new legislature in India. To confront that body
with a fait accompli would merely play into the hands of the
faction in India which denies the sincerity of the British
Government’s reform policy.
1 It may be hoped that in 1935 this anomaly may disappear. See also
Keith, Cmd. 207, pp. 56, 57.
182 INDIAN CONSTITUTIONAL REFORM
Further evidence of inability to appreciate the new situa¬
tion is afforded by the failure of the India Office to make
explicit to candidates for the India Civil Service the effect on
their career of the political changes which are inevitable,
though these must totally alter the conditions hitherto pre¬
vailing. Moreover, in justice both to the finances of India and
to civil servants, steps should now be taken to draw up definite
scales of pension payable to men who may find it necessary
to retire from the service as political changes render their
positions in effect untenable. The extension of responsible
government must mean in India, as in the Dominions, the
reduction to the minimum of the employment of men from
overseas, and the events of 1906-7 in South Africa should be
satisfactory proof of the dangers of taking short-sighted views
in these matters.
4. INDIANS IN KENYA: EQUALITY OF
TREATMENT
To the Editor of the times, i August igsi.
It must presumably be the serious failure of publicity with
regard to the proceedings of the Imperial Conference that
has led Sir W. Joynson-Hicks and his colleagues into the error
of ignoring the fact that the issue of the position of Indians
in Kenya Colony has formed an important part of the pro¬
ceedings of that body, and that the Secretary of State has
already, and most properly, admitted that racial discrimina¬
tion within territories over which the Imperial Government
exercises control, cannot be permitted.
Nothing can be more unfortunate than the attempt to use
the protection of the natives as a ground for refusing equal
justice to Indians. The well-being of the native population
assuredly demands that their fate should not be entrusted to
the representatives of the British or the Indian settlers in the
colony, but it certainly does not require that Indians should
be treated as an inferior race. No sane British statesman can
INDIAN CONSTITUTIONAL REFORM 183
desire to create in a territory under Imperial control the
difficulties which exist in the Transvaal or Natal.
It would be interesting to know by whom the 'white British
population 5 were 'invited to colonize East Africa on the suppo¬
sition that it would be retained as a white man's colony 5 . As
far as I can ascertain, there is no authority whatever that such
an invitation was ever made by the Imperial Government,
which alone could hold out any such prospect. Nor can I
understand how the concession of the franchise on equal terms
to Indians would 'convert a British colony into an Indian
dependency 5 . No sane person contemplates the grant even
of representative government to the colony.
In one respect only do I concur in Sir W. Joynson-Hicks’s
views; this case confirms the view, which I shared with the
majority of my colleagues on Lord Crewe’s Committee imgig,
that the establishment of a Joint Select Committee on Indian
Affairs to deal with issues such as this was neither desirable
nor likely to prove effective.
5. INDIANS IN KENYA
To the Editor of the times, 4 August jg2i.
As the public may be excused an ignorance hardly credit¬
able to a colonial legislator, it may be well to explain that
representative government in the terminology of colonial con¬
stitutional law denotes a form of government in which the
executive government is carried on under the control of the
Secretary of State for the Colonies, but legislation is enacted
by a body in which the executive does not by means of nomi¬
nation or otherwise command a majority. Such a form of
government in the colonies has often proved the prelude to
the adoption of responsible government. Needless to say that
such a form of government is wholly out of place in a case
where the white settlers form an insignificant fraction of the
1 Committee on the Home Administration of Indian Affairs, Cmd. 207,
pp. 13 (majority), 55, 56 (my minority report).
184 INDIAN CONSTITUTIONAL REFORM
total population, and the Crown has definite obligations in
respect of the safeguarding of the native population, and Lord
Milner’s alleged grant of this form of government to Kenya
Colony has no existence outside the imagination of your
correspondent.
6. THE INDIAN LEGISLATURE AND THE ESHER
COMMITTEE’S REPORT
To the Editor of the times, g November ig2i.
The Aga Khan’s intervention induces me to renew the
suggestion which I have already made in your columns that
the Government of India should defer action on the report of
Lord Esher’s Committee until it has consulted the Indian
Legislative Assembly. If the Assembly shares the views of the
Aga Khan, the Government should defer to its judgement
unless it considers that this is impossible consistently with the
safety of India itself, in which event it would be entitled to
override the Assembly so far as was necessary for the security
of India, but not merely to facilitate a wild policy of Imperial
adventure.
The pledge of 1917 to India is open to two interpretations:
the first, adopted by Lord Esher’s Committee and the majority
of my colleagues on Lord Crewe’s Committee of 1919, contem-
plates a period of indefinite but prolonged duration before the
legislatures of India exercise any real control over important
issues. The other—and I hold the only just—interpretation
gives the British Government a reasonable period in which it
must employ its best efforts to render Indians capable of effec¬
tive self-government. 1 From the outset, I contend, the co¬
operation of the legislatures should be asked on every issue,
anS they should be overridden only in the last resort. The
policy of Lord Esher’s Committee, on the other hand, is to
1 See my minority report on the Home Administration of Indian Affairs
(i9*9)> Cmd, 207, pp. 36-60.
INDIAN CONSTITUTIONAL REFORM 185
remove once and for all the control of the Indian forces from
the power of the Assembly.
A frank policy of co-operation with the Assembly is the
only method by which to secure permanent relations of unity
between Great Britain and India; the plan of reluctant yield¬
ing to pressure will merely play into the hands of the extrem¬
ists, and repeat in the case of India the fiasco of Ireland.
7. THE SITUATION IN INDIA
To the Editor of the Scotsman, 9 March 1922.
The gravity of the official news from India, which merely
confirms information available from private sources, renders
it opportune to consider whether any steps are possible to
improve relations between Great Britain and India. Three
points are at present of special interest:
(1) Mr. Churchill’s policy in Kenya, which means nothing
more or less than the exclusion of Indian immigration, is
wholly indefensible when based, as it is at present, on the
interests of the white settlers. As Sir F. Lugard has recently
shown, the interests of the natives of Kenya are now strongly
opposed to any substantial immigration of either Indians or
Europeans, and restriction on immigration in either case
would be wholly justifiable. The differential treatment on
racial grounds of Indians already settled in Kenya cannot be
defended on any principle whatever, and Mr. Churchill, who
encouraged Indian immigration, should be the last to approve it.
(2) The revision of the Treaty of Sevres in favour of Turkey
will doubtless be shortly undertaken. But it may be taken as
certain that we cannot meet the desires of the Mohammedans
of India in this regard, for to do so would involve us in grave
danger and difficulty. The obvious truth is that the Moham¬
medan demands are pitched so high as they are with a view to
make it impossible for them to be conceded. It is a vain de¬
lusion, which has unhappily deceived Lord Northcliffe, that
by concessions to Moslems we can divide the people of India,
186 INDIAN CONSTITUTIONAL REFORM
and use Moslem aid to postpone further reforms. The gulf
between Moslem and Hindu is very deep., and it will reveal
itselflater in its real strength. But no concession which we can
now make to Moslem feeling will avail to break the present
union against the Government, and those who persist in the
belief in this policy will have a painful awakening.
(3) It is idle to hope to meet the situation without very
substantial concessions in the way of self-government. The
independence of Egypt has been conceded, and Mr. Chur¬
chill’s menaces are quite insufficient to overawe India. We
could not repress revolt in Ireland; what chance have we of
maintaining India in unwilling subjection? We were not pre¬
pared to find the men or money to deal with Ireland; can we
find them in far greater numbers and amount for the idle
purpose of checking for months or years the outward mani¬
festations of Indian unrest? Present conditions in India are
ruinous enough for British trade; but what trade will there
be if we enter on a regime of mere suppression?
I repeat my suggestion that the time has already come (1) to
entrust to Ministers the control of all provincial matters in
provinces under Governors, and (2) to transfer to Ministers
those functions of the Central Government which are not
immediately concerned with foreign affairs, including rela¬
tions with native States and defence, these matters remaining
in British hands pending the creation of an effective British
army, capable of defending India from attacks from the fron¬
tier tribes and maintaining internal order without the use of
British troops. Of the objections to this proposal I am well
aware. 1 But the alternative is made clear enough by the Irish
precedent. We shall have a period of futile attempts to repress,
entailing doubtless as many (or more) atrocities as in Ireland,
and at the end we shall have to make wholesale concessions in
an effort—probably unavailing—to retain India even nomin¬
ally within the Empire.
1 The proposals were in fact only adopted in 1933 as the policy of the British
Government; Cmd. 4268.
INDIAN CONSTITUTIONAL REFORM 187
I may add that the Government appears to me to be assum¬
ing a very serious responsibility in persisting in the recruitment
of Europeans for the Indian Civil Service under present con¬
ditions, and that the practice of bringing to this country for
education and training Indians selected locally for that service
seems wholly without justification.
8 . INDIANS IN KENYA
To the Editor of the times, i May igsg.
A strong case has been made by the Rev. Dr. Arthur on
behalf of the African population in favour of the restriction
of Indian immigration into Kenya, and the refusal to resident
Indians of the franchise on the same terms as it is accorded to
British settlers. On the other hand, it is obvious that to accept
this position is definitely to deny racial equality even within
that part of the Empire which is controlled by His Majesty’s
Government, and to undermine the foundation of equity on
which alone the relations of India and the United Kingdom
can be securely based.
It seems, however, that Dr. Arthur’s principles point to a
result which he has not fully appreciated. If, as is just, the
interest of the African population should be the determining
motive in British policy, it seems clearly to follow that to
British immigration no less than Indian strict bounds should
be set, and that it should be made absolutely clear that the
policy of the local Government and its legislation shall remain
under Imperial control until the Africans themselves, at some
distant time, come to be able to take effective part in their own
government. That the Indian settler desires to exploit the
native race may be admitted, but the same contention applies
equally to the British; all experience, notably in South Africa,
establishes that to create a dominant white population is
inconsistent with normal native development.
From the point of view of Imperial relations the one effective
solution of the difficulty in Kenya is to recognize that neither
l88 INDIAN CONSTITUTIONAL REFORM
British nor Indian settlers should be considered as primary
elements, but that the territory should be preserved for African
development. 1
9. THE INDIAN PROBLEM
To the Editor of the Scotsman, 14 November 1930.
On two very important points the Government of India in
its dispatch reveals the hesitation and lack of constructive
vision characteristic of official views. It is clear, in the first
place, that it clings far too closely to the consideration of the
future of British India, and therefore has failed to realize the
fundamental importance of the suggestions of the Simon
Commission regarding the future of India as a federation
embracing the Indian States. It was because of this ideal that
the Commission insisted on refraining from any attempt for
the present to create a central legislature of the normal federal
kind, as seen in Canada or the Commonwealth, with control
over the Executive, and pressed instead for the evolution of
the provinces as in great measure autonomous units, which
later could be federated with the States under a distinctive
form of federation devised to meet the quite unique conditions
of India. It is clear that the prospects of a satisfactory solution
of the federal issue must be seriously impaired if the advice of
the Commission is not given fuller weight than the Govern¬
ment of India seems to accord to it.
Secondly, it is disappointing to find that the Government of
India appreciates so little the very remarkable suggestion of the
Commission with regard to the future of Indian defence. The
Commission recognized that, having regard to the frontier
dangers and the risk of foreign aggression, India must for
an indefinite, but certainly prolonged, period require for its
defence substantial numbers of British officers and men acting
under a control mainly British. It recognized also that the
1 Cf. the Report of the Joint Select Committee on Closer Union in East
Africa, 1931.
INDIAN CONSTITUTIONAL REFORM 189
control of such a force could not be surrendered to the Govern¬
ment of India if that ceased to be under British authority, and
that accordingly there would be interposed a fatal barrier to
India attaining responsible government at any date which
could be foreseen. It contemplated, therefore, giving control
over the Army to the Imperial Government under an agree¬
ment with the Government of India which would have safe¬
guarded the process of Indianization, and prepared the way
for future advances in self-government. The first stage in the
advance would have been the creation by India offerees of her
own adequate to secure internal tranquillity, and to relieve
the Army under Imperial control from employment for this
end; the second would have been the taking over of full control
when the process of Indianization had gone far enough to per¬
mit of this being done with safety. The scheme offers what
appears the only practical solution of the difficulty of the
defence issue. It is naturally disliked by Indian opinion, be¬
cause that considers it reasonable to demand that the services
of British troops should be placed at the disposal of a respon¬
sible Government in India, and equally naturally it is un¬
popular with those who use the defence issue as an insuperable
objection to any serious progress in granting autonomy to
India. But it is regrettable to find that the Government of
India has not had the insight to recognize the necessity of
exploring thoroughly and in the most constructive spirit the
possibilities offered by the proposal, perhaps the most impor¬
tant in the report of the Commission.
10. LORD READING AND THE INDIAN
CONSTITUTION
To the Editor of the Scotsman, 6 January iggi.
One matter of importance is left obscure in Lord Reading’s
exposition of the Liberal attitude towards Sir Tej Bahadur
Sapru’s scheme for the introduction of a measure of respon¬
sibility to the Assembly in the Central Government in India.
igo INDIAN CONSTITUTIONAL REFORM
He has been converted to the view that non-elected Ministers
appointed to deal with the reserved subjects should sit in the
Cabinet and fall with it in the sense that they must resign on
the resignation of the Cabinet. It seems, however, impossible
to suppose that the resignations of such Ministers are to be
taken seriously. If the Ministry is compelled to resign on an
issue within the area of non-reserved subjects, it would be
absurd for the Viceroy to have to replace the Ministers in
charge of reserved subjects by other nominees, and it must
therefore be assumed that resignation of such Ministers would
merely be formal, and that it would be entirely within the right
of the Viceroy, without any breach of constitutional propriety,
to reappoint them to their offices forthwith. In these circum¬
stances it must seem dubious whether there is any useful pur¬
pose to be served in requiring formal resignations.
Moreover, the rule of resignation is open to a further objec¬
tion in connexion with reserved subjects. No doubt under the
new Constitution Lord Reading contemplates that the Viceroy
would have power to prevent the discussion of any motion
proposing to overthrow a Ministry because of some action
taken by a Minister in charge of a reserved subject. But the
Viceroy could not effectively prevent the passing of a motion
of no confidence in the Ministry, which in reality was based
on objections to a matter of policy in respect of a reserved
subject, but was not formally expressed to this effect. Thus in
substance the Assembly would be enabled to compel the
resignation of the Ministers in charge of reserved subjects
when it disliked their policy, and the Viceroy would be
compelled either to displace these Ministers or to incur the
reproaches of the Assembly for flouting its disapproval of the
Ministry.
Whatever may be said in favour of introducing dyarchy in
the Central Government, contrary to the advice of the Statu¬
tory Commission, there seems nothing to be said for giving the
Assembly power to force the resignation of Ministers in charge
of reserved subjects, but not to control the policy of the Govern-
INDIAN CONSTITUTIONAL REFORM igx
ment in regard to these subjects. 1 Sir Tej Bahadur Sapru, of
course, really means to secure the Assembly control over sub¬
jects nominally reserved, and his machinery is intended to
bring about this result. Lord Reading has clearly no intention
of parting with control of reserved subjects, but it seems that
nothing but confusion and ill-feeling can be produced if
Ministers are compelled to resign, but are immediately re¬
instated, and policy is unaffected. As long as subjects must
be reserved, it should be clear that the tenure of office of
Ministers in charge of them is independent of the Assembly.
Joint consultation between members of the Ministry is clearly
to be desired, but responsibility cannot be divided; Ministers
must be subject either to the Viceroy or to the Assembly, and
the only chance of working responsible government as regards
central subjects rests on the Assembly contenting itself with
exercising complete control over Ministers in charge of those
subjects which are not reserved. The difficulty of achieving
this result explains the opposition of the Statutory Commission
to dyarchy.
n. RESPONSIBILITY IN THE CENTRAL
GOVERNMENT OF INDIA
To the Editor of the Scotsman, 13 January 1931.
It would seem from Lord Reading’s surprise at the sugges¬
tion for the reduction of the British forces in India that he has
hardly realized the vital character of the decision now taken,
contrary to the definite advice of the Statutory Commission,
to accept the doctrine of the introduction of responsibility in
the central government of India. This is a far more important
decision than the declaration of Dominion status of the Im¬
perial Conference of 1926, which merely recognized accom¬
plished facts. The reservations proposed may well be accepted
1 This view is now adopted by the Joint Committee on Indian Constitutional
Reform ( Report , i. 104).
XQ 2 INDIAN CONSTITUTIONAL REFORM
by Indian politicians, for they realize that they are bound to
be ineffective, and that in practice the Viceroy will have no
alternative but to allow Ministers to have virtually the decision
even on those matters which are in theory reserved to his
control. Doubtless the plan of reservations will aid in the
transition by relieving Ministers from immediate respon¬
sibility, but the history of efforts to reserve subjects from the
control of Colonial Governments is conclusive of the impossi¬
bility of such action having any enduring success. Even as
regards the Indian States, it is clear that the Viceroy will not
in the long run either have the motive or the power to adopt
a policy which is contrary to the wishes of his Ministers, how¬
ever little in theory they have to do with the matter. The
essential fact, as the history of India under the reform scheme
shows, is that government cannot be divided into compart¬
ments operated under different authorities. The responsi¬
bilities of Ministers for central government will be so great
that it will prove necessary to give them responsibility in all
issues.
In return for this fundamental concession it may be hoped
that Indian statesmen will accept two principles. In the first
place, India should accept absolutely responsibility for its
debts; already there has been the ominous suggestion of recon¬
sideration of the allocation of charges as opposed to repudia¬
tion, and on that subject the history of the undertaking of the
Irish Free State to pay a proportion of the British debt is a
sufficient warning. Secondly, the fullest equality ought to be
accorded to British individuals and companies trading in India
and to British shipping registered in the United Kingdom. No
secret has ever been made by Indian politicians of the desire
to oust United Kingdom shipping from the coasting trade and
to deny to British companies privileges, concessions, and
monopolies in favour of Indian companies. To ask for the
renunciation of differentiation, in return for the adherence of
the United Kingdom to the same principle, is certainly not
unreasonable.
*93
INDIAN CONSTITUTIONAL REFORM
12. MR. CHURCHILL AND INDIA
To the Editor of the Scotsman, si January 1931.
There is one point on which Mr. Churchill’s view of the
Indian question is undoubtedly sound. His experience of
responsible government has shown him that the decision to
confer responsibility in wide measure on the Central Govern¬
ment of India is incompatible with imposing effective safe¬
guards. Lord Sankey’s assurance that ‘Great Britain will fulfil
her trust; she will be the protector of your minorities, the
guardian of your poor and depressed’, is based on the delusive
hope that in internal matters control can be exercised from
the United Kingdom over the administration and legislation
of a responsible Government. As responsible government
cannot now be withheld, the one hope for minorities and the
depressed classes is the construction of the Constitution in such
a manner that they will receive protection from the Courts and
the Privy Council, the method by which the racial and re¬
ligious minority of Canada has secured its rights. If they put
faith in reserved powers of the Governor-General, they will
certainly be disappointed. The British mercantile community
has wisely recognized this fact by determining to secure their
rights by the means of a convention with India on a basis of
reciprocity, any infraction of which will be redressed ulti¬
mately by judicial means.
The Indian Princes have been gratified by the formal adop¬
tion of the doctrine that in matters not ceded to the Federation
their relations will be with the Crown, acting through the
agency of the Viceroy. This safeguard, it must be pointed out,
is merely formal. There is nothing to prevent the Crown
deciding to allow the Viceroy’s action to be guided in fact by
the views of his Ministers. Indeed, if he is in cordial relations
with them, he will himself be strongly inclined to take their
view of issues affecting the States, and it is most improbable
that the British Government would dream of interfering with
a policy advocated by the Viceroy. It is significant that it has
o
194 INDIAN CONSTITUTIONAL REFORM
just decided not to continue the system under which the
Governor-General of the Union of South Africa controlled
Basutoland, Swaziland, and the Bechuanaland Protectorate,
presumably because it was felt that the Governor-General
must necessarily look at issues affecting these territories too
much from the point of view of the Union Government, though
he was in this matter absolutely independent of it. 1
Further, it seems imperative that in view of the new policy
the question of further recruitment on the present lines for the
Indian Civil Service should be reconsidered. It seems wholly
unjustifiable to invite young men of ability and promise to
enter a career whose future is so uncertain. Pensions on
premature retirement are poor satisfaction for an interrupted
career.
13. INDIA AND THE DEBT QUESTION
To the Editor of the Scotsman, 5 February igji.
Mr. Gandhi’s demand for arbitration on the public debt of
India is of fundamental importance, because his view is shared
by Indian politicians in general, and the Round Table Con¬
ference report is so worded as to evade any pronouncement on
the issue. The demand, of course, is based on the precedent
of the Irish Free State. In the treaty arbitration on the debt
question was duly provided for, but ultimately, presumably
in the interest of goodwill, the whole claim was surrendered
by a Conservative Government. It is not surprising that the
average Indian politician is unable to sec why this excellent
precedent should not be followed, and efforts to differentiate
the cases are not likely to convince him. As long as the recom¬
mendation of the Statutory Commission against the introduc¬
tion of responsibility in the Central Government stood, the
issue presented comparatively little danger, but Mr. Baldwin’s
1 My views on the worthlessness of safeguards were shared by the late Jam
Sahib of Nawanagar, whose citation of them was followed by Lord Willingdon’s
action in calling him to order (March 25, 1933); see Morning Post , June 28,
1933 ; My 1 9i 1934 *
INDIAN CONSTITUTIONAL REFORM 195
promise and the attitude of the House of Commons on the
Conference report render it inevitable that responsibility will
be conceded at no distant date.
In these circumstances it seems deeply to be regretted that
those who consider Mr. Baldwin’s policy unwise, as does Mr.
Churchill, do not concentrate on what is still practicable, the
insertion of effective securities for British financial interests and
the interests of minorities, including the British commercial
community. Mr. MacDonald seems to contemplate nothing
more serious than paper safeguards, and the Conference report
suggests that there is to be recourse once more to the useless
system of giving the Governor-General overriding powers
against the Government which is to be really responsible. The
only effective safeguards are those dictated by all experience
of federal constitutions, the action of the Courts based on
explicit rights granted in the constitution, but such protection
will certainly not willingly be conceded by Indian politicians
who, as students of the constitutional history of the Dominions,
are perfectly well aware that safeguards which rest on execu¬
tive action, whether by the Governor-General or the Imperial
Government, will in practice prove unworkable. But Indian
minorities themselves can only secure protection in this way,
and, if any statesmanship is now displayed in the United King¬
dom, it should still be possible to avoid the repetition of the
errors made in the case of the Irish Free State, which has
successfully repudiated every form of control.
14. LORD SANKEY AND INDIA
To the Editor of the Scotsman, 19 March 1931.
I note with much regret that Lord Sankey in the debate
yesterday refers to the safeguards entrusted to the Governor-
General as a means of securing the safe operation of the new
Constitution proposed for India. It seems strange that an
English judge should not have troubled to consult precedents;
had he done so, he would assuredly have discovered that it is
196 INDIAN CONSTITUTIONAL REFORM
idle to hope to secure results by the exercise of discretionary
power by a Governor-General. Even in the case of Canada,
where the Governor-General had not to act merely on his
discretion but had the support of the Federal Ministry, it has
been found necessary to abandon the plan, provided for in the
Constitution as an essential feature, under which Federal
interests were to be protected against Provincial encroachment
by the right to disallow Provincial Acts. The only safeguards
which experience shows can work are arrangements, such as the
Mohammedans demand, for effective representation in the
Legislatures, and the grant of power to the Courts to protect
minority rights under clearly defined legal provisions. So far
the intervention of the Courts has been deliberately ignored as
a possible means of securing the interests of European traders
and residents, but, if these are to be safeguarded, it can only
be by means of a precise definition on a basis of reciprocity,
with provision for interpretation by an inter-imperial tribunal
and thereafter enforcement, if necessary, through the Courts.
It is, of course, true that the Statutory Commission Report
proposed to safeguard responsible government in the Provinces
by the discretionary authority given to the Governors. But
that suggestion rested on the essential assumption that the
Government of India was to remain supreme, without control
by an Indian Legislature, so that Governors would have the
necessary support in difficulties. Now that this fundamental
safeguard, which is at the root of the Commission’s Report, is
to disappear, the position of the Governors, as proposed by
that Report, becomes in the extreme difficult, and it may safely
be assumed that Governors will not be able to carry out the
functions ascribed to them in the Report. Indeed, even under
the scheme of the Report, several experienced administrators
doubted the possibility of independent action. Under the new
scheme even the Governor-General will be forced in practice
to accept ministerial advice. It is significant that the Round
Table Conference would not even consent to accept unani¬
mously the need for continued European recruitment in the
INDIAN CONSTITUTIONAL REFORM 197
Indian Civil Service and the Indian Police Service, while
the Statutory Commission made retention of recruitment
on the Lee Commission scale an essential part of its recom¬
mendations.
If safeguards are deemed unnecessary by the British Govern¬
ment, they should frankly say so; but the present policy ap¬
pears to be one of inserting unmeaning provisions in the hope
that they will be accepted by Indian opinion as not intended
to be effective, and by British opinion as securing all that is
requisite.
15. BRITISH EXPORTS TO INDIA
To the Editor of the Scotsman, 26 March 1Q31.
As some confusion seems to exist as to the position of British
exports to India under the changes contemplated in the Con¬
stitution, it may be worth while briefly to state the present
position of the question. Under the fiscal convention de¬
veloped under the Constitution of 19193 the terms on which
British exports enter India are decided by the Government of
India acting in agreement with the Legislature, without inter¬
ference by the Secretary of State. That Convention the
Statutory Commission did not propose to disturb. The justi¬
fication for this position was, of course, that the Commission
insisted that the Government of India should not be made
responsible to the Legislature, and it was felt that an official
Government controlled by a British Viceroy could be trusted,
while placing Indian interests in the foreground, not to be
oblivious of the importance of British export trade and the
moral claims of British workers for considerate treatment in
view of the safety from external attack and the preservation
of internal order secured by the connexion of India with the
United Kingdom.
With the decision to give India a Central Government re¬
sponsible to a Federal Legislature a new situation arises, and
the question is whether any security can be provided in the new
ig8 INDIAN CONSTITUTIONAL REFORM
Constitution for British export trade. When drafting for the
European delegation to the Round Table Conference a con¬
vention based on the principle of reciprocity as a part of the
Constitution, in order to secure for the British mercantile
community in India freedom from discrimination in favour of
the Tr oian mercantile community there, I suggested clauses
to give to British exports to India, on a basis of reciprocity, at
least as favourable treatment as exports to India from any
other country, British or foreign. The Report of the Con¬
ference shows that the Indian delegates have accepted, if
reluctantly, the principle of a convention to forbid discrimina¬
tion against the British mercantile community, but as regards
treatment of British exports it preserves a significant silence.
The European delegates, of course, were not primarily con¬
cerned with this issue, which was the affair of the representa¬
tives of the British political parties. If the matter is allowed to
stand in its present position, the new Constitution will not
contain the slightest safeguard against the legal prohibition
of the entry of British exports, or the imposition of prohibi¬
tive duties, or differentiation in favour of Japanese or
other foreign products. The matters in which special
powers have been reserved to the Govemor-General have
been carefully defined to exclude any power of intervention
on this score.
It may be that there are political or economic reasons fatal
to the adoption of the very modest measure of security sug¬
gested above; but, at any rate, it is important that British
manufacturers and workers alike should fully realize that,
as matters stand, Indian politicians have a clear right to
hold that the new Constitution will leave the Indian Legis¬
lature absolute freedom to accord whatever treatment it
thinks fit to British exports and to prefer at pleasure foreign
goods. 1
1 The Joint Committee provides against discrimination by giving a special
responsibility to the Governor-General, but recognizes that only by an agree¬
ment between the United Kingdom and India can matters be duly arrangedj
see Report, i. 204 ff. See Nos. ig, 40, and 41, post .
INDIAN CONSTITUTIONAL REFORM
*99
16. THE INDIAN SITUATION
To Mr. L. JV. Gubil Sundaresan, Tefipakulam, Trickinopoly, njuly
m 1 -
I have your letter of the 17th June reminding me of your
conversation with me on Indian affairs when you visited
Edinburgh four years ago and asking me for an expression of
my views on the present situation regarding constitutional
reform.
I am happy to say that there exists here a most sympathetic
feeling towards Indian aspirations for self-government and
that a satisfactory settlement of the Constitution would be
received with general approval. Perhaps more clearly than
in India we realize, for example from the present crisis in
Germany, how important it is to assure safeguards in the
Constitution for the maintenance of the finanrial security of
India, the overthrow of which would have the gravest conse¬
quences for Indian progress. We realize also that the minorities
must be effectively secured, and we are not wholly clear how
due provision is to be made for this end, and how, for instance,
the uplift of the depressed classes is to be assured. I am also
very anxious to see the adoption as between the United King¬
dom and India of a regime of complete reciprocity in matters
of immigration, trade, the exercise of professions, and so forth.
The plan of Indianizing the army is generally accepted, and
it is obvious that in external policy Indian interests will best
be conserved by membership of the British Empire and of
the League of Nations. In these circumstances it ought to be
possible at the Conference in September to achieve an effective
agreement. But, of course, much depends on the negotiators.
If there is insistence on demanding the right ofseparation from
the Empire and the repudiation of debts and the confiscation
of the interests of the British traders, there will be grave danger
of an impasse. But personally I cannot suppose that Indian
politicians are really likely to advance untenable claims and
200 INDIAN CONSTITUTIONAL REFORM
thus to throw away an extremely favourable opportunity for
a definite settlement.
17. LORD IRWIN AND DOMINION STATUS
To the Editor of the Scotsman, 20 July 1931 .
Lord Irwin claims, doubtless with much reason, that { it
was implicit, in the declaration of 1917, that the natural issue
of India’s constitutional progress as then contemplated was
the attainment of Dominion status 5 , and he criticizes Mr.
Churchill on the score that, having been a member of the
Government which authorized the declaration, he now objects
to steps being taken to translate into reality the purpose therein
expressed. In this criticism Lord Irwin ignores the important
consideration that the politicians of 1917 could only contem¬
plate Dominion status as it then existed, and that they could
not pledge themselves to the doctrine that, whatever changes
took place in that conception, it was still to be held applicable
to India. 1 Lord Irwin may be right in holding that the greatly
enlarged conception of Dominion status should be adopted for
India, but it is clearly improper to contend that the declara¬
tion of 1917 committed the British Government to any such
view. Moreover, it is dangerous, for it encourages expecta¬
tions among Indian politicians of the more advanced school
which Lord Irwin himself would not propose to satisfy.
The danger is clearly exemplified in the demand made in
certain quarters in India that the right of India to absolute
independence, as inherent in Dominion status, should be
established at the Round Table Conference when it resumes
work. It is understood that the Conservative party would not
consent to any such discussion, and their position seems logical.
But on Lord Irwin’s theory it would be quite impossible to rule
out such a discussion, for notoriously one Dominion Govern-
1 The claim for India of a distinct membership of the League of Nations in
1919 was probably the decisive moment in determining that India was to be
accorded the fullest measure of Dominion status.
201
INDIAN CONSTITUTIONAL REFORM
ment at least holds it to be certain that Dominion status implies
the right of secession, and that the Statute of Westminster,
when enacted in a few months, will remove the existing legal
barriers to such action.
18. INDIAN LIBERALS 3 DEMANDS
To the Editor of the Scotsman, 3 August 1331.
At the Round Table Conference very large concessions were
made by the British representatives in the hope of securing an
agreed settlement. It is most significant, therefore, that the
National Liberal Federation in India should have repudiated
two of the vital claims made in the interests of the United
Kingdom. In the first place, while paying formal homage to
the doctrine of non-repudiation of India's public debt, it has
demanded adjustment by an impartial and independent tribu¬
nal. This, of course, is an imitation of the procedure in the
case of the Irish Free State, and it is doubtless hoped that
the outcome, as in that case, will be the transfer to the United
Kingdom of a burden which is plainly incumbent on India.
Secondly, the Federation has followed Mr. Gandhi in his re¬
pudiation of the agreement reached by the Conference that
there should be no discrimination between the rights of the
British mercantile community and firms and companies trad¬
ing in India and the rights of Indian-born people, and that
an appropriate convention based on reciprocity should be
entered into for the purpose of regulating these rights. It
demands complete freedom to take measures for the promo¬
tion of the basic trades and industries of India. 1 Such freedom
has never been in question, and it has never been sugges¬
ted that it should be limited. What is really desired is freedom
to exclude British shipping from the coasting trade, and to
differentiate against British firms engaged in trade in India, 2
1 Repeated by the Federation at its Poona meeting, Dec. 28 and 30, 1934.
2 See Mr. S. N. Haji’s Bill to reserve the coastal traffic of India to Indian
vessels (1929)*
202 INDIAN CONSTITUTIONAL REFORM
and to deny them the equality of legal rights which is accorded
by the United Kingdom. It is earnestly to be hoped that at
the forthcoming Conference all British parties will be united
in resisting so unfair a demand, the injustice of which was
recognized by the Round Tabic Conference as a whole after
the fullest discussion of the topic.
19. THE PREMIER AND INDIA
To the Editor o/"the Scotsman, 8 October 1931.
There is an omission in the Premier’s announcement of
policy which may perhaps be accidental. Pie announces con¬
templation of‘mutual economic arrangements with the Domi¬
nions’, but omits to mention India. It is, however, clear that
in this matter the position of India already approximates to
that of a Dominion, as control of tariffs has been assigned to
the Indian Legislature, and any constitutional changes will
admittedly go in the direction of extending that control by
placing executive authority also in the hands of responsible
Ministers. There seems, therefore, no possible objection to
efforts to secure mutual arrangements with India on a basis
of reciprocity, and it may be remembered that it was agreed
at the last session of the Round Table Conference on January
rg that the position of representatives of British commerce in
India could best be secured by a convention based on recipro¬
city. No constitutional objection can accordingly exist to an
agreement for closer trade relations, and the advantages of
such an arrangement to both countries might well be substan-
tial. At least we may hope that the possibility of such action
will be carefully explored. 1
., C0nventl0 “>provision for judicial decision by an inter-imperial
ibunal, was prepared by the writer and submitted to certain parties interested,
was not proceeded with, as the plan was ultimately abandoned, apparently
because Indian commercial interests were unwilling to concede fair terms to
British trade, and some British commercial interests unwisely preferred the
insertion m the Constitution of unilateral restrictions on Indian legislative
autnonty, preferring immediate advantage to a settlement based on recogniz¬
ing a partnership of interests on a footing of equality. As the Joint Committee
(Keport ’ l> 2la ) advocates a Convention, my draft is appended (No. 41).
INDIAN CONSTITUTIONAL REFORM 203
20. MR. GANDHI AND THE INDIAN STATES
To the Editor of the Scotsman, 14 October 1931.
Your correction of Mr. Gandhi’s misinterpretation regard¬
ing the position of Swaziland raises a further point, the
importance of which has recently been appreciated by some
of the Indian States. In the case of South Africa it has been
felt necessary, in order to secure the effective operation of
Imperial responsibility, to transfer the control of the Protecto¬
rates and Basutoland to an officer representing directly and
solely the British Government, thus terminating the arrange¬
ment by which the Governor-General of the Union acted also
as High Commissioner in charge of the territories.
In the case of India it has been made plain by the States
that they expect that under a federal Constitution issues of
paramountcy will not be determined by the Federal Govern¬
ment, but will be dealt with by the Crown as represented by
the Viceroy. But it is obvious that it will be very difficult
for the Viceroy to resist advising the Crown in the sense de¬
manded in any conflict by the interests of the federation at
the head of whose executive government he is placed. The sug¬
gestion of having a distinct Imperial representative for such
questions offers great difficulties, and it may be necessary to
seek a solution by some form of arbitral procedure.
21. BRITISH COMMERCIAL INTERESTS IN INDIA
To the Editor of the Scotsman, 7 December 1931 .
As the debate in Parliament shows no recognition of the
fact, may I call attention to the most unsatisfactory character
of the proposals as to the protection of the interests of the
United Kingdom commercial community in India which
have now issued from the Round Table Conference as opposed
to the agreement reached by that body on January 19, 1931?
The solution then arrived at was based on the essential
character of that community, as composed of individuals and
companies essentially connected with the United Kingdom
204 INDIAN CONSTITUTIONAL REFORM
by domicile or place of registration, and it proposed to safe¬
guard their rights by according to them the same equality of
treatment with persons of Indian domicile and companies
registered in India as is accorded in the analogous case in the
United Kingdom, the mode adopted being that of an agree¬
ment scheduled to the new Constitution. This mode of protec¬
tion has clearly appeared too complete to meet Indian views,
and the scheme now adopted is to assimilate the community
to other Indian minorities, such as the Parsces or Anglo-
Indians, and to promise them the protection of a clause in
the Constitution forbidding discrimination based on race,
descent, religion, or place of birth, a doctrine which Mr.
Gandhi also favours. Specious as it is, it requires only the
slightest examination to show that the protection is worthless
against a legislature which desires to discriminate against
the United Kingdom community. It need only, to take an
obvious example, confine insurance business to companies, a
majority of whose directors are domiciled in India or have
resided there for twenty-five years, to exclude all British
registered companies from the business, and like methods are
available effectively to transfer to Indian control those
branches of business in which they desire a monopoly. It
would be impossible to protest against such action, for it
would be clearly within the legal rights of the Legislatures,
for prohibition of discrimination on specific grounds is a defi¬
nite intimation that discrimination on other grounds is licit.
Protection which is adequate for real Indian minorities whose
domicile is India is and must be unsatisfactory to the United
Kingdom community in India.
It may be argued that discrimination ought to be permitted,
or that in practice it will not be applied, but what I am con¬
cerned to point out is that the protection now offered is legally
valueless, and that, if the community relies on its efficacy,
they will suffer a severe disillusionment, and that, once the
proposal is adopted in the Constitution, it will prove utterly
impracticable to secure the insertion of any further safeguards.
INDIAN CONSTITUTIONAL REFORM 205
22. BRITISH COMPANIES IN INDIA
To the Editor of the Scotsman, 27 February 1932.
May I call attention to the remarkable surrender as regards
British companies doing business in India which, as the full
report of the proceedings of the Round Table Conference now
reveals, was made at the last moment by Lord Sankey to the
claims of the Bombay merchants who support Mr. Gandhi?
It has been the aim of the European community to secure
for individuals and companies alike a regime of equality,
and this was definitely accepted by the final meeting of the
first session of the Conference, when it was proposed to make
effective the principle by means of a convention on the basis
of equality. At the second session the British Government
favoured the method of procedure by reservations in the
Constitution, which is open to serious objections, but at least
it safeguarded the interests of British companies as well as
individuals, and the fourth report of the Federal Committee
in Paragraph 18 placed companies and individuals on the
like footing. But at the plenary session on November 28,1931,
Lord Sankey agreed, at the invitation of Sir P. Thakurdas, to
limit rights to companies registered in India. This means,
of course, that the Conference has abandoned the purpose of
protecting companies registered in the United Kingdom from
discrimination, legislative or administrative, and that it leaves
it open for the Indian Legislature to confine branches of busi¬
ness, e.g. insurance or shipping, to companies registered in
India. Nor would there be any difficulty in Indian legislation
or administration being so employed as to prevent British
companies acting through Indian subsidiary companies.
Sir P. Thakurdas’s motives are avowed, and from his point
of view perfectly natural; he desires to substitute Indian for
British control in commerce; but why Lord Sankey should
further his designs remains unexplained. There is no reason
to suppose that the European community is prepared to
acquiesce in the abandonment of what has been so far a
206 INDIAN CONSTITUTIONAL REFORM
fundamental point in their case, and it is possible that in
the rush of the last moments of the Conference Lord Sankey
made a surrender the full extent of which he did not realize.
It will, however, clearly have to be reconsidered, 1 and the
worst of this necessity is that it will give rise to resentment in
India. One might have hoped that by this time British poli¬
ticians would have learned the unwisdom of committing them¬
selves to promises without the fullest consideration of their
implications.
23. MR. CHURCHILL AND INDIA
To the Editor of the Scotsman, 5 October 1932.
It is most unfortunate that Mr. Churchill insists on attempt¬
ing the impossible in lieu of lending his aid to secure what might
yet be obtained for the safety of British commerce in India.
The first session of the Round Table Conference saw the adop¬
tion of the wise scheme of securing the interests of British
traders and companies by a convention on the basis of recipro¬
city. At the second session the British Government yielded
to the objections of Mr. Gandhi and his Bombay commercial
auxiliaries and abandoned the basis of reciprocity, adopting
instead the plan of a reservation in the Constitution, forbid-
, ding discrimination against British subjects ordinarily resident
or carrying on trade in India on the score of race, descent,
religion, or place of birth. Such a reservation is clearly of no
real value, a fact which explains the acquiescence of the Bom¬
bay commercial community in its terms. It is not merely
that any reservation, as a unilateral derogation from Indian
rights, will be attacked and soon have to be removed, but its
terms are such as to permit effective legal discrimination at
the pleasure of Indian Legislatures. They have only to adopt
domicile or length of residence 2 as a test when legislating, and
See Joint Committee s Report, i. 207 ff. It is recognized that agreement
he satisfactory, hut the unwise policy of safeguards is adopted,
he Joint Committee has now provided against these contingencies, which
were originally overlooked. See No. 26, post.
INDIAN CONSTITUTIONAL REFORM 207
the reservation is completely nullified, and both these criteria
as bases of legislation are accepted in the Dominions, and are
open to no objection. Further, the British Government has
expressly renounced protecting any British company regis¬
tered in the United Kingdom, a concession inexplicable on
any theory save inadvertence.
To render the clause of reservation effective would involve
imposing such drastic restrictions on Indian legislative power
that no Indian could be expected to accept it as compatible
with British promises. Moreover, unilateral obligations are
impossible of indefinite maintenance. The one safe course is
to recur to the plan of the first session, which at the second
session was still stoutly maintained by the representatives of
British commerce in India, and favoured by such moderate
statesmen as Sir Tej Bahadur Sapru. That asks for British
traders and companies in India only what is conceded to
Indian traders and companies here, competition without
discrimination on a basis of reciprocity, a proposal which can
be objected to only by those whose fixed aim is the elimination
of British commerce from India.
24. INDIAN SAFEGUARDS
To the Editor of the Scotsman, 10 February 1933.
Sir Samuel Hoare must have forgotten that Mr. Lloyd
George and his Conservative colleagues gave us emphatic
assurances as to the working of the Irish Free State Constitu¬
tion. Doubtless they believed in them as truly as he does in his
assurances as to India. But every one of them has proved
false. Ireland presents us with the spectacle of a Free State,
an independent kingdom, paying no part of our debt, repu¬
diating all financial engagements, penalizing British imports,
against which we can only wage a futile tariff war, to the
amusement of our foreign critics and to the acute discomfort
of our Dominions.
Sir Samuel Hoare is totally ignorant of the history of the
208 INDIAN CONSTITUTIONAL REFORM
Dominions, or he would know that his safeguards are worth¬
less, and will merely deceive those who trust in them, (i)
The Governor-General and the Governors are to have impor¬
tant powers assured to them. In the infancy of responsible
government the Governor of Canada had far wider authority.
Metcalfe (1843-5) wore himself out in the effort to exercise
it; Elgin surrendered at discretion. Imagine a Governor-
General under a Labour Government here defying Ministers
an d the Legislature; his shrift would be short. (2) There is
the British Army. Metcalfe had an army; New Zealand from
1863 used the forces which Britain paid for to carry out a
native policy disapproved by Britain, and all the British
Government could do was to withdraw the troops. In 1906- 8
the strong British Government had to allow Natal to do as it
pleased in mismanagement of native affairs—a question ex¬
pressly reserved to the Governor, and even to maintain mar¬
tial law, against the Governor’s protests, and it did not dare
even to withdraw the British forces from the Colony. Remem¬
ber also that the British forces in India arc paid for by India
and not, as in Natal, by us. (3) Sir Samuel Hoare must know
that the protection to be assured by the services recruited by
the Secretary of State is worthless. We arc pledged to whole¬
sale Indianization; the services are already largely Indian, and
that civil servants of Indian origin will defy Ministers and
Parliament at the bidding of a Governor-General is a futile
hope. And what of the practically wholly Indian subordinate
services? (4) The British Government has already virtually
admitted that it cannot safeguard effectively the interests of
our trade in India. How does it propose to secure payment of
the debts due to us ? Is the British Army to collect from Indians
taxes which the Ministry and Parliament declare should not
be paid?
The Government has promised India what the Simon
Report deemed unwise. It seeks to make us believe that it
can produce effective safeguards. But really effective safe¬
guards would mean virtually negativing what has been pro-
INDIAN CONSTITUTIONAL REFORM 209
mised. In practice I have no doubt the safeguards will be
worthless, while their existence will destroy the possibility of
winning by conciliation due regard for our economic and
financial interests.
25. LORD IRWIN ON SAFEGUARDS IN INDIA
To the Editor of the Scotsman, 14 March 1933.
Lord Irwin, like Sir S. Hoare, is unhappily unfamiliar with
the practice of responsible government, or he would not have
committed himself to the hopeless doctrine that safeguards
in India can be operated through the Indian Civil Service,
whose European members are to be the 'linchpins 5 of Indian
administration. A much greater authority, the Prime
Minister, in August 1922, assured the Service that the Euro¬
peans were the 'steel frame 5 of the whole structure, but the
assurance made little impression on the Service, which
knew well that its position had been vitally changed and
that not even Mr. Lloyd George could bind succeeding
Governments.
Lord Irwin tells us that the existing system is to continue,
contrary to the wishes of the majority of the relative commit¬
tee of the first session of the Round Table Conference, but
he must know that under that system it was intended that by
1939 there should be equality between Indians and Europeans
in the Indian Civil Service, and that even moderate Indian
opinion resents the slowness of Indianization. But the essen¬
tial point is that all save a handful of these officers will serve
under ministerial control, and that it is preposterous to de¬
mand from them that they shall be subject to the direct orders
of the Governor when he sees fit to dissent from Ministers, and
the latter decline to accept his views. Lord Irwin refers to
the presence of British forces; but he cannot contemplate their
use to eject Ministers from office and the installation in their
place of civil servants.
There are two legitimate ways in which Governors can
p
210 INDIAN CONSTITUTIONAL REFORM
intervene under responsible government, and the sooner that
the restriction of their powers to these methods is recognized
the better, (i) They may use their influence with Ministers,
and, in the early days of the working of the system proposed,
such influence may be of decisive value. (2) They may dis¬
miss Ministers and choose others who will defend their action
in the Legislature. This course depends on the composition
of parties, but it is legitimate, and used wisely may be of real
service. But the Governor must remember that, if he cannot
obtain Ministers to support him, he must surrender. How
little, however, the system is understood is shown by the rule
that the Governor is not to be bound cither to seek or to follow
ministerial advice regarding the summoning, proroguing, or
dissolution of the Legislature. A little reflection would have
shown that such a position is an impossible one; the Governor
on all these matters must act on ministerial advice; the ele¬
ment of discretion lies in his power to change Ministers, if he
can secure others to support him.
It is now clear that in the case of the Centre it is hoped to
construct as a condition of responsibility a Legislature which
can be relied upon to afford conservative support to the
Governor-General. It is permissible to doubt whether this
procedure is wiser than that recommended by the Simon
Commission. Schemes sometimes go wrong, as did the effort
to construct the first Legislature of the Transvaal contem¬
poraneously with the grant of responsible government, and
the effort to use the Princes to defeat Indian Nationalism
may in the long run pay neither the Princes nor the United
Kingdom.
26. THE INDIAN CONSTITUTION: COMMERCIAL
SAFEGUARDS
To the Editor of the Scotsman, 18 March 1933.
The provisions of Sections 122 and 123 of the Government
proposals as to Indian powers of commercial discrimination
INDIAN CONSTITUTIONAL REFORM 211
seem decidedly unfortunate alike for Indian and European
commerce. Firstly, the terms of Section 122 are so widely
framed that they appear to negate the right of India, recog¬
nized by the Imperial Conferences of 1917 and 1918, to adopt
discriminatory measures in cases where, in British oversea
territories, Indians suffer discrimination as opposed to Euro¬
peans. Secondly, the protection for persons domiciled in the
United Kingdom and companies there registered is most
unfortunately expressed. Such persons and subjects are to be
exempt from disabilities as regards entry into, residence,
and travel in British India, holding property, and carrying on
business or trade, except in cases where like disabilities are
imposed on Indian subjects and companies in the United
Kingdom. It is clearly absurd to enact such a rule. In regard
to the matters enumerated, what United Kingdom subjects
and companies can claim is they shall not, on the score of
their domicile or registration in the United Kingdom, be
treated worse than are Indian subjects and companies. They
cannot demand that they shall be exempted from disabilities
to which Indians are subjected, because such disabilities may
be non-existent under the quite different conditions of the
United Kingdom. On the other hand, this absurd mode of
enacting reciprocity has involved the jettisoning of any protec¬
tion for United Kingdom subjects and companies in respect
of taxation and of the carrying on of occupations and profes¬
sions, matters of the highest importance.
What can be done by legislation now is simple; Section 122
can be extended to forbid discrimination between British
subjects on the score of domicile in the United Kingdom or
length of residence in India—a matter of great importance—
and between companies registered in India and in the United
Kingdom, and Section 123 can be dropped. Power to discrimi¬
nate in some cases is admittedly necessary, and it should be
accorded subject to the prior recommendation of the measure
by the Governor-General or Governor and subsequent appro¬
val by the King in Council.
212 INDIAN CONSTITUTIONAL REFORM
27. UNSATISFACTORY CHARACTER OF
PROPOSED SAFEGUARDS
To the Editor of the Scotsman, 28 March 1933.
Sir Samuel Hoare deceives himself and the House of Com¬
mons when he claims that, on the resignation of a Ministry
because the Governor overruled it, it would seldom be im¬
possible for the Governor to secure an alternative Ministry.
In fact, if the Governor’s action was taken in the interest of
European commerce, it would clearly be impossible for him
to secure any Ministry prepared to undertake the utterly un¬
popular part of supporting the Governor. No Ministry can
exist without the support of the Legislature, and a dissolution
fought on the issue of protecting European commerce could
merely end in complete disaster. It follows therefore that, if
Ministers refuse to agree with the Governor on such a ques¬
tion, he must be prepared to take over the Government of
the province in the teeth of the Legislature, and to call upon
the Governor-General to allot to him troops to support his
personal rule. No normal Governor in the face of these facts
will venture to carry enthusiasm for European commercial
interests to the point of dismissal of a Ministry.
A letter in your issue of to-day is fairly representative of the
widespread hostility in India, shared by many moderate
politicians, to European commercial interests. The existence
of this feeling renders safeguards essential, but these must be
defensible. All that can be asked for and that was contempla¬
ted by the first session of the Round Table Conference was
that India should act as does the United Kingdom, and refrain
from discriminating against persons domiciled in the United
Kingdom or companies therein registered by reason of place
of domicile or registration. This at present of course is the
position established in India; what is desired is to prevent it
being modified to the disadvantage of such persons and com¬
panies. But Sir Samuel Hoare has departed entirely from this
reasonable and just demand. The clause (s. 123) which he
INDIAN CONSTITUTIONAL REFORM 213
proposes takes these persons and companies out of the opera¬
tion of the ordinary laws of India by forbidding the imposition
on them of any disabilities not placed in the United Kingdom
on persons domiciled, or companies registered, in India. This
is to confer a new status hitherto unheard of and to create a
new privileged class. The proposal is indefensible, and it can
only be hoped that the Government will be able to assure us
that all that it really intends to do is to forbid discrimination
based on domicile of individuals or registration of companies
in the United Kingdom. India at any time may have to
legislate in ways for which no parallel exists in this country,
and it cannot be compelled to exempt from the operation of
necessary and salutary laws persons or companies domiciled
or registered in the United Kingdom merely because no similar
legislation is here requisite. 1
28. SAFEGUARDS IN PART INADEQUATE, IN PART
EXCESSIVE
(the morning post, 4 June 1933.)
The views here expressed claim no value, save in so far as
they are based on long study of the working of Imperial
institutions by one free from political ties and without mate¬
rial interests in India. I recognize fully that the declaration
of 1917 and the claim by the British Government of member¬
ship of the League for India rendered inevitable the promise
of Dominion status in 1929. But the question to be faced is
whether the present governmental policy tends to achieve
this end, or whether it may not, despite the benevolent inten¬
tions of its authors, rather frustrate it by creating anarchical
chaos, ruinous to the intelligentsia, the mercantile wealth of
India, the industrial workers and agriculturists, and British
1 The provision of the Joint Select Committee’s Report, i. 208 (s. 352) is
probably too wide, and may encourage registration of companies in the United
Kingdom to evade salutary regulations.
214 INDIAN CONSTITUTIONAL REFORM
investors and traders alike, and compelling recourse to one
of the dictatorships so deplorably common to-day as a result
of ignoring facts of human nature.
PROOF BY PRACTICE
The Simon Commission Report appeared to me, while
bold, to offer the essential possibility of permitting India to
prove by practice her capacity to make wise use of that most
complex institution, responsible government. As I pointed
out in 1919 and all experience proved, the Montagu-Chelms-
ford scheme had the fatal defect that it gave India no real
responsibility, and neither its successes nor failures proved
anything vital. I recognized the grave dangers of handing
over justice and police to Indian control in view of the vast
gulf between high caste Hindus and Untouchables, and be¬
tween Hindu and Mohammedan; but I accept the argument
that in the ultimate issue, if these subjects are withheld,
responsible government does not exist. But the Simon scheme
provided in the central government the necessary safeguard,
with real power to secure the welfare of any Province, if
responsibility proved too onerous a burden on Ministers, the
difficulty of whose tasks no one should fail to emphasize.
‘adequate substitute’
The British Government, including Sir J. Simon, have as¬
sured us that what they offer In the White Paper is an adequate
substitute for the proposals of the Simon scheme.
(1) They ask us to believe that they can create a perma¬
nently Conservative central Legislature and Government,
which will be an effective security for British interests, by en¬
listing the aid of the States. The States, menaced by demands
from their own subjects for the privileges enjoyed by their
fellow-Indians in British India, are invited, by sacrifice of
some measure of more or less nominal authority as regards
issues to be made federal, to secure autonomy in local matters,
with assurance of full British military protection against efforts
INDIAN CONSTITUTIONAL REFORM 215
to overthrow their autocracy. Haidarabad, the key State,
may even hope for the retrocession in some form of Berar.
But, if the States consent to come in in sufficient strength,
will they really be able to play the part demanded? Can they,
beside provinces with responsible government, remain auto¬
cratic homes of Conservatism and supports of British interests?
Or will they not take the easier course of making terms with
their Indian colleagues on the basis of removal of British
intervention? No one really knows, and the whole proposal
is a leap in the dark, whose results may be wholly unlike
anything expected in any quarter.
(2) In addition, the Governor-General and the Governors
are to have wide personal powers of action, to be enforced in
the last instance by the British Army. Here we are on firmer
ground, and the overwhelming weight of authority is against
the possibility of effective use of such powers. There is not
the slightest doubt in the mind of any clear thinker that either
the safeguards must remain unused or they are destructive of
self-government. You cannot give a Governor-General a
voice in finance without imposing on him the real responsibi¬
lity. And the same thing applies to the maintenance of peace
and tranquillity. If the real intention of the Government is
to leave the power to the representatives of the Crown, then
it is absurd to proceed with the elimination of European
preponderance from the key services. Without effective con¬
trol of these services, the army would be utterly useless. If
the real intention is to give power to Ministers, then abandon
the pretext of safeguards and the idle search by the Joint
Select Committee for further paper securities, which must
either be worthless or destructive of the alleged aims of the
Ministry.
THE CHOICE
Our present governmental policy seems to seek to meet
Indian aspirations by assurances that safeguards are merely
formal, and to obviate our anxieties by assurances that the
2 l6 INDIAN CONSTITUTIONAL REFORM
safeguards are real. Both views cannot be correct. In reality,
the choice should lie between two policies: cither we should
trust Ministers wholeheartedly in the Centre and Provinces
alike, or we should give Ministers full provincial authority
under the guidance of a Central Government responsible to
Parliament. It may now be too late to try the latter course,
though of this no proof is adduced. But either is surely to be
preferred to a policy which must certainly deeply disappoint
either Indian political aspirations, or the British claimants of
safeguards, or even more probably both alike. There are
definite limits to the possibilities of our alleged national habit
of muddling through difficulties.
29. PARADOXES OF THE INDIAN CONSTITUTION
To the Editor of the Scotsman, 7 April 1333.
Ceylon, I fear, furnishes a conclusive answer to Lord
Reading’s hope that safeguards will work, and that Indian
politicians will, under the White Book Constitution, settle
down to solution of economic and social problems in lieu of
political agitation. The Governor of Ceylon has enormous
powers, British troops and a Civil Service at his control; the
Ceylonese have rejected Imperial Preference, and instead of
tackling their many internal problems—one of the grounds
alleged for the grant of the new Constitution—have concen¬
trated on demanding the withdrawal of independent authority
from the Governor, including all control over finance. In
India the moderate politicians, who are expected to work the
Constitution, have united in denouncing the safeguards, and
the definite pledge of ultimate Dominion status given by Lord
Irwin on October 31, 1929, precludes the slightest chance of
India abandoning political agitation until the goal is attained.
The Government’s reliance is clearly placed on using the
Princes to create a Conservative Federal Government to
counter political agitation in the provinces. Many Princes,
however, as the late ruler of Nawanagar was arguing when
INDIAN CONSTITUTIONAL REFORM 217
interrupted by Lord Willingdon, disbelieve in the possibility
of the Governor-General and Governors operating the safe¬
guards, a view shared by Lords Zetland and Lloyd from
practical experience. They demand effective securities if they
are to federate, but this runs counter to the one thing that
can be asserted with absolute confidence of the British system
of responsible government—namely, that it is absolutely in¬
consistent with safeguards other than those which can be
made effective by actions in the Courts, and to give the Princes
this form of safeguard has so far been held impracticable. On
the other hand, the suggestion of an irremovable but Indian
Ministry at the centre is a negation of responsible government
there.
It is paradoxical that a new Constitution should be drafted
for India when we dare not permit Congress to meet and
express its views, but Parliament has allowed the promise of
1929 to stand, Labour is pledged to it, and it must be honoured
as any other course of action is practically impossible. But it
may be hoped that the Government will cease to delude us
with the assurance of the effectiveness of its executive safe¬
guards, and will instead devise with the aid of Indian opinion
such safeguards, to be operated by the Courts, as are practic¬
able, and for the rest, by refusing to impose on the Governor-
General or Governors duties they cannot perform, compel
Indian politicians to accept full responsibility for the good
government of their country, and deprive them of the facile
expedient of throwing the blame for their failures on the
representative of the King, and of protesting against British
interference.
30. MR. BALDWIN’S INDIAN POLICY
To the Editor of the Scotsman, 13 May 1933 .
The statements of Mr. Baldwin and Sir Samuel Hoare,
reported to-day, make perfectly clear the position of the
Government regarding Indian policy.
218 INDIAN CONSTITUTIONAL REFORM
(1) By earlier declarations and his obligations to the Prime
Minister the Conservative leader is pledged to the policy of
the White Paper, no doubt in large measure because the policy
of the Labour party as lately reaffirmed is one of complete
responsible government for India.
(2) It is hoped to minimize the effects of concession in two
ways. The first of the methods is the use of Indian autocracy
to check Indian democracy. The Indian Princes who refuse
to be constitutional sovereigns are to supply to the Central
Legislature the necessary numbers to secure a really Conserva¬
tive regime at the centre, as opposed to the democratic regime
promised to the Provinces. The Princes in return are to be
assured of the right to maintain their autocratic rule; Haidara-
bad, the most vital state to win over, is to be assured British
military protection against unrest, while the possibility of
British intervention in internal affairs will be excluded by the
necessity of relying on the aid of Haidarabad in central govern¬
ment; possibly Berar may be restored. 1 The attempt thus to
temper democracy and secure a permanent Conservative
majority is ingenious; for various reasons its success is dubious.
(3) The second method is the scheme of safeguards in the
White Paper. The opinion of those who have expert know¬
ledge, and who are not in the service of the Government of
India at the present time, confirms the prior belief that the
safeguards will not work under a Conservative regime here,
and that under a Labour regime the British Government
cannot consent to work them. Their one purpose seems, there¬
fore, to be to facilitate acceptance by the rank and file of
Conservatives of the governmental plan as a safe one. In all
probability better statesmanship would abandon the safe¬
guards as misleading and a source of constant irritation, and
appeal to Indians to make wise use of the powers which, in
fact, they will have.
1 This has been avoided; Joint Committee’s Report , i. 36. The Berars will be
administered with the Central Provinces as a single province. On the other
hand, Mysore appears to be assured of the cession of Bangalore, and, like other
States, of concessions as regards tribute payments.
INDIAN CONSTITUTIONAL REFORM 219
(4) Mr. Baldwin seems to recognize that his safeguards
will do nothing for British trade. The only real possibility of
success in protecting that trade lay in the policy of a conven¬
tion based on reciprocity which the first session of the Round
Table Conference accepted, but which the Government most
unwisely abandoned in favour of its present proposal, of
which I have seen no attempt at a reasoned defence, and
which certainly cannot stand. Even yet the Government
might do something for British trade if it would offer to drop
its paper safeguards in return for agreement on reciprocity.
(5) Sir S. Hoare seems to have forgotten that since the
early months of 1931 British credit has been placed on a
3! per cent, basis, there is now general agreement that the
prices of primary products must be raised, and that bimetal¬
lism has once more come within the field of discussion. These
considerations, I suspect, have far more to do with the success
of the latest Indian loan than confidence in the policy of the
present Government.
(6) In view of the present conditions of feeling both in
India and in this country it may well be that the only course
open is to surrender British control of India. What, however,
is to be regretted is that Sir S. Hoare persists in denying that
his policy is one of surrender, and that Mr. Churchill is cen¬
sured for stating what is clearly the true state of facts. But we
had the same assurances regarding the Irish Free State and
from politicians of higher rank.
31. THE DANGER OF EXECUTIVE
DISCRIMINATION
To the Editor of the Scotsman, 26 June 1933.
Sir John Simon, in his speech on Saturday, enunciated a
doctrine which seems unimpeachable: T think an essential
part of British liberty is that people in a proper case should be
able to challenge the action of an executive, and get our
Judges to decide whether it is right or wrong/
220 INDIAN CONSTITUTIONAL REFORM
Yet the British Government in the White Paper has de¬
clined to give the Courts any control over discrimination
in matters commercial practised by executive authorities in
India without statutory authority. It concedes to the Courts
the right to declare invalid legislative discrimination, but all
that it is willing to do is to make commercial discrimination
one of the matters in which the Governors are to have special
responsibility. Nothing can be more unsatisfactory. Expert
opinion is overwhelmingly in favour of the views (i) that
administrative discrimination is as much, probably more, to
be feared than legislative discrimination, which must run the
gauntlet of full publicity and receive the assent of the repre¬
sentative of the Crown; and (2) that a Governor cannot
effectively afford protection, for his business is to avoid crises,
and he cannot be expected to dismiss a Ministry because it
discriminates against a European firm.
It is clearly incumbent on the Government to accept the
spirit of Sir John Simon’s doctrine and to give the Courts the
right to pronounce on executive no less than on legislative
discrimination. 1 It cannot be morally justifiable to do by
1 The following is a draft of clauses suitable to be inserted in the Constitution
Act to give effect to the view suggested in the above letter, which was then
drawn up by me and communicated to certain persons interested:
(1) Save as hereinafter expressly provided, it shall not be lawful for any legislature
in British India, while legislating in respect of migration into, or residence or travel
in, any part of British India; the acquisition, holding, and transfer of property of
any kind; the engaging in and carrying on of any form of occupation, profession,
trade or business, or any matters ancillary thereto, such as the employment of
managers, servants, or agents; or taxation, to impose, or to sanction the imposition
of, any disability or discrimination upon—
(a) any subject of His Majesty, domiciled in any part of British India or of the
United Kingdom, by reason of race, descent, colour, caste, place of birth or domicile
or residence, or continuity or duration of residence in British India: or
(b) any corporate body, formed under the laws of any part of British India or
the United Kingdom by reason of the place of incorporation or of the race, descent,
colour, religion, caste, place of birth or domicile or residence, or continuity or dura¬
tion of residence in British India, of all or any of the members, officers, servants or
agents of the said corporate body.
(2) If the Governor-General considers it essential in the interests of the good
government of British India or of any part thereof, or the Governor of a province
with the assent of the Governor-General, considers it essential in the interest of the
good government of that province or any part thereof, that specified classes of British
subjects or of corporate bodies should be subjected, in respect of any of the matters
above enumerated, to any disabilities or discriminations by reason of any of the
INDIAN CONSTITUTIONAL REFORM 221
executive action what it is illegal to do by legislation, and to
declare legislative discrimination illegal, while leaving execu¬
tive discrimination a matter of discretion, is to offer European
commerce an illusory protection. No valid reason for the atti¬
tude of the Government has been or can be adduced, and it will
be deplorable if the Joint Committee does not overrule Sir
Samuel Hoare and accord to European commerce the access
to the Courts which is necessary to afford it any real protection.
32. ‘DOMINION STATUS 5 FOR INDIA
WHAT DOES IT MEAN?
To the Editor of the morning post, 4 September 1933.
There is an item in the policy of the United Ireland Party
as outlined on Saturday which is extremely relevant in con-
grounds above enumerated, he may recommend such legislation to the Indian legisla¬
ture or to the legislature of the province.
Such legislation, whether passed in the form recommended or with alterations,
shall be reserved for the signification of His Majesty’s pleasure thereon, and shall
lapse and be of no effect unless assented to by His Majesty in Council within a year
from the date of reservations.
Provided that the Governor-General, if satisfied that there is urgent necessity in
the interests of the tranquillity of British India or any part thereof, that such legisla¬
tion should take immediate effect, may assent to a Bill of the federal legislature, and
may authorize the Governor to assent to a Bill of a provincial legislature; but an
Act so assented to shall cease to have operation six months after the date of such
assent unless specially confirmed before the expiration of that period by His Majesty
in Council.
Every Bill so reserved, and every Act so assented to, shall be laid before both
Houses of Parliament, and His Majesty’s assent or confirmation shall not be accorded
if, within thirty days after the Bill or Act has been so laid, either House shall address
His Majesty praying that such assent or confirmation shall be withheld.
3. Save in so far as may be expressly authorized by legislation passed in accordance
with the provisions of clause (2) and duly assented to or confirmed by His Majesty
in Council, no executive or administrative authority in British India shall, in the
exercise of the powers by statute or otherwise vested in it, impose by bye-law,
regulation, rule, order or otherwise, any disability or discrimination which under
clause (1) may not be imposed by the legislatures in British India.
4. Any disability or discrimination which may be imposed contrary to the terms
of clauses (1) and (3) shall be absolutely null and void.
Provided that, when legislative provision is made for assistance to any form of
industry by the grant of a bounty or subsidy, it shall be lawful in the case of com¬
panies which are not, at the time when such provision is made, engaged in trade in
India, to restrict the eligibility for, or to give preferential treatment in respect of
applications for, such bounty or subsidy to companies which comply with one or
more of the following conditions, namely: (1) that the company shall be incorporated
under the laws of British India; (2) that the company shall undertake to provide
reasonable facilities for the training of persons of Indian race in that form of industry;
and (3) that not less than one-third of the directors shall be persons of Indian race
or domicile.
222 INDIAN CONSTITUTIONAL REFORM
nexion with Lord Willingdon’s insistence on Dominion status
as the goal of Indian constitutional reform. The new party is
formed inter alia c to maintain Ireland’s right to decide whether
or not to remain a member of the British Commonwealth 5 .
This means, of course, that Mr. Cosgrave, Mr. MacDermot
and General O’Duffy accept Mr. de Valera’s doctrine that it
is an inherent right of any Dominion to secede at pleasure.
The same doctrine, of course, is held by General Hertzog,
and by the Parliament of the Union of South Africa, which
formally affirmed it when accepting the Statute of Westmin¬
ster in 1931. It is therefore the official doctrine of two Domi¬
nions. Moreover, the views of these Dominions rest upon
important British authority. It will be remembered that,
when Mr. Bonar Law resisted the grant of Dominion status
to Ireland while defending the Government of Ireland Bill
of 1920, he used as a conclusive argument the fact that
Dominion status involved the right of secession.
This admission is not conclusive, but the disquieting fact
is that no British Minister has consented since 1926 to affirm
that Dominion status does not include the right of secession.
To me it appears that the preamble to the Statute of West¬
minster should be read as a distinct negation of the existence
of the right, but the fact that the Union of South Africa
repudiated this interpretation without any protest on the part
of the British Government has left the issue in hopeless doubt.
Surely, in the interests of India and the United Kingdom
alike, we are entitled to ask that the British Government will
consent to state whether or not the Dominion status it promises
India includes the right to secede. The point is very far from
academic* it is a matter of dealing fairly with the British and
the Indian publics alike.
33. THE RULE OF LAW IN INDIA
To the Editor of the Scotsman, 21 October 1933.
English lawyers will hardly accept the view that Magna
Carta is now dead, or that it is irrelevant to refer to it in
INDIAN CONSTITUTIONAL REFORM 223
regard to the position of the European community in India.
In point of fact, the famous chapter JVullus liber homo is an
essential part of English law at the present day; it is a statutory
affirmation, not indeed of trial by jury, but of the rule of law,
and it is incredible that it should be repealed. The extent
and character of the security against arbitrary action of the
executive Government enjoyed under it may vary from time
to time under legal enactment, as during the regime of the
Defence of the Realm Act, but the principle is essential.
The application of the same principle to India is one of the
most important contributions made by the British rule to
Indian welfare. Whatever merits Hindu or Mohammedan
rule possessed, they did not include the idea of safeguarding
the subject against the administration or its officers. Since
the inauguration of the reforms criminal procedure in India
has been extensively remodelled with general assent to secure
both for Indians and Europeans confidence in the fair admini¬
stration of justice. That the position of Europeans under the
existing system is in any way unduly favourable can hardly
seriously be contended, and it appears to me that the Euro¬
pean community is fully entitled to ask that the new Constitu¬
tion shall include the provision that the status quo shall be
altered only by Acts which must be reserved for the considera¬
tion of the King in Council. This, fortunately, is a case in
which legal protection in the Constitution might be effective
in securing that no rash alterations should be attempted and
that any change should be generally acceptable.
34. INDIAN PENSIONS
To the Editor of the Scotsman, 26 October 1933,
The India Defence League’s demand that the British
Government must continue to guarantee the payment of all
Indian pensions both present and future is, I fear, hardly
defensible.
If it means that the British Government is to compel
224 INDIAN CONSTITUTIONAL REFORM
payment from Indian funds, the demand may well prove im¬
possible to carry out. Indian taxable capacity is limited; the
British Government by creating federation admittedly adds
largely to the cost of government, c nation-building services 5
will make large demands on the revenue, defence is deplorably
costly, and apart from repudiation a British Government
might find it necessary to consent to reductions in pension
rates as an alternative to default on debt charges or neglect of
defence.
If it means that the British Government shall give a guaran¬
tee that pensions on failure of payment in full by India shall
be defrayed from British funds, then a distinction must clearly
be made. Those officers who entered the Indian services prior
to the Government of India Act, 1919, may justly argue that
they relied and had every right to rely on the continued
management by the British Government of Indian finance,
and that they are entitled to look to Parliament to provide
funds, if India fails. But this contention cannot apply to those
officers who entered Indian services since the inauguration of
the reforms. They must have known that the position was
vitally changed; in fact, the difficulty of securing satisfactory
recruitment for the Indian Civil Service for some years after
the reforms proves conclusively that the change was fully
understood, and the British Government has meticulously
refrained from any suggestion that it would guarantee pen¬
sions, despite its efforts by improving salaries and otherwise
to attract recruits. If the Defence League confines its claims
to the guarantee of pensions for officers who entered the
services before the reforms, its demand will rest on over¬
whelming grounds of fairness and good faith, and it will have
the additional advantage that it will not impose an impossible
burden on the gravely overtaxed British taxpayer. 1
1 The Joint Committe’s Report, i. 190, 191, provides no guarantee for any
pensions, and it is significant that it contemplates with satisfaction the arrange¬
ments proposed for the conversion of rupee credits in respect of family pension
funds into sterling funds if desired by subscribers and beneficiaries.
INDIAN CONSTITUTIONAL REFORM 225
35. INDIAN PENSIONS
T7 the Editor of the Scotsman, 31 October igjg.
I note with some amusement Dr. Buchan’s objection to a
Scottish Parliament on the score of the additional cost in¬
volved. Yet Dr. Buchan is, I believe, a loyal supporter of a
Government which is granting Federal Government to India
despite the fact that there must be caused such increases in the
cost of government there as will endanger gravely the capa¬
city of India to meet her debt charges, pension payments, and
the cost of her vital defence. Dr. Buchan, I must assume,
concurs also in the proposal to separate Sind from Bombay,
though I doubt whether a Parliament whose members must
necessarily make London their head-quarters is any better
qualified to deal with Scots problems than the Legislature of
Bombay is with those of Sind.
As regards pensions, it is idle to cite at second hand a frag¬
ment from the preamble of the Act of 1919. All those who
were connected in any way with the passing of that measure,
or followed the contemporary proceedings in Parliament, fully
recognized that the Act meant the handing over to India of
the control of her destinies. So clearly was this realized that
recruitment for the Indian Civil Service suffered a severe
check, and the Government only secured a resumption of
interest by conceding increases of pay and better pension
terms. But it absolutely declined to give any undertaking
that the British Exchequer would bear the cost of pensions.
We are assured also by Sir S. Hoare that the policy of federa¬
tion and responsible government has the approval of the
Services. Whether this be true or not, it is plain that men
who entered after the Act of 1919 have not the slightest moral
right to ask the overburdened taxpayer of this country to pro¬
vide for them, but they must look to India.
The position is quite different as regards those officers who
entered the Services at a time when even so advanced a
Liberal as Lord Morley scoffed at the idea of parliamentary
&
226 INDIAN CONSTITUTIONAL REFORM
government for India. They went to India as the instru¬
ments of British rule, and Mr. Montagu’s reform scheme
was imposed on them without their assent. That the British
Government should guarantee them the pensions which they
earned is patently fair, and it is a great pity that the India
Defence League should, as so often, spoil a good cause by a
reckless extension of claims.
36. ADMINISTRATIVE DISCRIMINATION
To the Editor of the Scotsman, 10 November 1933.
From Sir S. Hoare’s evidence regarding commercial dis¬
crimination, it is clear that the Government has decided to
persist in the wholly unsatisfactory policy of refusing any legal
protection against administrative discrimination. The duty
of providing against such discrimination is to be imposed on
the Governor-General and Governors, a plan which may
safely be said to ensure the minimum of effective protection
and the maximum of friction when the Governor-General or
Governor attempts to act. It is significant that no reasoned
defence of this policy has been attempted, and it is clear that
Sir S. Hoare remains quite unaware that colonial experience
early proved that Governors cannot intervene with success in
this mode.
Secondly, it is deplorable that the Government should have
decided that India may indeed refuse entry to a Dominion
British subject, but that if it does not take that step, or if such
a subject is now resident, it cannot impose on him any dis¬
ability in respect of profession, trade, calling, or the holding
of public office. As the Dominions have unfettered authority
to deal as they please with Indians, this denial of reciprocity
runs counter to the spirit of the Imperial Conference resolu¬
tion of 1917, and is clearly indefensible. It deprives India of
the power to bargain with the Dominions, and is wholly in¬
consistent with the advance of India to Dominion status. On
what grounds this policy has been adopted does not appear.
INDIAN CONSTITUTIONAL REFORM 22y
Dominion statesmen certainly have been careful not publicly
to advance the claim now made for Dominion subjects.
Thirdly, while some attempt has been made to render more
coherent the protection against legislative discrimination,
though the proposals still are in detail obscure, the error has
been made of opening no means by which discrimination in
cases which have the approval of the British Government
may legally be permitted. Sir S. Hoare now realizes that in
some special cases there must be discrimination, and for these
he makes provision, but in any instance which does not fall
within these instances, action which has the approval of
India and the United Kingdom will be open to challenge in
the Courts, and the only remedy will be amendment of the
Constitution. Surely common sense shows that extreme
rigidity in a new Constitution is impossible to defend.
37. INDIAN FINANCIAL SAFEGUARDS
To the Editor of the Scotsman, 14 November 1933.
The last paragraph in Sir Samuel Hoare’s letter on safe¬
guards raises an issue which far transcends that of pensions
in importance. It seems clearly to suggest that those who have
invested money in Indian governmental stocks in fact and in
law look only to India for the security of their loans.
This I believe to be wholly contrary to facts. The average
investor has certainly assumed that the British Government
was ultimately responsible for securing payment of interest
and repayment of capital, and his assumption has been based
inter alia on the absolute distinction which has always been
made between the Colonies and Dominions and India in the
matter of loans. (1) Loans for the former have never been
raised by the Secretary of State, but by the local Government.
In the case of India, loans are raised by the Secretary of State
for India in Council, who by statute was made responsible
for the whole Government of India, and who is an integral
part of the British Government. (2) The Secretary of State
228 INDIAN CONSTITUTIONAL REFORM
for India in Council has always, as successor to the East
India Company, been liable to suit in the English Courts in
respect of commercial transactions, and still remains liable.
No action lies against the Secretary of State for the Colonies.
(3) The prospectuses of Indian loans contain no warning
that Indian funds alone are liable for the service and repay¬
ment of the loan. In the case of the Dominions and Colonies,
a distinct warning is normally included of the statutory rule
of the Colonial Stock Act, 1877, to this effect. In the former
case, the document which is evidence of title of the loan like¬
wise contains. no such warning, in the latter case it does.
Dividend warrants for Indian loans are silent, while those
on the other loans repeat the warning.
If we are to understand that Sir S. Hoare is advised that
we must look only to India to find interest and repay capital
under the new regime, then a serious burden is imposed on all
trustees who have invested the funds of beneficiaries in Indian
stocks, for they are bound to consider whether they should
not transfer to other stocks. It is not primarily a question of
repudiation, though New South Wales tried to repudiate,
and Newfoundland had to be bribed by the British Govern¬
ment to refrain from taking that step. But the new system of
government in India will admittedly increase largely the cost
of government, as will the needs of the social services there,
which long have been starved; many good judges deny that
India can bear these extra charges, together with the burden
of defence, pensions, and overseas debt. Even a Governor-
General exercising autocratic powers will find it impossible
to collect by the use of the British forces taxes which the
peasantry will find it impossible to pay, and some scaling
down, such as has been carried out in Australia and New
Zealand in breach of contract, will be necessary.
But at least let us be told by Sir S. Hoare how matters
stand, so that investors, whether for themselves or as trustees,
may know clearly what risks they run. 1
1 Nothing has been done in this regard; see Morning Post 3 Dec. 4, 1934.
INDIAN CONSTITUTIONAL REFORM 229
38. MALTA, NEWFOUNDLAND, AND INDIA
To the Editor of the Scotsman, 22 November 1523.
Responsible government in Malta has had to be suspended
because the most explicit constitutional provisions were being
effectively evaded by the Ministry and its measures were
threatening financial stability. Newfoundland, after seventy-
seven years of responsible government, is in such a condition
that the British Government can rescue it only at the cost of a
heavy payment by the overburdened British taxpayer, partial
default in the Dominion’s obligations, and the surrender for
an indefinite period of responsible government in favour of a
form of Commission government of which one may hope but
hardly expect the best.
In the face of these facts it is surely necessary that drastic
changes should be made in the financial safeguards of the
White Paper. Indian finance has, under the Montagu-
Chelmsford scheme, been jealously safeguarded in the pro¬
vinces and the centre alike from any danger of ministerial
errors. The White Paper actually negatives the imposition
on the Governors of the provinces of any special responsibility
for the financial stability of the province, and merely gives
to the Governor-General a special responsibility for the safe¬
guarding of the financial stability and credit of the federation,
and permits him the aid of a Financial Adviser, independent
of Ministers. It should now be perfectly clear that the Gover¬
nors must be given responsibility and the powers of enforcing
it with expert aid, 1 and that the authority of the Governor-
General will have to be extended and reinforced. Any other
course will merely lead to disaster due to financial chaos,
and the British taxpayer, who is being made to pay for the
grave errors of Newfoundland, is entitled to expect that the
Government shall not ensure that the burden of paying for
India shall be added to his task. That such control is a grave
1 The Joint Committee’s Report , i. 47, negatives any grant of power to the
Governor.
230 INDIAN CONSTITUTIONAL REFORM
restriction of responsible government is undeniable, but the
Government is fully entitled and ought to say that, with the
spectacle of the debacle in Malta and Newfoundland before
it, it must insist on exercising its indubitable right to launch
self-government in India under conditions which will permit
of a steady extension of its scope as opposed to bringing about
its rapid disintegration in financial disaster.
39. THE FUTURE OF INDIA
To the Editor of the Scotsman, 27 October 1934-
Sir John Gilmour is added to the number of those who
urge acceptance of the governmental policy regarding India
on the ground that c you cannot force the great Indian people
to trade with us at the point of the bayonet 3 . Put bluntly, that
means that, despite the present British control of the armed
forces in India and of the enforcement of law and order, fear
of an Indian boycott justifies the surrender of authority in
respect of legislation and the maintenance of law and order
to Indian Ministries. But what will happen if these Ministries
demand the abrogation of the safeguards which it is proposed
to insert in the Constitution, and approve of the use of the
weapon of boycott to force the hands of the British Govern¬
ment? Does Sir John Gilmour not realize that, if we cannot
under present conditions prevent a boycott on a scale ruinous
to British trade, we shall be utterly helpless when the enforce¬
ment of law is in the hands of Ministries which approve the
policy of bringing pressure to bear on British trade? If the
British Government can be compelled by fear of boycott to
make the essential surrenders in the White Paper proposals,
how can it be expected to resist a far more serious situation in
the interest of the retention of safeguards which are of mini¬
mal consequence in comparison with the surrender now
intended to be made?
Our Ministers presumably share the common error that
they are making a mere experiment in the extension of self-
INDIAN CONSTITUTIONAL REFORM 23I
government in India, which can be cancelled if it fails in
practice. No doubt the Simon proposals offered such an
experiment, but they are definitely rejected. The present
project must end definitively in Indian autonomy, whether
in independence or in nominal connexion with the Grown,
as in the case of the Union of South Africa. That is a perfectly
defensible policy, but it ought to be frankly avowed, not
obscured by talk of safeguards.
We may be told that Indian politicians will so appreciate
the concession of self-government that they will gladly facili¬
tate the entry of British manufactures. The argument ignores
the essential fact that the average Indian politician regards
the proposed concessions as overdue, and as vitiated by the
attempt to impose safeguards. Further, it ignores the equally
essential fact that gratitude is unknown in political life. Sir
Henry Campbell-Bannerman 5 s grant of responsible govern¬
ment to the Transvaal was rewarded forthwith by the colony
insisting on exclusion of Indians at the cost of embittering
relations between Britain and India, and the Liberal Govern¬
ment, for all its strength, dared not refuse to sanction the Bill,
despite the express safeguard inserted in the Constitution for
the purpose of preventing such legislation. Similarly the
Union has shown its appreciation of the generous aid afforded
in creating the Union in 1909 by securing through the opera¬
tion of bilingualism the virtual reservation of a career in the
Civil Service to Afrikaans-speaking subjects. It may be hoped,
though it can hardly be expected, that this precedent has not
been overlooked by the Select Committee. 1
The only real safeguard for British trade is its intrinsic
value to the people of India and the power of the British
Government to retaliate against Indian exports. Even those
who desire to insert them probably know that the safeguards
suggested in the White Paper are illusory, and they err in
forgetting that they may irritate while they cannot protect.
1 Its Report, i. 219, 220, has no useful provision to suggest.
232 INDIAN CONSTITUTIONAL REFORM
40. THE REPORT OF THE JOINT SELECT
COMMITTEE
To the Editor of the Scotsman, 22 November ig34.
Of the further safeguards proposed by the Joint Select
Committee for the Indian Constitution, surely the least-
defensible is the responsibility proposed to be placed on the
Governor-General to prevent the imposition of penal tariffs
on goods imported from the United Kingdom. The burden
imposed on the Governor-General would be most unfair;
ex hypothesi he would have to set up his own judgement against
the deliberate decision of his Ministers and of the two Houses
of the Legislature, involving necessarily an overwhelming
weight of Indian opinion. We have been repeatedly warned
of the danger of the weapon of boycott, and the inevitable and
indeed justifiable answer to the Governor-General’s action
would be a boycott supported by the sympathy of Ministers
and Governments throughout India, which would result
in early submission by the British Government. The only
sound method of treating this matter is the plan, originally
contemplated, of agreement between India and the United
Kingdom for arbitration on alleged penal tariffs. If that is
impossible, then the matter should be left to be dealt with by
the ordinary mode of retaliatory action as between two equal
Governments. The Governor-General’s position is sufficiently
difficult in any case without placing on him so invidious a task,
and one certain to be represented as alining him with the
adversaries of Indian economic autonomy.
It is equally impossible to defend the proposal to fill addi¬
tional seats in the Federal Legislature if less than 90 per cent,
of the States accept federation. The suggestion reveals con¬
sciousness by the Committee of the utterly artificial character
of the system by which the autocratic Governments of the
States are to be relied upon to provide in the Legislature
means of nullifying the wishes of the elected representatives
INDIAN CONSTITUTIONAL REFORM 233
of British India. It is impossible to justify the view that
responsible government can be safely conceded in provincial
matters, but that in federal matters not only must dyarchy
be maintained, but in the transferred sphere the votes of
elected members must be counterbalanced by those of repre¬
sentatives of States in which the ultimate power rests entirely
in the ruler free from constitutional restrictions.
It is difficult to understand how it can be believed that th r
Governors in the Provinces can secure the secrecy of recor
of the Intelligence Department relating to terrorism,
their added duties regarding terrorism and the polie
simply incompatible with the idea of responsible gove.
in the Provinces. The safeguards for commerce also
unreal. Their authors are probably aware that it is r
matter of legal ingenuity to nullify them in adminb
and that the Governors and the Governor-Genera'
practice be unable to prevent this happening. M
the strength of Indian politicians will be consists
naturally directed against measures which will be rej
as unjust efforts to enforce upon India limitations t
Dominion has ever been subjected to. 1
It is very probable that in view of what has ha 4
policy of surrender of authority in British India is fa-
table and desirable. But the Committee and the Go
have adopted in lieu of frank partnership in the
system of apparent concessions subject to safeguar
if put into operation negative responsible govern*
whose mere presence is a source of irritation to Indian
The Committee seems to have forgotten that Souths
desia has already demanded the removal of the 0
on autonomy subject to which responsible gover-I
definitely conceded, and which were, when imposecii^
regarded as fair and inevitable. 1
tie
all
,tion;
uisi-
ions
md
ect
is
II
ds-
1 All organized expression of Indian opinion has condemned th
‘It is true that in India a chorus of disapproval has been raiser
Committee’s recommendations’ (Sir S. Hoare, Jan. 1, 1935 )*
234 INDIAN CONSTITUTIONAL REFORM
41. DRAFT COMMERCIAL AGREEMENT BETWEEN
THE GOVERNMENTS OF THE UNITED KINGDOM
AND OF BRITISH INDIA
k
5 September T931. 1
\ Whereas the Indian Round Table Conference at their meet¬
ing of January 19, 1931, recorded general agreement in the
principle that there should be no discrimination between the
righ ts of the British mercantile community, firms, and com-
paniks , trading in India and the rights of Indian-born subjects,
and thNp-t an appropriate convention based on reciprocity
sBk-ftt^be entered into for the purpose of regulating these
rights; a^nd
Where, ‘as the terms of an Agreement in accordance with this
principle^ have received the approval of the Round Table
Conference at their meeting of
The Government of the United Kingdom and the Govern¬
ment of /British India, desiring to consolidate and extend the
close commercial relations already existing between their
territories on the basis of complete equality and reciprocity,
and the aibsence of any discrimination on the ground of race,
place of birth, or domicile, have agreed as follows:
I Article L
\
In this Agreement the term ‘subjects 5 in its application to
the United Kingdom means (i) all British subjects domiciled
in any pairt of the United Kingdom, and (2) limited liability
companies, partnerships, and associations of all kinds orga¬
nized in accordance with the laws in force in the United King¬
dom, and in its application to British India means (x) all
British subjects domiciled in any part of British India, and
(2) limited liability companies, partnerships, and associations
of all kinds organized in accordance with the laws in force in
British India.
1 See No. 19, ante.
INDIAN CONSTITUTIONAL REFORM 235
The term ‘vessels 5 in its application to the United Kingdom
and the term ‘British vessels 5 denote vessels registered in the
United Kingdom, and the term ‘Indian vessels 5 denotes vessels
registered in British India.
Article 1L
The subjects of either party shall enjoy unequivocally and
unconditionally in every respect in the territories of the other
party treatment not less favourable than that accorded to the
subjects of that party. This provision shall extend to all
matters of agriculture, industry, commerce, and navigation;
of entrance, residence, settlement, and travel; of the acquisi¬
tion and disposal of property; of the exercise of professions
and occupations; and of the acquisition and carrying on and
disposal of any description of business. No derogation, direct
or indirect, from this principle shall be made, except as is
specifically permitted under Articles XIII, XIV, and XVII
of this Agreement.
Without prejudice to the general provision of Article II, the
contracting parties have further agreed as follows:
Article III.
There shall be between the territories of the contracting
parties reciprocal and unrestricted freedom of commerce and
navigation.
The subjects of either party, upon conforming themselves
to the laws and regulations applicable generally to the subjects
of the other, shall have liberty, freely and securely to come,
with their vessels and cargoes, to all places and ports in the
territories of the other to which subjects of that party are or
may be permitted to come, and shall enjoy the same rights,
privileges, liberties, favours, immunities, and exemptions in
matters of commerce and navigation as are or may be enjoyed
by subjects of that party.
Article IK
Any article produced, or manufactured, in the territories of
236 INDIAN CONSTITUTIONAL REFORM
either of the contracting parties, on importation into the terri¬
tories of the other, shall not be subjected to other or higher
duties or charges than those paid on the like articles produced,
or manufactured, in any other country. With regard to cus¬
toms formalities any articles produced, or manufactured, in
the territories of either party, when imported into the terri¬
tories of the other party, shall not be subjected to any treatment
less favourable than that accorded to like articles produced, or
manufactured, in any other country.
Article V.
No articles on exportation from the territories of either of the
contracting parties to the territories of the other shall be sub¬
jected to other or higher duties or charges than those levied on
the like articles on exportation to any other country.
Article VI.
The contracting parties undertake not to impede the mutual
traffic through the imposition of any prohibitions or special
restrictions on their imports or exports.
Exceptions from this rule, if applied at the same time and in
the same way to all countries where similar conditions prevail,
can be made in the following cases: (1) with regard to public
security; (2) with regard to traffic in arms, ammunition, and
war material, or in exceptional circumstances all other mili¬
tary supplies; (3) for the protection of public health, or for the
protection of animals or plants against disease, insects, and
harmful parasites; (4) in respect of goods which are or may be
objects of a state monopoly from time to time in the territories
of either party, and in respect of the extension to goods from
any country whatsoever of all other prohibitions or restrictions
which are or may be from time to time imposed by the internal
legislation of either party upon the production, sale, forward¬
ing, or consumption of goods of the same kind produced within
its own territories; and (5) in respect of the export of national
treasures of artistic, historic, or archaeological value.
INDIAN CONSTITUTIONAL REFORM 237
Article VII.
The subjects of each of the contracting parties shall enjoy
in the territories of the other exemption from all transit duties,
and a perfect equality with the subjects of the other in all that
relates to warehousing facilities and drawbacks.
Article VIII.
The contracting parties shall permit the importation or
exportation of all merchandise which may be legally imported
or exported, and also the carriage of passengers and their
baggage and effects from or to their respective territories upon
British or Indian vessels; and British or Indian vessels, their
cargoes and passengers, shall enjoy the same privileges as, and
shall not be subjected to any other or higher duties or charges
than, Indian or British vessels and their cargoes and passengers.
It is agreed that the foregoing provisions preclude either of
the contracting parties from imposing differential flag duties
or charges on goods or passengers carried in vessels of the other,
and that no regulations relating to seagoing vessels at any time
in force in the United Kingdom or British India shall apply
more favourably to vessels registered in the United Kingdom
or British India, or to the vessels of any other country, than
they apply to, any vessels registered in British India or the
United Kingdom.
The contracting parties further agree, in regard to facilities
for international railway traffic and to the rates and conditions
of their application, to refrain from all discrimination of an
unfair nature directed against the goods, subjects, or vessels of
the other.
Tariffs, reductions in rates, or other railway facilities, the
application of which is dependent upon previous or subsequent
carriage of the goods upon vessels of any state-owned or private
shipping undertaking, or which are made conditional upon a
given sea or river connexion, shall unconditionally apply in the
same direction and on the same routes to the goods carried in
238 INDIAN CONSTITUTIONAL REFORM
the vessels of either of the contracting parties and arriving at
or departing from a harbour of the other party.
Article IX.
In all that regards the stationing, loading, and unloading of
vessels in the ports, docks, roadsteads, and harbours of the
territories of the contracting parties no privilege or facility
shall be granted by either party to vessels of that party which
is not equally granted to vessels of the other party from what¬
soever place they may arrive and whatever may be their place
of destination.
Article X.
In regard to duties of tonnage, harbour, pilotage, lighthouse,
quarantine, or other analogous duties or charges of whatever
denomination levied in the name of, or for the profit of, the
Government, public functionaries, private individuals, cor¬
porations, or establishments of any kind, the vessels of either
of the contracting parties shall enjoy in the ports of the terri¬
tories of the other treatment at least as favourable as that
accorded to vessels of the other party.
All dues and charges levied for the use of maritime ports
shall be duly published before coming into force. The same
shall apply to the by-laws and regulations of the ports. In
each maritime port the port authority shall keep open for
inspection by all persons concerned a table of the dues and
charges in force, as well as a copy of the by-laws and regula¬
tions.
Article XL
If a vessel of either of the contracting parties be stranded or
shipwrecked on the coast of the other or is compelled by stress
of weather, or by accident, to take shelter in a port of the terri¬
tories of the other, both the vessel and her cargo shall enjoy the
same favours and exemptions as the laws of the country grant
to its own vessels in the same circumstances. The captain and
crew, both as regards their own persons and the vessel and her
INDIAN CONSTITUTIONAL REFORM 239
cargo, shall be rendered the same aid and assistance as subjects
of the country where the vessel is stranded would be entitled to
by law.
Furthermore, the contracting parties agree that salved goods
shall not be subjected to the payment of any customs duty
unless cleared for internal consumption.
Article XII.
The nationality of vessels shall be recognized by each of the
contracting parties in accordance with the laws and ordinances
of the other, and shall be proved by the documents issued by
the competent authorities and carried on board. The certifi¬
cate of registry lawfully issued by either of the contracting
parties shall duly be recognized by the other party. Internal
legislative rules and regulations concerning the manning, the
equipment, the fitting, and the safety requirements of vessels
of each party shall, subject to any international agreement
binding on the parties, duly be recognized in the ports of the
other party.
Article XIII.
The provisions of this agreement as to navigation shall apply
equally to the coasting trade, but shall not be held to restrict
the right of either contracting party to give financial assistance
to ships registered in its territories or to regulate its sea fisheries.
Article XIV.
Subject to any international convention binding on the con¬
tracting parties, the provisions of this agreement regarding
British and Indian vessels shall, with the necessary modifica¬
tions, apply to aircraft of any kind registered in the United
Kingdom and in British India respectively.
Article XV.
Internal duties, which are or may be levied within the terri¬
tories of either of the contracting parties for the benefit of the
240 INDIAN CONSTITUTIONAL REFORM
state, or a local authority, or other corporation on the produce
or manufacture or consumption of goods, shall not affect the
goods of one party imported into the territory of the other
under any pretext whatever to a greater extent, or in a more
restrictive way, than goods of the same kind which are the
produce of that party.
Article XVI.
The subjects of either of the contracting parties shall be en¬
titled to enter the territories of the other, and to travel, reside,
take up domicile, and follow occupations therein, subject to
the same conditions as apply to the subjects of the other party.
They may carry on their commerce either in person or by any
agents whom they may think fit to employ, and they shall enjoy
in respect of their persons and property, rights and interests,
and in respect of commerce, industry, business, profession,
occupation, or any other matter the same treatment and legal
protection as subjects of the other party. No taxes, rates,
customs, imposts, fees which are substantially taxes, or other
similar charges shall be imposed on them which are not equally
imposed on subjects of the other party.
Provided that when definite pecuniary assistance, such as a
bounty, is granted to any industrial undertaking in India, pro¬
vision may be made by the authority granting such assistance
that it shall not be conceded to any person, partnership, or
company not already engaged in that industry in India, unless
(1) reasonable facilities are granted for the training of Indians,
and, in the case of a public company, unless further (2) it has
been formed and registered under the Indian Companies Act,
1913, or any Act amending that measure, and (3) such pro¬
portion of the directors as the said authority may prescribe
consists of Indians.
Provided always that any such assistance shall be available
to any person, partnership, or company already engaged in
that industry in India although it does not comply with the
said conditions, and that it shall be available without dis-
INDIAN CONSTITUTIONAL REFORM 24.I
crimination to all persons, partnerships, or companies which
comply with the said conditions.
Article XVII.
The subjects of either of the contracting parties in the terri¬
tories of the other shall be at full liberty to acquire and possess
every description of property, movable and immovable, which
the laws of the other party permit or shall permit its subjects to
acquire and possess. They may dispose of the same by sale,
exchange, gift, marriage, testament, or in any other manner,
or acquire the same by inheritance under the same conditions
as are or shall be established with regard to subjects of the other
party.
Provided that this Article shall not apply to any immovable
property in any part of British India, under the laws of which,
at the date of the coming into force of this Agreement, acquisi¬
tion of such property by European British subjects is pro¬
hibited or limited, in so far as such prohibition or limitation
extends.
The subjects of either party shall also be permitted on com¬
pliance with the laws of the other party freely to export the
proceeds of the sale of their property and their goods in general
without being subjected to other or higher duties than those
to which subjects of the other party would be liable under
similar conditions.
Article XVIII.
The subjects of each of the contracting parties shall have in
the territory of the other the same rights as subjects of that
party in regard to patents for inventions, trade marks, and
designs, upon fulfilment of the formalities prescribed by law,
subject to any international convention binding on the parties.
Article XIX .
The contracting parties further agree that, should privileges
in respect of any of the matters dealt with in this agreement be
R
242 INDIAN CONSTITUTIONAL REFORM
conceded in the territories of either party to the subjects and
vessels of any other country, whether or not a part of His
Majesty’s dominions, these privileges shall, if they exceed the
rights conferred by this Agreement on the subjects and vessels
of the other party, be extended simultaneously and uncondi¬
tionally, without request and without compensation, to the
subjects and vessels of the other party.
Article XX.
The contracting parties reaffirm their adherence to the prin¬
ciple of Imperial Preference and their desire, as far as may be
compatible with the interests of their subjects, to maintain and
extend the system as it now exists between them. The accep¬
tance of this principle as a part of their permanent policy is
subject to the unqualified right of either party to adopt from
time to time such tariff measures as seem best adapted to
further the well-being of its subjects.
Article XXI.
The contracting parties agree to consider in a friendly spirit,
with a view to any possible adjustment, any difficulties which
may be brought to their notice as regards the interpretation or
application of this Agreement by subjects of the other party.
Should such adjustment prove impracticable, and should dis¬
cussion of the issue between the contracting parties fail to bring
about a settlement within a reasonable period, the matter
shall, if either party so desires, be submitted for an arbitral
decision to the Judicial Committee of the Privy Council or such
other inter-imperial tribunal as may from time to time be
agreed upon by the parties. The preliminary question whether
the matter in question is one of the interpretation or applica¬
tion of the agreement shall, in the event of dispute, be decided
by the tribunal.
The tribunal shall have power to determine the mode of
procedure to be followed, to decide in what manner the costs
INDIAN CONSTITUTIONAL REFORM 243
of the proceedings shall be defrayed, and to award compensa¬
tion to the subjects of either contracting party in respect of any
losses which they have suffered arising out of the misinterpreta¬
tion or misapplication of this agreement.
The contracting parties undertake to give full and imme¬
diate effect to the decision of the tribunal.
The tribunal may, at the request of either party, in addition
to deciding the issues actually presented to it, make recom¬
mendations as to the interpretation or application in future
of the provisions of the agreement which have occasioned the
dispute. The parties agree to consider these recommendations
with a view if possible to their adoption.
Article XXII.
The stipulations of this agreement may be applied to any of
His Majesty’s Colonies, Possessions, Protectorates, and Man¬
dated Territories, on the application of the Government of the
territory concerned, and with the concurrence of the two con¬
tracting parties.
Article XXIIL
This agreement shall be applicable to any Indian State
admitted to membership of the federation of India in accor¬
dance with the terms of the Government of India Act, with
effect from the date of such admission, subject, however, to
such modifications as may be specified in the Order in Council
providing for the admission of the State.
Article XXIV.
This Agreement shall come into force on such date as may
be appointed by Order of His Majesty in Council.
To be signed for the United Kingdom by the Prime Minister,
for the Government of India by the Secretary of State for India
in Council.
(It was proposed that the Agreement should be enforced by
244 INDIAN CONSTITUTIONAL REFORM
legislation in the United Kingdom and in British India, and
that power should be given in the United Kingdom to the King
in Council, and in British India to the Governor-General by
Ordinance, to supply any emergent defect in legislation from
time to time, for example to give immediate effect to any
decisions of the tribunal under Article XXI.)
1. THE KING’S VISIT TO FRANCE:
MINISTERIAL RESPONSIBILITY
T o the Editor of the Scotsman, 27 November igi8.
In Reuter’s message from Paris, published in your issue of
to-day, the remarkable assertion is made that the King’s visit
to France is in his capacity as supreme head of the British
Army, and that Tor this reason’ His Majesty will include in
his suite no member of the British Government. If the state¬
ment is to have any meaning, it can only be interpreted as
implying that in his military capacity the King stands in a
different relation to his Ministers from that which governs his
actions in a civil capacity, and that there exists in this country
some analogue of the position under the German Imperial
Constitution, which placed the Emperor in direct relationship
to his army without ministerial intervention.
In fact, of course, no such anomalous position exists. His
Majesty’s most appropriate visit to France is undertaken with
ministerial advice and on ministerial responsibility. The
absence of a Minister from the Royal suite on such an occa¬
sion is a mere matter of convenience, and has no constitutional
significance whatever.
2. PARTY CONFLICTS AS ESSENTIAL
CONDITION OF DEMOCRATIC PROGRESS
To the Editor of the Scotsman, 8 December igig.
"Almost with one voice the world democracies have con¬
demned the renewal of party conflict’ was one of the Prime
Minister’s dicta at Manchester, as reported in your issue of
to-day.
But what are the facts? In Canada, the Commonwealth of
Australia, New Zealand, the Union of South Africa, and New¬
foundland, the close of the war has been followed by the re¬
vival in an intense form of party conflicts, no less bitter than
248 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
those which are wrecking the peace settlement in the United
States. In Italy the general election has largely increased the
power ofSocialism in its most pronounced and anti-monarchial
form, and the governmental appeal for union met with re¬
markable apathy. Every competent observer agrees as to the
profound party divergencies in Germany and in the new
European States. In Belgium Socialism has attained a position
of all but equality in the Lower House with the Catholic party,
and the latter has been compelled to accept an extremely ad¬
vanced policy as a result of this party victory. There remains,
therefore, to support the Prime Minister’s sweeping assertion
the solitary case of France, which, under the influence of an
immediate menace from Germany, is for the time being united
in views of foreign policy; that in domestic policy there is any
agreement in France to drop party views is not supported by
any evidence, and runs counter both to recent events and
expert opinion.
If any conclusion is to be drawn from practice in the world
democracies, it is plainly that party conflict is an essential
feature of democratic progress.
3. THE PREMIER ON HONOURS AND
PARTY POLITICS
To the Editor of the Scotsman, 18 July 1923.
Two points of great interest are raised by the Prime Minis¬
ter’s defence of political honours reported in your issue of
to-day.
In the first place, the Prime Minister has disposed of one
accusation, reiterated ad nauseam by his personal followers
against Liberals who disagree with them. Instead of deploring
the existence of parties, ‘he descanted’, in the words of your
Parliamentary Correspondent, c on the value of party politi¬
cians and the need for party organizations, and warned the
House, and particularly the Labour party, of what might
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 249
happen if party organizations disappeared 3 . It is as well to
have the fact emphasized.
In the second place, the Prime Minister committed himself
to the remarkable doctrine that no Prime Minister, when the
party Whips submitted names for honours for political services,
had had any knowledge as to who had contributed to the party
funds or not. This clearly does not accord with Mr. Asquith’s
statement, and must be regarded as frankly incredible. It is
presuming too much simplicity on the part of Prime Ministers
to acquit them of more than a suspicion, when a person of
blameless character but no political reputation is put forward
for an honour on political grounds, that the proposal means
that the party funds have profited, especially when it is re¬
membered that these donations are never as secret as those
concerned in them would wish them to be.
What is really needed is frankness and honesty 1 in these
matters. It is surely ridiculous, in view of the history of the
peerage, to deny the justice of creating such an honour in
favour of a man who has given generously to his party, in the
belief that his party is working in the best interest of the State,
provided that his personal character and public actions con¬
form to the accepted standard of honourable conduct. What
is open to grave objection is to give such honours, and pretend
they are accorded on other grounds.
4. THE CROWN AND DISSOLUTION OF
PARLIAMENT
To the Editor of the times, 22 January 1924.
Professor Pollard’s defence of the doctrine of the discretion
of the Crown in regard to granting the request of a Prime
Minister for a dissolution, as expressed in his lecture on
January 21, appears to derive its value entirely from ignoring
the essential distinction between advice to dissolve and other
suggestions made by a defeated Administration. A Prime
1 See the Honours (Prevention of Abuses) Act, 1925; Maundy Gregory, In re
(1934), 50 T.L.R. 492; Ridges, Const. Law (ed. Keith), pp. 197, 198.
250 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
Minister who no longer commands the confidence of the House
of Commons has manifestly no power to advise the disbanding
of the Army or the paying-off of the Navy; if he did so his action
would be manifestly a gross violation of the Constitution, and
the Crown could not accept the advice without sharing in the
violation. But to advise a dissolution is to appeal from the
House of Commons to their masters, and both the weight of
precedent and common sense suggest that the Crown has no
real right to refuse a dissolution, save in the practically incon¬
ceivable case in Britain of a Prime Minister asking, after one
dissolution had been granted and had resulted in an adverse
verdict, for a second dissolution.
To assert the existence of a discretion is to impose a most
serious obligation on the Crown, for, if it has a discretion it is
bound to accept responsibility, and its action must become the
subject of party comment, as can be seen from those cases in the
Dominions in which Governors exercise the right. 1 That a
Governor should be denounced as partial matters little enough
to any one except himself; it would be a very grave thing if the
Crown were divorced from its impartiality. What the Crown
legitimately possesses is personal influence, and it is safe to
assume that this influence, in conjunction with the good sense
of British politicians, will prevent the issue of the Crown’s dis¬
cretion from ever becoming a matter of other than theoretic
interest.
5. THE RESPONSIBILITY OF PARTY LEADERS
mr. lloyd george’s question: dominion practice
To the Editor of the Scotsman, 29 April igsg.
In the absence of British precedent Dominion practice may
shed some light on the responsibility of party leaders in the
event of the General Election failing to give a clear majority
to the Government. In such a case the electors would not
expect the Governor-General to solve the difficulties of the
1 See I, Nos. 38, 39, and 43, ante .
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 251
situation, and still less would it be justifiable to place any
burden on the King after his long illness. The Dominion would
demand that the party leaders should consult, and that the two
parties which had closest affinity should agree on the mode in
which the Government was to be carried on until such time as
circumstances should justify a fresh appeal to the people.
It does not appear that under Dominion practice Mr. Lloyd
George has any right to expect a categorical reply from Mr.
Baldwin to his inquiry of Saturday. If the Prime Minister fails
to obtain a majority from the electorate but remains at the
head of the largest party in the House of Commons, he will no
doubt feel that his duty to the country requires that he should
endeavour to obtain from one or other of the Opposition
parties aid in carrying out a modified programme, omitting
proposals for which there is no majority in the House of Com¬
mons. If the Liberal party, with which, as you justly argue,
the Unionists have greater affinity than with Socialists, proves
intransigent, and insists on uniting with the latter to defeat the
Government, Mr. Baldwin will have undoubtedly a serious
burden to face, which can hardly be disposed of on the mere
ground of the relative strength of the Opposition parties. The
country is surely entitled to expect that the dominant con¬
sideration will be which of the Opposition parties, if placed in
office by Unionist support, will be the more likely to carry out
a safe and cautious policy at home and abroad, and that Mr.
Baldwin will take care to ascertain this as definitely as possible
before advising the King for whom to send. Responsibility
will, one may assume, be assigned by the electorate, not on the
basis of any technical reasoning, but on the attitude adopted
by each party in its bearing on the permanent welfare of the
State, an aspect which was insufficiently considered by the
Liberal party in 1924. 1
1 The action of Mr. Baldwin and the Liberal leaders placed in power a
Labour Ministry whose mismanagement of finance was held by both Conserva¬
tive and Liberal leaders to necessitate in 1 93 1 reconstruction of the Ministry
on the basis of the removal from office of all save a minority of the members of
the Cabinet.
252 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
6 . THE POLITICAL SITUATION
To the Editor of the Scotsman, g June 1929.
It is remarkable to learn that some of the Prime Minister’s
best friends think that he ought to resign at once. From a
constitutional point of view such action would be justified only
if there existed a party which had a clear majority in Parlia¬
ment and was able to assume authority forthwith, in the
knowledge that it possessed the confidence of the country. In
fact, 13,744,000 voters have expressed their preference for the
Unionist or Liberal parties as opposed to 8,311,000 who have
voted for a Labour Ministry. Our imperfect electoral system
has not reproduced with any fairness the effect of the voting,
but even under it the Labour party must be in a minority of
over twenty votes in the House of Commons.
We must believe that the attacks on the competency of the
Labour party to manage wisely the foreign and domestic
affairs of the State, which have been made by Unionist leaders,
were sincere, and, if that is so, it is clear that the Prime Minister
cannot be justified in resignation unless and until the Plouse of
Commons compels him to adopt that course. Immediate
resignation would, in view of the state of His Majesty’s health,
be equivalent to advice for the unconditional appointment to
office of the Labour party, the moral responsibility for which
action would rest on Mr. Baldwin. The clear course of action
is that which evidently appeals to the ripe political wisdom of
Sir Austen Chamberlain. The Prime Minister should meet
the House of Commons with a policy of carrying on the King’s
Government, while laying aside matters of acute party contro¬
versy, such as the safeguarding proposals. It would then lie
with the Liberal party to decide the fate of the administration.
If it preferred to support Labour, then the responsibility of
doing so would rest with it. The suggestion that by refraining
from voting the Liberals could evade this responsibility is
frankly impossible; such abstention would properly be re¬
garded as a definite preference for a Labour Government.
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 253
It appears to be held in some Unionist circles that there is a
tactical advantage to be gained by immediate resignation, but
I trust that on reflection they will recognize that the interests
of the country should be put above party advantage, and I
may add that, though party considerations have sometimes
determined action in like conditions in the Dominions, it has
seldom, if ever, proved in the long run profitable to prefer
sectional interests to those of the State. Time, moreover, is
essential to allow the opinion of the country to consolidate in
favour of the best mode of action to meet the present complex
situation and to give the King the most favourable opportunity
of regaining strength.
7. THE CONSTITUTIONAL RIGHTS OF THE
HOUSE OF LORDS
To the Editor of the Scotsman, i July 1Q20.
Is it really possible to defend on constitutional grounds the
attitude adopted by the Lord Chancellor towards the Bill
passed by the Commons to declare the right of certain Scottish
litigants to have costs awarded to them in successful appeals
in the House of Lords? The only justification of the attitude
of the Upper Chamber would be that the measure interfered
with the right of that body to lay down its own rules of proce¬
dure, and Lord Birkenhead asserted that the Bill in question
did so interfere. But this contention can be maintained only by
the deliberate confusion of the two entirely distinct aspects ot
the House of Lords as a part of the Legislature and as a Court
of Appeal. In the former capacity it must be free to regulate
its own proceedings as part of its inherent privileges with which
the House of Commons has no right to interfere. In its latter
capacity its procedure is largely regulated, admittedly so in the
case at issue, by rules made under statutory powers. To pro¬
pose by statute to alter one of these rules cannot without
absurdity be regarded as a breach of the right of the House of
Lords in its legislative capacity to regulate its own procedure.
254 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
Apart from theoretic objections to the course adopted by the
Lord Chancellor, there are strong practical objections to con¬
fusing the two functions of the House of Lords. It is remarkable
that the Lord Chancellor should have forgotten the strong
protests quite fairly made by his party during the political
campaign of 1905 against attributing to the Lords as a legisla¬
tive body the famous judgements which were held by Labour
to deprive Trade Unions of the privileges which the Legisla¬
ture intended to confer upon them, and conversely it is certain
that Labour tends to regard with suspicion judgements of the
House of Lords which it deems contrary to its interests as
emanating from a body ofhereditary legislators, and not, as in
point of fact, from a purely legal tribunal. Not the least press¬
ing ground for the reform of the Upper House is that it will
necessitate the termination of an anomalous position which
seems to have led even the Lord Chancellor astray.
8. HOUSE OF LORDS REFORM
To the Editor of the Scotsman, 30 June 1327.
In the discussion of the proposed reform of the House of
Lords too little stress, it seems to me, has been laid on the
necessity of safeguarding the position of the Crown. It appears
that Lord Birkenhead is prepared to maintain that His Majesty
can constitutionally be asked to assent to a Bill passed by the
two Houses in the present Parliament, under which the prero¬
gative would be vitally changed, and the Upper Chamber
would be placed in a position in which its composition and
powers could never in future be modified without its consent.
Surely it would be utterly unfair to place the King in the
position of having to give or withhold assent to such a measure
before the policy had been approved at a general election. His
Majesty, of course, is not expected to form any judgement on
ordinary measures of legislation which, passed by one Par¬
liament, can be repealed by another. But the position of
the Crown is clearly different as regards vital constitutional
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 255
changes, and respect for the King and due regard to the
necessity of keeping the Crown free from any charge of
partisanship appear clearly to demand that the proposed
changes in the position and composition of the Upper House
should only be carried out after the matter has been submitted
for consideration to, and approved in principle by, the elec¬
torate at the next general election. Nor, it may be added, is
there much doubt that, if the scheme has to be explained and
defended before the electors, the Government will evolve
something a good deal more satisfactory than the present
limited and rather incoherent proposals.
9. HOUSE OF LORDS REFORM
To the Editor of the Scotsman, ii November 1932.
Those of us who are not convinced by the Labour intelli¬
gentsia that a Second Chamber is needless, must regard with
dismay the suggestions of the Joint Committee of Unionists
for a reform of the House of Lords. What is needed is a
Chamber to perform the functions laid down by the Bryce
Committee in a spirit of impartiality. What is offered in lieu
is a body which, as regards one-half of its members, is to per¬
petuate the principle ofhereditary qualification for legislation,
and which is to be constituted so that it shall always be pre¬
vailingly Conservative, though, with kindly consideration,
Labour members are to be granted additional allowances,
presumably to enable them to vie in sartorial splendour with
their peers. This body is to have power to limit expenditure
in the interests of the property-owning classes which the great
majority of its members would represent; the definition even
of taxation measures is to be drastically limited, although the
Committee well knows that several very important financial
measures have already failed to receive the certificate of the
Speaker as Money Bills under the Parliament Act, 1911. As
regards all other measures this body could delay passage until
after endorsement at a general election, which, of course,
256 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
means that a Labour House of Commons would have to accept
unwise amendments rather than compel the country to await
an election, or a dissolution would be necessary with all the
waste of time and money.
That a National Government whose programme ignored
the reform of the House of Lords should be asked seriously to
consider passing any such measure would be constitutionally
monstrous, and action will no doubt not be taken. But the
danger clearly is that, failing modern and sane reform pro¬
posals, we shall find the Upper Chamber swept out of exis¬
tence. It is significant of the spirit of the report that it is still
desired to give representation to the Church of England alone,
and that it is not even proposed to get rid of the anomaly of
the position of the Lords of Appeal in Ordinary.
10. HOUSE OF LORDS REFORM
To the Editor of the Scotsman, 20 December 1933.
It is to be regretted that Lord Hailsham has not manifested
the same concern for the prerogative in the case of Lord Salis¬
bury’s Bill as he has in regard to the abolition of the right of
appeal from the Irish Free State. 1 In the latter instance, de¬
spite the Statute of Westminster, he has defended the preroga¬
tive so energetically as to excite, as was inevitable, an agitation
in the Union of South Africa, which General Hertzog was en¬
deavouring to lay to rest. Lord Salisbury is frankly attacking
an ancient and undoubted prerogative of the Crown, without,
of course, the assent of the King, and it is notorious that no Bill
of this kind can pass either House unless and until the King, on
the advice of his Ministers, accords that assent. Now Lord
Hailsham knows well that the Government cannot advise the
King to permit the House of Lords to pass any measure of the
kind proposed. A fundamental alteration of the Constitution,
involving the destruction of a vital prerogative, cannot be
carried out without a definite mandate from the electorate, as
1 See I, No. 100,
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 257
the proceedings of the Grown in respect of the Parliament Bill
definitely proved. Under these conditions, it is clear that the
proper course was for Lord Hailsham to advise Lord Salisbury
that his Bill could not proceed, and that he ought to take the
only constitutional course of proceeding by way of a resolu¬
tion. 1 For those who advocate changes in order to prevent
revolutionary action to ignore the binding principles of the
Constitution is surely unwise in the extreme.
The debate reveals the regrettable fact that it is not realized
in the House of Lords that no increase of powers is possible
unless the hereditary principle is replaced by election. Lord
Astor’s preference for nomination is not supported by Domi¬
nion experience, while the two States of the Commonwealth
which have had the worst experience of reckless Socialism are
those which have not had elective Upper Chambers.
11. THE ALTERATION OF THE CONSTITUTION
To the Editor of the Scotsman, g February 1934.
Apart from the question of privilege raised by Sir Adrian
Baillie in respect of the address from the House of Lords
relative to the Bill for the reconstitution of that Chamber
and the relationship between the two Houses, 2 there is surely
a much more vital principle of modern constitutional practice
involved. It is clear that the King cannot deal with the request
of the Lords without the advice of his Ministers, and that his
answer must depend on their wishes. Now the alteration of the
Constitution of this country is essentially under the principles
of responsible government a matter for the Ministry of the day.
It is neither its duty, nor is it proper, that it should leave the
task to other hands, or accord its aid to any attempt to alter the
Constitution for which it is not prepared to take responsibility.
Further, it is clear that the present Government has no man-
1 Lord Salisbury in fact did not ask for a Committee Stage on his Bill, which
thus served no useful purpose and in 1934 the Government definitely negatived
any legislation and admitted the absence of any Cabinet agreement.
2 The Speaker ruled that no question of privilege arose.
S
258 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
date whatever for the alteration of the Constitution, a proposal
absolutely ignored by the leaders of the parties, who joined to
form the Ministry which appealed to the people, in their ad¬
dresses asking for our support. It would be absolutely deplor¬
able if the principle once were asserted that a Government
under modern conditions is entitled to propose vital constitu¬
tional changes after attaining power for quite different
grounds. This doctrine is so important that I cannot imagine
that any Conservative statesman would be willing to counten¬
ance such a theory of the Constitution. Sir Stafford Cripps is
acting with perfect propriety when he demands that the
electorate shall be warned beforehand what the Government
they elect intends to do.
It follows, therefore, that the sound constitutional position
for the Ministry is to decline to recommend compliance with
the address on the ground that no fundamental constitutional
legislation can be undertaken except on its authority, and that
it is not prepared to sponsor the measure in question. It is
useless to argue that the Lords should have the right to discuss
the measure even if only for academic purposes. The House of
Lords has a perfectly simple and effective means of making
known its views of its own constitution, namely, by passing
resolutions which can be debated at any length and in any
detail desired by that body.
That a reformed Second Chamber is necessary is unques¬
tionably the opinion of many of us, but the mode of securing
it must be the constitutional one of laying proposals in outline
before the electorate at the next general election, and per¬
mitting the electorate to decide.
12. A FEDERAL CONSTITUTION FOR THE
UNITED KINGDOM
To the Editor of the times, 23 May igi8.
There is one point of fundamental importance to which
insufficient attention appears to be paid in most, if not all,
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 259
recent discussions of the advantages of a Federal Constitution
for the United Kingdom. The arguments which have been
adduced in favour of relieving the Imperial Parliament of the
duty of dealing with local affairs are of great weight, but the
obvious remedy which they support is devolution, not federa¬
tion. Federation, if used in any accurate sense, involves not
merely the existence of legislative bodies other than the Par¬
liament of the United Kingdom, but the grant to these bodies
of powers exclusive of those of that Parliament.
The question, in fact, which arises is whether the advocates
of a F ederal Constitution for the U nited Kingdom really desire
to place the new legislative bodies to be created in the same
relation to the Parliament of the United Kingdom as is held by
the Provincial Legislatures of Canada and the State Par¬
liaments of Australia towards the Dominion and Common¬
wealth Parliaments respectively, or in the relation of complete
subordination occupied by the Provincial Councils of the
Union of South Africa. The establishment of subordinate
legislatures, e.g. for Ireland, Scotland, or Wales, would raise
no fundamental difficulties, for these bodies, though with
much wider powers as well as areas of action, would occupy
in law essentially the same position as such bodies as county
councils. Federation, however, would involve the creation of
a formal Constitution, and the subjection of the laws passed
by Parliament to the power of the Courts to pronounce them
ultra vires. Admirable as the Constitutions of Canada and
Australia are in many respects, having regard to the special
needs of these vast territories, it is open to the gravest doubt
whether it is wise deliberately to bring upon ourselves the
legalism of Federal Constitutions, when devolution might well
meet the needs of the situation.
13. FEDERAL DEVOLUTION
To the Editor of the Scotsman, i July igi 8 .
It is much to be regretted that the Prime Minister, in his
reply to the deputation on federal devolution, reported in
260 constitutional law in the united kingdom
your issue of to-day, did not specify the precise sense which
he attaches to the federal principle of which he expressed ap¬
proval. If the term federal is to be accorded the sense which
it now normally bears, it denotes a system in which a rigid line
of demarcation is drawn between the powers of the Central
and Local Legislatures and Governments, both being con¬
fined within their due limits by the action of the Courts of
Law. The introduction of a true federal system in this
country would necessitate the creation of a formal Constitu¬
tion, the limitation and definition of the power of the Central
and Local Legislatures, the provision of some means, probably
involving the use of the referendum, for altering the Constitu¬
tion, and the establishment of a new Second Chamber on a
federal basis for the Central Legislature, In practice, as the
experience of the United States, Canada, and Australia abun¬
dantly proves, the actions of Government and Legislatures,
Central and Local alike, would be constantly called in
question before the Courts, and the pressing social reforms
requisite to meet post-war conditions would be delayed or
defeated.
Is there any evidence that a true federal system is desired by
the people of Scotland? Would not all that is necessary or
desirable be acquired by the creation of purely subordinate
Legislatures—which is the normal implication of the term
devolution—with the necessary executives ? In Scotland and
Wales such bodies might perform really useful services and
satisfy national feeling; in Ireland, of course, even the most
moderate Nationalists demand powers of taxation which are
inconsistent with any modern federal system, while the
advanced members will be contented with nothing short
of Dominion status, but the offer of devolution on the
same basis as that accorded to Scotland and Wales would
at least have the advantage of meeting the views of
certain sections of opinion in the Dominions. Nor is there
any logical reason for postponing devolution to the parts
of the United Kingdom other than England until the pro-
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 261
blematical period when England will desire devolution for
itself.
A third course of action has been suggested by Lord Salis¬
bury, who seems to think that a delegation of legislative power
to local bodies might be arranged without the creation of
corresponding executive bodies. Apart from objections to the
practicability of working such a scheme, it must be pointed
out that it would not in any effective manner satisfy the
national aspirations which underlie the movement for devolu¬
tion.
14. SCOTTISH SELF-GOVERNMENT
T0 the Editor of the Scotsman, 28 October 1Q32.
Before Conservatives make up their minds to oppose the
establishment of a Scottish Parliament, I hope that they will
take the trouble to examine conditions in the Dominions.
They will find, I am certain, much reason to believe that great
benefits accrue from the possession in the federations of local
Legislatures, and that the fears of injury to material interests
in Scotland by restoration to it of a Parliament are based on
misconceptions. What is obvious to any one who has followed
the question is the steady spread of national feeling in recent
years, and now that the Irish question has been removed the
time has surely come when the matter should no longer be
regarded as the policy of any one political party. What is
requisite is very careful consideration of the best form of rela¬
tions to be devised between England and Scotland, and in such
a work Conservatives should take their proper share. The
alternative is to allow the movement to pass into the hands of
persons with extreme views. Much, no doubt, may be said for
the claim of Dominion status for Scotland, and if no suitable
alternative is offered there is every reason to expect that
national feeling will ultimately pronounce for that ideal.
Surely Irish history ought to warn us against mere opposition
to every change.
262 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
15. A SCOTTISH PARLIAMENT:
THE DOMINIONS ANALOGY
To the Editor of the Scotsman, 2 November 1932,
The Duchess of Atholl forgets that, if the English people
demand that the English Parliament shall also be the Imperial
Parliament, they cannot claim a reduction of Scottish repre¬
sentation despite its inconvenience. But the English people
have strong common sense, and if they agree to Scottish Home
Rule they will no doubt accept the logical corollary, a Federal
Parliament. In either cases there will still be ample room for
the ambitions of those Scotsmen who can make their head¬
quarters London and whose personal advantage the present
system so admirably serves. But I am unable to believe that
the affairs of Scotland are best controlled by a Parliament and
Government to whom Scotland is a remote and petty province,
whose spokesmen are prevented from united action as a
national group by their membership of one or other of the
great political parties, and who are constantly subjected to
the influence of London opinion. That Scottish affairs should
be regulated by those whose life work lies in Scotland is a
conclusion which all Dominion experience supports, and of
which the history of Natal since 1910 affords an excellent
illustration.
I referred to Ireland as a warning of the results of intransi¬
gence. From 1906 Unionists denied the claims of the national
feeling of Southern Ireland, Liberals those of Northern Ire¬
land. Hence arose rebellion, civil war, and our present de¬
plorable relations, when His Majesty is forced to dismiss a
Governor-General whose one offence was a protest against
insult to the Crown. IfScotland is driven to demand Dominion
status, it will, I fear, be due to the same lack of foresight and
sympathy with national feeling which has brought about the
Irish disaster. Wise concession is the best prevention of
revolution.
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 263
16. THE STATE AND BREACH OF CONTRACT
BY WORKERS
To the Editor of the Scotsman, 3 October igig .
It may be of interest to note, in connexion with the discus¬
sion 1 in your issue of to-day, of the legal right of the Govern¬
ment to withhold payment of wages of railway employees,
that the doctrine of English law permits summary dismissal
of a servant whose unlawful absence from duty gives rise to
serious inconvenience, and that in such an event the servant
is entitled only to such wages as have completely accrued; thus
a servant, paid weekly, if dismissed in the course of the week,
has no claim to payment for the work done that week, though
entitled to payment in respect of the preceding week, if for any
reason such payment has not been made before his dismissal.
The doctrine has recently received interesting illustration in a
case decided by a County Court judge, in which it was held
that a servant who left her situation one day before the expira¬
tion of her engagement could not recover from her employer
any wages for the period after the expiration of her last com¬
plete month of service, the employment in this case being
under a monthly engagement.
Under English law, therefore, there can be no doubt that
the railwaymen who went on strike are not entitled to receive
payment of any wages which had not legally accrued before
their breach of contract was committed. On the other hand,
it is equally certain that the men are entitled to accrued wages,
if any, and that no employer may withhold accrued wages to
meet damages which may be awarded to him for breach of
contract by servants. The legality at English law of the action
of the Government depends, therefore, in each case on a
question of fact, and redress for any wrong will be afforded by
1 Some censure was expressed of governmental withholding of wages from
railway employees on strike on the score that such action was illegal, and to be
condemned in a Government, whatever the provocation.
264 CONSTITUTIONAL LAW IN THE UNITED KINGDOM
the Courts. But to censure, as matters stand, the decision of
the Government is to ignore the fact that the method in which
the strike has been conducted makes it clear that it is the aim
of some at least of the strikers to challenge the supreme
authority of the State itself.
17. SIR JOHN SIMON AND THE GENERAL STRIKE
To the Editor of the Scotsman, 12 May 1926.
It is with equal regret and surprise that many Liberals have
noted the policy in regard to the strike recommended by Sir
John Simon immediately after his exposition of legal principles
which, though a commonplace to lawyers, 1 seem to have been
little appreciated by the public in general. The essence of Sir
John Simon’s proposal is to efface the distinction which he
himself drew between what is lawful and what is wholly illegal,
for he now brackets the cancellation of the new terms offered
to the miners by their employers with the calling-off of
the general strike. I cannot understand how Sir John Simon
can fail to see that his action is essentially a condonation of
illegality, and a recognition of the effectiveness of the general
strike as a means of compelling the Government to yield the
power entrusted it by the people at the demand of a minority
enforced by discreditable means. It may well be that the
Government should have dealt otherwise than it has with the
position of the miners, but it is perfectly clear that, whatever
verbal claims may be made, if it yields before the unconditional
withdrawal of the general strike, it will definitely have con¬
ceded the authority of the trade unions to control the policy
of the country and have abrogated the sovereignty of Par¬
liament. The utter disregard of the unions for public interest
proves the folly of any such course.
The Government, I think, might explain why it failed to ask
1 The illegality of a general strike was declared by the Court in National
Seamen's and Firemen's Union v. Reed, [1926] Ch. 536. The strike was called off
unconditionally on May 12.
CONSTITUTIONAL LAW IN THE UNITED KINGDOM 265
the High Court for an injunction 1 against the action of the
leaders in calling the general strike. The power to issue in¬
junctions has often been used with satisfactory effect in
America, and resort to this weapon at an early stage would
at least have had the advantage of making perfectly clear the
illegality of the whole proceedings.
18. THE TITLE PROTESTANT
To the Editor of the Scotsman, 27 May igqg.
The title Protestant seems to have fallen into some disrepute
with Presbyterians and members of the Church of England
alike. 2 It was not always so. When under the Canadian Con¬
stitutional Act of 1791, the Clergy reserves were set aside for
the maintenance of a Protestant clergy, so little did the Church
of England despise that style that they contended down to 1840
that they alone fell under it, and denied the claims put forward
by the Church of Scotland, though both the Law Officers of
the Crown and the judges were willing to admit that the
Church of Scotland had a claim to share. Moreover, in the
great Act which conferred emancipation on Roman Catholics,
the Churches of England and Scotland are signalled out as
Protestant on an equal footing. Neither Church has any
reason to be ashamed of its Protestant character, and our
Assembly has most wisely asserted that we admit no inferiority
to the Church of England.
1 The Trade Disputes and Trade Unions Act, 1927, authorizes the Attorney-
General to apply for an injunction to restrain the application of the funds of a
trade union towards a strike made illegal by that act. But the wider issue
remains.
2 In discussions of the possibility of closer relations between the Churches of
England and Scotland, it had been suggested that they had little that was
fundamental in common.
i. DOMINION GOVERNORSHIPS:
CONSTITUTIONAL THEORY AND PRACTICE
To the Editor of the times, 14 September igiy .
May I be permitted to suggest that in your comment on the
retirement of Sir Gerald Strickland from the Governorship of
New South Wales in your leader of the 13th inst. hardly suffi¬
cient weight is allowed to the radically false constitutional
position now occupied by a Governor of a Dominion or State
towards his Ministers? It must be remembered that of recent
years it has been precisely the ablest of Australian Governors
—such as Lord Chelmsford and Lord Carmichael—who have
been the subject of most serious public criticism on account of
their relations with their Governments.
It is now the established practice in the United Kingdom
that the Sovereign in political matters in the ultimate issue
accepts the advice of the Ministry in office, a rule which secures
to democracy the fullest advantage of monarchial government
and of political liberty. The system of responsible government
in the Dominions, however, developed at a time before this
doctrine was finally and completely recognized in the United
Kingdom, and in circumstances of political inexperience
among the colonists, which imposed on Governors the duty of
acting as the guardians of the Constitution and protectors of
the people against possible misuse of political power. It is
accordingly still the theory of Dominion Constitutions that a
Governor may, and indeed perhaps should, decline to accept
the advice of Ministers whom he considers not to represent the
popular will, relying on his ability to replace them with other
advisers should they resign as a result of his refusal. The
position throws upon the Governor a personal responsibility
which is more and more out of harmony with modern con¬
ditions of political thought in Australia, as may readily be
appreciated by study of the very varying comments on the
relations between Sir Gerald Strickland and his Ministers
270 CONSTITUTIONAL LAW IN THE DOMINIONS
which have appeared in the Australian Press. The true solu¬
tion of the difficulty is the establishment of the rule of action
on ministerial advice in every case, and the principle has been
acted upon in one striking instance, that of the grant of a
double dissolution of the Commonwealth Parliament in 1914
by Sir Ronald Munro-Ferguson, despite the precedents of
refusal of dissolutions established by Lord Northcote and
Lord Dudley.
Where Imperial interests are concerned different considera¬
tions, of course, arise, affecting the relations of the Dominions
and the United Kingdom, but the retention of the old practice
in internal matters is now an anachronism, and undesirable as
tending to create the impression of the interference of the Im¬
perial Government in the domestic concern of the Dominions,
public opinion in which can hardly be expected to draw the
delicate distinction between the Governor as head of the local
Government and as a representative of Imperial interests. 1
2. DOMINION GOVERNORSHIPS
To the Editor of the times, 25 September xgxy.
In the letter published in your issue of the 24th inst. Mr.
Swift MacNeill lends the great weight of his authority to the
doctrine that it is still part of the constitutional law of this
country that the King may dismiss a Ministry if he is of opinion
that the Ministry and the House of Commons are alike out of
harmony with the country. Widely as this doctrine is accepted,
it seems to be that it is impossible now to maintain that it is an
effective part of the constitutional law. In the first place, the
power has never been used since 1783, for we know now that
William IV, however anxious to be rid ofhis Ministers, did not
take the responsibility of dismissing them, 2 and the exercise of
a prerogative which has been dormant for 134 years, however
1 See I, No. 38, 39, and 43, ante.
2 The removal of the Grenville Ministry in 1807 came near dismissal; cf.
•Ridges, Const. Law (ed. Keith), p. 132.
CONSTITUTIONAL LAW IN THE DOMINIONS 271
legitimate in theory, would in practice be revolutionary. In
the second place—and this is the decisive consideration—the
attribution of this power to the Sovereign throws upon the
King a wholly impossible burden, namely, the duty of deciding
when the Ministry and Parliament are out of harmony with
the country, and affords a justification for appeals by sections
of public opinion to the Crown to exercise the power, thus
bringing the Crown into the arena of political strife.
I cannot, indeed, hope to persuade Mr. Swift MacNeill of
the correctness of my view, but I earnestly trust that no
Dominion Governor will be seduced into an experiment of
dismissal of a Ministry; though precedents of such action
could be adduced from periods much more recent than 1783,
the time has certainly gone when the attempt can be made
without disaster to the Governor himself. 1
3. LABOUR ENACTMENTS IN QUEENSLAND
CONSTITUTIONAL ISSUES
To the Editor of the times, 25 May 1920.
Two Acts of unprecedented character have been passed by
the Parliament of Queensland, the one depriving certain
holders of pastoral and grazing leases of the limitation to a
50 per cent, increase of rent at the periodical reappraisement
by the Land Court, the other expropriating on summary
notice the undertaking of the Brisbane Tramways Company,
leaving it without revenue, to which it would otherwise be
entitled, pending the determination of the price, and em¬
powering payment in bonds in lieu of cash.
To secure the passage of these extraordinary enactments,
the Labour Government of Queensland have found it neces¬
sary to break three constitutional rules. (1) They procured the
appointment of a pronounced political partisan to act as
Governor. (2) They induced the Acting-Governor to swamp
the Legislative Council by adding fourteen members of their
1 See Nos. 1*2-17, post.
272 CONSTITUTIONAL LAW IN THE DOMINIONS
party, notwithstanding that an Act of 1908 prescribed the
referendum as the constitutional mode of adjusting disputes
between the two Houses, and that in 1917 the people of
Queensland refused by an overwhelming majority to ap¬
prove the abolition of the Council. (3) The Acting-Governor
assented to the measures thus forced through the Council,
although required by the Royal Instructions to reserve any
Bill of extraordinary nature and importance prejudicing the
rights of British subjects not residing in the State. The result
of these revolutionary steps is to place all power in the State in
the hands of the Labour majority in the Assembly, which is
nothing but the obedient servant of the Labour Party outside
the Legislature,
Now, although the Imperial Government may have no
concern with the domestic affairs of Queensland, it is bound to
interest itself in the rights of British investors, because, if to¬
day the Labour Government at the instigation of the Caucus
repudiates obligations to Crown tenants and tramway share¬
holders, what is to hinder it to-morrow varying or cancelling
its obligations in regard to holders of Queensland Government
stock, which has been constituted a trustee security under
Imperial Act of Parliament? The high rate of interest which
has now to be paid will afford a cogent and perhaps irresistible
temptation to revision in the near future.
The mode of Imperial intervention doubtless raises diffi¬
culties. The power of disallowance exists, but the exercise of
it may be politically inexpedient, since it makes the Imperial
Government arbiter in a case in which it can hardly be a
disinterested party. Much more satisfactory would be the
adoption of the rule that the procedure in such cases should be
assimilated to that of disputes between foreign Powers. If,
then, individuals in the United Kingdom had a legitimate
grievance against another part of the Empire, it would be open
to the British Government to ask that it be referred to arbitra¬
tion before an impartial tribunal and the same right would be
recognized as regards claims against the United Kingdom.
e ruie
.ce ini
:tee of
is surely one worthy of cordial accep-
>f one Empire, and the Judicial Com-
ncil presents the nucleus of an Arbitra-
t standing and impartiality, including,
bership Dominion Judges of acknow-
linions and States for their part could
clear a recognition of their new status,
to accept principles applicable to
expressly approved by the Covenant
is, while British investors would benefit
te precarious possibility of disallowance
effecting their rights, for the assurance
nination of the compensation due to
oversea Governments.
4. LABOUR LAWS IN QUEENSLAND:
SECURITY OF BRITISH INVESTORS
To the Editor of the times, 29 May 1920.
The points involved in the Hon. E. G. Theodore’s reply in
The Times of May 21 to my letter of May 25 are so important
as to render a detailed rejoinder to the courteous answer of
Mr. Theodore imperative.
1. The constitutional rules in question are part of the un¬
written constitutional law of Queensland, including, of course,
in that term the rules affecting the relations of the State to the
United Kingdom. They are rules, not laws, and, like the con¬
stitutional rules of the United Kingdom, have been evolved in
the course of the constitutional development of the State.
2. Because they are rules, and not laws, they can be contra¬
vened, without involving the Government which disregards
them in illegality. A simple illustration will make clear to
Mr. Theodore a distinction which Professor Dicey’s genius has
long ago made familiar to British politicians. The Governor
could legally dismiss the Premier to-morrow without cause
274 CONSTITUTIONAL LAW IN THE DOMINIONS
assigned, but Mr. Theodore would be the first to admit that
his action would be utterly unconstitutional, so long as the
Premier commanded the confidence of the Assembly.
3. Mr. Theodore asserts that, as persons appointed to the
office of Governor have held political opinions before their
appointment, it is absurd to object to the appointment as
acting Governor of a pronounced political partisan. The
essential distinction between the cases, as Mr. Theodore
knows better than any one else, is that Governors have held
opinions on United Kingdom politics, while his nominee to
act as Governor was an cx-lcadcr of the Queensland Labour
Party, who had resigned office as Minister in Mr. Theo¬
dore’s own Government just four months before he began to
administer the Government. Moreover, his nominee, whose
constitutional duty it was to exercise the independent dis¬
cretion vested in the Governor regarding the addition of
members to the Upper Chamber, had pledged himself in
categorical terms to the doctrines: (1) that the office of Gover¬
nor was absolutely unnecessary; and (2) that ‘the whole bally
lot’ of Australian Upper Houses should be abolished. I cannot
believe that the Secretary of State for the Colonies knew these
facts when he accepted Mr. Theodore’s nomination, and I
hope that on reconsideration even Mr. Theodore will agree
that it was indefensible.
4. Mr. Theodore is wholly wrong in asserting that ‘swamp¬
ing’ Upper Chambers has never been considered unconstitu¬
tional; he will find the authorities, all of which contradict his
thesis, in my Responsible Government, whence he will learn that
the famous controversy of 1892 in New Zealand did not deal
with ‘swamping’ but with an addition of a small number of
members to afford a Government debating power. But the
crux of the whole position, as is obvious, is the Act of 1908,
which settled the famous dispute between Lord Chelmsford
and Mr. Kidston as to the ‘swamping’ of the Upper House
and which gave the decision in case of disagreement between
the Houses to a referendum. Since that Act the ‘swamping’
CONSTITUTIONAL LAW IN THE DOMINIONS 275
of the Council is as unconstitutional as would be the creation
of peers to coerce the House of Lords since the Parliament
Act. No true democrat should refuse to permit the people to
decide; the time taken need not exceed six months, and the
cost, which Mr. Theodore puts needlessly high, is trivial in
comparison with the issues at stake.
5. I did not imply that the ‘swamping 3 of the Council was a
preliminary to its abolition. I did imply that the ‘swamping 5
meant that the Council as an independent activity in legisla¬
tion had been abolished. I do not doubt that Mr. Theodore
does not propose to use his majority in the Council to abolish
it, because (1) there is no motive to remove a subservient tool,
and (2) the Bill for abolition must under the Constitution be
reserved, and Lord Milner would never take the active respon¬
sibility of procuring His Majesty’s assent to the measure in
view of the refusal of the people of Queensland in 1917 to
accept abolition. 1
6. Mr. Theodore suggests that the submission to arbitration
of claims by subjects in one part of the Empire against the
Government of another part involves the reactionary principle
of the limitation of sovereign rights, a view which is conclusive
evidence that he does not understand the proposal. If British
subjects complain of acts of repudiation by the French Govern¬
ment, then His Majesty’s Government may ask France to
arbitrate the issue. Is Queensland so much superior to a
sovereign power like France that what France would agree to
would dishonour Queensland? Mr. Theodore must know that
at present the power of disallowance of Queensland Acts rests
with the Imperial Government. I have long advocated its
surrender by the Imperial Government as derogatory to the
self-respect of a Dominion or State. But, if it is abolished, some
means must be provided to deal with inter-imperial contro¬
versies, and what statesman can decline arbitration, the chief
1 In fact, however, the majority was used in 1921 to pass a Bill abolishing the
Council, and this received assent after reservation, in 1922, on Mr. Churchill’s
advice. See Responsible Government (ed. 2), i. 461, 462.
276 CONSTITUTIONAL LAW IN THE DOMINIONS
hope for the peace of the world? Or, to put the issue con¬
cretely, if disallowance is ruled out and arbitration is refused,
what security has the British investor in Queensland Govern¬
ment stocks? If the Labour caucus bids Mr. Theodore,
reluctantly, I am sure, to repudiate the obligations of the
State to its tenants and their assigns and to the Brisbane
Tramways Company, what is to hinder it bidding him to raise
a capital levy on Government stocks or to reduce by half the
rate of interest?
5. LABOUR LAWS IN QUEENSLAND
To the Editor of the times, 5 June ig20.
May I reply briefly to certain misapprehensions in Mr.
Theodore’s letter printed in your issue of June 4?
1. Queensland has not, as Mr. Theodore supposes, a written
constitution in the technical sense of that term; as in the United
Kingdom by far the greater part of the Constitution, including
the operation of the principle of responsible government and
the conduct of relations with the United Kingdom, rests on
constitutional usage which possesses no direct legal sanction;
and my contention is that in swamping, on Mr. Theodore’s
advice, the Upper House the acting Governor acted uncon¬
stitutionally.
2. Mr. Theodore’s theory of the relation of Upper Houses
to Lower Houses would reduce the former to impotence, and
harmonizes perfectly with the doctrine of the abolition of the
Legislative Council, which is one of the mai n planks of his
party’s platform. But it must be clearly understood that the
theory has no relation to the facts; whether elective or
nominee, the Upper Chambers of Australia have asserted
against Governments of every political colour their indepen¬
dence—an attitude, rightly or wrongly, approved by an
overwhelming majority of the voters of Queensland at the
referendum of 1917.
3. In his assertions regarding the delay of a referendum,
CONSTITUTIONAL LAW IN THE DOMINIONS 277
Mr. Theodore must surely have forgotten that in 1915-16 his
party introduced their legislation regarding leases, and that,
on its rejection by the Council, the Government took the
preliminary steps for its reference to the people which could
have taken place in 1916. As they did not proceed with the
reference, is it unfair to suggest that they distrusted the popular
verdict on this measure of repudiation, or to hold, as I do, that
by swamping the Council to secure its passage they have
violated a fundamental democratic principle?
4. Mr. Theodore is entirely in error in attributing my views
to distrust of Labour, whether in Queensland or elsewhere.
The opinions which I have expressed in this case are merely
an application of those set out in 1916 in my Imperial Unity, viz.
that (1) relations of equality should be substituted for relations
of superiority and dependence between the United Kingdom
and the self-governing portions of the Empire; and (2) simul¬
taneously there should be adopted the system of inter-imperial
arbitration for the settlement of divergences of view between
different parts of the Empire which otherwise might weaken
the bonds of Imperial unity. Such proposals, I conceive, are
honourable to all parts of the Empire alike, and if the United
Kingdom should propose arbitration, Queensland, I trust,
would be slow to refuse it. 1
6. SECOND CHAMBERS AS A CHECK ON
LABOUR LEGISLATION
To the Editor of the Scotsman, 22 May 1929.
In the discussion of the failure of nationalization schemes in
Queensland one point has, I think, failed to receive due em¬
phasis. The errors of the Labour administrations would have
1 In view of Mr. Theodore’s refusal, no formal suggestion of arbitration
was made by the British Government, but Mr. Theodore found it impossible
to obtain a loan on the London market on acceptable terms. The reopening
of the London market to Queensland borrowing was postponed until the
difficulties regarding the lease-holders and the tramway company had been
adjusted later on a satisfactory basis.
278 CONSTITUTIONAL LAW IN THE DOMINIONS
been far less serious had they been subject to the control of an
Upper House. But the Legislative Council, being nominee,
was first swamped and then induced to consent to its abolition,
with the result that Ministers had nothing to aid them in
opposing pressure from the rank and file of the party, even if
they desired to do so. It is significant that the leaders of Socia¬
list thought are steadfastly opposed to the existence of any
second chamber in this country with any effective powers.
In Western Australia Labour has been saved from some of
the mistakes of Queensland by the wise intervention of the
elected Upper House. Yet, as Sir James Mitchell pointed out
in the Council in December, State trading has on the whole
been disastrous; as against profits on the State sawmills of
£238,075, on brickworks of £22,820, on hotels of £93,691,
and on ferries of £30,128, must be set losses on shipping of
£464,000, on implement works of £156,000, and on meat
works of £743,000. The Minister for Works candidly ad¬
mitted that the implement works had not been a success, and
proposed to remedy the situation by the State going into
partnership with the Wcstralian Farmers Ltd. It is not sur¬
prising that the Council rejected this proposal to help the trade
of one company at the cost of its competitors.
Without going into the vexed issues of the Grand Trunk
Railway question, I may point out that the decision of the
Privy Council referred to by a correspondent in your issue of
to-day is not a pronouncement on the merits of the action of
the Canadian Parliament and Government, but on a technical
legal issue, and therefore is irrelevant to the question of justice.
To determine that point it would be necessary to consider
whether the treatment accorded by the Government to the
railway prior to the Act of 1919 was equitable, and whether
the terms of that measure were just. Parliaments, we may
hope, as a rule are not deliberately unjust, but it was a Cana¬
dian judge 1 who said, £ The prohibition C£ Thou shalt not steal”
1 Florence Mining Co . v. Cobalt Lake Mining Co. (1909), 18 Ontario L.R. 275,
279 >P*r Riddell ,J.
CONSTITUTIONAL LAW IN THE DOMINIONS 279
has no legal validity upon the sovereign body’, and the moral
authority of a majority decision of arbitrators is greatly
weakened when the minority consists of so eminent and so
impartial a lawyer as in this case.
7. NEW SOUTH WALES: THE ATTEMPT TO
ABOLISH THE UPPER HOUSE
To the Editor of the morning post, 13 March 1926.
The attempt to abolish the Upper House in New South
Wales imposes a very serious burden on the Governor of
the State. There can be no doubt of the legal power of the
Parliament by simple act to abolish the Council; that was
decided once for all in the case of Queensland, nor can it be
denied that the Labour party has clearly enough in the past
indicated its intention of abolishing the Council, if it had the
power to do so.
But the Governor is clearly entitled according to all prece¬
dent to decide whether he has the support of the majority ofthe
people of the State in resisting the abolition. If after the large
concession of additional members already made he remains
firm, and refuses to add further members to the Council, the
Premier can resign, in which case the Governor must find
another Premier to whom he will have to give a dissolution in
order to test the will of the people. Or the Premier can advise
a dissolution with the same result. But in no case is the Premier
entitled to ask the Secretary of State to override the Governor,
and it is a matter for satisfaction that Mr. Amery appears to
have remained impervious to suggestions of intervention.
No Imperial interests are involved, and the principles of
responsible government as understood in the Dominions ought
to be allowed the fullest play. It is, of course, clear that under
present circumstances the Upper House is quite unsatisfactory
in point of constitution, but that is not to say that a great State
like New South Wales with large powers would be well advised
rely on a single chamber.
280 constitutional law in the dominions
8. THE CONSTITUTIONAL ISSUE IN
NEW SOUTH WALES
To the Editor of the Scotsman, 16 November igs6.
The question at issue between the Premier and the Governor
of New South Wales must, as you say, be regarded from the
point of view of constitutional usage, and on that ground I
cannot find any justification for Mr. Lang’s action. Lord
Byng’s error 1 lay in seeking to effect an innovation in Canadian
public life, the refusal of a dissolution to a Prime Minister who
assured him—correctly as it proved—that the step was essen¬
tial in the interests of the country. Mr. Lang is equally an
innovator when he seeks to establish the duty of a Governor to
take steps to destroy an Upper Chamber at the bidding of an
insignificant majority of the Lower House. For such a position
no parallel exists in the history of the Dominions. In point of
fact the Governor took a somewhat extreme step when he
granted an addition of 25 members to the Council, and it
appears clear that, when he did so, he was led to believe
that it was not the intention of the Government to use these
members to abolish the Council, but merely to carry by
their votes the measures which the Upper House had declined
to accept.
It is clear that the people of the State alone can properly
decide the issue, and that Mr. Amery ought not to consent to
remove the Governor and thus deprive them of the decision.
Mr. Lang has it in his own power either to advise a dissolution
forthwith on the issue if he thinks it vital, or to promote the
passing of an Act for a referendum, which he commands
enough votes in the Upper House to secure. In either way a
decision of the electorate can be effectively procured, and at
the same time due regard be paid to the essential principles of
constitutional government.
1 See I, Nos. 38, 39, and 43.
CONSTITUTIONAL LAW IN THE DOMINIONS 281
9. NEW SOUTH WALES POLITICS
To the Editor of the Scotsman, 3 March 1927.
As the Governor of New South Wales is precluded from
defending his action in the matter of additional appointments
to the Legislative Council, I should be glad to be permitted to
comment on the Attorney-General’s attack reported in your
issue of to-day. Mr. McTiernan suggests that the Governor is
acting unconstitutionally in refusing to add any further mem¬
bers to the Council during the lifetime of the present Parlia-
mentj and is enabling a nominee body to defeat the pohcy of
family endowment for which the Government has a mandate,
and he invokes the resolution as to the status of the Governors-
General of the Dominions passed by the Imperial Conference
in support of his contention. He must, however, be perfectly
well aware that the Conference never attempted to deal with
the position of the Governors of the States, a matter which
owing to its composition lay entirely outside its province,
and the mention of this resolution is wholly unfair to the
Governor.
Mr. McTiernan also ignores the real meaning of the Gover¬
nor’s refusal. It is perfectly plain that any further addition of
members would be followed by a renewed effort to abolish the
Council, just as the Governor’s earlier grant of an addition of
twenty-five members was immediately taken advantage of to
seek to abolish the Council. Can it fairly be contended that the
Governor has any right to take a step ending in the destruction
of the Upper House on the strength of the request of a Govern¬
ment, which hasjust recovered from a severe internal crisis and
counts only 46 members in a house of 90 in the Legislative
Assembly ? Even assuming that British practice should be
applicable, would any one in analogous circumstances expect
the King to swamp the House of Lords? The Governor, most
properly, holds that there must be a vote of the electorate
before the Upper House can be abolished. Parliament has a
282 CONSTITUTIONAL LAW IN THE DOMINIONS
maximum duration of three years and was elected in June
1925, but, if the Government thinks even a year too long to
wait, it can advise an immediate dissolution, and the Governor
would doubtless gladly accord it, for all that he has asked is
that the people should be allowed to decide a matter vitally
affecting them. His attitude has brought him into serious dis¬
favour with the Labour party, but it deserves the fullest sym¬
pathy and support, as it is based on the fundamental principle
of democracy, that changes of substance in the Constitution
should only be carried out after they have been definitely and
distinctly made the subject of a general election.
10. NEW SOUTH WALES: THE GOVERNOR
AND HIS MINISTERS
To the Editor of the times, 7 July 1331.
There are two possible solutions of the disagreement be¬
tween the Governor of New South Wales and his Ministers.
The Secretary of State for the Dominions may secure an altera¬
tion of the Royal Instructions to the Governor giving effect to
the demand of the Ministers that the Government should act
invariably as advised by the Ministry. This would, of course,
constitute an important alteration of the Constitution of the
State, and it would be extremely difficult for the Secretary of
State thus to intervene on the request of a single party in New
South Wales.
The other course is simple and normal. Mr. Lang is in a
position in which he can legitimately ask the Governor for
a dissolution to test the will of the electorate on the issues in
dispute; or he can resign, in which case his successor in office
will doubtless have to advise a dissolution. In cither event
the electorate will be given the opportunity of definite decision,
which is obviously a far more constitutional procedure than an
appeal to the Secretary of State to secure an alteration in the
Constitution of the State.
CONSTITUTIONAL LAW IN THE DOMINIONS 283
11. NEW SOUTH WALES
To the Editor of the times, g July iggi.
I regret that my intervention should have induced Mr. Lang
to depart so widely from his customary decorum. 1 But I should
explain that my letter of July 7 (in The Times of July 8) was
elicited by representations from a correspondent in Sydney
that the Ministry was using passages of my writings against the
attitude of the Governor, as was done by Mr. Lang’s Govern¬
ment against Sir Dudley de Chair. This interpretation of my
views was so unsound that I felt in fairness to the Governor
that I should disclaim it.
In conferring on me a non-existent title of honour, Mr. Tang
departs sadly from the principles of his party, and his other
epithet inevitably provokes from one interested in New South
Wales stock the reminder that persons who live in glass houses
should not throw stones.
12. THE GOVERNOR AND THE PREMIER OF
NEW SOUTH WALES
To the Editor of the Scotsman, 4 February igg2.
While nothing can excuse Mr. Lang’s attitude in repudiating
payment of interest on part of the loans of the State, I regret
that Sir Harrison Moore should have lent his authority to the
suggestion that it would be constitutional, and indeed proper,
for the Governor of New South Wales to exercise the Royal
prerogative to dismiss his Ministry. The Crown, no doubt, is
interested in the maintenance of the spirit of the Federal
Union, but that does not conclude the matter. The question
is whether the Governor in this matter has such a right or
obligation as is suggested. There is nothing in the Constitution
to bear this out, and, on the contrary, the principle of the Con-
1 Mr. Lang in the Legislative Assembly attacked the writer on the score inter
alia of depreciating the credit of the State, using rather unparliamentary
language.
284 CONSTITUTIONAL LAW IN THE DOMINIONS
stitution runs counter to the idea that the Governors should
be treated as in any sense agencies of the Federal power. The
Constitution, on the other hand, supplies adequate authority
to meet the situation. Under the judicial authority it is open
to the Courts to give judgement against the defaulting State,
if such default is judicially established, and when such judge¬
ment is given there exists abundant power under the Constitu¬
tion to secure the carrying out of the Court’s decision. In these
circumstances, action by the Governor would be capable of
being regarded as the usurpation of a function not properly his.
No doubt on principle a Governor may dismiss a Ministry
which has ceased to represent the people, and which is bring¬
ing discredit on the name of the State. But the responsibility
is a grave one; a general election must follow, and at it on the
constitutional issue it might be possible to rally support for
the late Ministry from voters who would not on a clear issue
homologate repudiation. It is far wiser, in all probability,
to let matters take their normal course, and to leave it to the
electorate, when Mr. Lang is compelled to face it, to record its
verdict on a course of action happily without precedent in the
history of responsible government in the Dominions.
13. THE FINANCIAL AGREEMENTS
ENFORCEMENT BILL OF THE COMMONWEALTH
To Australian press, ig February ig%2.
If the principles of constitutional interpretation which are
applied by the Privy Council are applied to the Financial
Agreements Enforcement Bill of the Commonwealth, it would
appear that the principle of the Bill would be held valid. The
amendment of the Constitution to give power to deal with the
financial agreement with the States authorized the Common¬
wealth Parliament to make laws for the carrying out by the
parties thereto of the agreement, and it is natural to hold that
these terms are sufficiently wide to cover the procedure pro¬
posed in the Bill. If a subject-matter is within the power of a
CONSTITUTIONAL LAW IN THE DOMINIONS 285
Parliament, the mode of exercise of that power is held by the
Privy Council to be determinable by the Parliament within
the widest limits. The validity of the new measure will, of
course, fall to be determined by the High Court and not’by
the Privy Council, and the jurisprudence of that Court is less
clearly ascertained than that of the Privy Council, and there
are obviously certain possible grounds of attack on the validity
in principle and detail of the measure. But, judging from the
more recent decisions of the Court, it would appear prima facie
probable that its validity would be upheld, though it is most
unfortunate that sucn a measure should have become neces¬
sary, both on constitutional grounds and in the interests of the
good name of Australia.
14. THE EFFECT OF THE ACT ON THE
PREMIER’S POSITION
To the Editor of the Scotsman, 14 April 1932.
The decision of the High Court 1 in favour of the validity of
the Financial Agreements Enforcement Act of the Common¬
wealth Parliament has added greatly to the difficulty of the
position of the Governor of New South Wales. Hitherto, no
doubt, Mr. Lang has been able to allege that his actions, how¬
ever irregular, might be made out to be within the law, and a
Governor cannot claim to be able to reject the opinion of the
legal advisers of the Ministry. The High Court’s ruling, how¬
ever, renders it impossible any longer to deny that Mr. Lang
is violating the Constitution, and the Governor has now to face
the issue how far he can acquiesce in the violation of a law
whose authority, as a representative of the Crown, he is under
a clear duty to uphold.
The events in New South Wales, like those in the Irish Free
State, are a striking reminder of the difficulties of working
responsible government if Ministries are determined to ignore
legal obligations. The dispatch of a British war vessel to
1 See Keith, Journ. Comp. Leg. xv. 118 f.
286 CONSTITUTIONAL LAW IN THE DOMINIONS
Newfoundland illustrates another side of the responsibilities
of a Governor. It is clear that it is the elementary duty of
a Dominion Government to maintain order locally by its own
authority; when it has to seek the aid of Imperial forces the
Ministry places itself in a position in which it cannot claim
exemption from a measure of control by the Governor. If
the Imperial Government has to intervene to prevent the
possibility of overthrow of constituted authority by mob
violence, it is bound, through the Governor, to seek such a
reorganization of the Ministry as shall remove the risk of
further manifestations of popular displeasure with a dis¬
credited Administration, and the sooner this is accomplished
the better in the interests of Newfoundland.
15. THE CONSTITUTIONAL POWERS OF THE
GOVERNOR
To AUSTRALIAN PRESS, 14 April /pjP.
The decision of the High Court as to the validity of the
Financial Agreements Enforcement Act is final in the absence
of a certificate from that Court that the matter is one suitable
for determination by the King in Council. It has repeatedly
been laid down that matters of the powers of the Common¬
wealth and the States inter se must be disposed of in Australia,
and the Privy Council has no power and no desire to intervene
in such issues. The High Court decision therefore determines
finally the validity of the Act which under s. 5 of the Common¬
wealth of Australia Constitution Act, 1900, is now binding on
the Courts, judges, and people of every State notwithstanding
anything in the laws of any State. Mr. Lang’s attitude there¬
fore is a deliberate defiance and a misuse of the governmental
powers of the State in an endeavour to defeat the provisions
of the Commonwealth Constitution.
Hitherto in his actions, both in respect of the internal affairs
of the State and its relation to the Commonwealth, Mr. Lang
no doubt has been able to allege that he has acted without
CONSTITUTIONAL LAW IN THE DOMINIONS 287
actual illegality, or at least that his measures might possibly
be defended as being within the law to such a degree that he
could induce his legal advisers to claim that his action was
not illegal. But, in face of the decision of the High Court, it is
plain that this excuse is no longer available, and the Governor’s
position towards Mr. Lang has been made far more delicate
than it has hitherto been. The Governor is normally entitled
to accept the Premier’s statement of the legal position if forti¬
fied by a formal legal opinion; but he cannot disregard the law
of the land when finally declared by the High Court, and it is
his right and indeed his duty to refuse to be party to any illegal
action of the Premier and to decline assent to any Order in
Council which in substance is illegal. Moreover, he will be
under the obligation of considering most seriously whether it
will be possible for him to leave Mr. Lang the authority of the
Premier’s office in order to defy the law of the Constitution.
While the difficulty of the Governor’s position must be fully
recognized, it is clear that the paramount duty of the King’s
representative is to carry out the law of the Constitution, and
that he is entitled to demand from Mr. Lang obedience to
that law, and in the event of refusal of the demand to exercise
his constitutional power of removal. It may be hoped that on
mature consideration Mr. Lang will accept the ruling of the
High Court and conform his action to the law of Australia.
16. THE DUTY OF THE GOVERNOR TO
VINDICATE THE LAW
To AUSTRALIAN PRESS, IJJ May IQ^S.
The attitude of the Premier of New South Wales towards
the Commonwealth Government and High Court has as¬
sumed the definite form of deliberate defiance. The Premier
was doubtless entitled to contest the validity of the Common¬
wealth legislation to enforce the financial agreement in the
Courts, but once a decision contrary to his contentions was
delivered, he was under an absolute obligation to obey the
law of the Commonwealth. Instead of accepting the law of
288 CONSTITUTIONAL LAW IN THE DOMINIONS
the land, he has attacked the impartiality of the High Court
and made successive efforts to defeat the methods adopted
by the Commonwealth to enforce performance of the duties
of the State. He has accused the rest of Australia of attacking
the State, and his proposed taxation of mortgages is clearly
motived by the desire to inflict the maximum of loss on his
political opponents in the State. In these circumstances it
would have been impossible for the Governor to justify
acquiescence in the continued tenure of office by the Premier;
the Governor is under a clear obligation to secure the obser¬
vance of the law of the Commonwealth, and, if his Premier
refused to obey that law, the Governor would have incurred
personal responsibility had he failed to take action. More¬
over, it is essential that the people of New South Wales shall
have the opportunity of deciding whether they desire to re¬
main within the Commonwealth and the Empire. The British
Government has intimated in connexion with the Irish Free
State that it cannot at Ottawa enter into commercial agree¬
ments with a part of the Empire which has violated an
agreement, and clearly, if New South Wales is determined
to repudiate its indebtedness, it cannot expect to share the
advantages for its exports which would normally result from
the Ottawa Conference.
In the circumstances it is clear that the Premier ought to
have advised the reference of these issues to the people, and
that he has acted unconstitutionally in compelling the Gover¬
nor to intervene in order to secure to the people their right of
deciding their destiny both as regards the Commonwealth and
the Empire.
17. THE PROPRIETY OF THE GOVERNOR’S
ACTION
To the Editor of the Scotsman, 14 May 1932.
Cordial recognition is due to the Governor of New South
Wales for the great ability with which he has acted during
CONSTITUTIONAL LAW IN THE DOMINIONS 289
the difficult position which has so long prevailed in the State.
For months he has been subjected to pressure from the forces
opposing Mr. Lang to force the resignation of that Minister,
but he has deferred action until he was not merely entitled,
but constitutionally and legally bound, to intervene. So long
as Mr. Lang kept within the limits of the law, it would have
been unwise for the Governor to act against his advice. But,
when Mr. Lang deliberately defied the legislation of the
High Commonwealth after it had been declared valid by the
Court, and continued to issue illegal orders to the servants
of the Crown, the Governor had no alternative but to require
him to withdraw these orders, and, on his refusal to do so, to
remove him from office. If he had failed thus to act, he would
have implicated himself in the illegalities of the Minister, for
the law of the Commonwealth binds the Governor no less
than the Ministry and people of the State.
There is, of course, another reason rendering an election
essential. The British Government has intimated that at
Ottawa it cannot enter into agreements with a part of the Em¬
pire which has repudiated an existing agreement. Clearly, if
the people of New South Wales are determined to break their
obligations towards holders of their governmental securities,
they cannot expect to be included in the scope of tariff advan¬
tages given to the rest of Australia. The election now to be
fought is vital to determine whether New South Wales desires
to remain effectively linked not merely to the Commonwealth,
but also to the Empire as a whole. 1
18. THE KING’S MINISTERS IN MALTA
To LORD STRICKLAND, 20 May I$2g.
I have your letter of the 15th instant and have not the
slightest doubt that the Ministers in Malta are properly to be
described as the King’s Ministers in Malta. I cannot indeed
1 The election gave a decisive majority to the new Government, which has
secured legislation held valid by the Privy Council under which the Upper
House is elected by the members of the two Houses.
U
2 go CONSTITUTIONAL LAW IN THE DOMINIONS
understand on what ground this appellation could be ques¬
tioned. The executive power in Malta is, of course, vested
in the King, and the position of Ministers as His Majesty’s
Ministers is emphasized by the Letters Patent themselves.
Clause 54 (2) deliberately compels the Governor to appoint
in the name of the King and even provides that the offices
shall be held at the King’s pleasure, though in Canada, the
Commonwealth, and the Union tenure is at the pleasure of the
Governor-General. It may be added that the Letters Patent
are careful to require by clause 41 enactment of laws in the
name of the King, no doubt as part of the purpose to show
that the responsible government system of Malta is essentially
of the normal type, despite the limitations within which it
works. The Governor will naturally refer to Ministers as ‘my
Ministers’ as is still the practice in the Dominions, and there
can be no objection to describing the Ministers as ‘the Gover¬
nor’s Ministers’. But ‘Ministers of the Maltese Government’
appears to me to be an impossible description and wholly
unwarranted.
Ministers are Ministers of the Crown carrying on functions
in respect of the government of Malta, just as British Ministers
are Ministers of the Crown carrying on functions in respect
of the government of the United Kingdom.
19. THE VALIDITY OF LAWS PASSED BY THE
JOINT SITTINGS OF THE PARLIAMENT OF MALTA
(opinion, 20 February 1930.)
I have had the advantage of perusing the opinion of Sir
Thomas Inskip dated February 6, 1930, on the validity of
Malta Act No. 1 of 1929. With all deference to the views
of so distinguished a lawyer, I must express my unhesitating
opinion that the analogy which he has drawn between the
Parliament of Malta and a corporation created by Charter,
or by or under an Act of Parliament, is wholly invalid and
runs counter to all authority. It ignores the fundamental
CONSTITUTIONAL LAW IN THE DOMINIONS 291
fact that, as the Judicial Committee of the Privy Council
has repeatedly laid down, a Colonial Legislature does not
possess a delegated power. It has, subject to limitations im¬
posed by Imperial Act, powers of legislation as large and of
the same nature as those of Parliament itself. The extent of
that authority can be seen by reference to Hodge v. Reg. (1883),
q App. Cas. 117; Powell v. Apollo Candle Co. (1885), 10 App.
Cas. 282, which have been consistently followed by the Courts,
and to the case of Reg. v. Burah (1878), 3 App. Cas. 889, where
the same doctrine was applied even to the non-representative
Indian legislature. Moreover, it has expressly been laid down
in the case of Sloman v. Governor and Government of Mew Zealand
(1:876), I C.P.D. 563, that a Colonial Government is not a
corporation and cannot effectively be served with a writ, nor
will an order for substituted service be made. (Compare Dicey
and Keith, Conflict of Laws (ed. 4), pp. 208, 209.)
There are, of course, instances of colonies which were
created as corporations on the English model by Royal Char¬
ter inserting express provisions to this effect, such as Massa¬
chusetts Bay, Rhode Island, and Connecticut, but these forms
of government were admittedly imperfect, and they passed
away at the American Revolution. It is, however, instructive
to note that, during the existence of these Constitutions, the
only ground on which any law was annulled by the Privy
Council was that of repugnancy to the law of England, al¬
though it is undisputed that laws were frequently passed by
Legislatures improperly elected. This illustrates the funda¬
mental rule that it is not the function of the j udiciary, except
by express delegation of authority, to attempt to control the
composition of legislative bodies, a matter which is essentially
a part of the privilege of such bodies.
I agree, of course, that any attempt of the Maltese Parlia¬
ment to exercise powers which are not conferred upon itwould
be ultra vires, but this doctrine, as evidenced by the case cited,
Attorney-General for the Commonwealth of Australia v. Colonial
Sugar Refining Co. Ltd., [ 19 1 4 ] A-C. 237 > an d by th e other
292 CONSTITUTIONAL LAW IN THE DOMINIONS
cases which are adduced in the text-books, has reference to the
substance of the legislation, not to the issue, which alone is
here in question, of the regularity of the constitution of the
Legislature by which the legislation was passed. It is ex¬
tremely difficult to believe that, if it had been competent to
challenge legislation on such a ground, such action should not
have been on record. 1
20. THE MALTA COMMISSION
To the Editor of the Scotsman, 13 February 1932.
It is impossible to regard with much satisfaction the result
of the prolonged meditations of the Royal Commission on
Malta. The essential result of their findings is that responsible
government should forthwith be restored to the island, but
they fail to produce any satisfactory evidence to show that
the cause which brought about its suspension has been eradi¬
cated. They can only say that after conversations with the
Bishops they feel sure that any new pastoral which may be
issued will differ from that of 1930, which rendered it impos¬
sible for the election then pending to take place. This is
wholly inadequate; it in no way binds the Bishops, still less
the Holy See, and, if as a matter of conscience the Bishops feel
bound to repeat even if less emphatically their warnings of
1930, the result must be fatal to the Constitutional party. If
the Government acts on the advice now given, it is simply
placing itself at the mercy of the Bishops, who can per-
fectly justly say that they cannot be bound by any views
of their intentions formed by the Commission, or that the
1 The issue here raised was created by the decision of the Maltese Court that
two of the Senators were not duly appointed, and the ruling of the Privy Council
in Strickland v. Grima ([1930] A.C. 283) that no appeal lay in such a case. An
amendment to the Constitution regarding the relations of the two Houses had
been passed at a Joint Session with the use of the votes of these Senators, and
the question arose whether this amendment and all laws enacted under its
provisions were not void. Sir T. Inskip’s opinion of Feb. 6, 1930 (published
in Malta), held that a distinction must be drawn between an Act of the British
Parliament and an Act of the Parliament of Malta.
CONSTITUTIONAL LAW IN THE DOMINIONS 293
attitude of their opponents has forced them to alter their
views. 1
The Commission again is prepared to proceed with the
restoration of the Constitution without the passage of an
Imperial Act to define the validity of the legislation of the
Parliament and of the Crown in Council which has been
impugned by the Court of Appeal, and the validity of which
was denied by the representatives of the Nationalist party.
It is perfectly clear that the British Government is under an
obligation to legislate to determine absolutely the validity of
all measures assented to by the Crown, or enacted by its
authority; unless this is done, the result can only be chaotic.
Moreover, the Commission has failed absolutely to suggest any
remedy for a glaring flaw in the Constitution—the absence
of any impartial tribunal to deal with election petitions.
The Privy Council, after three months’ consideration, has
decided that it cannot hear appeals in these cases, and it is
significant that the Commission has not been able to deny
that there is ground for the feeling of the Constitutional party
that justice cannot be expected from the Court of Appeal in
this matter. No settlement can be satisfactory which does not
secure that issues of this kind are handled impartially.
One service the Commission has rendered: it has made it
clear beyond question that under the Nationalist regime the
spirit, if not the letter, of the Constitution has been violated
as regards the position of the English language. The Univer¬
sity, which represents the views of that party, has insisted on
lectures being delivered in Italian only, and Act IX of 19235
by enforcing instruction pari passu in English and Italian,
not only in secondary but also in elementary schools, has pre¬
vented children in these schools acquiring any useful know¬
ledge of either English or Italian. This has been done in the
face of the Constitution, which expressly forbids legislation or
administration which shall tend to restrict the use of English
1 This prediction was fully verified at the elections, which were controlled by
clerical influence.
294 CONSTITUTIONAL LAW IN THE DOMINIONS
in education. When choice was permitted to parents, as for
twenty-one years before 1923, 97 per cent, had the good sense
to choose English, which for all practical purposes is of infinitely
greater value to the Maltese than Italian. The facts dispose
for good of the denial of the desire of the Nationalist party to
favour Italian at the expense of English.
' 21. ELECTIONS IN MALTA
To the Editor of the times, 21 May 1932.
It seems often to be forgotten that Canada between 1875
and 1878 was confronted by much the same problem as is
Malta to-day. It was solved partly by the wise intervention
of the Pope, but partly by a factor whose operation is un¬
happily denied in the case of Malta. In the crucial instance
of the petition brought against the election of Langevin the
Quebec Court held that a candidate might use clerical in¬
fluence to secure his election without contravening the law.
Had this judgement stood it is impossible to say how far the
matter would have been carried, but happily appeal lay to
the Supreme Court of Canada, a tribunal not under Roman
Catholic influence in the sense that was the Quebec Court.
In Malta, unhappily, the Constitution gives tire final decision
of electoral petitions to the local tribunal, denying an appeal
to an impartial body such as is the Privy Council. For this
error it seems impossible to excuse wholly the Imperial
Government, to which, of course, the Canadian parallel must
have been present.
22. THE TROUBLES IN MALTA
To the Editor of the Scotsman, 2 November 1933.
Events in Malta demonstrate the complete inability of the
Royal Commission and the British Government to foresee the
necessary outcome of the policy which has been followed. 1
1 The Constitution of Malta had to be suspended in operation and all legisla¬
tive power vested in the Governor.
CONSTITUTIONAL LAW IN THE DOMINIONS 295
We were assured that the Roman Catholic hierarchy would
not use their control of the people to destroy Lord Strickland’s
party; in fact, by exercise of their spiritual power they gave
a sweeping victory to the Nationalists at the expense of the
Government, which, for the first time in Maltese history, had
favoured the Maltese language and promoted the interests
of the workers as opposed to those of the Italian intelligentsia.
We were assured, further, that the intelligentsia were loyal a
to the British connexion. Since attaining power, they have
worked indefatigably to defy the Constitution, and to force
on the children of Malta the study of Italian in addition to
English and Maltese, though knowledge of Italian is of infi¬
nitely less value to the Maltese than knowledge of their mother
tongue or English. It is, of course, absurd to expect loyalty;
the Italians are linked to Italy by race, culture, tradition, and
language, and the one thing which separated them, the treat¬
ment of the Pope by Italy, has disappeared with the concord
attained under the Fascist regime. That they should share
the ideals of Italy and contemplate the possibility of Malta
becoming Italian is perfectly natural, however diplomatic it
may be for their leaders to deny the fact.
Great significance attaches to the fact that the British
G ovemmcnt, despite its acceptance for India of the unques¬
tionably sound doctrine that responsible government is
impossible without control of the police, has already had to
deprive the responsible Government of Malta of its authority
in this regard. Malta is strongly garrisoned by British troops,
and is a naval base; yet, in face of this overwhelming force,
the Maltese Government has evidently been able to use its
authority over the police in such a manner as to demand the
taking of power into British hands.
The assurances given to us that restricted self-government
was workable have been abundantly disproved for Malta.
For India they have still less cogency. Doubtless matters have
been carried so far by the present Government that surrender
of power there is inevitable, and in these circumstances the
296 CONSTITUTIONAL LAW IN THE DOMINIONS
pretended safeguards will serve no purpose save that of delud¬
ing into false security those who believe in them, and destroy¬
ing the once chance of success in the experiment, which would
be afforded by reposing complete confidence in the willingness
of the Indian people to afford just treatment to British officials,
commerce, and investors in return for the grant of full auto¬
nomy.
23. THE STATUS OF NEWFOUNDLAND
To the Editor of Canada, 18 October 1924.
The Prime Minister of Newfoundland is certainly mistaken
in his assertion, cited in your issue of this date, that the status
of the Island is that of a colony, unless this utterance is inter¬
preted in the narrowest legal sense. Newfoundland, it is true,
is legally a colony in view of s. 18 (3) of the Interpretation Act,
1889, but the same statement applies to the Dominion of
Canada, the Commonwealth of Australia, the Union of South
Africa, and the Dominion of New Zealand, and therefore this
fact has no decisive bearing on the status of the Island. That
status does not depend on the view of the Colonial Office, but
on the decision taken by the Colonial Conference of 1907,
which determined to alter its nomenclature to that of Im¬
perial Conference 3 , and to style the territories other than the
United Kingdom represented at it ‘self-governing Domi¬
nions 3 , or, more briefly, ‘Dominions’. That resolution has
never been rescinded, and the status acquired by Newfound¬
land as one of the Dominions cannot be varied except by the
agreement of an Imperial Conference.
Until 1919 Newfoundland enjoyed in every respect full
equality with the other Dominions, but by the decision to
secure membership of the League of Nations for the four
great Dominions alone, Newfoundland received as regards
international relations a definitely inferior position to those
Dominions, as was of course inevitable having regard to her
size and population. But in all other questions Newfoundland
CONSTITUTIONAL LAW IN THE DOMINIONS 2 97
remains possessed of the full position of a self-governing
Dominion, a term applied to her in British Acts of Parliament
such as the Copyright Act, 1911. The correct title of the
Island is either Newfoundland or Island of Newfoundland
and its Dependencies, though both Colony of Newfoundland
and Dominion of Newfoundland appear to have some official
currency.
24. GREAT BRITAIN AND NEWFOUNDLAND
To the Editor of the Scotsman, 15 December iggg.
The Dominions Under-Secretary’s reason for refusing Mr.
Maxton’s proposal for a plebiscite on the Newfoundland
Constitution 1 suggests that he desires to vie with his chief in
ignorance of constitutional law.
(0 Ever since 1866 it has been established constitutional
law (a) that no Government or Legislature can hand over
to the British Government and Parliament the duties with
which it has been entrusted without the concurrence of the
British Government and Parliament, and (b) that the latter
have the right to impose such conditions as they think fit on
the surrender. It is clearly incumbent on the British Govern¬
ment, before any proposal is made to Parliament, to satisfy
itself that the proposal made from Newfoundland represents
the wishes of the people. T 0 say that it is constitutionally
within the powers ol the Newfoundland Government and
Legislature to decide whether or not a plebiscite should be
taken on the present issue, and that the British Government
or Parliament could not demand one, is, accordingly, an in¬
defensible position. Moreover, its absurdity becomes patent
when it is remembered that the present Government in New¬
foundland never suggested to the electorate that it proposed
' J ouma I n f Comparative Le/’islalion, xvi. 25-39. The Constitution is sus-
pended under the Newfoundland Act, 1933, and legislation is effected by the
Governor and a Commission, controlled by the Secretary of State for Dominion
Affairs.
298 CONSTITUTIONAL LAW IN THE DOMINIONS
to surrender self-government, and that it has not a shadow
of a mandate for this purpose.
(2) The only excuse, in fact, for dispensing with a consulta¬
tion of the people, either by an election or a plebiscite, rests
on the belief that the British grants of £2,000,000 up to 1936,
and indefinite sums thereafter, are sufficient to secure general
assent, and to render unnecessary the serious difficulties of
either an election or a plebiscite at this time. Petitions against
the proposal seem not to be forthcoming, and, if this is so,
action is probably constitutionally justified, but on this ground
only, not on the proposition alleged by the spokesman of the
Government, which would give a chance majority in a Domi¬
nion Legislature the right to surrender the self-government
of the Dominion with utter disregard of the public.
(3) It is not surprising that Mr. Thomas evaded answering
Mr. Mander’s request for a statement of the case against the
union of Newfoundland with Canada. The present debacle
has been rendered possible only by the existence of too wide
powers in the hands of a poorly educated and economically
dependent electorate, and, as a province of Canada, New¬
foundland would not have been able to ruin herself by reckless
borrowing, nor would the issue of default on trustee securities
have arisen. It is most unfortunate that, as in 1895, financial
difficulties in Canada have caused the Dominion Government
to miss the chance of completing a union which seemed in
1867 to be assured at an early date. Much as one sympathizes
with Newfoundland’s preference for autonomy, in view of the
doubt whether the country is capable of wise use of its free¬
dom it may be hoped that in the next few years the question
of uniting Newfoundland with the Dominion may be carefully
explored. In any case, it seems incredible that Newfoundland
will ever be capable of developing Labrador.
(4) Mr. Thomas has once more, unhappily, emphasized
the view that the Commonwealth consists of discrete units,
and that the Dominions are not vitally concerned with what
happens to Dominion status. This attitude, of course, is a
CONSTITUTIONAL LAW IN THE DOMINIONS 299
negation of the doctrine of inter-imperial consultation and of
the vital unity of the Commonwealth, and tells directly in
favour of the advocates of the rights of neutrality and seces¬
sion. If British action in the case of Newfoundland is as fully
justified as prima facie it seems to be, consultation of the Domi¬
nions should surely have evoked their approval and sympathy.
It may be, however, that the indefinite suspension, leaving to
the British authorities the sole power of determining on re¬
sumption of local authority, has aroused Dominion criticism,
and unquestionably it is the weakest feature of the proposal!
25. THE AWARD OF HONOURS: HEREDITARY
TITLES IN THE DOMINIONS
To the Editor of the times, 28 April igig.
Several distinct issues are raised by the controversy in
Canada 1 on the question of honours, which has caused some
embarrassment both to the Imperial and Dominion Govern¬
ments.
In the first place, it should be made clear whether or not
the bestowal of peerages on residents in Canada, which was
the immediate cause of the outbreak of popular feeling in the
Dominion, had the approval of the Prime Minister of Canada.
If Sir R. Borden gave his assent to the creations, it is only fair
that he should accept the burden of responsibility, which at
present appears to be east upon the Imperial Government.
In the second place, it has been obvious since 1911 at least
that the overwhelming weight of democratic opinion in Can¬
ada, Australia, and New Zealand is firmly opposed to any
attempt to create in these Dominions a class of persons hold¬
ing hereditary titles, and, in so lar as Dominion Governments
At the wish of the House of Commons expressed by resolution no honours
were conferred on persons domiciled or ordinarily resident in Canada from
1919 to 1934, when recommendations were again made to the Grown by the
Prime Minister. His action was taken without obtaining a rescission of the
address to the Crown of 1919, and must be regarded as contrary to the spirit
of the Constitution.
300 CONSTITUTIONAL LAW IN THE DOMINIONS
have not given effect in their recommendations for honours
to this feeling, their action may not unfairly be attributed
to the fact that, under the existing system of the award of
honours, responsibility has been so vaguely distributed be¬
tween the Dominion and the Imperial Governments that the
former have been able to evade accepting their full measure
of accountability. The remedy for this position is clear: the
question should definitely be brought before the next meeting
of the Imperial Conference, and the discussion and its result
made public. There is no need of mystery as regards the
relation of the Imperial and Dominion Governments in this
matter.
Thirdly, the time has surely come, since the recognition of
the national status of the Dominions, to accept the principle
that no honour of any kind should be conferred on any person
normally resident in a Dominion save on the recommenda¬
tion or with the assent of the Government of the Dominion. 1
No other position is compatible with the self-respect of the
Dominions, and no logical argument can be adduced against
the proposal. As the honours would still remain Imperial, it
would still rest with the British Government of the day to
fix the proportional share of distinctions to be allotted to the
Dominions; but the entire responsibility for the selection of
recipients would rest with the Governments of the Dominions,
normally, no doubt, with the Prime Minister. Such an arrange¬
ment would certainly be acceptable to Canada, and at the
next Imperial Conference it might well be adopted for the
whole of the Dominions.
26. THE DOMINIONS AND THE TITLES OF THE
ROYAL FAMILY
To AUSTRALIAN press, 31 March 1927.
In reply to the suggestion of the Sydney Sun that the Duke
of York should be given the title ‘Duke of York and Canberra*,
1 The Irish Constitution thus provides, and neither the Free State nor the
Union secures the grant of honours to persons therein resident.
CONSTITUTIONAL LAW IN THE DOMINIONS ooi
it is certainly within the Royal prerogative to confer the title
‘Duke of Canberra’ on the Duke of York. Such action would
have to be based on the recommendation of the Common¬
wealth Government, with approval of Parliament and the
concurrence of the British Government. So important a step
could only be taken after consultation with other Dominions
and preferably as part of a scheme for the recognition of the
Dominions and India in the styles of the royal family. Great
practical difficulties and possibly rivalry between the Do¬
minions might easily be encountered in the attempt to assign
titles. It is extremely doubtful if such a proposal would meet
with popular acceptance even in Canada or South Africa,
and it would certainly not be welcomed in the Irish Free State.
The King himself forms the essential bond of unity of all the
Dominions, and it seems unwise to impair in any degree His
Majesty’s unique position in the fabric of the Empire.
27. THE RELATION OF THE COMMONWEALTH
AND THE STATES AS REGARDS HONOURS
To Australian press, 4 January igsy.
The protest of the Government of South Australia against
the conferring of a knighthood on Mr. Gordon, on the recom¬
mendation of the Commonwealth Government against the
wishes of the State Government, is natural; but the Common¬
wealth Government can hardly be said to have acted unconsti¬
tutionally in the matter. 1 The Commonwealth Constitution
provides for the existence of the Commonwealth and State
Governments, each with a definite sovereignty, and recom¬
mendations for honours in respect of State and Common¬
wealth services respectively appertain to the State and the
Commonwealth, neither having any right of interference with
the recommendations of the other. The Constitution, how-
1 This comment was elicited by an inquiry regarding the propriety of the
conferring of a knighthood on a former member oi'the Commonwealth Parlia¬
ment, a resident of South Australia, to which exception had been taken by the
State; see The Times, Jan. 2, 1925.
302 CONSTITUTIONAL LAW IN THE D OMINIONS
ever, can only work successfully by reason of co-operation
and mutual consideration, and from this point of view the
action of the Commonwealth in insisting on a recommenda¬
tion in face of the wishes of the State Government may be
regretted. The incident illustrates the advantages of the posi¬
tion adopted by Canada, under which honours are no longer
conferred on persons resident therein.
28. BRITISH POLICY IN CEYLON
To the Editor of the Scotsman, 31 July 1934.
It is impossible not to view with considerable anxiety the
departure from British policy involved in the decision to legis¬
late by Order in Council, so as to regulate by quota the impor¬
tation into Ceylon of foreign cotton and artificial silk piece
goods. The Ceylon Ministry has refused to adopt this course,
because they hold that it is contrary to the interests of the
people of the island to lose the cheap imports which alone
they can afford to buy, unless, indeed, the British Govern¬
ment is able to grant such additional preferences as will
strengthen the economic position of their constituents, and
enable them to pay higher prices and to purchase Lancashire
goods. The weight of the contentions of the Ministry seems
very great, and it seems most unfortunate that the Colonial
Secretary appears to be unable to controvert their arguments
by showing that his policy is really in the best interests of the
people of Ceylon. It is, of course, irrelevant to appeal to the
general advantages of Imperial Preference. The Ceylon
Ministry is willing to exchange preferences; what it denies
is the right of the Imperial Government to determine what is
best for Ceylon.
The contrast with the governmental attitude in respect of
Lancashire and India is glaring and difficult of explanation.
We are told that only by conciliation can British exports be
sold in India, and that legal safeguards will merely ensure the
refusal of the people to consume goods from Lancashire. Why
CONSTITUTIONAL LAW IN THE DOMINIONS 303
is the same doctrine denied in the case of Ceylon? It would
be deplorable if the reason were to be found in the orderly
character of the methods employed in the past by the Cey¬
lonese in order to obtain the concession of some measure of
self-government. Surely that can form no moral justification
for compelling the people of Ceylon to purchase goods from
Lancashire, and reversing the honourable tradition of ruling
the Colonies primarily in the interest of their people, and not
for the profit of the United Kingdom.
INTERNATIONAL LAW
i. THE FUTURE OF THE GERMAN COLONIES
To the Editor of the Scotsman, ii March 1018.
The importance of the principle involved in Mr. J. Boyd
Kinnear’s criticism in your issue of to-day of Mr. Asquith’s
attitude towards the disposal of the German colonies seems
to render some reply desirable. In the first place, it cannot
fairly be contended that the German acquisition of these
territories is without the shadow of a right. Germany acquired
them by methods which did not differ substantially from those
adopted by the other nations concerned, and the gravamen
of the charge against her is not that of unlawful acquisition
but the fact that her rule has been based on the deliberate
exploitation of the native population, and that she has in the
case of East Africa deliberately planned the creation of a
military organization which menaces the security of northern
and southern Africa alike. It would, however, be clearly in
flat contradiction of the principles for which the United King¬
dom and the Dominions are contending in this war, if the
right of conquest were set up as the ground for retaining the
German colonies. Their disposal must, if it is not to be the
seed of future wars, be determined by the Peace Conference,
whose decision must be based on the consideration of the wishes
and the interests of the native population and on the necessity
of preventing the territories being used as a base of mili tary
or naval operations of an aggressive character. It is legitimate
to hope that any conference would recognize that these prin¬
ciples required the recognition of the claim of the Union of
South Africa to German South-West Africa, of Australasia
to the German possessions in the Pacific, and of the United
Kingdom and the Union to such arrangements in East Africa
as would render it impossible for Germany to found an African
empire. But mere retention by right of conquest, even if
practicable, would afford no chance of lasting peace.
g 0 8 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
2. THE PEACE TERMS OF PRESIDENT WILSON
To the Editor of the Scotsman, 30 September 1918.
The importance of the peace terms proposed by the Presi¬
dent of the United States may justify some comment on the
questions discussed in your leader of this date. In the first
place, it would seem that the President’s speech on September
27 does definitely contemplate the inclusion of Germany in
the League of Nations: his whole argument for the formation
of such a League by the treaty of peace rests on the necessity
of including Germany, and he demands the establishment of
effective means to carry out the peace settlement, because he
contemplates that Germany will be a member of the League.
If this were not his view, his objection to the formation of the
League before the treaty of peace would be without meaning.
In the second place, the President’s terms do affect in one
important aspect the Paris resolutions. They do not, I agree,
touch upon the relations inter se of parts of one nationality,
and therefore are not inconsistent either with the French
policy of preserving to the metropolis the trade ofher colonies,
or with preference between the different parts of the British
Dominions. Nor, of course, do they demand the adoption by
any nation of merely revenue tariffs. On the other hand, it is
impossible to deny that they do not permit of any differential
treatment by one member of the League of Nations of another
member. They demand that Germany should abandon her
economic plans for the East, but they are equally inconsistent
with any scheme for preference among members of the
Western Alliance. Nor is this policy in any way surprising;
it must be remembered that the present tarifl of the United
States is based on the principle of according the same treat¬
ment to all nations which do not differentiate against the
United States. Whether, of course, this attitude is practicable
or desirable may be open to question, but it seems impossible
to read any other sense into the language of the President.
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 309
3. AMERICA AND ARMENIA
'J. 0 the Editor 0 ^ the Scotsman, i ^November xqjq
While lending your support in your issue of to-day to the
ministerial criticisms of the reluctance of the United States
to assume responsibility for any part of the Turkish dominions,
you seem to contemplate that in the ultimate issue America
will accept a mandate for Armenia, with or without Con¬
stantinople. Is there, however, any warrant for the assump¬
tion? The evidence available seems to me to show that, while
in some form the Peace Treaty with the Covenant of the
League of Nations may be approved, the Senate will never
consent to the acceptance of a mandate, and that in this atti¬
tude it will have the support of the vast body of Americans. 1
We may regret this attitude of the United States, but what
moral right have we to censure it? The United Kingdom,
France, Italy, and Russia, by secret treaties still withheld
from the public, and communicated to the President only
when in Paris, agreed to divide the Turkish dominions.
These arrangements are now largely being carried out, with
the admission of Greece to a share, and the omission of Rus¬
sia. What inducement is there to the United States to accept
a mandate for the territories which the Tsar claimed? Not
only would large forces and much expenditure be required,
but the United States would inevitably be inextricably in¬
volved in the most complicated and dangerous of European
issues whence war with Russia or a Turkish rebellion might
easily arise! Small wonder if American opinion lays stress on
the fact that the European Powers have far more effective
bases of operation, that they have already secured politically
advantageous areas of mandate, and that the moral duty of
providing for Constantinople and Armenia rests upon them,
and not upon an extra-European Power, which has declined
to seek any territorial advantages from the war.
1 In fact, the United States after rejecting the Covenant of the League was
offered and refused the mandate.
310 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
4. DOMINION STATUS: NEW ZEALAND AND
SAMOA
To the Editor of the times, 22 October igig.
How little the fundamental change of the status of the
Dominions as the result of the Peace Conference has been
realized is shown clearly by the report in your issue of October
20, of Sir J. Allen’s statement in the New Zealand Parliament
that an Imperial Order in Council would enable New Zealand
to legislate for the peace, order, and good government of
Samoa. So long, indeed, as New Zealand was no more than
a British Colony, such an Order in Council was necessary
to enable the New Zealand Parliament to legislate for terri¬
tories beyond the colonial limits, for the Judicial Committee
of the Privy Council held—though not without protest from
New Zealand Judges—that the power of a Colonial Legisla¬
ture extended only, in the absence of express Imperial autho¬
rity, to the territorial limits, including the territorial waters,
of the Colony.
But New Zealand will hold Samoa in future only as a
mandatory of the League of Nations, of which she is an origi¬
nal member, and not as a British Colony under an Imperial
grant. The restrictions on the power of New Zealand would
apply only to the colonial status, and with the disappearance
of that status it may confidently be said that not merely the
Courts of New Zealand, but the Judicial Committee itself
would hold that the Dominion Parliament has of its own
right full authority to legislate for Samoa. It may further be
suggested that in its legislation for Samoa the Dominion
Parliament is not subject to the Royal right of disallowance
applicable to colonial enactments, and that no right of appeal
to the Judicial Committee exists in respect of judgements
rendered in Samoan Courts or in New Zealand Courts on
appeals from Samoa. 1
1 See Kelson v. Braisby, [1934] N.Z.L.R, 559 and. 636; Journal of Comparative
Legislation, xvi. 295, 296.
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 311
There are other complex problems, of which General Smuts
appears to be conscious, involved in the new regime. It is to
be hoped that they are already occupying the most anxious
consideration of His Majesty’s Government, for on their just
solution depends the effective maintenance of the Imperial
unity revealed by the war.
5. SECRET NEGOTIATIONS AND TREATIES
To the Editor of the Scotsman, 31 January 1320.
It is with equal surprise and regret that I observe from
your issue to-day that the Coalition candidate for Paisley
defends the withholding from the public of secret negotiations
and treaties affecting international affairs. I had hoped that
the experiences of the war would have taught even the most
convinced Conservative that every consideration of national
security demanded that the public should have the fullest
information on foreign policy, of which they should be the
ultimate arbiters.
The outcome of the policy of secret negotiations and com¬
mitments is exemplified with sufficient clearness in the mani¬
festo just issued by Mr. Clynes and others, in which they seek
to lay down a foreign policy for the nation, and warn the
Government that the Labour party will not, if in power
during the next year or two, recognize as valid secret military
or diplomatic commitments directed against the Bolshevik
Government in Russia. Attempts of this kind by representa¬
tives of any sectional interest to dictate policy are unconstitu¬
tional and open to grave objection, but it cannot be denied
that they are not merely inevitable, but also in some manner
justified, so long as a Government seeks to commit the country
to a line of policy in which it has not received the deliberate
support of the House of Commons as representing the nation.
If the electors of Paisley are wise, they will seek from the
candidates who ask for their votes unqualified adherence to
the only sound principle, that the nation is bound by no
31 2 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
foreign commitments of any kind which have not been for¬
mally approved by the Parliament of the United Kingdom.
6. MESOPOTAMIAN OIL
To the Editor of the times, 21 October igzo.
The report that the State Department at Washington is far
from favourably impressed by the British and French attitude
on the question of Mesopotamian oil suggests an interesting
point as to the meaning of Article 22 of the Covenant of the
League of Nations. We have been assured by Lord Milner
that the exploitation by the United Kingdom, Australia, and
New Zealand of the phosphate deposits of Nauru is consistent
with that Article on the plea that in the case of the South
Pacific Islands the article provides merely respect for safe¬
guards in the interest of the indigenous population, and that
these safeguards do not include, as prima facie would seem
to be the case, the ‘equal opportunities for the trade and
commerce of other members of the League 1 expressly specified
in the case of Central African mandates. But Lord Milner’s
apologia was based on the fact that the provisions for the
Pacific Islands and South-West Africa were a compromise
between the desire of the Dominions for frank annexation and
the United States support of the mandatory system, and has no
application to the case of Mesopotamia. It appears therefore
that it is impossible to deny the obligation of the mandatory
for Mesopotamia to secure the regime of equal opportunities,
whether the mandatory actually undertakes the administra¬
tion or confines itself to administrative advice and assistance.
I am wholly unable to understand how the obligations im¬
posed by the League Covenant are to be reconciled with the
agreement regarding petroleum concluded on April 25 at
San Remo between Mr. Lloyd George and M. Millerand,
which appears to me to be open to all the criticisms adduced
in the case of Nauru, while the reply then made by Lord
Milner is inapplicable. For the British Government itself to
international law and the conflict OF LAWS 313
develop the Mesopotamian oil-field appears to be wholly in¬
compatible with the obligations of a mandatory State as
opposed to a State exercising a veiled annexation, and the
manifest duty of the mandatory appears to be to advise the
Mesopotamian administration that in the grant of concessions
for oil strict impartiality must be observed between nationals
of the State and members of the League. If it is contended
that the British and French Governments arc entitled to make
use of the rights flowing to them from former Turkish conces¬
sions, the reply is simple; by agreeing to the terms of the
League Covenant, they have precluded themselves from exer¬
cising in specie these rights when in conflict with the prin¬
ciples and terms of the Covenant, and have only a right to be
reimbursed by the Mesopotamian State the amount of any
expenditure actually incurred by them hitherto under the
terms of the concessions.
The question is one of far more than theoretic interest; the
deplorable waste of British and Indian lives—apart from the
enormous expenditure involved in the pacification of Mesopo¬
tamia, is the more unjustifiable if it is incurred in the pursuit
of a policy which, persisted in, will endanger Anglo-American
relations, 1 and ruin all belief in the honesty of the mandatory
system.
7. THE LABOUR ORGANIZATION CLAUSES OF
TWIT PIC A PI? TP 17 A TV
JL X JLji JL Xjx V,Vi-'i X 4 X X<Vfe fiji \ X JC
To the Editor of the Scotsman, 28 May uj2t.
It appears from the discussion in Parliament reported in
your issue of to-day that His Majesty’s Government adopt an
extraordinary interpretation of the Labour Organization
clauses of the peace treaties. These clauses require that any
member of the organization shall, not later in any case than
eighteen months after the close of a session of the Labour
1 Uni led States opposition was ultimately bought off by arrangements with
American oil interests; see Wright, Mandates, pp. Co, (it. It bad caused a severe
strain in Anglo-American relations.
314 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
Conference, bring any recommendation or draft convention
'before the authority or authorities within whose competence
the matter lies, for the enactment oflcgislation or other action 5 .
His Majesty’s Government apparently hold that it is sufficient
that they themselves should study the recommendation or
convention, and, if they do not approve it, need not allow
Parliament to have any chance of expressing its opinion on
the matter.
No one, I presume, will contend that this was the inter¬
pretation placed on the clauses by those who persuaded the
Government to secure their insertion in the peace treaties. The
governmental interpretation, therefore, is contrary to the
spirit of the clauses and can be defended, if at all, only on
technicalities. But even a technical defence seems impossible.
The obligation imposed by the treaty involves the bringing of
the matter before the authority or authorities within whose
competence the matter lies for the enactment of legislation or
other action. His Majesty’s Government cannot fulfil this
condition by bringing the matter before themselves. They are
not the body within whose competence the matter lies, for they
cannot legislate, and in refusing to biing the matter before
Parliament they were in effect guilty of a breach of the treaty
which would have justified any other member bringing the
matter before the Permanent Court of International Justice.
Their attitude is the more inexcusable since they had obviously
good reasons for declining to proceed with the draft conven¬
tions in question.
But the question discussed raises once more the issue as to
the ratification of treaties without consulting Parliament. The
practice has nothing but its antiquity to commend it; it nearly
involved the country in the acceptance of the Declaration of
London; it is a relic of secret diplomacy, and, if the Govern¬
ment desire to secure the ratification of a treaty which they
approve or the rejection of a treaty which they have hastily
accepted, they should be prepared to explain the grounds for
the proposal to Parliament.
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 315
8. THE TREATY WITH JAPAN
REVISION AN OBLIGATION
To the Editor of the times, 4 July ig2i.
The explanation of the confusion regarding the Anglo-
Japanese Treaty communicated to the Press through Reuter
only adds to the deepness of the misunderstandings which
seem to assail this Convention. The explanation ignores the
crucial point of the whole matter, the terms of Article 20
of the Covenant of the League of Nations, under which the
members of the League 'severally agree that this Covenant
is accepted as abrogating all obligations or understandings
inter se which arc inconsistent with the terms thereof 5 , and
undertake to take 'immediate steps’ to procure their release
from any obligations inconsistent with the terms of the Cove¬
nant which they may have undertaken before becoming mem¬
bers of the League.
That the Anglo-Japancsc Treaty of 19x1 is not wholly in
accord with the League Covenant is admitted in the notes sent
last year to the League of Nations, and both the United King¬
dom and Japan arc under the obligation of revising the terms
of the treaty to make it lit the Covenant. Hence it is hardly
surprising that the intimation of last year was regarded by the
Law Officers and by the public generally as an intimation that
the treaty would only be continued in being after July 13,1921,
if it were revised and adapted to meet the new conditions
created by the League Covenant, Nevertheless, it is equally ob¬
vious that on a mere technical construction of the action taken
last year it is perfectly possible to maintain that the treaty was
not formally denounced, and that therefore it remains in opera¬
tion until the necessary year’s notice of termination is given. 1
1 The treaty was allowed to lapse on the adoption at the Washington Confer¬
ence of 1921-2 of comprehensive arrangements for limitation of naval arma¬
ments (Feb. 6, 1922) and the conclusion between the British Empire, France,
Japan, and the United States, of a convention for the preservation of the general
peace and the maintenance of their rights in relation to their insular possessions
and dominions in the region of the Pacific Ocean (Dec. 13, 1921).
316 international law and the conflict of laws
One thing, however, is clear: the Powers concerned are
under an absolute obligation to revise the terms of the treaty
if it continues in force, and the step should immediately be
taken of giving twelve months’ notice of the termination of the
treaty, on the understanding that during this period efforts will
be made to conclude a further treaty. The difficulty regarding
the Dominions is obvious, but the precedent of the Treaty of
June 28, 1919, regarding assistance to France in the event of
German aggression, suggests that it can best be disposed of
by a provision that the terms of the new treaty shall not be
applicable to the Dominions unless accepted by the Dominion
Parliaments. The idea of submitting the issue of acceptance
to referenda will not commend itself to any student of the
Commonwealth military service referenda.
9. LORD LLOYD’S RESIGNATION
To the Editor of the Scotsman, fitly IQ2Q.
There is one point which it may be hoped 1 will be elucidated
in the discussion regarding the resignation of Lord Lloyd.
While Canada has rather markedly expressed the desire to
remain disinterested in negotiations affecting the position of
Egypt, it is a matter of deep concern to the Commonwealth of
Australia and New Zealand, as Mr. W. M. Hughes has recently
reminded us, and British policy in regard to Egypt should as
far as possible be framed in consultation with the Dominions.
Doubtless in the ultimate issue, if there is divergence of view,
the British opinion must prevail, because the United Kingdom
alone bears the burden of carrying out Imperial policy in
regard to Egypt, and Mr. Hughes’s views of the correct course
of action at the present day would certainly not commend
themselves to the present or probably the late Government of
this country. But consultation and the fullest consideration of
Dominion views when offered are essential, and it would be
satisfactory to learn that this is adequately appreciated by the
1 The hope was not fulfilled, and the discussion was confused and unsatis¬
factory; see Lord Lloyd, Egypt since Cromer.
INTERNATIONAL LAW ANI) THE CONDUCT OF laws 317
Ministry. It will be remembered that as recently as February
Mr. Mackenzie King made some quite justified comments on
the fact that foreign countries were informed of the outcome
of the Anglo-French conversations on naval disarmament
before the Secretary of Stale for Dominion Adairs communi¬
cated the information to the Dominion.
10. THE PROPOSED TREATY WITH ECYPT
To the Editor ofruv. Scotsman, 7 August ujx).
The proposed treaty with Egypt certainly offers the Egyp¬
tian people a singularly favourable opportunity of a lasting-
settlement and of the return to normal of internal government.
From the Imperial point of view the treaty presents the un¬
fortunate feature that it is expressed to be applicable to the
United Kingdom and not to the Dominions as well. The
ground of this restriction is doubtless primarily the attitude of
Canada, but there seems to be every reason why, before the
matter is finally adjusted, the Dominions should be asked to
accept the treaty and to allow the Empire to act as a unit in
such a matter. It is true that the Dominions were exi bubal
from the application of the Locarno Pact, unless their (iovern-
mentsdecided to accept the obligations imposed by it; but it is
to be hoped that that ra.se is not to be treated as the normal
method of procedure, but that united action, as in the ease of
the Treaty of Paris for the renunciation' of war, may be as¬
sumed to be proper, unless very serious grounds for isolated
action can be adduced. The treaty with Egypt cannot be
treated as on. the same level of importance as that with Iraq;
it vitally concerns the Commonwealth and New Zealand, and
those Dominions at least should associate themselves with it,
and should join with the United Kingdom in asking Canada
also to associate herself with the policy involved. The active
assertion by that Dominion as member of the t louneil of (hr
League of her concern with European minorities is surely
S<jc Speeches and Docwnftttn ott tfic ihiti\h 1 tO'l*i l 1 ! 1 * l tott ,jt
31 8 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
quite inconsistent with an attitude of disinterestedness in a
treaty which ought to be of the highest Imperial value. Nor,
of course, can any Dominion be said to be unaffected by such
a treaty, which not only creates an alliance but renounces
eventually British jurisdiction in Egypt, not only in respect of
British subjects in the United Kingdom, but in respect of
Dominion British subjects.
ii. THE EGYPTIAN SITUATION
To the Editor of the Scotsman, ij July 1930,
Is not the essential question in the matter of Egypt the issue
whether the King has any claim to British intervention in his
interests? British responsibility for the safety of foreigners is
necessarily involved when anything in the nature of organized
opposition to the Egyptian Government occurs, and this re¬
sponsibility gives the British Government a clear right to de¬
mand that any Egyptian Government shall respect the con¬
stitution, which was definitely adopted with its approval.
Under the Constitution promulgated in 1023 it seems to be
impossible to find any excuse for the King’s position. The
Constitution deliberately places the ultimate sovereignty in
the hands of the people, and provides carefully for constitu¬
tional monarchy. The Chamber of Deputies is given express
power to secure the resignation of a Ministry by a vote of no
confidence; it is authorized to impeach Ministers; and, while
the King can declare martial law, he must immediately obtain
parliamentary sanction for such action. It is, in fact, perfectly
clear that the Constitution aims at full responsible govern¬
ment. The Constitution cannot under any pretext be sus¬
pended, except temporarily in time of war or of a declaration
of martial law, and in any case the meeting of Parliament as
laid down in the Constitution cannot be interrupted. More¬
over, from the general power to alter the Constitution there
is excluded any change in the representative and parliament¬
ary character of the Government.
INTERNATIONAL LAW AND THE CONFLICT OF LAW’S 319
It appears, therefore, that the King’s resistance to the pro¬
posals of his Ministers for further legislation to strengthen the
securities for constitutional government is wholly unwar¬
ranted, and entirely contrary to the spirit of the Constitution.
No British interest can be served by supporting claims so un¬
founded, and still more improper would be any countenance
of tampering with the electoral law. After all, the record of
personal rule in Egypt has been one of unrelieved failure, and
it is difficult to suppose that any Egyptian Ministry could*
manage affairs worse than a king acting in defiance of the
verdict of the electors. 1
12. THE PALESTINE MANDATE
To the Editor of the Scotsman, 24 October 1930.
The vehemence of Zionist protests against British policy in
Palestine obscures the case which the Arabs have against the
terms of the Mandate. They contend that to compel any
country to receive immigrants is in itself unjust; that it contra¬
dicts the principle of self-determination, which was alleged to
be the basis of the peace settlement; that it runs counter to
the assurances on the strength of which the Arabs co-operated
against the Turks; and that the Mandate is irreconcilable
with the terms of Article 22 of the Covenant of the League
of Nations. On any impartial view their case is strong, and
it is possible that the wisest course for a British Govern¬
ment would now be to admit that the policy of 1917 was as
unjustifiable as the reparation clauses of the peace settlement,
and must, like those clauses, be modified in accordance with
the principles of justice and equity.
As so bold a course would raise grave difficulties, the present
Government can hardly be blamed for making one more effort
to carry out the Mandate, despite the fundamental incoher¬
ence of its double purpose. An impartial report has proved
1 The King’s management of affairs resulted by 1934 in a position so un¬
satisfactory that British advice had to be tendered and a new Ministry appointed
which revoked the Constitution of 1930 illegally enacted by the King (Nov. 30,
1934)-
320 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
that under existing conditions Jewish immigration can be
carried out only at the cost of further depressing the unhappy
lot of the fellahin. It has shown that steps are possible which
by improving methods of cultivation will benefit the fellahin
and open the way to fresh immigration. Surely efforts along
these lines should commend themselves to every one with
any sense of impartiality, and should have evoked the cordial
support of Zionists instead of threats ‘to circumvent the pro¬
posed measures’ and energetic efforts to turn the issue into one
of party politics.
The present position proves the remarkable folly of the
Arabs in refusing to take advantage of the Constitution offered
in 1922, which would have given them a legitimate oppor¬
tunity to represent the just claims of the Arab people under the
terms of the Mandate itself and to prevent the rash efforts to
hasten unduly Jewish migration, whence has sprung the
present unsatisfactory economic condition of the territory. It
may be hoped that so grave an error will not now be repeated.
13. THE OPTIONAL CLAUSE AND NEUTRALITY
To the Editor of the Scotsman, 25 January 1930.
It is clearly impossible to justify the doctrine that ‘as between
members of the League there can be no neutral rights, because
there can be no neutrals’. The League Covenant limited con¬
siderably the possibility of any member’s being engaged in a
war in circumstances permitting of neutrality on the part of
other members, but it did not exclude such a contingency. Nor
does the Kellogg Pact by itself fill in the gap. It is as yet un¬
related to the Covenant, and includes no sanctions of its own.
Hence in those cases in which a member of the League can still
go to war without placing itself in a condition of hostility with
other members of the League, the fact that in doing so it may
violate the Kellogg Pact does not alter the legal position nor
take away the right of members to remain neutral. There is,
of course, the further ambiguity of the Pact, made sufficiently
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 321
clear by the British interpretation, which is by no means
generally accepted as correct. Something may be done to alter
the position by the proposed amendments of the League
Covenant to extend its operation in view of the Pact, but the
process of amendment is extremely slow, and, unless and until
it is carried out completely in an effective form, it is dangerous
to give currency to the doctrine that neutrality is already
abolished by the League Covenant.
Fortunately the limited duration of the acceptance of the
Optional Clause affords a valuable safeguard, taken in con¬
junction with its limitation to future disputes arising out of
future events, and the policy of acceptance might well have
been justified rather as an experiment than on any other
ground.
14. PERSIA AND THE OIL CONCESSION
To the Editor of the Scotsman, 6 December 1932.
Russian opinion is doubtless correct in ascribing to the suc¬
cess of the U.S.S.R. in repudiating its obligations the action
taken by the Persian Government in respect of the D’Arcy
Concession. It was, in fact, a most serious error of judgement
when the British Government deliberately permitted the sale
in this country of confiscated property and prevented its lawful
owners prior to the confiscation from asserting their claims.
To refuse to Persia which has been conceded to the U.S.S.R.
is a singularly difficult step to take.
It is obvious, of course, that it is impossible to claim that any
country is irrevocably bound by a concession made by a pre¬
vious Government. What the British Government can claim
is that, if the concession is to be revoked in the public interest,
just compensation should be given to the persons affected by
the loss. But the assessment of compensation in such a case
is a matter of infinite difficulty, and the obvious solution is
to accept the proposal of the Persian Government for friendly
negotiation, with a view to assign to Persia a much more
Y
322 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
substantial portion of the profits which arc being derived from
the concession. The British Government presumably intends
to follow this course, which it seems should have been taken
earlier, so as to avoid the ill feeling which has been engendered
on either side over the issue.
15. PERSIA AND THE OIL CONCESSION
To the Editor of the Scotsman, 9 December 1932.
Hard cases make bad law, and this, I think, must be the
explanation of the remarkable doctrine of the British Govern¬
ment that the unilateral cancellation of a concession held by
a British subject is a clear breach of international law. A con¬
tract between a foreign Government and a British subject is
not a treaty, and the position which arises when it is broken is
precisely the same as when a foreign Government defaults on
a loan. The British Government may take up the matter, and
may urge that compensation should be granted for the can¬
cellation of the contract. Whether refusal to grant compensa¬
tion would constitute a breach of international law is uncertain.
Creditor States have maintained that it would; debtors that it
would not; and what the Permanent Court would decide is
uncertain. But it must be pointed out that the Persian Govern¬
ment has not refused to negotiate a new contract. It has, in¬
stead, expressed itself as ready to consider new terms, and the
large distributions of profits made by the Anglo-Persian Com¬
pany have inevitably convinced Persians that the concession
was improvident, and that in equity revision is essential.
The British Government, when it accepted in certain cases
compulsory reference to the Permanent Court, limited its
acceptance to disputes arising after the ratification of its
declaration with regard to situations or facts subsequent to the
said ratification. What that means no one has ever been able
to say with precision; but it does not seem to me that Persia
would find it difficult to insist that the present question is not
included in the type of matters on which the British Govern-
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 323
ment was prepared to accept the jurisdiction of the Court.
The case, in fact, is clearly one, not for strong language which
cannot be followed by effective action, but for conciliation and
friendly adjustment.
16. PERSIA AND THE OIL CONCESSION
To the Editor of the Scotsman, 14 December 1932.
a very
strong case as compared with that of the British Government.
It is perfectly clear that it is not a breach of international law
for a Government to cancel by a sovereign act any contract
made with an alien; if the British Government had desired to
convert the matter into a treaty it could no doubt have done so
when it was in close relations with Persia. A company whose
contract is cancelled ought to be given the right to appeal to
a local Court to decide whether the Government is bound to
provide compensation. If such right exists, then it must exer¬
cise the right before asking the intervention of the British
Government. If the right exists and the Court gives a palpably
unfair decision, it can also appeal. If no right exists, or the
Court is unfair, the British Government in either event can
then make representations to the foreign Government.
Is there, then, any obligation on the foreign Government to
arbitrate? The answer is very doubtful. Persia evidently is
prepared to argue that the issue is a matter which falls exclu¬
sively within domestic jurisdiction, and the British Govern¬
ment itself, when accepting the compulsory j urisdiction of the
Court, excepted such issues from its competence. The British
Courts in the case of Russia have refused to assume that con¬
fiscation by a sovereign Government is a breach of inter¬
national law, and the British Government has, in fact, ac¬
quiesced in Russian confiscation of private property and
repudiation of debts due to the British Government. The only
course really open to the British Government was conciliation
and good offices, and it seems to me that, in the circumstances,
324 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
Persia has good ground for resenting the tone of the British
representations, which appear to have gone far beyond the
rights of that Government under international law. Nor
frankly, so far as the information available to the public goes,
is it at all clear that the Company has not so acted as to afford
just ground for complaint on the pari of Persia. It may be
hoped that the League Council may be able by conciliation to
secure a resumption of negotiations and a satisfactory settle¬
ment of a mismanaged episode.
17, PERSIA AND THE OIL CONCESSION
To the Editor of the Scotsman, 20 December
It is fortunate that the British Government has invoked the
aid of the League Council in the matter of the Persia oil con¬
cession. It was quite impossible to expect the Permanent
Court of International Justice to accept for a moment the
doctrine that it is contrary to international law for a Sovereign
State to cancel a concession to a foreign company or indi¬
vidual, when it is found that the concession is inimical to the
national welfare. To put the matter at the highest, all that
could be claimed would be that, if cancellation took place,
compensation was necessary, and Persia, by her insistence on
her readiness to consider in principle a new concession, could
not be said to be in default, unless and until her action has
proved her attitude insincere. Even then it is impossible to say
what the Court would have held, and it is certain that com¬
pensation would have been far less valuable to the Empire than
the renewal of the concession on equitable terms, which we
may hope as the outcome of the intervention of the Council.
Though the Mavromattis Concession claim against Palestine
was entertained by the Permanent Court, that was expressly
on the basis of the terms of the mandate, not under inter¬
national law in general; even so, the Court gave Greece
minimal satisfaction, and Lord Finlay’s dissenting dicta hardly
support the present attitude of the British Government.
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 325
We must, I think, cease to regard Persia as a semi-vassal
State, and respect her independence as much as we respect that
of the U.S.S.R. Our Government, whether under Conserva¬
tive or Labour control, has recognized that State, despite its
complete repudiation of international obligations, and its
wholesale confiscation of British property and cancellation of
concessions. It has declined to forbid the importation of
property confiscated from British subjects; it has permitted
the Soviet Government to ignore the arbitral award made in
favour of a British company under an agreement entered into
by the Soviet Government itself; the Courts are committed to
the doctrine that acts of a Sovereign State within its territories
are binding on them. It is impossible for us to go to war with
Persia on such an issue, and our experiences with the Irish
Free State suggest that tariff warfare is singularly unprofitable.
Common sense, therefore, dictates reasonable accommodation,
and that clearly means a fuller share to Persia in the remark¬
able prosperity derived from her oil supplies, so that the
partnership may be heartily appreciated in that country.
18. THE PERSIAN OIL DISPUTE
To the Editor of the Scotsman, 2 J December 1932.
As some misconception appears still to exist regarding the
dispute with Persia on the oil concession, may I stress the
following points?
(1) The issue is not sub judice . Persia, in the exercise of a
clear right, has declined to submit it to the Permanent Court,
and very wisely the matter is now, unless disposed of by agree¬
ment, to be dealt with by the conciliation procedure of the
League Council. That is based on broad grounds of inter¬
national comity, and we have a reasonable ground for hope
that the dispute will be adjusted on the only really sound basis,
the renewal of the concession under conditions adapted to
secure Persia a fairer share in the profits derived from the
development of her resources.
326 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
(2) It is useless to seek aecuratc statements of international
law in the briefs presented by either party to a dispute. Claim¬
ants must put their eases as high as possible, and it rests with
Courts to reduce to due proportions the propositions put for¬
ward by either side. The celerity of the British adoption of
reference to the Council suggests inevitably that the British
Government is well aware of the extreme divergence of views
among nations as to State responsibility, a divergence which
recently has rendered it impossible to codify the law on the
topic. All precedent suggests that little prospect of a useful
outcome from the Permanent Court existed.
(3) It is useless to ignore the grave effect on our position as
regards Persia of our attitude towards Russia. There was no
question of choosing between acquiescence in Russian con¬
fiscations and hostilities. It was perfectly open to us to adopt
the course faithfully followed by the United States, and to
refuse to recognize the Russian Government so long as it
refused to pay compensation for its confiscations. It was also
open to us to refuse to permit the sale in this country of property
confiscated by the Russian Government. As we took neither
step, we must be held to have acquiesced in confiscation, and
this conclusion is rendered inevitable by our willingness to
enter into treaty engagements with that Power on as favour¬
able a basis as with any other foreign State. To suggest that
there is one rule of international law to be applied to States
which we cannot coerce, and another applicable to those
which can be coerced appears to me unsound both in law
and morality.
19. THE PERSIAN OIL DISPUTE
To the Editor of the Scotsman, 31 December 1932.
It is singularly unwise to accept tcndcncious rumours
whether emanating from Teheran or Geneva. (1) That the
Shah, who went to the trouble of securing the approval of
the Medjliss for the cancellation of the oil contract, should
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 327
immediately have stultified himself by dismissing the Minister
responsible was ex facie absurd. The idle canard has been
destroyed by revelation of the fact that the Minister in question
was never consulted as to cancellation. Far more serious is the
suggestion that representatives of the Powers with seats on the
League Council have suggested at Teheran that Persia’s case
is not strong enough to gain the support of a majority of the
Council. The Council has deliberately given Persia the power
to present her case by a delegation, and for any member of the
Council to form an opinion on the merits of the dispute before
that delegation presents its case would be a most discreditable
and indeed incredible proceeding. It would show that where
a non-European Power was concerned no fairness could be
expected from the League, and Japan would resent such pre¬
judgement of the case as bitterly as would Persia.
(2) It is idle to think that international law is not made by
the facts of international relations. The fact that the Powers
of Europe have permitted the U.S.S.R. to repudiate treaties
to confiscate property, and cancel concessions at its will,
probably is most unfortunate, but we live in a world of realities
not of paper protests, and it is idle to forget that the British
Government in 1920 refused to use its legal and constitutional
right to disallow the confiscatory legislation of Queensland
despite all pressure brought to bear upon it. 1
(3) I gather that it is no longer proposed to enter into
hostilities or even a tariff war with Persia, and that there is
really general agreement in the solution which I ventured to
suggest as inevitable, negotia tion between Persia and the Com¬
pany on the basis of the grant of more favourable terms to
Persia. 2 I need, therefore, only close my side of this corre¬
spondence with an expression of thanks for your courtesy in
permitting me to present the unpopular side of an important
international issue.
1 See III, Nos. 3-5.
2 Such terms were arranged in
greater consideration.
1933, showing the justice of Persia’s claim to
anclate lor South¬
er in your issue of
:ntly taken by the
l ? The Covenant
v do not envisage
territory, and the
of the native races
that Article 2 of the Mandate expressly gives power to treat
the territory ‘as an integral portion of the Union of South
Africa’, and therefore sanctions incorporation, if the Union
so desires. But, what is far more important, it would not ac¬
cept for a moment the suggestion that the Covenant contem¬
plates the emergence of the native races of South-West Africa
from tutelage to national entity. In fact, Article 22 of the
Covenant draws a very dear distinction between three classes
of mandates, and it is only in respect of the first category of
mandates, which includes the communities formerly belong¬
ing to the Turkish Empire, that national entity is envisaged.
South-West Africa falls into the third class of mandates,
which ‘can be best administered under the laws of the man¬
datory as integral portions of its territory 5 , subject to safe¬
guards in the interests of the indigenous population. General
Smuts would have preferred annexation out and out, but he
accepted the compromise which gave him power to treat
South-West Africa as an integral part of the Union.
The proposal to give the territory provincial status, there¬
fore, violates no right ol the native races; its expediency at
the present time is more open to question. German dissent,
of course, is based on the claim that the territory should be
330 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
granted autonomy, which, with the growth of the German
population, would mean German control and possibly later
reunion with the Reich.
22. SOUTH-WEST AFRICA AND THE MANDATE
To the Editor of the times, ii June igg^
As there is involved a vital interest of the Union of South
Africa, may I reply to Mr. Stoker’s letter in your issue of
to-day?
1. I have never suggested that the first two paragraphs of
Article 22 of the League Covenant do not apply to C C 5 man¬
dates. But these paragraphs say nothing whatever of the
‘prospective national entity 5 of mandates. That is contem¬
plated by paragraph 4 for ex-Turkish communities only,
while paragraph 6 provides for the administration of South-
West Africa as an ‘integral portion 5 of the territory of the
mandatory power.
2. Mr. Stoker holds that the safeguards in the interests of
the indigenous population in paragraph 6 refer to the generali¬
ties in the first two paragraphs of Article 22. In view of what
has just been said, that would not help his case, but in the
interest of accuracy it is as well to point out that the reference
in paragraph 6 is plainly to the specific safeguards set out in
paragraph 5 (which deals with mandates of type £ B 5 , such as
Tanganyika), including prohibition of the slave trade, arms
traffic, liquor traffic, &c., and these matters are accordingly
set out in Articles 3-5 of the Mandate for South-West Africa.
How narrowly the safeguards are interpreted is sufficiently
shown by the fact that they are not held to include in the case
of £ C 5 mandates provision of equal opportunity for the trade
and commerce of other members of the League, though that
applies to £ B 5 mandates.
3. The Covenant and the Mandate alike, therefore, leave
it entirely open to the Union Government to accept the pro¬
posal for treatment of the territory as a fifth province, nor has
international law and the conflict of LAWS 331
the British Government any possible ground of objection.
Whether Germany has any valid reason to complain could
be decided under Article 7 of the Mandate by the Permanent
Court of International Justice.
23. GENERAL SMUTS AND THE TREATY OF
0 a TT T T 7 Q
To the Editor of the Scotsman, 13 November 1334.
General Smuts assures us that fair play and sportsmanship
and every standard of private and public life call for frank
revision of the terms of the Treaty of Versailles. But the
question inevitably arises—How is his assertion to be recon¬
ciled with the official actions of the Union Government, whose
policy he largely determines ? That Government has declared
illegal the Nazi organization set up on the German model,
and is admittedly anxious to incorporate South-West Africa
in the Union as a preliminary to formal annexation. General
Smuts surely must realize that the logical application of his
views would be the offer to transfer South-West Africa in
mandate to Germany, a course to which the League of Na¬
tions doubtless would gladly accord assent. To urge others
to renounce, while retaining for oneself, the spoils of victory
is open to serious criticism.
General Smuts also shows a curious narrowness of outlook
in his attitude towards the position of the United Kingdom
in regard to Europe and the League of Nations. It is very
doubtful if any statesman seriously contemplates turning the
League into a military machine, but the purpose of the
League is to minimize the chance of war, and the members
of the League arc under obligations which may involve them
in war if they arc to honour their obligations. Nor is any
useful purpose served by threatening the withdrawal of the
Dominions from the League, and claiming that the United
Kingdom must follow their lead. Isolation may suit a vir¬
tually republican South Africa, but sane political opinion in
332 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
Australia and New Zealand recognizes that these Dominions
cannot demand British aid in securing their safety from dan¬
gers in the Pacific, while repudiating concern for the position
of the United Kingdom as regards Europe. The Common¬
wealth can persist only through mutual consideration; neither
the Dominions nor any one of them nor the United Kingdom
can dictate the policy of the whole.
24. THE LAW OF NATIONALITY
To the Editor of ti-ie Scotsman, 12 September 1328.
It appears from your issue of to-day that it has been ruled
at Inverness Sheriff Court that the wife of an American citi¬
zen, who herself was not, under the law of the United States,
an American citizen, must nevertheless be regarded as an
American citizen under British law. It would be rather un¬
fortunate if this were actually the state of the law, but it
seems clear that the change made in the law by the British
Nationality and Status of Aliens Act, 1914, has been over¬
looked. That Act provides in s. 10 that c the wife of a British
subject shall be deemed to be a British subject, and the wife
of an alien shall be deemed to be an alien’. This provision is
a deliberate alteration of that in s. 10 of the Naturalization
Act, 1870, which runs: C A married woman shall be deemed to
be a subject of the State of which her husband is for the time
being a subject.’ Under the Act of 1870 undoubtedly the
wife of an American citizen was also an American citizen
under British law, a provision then unobjectionablc, because
under the United States legislation of 1855 the wife would
under American law be an American citizen, and the same
principle applied to many other foreign countries. But by the
time when the Act of 1914 came to be drafted, it was realized
that in many cases to maintain the position of 1870 would be
to impose on a woman in British law a nationality which she
did not really possess, and the wording of the Act of 1914
therefore makes the wife of an American citizen an alien, but
INTERNATIONAL LAW AND THE CONFLICT OF LAWS 333
not an American citizen. Since the United States Act of
1922 denying automatic citizenship to women married to
American citizens, there are many women who have ceased
to possess any nationality, and one may sympathize with a
lady compelled to register as possessing a nationality denied
her by American law and not conferred on her by British law.
Eventually, no doubt, the position of women in such a case
will be regularized by their being permitted under British
law to retain British nationality in cases where marriage to an
alien does not confer upon them the nationality of the hus¬
band. 1 The present position is illogical, and to leave a person
stateless is quite unfair.
25. DIPLOMATIC PRIVILEGE
To the Editor of the times, iy July igg^
Sir John Simon’s reply to Mr. Somerville’s inquiry as to
diplomatic privilege in respect of motor accidents suggests
that the time has come for the reconsideration of the extent
and character of the immunity to be accorded. The fact that
foreign diplomats are generally insured against third-party
risks is of minimal value to the victim of an accident if he is
unable by taking proceedings to establish liability. Diploma¬
tic privilege of course was developed at a time when many
modern conditions were not contemplated. It has already
proved impossible to maintain it unaltered in the case of
government trading, 2 and it is plainly indefensible that it
should be available to any attache on a holiday expedition.
The obvious solution is the adoption of an agreement that
diplomats shall be instructed by their Governments to waive
the privilege except in respect of official actions proper. There
.A. Vfhrfr .A.
1 Only carried out in 1933 (23 & 24 Geo. V, c. 49, s. 1). Registration, how¬
ever, had been excused for a short time before this Act as a result of representa¬
tions to the Home Secretary.
2 The U.S.S.R. waived it in its commercial agreements with the United
Kingdom; see Art. 5 (7) of the agreement of Feb. 16,1934. Other projects are
still imperfect. Cf. Dicey and Keith, Conflict of Laws (ed. 5), p. 194*
334 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
is abundant precedent for waiver , 1 and the only way to pre¬
serve intact diplomatic privilege in those cases in which it
matters is to exclude its application in irrelevant issues.
26. IF SEADROMES COME
SOME DIFFICULT PROBLEMS IN INTERNATIONAL
LAW
To the Editor of the Manchester guardian, 20 November 1934.
The proposed use of seadromes in the transatlantic air
service, referred to in your columns to-day, suggests new
problems of various kinds to test the ingenuity of students
of international law. Nothing precisely similar has so far
come under the consideration of lawyers, and the issues which
arise must therefore be determined, so far as that is practic¬
able, by reference to analogies and conclusions based on prob¬
able reasoning. Fortunately international law has, even more
than English common law, the power of adaptation to fresh
emergencies.
It is clear that the stationing of seadromes on the open sea
involves to some slight extent interference with the paramount
principle of the right of navigation, but the degree of inter¬
ference and the advantage to be derived arc of such a charac¬
ter as to render objection on this score negligible. The sea¬
dromes would obviously claim to be assimilated to vessels at
anchor, and their national status would be determined by the
flag which they were allowed to fly. It may be taken for
granted that a seadrome owned by a British firm which com¬
plied with the principles of the Merchant Shipping Acts would
be authorized to fly the British flag, and other nations would
doubtless apply like principles. It may, however, be suggested
that, as anchored, seadromes might claim assimilation to
lighthouses and thus a right might be asserted to claim that
the surrounding sea within the three-mile limit was territo-
1 Dickinson v. Del Solar , [1930] 1 K.B. 376.
international law and the conflict of LAWS 335
rial. 1 Such a claim, however, even if valid for lighthouses,
could not be maintained. The seadrome would be in no
better position than a lightship, and the German destruction
of British and neutral vessels near the Nantucket Lightship
in October 1916 has never been ruled contrary to inter¬
national law.
In time of peace it may be assumed the chief issue which
might arise would be whether a vessel which injured the
aerodrome or its anchor could be held liable for damage. In
the case of submarine cables the difficulty had to be disposed
of by international agreement in 1884, whence it may be
assumed that, without such agreement, injury inflicted on
cables would have given no right to damages against the
offending ship. It seems, however, that, regarding the sea¬
drome as an anchored ship, the matter might be covered
rather by the law affecting collisions at sea, but the question
is not free from doubt, and the need of a convention is obvious.
In case of war it can hardly be doubted that belligerent
Powers would assert the fullest rights of belligerency against
the seadromes and would seize or destroy all those owned by
the enemy. It is true that it has never been definitely settled
whether a belligerent may cut a cable connecting an enemy
with a neutral in the open sea. The view of the Institute of
International Law in 1902 negatived the right except in the
case of an effective blockade, but the belligerent Powers in
1914 promptly cut nearly every cable connecting Germany
with other Powers. It is true also that it has never been for¬
mally decided whether enemy-owned cables are lawful prize.
But it can hardly be doubted that seadromes would be assimi¬
lated to ships for this purpose.
Neutral seadromes present a very difficult problem, for
which the simplest solution would be to rule that they could
be occupied so as to prevent communication with a bellige¬
rent within the limits of a legitimate blockade. But the utter
uncertainty as to those limits in view of the doctrines of the
1 See Wheaton, International Law (ed. Keith), i. 367.
336 INTERNATIONAL LAW AND THE CONFLICT OF LAWS
last war leaves the matter in the utmost doubt, and makes it
clear that a convention is urgently necessary to regulate the
position in the event of war as of peace. But it must frankly
be admitted that the difficulty of achieving agreement regard¬
ing cables would be greatly increased in the case of seadromes.
THE CONFLICT OF LAWS
i. INDIAN DIVORCES
To the Editor of the times, 24 February ig2i.
The question, discussed in your issue to-day of the validity
of Indian divorces not based on domicile 1 is one affecting
directly the Dominions no less than India. Certain Dominion
Acts, especially those of the Australian States and of New
Zealand, authorize the Courts to grant divorces to deserted
wives, whose husbands have changed their domicile, as the
only practical means of alleviating the unjust position of these
women. The English Courts have not accepted definitely
this doctrine, though it has been supported by judicial dicta.
If now the strict rule of domicile is laid down, as on theoretical
grounds may be strongly urged, these Dominion divorces will
be invalid in England, and parties thus divorced may be
guilty of bigamy if they remarry.
It is probable that the matter will require adjustment by
Imperial legislation passed with the occurrence of the Domi¬
nions in the method now usual. There is, of course, a prece¬
dent for the recognition of divorces based on mere residence
in the Matrimonial Causes (Dominion Troops) Act, 1919,
which, however, was of temporary duration.
2. INDIAN AND COLONIAL DIVORCES
To the Editor of the times, 27 April 10426.
It may be regretted that the authority of the Privy Council,
which has so recently and so convincingly defended the prin¬
ciple that divorce jurisdiction should rest on domicile, 2 has
not deterred the Secretaries of State for India and for Domi¬
nion Affairs from deciding on the introduction of the Indian
1 Sec Keyes v. Keyes, [1921] P. 204; Dicey and Keith, Conflict of Laws (ed. 5),
pp. 944-6; Responsible Government (ed. 2), ii. 9 ^ 3 > 9 ^ 4 *
2 Attorney-General for Alberta v. Cook , [1926] A.G. 644.
Z
338 THE CONFLICT OF LAWS
and Colonial Divorce Jurisdiction Bill. But assuming that
cases of hardship in India are sufficient to justify the new
measure, there are certain matters in which alteration in the
Bill before it becomes law appears desirable.
In the first place, it must be regarded as very doubtful
whether it is necessary to include provision for the application
of the measure to other parts of the Empire, excluding the
self-governing Dominions. But, assuming that this is justifi¬
able, it is impossible to see any ground for not giving the
Dominions power to adopt the Act if they should so desire.
It cannot seriously be contended that New Zealand would
misuse a right conceded in India, and no constitutional objec¬
tion exists to giving power to the Dominions to secure the
advantage of Imperial legislation. Secondly, the Bill proposes
to make binding on the English and Scottish Courts the find¬
ings of Indian Courts as to the question whether persons over
whom they exercise divorce jurisdiction were domiciled in
England or Scotland. This is a novel and undesirable posi¬
tion. It is settled law that a decision—e.g. of the Court of
Session—can be impeached in England if it was obtained by
fraud, 1 and it does not appear that any Indian Court possesses
superior status to that of the Court of Session. It would, it is
clear, be proper to limit the binding effect of any decision of
an Indian Court to India itself. Thirdly, as the whole scheme
of the measure is based on making Indian Courts auxiliaries
to the English or Scottish Courts, it is illogical to restrict the
exercise of jurisdiction in cases of persons domiciled in Scot¬
land to the grounds of divorce recognized in England. Divorce
on the ground of desertion is surely just the case in which the
jurisdiction of the Indian Courts might most appropriately
be exercised.
3. DIVORCE LAWS WITHIN THE EMPIRE
To the Editor of the Scotsman, 10 August 1932.
Continental disagreement, even between States which base
1 Sec Bonaparte v. Bonaparte , [1892] P. 402.
THE CONFLICT OF LAWS ggg
divorce jurisdiction on nationality, renders any probability of
an international convention acceptable to England or Scot¬
land negligible. But there is an inter-imperial reform which
is overdue. By the Indian and Colonial Divorce Jurisdiction
Act, 1926, it was made possible for persons domiciled in Eng¬
land or in Scotland, but resident in India, to be divorced by
Indian Courts on conditions which ensured due care. The
statute was made capable of application to the Colonies. I
suggested in your columns that it should be made possible of
application to any Dominion or State which desired to have
this done, but, probably because the whole matter was experi¬
mental, the proposal was finally not adopted.
Experience has proved the value of the plan. It has been
extended to Kenya, to Jamaica, and the Straits Settlements.
The time is surely ripe for reconsideration of the decision of
1926, and for the offer to be made to the Dominions and
States to accord to them on such terms as may prove accept¬
able the privilege given to the Colonies and India. 1 If some
measure of reciprocity is asked for, it might well be conceded.
As matters stand, New Zealand has been compelled to adopt
the plan of granting divorces to New Zealand girls who have
married persons domiciled in England by suit in the New
Zealand Courts in certain conditions. Such divorces are of
no legal validity in any other part of the Empire, and are
anomalous and unsatisfactory. Under modem conditions of
inter-imperial relations it ought not to prove difficult to adjust
the matter within the Empire.
4. INDIAN-SCOTTISH MARRIAGE CASE
To the Editor of the Scotsman, ig December 1928.
Two points of great interest are suggested by the decision of
Lord Mackay in the case of Lendrum v. Chakravarti 2 reported
in your issue of to-day.
1 No action has yet been taken in this sense.
2 [1929] Sc. L.T. 96. See Dicey and Keith, op. cit., p. 929.
340 THE CONFLICT OF LAWS
(1) As Lord Mackay held that the pursuer was domiciled
in India at the date of proof, it is clear that he does not share
the opinion apparently expressed by Lord Phillimore in von
Lorangh case 1 that no court save that of the domicile of the
parties has power to make a decree of nullity of marriage.
Lord Mackay 5 s view maintains harmony between English
and Scottish law, for it is clear that the former permits autho¬
rity to English Courts to pronounce on the nullity of any
marriage celebrated in England.
(2) On the other hand, Lord Mackay’s view of Scottish
law as permitting a grant of a decree of nullity in the circum¬
stances renders Scottish law quite different from English law
in this regard. Even if the defender were shown in an English
Court to have induced marriage under a misrepresentation
as to the validity in the place of his domicile, it is clear that
a marriage otherwise valid in England could not be invali¬
dated on this score. Lord Mackay’s decision of course is not
confined to Indian marriages, 2 and it means that, even where
a husband innocently induces a marriage, thinking that it
will be valid in his country of domicile, that marriage will be
declared null if it turns out that it is not valid in that country,
at any rate if the spouses are to live there. It appears to me
that the English law is distinctly preferable in this regard,
and I note that Lord Mackay’s decision was not arrived at
without hesitation, and that, moreover, it was given in an
undefended case.
1 Salvesen v. Administrator of Austrian Property, [1927] A.G. 641.
2 All such marriages, and they arc not rare, could probably be declared null
on the grounds accepted in this case. It is dubious if it will be followed.
VI
EPILOGUE
DOMINION STATUS IN 1935
DOMINION STATUS IN 1935
1. BRITAIN AND THE FREE STATE
To the Editor of the Scotsman, 4 January 1935.
Mr. de Valera has indeed every reason to be pleased that
at a critical moment in his fortunes the conclusion of the
commercial understanding with the British Government has
rehabilitated his prestige and re-established his position in the
Free State. 1 The British Government, he may justly feel, has
proved the hollowness of its denunciations 2 3 of his bold stroke
in severing in Irish law the bond of allegiance to the Crown
by accepting simultaneously a measure which has hopelessly
weakened the elements of opposition to his regime in the
Free State.
It seems to me that the prediction I made in a letter to you
of April 10, 1922, 3 has come true, and that in an economic
struggle the honours have come to rest with the Free State.
As Mr. Churchill’s prediction then, that by economic warfare
the Free State could be maintained in subordination, has
proved incorrect, has not the time really come for the British
Government and the British public seriously to face the
question whether they should not accept the possibility of
permitting within the British Commonwealth of Nations a
Constitution frankly Republican? If the United Kingdom
were prepared to make such a concession, it would be in¬
teresting to see whether the Free State would reject it on the
score that Northern Ireland must be included in the Repub¬
lican area. But, at any rate, is it not time to drop ineffective
and unreal protests against Mr. de Valera’s legislation? They
merely diminish British prestige, and, when accompanied by
secret commercial negotiations of the kind now concluded,
1 A large increase in exports of Irish cattle was permitted in return for the
acceptance of British coal (The Scotsman, 4 Jan. 1935 )*
2 See I, Nos. 102-5.
3 See I, No. 23.
344 DOMINION STATUS IN I935
must induce in the Free State a profound disbelief in the
seriousness of the British objections to Irish action.
2. WESTERN AUSTRALIA AND SECESSION
To the Editor of the Scotsman, i February igjg.
It is most unfortunate that the formal procedure regarding
the petition from Western Australia for the right to secede
from the Commonwealth should apparently be misinter¬
preted in Australia as suggesting that the British Government
and Parliament are proposing to sit in judgement on the
merits of the case. Such a course would be utterly unconstitu¬
tional, and it is regrettable that any idea of such a possibility
should be allowed to exist. 1
All that is to be decided by the Joint Select Committee,
whose appointment Lord Hailsham proposed yesterday, is the
formal question, Is the petition one which is proper to be
received by the Houses of Parliament on the score that it
relates to a matter within their competence, and is otherwise
in order? The case on this formal issue is quite different from
that on the merits. It is argued for the State that the Imperial
Parliament still is fully sovereign, and still can legislate to
override the Commonwealth Constitution which was granted
by an Imperial Act. Accordingly the petition of Western
Australia deals with a matter within its legal competence,
and should be considered as entitled to formal reception,
despite the patent impossibility of giving effect to it. On the
other hand, it is argued that it is erroneous to treat the matter
as one of formal legality; granted that the Imperial Parliament
could legislate to destroy the Commonwealth, nevertheless
such action would be utterly unconstitutional, and a petition
asking for action of this type would be wholly improper to
be received.
1 This letter repeats the substance of a communication made at the request
of the Australian Newspapers Cable Service,
DOMINION STATUS IN I935 345
It is easy to adduce arguments to support either view, but
there is no doubt whatever that every consideration of
expediency and constitutional propriety, which ranks far
above bare legality, tells in favour of a refusal to receive the
petition. It is impossible not to regret that Western Australia
should have placed both the Crown and Parliament in so
embarrassing a position. The precedent of Nova Scotia in
1868 at the very beginning of federation in the Empire should
have sufficed to remind the politicians of the State that,
having entered an indissoluble federation, they must seek
salvation within the Commonwealth. Their case is far inferior
to that of Nova Scotia, which was brought into federation
without an opportunity of dissent being afforded to the people,
whereas Western Australia decided on joining the Common¬
wealth by a decisive referendum.
3. DOMINION FISHERIES AND IMPERIAL
DEFENCE
To the Editor of the Scotsman, 6 February 1935 .
Perhaps it may be of interest to supplement the decidedly
uninformative reply given by Mr. J. H. Thomas to Sir
M. McKenzie Wood yesterday regarding the penalty imposed
on a Scots fisherman for fishing within three miles of the shore
in Lough Swilly.
The origin of this discrimination between classes of British
vessels is to be traced to the agreement regarding Common¬
wealth merchant shipping negotiated and signed by Mr.
Thomas on December 10, 1931. That agreement expressly
derogated from the rule that legislation in any part of the
British Commonwealth should be based on a regime of
equality towards all British shipping, wherever registered, by
providing by Article 12 that ‘nothing in the present agreement
shall be deemed to restrict the right of each part of the Com¬
monwealth . ., to regulate the sea fisheries of that part. This
346 DOMINION STATUS IN 1935
agreement, signed in anticipation of the coming into operation
of the Statute of Westminster, 1931, which abrogated the
restrictions hitherto binding on Dominion legislatures in
matters of shipping under the Merchant Shipping Act, 1894,
was deliberately framed in order to permit of exclusion
of United Kingdom vessels from the Free State fisheries.
Naturally, therefore, when the Sea Fisheries Protection Act,
1933, was passed, the Dominions Secretary could not protest
against action which he had deliberately agreed to for His
Majesty’s Government in 1931.
To many of us, no doubt, the surrender in 1931 on the issue
of shipping appeared unnecessary and undesirable in view of
the fact that the sea defence of the Commonwealth was still
left essentially a burden on the British people, and in return
equality of treatment for all British fishing vessels might have
been expected. But the Free State has the excuse that defence
by sea was withheld from her by the treaty of 1921, and
Mr. Pirow, 1 now the official exponent of South Africa’s
attitude to the Commonwealth, has made it disconcertingly
clear how little value is attached to the British fleet, a view
to which we must suppose that General Smuts is now a convert.
Mr. Pirow’s candour is refreshing, but it is a pity that he did
not explain whether the difficulties which have arisen regard¬
ing acceptance of the request of South-West Africa for in¬
clusion in the Union are connected with the possible return 2
of that territory to Germany, or whether he expects the
British Government to surrender control of Tanganyika.
And, in the latter event, in view of German rearmament in
defiance of treaty, how does he expect to restrain Germany
from that use of native forces which so deeply impressed
General Smuts from his war experience as a danger of the
most serious kind to the Union?
1 See his address to the Imperial Press Conference, 5 Feb. 1935, which
followed on his assertion of hope that Germany would again become an African
Colonial Power (The Scotsman , 24 Jan. 1935).
2 See V, No. 23.
347
DOMINION STATUS IN I 935
4. THE GOVERNMENT OF INDIA BILL
To the Editor of the Scotsman, 25 January 1555.
Whatever excuses are available, the failure to mention
Dominion status in the preamble to the Government of India
Bill is a profound error. It is entirely in keeping with the
deliberate efforts made by the Ministry to minimize the
significance of Lord Willingdon’s reiteration of Lord Irwin’s
promise, and in view of the precedent of 1919 it is impossible
not to expect Indian opinion to regard the omission as
indicating that the present Government is out of sympathy
with Indian aspirations.
Of the details of the Bill, it is sufficient to point out that
a most unfortunate departure from the report of the Joint
Committee has been made in refusing to accord to the
Federal Court the decision of the effect of federal laws. The
failure to grant this power in the White Paper proposals was
a serious defect in them, and the fact that the Government has
refused to follow the advice of the Committee is deeply
regrettable. It is impossible to imagine any valid ground for
the attitude adopted.
It is, further, most unfortunate that the Bill is still framed
so as to ignore a fundamental principle of responsible govern¬
ment, the rule that it is the right, and indeed in certain
circumstances the duty, of the Governor under responsible
government in its initial stages to refuse the advice ofMinisters
if he is satisfied that they do not represent the wishes of the
electorate, and that in the event of their resignation in con¬
sequence of his refusal he will be able to secure Ministers who
will accept responsibility for his action, and obtain the support
of the majority of the Lower Chamber—whether with or
without a dissolution—for their action. The Bill proceeds on
the assumption that the Governor can refuse advice only
when he is expressly required under the measure to act in his
discretion or to exercise his individual judgement, and thus
deprives him even of the legal right to proceed on the usual
348 DOMINION STATUS IN 1935
principles of responsible government as practised in the self-
governing Colonies. 1 On matters entrusted to the Governor’s
discretion Ministers are deprived by law of the right to tender
advice, though these matters include such an issue as that of
dissolution, a question normally and properly for Ministerial
initiative.
The Bill, like the White Paper, leaves utterly unsatisfactory
the power of the Federal Legislature, Executive, and Judiciary
over federating States, and, if federation should be effected
on the basis of its terms, it will be a federation utterly imperfect,
and will result either in dissolution or in a revision in which
State rights will be drastically extinguished.
5. INDIA AND DOMINION STATUS
To the Editor of the Scotsman, 12 February igjj.
It seems only fair to Lord Irwin to point out that his state¬
ment as to Dominion status for India was merely the logical
outcome of the decisions taken by Mr. Lloyd George’s Govern¬
ment. In August 1917 India was given a promise ultimately
of responsible government as an integral part of the British
Empire; that phraseology precisely described the status of the
Dominions at that time, and that ultimate assimilation to the
Dominions was intended was made plain by the fact that in
April the Imperial War Conference had decided that India
was to be admitted to membership of the Imperial Con¬
ference, from which she had been excluded by the constitu¬
tion laid down for the Conference in 1907, simply because she
did not enjoy responsible government. Any doubt, however,
as to the intention of the British Government disappeared
when Mr. Lloyd George spontaneously decided that India
must be given the same status as the Dominions in the League
of Nations. That claim was justifiable only on the under¬
standing that India was destined to have precisely the same
autonomy in external relations as the Dominions.
1 See II, No. 25.
DOMINION STATUS IN I 9 3 5 g^g
Sir Thomas Inskip 3 I fcar 3 has rather darkened counsel
than shed light on the position.
(1) Granted as obvious that Dominion status means nothing
apart from the Empire, that does not imply that Dominion
status may not involve the right to sever connexion with the
Empire, to pass beyond that status to full independence. No
value whatever attaches to the argument from phraseology.
(2) Whether the right to advance to full independence is
included in Dominion status is disputable. The difficulty in
the way of negativing it lies in the fact that the Leader of the
House of Commons and head of the Conservative party,
speaking with the utmost deliberation in the House of Com¬
mons on March 30, 1920, declared that Dominion Home
Rule implied the right of self-determination and secession.
I have been unable to find a single denial of this view by any
Cabinet Minister speaking in Parliament with like authority.
General Hcrtzog claimed the right at the Imperial Conference
of 1926, and unfortunately, instead of expressly negativing it,
the Conference in its declaration of status used the term
‘freely associated’, which is a very different thing from Mr.
Baldwin’s ideal of ‘India, with the rest of the Empire, banded
together indissolubly under one British Crown’. The Con¬
ference of 1930 seemed to negative secession by unilateral
action by providing that alteration in the succession to the
Throne should require the assent of the Dominions and the
United Kingdom Parliaments, but General Hertzog denied
that this provision was intended to negative the right of
secession, and both Houses of the Union Parliament accepted
the Statute of Westminster expressly on this understanding.
(3) It is misleading to say that the Statute of Westminster
did not mention and did not define Dominion status. In fact,
it alludes in the preamble to the declaration of that status,
and recites that it was enacted to ratify, confirm, and establish
inter alia the declaration. It is further impossible to agree
that ‘it is idle to contend that the Statute altered Dominion
status at all’. It was passed to give the force of law to that
350 DOMINION STATUS IN I935
status by sweeping away all legal restrictions on its exercise;
it converted a political theory into constitutional law. Under
its terms the Union Parliament has created itself the sole
legislative authority in the Union, and has conferred on the
Governor-General, selected by the Union Government and
removable by it, the power to exercise on the advice of the
Union Government every function of external as well as of
internal authority. General Hertzog claims that the Par¬
liament can now authorize the Executive to declare the Union
neutral in a British war, and can terminate the connexion of
the Union with the British Crown. The King’s assent to the
Status of the Union Act and the Royal Executive Functions
and Seals Act of 1934 was given with full knowledge of the
meaning placed on these measures by the Prime Minister of
the Union and clearly the majority in Parliament, and it will
be most interesting to note the reaction of General Hertzog
to the Attorney-General’s repudiation of the right of secession
as inherent in Dominion status, a repudiation which must
play directly into the hands of the Republican faction in the
Union.
6. A DOMINION’S NEUTRALITY
To the Editor of the morning post, 20 February 1Q35.
It is rather disconcerting for his Majesty’s Government to
find, so soon after the effort of the Attorney-General to
negative the view that Dominion status implies the right of
secession, that General Hertzog has no doubt as to the right
of the Union to remain neutral in a British war, or of Union
nationals to trade with His Majesty’s enemies. As His
Majesty’s Government has at no time denied the validity of
General Hertzog’s claim, we can only suppose that it is not
prepared to contend that General Hertzog’s view is unsound
in view of the passing of the Status of the Union Act of 1934.
But exception must be taken to General Hertzog’s con¬
tention that the position of Simonstown is analogous to that
of Gibraltar. Gibraltar is British territory, held absolutely
35 1
DOMINION STATUS IN I 935
independently of Spain, and the Spanish Government owes
no obligation to defend Gibraltar or to aid the British Crown
in its defence. Spain can remain neutral in a British war, and
no Power can question the validity of that neutrality.
But the position as to Simonstown is wholly different.
When the British Government by agreement with the Union
Government in 1921-2 handed over to the latter control of
defence by land, it transferred all War department lands and
buildings in which the Admiralty was interested, subject to
the reservation that the Admiralty would be secured in the
right of perpetual user for naval purposes of all lands and
buildings which they then occupied. The Union Government
also agreed to undertake responsibility for the Cape peninsula
land defences, including those of the naval dockyard at
Simonstown as a base and naval fuelling station of the British
Navy, and to keep them in a state of defence for Imperial
purposes, so that the station would at all times be able to
discharge its functions as a naval link in the sea communica¬
tions of the British Empire.
I11 view of these facts it is simply impossible to claim that
any enemy Power would be under any obligation at inter¬
national law to respect neutrality if asserted by the Union,
and Mr. Pirow showed greater comprehension of international
law than does General Hertzog when he admitted that
foreign Powers might not respect Union neutrality.
In fact the position of the Union is very like that of the
Irish Free State. As Mr. de Valera has frankly admitted, the
obligations of the State to the United Kingdom as regards
facilities for naval defence are legally incompatible with any
claim to be treated as neutral by an enemy.
7. THE PRINCES OF INDIA AND FEDERATION
To the Editor of the Scotsman, i March 1935.
Such particulars as are here available regarding the
demands of the Indian Princes show forcibly how erroneous
352 DOMINION STATUS IN I935
have been Sir S. Hoare’s tactics in insisting that their acces¬
sion is essential to the Governmental scheme of Indian reform.
He has thus encouraged them to put forward demands which
are clearly based on the belief that he will be compelled to
make unwise surrenders in order to save his plan from
shipwreck.
Nothing is more significant than the criticism of the instru¬
ment of accession on the ground that it is not in the form of a
bilateral agreement between the States and the Crown, and
does not include any covenant on the part of His Majesty
preserving inviolate the treaties and agreements concluded
with the States. The essence of this project is to place on a
completely new basis the relations of the States and the
Crown by obtaining from the Crown, in consideration of
accession to the federation, the reaffirmation of existing
treaties and agreements. The Princes will then be entitled to
claim the literal execution of the treaties, and will be able to
assert that to apply to them the traditional methods of inter¬
pretation of the Government of India would be utterly unjust.
It is, of course, well known that many of the existing treaties
have long ceased to be applicable to the present position of
the Crown, and that the literal meaning has long been dis¬
carded by usage. It is the natural, but in the interest of India
most dangerous, wish of the Princes as the price of a certain
surrender of authority to the federation to secure freedom in
future from the interference of the Crown as regards the rest
of their sovereignty, which, of course, includes the matters of
greatest interest to them. Above all, they are determined to
obviate any possibility of the Crown bringing pressure on
them to establish some semblance of the rule of law and
representative government in their territories.
To weaken in any measure the power of the Crown to
protect the interests of the people of the States for the sake of
securing accession to federation would be wholly unfair. It is
the power of paramountcy which has enabled the Crown to
secure at present due administration in Alwar, Dcwas (Senior
DOMINION STATUS IN I935 353
Branch), and Jhabua, to restore order in Kashmir, to save
Indore twice within comparatively recent times from grave
misrule, and to preserve British administration over the Berars.
When States are still in some cases so backward that here and
there one meets cases of what is practically domestic slavery,
it is imperative that the Crown should retain its ultimate
power of unfettered control in the interest of the State, for the
pax Britannica forbids the people of any State to rid themselves
of an unwanted ruler by revolt.
8 . SOUTH AFRICA AND APPEALS TO THE
PRIVY COUNCIL
To the Editor of the Scotsman, 26 February 1935*
It is easy to sympathize with General Smuts in his criticism
of the action of the Privy Council in the case of the Pearl
Assurance Co. v. Government of the Union of South Africa. 1 The
issue involved was a purely technical point of Union law,
arising from the difficulty of determining whether a sum
named in a contract as payable on breach is a genuine pre¬
estimate of loss or a penalty, and the Privy Council affirmed
the decision of the Supreme Court, but held that the view
of the majority of that Court as to the onus of proof was
incorrect. Even assuming that the view of the Judicial Com¬
mittee is more in harmony with Roman Dutch law as de¬
veloped in the Union than was that of the Court below, it is
surely undeniable that it is contrary to public policy that such
minutiae should be decided at great cost in London. There
is no real answer to the view of General Smuts that the
essential justification for retaining the appeal from the Union
is the possibility that it might be valuable in the case of a grave
constitutional issue, just as in Canada the movement for the
abolition of the appeal is held effectively in check by the
strong feeling both in Quebec and in the English-speaking
provinces that instances may arise in which an impartial
1 [i 934 ] A.G. 57 °-
a a
354 DOMINION STATUS IN I935
tribunal outside the Dominion might be able to render a
decision with greater chance of general acceptance.
Unfortunately, the Judicial Commitee has never acted upon
the view, more than once enunciated on its behalf by Lord
Haldane, 1 that its essential function is deciding constitutional
issues, where the Dominions are concerned. In the case of the
Irish Free State, the bitter contest between the Committee
and the Government of the State was initiated by the former
granting leave to appeal on what was merely the issue of the
correct interpretation of the Irish Free State Land Act, 1923,
an action declared by Mr. Kevin O’Higgins to be a very clear
and definite departure from the undertakings given to Irish
ministers when the draft constitution was under consideration,
while recently the dangerous question of the validity of Irish
legislation abrogating the appeal has been raised, not on an
important constitutional issue, but on a purely technical and
very obscure point of statutory interpretation as to fishery
rights on the Erne.
It may be hoped that the Union Government will not feel it
necessary to follow the example of the Free State and abolish
the appeal outright. It would suffice to limit it by Union Act,
as full power to do exists, to cases involving the interpretation
of the Union Constitution. But the danger is that, if the Union
once starts legislation, it may be impossible to avoid abolition
in to to.
1 See Whittaker v. Durban Corporation, 90 LJ.P.C. 119.
INDEX
Aberdeen, Marquis of, views on Home
Rule criticized, 27, 28.
Administration of justice, elimination
of Grown from connexion with, in
Ireland, 138, 143, 144.
Administrative discrimination against
British trade interests in India, ne¬
cessity of legislative prohibition of,
217-21, 226, 227, 233.
African population in Kenya, para-
mountcy of interests of, 187, 188;
not in Union of South Africa, 74-6,
Afrikaans-speaking population, pre¬
ferential treatment of, in Union,
231.
Aga Khan, H.H., views of, 184.
Agreements as to pecuniary arrange¬
ments between United Kingdom
and Irish Free State, usually con¬
firmed by legislation, 133.
Air Navigation Convention, 1919,
Dominions’ position under, 13, 14.
Albania, renunciation (1926) of extra¬
territorial jurisdiction in, 72.
Allegiance, as bond of Empire, 34,
125; denied in Irish Free State, 30,
32, 125, 134, I 35-
Allen, Hon. Sir James, New Zealand,
17, 18, 310.
Alteration of constitution requires
mandate, 256, 257, 258.
Alverstone, Lord, accused of neglect¬
ing Canadian interests, 83.
Alwar, interests of, protected by
Governor-General (1933), 352.
Ambiguity of Union of South Africa
legislation, 165.
American colonies, loss of, warning
from, ignored, 142, 144.
Amery, Rt. Hon. L., 67, 279, 280.
Anglo-French conversations on dis¬
armament, 1929, result not early
communicated to Dominions, 80
317.
Anglo-Japancse commercial treaty,
1911, 315; treaty of alliance, 37;
termination of, 315, 316.
Annuities, land purchase, dispute
over, between British and Irish Free
State Governments, 116, 117, 126,
127, 131-3.
. Appeals from Dominions to Privy
Council, 25, 26, 35, 36, 55, 56, 61,
78, 79 , 89-9*1 99 ” IOI > *08, 109,
*36,137)138,i39>143,t47-9,172;
should be restricted to constitu¬
tional issues, 353, 354.
Appointment of Governor-General,
change of responsibility for, 129.
Arabs, their grievances under man¬
date for Palestine, 319, 320.
Arbitration on breach of concessions
or cancellation, how far obligatory,
323, 324; on Irish Free State share
of British debt, 194; on annuities,
116, 117, 126,127,131-3; on Indian
debts, 194.
Armed forces, elimination of Crown
from connexion with Irish, 138,144.
Armenia, refusal by United States of
mandate for, 309.
Arms Traffic Conference, 1925, Legal
Committee of, on inter-imperial re¬
lations, 84.
Army in India, Esher Committee on,
181, 184, 185.
Army in United Kingdom, the King’s
relation to, 247.
Arthur, Rev. Dr., on Kenya problems,
187.
Asquith, Rt. Hon. H. H., Lord Ox¬
ford and, 4, 11, 27, 29, 30, 38; his
view on dissolution of Parliament,
57 -
Assent of Crown to Bills in Irish Free
State, refusal of, impossible, 34, 35,
1 39 ) 145 -
Astor, Lord, on reforms of House of
Lords, 257.
Atholl, Duchess of, 262.
Autocracy in federal centre in India,
214, 215; used to counter demo¬
cracy, 216, 218, 232, 233.
Autonomy in India, development of,
181, 182, 184, 185.
Baillie, Sir Adrian, M.P., on the
privileges of the House of Commons,
257.
Baldwin, Rt. Hon. Stanley, 45,57,64,
65, 75) i5 6 > J 95) 217, 218, 219, 251,
252, 349 -
Balfour, Rt. Hon. A. J., Lord, 69,116,
149, 160; his definition of Dominion
status, 64, 65.
Bangalore, retrocession of, to Mysore
contemplated, 218 n.
Banks, Sir R. M., 126.
a a 2
INDEX
358
Commonwealth Merchant Shipping
Agreement, 95, 102, 103, m, 112,
345>346.
— of Australia, appeals from, 90;
constitutional change in, subject to
referendum, 94; debt to United
Kingdom, 42, 43; does not claim
right to neutrality or secession, 155,
169; Egypt and, 316; Governor-
General of, chosen by government,
129; hereditary honours unpopular
in, 299; imperial preference in, 9,
10; Labour Party in, 8, 103; mili¬
tary service referendum, 7-9, 10;
navigation policy in, 103; relations
of, to States, as regards debts, 283-
9; honours, 301, 302; secession from,
172-5. 344. 345-
-Constitution Act, 1900, 5, 286.
Communication, channel of, between
British and Dominion governments,
3, 5, 10, 11, 39-41, 61, 62, 64.
Compulsory service in war-time, 6,
7-9.
Concessions of tribute payments to
induce accession of Indian States,
218 n.
Confiscation of private property, by
U.S.S.R., acquiesced in by British
Government, 323.
Conflict of Laws , Dicey and Keith, re¬
ferred to, 333 n. 2, 337 339 n.
Congress, Indian National, banned by
Indian Government (1932-4), 217.
Connecticut, corporate colony, 291*
a quasi-republic, 144.
Conquest, affords no moral ground for
retention of territory, 307.
Conservative and Unionist party in
United Kingdom, 28, 200, 251,
252, 253, 255, 262.
Constitution (Amendment No. 17)
Act, 1931, Irish Free State, validity
of, 157.
— (Amendment No. 20) Act, 1933,
139. H3-
— (Amendment No. 21) Act, 1933,
* 39 j 143*
— (Amendment No. 22) Act, 1934,
139, 143.
— (Removal of Oath) Act, 1933,
Irish Free State, 157,172.
Constitutional conventions, 273, 274.
Constitutional Law of England , by
Ridges (ed. Keith), 57 249 n.,
2 " 0 n.
Constitutional Law of the British Do¬
minions, by A. Berriedale Keith
( 1 933 )j 17 72 n., 130 n., 132
155 ’
Constitutional questions, Privy Coun¬
cil jurisdiction should be restricted
to, 354.
Constitutional Studies , by Sir R. Borden
60. *
Consultation of Dominions, not
adopted by British Government as
regards Newfoundland, 298, 299.
Convention based on reciprocity as
safeguard for British interests in
India, 192, 193, 201, 202 207,
219; draft of, 234-44.
Copyright Act, 1911, 297.
Cosgrave, W. T., President of Council
of Irish Free State (1922-32), 116
1 19 . 132, 134 , 135 . 136, 13B, 140'
J 42j I 43 ? J 45 > *48? 155, 157.
169, 222.
Courts, should be given power to con¬
trol executive discrimination in
India, 193, 196, 217, 219-21.
Covenant of the League of Nations:
Art. 10, 45, 48.
Art. 20, 315,
Art. 22, 312, 319, 328-31.
-_— and the Dominions, 52,53,62.
Criminal Code Amendment Act,
1933 . Canada, abolishes criminal
appeals to Privy Council, 93, 139,
148 n.
Cripps, Hon. Sir Stafford, 121,125 n. 1,
127, 128, 172 n., 258.
Crown, elimination of, from authority
in Ireland by Mr. Cosgrave, 138,
141, 143, 144, 145, 155; see His
Majesty the King.
Danesfort, Lord, 147.
D’Arcy Concession, Persia, 321.
De Chair, Vice-Admiral Sir Dudley,
Governor of New South Wales
(1923-30)^279-82.
Dc Valera, E., President of Council
of Irish Free State since 1932, 116,
117-20, 125, 12G, 127, 128, 129,
130, 13L 133 . 134 . 135 . 136, 13B,
139, 140, 141, 143, 144, 145, 146,
i 49 j 151, 153) 155) i 5 6 ) 159)
184 167, 169, 343, 351.
Debt, British, not shared by Irish Free
State, 201.
— of Commonwealth of Australia, to
United Kingdom, 42, 43, 107, 108.
— of India, proposed reduction of,
194, 201; British responsibility for,
227, 228.
INDEX
359
Declaration of 1917 of British policy
in India, 200, 213.
Default by New South Wales Govern¬
ment, 283-9.
Defence, see Imperial defence.
— of India, Imperial concern with,
186, 188, 189, 215.
— of the Realm Act, 1914, 223.
Depressed classes, in India, require
protection, 193, 204, 214.
Devolution for United Kingdom,
258-62.
Dicey, Professor A. V., on constitu¬
tional conventions, 273, 274.
Dictation of policy by section of com¬
munity, 311; by strike action, 263-5.
Diplomatic privilege, restriction of,
333’ 334*
— representation of the Dominions,
25. 30 . 4 6 . 47 . 49 - 52 , 136. _
Disallowance of Dominion legislation,
16, 35, 66, 72, 92; abolished for
Union of South Africa, 159, 170,
171; of State legislation in Australia,
272, 273, 274, 275.
Disarmament Conference, 1921, 24,
25.
Discrimination against British trade in
India, safeguards against, 192,195-
7, 198, 202-7, 210-21, 226, 227,
230-3; draft convention to prevent,
234-44.
Discrimatory measures in India against
Dominions (now permitted under
Government of India Bill of 1935)’
211, 226, 227.
Dismissal of Governor-General of
Irish Free State, 104, 129-31, 134,
15 8 . ^9.161,163,262.
— of Ministers, by Crown Governor-
General, 160, 164, 270, 271, 273,
274, 283-9.
Disputes between parts of Empire,
not international in character, 87,
88, 89, 131, 132.
Dissolution of Indian legislatures not
to be on ministerial advice, 210,
212, 348. . ,
— of Parliament, in United Kingdom
and Dominions, principles affecting,
56-60, 249, 250. .
Diversity of function, not recognized
by Dominions as desirable, 160.
Divisibility of the Crown, 65; estab¬
lished bv Union of South Africa
legislation, viii, 166; see Personal
Union.
Divorce jurisdiction, 337—9.
Doherty, Hon. C. J., Canada, 46.
Domicile as sole basis of divorce juris¬
diction, 337; derogations from prin¬
ciple, 337-9*.
Dominion, origin of style, 296, 297.
— British subjects, in India, 199, 226,
227.
— Courts, should be given jurisdic¬
tion to divorce persons of English
or Scottish domicile, 338, 339.
— fisheries, exclusion of British sub¬
jects from, 345, 346.
— Home Rule, 349; see Dominion
status.
— loans, no British responsibility for,
227, 228.
— Ministers at foreign Courts, 25,
30, 46, 47, 49-52; accredited by the
King, 136.
— representation at Conferences, vii;
at Peace Conference, vii, 12, 13.
— status, characteristics of, 18, 19,29,
30 ’ 3 2 ’ 33 ’ 34 ’ 135 ’ * 37 ’ * 4 °’
141, 142-4, 145; Union of South
Africa, view of, 158-69; as developed
in * 935 ’ 343 - 54 *
-for Incia, 181, 200, 201, 209,
213,216,217,221,222,226, 348-53.
-for Scotland, 261, 262.
Dominions, part of British Empire or
Commonwealth ofNations, 111,112.
— and League of Nations, see League
of Nations.
Dudley, Earl of, refuses dissolution of
Commonwealth Parliament, 270.
Duke of York and Canberra, proposed
style of, 300, 301.
Durham, Earl of, his Report of
Canada, viii, 28.
East India Company, liable to suit,
228.
Ecclesiastical influence on elections, in
Canada, 294; in Malta, 292, 293,
294.
Economic sanctions against Ireland,
futility of, suggested in 1932, 32;
proved in 1935, 343, 344*
Egypt, British relations with, 37, 77,
80,181,186,316-19.
Election petitions, unfair treatment of,
in Ma.ta, 293, 294; no appeal lies
to Privy Council regarding, 292 n.
Elimination of Crown from interven¬
tion in government of Irish Free
State, 138, 141, 143, 144 ’ * 45 > I 55 *
English language, hostility shown to,
in Malta, 293, 294, 295.
INDEX
360
Equality as essence of Imperial rela¬
tions, 277.
Erne, river fisheries question, appeal
to Privy Council (Moore v. Att.-Gen.,
[1934] I. R. 34), 137, 354 -. T J .
Esher Committee on Army in India,
181, 184, 185.
European Delegation from India to
Round Table Conference, 198;
draft Convention prepared for,
202 «., 234-44.
— minorities, Canadian interest in,
317, 318. ^
Europeans in India, criminal pro¬
cedure affecting, 223.
Ewart, J. S., Canada, 25.
Exclusion of Indians from Dominions,
7,179,226.
Executive action in India to provide
for British traders’ safeguards, in¬
adequacy of, 217, 219-21, 226, 227.
Extension of duration of Parliament,
in Union of South Africa, 158, 160,
169.
External sovereignty, normally exer¬
cised by the King but in Union may
be exercised by Governor-General,
158, 161, 162, 163, 164.
Extraterritorial rights of Crown con¬
trolled by British Government, 71,
72.
Faith, inadequate to solve vital poli¬
tical issues, 169.
Federal constitution for United King¬
dom, 258-62.
— laws, in India, ought to be inter¬
preted by Federal Court, 347.
Federalism, disadvantages of, 5-7,
172-5, 259, 260.
Federation for India, recommended
by Simon Commission, 188.
Finances of India, safeguarding of,
215, 229.
Financial Adviser to Governor-
General of India, 229.
— Agreements Enforcement Bill (later
Act, 1932) of the Commonwealth,
284, 285.
— cost of federation in India, 224,
228, 229, 230.
— obligations of governments, invalid
without Parliamentary approval,
132.
— safeguards in India, 227-30.
— stability, danger to, results in con¬
stitutional change, in Malta, 230;
in Newfoundland, 228, 229.
Finlay, Lord, 324.
Fiscal Convention, Indian, 1919-21,
197.
Fisher, Rt. Hon. A., Australia, 4.
Fisheries, Dominion power over, 345,
346.
Five-year limit of Ottawa agreements,
comment on, 113-15.
Flag, in Dominions, 73, 74,
Fleet, British, not appreciated in
Union of South Africa, 346.
Foreign policy, first explained to Do¬
minions in 1911, 37, 38.
-unity of, 22, 26, 40, 41, 46-9,
61-3; see also Neutrality and Se¬
cession.
Fraud, normally ground of impeach¬
ment of judgement of divorce,
338-
Full powers, under Great Seal of
Realm, for treaty signature and
ratification, issued by King on im¬
perial ministerial advice, 15, 41, 42,
82, 83, 102; on sole advice of Do¬
minion ministry, 101; under local
seal in Irish Free State, 115; in
Union of South Africa, 161; may
be issued in Union by Governor-
General, 163.
Game, Air Vice-Marshal Sir Philip
W., Governor of New South Wales
(i 93 °-r>). 262—9.
Gandhi, M. K., Mahatma, 194, 201,
203, 206.
Gavan Duffy, G., Irish Free State, 32.
General strike, 1926, the State and the,
26.4, 265.
George III, dismisses Ministry of Fox
and North, 270; of Grenville, 270 n.\
loses American colonies, 144.
George V, see His Majesty the King.
German colonies, principles affecting
disposal of, 307.
Germany, 76, 83, 308, 328; see South-
West Africa.
Gilmour, Rt. Hon. Sir John, criti¬
cized, 230.
Government of India Act, 1915, 179.
- -,1919,224,225.
-Bill, 1935, 347 - 5 ‘>-
— of Ireland Act, 1920, 222.
Governor or Governor-General of
Dominions, position and functions
of, 15, 56-60, 61, 62, 64, 65, 67-9,
101, 103-6, 158,161, 163, 209, 210,
212, 250, 269-71, 279-89; removal
of, 104, x 29-31, 134, 158, 159, 163,
INDEX
262; suggested abolition of office,
134, 136.
Governor-General of India, functions
of, under reform scheme, 1934-5,
208, 211, 215, 226, 228, 229; re¬
lations of, to Indian States, 193,
203.
-- of Irish Free State, 34, 104,
129-31, 1 34, *3 6 , *59- 4
-of Union of South Africa, 158-
61; ceases to be High Commissioner
for South Africa, 194, 203.
— of New South Wales, attitude of,
to abolition of Legislative Council
(1926-7), 279-82; (1930, 282,283;
to repudiation of debt, 283-9.
— of Queensland, Acting, unconsti¬
tutional action of, as a political
partisan, 271, 272, 274.
.— of Tasmania, Acting, assents to
Bill illegally passed, 104.
Governors of Australian States, 269-
71.
— of Indian Provinces, functions of,
under reforms scheme, 1934-5, 2 °8»
209, 2io, 211, 212, 215, 226, 229,
232, 233.
Grand Trunk Pacific Railway ques¬
tion, 278.
Gratitude, unknown in political life,
231.
Great Seal of Realm, see Full powers.
Greece, and Mavromattis claim, 324.
Grenville, Lord, Ministry of, dis¬
missed in 1807, 270.
*45, *50, *5*, *54, *56, 167, 222,
349, 350-
Hicks Beach, Rt. Hon. Sir M., 72.
High Commissioner for Basutoland,
Bechuanaland Protectorate, and
Swaziland, 203.
— Commissioners for the United
Kingdom in Dominions, 64, 65,
— Court of Commonwealth, decision
as to Financial Agreements En¬
forcement Act, 1932, 285, 286.
Hindus and Mohammedans, feuds
between, 185, 186, 214.
His Majesty the King, position of, in
United Kingdom, as to dissolution,
56, 57, 61, 67, 68, 249, 250, 269-71;
as to House of Lords, 254, 255, 256,
257; as to military forces, 247; in
Commonwealth of Australia, ap¬
points Governor-General, 104; in
Irish Free State, 115, 122, 129, 134,
*35, *36, 138, 14*, *45; i* 1 Union
of South Africa, 158, 160, 162, 163,
164, 165, 350.
Hoare, Rt. Hon. Sir S., Secretary of
State for India, criticisms of, 207,
208, 209-12, 217, 219, 221, 225,
226, 227, 228, 233, 352.
Hogan, Hon. E. J., Victoria, 107,108.
Home Rule as distinct from Dominion
status, recommended for Ireland,
21, 22, 26, 27.
Honours, in the Dominions, 299, 300;
in United Kingdom, 249.
— (Prevention of Abuses) Act, 1925,
Grey, Viscount, 17. . . _
Griffith, A., President of Irish Free
State, 120.
Haklarabatl, its claim to the Berars,
215,218,353.
Hailsham, Viscount, criticism of his
views on Irish legislation, 147, *49,
150; on House of Lords reform pro¬
cedure, 256, 257; referred to, 344.
Haji, S. N., Ins Bill to reserve to Indian
ships the coastal trade, 201.
Haldane, Viscount, 138, 354- , .
Hanover and Great Britain, relations
of, 66, 7*, *23*
Harbours in Irish Free State open to
British shipping, 21.
Harcourt, Rt. Hon. L., 3, **• . t
Hereditary honours in the Dominions,
299, 300.
Hertzog, Gen. Hon. J. B. M., Union of
South Africa, 60, 74, 75, 7<b 77, 7®,
79, 82, 95, 98, 97, 98, *01, 104,105,
249 n.
House of Lords, constitutional rights
of, 253, 254; reform of, 254-8; un¬
constitutionality of swamping since
Parliament Act, 1911, 275; use of
prerogative to avoid control of, 167.
Hughes, Rt. Hon. W. M., Australia,
7-9, 10, 12, 13, 25, 36-41, 59, 6i,
95, 3*6-
Immigration of Dominion British sub¬
jects into India can be controlled by
India, 179, 226; Irish into Scotland,
7 * ■
Immunity of Indian Ministers in 19*9
constitution, constitutional objec¬
tions to, 181, 182.
Imperial Conference, 1911, 24.
- 1923 , 44 , 45 , 52 .
-1926, 61-3, 65, 66, 69-73, 87,
88, 9I, 103, 127,139,149, *59, *6°,
164, 191, 281, 349-
-1929, 9*“3, 94, 97, *43, *59-
INDEX
362
Imperial Conference, 1930, 101, 102-
6 ,no, 127,129,130,136,139,154,
159 , 170, 171. 349 -
— Conference Resolutions have no
binding force, 24, 44-6.
— defence, essentially left to United
Kingdom, 21, 22, 23, 40, 43, 107.
— Defence Committee, 3, 11, 37;
must consider possibility of Do¬
minion neutrality, 161.
— Federation, vii, 4-9, 93.
— Parliament, legislative power of,
162,173-5.
— preference, 9, 10, 43-5, 112-15.
— Unity, 10-12, 14, 15,40,41,46-52,
79»So, 85, 86, 87.
Imperial Unity and the Dominions (1916),
by A. Berriedalc Keith, vii, 11 n.,
26 58 n. 3 66 n., 67 n., 68 n.,
100 n.
Imperial War Cabinet, 11, 23, 24.
-Conference, 1917, 17, 24, 211,
226; 1918, 211, 348.
Independent status of Dominions, 18,
19, 21, 22, 29, 30, 32, 33, 34, 135,
136, 137, 140. H 1 . ?4 2 ~5-
India and the Dominions:
Dominion status for India, 92, 93,
97. 9 8 . 99. 109. 200, 201, 209, 213,
2l6, 217, 221, 222, 226, 348-50;
exclusion of Indians from Do¬
minions, 7, 92; of Dominion sub¬
jects from India, 179, 226, 227;
merchant shipping agreement, 1931,
applicable to both, in.
— Defence League, makes unreason¬
able demands as to pensions,
223-6.
Indian and Colonial Divorce Juris¬
diction Bill ( later Act, 1926), 337,
338 , , 339 -
— Civil Service under reform scheme,
182, 187, 194, 197, 208, 209, 224,
225.
— coasting trade, attempts to reserve
to Indian shipping, 192, 201; pro¬
posal to preserve open to British
registered shipping, 239.
— courts, divorce jurisdiction of,
337 - 9 -
— pensions, safeguards for, 223-6.
— Police under reform scheme, 197,
223.
— States, position of, under Indian
constitution, 1934-5. 188, X93, 203,
210, 214, 215, 216, 219, 218, 232,
233, 348; proposed commercial
convention applicable to, 243; safe¬
guard of paramountcy of Crown for
people of, 352, 353.
Indianization of Civil Service and
Police in India, 197; of army, 199.
Indians, exclusion of, from Dominions,
7, 92, 179, 226.
Indore, saved from misrule, 353.
Injunctions against strikers, failure to
apply for, in 1926, 264, 265.
Injustice by Parliaments, no legal con¬
trol on, 278, 279.
Inskip, Rt. Id on. Sir Thomas, Solici¬
tor-General, later Attorney-General,
in, 112, 290, 291, 349, 350.
Intelligence department of Indian
police, Governor’s reserved power
over, 233.
Inter-Imperial relations, character of,
as not international, 62, 84, 87, 88,
89, 112.
— — tribunal to settle disputes, ix, 66,
72. 73. 79. 83, 84, 100, 109, no,
III, 112, 116, 120, 121, 127, 131-3,
153 . I 7 U 172, 272, 273, 274,
2 75 *
International Commission on Air
Navigation, 13.
— Conventions on Radio Telegraphy
and Safety of Life at Sea (1912-14),
separate representation of Do¬
minions at, vii.
International Law , by Wheaton (ed.
. Keith), 335 n.
International law affecting cancella¬
tion of contracts with private per¬
sons, 321-8; as to diplomatic privi¬
lege, 333,334; regarding sea-dromes,
334 * 335 *
— status of Dominions, in League of
Nations, 42, 47, 48; see also Do¬
minion status.
— treaties, inter-Impcrial arrange¬
ments held not to be, 62, 84, 87, 88,
89, 112.
Invalidity of Dominion legislation
inconsistent with sovereignty of
Crown, 36.
Investors in Indian stocks, position of,
227, 228.
Iraq, Dominions not interested in
treaties with, 317.
Ireland, suggested settlement of, 18-
20.
Irish Free State: allegiance of, to
Crown, 125, 134, 135; appeal from,
55, 56, Gi, 89-91, 99-101, 108,109,
' 36 , 137 . 138, 139 . M 3 . 147-9.172,
354; citizenship in, 70, 150-6; con-
INDEX
stitution of, 33-6, 157; Constitution
Act, No. 1 of 19S2, 118, 1 ig, 122,
128, 131, '35. 157 ; effect of seces-
sion on nci.tiona.Hty of citizens of,
121-5, 146, 147; employs own dip¬
lomatic agencies, 25, 49~5 2 > Gover-
nor-General of, 1 29 ” 3 ^ > * 34 > * 3 ®,
1 cq 163, 262; international status
of, 29, 30, 115. ”6; oath of fidelity
in, 116-20, 125, 126, 131, I 34 > ! 35 >
1675 optional clause acccptcd^ by,
87 88* refuses to pay land annuities,
116, t’i7, 126, 127, 131-3; repeals
clause permitting reservation of
bills, 139, t43! provision for refer-
endum, 04 5 republican status oi,
18, i 9> 33,34; rights of secession
and neutrality claimed by, 149,150,
151, 167, 221, 222, 35G safeguards
ineffective in, 207, 219; sovereignty
of 31, 32; titles of honour in, 300 n.
Irish Free State Constitution Act No. 1
of 1922, invalidity of charge of, by
advisory legislation, 118, 11 9 )
128, 131, * 35 ». x 57 - .
— immigration into Scotland, 124.
_News and Information Bureau,
pamphlet issued by, I 4 ° ”■
Irwin, Lord, recognizes India Do¬
minion status, 150, 200, 209, 213,
216, 347, 348.
Isaacs, Rt Hon. Sir Isaac, Governor-
General of Commonwealth of Aus¬
tralia, 65 71., 104, 105, 106, 129.
Italian inlluence in Malta, 295*
Jam Sahib of Nawanagar, the late,
his views on safeguards, 194 n., 21b,
Tapanese, excluded from Australia, 71.
-— trade with India, 19^) $ ee
Japanese Treaty.
Joint Select Committee, on reception
of Western Australia petition lor
secession, 344 -
— — — Report on Indian Govern¬
ment, 1934, 198 202 n., 200
at3 n.j 218 n., 224 229 23G
232, 233, 347 * d Brcnt-
Joynson-Iiieks, Sir W., I ah a men
ford, his erroneous views on Indians
in Kenya, 182, 183.
Judicial Committee Act, 1844, * 47 ;
'justice and police, transfer of, essential
to responsible government, 214*
Kashmir, protected from anarchy,
353 *
363
Keating, Hon. J. H., part author of
Case for Union , 174.
Kellogg Pact, 1928, 79-81, 143, 146,
316, 320.
Kenya, equality of status for Indians
in, 182-4, *87, 188.
Kidston, Hon. W., Premier of Queens¬
land, 274.
King, see His Majesty,
— in Council, powers of, under South
Africa Act, 1909, transferred to
Governor-General in Council, 169,
170.
King of Egypt, unconstitutional ac¬
tion of, 318, 319-
Kingdom, Irish Free State as a
separate, 115, 134.
I Labour Conference, under Peace
| Treaties, 313, 314.
— organization clauses of Peace
Treaty, interpretation of, 313, 314.
— party in Queensland, confiscatory
proposals of, 271-7, 278.
-in United Kingdom, 218, 248,
249, 251 n., 252, 254, 255, 256; ob¬
jects to secret treaties, 311.
Lancashire, compulsion on Ceylonese
to purchase goods from, 302, 303;
not in case of India, 302.
Lang, Hon. J. T., New South Wales,
130, 279, 280, 282, 283, 284, 285,
286, 287, 289. _
Langevin election case, Roman
Catholic intervention in, 294.
Language, rights of English, not to be
safeguarded in Indian Constitution,
231; in Malta, 82, 293, 294.
Lauricr, Rt. Hon. Sir W., Prime
Minister of Canada (1896-1911),
4 ? 8, 7 j 9 > 38* R q
Lausanne, treaty of, 1923, 45, 4 °> 4 °»
49, 71.
Law, paramount duty of Governor
and Premier to obey, 285, 286, 287;
undesirable immunity of Indian
Ministers from control of Courts
under Constitution of, 1919 ( not
proposed in 1935); * 79 - , ,
— and order in India, see Justice and
police*
League Council, conciliation by, 325,
League of Nations, conduct of Do¬
minion relations with, 17? x °» d°“
minion votes in, 13, * 4 > x °> . 2 5 ;
independent position of Dominions
l in, 21, 22; India a member of, 181,
INDEX
364
200, 213; Irish Free Slate as mem¬
ber of, 30; Newfoundland not a
member, 296; neutrality possible
under Covenant of, 320, 321; pos¬
sible effect of, on unity of Empire,
4.0, 41 *
League of Nations and India, 181,200,
213, 348^
Lee Commission on Civil Services in
India, 197.
Legislation of Irish Free State, un¬
fettered character of, 35.
Legislative Council of Queensland,
nominated, improper swamping of,
271, 272, 274, 275, 276; abolition
of, 273 72 .
— discrimination in India, criticism
of governmental proposals for, 227.
Legislature, colonial, cannot surren¬
der duties without British Parlia¬
mentary approval, 297.
Letters Patent creating office of
Governor-General of Common¬
wealth of Australia, 106.
Liberal party, in United Kingdon, 28,
251, 252, 262; grants self-govern¬
ment to Boer colonies, 167.
Lighthouses, territorial waters around,
834 , 335 -.
Lightship, international position of,
335 - .
Limitation of Naval Armaments,
Washington treaty, 1922, 315 n .
Limitations, former, of Dominion
legislative power, 36; see Statute of
Westminster, 1931.
Lloyd, Lord, doubts effectiveness of
safeguards in India, 217; resigna¬
tion of office as High Commissioner
in Egypt, 316, 317.
Lloyd George, Rt. Hon. D., 29, 120,
144, 207, 209, 247, 248, 249, 250,
25L 259, 275 72., 312, 348.
Loans for India, Imperial Govern¬
ment’s responsibility for, 227, 228.
— to Dominions, control of Dominion
legislation affecting, ix, x, 66, 67,
72 , 73 j 9 ^ 99 , L 59 , * 70 - 2 ;
question of Commonwealth and
State responsibility for, 228, 283-9.
Locarno pact, 1925, 53-5, 317.
Lord Chancellor, objections to his sit¬
ting on appeals involving British
government’s policy, 172 n.
Louw, Hon. E., South Africa, 88, 89.
Lucan, Lord, warns Irish Free State,
146 n .
Lugard, Sir F. D., Lord, 185.
MacDermol, F., 140, 142, 222.
MacDonald, Rt. Hon. R., 57, 67, 68,
85, 86, 105, 156, 202.
Macdonald, Robert, M.P., 64.
M‘Gilligan, P., Minister of External
Affairs, Irish Free State, 116, 155,
156.
Mackay, Lord, criticism of his judge¬
ment regarding marriage of Indians
and Europeans, 339, 340.
Mackenzie King, Rt. Hon. W. L.,
Canada, 38, 54, 56-Go, 61, 65, 67!
68,69,80,81,317.
MacNeill, James, Governor-General
of Irish Free State, 129, 144, 159,
262.
MacNeill, Professor, Speaker of the
D/tii, 31.
MacNeill, Professor J. Swift, on disso¬
lution of Parliament, 270, 271.
McTiernan, E. A., Attorney-General
of New South Wales, 281.
Magna Carta, in respect of India, 222,
223.
Maintenance of order, responsibility
of Dominion Government for, 286.
Malta, ecclesiastical intervention in
elections, 292, 293, 294; King’s
Ministers in, 289, 290; Royal
Commission on, 292-4; safeguards
ineffective in, 229, 230; troubles
in, 294-6; validity of legislation in,
290-2.
Mandate necessary for constitutional
change, 256, 257, 258; supplied by
general assent in case of Newfound¬
land, 298.
— for Iraq, 312, 313.
— for Nauru, 312.
— for Palestine, 319, 320.
— for South-West Africa, 328-31.
— for Western Samoa, 307, 310, 31 r.
Maritime ports, Statute on Inter¬
national Regime of, 52,
Marriages between Indians and Euro¬
peans, alleged nullity of, 339, 340.
Marriott, Sir John, on referendum,
94.
Marwick, J. $., M.P., Union of South
Africa, 164.
Massachusetts Bay, corporate colony,
291.
Massey, V., first Canadian Minister at
Washington, 51 n.
Massey, Rt Hon. W., New Zealand,
. 43 - 5 *
Mavromattis Concession claim, 324.
Meighcn, Rt. Hon. A., 54, 69.
INDEX
Merchant shipping, control of, 92, 94,
95, 102, 103.
~ Act, 1894, 36> 9 2 ) 94 > 95 ) 102,
i° 3 ) 34 - 6 .
Merriman, Rt. Hon. J. X., 55.
Mesopotamia, oil claims in, '312, 313.
Metcalfe, Eord, Oovernor-Oeneral of
Canada (1843-5), 20O.
Migration agreement of 1925 with
Australia, 107.
Milner, Viscount, Secretary of State
for the Colonies, 15, 24, 312.
Ministerial responsibility for all offi¬
cial actions of the King, 247, 25G,
257.
Ministers, power of Governor over,
under responsible government, 56-
60, 61, 67- 9, 209, 210, 212, 269-71,
279-89, 347, 348; subject to judicial
control, 179.
Ministry, British, change of, in 1924,
251?!.; in 1929, 250-3; in 1931,
251 n.
Minorities in India, protection of, 193,
204.
Minority in I louse of Commons, posi¬
tion of government in, 250-3.
— in Irish Free State, 108 *10, 158.
Mitchell, Sir F., on invalidity of
appointment of Sir Isaac Isaacs,
106.
Money Bills, under Parliament Act,
19*1,255.
“ votes, royal authority for, mode; of
expression of, 134,, 139,
Montagu, Rt. Hon, K., Secretary of
State for India, 180, 22(5.
Montagu-Olid msford, scheme of re¬
forms, 1918, 214, 229.
Moore, Sir W. 1 larrison, criticized, 283.
Morlcy, Lord, opposed to Parliamen¬
tary government for India, 225.
Most favoured nation clause in
treaties, not operative as regards
inter-imperial compacts, 14, 112,
308.
Mimro-Ferguson, Rt. Horn Sir R.,
Lord Novar, Governor-General of
Australia (1914, 20), 57, Go, 270.
Musical Copyright Case, Irish Free
State {Performing Right Roddy Ltd, v.
Pray Urban District Council , 1 1930]
A.C. 377), 149.
Mysore, seeks surrender of Bangalore
as price of federation, 218
Natal, advantages of federation for,
262; Indian question in, 183; use-
. 365
lessness of safeguards for natives in,
National Government in United
Kingdom, 256. a
— Liberal Federation, India, pro-
debt, 2o S i t0 reduction of Indian
Nationalist regime in Malta, hostility
or, to English language, 293, 204?
Nationality in Dominions, 69-70 QI
92 , 131-5, 143, 150-6, 161; effect or
secession upon, 121-5, 143.
7 T °f married women, 332, 322.
Native franchise in Cape, 160, 163.
policy of Union of South Africa
74 ’ t 751 a ‘ s affecting transfer of
native territories, 75, 76, 161, 163,
* 091 1 ’ jo .
— territories in South Africa, dis-
advantages ot falling under Union
control, 75, 76, 161,' 163, 169, 170:
now under control of Imperial
High Commissioner, 203.
Naturalization Act, 1870, 332.
Nauru, mandate for, 312
Naval force, Irish Free State right to
set up, 21, 22, 346; maintained by
Australia and New Zealand, 22 n.,
107; Union of South Africa aban¬
dons project of, 23 its relation to
British fleet, 167.
Navigation Bill of Commonwealth of
Australia, 37.
Nazi ^ organization in South-West
Africa, suppressed, 331.
Negotiation and ratification of trea-
ties, 62, 80, 81; see Full powers.
Neutrality and the Optional Clause,
320, 321.
0< ’ Dominions, 76-8, 79, 157, 158,
* 59 ) *8i, 162, 1O4, 166, 167, 169,
NT m 351.
Newfoundland, as a Dominion, 296,
297; constitutional changes due to
fmaneial straits, 228,229,230,297-9;
does not claim right of secession,
1 55 5 war vessel sent to secure order
in, 285, 286.
Newfoundland Act, 1933, 297 n.
New South Wales, disputes between
I louses of Legislature and action of
Governor, 279 83; with Common¬
wealth on debt issue, 228, 283-9;
Sir ( 1 . Strickland's re call from, 269,
270.
New Zealand, attitude of, to Imperial
Federation, 4, 6, 9; compulsory
service in, 9; Egypt and, 316; here-
INDEX
366
New Zealand ( continued)
ditary honours unpopular in, 299;
provides divorce without domicile,
339; safeguards for natives ineffec¬
tive in, 208; secession not recog¬
nized in, 155; Upper House in, 274;
Western Samoa under mandate to,
3°7> $10, 311.
Nomination of members of Upper
Chamber unsatisfactory, 257.
North, Lord, loses American colonies,
144*
Northcote, Earl of, refuses dissolution
of Commonwealth Parliament, 270.
Northern Ireland, 91, 135, 141.
Nova Scotia, desire to secede from
Canada refused, 173, 174, 345.
Nullity of marriage, jurisdiction to
pronounce not confined to Court of
domicile, 340; based on invalidity
by personal law of domicile of one
party, 339, 34°-
Nullus liber homo, Magna Carta, 223.
Oath, to be taken under Irish Free
State Constitution, 116, 117-20,
125,126,131,134., 135,157.
O’Duffy, Gen., Irish Free State, 222.
O’Higgins, K., Irish Free State, 354.
Optional Clause of Statute of Per¬
manent Court of International Jus¬
tice, ix, 87-9, 323; neutrality and,
320,321.
Order in Council, restriction of im¬
ports into Ceylon by, doubtful use
of, 302, 303.
Ottawa Conference, 1932, constitu¬
tional aspects of, 112-15, 119, 288.
Pacific territories, treaty of 1921 re¬
garding, 38, 41, 42.
Palestine Mandate, difficulties regard¬
ing, 319, 320.
Paradoxes of the Indian constitution,
216, 217.
Paramountcy of Crown in India, 203;
must be preserved in interest of
Indian State subjects, 352, 353.
Paris Pact for the Renunciation ofWar
as an Instrument ofNational Policy,
1928, 79-81, 143> H 6 , 318, 320.
Parliament Act, 1911, 255.
Partnership in Empire on footing of
equality, denied to India, 233.
Party, as essential in politics, 247-9;
possibility of a real united party in
1921, 28, 29.
Pastoral leaseholders, confiscation of
rights of, in Queensland, 271-7.
Peace Conference, 1919, position of
British Dominions at, vii, 12, 13.
— terms of President Wilson, 308.
Pensions, Indian, safeguards for,
223-6.
Perley, Hon. Sir G., Resident Minister
of Canada in London, 3, 4.
Permanent Court of International
Justice, ix, 63, 83, 84, 87, 88, 121,
129, 133) 3H; see also Optional
Clause.
Persia and the Oil Concession,
321-7.
Personal union, as form of connexion
between United Kingdom and Do¬
minions, viii, 101, 102, 115, 116,
122, 134, 158-69.
Pirow, O., explains Union of South
Africa’s views, 346, 351.
Police in India, controlled by Gover¬
nor, 197, 233.
— in Malta, control over, has to be
reassumed by British Government,
295 -
Pollard, A., his views on royal prero¬
gative of dissolution, 249, 250.
Prerogative, royal assent to Bills
affecting requisite before third read¬
ing, 256.
—, royal, in external affairs trans¬
ferred to Governor-General of
Union of South Africa, 158-69;
made use of, to grant constitution
to Transvaal over opposition of
House of Lords, 167.
Prime Ministers, in United Kingdom
and Dominions, direct communica¬
tions between, 1 1.
Princes of India, see Indian States.
Prior consultation between British
and Dominion Governments, de¬
sirable on League of Nation issues,
40.
Private Secretary to the King, his
functions regarding Dominion cor¬
respondence, 102.
Privilege of House of Commons in
respect of Bill to reform House of
Lords, 257.
Privy Council, Judicial Committee,
appeal from Dominion Courts to,
73, 78. 79.89-91,110, u 6,i37,172,
273, 292310; should be re¬
stricted to constitutional issues, 353,
354 - ,
-and Indian appeals, 193.
INDEX
Protectorates in South Africa, obliga¬
tions of Grown towards, 161, 163,
169, 170, 203,
Protestant, English and Scottish
Churches as, 265.
— minority in Irish Free State, posi¬
tion of, 108-10, 158.
Provinces of Canada, loans not trustee
stocks, 66; independent of federa¬
tion, 259.
. of India, full responsible govern-
ment for, suggested in 1922, 186.
- of Union of South Africa, provi¬
sions to secure the position of, 160;
subordinate to central government,
259 -
Repudiation of debt by Dominions,
suggested, 98, 99, 117, 118, 283-9;
by India, 192, 194, 197, 208, 227,
228.
— of treaties, by U.S.S.R., 327.
Repugnancy of Dominion legislation,
former doctrine of, 16, 34, 36, 95;
still ground of invalidity of colonial
laws, 35, 291.
Reservation of army in India from
Indian control, 192, 193, 206,
207-
— of Bills for royal assent, 34, 35; to
be subject to Dominion advice, 92;
abolition of, in Irish Free State, 139,
I 43 i> ^ 45 -
Resident Ministers in Dominions in
Quebec, special position of, in Cana¬
dian federation, 7 > 54 ? 73 >
100, 353 -
Radical Council, objects to Mr.
Hughes’s propaganda in England, 9-
Ratification of treaties, by executive,
81, 82; in case of treaties under
Labour Glauses of Peace Treaties,
3 * 3 > 3 Hi subject to Parliamentary
approval, 85, 86. I
Reading, Marquis of, Ins views on I
Indian reform, rB9, X90, 1 9 ,*s 21 8-
Reciprocity, as basis ol relations of
United Kingdom and India, 192,
103, 20t, 20U, 206, 207? 219-
Recognition of U.S.S.R. Government
without Dominion assent, 85, m ,
87*
Referendum as part of the Irish Free
State Constitution, abrogated, 94,
—on abolition of Queensland Upper
House, 275, 276,
— on food taxation proposed unwisely
by Mr, Baldwin, 93, 94 *, . 0
Registration ot treaties under Art. to
of Covenant of League of Nations
not applicable to intcr-Impcrial
treaties, 62. .
Report on Inter-Imperial Relations
of Conference of 192b, 69; see Im¬
perial Conference, 1926.
Representative Government, ^ precise
meaning of, 183, 184; not in lorce
London, proposal for, 3, 5, 10, 11,
39-41.
Responsibility in the Central Govern¬
ment of India, vital character of
proposal of, 191, 192, 194.
Responsible government, suspended
in Malta and Newfoundland, 229,
230; vital principle of, ignored in
Indian Constitution, 347.
Responsible Government in the Dominions ,
by A. Berriedale Keith (ed. 2,1928),
25 n., 55 n. } 104 n. t 188 275 n.
Retaliation, as only safeguard for
British trade in India, 231; in India
against Dominions, 179, 226, 227;
in respect of Irish Free State, 113.
Rhode Island, corporate colony, 291;
a quasi-republic, 144.
Round Table Conference, on Indian
Government, 199, 200, 201, 202,
203, 209, 212, 219.
Rowell, Hon. N., Canada, 25. >
Royal Commission on Malta, criti¬
cism of Report of, 292-4.
—- Executive Functions and Seals Act,
1934, Union of South Africa, 160,
162, 169, 350.
— Instructions to Governor, discre¬
tion given under, 282.
Royal prerogative, see Prerogative.
— title, change in, 61.
Rule of law in India, 222, 223; de¬
parture from in i 9 i 9 j l 79 > not
operative in States, 352.
in Indian States, 35a. , .
Republican status, might properly be
allowed within Empire, * 8 ,
33,135, 136, 137,X40,141, X42,144,
* 45 »!J 43 *.
Republicanism m
168, 349*
South Africa, viii,
Safeguard for Constitution of United
Kingdom, His Majesty’s power to
act as, 130; lost in Dominions, 129,
130. ,
Safeguards for native races under
Mandates, 329, 33 °•
INDEX
Safeguards in India, 193,195,208,209,
215, 216, 217, 218, 219, 223, 227,
228, 229, 233, 295, 296; failure of,
in Canada, 196, 208; Ceylon, 216;
Malta, 295; Natal, 208; New Zca-
. land, 208.
Salisbury, Marquis of, his Bill to re¬
form House of Lords, 256, 257.
Samoa, Western, New Zealand legis¬
lative power under Mandate for,
310, 311.
Samuel, Rt. Hon. Sir H., 114.
San Remo agreement, 1920, objec¬
tions to, 312, 313.
Sankey, Lord, criticisms of his views,
I93> 205, 206.
Sapru, Sir Tej Bahadur, 189, igt, 207.
Scotland, affected unfavourably by
Irish immigration, 71; divorce of
persons domiciled therein by over¬
sea Courts, 338; federation or de¬
volution as form of government for,
225, 259-62.
Scullin, Rt. Hon. J. H., 103, 104, 105,
114.
Sea Fisheries Protection Act, 1933,
Irish Free State, 346.
Sca-dromcs, international status of,
334 > 335 *
Seals, Irish Free State, 122; Union of
South Africa, 162.
Secession, from Grown, by Dominions,
26, 27, go, 33, 34, 35, 92, 95-9,101,
121-5, 149, 150,151, 157. «64. 222,
349, 350; from Commonwealth of
Australia by Western Australia,
U 2 - 5 > 344 > 345 *
Second chamber, as check on rash
legislation, 277-9; abolition of, in
Queensland, 275 n, } 278; attempted
in New South Wales, 279-83.
Secrecy of police records, in India,
, 233.
Secret negotiations, objections to, 311,
312.
— treaties, for division of Turkish
dominions, 309.
Secretary of State for Foreign Affairs,
his functions in respect of treaties
for the Dominions, 15, 41, 42, 81,
82, 102.
-- for India, in Council, action lies
against, 228.
-for the Colonies, 228.
Security, efforts to provide, under
Indian Constitution, 1934-5, *93?
203, 210, 214, 215, 216, 217, 218,
232, 233.
Self-government in South Africa, erro¬
neous assertion of Gen. Smuts as to,
167.
Separate representation of Dominions
at international conferences, started
in 1911-14, vii; at Peace Confer¬
ence, vii; in League of Nations, vii,
vui.
Sevres, Treaty of, 1921, 185.
Signature and ratification of treaties,
affecting Dominions, 41, 42, 45,
46-9, 51, 62, 63, 101, 115, 136,
161.
Signet, appointments under, of Gover¬
nor-General involves British minis¬
terial responsibility, 106, 129.
Simon, Rt. Hon. Sir John, 219, 220,
264, 265.
Simon Commission, its scheme of
Indian reform, 188, 189, 197, 208,
209, 214, 231.
Simonstown, British hold of, incom¬
patible with Union neutrality, 168,
35 °. 351 -
Sind, to be separated from Bombay,
225.
Singapore base, British expenditure
on, 107.
Sinn Fein, 19, 27.
Smuts, Rt. lion. J. C., Union of South
Africa, 21, 22, 24, 38, 43; 55, 73, 92,
95 . 96 , 154. 159 . i<> 7 > .311. 3 - 9 . 33 i.
332 . 353 -
South Africa Act, 1909, 161, 163;
authority of King in Council to
transfer native territories under, may
be exercised by Governor-General
in Council (see Morning Post, 18
March, 1935), 169, 170.
-* — Amcndxnent Act, 1934,
1 Go n.
South Australia, receives extra grant
from Commonwealth, 173.
South-West Africa, German, 307;
mandate for, 312, 328-31; possible
return to Germany, 7G, 331, 346.
Sovereign independence of Union of
South Africa, 158-69.
Sovereignty of the British Dominions, by
A. Berriedale Keith (1929), 30
37 n., 41 n., 74 86 n., 166 n.
Spain, its relation to Gibraltar errone¬
ously claimed to be similar to that
of Union of South Africa and
Simonstown, 166, 167, 351.
Speeches and Documents on the British
Dominions , ipiS-gi, ed. by A.
Berriedale Keith, 46 n., 84 95 n.
INDEX
369
beeches and Documents on Indian Policy,
ed by A. Berriedale ICeith, 179 n.
Stallard, Col. C. F., M.P., 166.
State and breach of contract by
workers, 263, 264; and general
strike 26^* 1
State Succession in International Law, by
A. Berriedale Keith, 123.
State trading, failure of, in Queens¬
land and Western Australia, 278.
Slates of Australia, Governors of, 269-
7 r resolutions of Imperial Confer¬
ence, 1926, are not applicable to, 65,
-Zof India, see Indian States.
Status of the Union Act, 1924; effect
of ir,8~C>n, 350.
Statute- of Westminster, i< )3 i iG
11 tic, 108, 117, *20, 122, 128, 1 35 )
136, 137, i 39 j 1 * 47 * M-d,
149, 150, 191, tf}-b * 33 ) 1 54 > x 59 »
162, t()4, id”), 1 1 ) 15 » Wfo
349; re-enactment by Union ol
South Africa of, 162. _
Stoker, W. 11 ., K.Ck, enhastn of hi*
views on South-West Alvina, 328- 31.
Strickland, Sir Gerald, Lord, combats
anti-British movement in Malta, 82,
Submarine cables, treatment of, m
Succession to the Crown, Statute ol
Westminster, 1931, preamble as to,
Swamping of Upper Nominee I louses,
Queensland, 27*1 * 7 *; y 74 -i *; 75 )
^i(y New South Wales, 1926 7 j
279 ‘ 82; 1931, 282, 283; New Zea¬
land, 274. , T . .
Swaziland, now under Imperial con¬
trol, 203; question ol trausler ol, to
Union ol South Alrica, tot, t
169, 17°-
Tanganyika, question ol u» return to
German control, 34 l> -
Tasehercau, Don, K, testilies to
loyalty of Quebec, 73*
Tasmania, Acting-! loyernor assents to
Bill illegally passed, *04; receives
extra federal grant, 173. >
Taxation ol British subjects in t mite
Kingdom by Australia, 91. .
Territorial ambit of Dominion legis¬
lation, 16, 17, 3 ( n 9 l * 9 'b 3 !°*, ,
Thakurdas, Sir Ik, se.eks to disenmi-
nale against British companies, 205,
206.
Theodore, Hon. E. G., Premier of
Queensland, 108, 273, 274, 275,
276, 277.
Thomas, Rt. Hon. J. H., Secretary of
State for Dominion Affairs, criti¬
cized, 106 , III, 116, 117 , 120 , 121,
126, 129, 134, 138, 142, 144, 145,
146, 150, 151, 152, 153, 155, 298,
299, 343) 345) 34d.
Trade Disputes and Trade Unions
Act, 1927, 265.
Trading with enemy, permissible to
Union Nationals in British war,
350.
Transvaal, grant by Liberal Party of
responsible government, 167; loy¬
alty in 1914 thus secured, 142; re¬
stricts Indian immigration, 479,
231; and refuses equality to Indians,
183; failure to control first elections
in, 210,
Treaties concluded by Crown, on
British advice only, do not bind
Dominions, 30, 46; executive power
to ratify, 81, 82, 313, 314; subject
to approval of Parliament, 313,314;
see Pull Powers.
Treaty as part of national law, in
United States and Irish Free State,
119, 120.
between France, United Kingdom,
and United States, 1919, 4 ) 53 )
54) 3*6*
'between Germany and Union of
South Africa, 1928, 81, 82.
- between Germany and United
Kingdom, 1924, 1x4.
-- between Great Britain and Ireland,
* 031, 30, 3 *. 33, 34> 35. 78, 90,108,
no, 115, 116, 118, 122, 125, 137 )
139, 142, 144, *49) 167.
-withGreece, 1890, 114; *9 2 b 3 114 -
Trustee stocks, see Loans. .
Turkey, 37, SW renunciation of
extraterritorial jurisdiction in, 71.
Ulster, position of, 18, 19, 20, 27, 28;
see also Northern Ireland.
Uncontrolled constitutions of Irish
Free State and of Union of South
Afriea, 160, 162.
Union nationality, 70, 153, 15b) * 5 y )
i (i 1 328.
^Nationality and Flags Act, 1927,
applied to South-West Africa, 328;
Bill of 1025 , 70.
- of Socialist Soviet Republics,. re¬
cognition of, 85, 86, 87; Rrihsi
INDEX
V L ^
370 A ^ £.■
Government acquiesces in confisca¬
tion of property by, 321, 324, 325;
waives diplomatic privilege for trade
concerns, 333 n, 2.
Union of South Africa: appeal from,
26, 56, 89, 90, 100, 147, 353* 3545
flag of, 73, 74; honours in, 300 n.;
nationality in, 70, 153, 156, 158,
161; native policy in, 74-8; neu¬
trality of, 76-8, 158, 159, 16 t, 164,
165, 166, 167, 168; oath of allegi¬
ance in, 120, 126, 135; secession,
right of, claimed by, 95-8,155, 158,
159, 160, 161, 162, 163, 164, 165,
166,168, 222; status of, under Acts
of 1934, 158-69, 231; transfer of
native territories to, 74, 75,161,163,
169, 170; trustee stocks of, 170-2;
undertakes mandate for South-
West Africa, 328-31; but not lia¬
bility under Anglo-French compact,
1919, 48; or Locarno pact, 55;
undertakes defence of naval dock¬
yard at Simonstown, 167, 350, 351.
Unionist Party, in United Kingdom,
28, 230, 251, 252, 253, 255, 262.
United Empire movement, Mr. Bald¬
win’s effort to conciliate, 93, 94.
— Ireland Party, its attitude to se¬
cession, 221,222.
United States of America: objections
to British oil policy, 312, 313; peace
terms of, 308; refuses Armenian
mandate, 309; relation to Perma¬
nent Court of International Justice,
83; republican constitution of, as
influencing Irish Free State, 119;
voting power of British Empire un¬
acceptable to, 14.
Untouchables, position of, in India,
214.
Unwritten constitutions, 276.
Validity of Colonial laws generally
and Malta Act No. 1 of 1929, 290-
2; see Colonial Law Validity Act,
1866.
Viceroy, ornamental style of Gover¬
nor-General of India, q.v,
Victoria, unfair treatment of immi¬
grants in, 108.
Voting power of Dominions in League
of Nations, 13, 14, 18, 25.
Wales, federation or devolution for,
259, 260.
War, declared by British Crown,
position of Commonwealth of Aus¬
tralia as regards, 169; of Canada as
regards, 54, 59, 60, 169; of Union
of South Africa, 159, 161, 162, 163,
169; see Neutrality; impossible be¬
tween Britain and Irish Free State,
146; see Kellogg Pact.
War Government of the British Dominions %
by A. BerricdalcKeith (1921), 10 n.,
12 71 ., 23 71 ., 26 71 ., 58 71 ., I 08 71 .
Ward, Rt. PI on. Sir J., New Zealand,
advocates federation, 4, 6, 38.
Washington Conference as to disarma¬
ment, 3x5.
-— as to Hours of Labour, British
Government’s attitude towards, 84,
85.
Western Australia desires to secede
from Commonwealth, 172-5, 344,
345; unsuccessful State trading in,
278.
Western Samoa, see Samoa.
White Paper, 1933, giving British
government’s proposals for Indian
reforms, 169, 210-19.
William IV, does not dismiss Lord
Melbourne, 270.
Willingdon, Lord, Governor-General
of India since 1931,150,194 n., 217,
222, 347.
Wilson, President Woodrow, 12, 24,
25 *
Zetland, Marquis of, expresses doubts
as to safeguards, 217.
Zionists, errors in policy of, 319, 320.
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