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MAR 2 2 1926
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IMPERIAL UNITY
AND THE DOMINIONS/
OXFORD UNIVERSITY PRESS
LONDON EDINBURGH GLASGOW NEW YORK
TORONTO MELBOURNE BOMBAY
HUMPHREY MILFORD
PUBLISHES TO THE UNIVERSITY
IMPERIAL UNITY
AND THE DOMINIONS
BY
>
ARTHUR BERRIED ALE KEITH
D.C.L., D.LITT.
OF THE INNER TEMPLE, BARRISTER-AT-LAW
REGIUS PROFESSOR OF SANSKRIT AND COMPARATIVE PHILOLOGY AT THE
UNIVERSITY OF EDINBURGH
FOR3IERLY OF THE COLONIAL OFFICE
AUTHOR OF ' RESPONSIBLE GOVERNMENT IN THE DOMINIONS '
OXFORD
AT THE CLARENDON PRESS
1916
V UMUftT
UNIVERSITY OF CALVORNZ
1043-
K1
SAM A BAKBAH A
TO
THE RIGHT HONOURABLE LEWIS HARCOURT, M.P.
IN RECOGNITION OF
HIS GREAT SERVICES TO THE CAUSE OF IMPERIAL UNITY
AS
SECRETARY OF STATE FOR THE COLONIES
1910-1915
PREFACE
THE loss of life and the expenditure of money incurred
by the self-governing Dominions in the prosecution of
a war in whose inception they had and could have no
responsibility have brought into prominence the question
of the possibility of so revising the relations of the several
parts of the Empire as to prevent a recurrence of the
anomaly. The demand for closer unity is insistent, but
the difficulties of any federal system, as the foremost
authority on the English constitution, my friend,
Professor A. V. Dicey, has recently shown, in the Intro-
duction to the last edition of the Law oj the Constitution,
are both numerous and formidable.
The view that the self-governing Dominions are sister
nations of the United Kingdom has been expressed both
by Mr. Lyttelton and Mr. A. J. Balfour, but neither
rhetoric nor philosophy must blind us to law and fact.
Doubtless, equality and fraternity are the ideals to be
aimed at, but the mode of their realization is the funda-
mental problem of Imperial relations at the present day.
The Dominions have been, and still are, dependencies
of the United Kingdom : but the system of colonial
autonomy, with which the name of Sir Wilfrid Laurier
will in history be honourably associated, has brought
them to a degree of power and prosperity which bids
us believe with Sir Robert Borden that their national
consciousness will not be satisfied indefinitely with
8 IMPERIAL UNITY AND THE DOMINIONS
a subordinate position in the Empire. Two paths are
open for this development of nationhood : in the first
place, the Dominions may be encouraged to attain
complete independence and to become units of inter-
national law, in the hope that they will enter first into
alliance and later into federation with the United King-
dom ; in this case the unity of the Empire will be broken
up in the hope of the achievement of greater unity in
days to come. In the second place, there may be devised
some plan by which the Dominions may share with the
United Kingdom the control of foreign policy and take
their definite share in the defence of the Empire ; this
course has the obvious advantage that the unity of the
Empire suffers no breach, and no violent change of any
kind is needed to bring it about, but the difficulties of
devising a practical system are serious and must not
be underestimated. Nor can their solution be a matter
of rapid action ; patience is essential for the evolution
of an imperial constitution, nor in any final solution
will the position of India and the Crown Colonies be
ignored.
No attempt is made in this book to suggest any final
solution of a problem so great and so dependent on the
change of circumstance. It is its aim to set out, in
Part I, the actual facts regarding the limitation of the
autonomy of the self-governing Dominions, and to
suggest in what matters these limitations might be
relaxed in favour of the Dominions, while in Part II
are set out some considerations affecting the possible
modes in which Imperial unity can be attained. In
view of the fact that the history of responsible govern-
PREFACE 9
ment up to 1911 has been given in my Responsible
Government in the Dominions, the subject-matter of
Part I has been in the main drawn from the events of
the last four years, which have been years of high
importance in the development of self-government.
One word of explanation may be given in regard to
the terminology employed. ' Self-governing Dominions '
or more shortly ' Dominions ' is the technical term,
first invented at the Colonial Conference of 1907, for the
aggregate of the five colonies possessing responsible
government — Canada, the Commonwealth of Australia,
New Zealand, the Union of South Africa, and New-
foundland. 4 Crown Colonies ' denotes all the colonies
which do not possess responsible government, and which
therefore are under the control of the Crown as regards
their executive government. The term has unfortunately
in recent years been abandoned as a collective term by
the Colonial- Office out of a wish to defer to the ill-
informed desire of some West Indian communities to
avoid the use of a title which in their opinion denotes
that their legislatures are controlled by the Secretary
of State for the Colonies ; their opinion is wholly
unhistorical, and it may be hoped that in course of
time the historical expression will prevail over the
monstrosity of 4 colonies not possessing responsible
government ', which has been coined to replace it. To
the use of the adjective ' colonial ' it may be trusted that
no exception will be taken, since it has been endorsed
by the action of Mr. Bonar Law, who is not merely
Secretary of State for the Colonies but is proud to have
been born in the Dominion par excellence.
Freedom from the restrictions of an official position
has enabled me to express more freely my views on
the actions of both Dominion and Imperial Ministries.
The press assumption that in every controversy between
the Dominion and Imperial Governments the latter is
invariably wrong does more credit to the chivalry of
the United Kingdom than to its historical judgement,
but such complaisance is inadmissible in a serious
discussion.
For assistance in the preparation of this work I am
indebted to my wife.
A. BERRIEDALE KEITH.
November, 1915.
CONTENTS
CHAPTER PAGE
INTRODUCTION ... ... 13
PART I
THE LIMITATIONS OF THE AUTONOMY OF THE
DOMINIONS
A. THE GOVERNOR
I. THE APPOINTMENT OF THE GOVERNOR . . 26
II. THE POWERS OF THE GOVERNOR AS RESTRICTED
BY LEGAL LIABILITY ..... 35
III. THE LIMITATION OF THE PREROGATIVE . . 52
IV. IMPERIAL INTERVENTION IN EXECUTIVE ACTS . 74
V. THE DISSOLUTION OF PARLIAMENT AND THE
DISMISSAL OF MINISTERS . . . .85
1 . THE DISSOLUTION OF PARLIAMENT . . 85
2. THE DISMISSAL OF MINISTERS . . .112
B. THE LEGISLATURE
VI. THE LEGISLATIVE SUBORDINATION OF DOMINION
PARLIAMENTS . . . . . .120
VII. INTERNAL AFFAIRS 154
VIII. THE TREATMENT OF NATIVE RACES . . .168
IX. COLOURED IMMIGRATION . . . . .190
X. MERCHANT SHIPPING 214
XI. COPYRIGHT 237
XII. NATURALIZATION AND NATIONALITY . . . 244
XIII. TRADE AND COMMERCIAL TREATIES . . 261
XIV. POLITICAL TREATIES 281
XV. THE QUESTION OF DEFENCE . . .301
1. MILITARY DEFENCE . . . .301
2. NAVAL DEFENCE ..... 310
3. WAR AND PEACE 339
12 IMPERIAL UNITY AND THE DOMINIONS
CHAPTER PACE
C. THE JUDICIAL POWER
XVI. APPEALS TO THE PRIVY COUNCIL . . . 307
D. THE AMENDMENT OF THE CONSTITUTION
XVII. DOMINION PARLIAMENTS AND THE CONSTITUTIONS 389
PART II
POSSIBILITIES OF UNION
I. IMPERIAL FEDERATION . . . . .418
1. CANADA, THE COMMONWEALTH, AND THE
UNION 418
2. THE POSSIBILITY OF IMPERIAL FEDERATION 498
II. THE INDEPENDENCE OF THE DOMINIONS . .510
III. IMPERIAL PARTNERSHIP ..... 530
CONCLUSION . 589
TABLE OF ACTS CITED ..... . 593
TABLE OF CASES CITED . .... 596
INDEX 599
INTRODUCTION
THE immediate cause of the origin of responsible govern-
ment in the British Dominions was the outbreak of rebellion
in Canada, which convinced the Imperial Government of the
day that the system of government then in force in that
Colony had ceased to serve even the elementary purpose of
maintaining public order. It became clear that some form
of administration must be devised which would obviate the
recurrence of rebellion in close proximity to the frontier of
a power which might without much injustice be suspected
of being not unwilling to see the disappearance of mon-
archical government from the American continent ; but it
was not less certain that the form chosen must be such as
to obviate any possibility of the separation of the Colony
from the mother country, a contingency which from the
period of the War of American Independence was always
painfully present to the minds of those responsible for the
conduct of colonial affairs. The solution then adopted, in
large measure at the instigation of Lord Durham, was to
leave to the colonists, to the greatest extent possible, the
control of those affairs which could properly be described
as local, while reserving control in those matters which
could be held to affect the Empire as a whole. To con-
cede full responsible government was, Lord John Russell
argued, impossible, if it was meant by this that the
Government of the Colony should be at liberty to manage
all the affairs of the country in the same unfettered manner
as the affairs of the United Kingdom were managed by
the Imperial Ministry, for that Ministry could not permit
disloyalty to flourish in the country as it had done in
Lower Canada under Papineau ; but nevertheless it was
possible to allow the affairs of the Colony to be managed
for the most part by the Governor as representative
14 IMPERIAL UNITY AND THE DOMINIONS
of the Imperial Government on the advice of those who
could command a majority in the elected House of the
Legislature.
True to the compromise to which it owes its origin, respon-
sible government has always, throughout its history of three-
quarters of a century, exhibited the character of a qualified
freedom. Unquestionably the history of its operation has
always tended in one and the same direction : restrictions
which originally were enforced and considered of importance
have gradually been allowed to lapse, as public opinion in
the colonies became more articulate in favour of freedom
from control, or public feeling in the mother country
recognized that there had ceased to be sufficient reason for
the exercise of that control. In this development both
colonial impatience of restraint and Colonial Office reluc-
tance to exercise it co-operated : colonial statesmen might
consider that Imperial statesmen were unduly tenacious of
rights of supervision, but it is doubtful if, with the possible
exception of Lord Carnarvon, there was in the nineteenth
century any Secretary of State for the Colonies who did not
accept and endeavour to follow the principles laid down for
himself by Earl Grey, that the interference of the Home
Government in the affairs of the colonies should be exercised
as rarely as possible, and that when exercised it should,
whenever possible, be restricted to the form of advice.
Nor was this attitude at all surprising : the great distance
of the important colonies, with the exception of Canada,
rendered any effort at control singularly difficult and
troublesome, and the great majority of holders of the office
of Secretary of State were men who, whatever their interests,
were not anxious to create troubles for themselves in
colonial problems, finding sufficient scope for their energies
in those difficulties which presented themselves unasked.
Nor in any account of the influences which favoured the
development of freedom from restraint should mention be
omitted of the influence on Secretaries of State of the
permanent officials of the Colonial Office : their education
and training, especially before the system of open com-
INTRODUCTION 15
petition was applied to the recruitment of the office, were
not such as to encourage qualities of mind which made for
interference in what could be left alone, and this attitude
of laissez faire, which was in harmony with the spirit of the
period when responsible government grew to maturity, was
undoubtedly the cause why so much liberty was attained
by the colonies with, comparatively speaking, so little
friction.
From the beginning of responsible government it was
clearly recognized that the relaxation of the bonds of union
between the colonies and the United Kingdom must suggest
the final solution of the connexion between them and the
mother country. On the one hand, it was pointed out,
the colonies might well desire to obtain complete freedom
and to enjoy the rank of independent nations subject to no
external control : the mere bond of loyalty to a common
sovereign would not avail when in a few generations the
memory of the place of origin had come to an end, and
still less in cases where no such common origin had ever
existed. On the other hand, experience showed that
colonial troubles were the chief causes of foreign difficulties
endangering the United Kingdom, which would do well to
cast from its neck the millstones of the wretched colonies
and let them fight their own battles.1 To this argument
a reply from the side of the colonies was soon adduced in the
statement that, so far from the United Kingdom running
risk of foreign wars through the possession of colonies, it
was the colonies which ran risks of invasion through their
connexion with the United Kingdom, which involved them
in the danger of war provoked by European combinations
in which they had no interest. Thus in the period before
confederation in Canada the Imperial Government endea-
voured to convince Canada that she was under obligation
to make every effort to provide for her own defence, since
it was through Canadian interests that any danger of
conflict with the United States would arise, while the
1 See the quotations from Sir J. Stephen, H. Merivale, Sir F. Rogers,
Disraeli, and others, hi J. S. Ewart, Kingdom Papers, i. 32-44.
16 IMPERIAL UNITY AND THE DOMINIONS
Canadian Government persisted in the view that, while
anxious to do anything possible to aid in the defence of
the Empire, Canada could not but expect that the main
burden of expenditure would be undertaken by the United
Kingdom, since it was merely through her connexion with
that kingdom that Canada ran any risk of war. Neither
contention, either then or now,1 can be regarded as being
strictly correct. The connexion between Canada and the
United Kingdom undoubtedly, even in the case of the
United States, involved dangers for Canada : the irritation
felt in the United States over the sympathy which it was
thought England manifested for the Confederate States in
the War of Secession naturally turned the eyes of many
Americans to the possibility of accomplishing the policy set
before the States in 1812 of uniting Canada with the rest of
the northern portion of North America by force of arms
if not by the simpler method of purchase. Some thirty
years later the militant attitude of the United States over
the question of the Venezuela boundary might have pro-
voked a less pacific power than the United Kingdom to
enter upon a struggle in which Canada would have been
exposed to the greatest danger. If the war with the Boer
republics, though technically involving Canada in hostilities,
did not and could not in itself bring any risk of injury to
Canada, the same cannot be said of the great war of 1914.
But on the other hand must be set the fact that for many
years Anglo-American relations were rendered difficult and
every now and then dangerous owing to the fishery questions
affecting Canada and Newfoundland, questions in which the
United Kingdom had not the slightest direct interest.
From the termination of the reciprocity treaty with the
United States in 1866 until the conclusion of the Treaty of
Washington in 1871 there was constant risk that the efforts
made by the British Government to protect the Canadian
fisheries from encroachment by American fishermen would
result in war, and the termination of the provisions of that
treaty in 1885 marked the beginning of a fresh period of
1 Kingdom Papers, i. 311.
INTRODUCTION 17
difficulty, which was enhanced by the claim put forward
by the United States on the strength of inheritance from
Russia to dominion over the Behring Sea. Sir Charles
Tupper, then High Commissioner for Canada, records in
his account x of the efforts made by him to secure action
by the British Government that he warned Lord Salisbury
in 1890 that, if prompt action were not taken to prevent
the United States carrying out its threat to seize ships
flying the British flag when catching seals in the Behring Sea,
Canada could only come to the conclusion that the British
flag was not strong enough to protect her. The result was
that the British Ambassador was instructed to inform the
Secretary of State of the United States that if the British
flag was interfered with the United States must be prepared
for the consequences, and in deference to this warning
immediate orders were sent to the United States cruisers
not to carry out the instructions to seize British vessels
which had been given to them. The Behring Sea question
was finally disposed of by the arbitration at Paris in 1893,
but the older fishery question revived itself in 1906 when
the Newfoundland Government made an unwise effort to
secure the ratification by the United States of the com-
mercial convention negotiated in 19022 by Sir Robert Bond
with Mr. J. Hay, the United States Secretary of State, by
adopting a policy of insisting on the rigid enforcement of
the treaty of 1818 regarding the rights of the United States
fishermen in the Newfoundland fisheries. Fortunately the
good sense of the United States Government and the
resolve of the Imperial Government to secure a reasonable
settlement prevented matters drifting so far as happened
in 1890, but it was not until the arbitration of 1910 3 that
the fishery question received, if not a final settlement, at
least so much definition as renders it almost impossible that
it should ever again present the possibility of danger of
hostilities between the two countries.
Even in the case of Canada, however, the balance of
1 Recollections of Sixty Years, pp. 209, 210.
2 See Parl Pap., Cd. 3262. 3 Ibid., Cd. 5396 and 6450.
1874 B
18 IMPERIAL UNITY AND THE DOMINIONS
advantage can be shown to have been clearly on the side
of the Dominion. The greatness of Canada lies in the fact
that the whole of the North American continent north of
latitude 49°, with the unimportant exception of Alaska,
is united under one supreme Government, and this could
never have been effected except through the protection of
the United Kingdom, which prevented the American occu-
pation of the west and of British Columbia, secured the
addition to the Dominion of the North-West and of Rupert's
Land, and thus opened the way to the creation of a new
and powerful nation. The same consideration applies in
even greater force to Australia and New Zealand, whose
long and slow growth to national stature, still far from
complete, has been rendered possible only by the power
of the United Kingdom, which has preserved for both lands,
which their scanty population could not have held for
a moment against any invader. It is the habit to lay
stress on the failures in policy of statesmen of the past and
to emphasize errors made by them, such as the unsatis-
factory boundaries of Eastern Canada, the fishery rights of
Americans and French in Canada and Newfoundland, and
the presence of other foreign nations in the Pacific. It
would perhaps be more just if less interesting to lay stress
on their great achievements in preserving for the Empire
all the lands of first-rate importance : all the possessions
of foreign powers in the Pacific which might by any process
of reasoning be considered as having fallen to these powers
through any negligence of British statesmen could not
compare in value for a moment with the island of Tasmania.
Even in South Africa, in which the disadvantages of British
administration have revealed themselves far more fully
than in any other part of her dominions, due recognition
must be accorded to the statesmanlike policy of conciliation
which has after much tribulation produced a Union in
which it may be believed in due course conflicting ideals
may yet be reconciled, a view encouraged by the over-
whelming defeat of the Nationalists in the general election
of October 1915.
INTRODUCTION 19
There are other important advantages which have been
derived by the self -governing Dominions from the connexion
with the United Kingdom. Apart from the possibility of
development in security from external influences which is
the chief boon conferred by British control, these countries
have profited by the free use of British capital, in some
cases assisted by guarantees of government loans by the
Imperial Parliament, by a steady stream of British immi-
gration, and by the protection afforded in foreign countries
to the persons and interests of British subjects of Colonial
origin by the diplomatic and consular officers of the United
Kingdom. In the first two cases the advantage derived has
been mutual : the Colonies have paid the interest on the
loans contracted by them, the emigrants have flourished
and benefited themselves, and indeed often those whom
they left in the mother country. But that a benefit is
mutual does not alter the fact that it is advantageous, and
while precision of valuation is impossible, it is quite certain
that neither loans nor population would have been forth-
coming from the United Kingdom in equal measure and on
equal terms to countries not under the British Crown.
In the case of the advantages conferred by the use of the
diplomatic and consular service and of in the last resort
the authority and power of the United Kingdom the gain
must be considered as being wholly on the one side. The
people of Australia, New Zealand, Canada, Newfoundland,
and South Africa have thus enjoyed in China, in the Turkish
Dominions, in Morocco, in Siam, and in Persia the valuable
exterritorial privileges assured to British subjects, privileges
which as independent powers they could hardly have won
for themselves, while in the rest of the world the repre-
sentatives of the United Kingdom have in matters great
and small, in questions of trade and of personal liberty,
vindicated with constant vigilance the rights of British
subjects of Colonial origin.1 The wrongs of Canadian
sailors in Uruguay and of a shipping firm of New South
Wales in the Marshall Islands have been redressed as
1 See Mr. Borden's speech in Canadian House of Commons, Dec. 5, 1912.
B 2
20 IMPERIAL UNITY AND THE DOMINIONS
effectively as any grievances of British subjects pertaining
to the United Kingdom, and the whole cost of the diplomatic
and consular services has been borne by the Government
of the United Kingdom, without complaint or hesitation.
It would of course be idle to pretend that the advantage
of the connexion of the Colonies with the United Kingdom
has been all on the one side. It has been clear gain to the
latter to have a fair field for investment and for emigration
in lands which are under the British Crown. It has always
been a cause for national pride that the United Kingdom
has colonies in number and extent far superior to that of
any other country «,nd that the British Empire is the
greatest known to history, and if this was the case in the
days when it was believed that in time of stress no military
aid could be expected from the Colonies, the feeling has
been greatly intensified by the decision of the Dominions
in the case of the Boer War and in far greater measure in
the case of the European War to aid the mother country
with all their resources and power. It was indeed not
believed by any sane statesman that the stress of a European
war would reveal any flaw in the unity of the Empire ;
the conception that the British Dominions would seize the
opportunity of a struggle involving the existence or at
least the independence of the mother country to declare
themselves independent was a chimera which could be
hatched only in a disordered brain, but it was legitimate
to feel doubt how far these Dominions would feel them-
selves bound to take active part in a war which was brought
on without consultation with them being possible and under
conditions which they inevitably could hardly completely
realize. The analogy of the Boer War was clearly not
conclusive. In that case the feeling of the Dominions had
been attracted to the support of the Uitlanders in the
South African Republic, many of whom were of Colonial
origin. The long drawn out negotiations had been followed
by them with care, and the struggle assumed in their eyes
an effort to secure constitutional liberties on reasonable
terms. Moreover, the war appeared to have been deliber-
INTRODUCTION 21
ately forced on the British Government by the republics at
a time when the British preparations for war were quite
incomplete, and when war was not desired by the British
people or Government. The jealousy of foreign powers was
observed, and it was felt just and proper to assist fellow
colonists in South Africa when the Cape and Natal were
invaded by enemy forces. Nor can it be overlooked that
to many of those who volunteered the conflict afforded
prospects of excitement and enterprise welcome to the bold
and hardy characters of young Canadians, Australians, and
New Zealanders. In point of fact events showed that the
Dominions realized the seriousness of the issues in the
European War, and recognizing that liberty and democracy
were on their trial, responded to the need by organizing
with all seriousness and earnestness forces on a scale wholly
unexpected alike by the British people and by the enemies
of the allied powers.
The response of the Dominions at the hour of greatest
peril may be deemed sufficient answer to the theory that
the Dominions seek independence of the mother country
and desire to set themselves up as independent nations.
The difficulties in the way of such ambitions are obvious
and important, even assuming, as it can doubtless be safely
assumed, that the United Kingdom would not seek to deny
independence to any Dominion which deliberately decided
that such independence was desirable, after the whole
question had been submitted to the free judgement of the
electorate under a democratic franchise. In the case of
the Australasian Dominions, the presence of a great power
of the first rank with a large population and no large avail-
able territories for that population to occupy would compel
an independent Australia to rely for security upon an
alliance with one or other of the only powers whose aid
could possibly preserve the country from annexation in
whole or part, the United Kingdom and the United States
of America. Alliance with the United Kingdom after
a declaration of independence would only be procured on
terms which would be at least as onerous as the former
22 IMPERIAL UNITY AND THE DOMINIONS
connexion under a common Crown, and despite the wave
of enthusiasm which passed through Australia on the
occasion of the visit of the United States fleet in its famous
cruise to Japan, it would be rash in the extreme, as is clearly
recognized in the Commonwealth, to assume that the great
republic would for no obvious advantage to itself undertake
the grave task of defending a distant ally whose territory
is singularly open to attack and whose resources are still
comparatively undeveloped. The independence of New
Zealand and South Africa would of course be still less
capable of defence. With Canada matters are different,
for commercial considerations present great possibilities of
advantage from the union of the Dominion with the United
States, and the fact that the establishment of close recipro-
city between the two countries might result in annexation
was recognized in 1891 by no less cool a judgement than
that of the Hon. Edward Blake, when he found himself
unable to persist in the policy of the Liberal party in Canada
in favour of close trade connexions with the United States.1
Twenty years later the same issue divided Canada into two
hostile camps, and a scheme of reciprocity resulted in the
defeat by an overwhelming majority of a Government which
had seemed perfectly secure of office, and which in its
general policy had certainly never shown itself deficient
in sense of Imperial obligation. It appears clear, therefore,
that the destiny of Canada, despite the great influx of
American citizens to take advantage of its wealth in farm
lands, does not point to absorption in the great republic,
nor. is it certain that the ideal of such absorption is looked
upon in the United States with as much favour as at an
earlier date, partly no doubt because any attempt to
assimilate so vast an accession of territory- might alter
beyond recognition the fundamental divisions of American
party politics.
But if independence is not the ideal of responsible states-
men in any Dominion, and if dreams of independence are
only vaguely held here and there among isolated units of
1 Cf. Sir C. Tapper, Recollections of Sixty Years, pp. 304 seq.
INTRODUCTION 23
the population of these Dominions, it is a different thing
with the growth of national feeling in the Dominions.
The rise of such a feeling was quite inevitable and in every
way desirable : it was present in germ from the beginning
of self-government, but it has come to fuller development
only since the people of the Dominions realized that national
development was only possible under conditions showing
national spirit. It was unquestionably right that in the
early days of her history Canada should devote her resources
to providing means of transport to unite the east and west
of the Dominion rather than to equipping armed forces on
land and on sea, and that Australia should bend its efforts
to subjugating nature rather than to providing the fleet
without which her coasts would be overrun by others desirous
of sharing the potential riches of the country. But the
scanty resources which rendered this policy desirable and
right were not compatible with that self-reliance which
must characterize a real nation. There is on record a
striking recognition of this fact in the report of certain
members of the Victorian Royal Commission on federation
in 1870.1 It was there pointed out that the Colony of
Victoria and the other Australian Colonies were in many
respects separate States connected only by a personal tie
with the United Kingdom, with parliamentary institutions
of their own, with an executive entirely of local appointment
with the exception of the Governor, with separate revenues,
and even with separate armed forces, and it was suggested
that the grant by the Crown of the power of making inde-
pendent treaties was all that was required to set the Colonies
up as independent States united to the United Kingdom
only by the possession of a common Sovereign in a relation
analogous to that which formerly existed between the
Ionian Islands and the British Crown. But the framers of
these proposals, who included Sir G. Berry and Sir Gavan
Duffy, were evidently conscious that the armed forces which
the Colonies possessed were not of the character suitable to
the protection of an independent nation, for they pinned
1 See Responsible Government, iii. 1155.
24 IMPERIAL UNITY AND THE DOMINIONS
their faith on the recognition of their neutrality which they
hoped, from the humanity shown by the great powers in the
adoption of rules forbidding privateering and protecting
private property at sea, would readily be accorded by these
powers. The naive faith shown thus in treaties is only
equalled in absurdity by the further proposal that the
adoption of this attitude would not in any way prevent
the Colonies from coming to the aid of the mother country
if she were attacked, such aid possessing all the greater
value because of their being independent States. It is
hardly surprising that nothing further came of this remark-
able exposition of international law.
The situation is now changed when Australia, New
Zealand, and Canada have forces which cannot be regarded
on any theory as negligible and when Australia possesses
the nucleus of an effective Navy in place of the old gun-
boats which constituted the naval defence possessed by the
Australian Colonies in 1870. Countries which have the
power to supply themselves with effective protection or
even with substantial protection may justly claim that they
have outgrown a Colonial status, may resent the phrase
' our Colonies ' used fondly of the Dominions by the
average inhabitant of the United Kingdom, may insist that
the title Dominion or Commonwealth should be replaced
by Kingdom, and may even seek to compel the abandon-
ment of the term Colonial as applied to self-governing
possessions or, more properly, countries. The eradication of
the adjective Colonial from the English speech is doubtless
impossible, but it is common ground with all responsible
statesmen that all possible steps must be taken to further
the national life within the Empire of the self-governing
Dominions. Nor is it doubtful that this end is to be
obtained in one way only, the encouragement of the greatest
autonomy in self-government coupled with the creation of
closer bonds of union between the several parts of the
Empire as a whole. The first part of this proposition is
self-evident : any check to the growth in self-reliance of the
peoples of the Dominions would be a calamity ; but the
INTRODUCTION 25
second part is not less indisputable. No Dominion could
possibly by whatever extension of its national life be as
great as the British Empire ; even if Canada possesses
the most highly educated, the most hardworking and the
most intelligent of the people of the world, nevertheless in
organic connexion with forty-five millions in the United
Kingdom and five millions in Australia they may hope to
reach yet a higher destiny than can await them as Canadians
only. Canada herself and the Commonwealth represent
aggregates of independent units, nor can any one doubt that
the life of Canada and the Commonwealth is fuller and
better than that of the units from which they have emerged
could have been : even five years have done not a little
to broaden the outlook of South Africa, and the difficulties
of the task should not make us despair of any solution for
the problem of the self-governing portions of the British
Empire other than the loose alliance which some believe is
all that is possible. But the attainment of true organic
unity for so great an Empire and so diverse elements scat-
tered widely in space is a task far exceeding that of any
federation yet accomplished, and it may well be that the
form which ultimately will be evolved will be one which
has no existing parallel.
In the meantime it is certain that the efforts of statesmen
must be bent on removing as far as is practicable all grounds
of friction between the several parts of the Empire, and
on promoting unity of sentiment and action upon common
problems. These questions must present themselves for
partial solution as far as may be practicable under existing
circumstances at the next Imperial Conference, and it is
therefore of interest to consider in the first place what are
the existing limitations of the independence of the self-
governing Dominions and in what degree they can be
relaxed without injury to the framework of Empire, and
in the second place what means there exist of effecting
a closer union between the several parts of the Empire.
PART I. THE LIMITATIONS OF THE
AUTONOMY OF THE DOMINIONS
A. THE GOVERNOR
CHAPTER I
THE APPOINTMENT OF THE GOVERNOR
IN all Colonies of the Empire the rule is observed that
the appointment of the head of the executive government
is vested in the Crown. It is recognized that while the
executive government must be vested in the Crown, never-
theless it cannot normally be exercised by the Sovereign
in person, and must be carried on by a representative,
styled Governor-General in the case of federations and
Governor in the case of unitary Dominions and of the
Australian States, which preserve within the federation of
the Commonwealth a certain independence. This fact en-
titles them to a position superior to that of the provinces
of Canada or the Union of South Africa, which is indeed in
essence a unitary Government, though some appearance of
federal institutions has been preserved. In the case of the
federations and the Union, which owe their existence to the
action of Parliament alone, the power of the Crown to
appoint a Governor-General rests upon the express provisions
of the constitution Acts : in the case of the unitary Dominions
and the States of Australia the office of Governor is indeed
recognized by Dominion statutes, but it is created by
Letters Patent under the Great Seal of the United Kingdom,
and the actions of the Governor are regulated by these
Letters Patent and by the Instructions under the Signet
and Sign Manual which are issued along with the Letters
Patent. Even in the case of the federations and the Union,
THE APPOINTMENT OF THE GOVERNOR 27
similar instruments have been issued in supplement of
the bare authority of appointment contained in the Acts
creating the constitutions. The actual individual officer
is appointed to the post of Governor-General or Governor
by a Commission under the Sign Manual and Signet, which
serves as the authority for the swearing in of the new
officer in supersession of the old commission.
In making the appointment of a Governor — by which
term a Governor-General may conveniently l be included —
the Crown must naturally act on the advice of the Imperial
Ministry of the day. There is, of course, no legal necessity
that this should be the case, but it is a maxim of the British
constitution that any act of Government in the British
Islands carried out by the Crown must be authorized by
the responsibility of a minister, and thus in all cases of
appointment responsibility is assumed in the first instance
by the Secretary of State for the Colonies, and in the second
place by the Cabinet and Prime Minister for the time being.
Formally this responsibility is indicated by the counter-
signature of the Governor's commission by the Secretary
of State, and in practice a Secretary of State may be called
upon to defend the selection of a Governor which on his
advice the Crown has seen fit to make ; as for instance in
1913 when the appointment of Sir W. Ellison Macartney
was challenged on his selection for the Governorship of
Tasmania on the ground that he had been at one time an
Orangeman and would therefore not prove acceptable to
the Roman Catholic elements in the State. Practically,
of course, the appointment is not made on the sole authority
of the Secretary of State : appointments to important
Governments are matters in which the Prime Minister must
be expected to take a certain direct interest, and it is an
acknowledged part of the royal prerogative that no person
should be submitted for appointment as a representative
of the Crown whose appointment would be distasteful to
the Sovereign. Nor is it doubtful that the Ministry of the
day would give all possible consideration to any suggestion
1 So in Canadian Statutes the Governor in Council is used.
28 IMPERIAL UNITY AND THE DOMINIONS
for the filling of an important post which might be made
by the Crown, the selection of men for the highest posts in
the Dominions being obviously a matter in which the judge-
ment of the King would have peculiar value.
The question naturally presented itself at a comparatively
early date whether the power of choice could not be shared
in some degree by the Colonial Government. The matter
was definitely raised in a somewhat acute form by the
decision of the Imperial Government in 1888 to appoint
as Governor of Queensland a distinguished officer, Sir Henry
Blake, who had just served a period as Governor of New-
foundland.1 The feeling in Queensland ran at that moment
somewhat high ; the late Governor, Sir Anthony Musgrave,
whose distinction had been won in Crown Colonies and who
was not familiar with the niceties of responsible government,
had thought it his duty to exercise a personal discretion
in a case of the proposed exercise of the prerogative of mercy.
The exercise of this discretion was formally permitted by
the royal instructions then in force, nor in all probability
was the discretion of the Governor at fault ; there is nothing
more difficult than the due exercise of the prerogative of
mercy in a small community, when everything tends to
bring pressure on ministers to remit penalties which, how-
ever just, are offensive to the majority or even a considerable
minority of the people in the locality in which the offence
was committed or the criminal lives. The .Ministry of the
day resigned, and as there was no Imperial interest involved,
it was impossible to maintain the action of the Governor,
whose death followed shortly after. It was not unnatural
in all the circumstances that the Queensland Government
should have been anxious to secure a man of long experience
in self-governing Colonies, and at the same time South
Australia approached the Secretary of State for the Colonies
with the request that the Government might be informed in
confidence of the name of the officer proposed as the next
Governor so that if necessary any objection might be taken
to the proposed appointment before it was formally made.
1 See Parl. Pap., C. 5828.
THE APPOINTMENT OF THE GOVERNOR 29
The Parliament of New South Wales a little later enunciated
the view that any future Governor of that Colony should be
a man of parliamentary experience in the United Kingdom.
The Secretary of State for the Colonies persisted, however,
in the view that much as he would like to share the work of
choice of a suitable Governor with the Colonial Governments
the task was one which was impartible ; if a Governor were
in any sense the nominee of a Colonial Ministry he might
be held to have lost his claim to be impartial, especially
in the very delicate matter of exercising the right of the
Governor to grant or refuse a request for a dissolution of
Parliament ; moreover, a Governor had duties to perform
not merely as head of the Colonial Government but also as
an Imperial Officer, and the Secretary of State must, there-
fore, remain responsible for the selection. The claim that
colonies should receive Governors with parliamentary
experience was noted, but it was pointed out that in point
of fact it would be difficult to induce men with such experi-
ence to give up their careers at home for the sake of Governor-
ships, and stress was laid on the fact that the rule, if adopted,
would have excluded from office many of the most distin-
guished Governors of the past. The difficulty was, however,
solved in the case of Queensland by Sir Henry Blake
tendering his resignation in view of the objections raised
by the local Government, and while declining to regard
these objections as satisfactory ground for the refusal to
accept him, the Secretary of State made another and more
acceptable selection for the office. In point of fact, though
the formal claim of the Colonial Government was thus
rejected, it was thought best shortly afterwards to adopt the
rule that the local Government should be asked before any
appointment was formally made whether the name of a pro-
posed appointee was in any way objectionable to them.
The result has normally been to elicit an acceptance, and
this fact is of great value to the Colonial Secretary in making
his selection : in a few cases objection has been taken on
some ground or other, and in them the wishes of the local
authorities have been respected: the transaction has
30 IMPERIAL UNITY AND THE DOMINIONS
remained fairly l confidential, and the rejected candidate
has not been placed in the mortifying position of being
rejected by a Colonial Government probably for utterly
insufficient reasons. There is also one conclusive reason to
render consultation requisite in that it is obviously most
improper that an officer whose appointment has received
the royal approval should be rejected by the Colony which
he is to govern.
Can the policy of consultation be carried further and the
Governor be made in effect a nominee of the Dominion
Government ? This question has not been as yet of practical
importance save in the case of the States of Australia. In
them it has been canvassed from time to time and a certain
amount of popular support for the appointment of local
candidates has manifested itself ; on two occasions labour
Governments, that of Mr. Price in South Australia in 1908,
and that of Western Australia in 1913, have put forward
reasoned arguments in favour of the alteration of the practice
by which Governors are chosen from men whose work and
whose family connexions lie outside the Commonwealth.
In effect the arguments in favour of this movement are that
the post is one which could be suitably filled by a local man,
that such an appointment would permit of economies being
effected, it being a fixed belief with many members of the
labour party in Australia, that the very moderate salaries
now paid to the Governors of the States are princely incomes
imposing an undue burden on the resources of the States,
and that it is not fair that a man should be debarred from
appointment because he is an Australian by birth. A further
suggestion which, however, has not officially been put
forward by any Government is that the duties of Governor
should be combined with those of Chief Justice, and it has
been pointed out in support of this argument that in the
event of the absence on leave of the Governor — and Governors
of States at one time were fond of taking some six months'
leave in the course of their term of office, formerly of six
1 Actual proposed appointment* are normally allowed to leak out by
ministries, but not rejections of candidates.
THE APPOINTMENT OF THE GOVERNOR 31
and now of five or six years' duration — the Chief Justice
acts in his stead without difficulty or inconvenience.
The arguments against the proposal are of weight. The
combination in the hands of one man of both the control
of the executive government and of the Chief Justiceship
is anomalous in theory and in practice would be likely
to result in difficulty ; in point of fact the Chief Justices of
the important States of Victoria and New South Wales
when acting as Governor have been in the habit of ceasing the
performance of their duties as Chief Justice. It is doubtful
whether in the long run the States are really anxious to
see the salaries of the posts made so low that they could
only be accepted by local men who were prepared to abandon
the social side of the Governor's functions ; in fact, if not
in theory, the view prevalent is rather that a Governor
should not be unwilling to pay something for the honour of
serving as the representative of the Sovereign. The choice of
local men, whether the selection be confined to natives of
the State as was suggested by Mr. Price or to natives of
Australia as was the view of the Government of Western
Australia, might have the advantage claimed that he would
be more likely to avoid any action which would run counter
to Colonial feelings, but this result is very problematical.
What is much more probable is that the person selected
would be a man who had played a part in local politics,
and who would inevitably be accused of abusing his authority
as Governor in order to further the interests of the party
with which he had formerly been in political sympathy.
It must be remembered that the communities forming the
States are still comparatively small except in the case of
New South Wales and Victoria, and that the selection of
a man wholly detached from party politics would be difficult,
and the readiness which prevails to attribute improper
action to local men can be judged from the fact that so per-
sistent were the allegations that a Chief Justice of Tasmania
had made improper use of information acquired by him
when acting as Governor that the Government of the day
found it advisable to have the charges examined and refuted
32 IMPERIAL UNITY AND THE DOMINIONS
by a formal investigation. An officer appointed from out-
side may be guilty of indiscretions and may commit errors
of judgement, but it is impossible to consider that he has
been actuated by improper motives. A still more important
consideration lies in the fact that while the Imperial duties
of State Governor are not of substantial extent or importance
he should serve as a supporter of art, literature, and higher
culture generally in a way which can hardly be expected
of a man who ex hypothesi has spent his life in the limits
of the Commonwealth. Yet a further reason against the
adoption of the proposal is the fact that the constitution
of the Commonwealth plainly contemplates that the
Governors of the States like the Governor-General should
be appointed by the Imperial Government without regard
to considerations of local origin. This point is one of
the consequences of the clear differentiation between the
constitution of the Commonwealth with the quasi indepen-
dence of the States and that of Canada in which the provinces
are in certain matters definitely subordinated to the central
government of the Dominion, and in which in harmony
with this fact the Lieutenant -Governors are chosen by
the Governor- General in Council, naturally from among
ex-politicians. Nor has the position of Lieutenant-Governors
been preserved at the high level of Governors selected by
the Imperial Government, and appointed by the King ; it
is characteristic that when Sir Charles Tupper learned that
Mr. I . Tarte was in a position to establish charges of corruption
which would have driven Sir H. Langevin from office in
the Dominion Cabinet in 1891, his first idea of a solution of
the difficulty was to suggest to the Prime Minister that
Sir H. Langevin should be appointed Lieutenant -Governor
of Quebec.1 Nor can it be denied that it is precisely in the
provinces of Canada that Lieutenant-Governors have inter-
preted in the widest possible sense the powers which are
vested in their hands.
Considerations like these have probably availed to prevent
the claim for local appointments being made more vocal in
1 See Recollections of Sixty Years, pp. 214, 215.
THE APPOINTMENT OF THE GOVERNOR 33
the Dominions, though the elective Governor is a phenome -
non which is not unknown in labour circles. The present
method of appointment indeed seems to serve as effectively as
almost any that might be devised. It is open to a Dominion
Government if they feel a desire for any special person as
Governor to mention the matter informally to the Secretary
of State, and no Dominion Government is compelled to
accept any Governor to whom it can take exception. The
result has been in the main to provide excellent heads of
the Government, and to make as adequate a substitute as
the very different conditions permit for the actual presence
of the person of the Sovereign. The only alternative scheme
is one which has been suggested of late from time to time,
but which has not yet established itself and which must,
therefore, be considered as still on trial. The retirement of
Earl Grey from the Government of Canada in 1911 was
followed by the appointment of the Duke of Connaught
for a period of two years in the first place, a tenure of office
afterwards extended by a year and then prolonged until
the end of the war. Before, however, this event changed the
course of happenings, the proposal had been made to Canada
and accepted that he should be followed in office by H.S.H.
Prince Alexander of Teck. It is impossible not to see in
this scheme a design to treat the post of Governor-General
as something of very high importance, in which place
should be found for a royal or semi-royal personage, and the
position was clearly recognized in the Dominion. It has
produced diverse expressions of opinion, and it must be
admitted that the opinion of Canada would not accept the
doctrine that the post must be held by a person of royal
blood ; such a doctrine would offend the sense of democracy
of many who have no tinge of American connexion, nor
would it be acceptable to that very considerable body of
Canadian opinion which from connexion, often of blood,
with the United States has a sentimental objection to
monarchy. The mere suggestion that the Duke of Connaught
was to be followed in office by Prince Arthur of Connaught
produced the most clear expressions of hostile opinion, based
1874 C
34 IMPERIAL UNITY AND THE DOMINIONS
on no personal defect of a popular Prince, but on his youth
and inexperience of affairs which unsuited him for the holding
of the most distinguished place in the Dominion. On the
other hand, the fears of an introduction of the practices of
a royal court which were widely entertained on the appoint-
ment of the Duke of Connaught, as with less ground they
had been entertained on the appointment of the Marquess
of Lome, were dispelled by the adherence of His Royal
Highness to the regime of his predecessor, and the distin-
guished public career of the Duke, added to his competence
in business and charm of manner, secured his wide popularity
in the Dominion. But this is far from indicating that there
is any possibility of the acceptance whether in Canada or
in any other Dominion of the theory that the representative
of the Sovereign should be a royal prince, still less of the
suggestion that such Governorships should be hereditary
in a branch of the royal family. Difficult as is the problem
of providing Governors for the Dominions, it has yet to be
shown that the present method is not the best attainable ;
the election of a Governor would offend radically against
the principle of responsible government and would raise
up in the Dominion a power which, resting on an elective
basis, would tend to compete with the authority of the Prime
Minister himself.
CHAPTER II
THE POWERS OF THE GOVERNOR AS RESTRICTED
BY LEGAL LIABILITY
IT is a fundamental principle of the Government of the
United Kingdom that the whole executive authority of
the kingdom rests in the hands of the Crown, that this
authority is exercised in every case on the advice of ministers,
and that for every act of the King which is done in his
official capacity a minister of the Crown must be responsible.
It is further established that the King can do no wrong,
and that therefore, if wrong is done, it cannot have been
done by the command of the King, and the wrongdoer must
answer to the law for his action, whether criminally or
civilly. Liability, whether criminal or civil, is measured by
the ordinary law of the land ; the doctrine of Act of State
cannot be invoked by a government official against any
person but a foreigner,1 and the only protection possessed
by public authorities in the case of British subjects and in
the case of foreigners generally is that afforded by certain
rules regarding the period of time within which action
may be taken and the form of procedure to be adopted in
such action. The application of the same principle, the
following of the rules of the common law, results in what is
sometimes regarded as anomalous, the position of the
official who contracts in the name of the Crown. The rule
is that he is not personally liable on such a contract, since
a man cannot be held liable on a contract which he makes
for a disclosed principal, and yet as the Crown cannot be
sued the Crown cannot be held to be directly liable. The
procedure by petition of right, however, remedies this
defect, and though it is true that the royal fiat is required
before a petition of right can be brought and that, therefore,
1 See Harrison Moore, Act of State.
02
36 IMPERIAL UNITY AND THE DOMINIONS
theoretically the remedy for breach of contract on the part
of the Crown, can be denied by the Crown, it is an established
part of constitutional usage that the fiat should be granted
whenever a prima facie case for inquiry by a court is shown.
There is no difficulty in conceiving that the position of
the Governor might have been assimilated in these matters
to the position of the Crown in the United Kingdom. It
seems clear that the Lord-Lieutenant of Ireland is as
exempt from suit in respect of any of his official actions
as the Crown in England, and that a claim preferred against
him would not be entertained by the courts, nor would any
attempt be made to subject him to the criminal law in respect
of any official action. The position of the Governor in
these respects is quite different ; it was early realized that
the position of Governor at a great distance from the mother
country would be seriously abused if no means of punishment
existed, and criminal acts of Governors are liable to be
punished in England under the provisions of the old Acts
11 and 12 Will. Ill, c. 12, and 43 Geo. Ill, c. 85, though
fortunately these Acts have not been effectively invoked
against a Governor for over a hundred years. More impor-
tant is the fact that civil actions can be brought against
a Governor in the courts of the Dominion in which he is
Governor and also in the courts of the United Kingdom
for torts committed by him, and such actions have been
brought from time to time within recent years, The
Governor is not liable for contracts entered into by him on
behalf of the Crown, for in that case the principle applies
as in England that only the principal can be sued, but
contrary to the principle adopted in England, by local
legislation direct suit against the Crown in cases of contract
is allowed in the Dominions, while in many of them this
privilege of suit is extended to torts. The difficulties arising
from the liability of the Governor to actions both in England
and in the Dominion is mitigated by the fact that by
English law an action on tort brought in England must be
based on the fact that the act in question must be tortious
both by the law of England and by the law of the place in
THE POWERS OF THE GOVERNOR 37
which the action took place, and that accordingly if by an
Act of Indemnity the tortious character of the act is removed
in the Dominion, then the basis of an action in England
disappears ; thus in the case of Phillips v. Eyre,1 which
arose out of the action of the notorious Governor Eyre in
putting down' with undue severity the revolt of the negroes
in Jamaica, it was decided that the effect of an Act of Indem-
nity passed by the island Legislature, even though that
Act had been assented to by the Governor whose acts were
impugned, was nevertheless sufficient to deprive his pro-
ceedings of any tortious character, and to relieve him from
liability in civil proceedings in England. On the other
hand, this doctrine does not apply to criminal proceedings
under the Acts of Will. Ill and Geo. Ill, nor to proceedings
for murder or manslaughter under the Act 24 and 25 Viet,
c. 100, which authorizes the trial and punishment in England
of these offences when committed anywhere abroad by a
British subject, for no Colonial Act can operate, to destroy
the effect of an Imperial Act unless there is express authority
in some other Imperial Act for this purpose. But the effect
of this anomaly could at any time be made good by the
decision of the Crown to enter a nolle prosequi if proceedings
were taken by any private individual against a Governor.
The same proceeding is available in a Dominion to prevent
the actions of a Governor being examined criminally
there, though there seems to be no doubt that in theory a
Governor even for his official actions is liable to the criminal
jurisdiction of the Dominion courts in the absence of express
legislation to the contrary. In his private capacity he is of
course liable both civilly and criminally.
In the case of the self-governing Dominions it may be
argued that the application of the old Acts is out of date,
and that they should be formally removed from the statute
book in their application to such Dominions. The total
repeal of the measures might be held to be unadvisable in
view of the fact that in some of the smaller Colonies the
Governor occupies a post of such authority and power that
1 4 Q.B. 225 ; 6 Q.B. 1.
38 IMPERIAL UNITY AND THE DOMINIONS
in the hands of an unscrupulous man injury might be
done to individuals which could not be adequately met by
mere civil proceedings. But the larger question naturally
presents itself whether the Governor of a self-governing
Dominion or State should not be placed as regards all his
official actions in a position more nearly akin to that of the
Lord -Lieutenant of Ireland and made exempt from all
form of legal process as regards any official act done by him,
leaving the responsibility for illegal acts, if any, to be borne
by the officers who carried them out. It is, of course, true
that even as the law at present stands these officers may be
held to be liable for the acts in question, but obviously,
if they are authorized by the Governor, it is natural and
proper that proceedings in respect of them should be
directed not against mere subordinates but against the head
of the Government, who is much more likely than any
subordinate to be able to meet the damages which might
be awarded. Moreover, as an action in England would
normally only be possible when the proposed defendant
was resident in the country, an action there would normally 1
have to be directed against a Governor during his presence
in England on leave of absence or immediately after retire-
ment from the administration of his government.
The matter is not of academic interest because the opera-
tion of the rule places the Governor in a position of difficulty
with regard to the conduct of the Government of the country
and compels him to share in some degree with ministers
responsibilities which he ought not to have to bear. The
two most prominent instances in which the Governor finds
himself in difficulties are in connexion with the expenditure
of public money and the declaration of martial law. In
both instances he may quite easily find himself in the position
of having to decide either to approve illegal action and thus
to render himself liable to suit, or to decline to permit
ministers taking action which they can assure him is essential
in the interest of the country ; normally indeed he has no
1 This follows from the rules of the High Court as to service of process
abroad.
THE POWERS OF THE GOVERNOR 39
real choice ; he cannot as a rule hope to secure other ministers
if he dismisses those whom he has, he cannot rule the country
without ministers, and so he is compelled to agree to the
proposals of ministers and thus to put himself without any
real option of choice in a position of incurring legal liability.
In the case of Crown Colonies the practice has always
prevailed under which the expenditure of money may be
authorized by the Governor if approved by the Secretary
of State for the Colonies before the amount in question has
been appropriated by the Legislature. This procedure is
applicable because the Legislature of a Crown Colony in
the narrower sense of the term is one which is controlled
by the Secretary of State through the Governor, and there-
fore its sanction to expenditure approved by the Secretary
of State can always be relied upon. In the Dominions the
transition from Crown Colony control to the forms of
responsible government has naturally enough not been
effected without leaving traces of the older forms, and there
has been from time to time in varying degree a tendency
for Ministries to secure expenditure in anticipation of the
authority of Parliament.1 The expenditure is later on brought
before Parliament and formally sanctioned, but the practice
is obviously open, unless regulated, to objections ; the
Opposition in Parliament complain that the matter is reduced
to a farce when they are asked to authorize the expenditure
of moneys which have been paid out and which, therefore,
are already beyond their power of control. More serious
is the fact that the Upper House is inclined to resent any
attempt made to force its hand by the use of sums which
have not been brought before them for approval, especially
in those cases in which, as in South and Western Australia
and Tasmania, the Upper House has nearly equal power
over money Bills with the Lower House.
The intervention of the Governor is required in all the
cases of the expenditure of public money, for in accordance
1 In England the rule is normally observed, but exceptions have occurred ;
see the case of the Treasury action in July 1901, referred to in the case of
Bowles v. The Bank of England, Times, Oct. 22, 1912.
40 IMPERIAL UNITY AND THE DOMINIONS
with the old practice under Crown Colony government, he
is required by the Audit Acts to sign every warrant for the
issue of public money by the Treasurer. This provision
must, it is clear, as a mere matter of law be read subject to
the express provisions contained in every Dominion and
State constitution that the consolidated revenue fund can
be appropriated only by the Parliament, and, though the
Constitution Acts do not expressly * provide that no warrant
may be signed by the Governor except on the strength of
an appropriation by Parliament, it is clear that, if the inter-
pretation that a Governor could sign warrants without such
appropriation were adopted, the result would be that two
different and not necessarily harmonious forms of dealing
with public money would be provided, which is absurd.
Any appropriation, therefore, must be made by Parliament,
and it is only when this is done that the action of the
Governor is possible, if the law is to be strictly followed.
Now it is obvious that to carry out this scheme it is ne-
cessary that the Ministry of the day should secure that
Parliament is summoned to meet at such times and that such
business is brought before it as will ensure that the necessary
appropriations of public money shall be duly made for each
financial year, or that in the alternative power should be
given to the Government, in the event of the passing of an
appropriation measure not being carried through in good
time, to expend money on the basis of the expenditure
authorized by Parliament for the previous year. There
would still remain the case of urgent expenditure which it
was necessary to incur when Parliament was not in session,
and which arose from causes not foreseen, and legislative
authority to expend sums in anticipation of formal authority
could also be given. These devices have been, as is clearly
right, widely adopted in the Dominions and States ; 2 thus, in
1 It was so provided for the provinces of the Union in 9 Edw. VII, c. 9,
s. 89, but modified in Act No. 10 of 1913, s. 17.
2 Thus, in the Union, Act No. 21 of 1911 by s. 26 allows special warrants
for unforeseen needs or excesses on foreseen services up to £300,0 0, but
subject to appropriation by Parliament not later than the next sessioa
For South Australia cf. Parl. Pap., Cd. 6091, p. 60.
THE POWERS OF THE GOVERNOR 41
South Australia in order to meet the difficulty of appropria-
tion without legal authority Acts were passed in 1911 and
1912 (Nos. 1065 and 1087) which permit the Governor to
appropriate within clearly defined limits sums for the support
of the ordinary needs of Government and an additional
sum of money not exceeding £50,000 for unexpected needs
arising when Parliament is not in session. Another and
simpler device is that of the Treasurer's Advance, which
is adopted very freely by the Commonwealth of Australia
and in Western Australia, but which is recognized also in
the other States, but even this expedient has been criticized.
Thus, in Western Australia in 1913 the Legislative Council
protested against the action of the Government regarding the
direction in which the advance to the Treasurer sanctioned
in Act No. 17 of 1912 had been applied, despite the fact
that the sum was to be subject to appropriation for the
defined purposes for which it had been used in the Appropria-
tion Act of the year in which it was expended.1
Notwithstanding the existence of these provisions, cases
constantly occur in the Dominions and States where
expenditure has to be incurred without the approval of
Parliament being previously obtained.2 In Queensland
when Mr. Kidston resigned office in 1907 as a result of the
refusal of the Governor to give him an assurance as to
adding members if necessary to the Legislative Council
in order to overcome its resistance to the measures regarding
wages boards and voting proposed by the Government,
it was necessary for the Premier who succeeded him to ask
the Governor to issue warrants for expenditure amounting
to some £700,000 without Parliamentary authority, and the
illegality of the Governor's action was strongly condemned
by the Opposition, who threatened when in power to refuse
1 It has been argued that in view of the Audit Act, No. 12 of 1904, of the
State appropriation by warrant is (a. 31) contemplated without Parlia-
mentary sanction being first required, but this cannot be pressed. The
Audit Act cannot override the Constitution Act of 1890.
2 Most often when Parliament is dissolved as a result of governmental
difficulties, e. g. in 1911 in Canada when Sir W. Laurier appealed to the
people on the Agreement with the United States.
42 IMPERIAL UNITY AND THE DOMINIONS
to ratify the expenditure, though fortunately when the defeat
of Mr. Philp at the polls resulted in the return of Mr. Kidston
to power wiser counsels coupled with new political tendencies
rendered it unnecessary to fulfil the threat. The procedure,
however, was in so far legal that the Governor was actually
asked to issue warrants ; in the case of the dissolution of
the Parliament of Victoria by Sir T. Gibson Carmichael at
the request of Sir Thomas Bent in 1908, the necessary means
of carrying on the business of the State had to be provided
without any legal authority at all, and the committee which
examined the question of the procedure followed could
not suggest any very effective way of meeting the case,
although it was discovered that in granting a dissolution
the Governor had inquired of the Premier and had received
a formal assurance that the Treasury was provided with
funds to carry it over until Parliament should meet and vote
further sums. The difficulty of the position of the Governor
when he is asked to act in these cases is further illustrated
by the case of the action of the Government of the Transvaal,
just before the expiry of the Transvaal Legislature on the
occasion of the coming into effect of the Union ; anxious to
reward its supporters and to make compensation in some
degree to them for their losses through the disappearance
of a full Colonial Parliament on the formation of the Union
Parliament and the reduction of the status of the local
legislative body, the Transvaal Ministry secured the authority
of the acting Governor for the issue of the full salary which
would normally have been paid for a complete session to each
member. The courts of the Transvaal pronounced the action
clearly illegal,1 but found that there was no appropriate
form of action in which the steps taken to pay the money
could be checked, and much criticism was naturally directed
1 Dalrymple and others v. Colonial Treasurer, [1910] T.P. 272. Techni-
cally the Government evaded flagrant illegality by waiting until Parliament
was not in session and then presenting the warrant for signature on the
ground that the expenditure was urgently required and Parliament was
not in session ; see Lord Crewe's defence in the House of Lords Debates,
July 25, 1910.
THE POWERS OF THE GOVERNOR 43
not merely locally against the Governor amongst those who
considered the action taken in the light of a disgraceful waste
of public money on an illegitimate object, and the carrying
through by executive action of a proposal which could not
have been enacted legislatively owing to the objection which
would have been taken by the Legislative Council, but also
in England both against the Governor's action, and against
the Imperial Government for permitting the action. The
criticism in a sense was erroneous, for the interference of
the Imperial Government would obviously have been
motived by no Imperial interest, and the acting Governor
was advised by his ministers that his action was proper,
but it is perfectly clear that the action of the Ministry was
indefensible, since not only did they evade the decision
of the Legislative Council, but they took this action at a time
when they evaded the responsibility which might otherwise
have been brought home to them by the vote of the electors
to whom they owed their power, since as the Parliament
was on the verge of abolition, they had never to face the
same electorate again. Nothing can more clearly illustrate
the desirability of removing from a Governor all liability
for his action, and the assimilation of his position in this
respect to that of the Crown in the United Kingdom. Rigid
adherence to the rule of law is impossible ; even when the law
is reasonably wide in terms, as in Canada and New Zealand,
excess expenditure has from time to time to be incurred,
and even in a case like Newfoundland, where a considerable
unauthorized expenditure results annually from the practice
of underestimating all requirements, the theory that the
Governor is responsible is unsound and tends to obscure
the real facts of the position by throwing over the acts of
the Ministry the aegis of the King's representative.
The case of the declaration of martial law is a still more
glaring example of the absurdity of the theory that the
Governor is legally responsible for the acts of his ministers,
and the case is the more serious in that, while the means
of bringing a Governor to book for signing warrants without
legal authority are by no means obvious, there exists no
such difficulty in the case of acts done under martial law. In
the case of expenditure without Parliamentary authority
there exists no certain form of procedure to punish a
Governor, assuming that he has not been guilty of appro-
priating the money to his own use ; it does not seem that
any court would issue an order prohibiting expenditure,
nor is it easy to see by whom an action for the expenditure
of the money could be brought. In the case of acts done
under martial law the liability of the Governor to pro-
ceedings not merely in the Dominion or State is in full
effect, and a local Act of Indemnity can only bar civil
action in the United Kingdom ; even if it is very improbable
that criminal proceedings could ever be successful, the attempt
has been made in recent years to make them effective, and
the trouble which might thus be involved upon a Governor
is not one which he should fairly be called upon to undergo,
when as must be the case with a Governor of a self-governing
Dominion or State the action taken was not his own, as was
that of Governor Eyre of Jamaica, but that of his ministers.
It may indeed be contended, as was done in the case of
the proclamation of martial law in Zululand of December 3,
1907, by critics of the Government of Natal on whose advice
the proclamation was issued by Sir Matthew Nathan,1
contrary to his own judgement of the necessities of the
case, that it is desirable to maintain the personal responsi-
bility of the Governor and not to throw it upon ministers, since
thus the Governor is required to exercise a personal discre-
tion, and is able to act on his own judgement, and on the
instructions of the Secretary of State for the Colonies. It
is, however, impossible to accept the argument thus put
forward . The essence of a proclamation of martial law, when
made under the royal prerogative as it is now normally
made in every self-governing Dominion and State, is that it
asserts the intention of the Government to exert in a state
of disorder all the powers which are inherent in the Govern-
ment for the maintenance of the public peace, and also
if need be powers which go beyond even the extraordinary
1 See Par/. Pap., Cd. 3888, pp. 174, 194.
THE POWERS OF THE GOVERNOR 45
authority which every Government possesses at law in
time of overthrow of public order. The common law of
England, which is the common law of nearly all the self-
governing Dominions, and the common Roman-Dutch law
which prevails in South Africa agree in allowing no inconsider-
able latitude to the Executive in the repression of disorder,
but experience has shown that it is necessary in order to
cover all the acts which take place in the suppression of
a disturbance to obtain from Parliament an Act of Indemnity
for what has been done in good faith in the suppression of
disorder. The existence of a state of public unrest is a matter
which must be better understood by ministers than by
the Governor or the Secretary of State, and therefore prima
facie the declaration of martial law is a matter on which
the Governor should act on the advice of ministers. More-
over, as an Act of Indemnity for what is done is required as
much by ministers as by himself in acting on this advice,
he has the full assurance that in doing so he will find the
action of his Government supported by the Parliament and
that the necessary Act relieving him from legal responsibility
in the Dominion or State will be passed into law. What
probability is there that a Governor who refuses to proclaim
martial law at the request of a Ministry will find other
ministers to face the situation ? In the particular case of
Natal doubtless the unprejudiced judgement will consider
that Sir Matthew Nathan was right in holding that the
declaration of martial law was premature, but no one will
doubt that he was in the right in subordinating his own views
to that of his ministers after he had by expressing his opinion
done all that lay in his power to show them the more correct
aspect of the matter.
But, while the general principle cannot be seriously
contested on constitutional grounds that a Governor should
be freed from personal liability in respect of a declaration
of martial law and should act on the advice of ministers
in declaring and withdrawing it, it must be admitted that
in the case of Natal difficulty arose from the fact that
Imperial troops were retained in South Africa and even in
46 IMPERIAL UNITY AND THE DOMINIONS
Natal itself, on the services of which the Government of
Natal could have relied in the event of the revolt such as
it was becoming too serious for their forces to hold in check.
It was this circumstance which confused the issue of martial
law in Natal, and it was this fact which gave just ground for
some of the objections taken to the attitude of the Imperial
Government in the matter, though the objectors seldom
succeeded in expressing their objections in the correct
form. Responsible government involves as an essential
corollary that the Government shall undertake the full
responsibility for the defence of internal order : if it is not
able to do this the grant of such government is clearly an
error, for it means that the community is unfit for self-
government. In Natal candour must admit that the grant
was premature, that it was not actually desired by any
very great majority of the people of the Colony as represented
in the Legislature, and that the number and resources of
the white population were so small in comparison with the
number of natives, many of them uncivilized, that the
entrusting to the Colony of responsible government was
ill advised, especially when it was known that the Colony
could not provide for its own internal order for some years
at least after self-government. The evidence of the Natal
Native Affairs Commission1 was emphatic on the demerits
of the native administration in Natal, and as it was composed
of distinguished representatives of the people of Natal it
is impossible to question the justice of the views so expressed.
A wiser policy would doubtless have been followed had the
people had before them the necessity of proving their
capacity to govern themselves by maintaining security in
the territories of the Colony by means of their own forces.
As it was, reliance on the Imperial troops removed the
necessity for caution which otherwise must have tempered
and guided into better channels native policy. From the
Imperial point of view the retention of troops long after the
grant of self-government was occasioned in the first instance
by the events of the Boer War, which prevented the carrying
1 See Part. Pap., Cd. 3889.
THE POWERS OF THE GOVERNOR 47
out of the original intention to withdraw the forces after
six years' notice from the grant of responsible government,
and it was afterwards found difficult to remove them, partly
in view of the recent conquest of the republics and the
necessity of maintaining a garrison in South Africa to
prevent any possible insurrection, a precaution obvious in
itself and fully justified by the revelations made in 1914
of the irreconcilable attitude of considerable sections of the
Boer population. But their presence in Natal undoubtedly
led the Imperial Government into the position of aiding,
however passively, the Natal Government in a proclamation
of martial law which neither the Governor nor the Imperial
Government could believe to be necessary.
The same accident of the presence of Imperial troops
in the Transvaal led to two further incidents in which these
troops were employed by local Governments in support of
the enforcement of declarations of martial law, issued by
those Governments. In 1907 a strike on the Rand mines
necessitated the issue of a proclamation of martial law and
the calling out of 1,419 of the Imperial forces as a precaution-
ary measure, but the magnitude of the occasion was far
surpassed by the strike which came to a head on July 4
and 5, 1913.1 The number of Imperial troops employed
reached the high figure of 2,910 out of a total of 6,660 then in
the whole of the Union, and the loss of life in the repression
of disorder in Johannesburg when the Imperial troops after
showing the greatest forbearance were compelled to fire on
the rioters amounted to twenty-one lives. The Government
of the Union explained the request which they made
urgently for the assistance of the Imperial forces by the
peculiar position in which they were placed by reason of
the disbandment of the existing military forces of South
Africa in order to reconstitute the Defence forces under the
terms of the Defence Act. The strikers had chosen the
moment for action when the Government was most helpless,
and immediate measures were necessary to protect the sixty
odd gold mines, the coal mines and power stations, the
1 See Parl, Pap., Cd. 6941, 6942.
48 IMPERIAL UNITY AND THE DOMINIONS
municipal buildings and the stations and railways, which
were manifestly in great danger. The existing forces of
police, though augmented to the utmost possible extent, were
quite inadequate to repress the disorder, and the presence
of 170,000 male natives in the mines added enormously to
the danger, since if the railway was cut there would be no
food for these men in three days and rioting amongst them
would be inevitable. Stress was also laid on the number of
the criminal class in Johannesburg which would have taken
part in any disorder and added to the confusion. The
Governor-General, therefore, was satisfied that the Imperial
forces must be used for this purpose despite the fact that
they were not intended for any such work, and approved the
action of the General Officer commanding these troops in
putting them at the disposal of the civil authorities on the
application of General Smuts and in anticipation of the
approval of the Governor- General. The action thus taken
by the Governor-General was also ex post facto considered
proper by the two judges of the Supreme Court of South
Africa who formed the Witwatersrand Disturbances Com-
mission,1 and who held after a prolonged investigation into
all the circumstances that, had the Imperial forces not been
on the spot to render prompt assistance, the injury to life
and property would have been much greater than it actually
was. On the other hand, it was strongly felt by the repre-
sentatives of labour in the Transvaal that the Government of
the day had taken unfair advantage of the presence of the
Imperial troops to deny them the concessions which could
have averted the strike, and Lord Gladstone, while thinking
that the employment of the Imperial forces in the circum-
stances was essential, and that to have allowed them to
stand by would have deserved the severest condemnation,
laid stress on the fact that it was his intention to draw the
notice of ministers to the lessons of the strike, adding that
he was sure that they realized that Imperial troops were not
retained in South Africa to do such work.
The warning thus given by Lord Gladstone had due
. » See Part. Pap., Cd. 7112.
THE POWERS OF THE GOVERNOR 49
effect : the Government proceeded energetically with the
reconstruction of the military forces of the Transvaal, and
when in January 1914 the Labour Party brought on the
general strike which they had planned as the most effective
means of securing from the Government their legitimate
aims, they found themselves confronted with a declaration
of martial law in parts of the Transvaal, Natal, and the
Orange Free State, and with the most complete preparations
to suppress any disorder by means of the defence force,
now fully organized and armed, and disposed with much
military ability by the Government.1 The result of the action
thus taken was decisive : faced with the impossibility of
achieving success the motion collapsed, and the strikers
suffered complete and ignominious defeat but without loss
of blood. This very fact was naturally made the ground
for the criticism of the action of the Governor-General in
agreeing to the proclamation of martial law when the forces
mustered were obviously adequate to meet the situation,
but Lord Gladstone pleaded that, apart from the fact that
the Ministry were most anxious to make the repression
a complete success and to avoid the use of Imperial troops
by the taking of measures of the most determined type,
the matter was one for South Africa to decide and not for
any other authority to deal with. It is impossible to resist
the force of his reasoning : a self-governing community
must be allowed to manage its own internal affairs, and the
Ministry must have the power to advise the proclamation
of martial law without the Governor having any right to do
more than interpose the reasoned suggestion which it is
always within the province of a Governor to offer on any
action of his ministers. But this is only possible if the
Governor is not subject to any legal liability for his action,
and if the Ministry do not require the support, active or
passive, of the Imperial forces. As the mere presence of
such forces always implies the possibility of their use, it
is clear that full responsible government is impossible unless
a Dominion has within its borders no military forces which
1 See Par/. Pap,, Cd. 7213, 7348.
1874 D
50 IMPERIAL UNITY AND THE DOMINIONS
are not raised and maintained by itself. r This fact explains
the slow and unsatisfactory development of responsible
government in the Union of South Africa. The necessities
of the native territories have always, prior to the European
War, rendered it necessary for Imperial troops to be quartered
in the Union, and the position of the Governor of the Cape of
Good Hope prior to the Boer War, of the Governor of the
Transvaal after that war, but before union, and now of the
Governor-General of the Union as at the same time High
Commissioner for South Africa with special Imperial duties
in that capacity, has really been incompatible with the
natural exercise of the duties of responsible government.
The difficulties of the position have as a rule been minimized
by the exercise of tact on both sides ; the Ministry have
striven to remember that the Governor is also something
more than a Governor, and he has conformed his action to
the fundamental idea at the basis of the arrangement for
the combination of the two offices in one hand, the advantage
of securing that the policy of the responsible government
colony and of the administration of the native territories
should be carried on in close harmony. When, however,
each side has pressed its rights to the furthest extent, as
in the famous case of the disagreement between Sir Bartle
Frere as Governor of the Cape and Mr. Molteno, the Prime
Minister in 1878, the result has been friction and eventually
in that instance the successful dismissal of the minister by
the Governor, who succeeded in finding another Ministry
to accept full responsibility for his action in the matter.1
The anomalies resulting from the presence of Imperial
troops in a Dominion, in itself an undesirable state of affairs,
should not be allowed to obscure the fundamental rule that
the executive government must be responsible for the
declaration and maintenance of martial law, that it should
not be hampered in its action by the difficulty that the
Governor has personal liability under the law, and that
accordingly it is necessary in the interest of the full develop-
ment of self-government that the Governor should be
1 See Responsible Government, i. 289-91.
THE POWERS OF THE GOVERNOR 51
enabled to act freely on ministerial advice by being relieved
from all liability to suit, a relief which would at the same
time throw upon ministers alone the responsibility for
dealing with the finances of the Dominion or State. The
result could in part be accomplished by Dominion or State
legislation, and as regards financial liability the suggestion
that all responsibility might be removed from the Governor
was made many years ago by a Secretary of State, though
it has not been acted upon, but Imperial legislation for
the same end would be desirable, and in part as regards
criminal liability strictly necessary.1
1 Quite apart from this question is the duty of an Imperial officer,wherever
he is, to aid in preserving order and safeguarding life, as was done, for in-
stance, in New Zealand by the commander of one of H.M. ships during the
great strike there in Oct. 1913. There is then only the question of the com-
mon law, of a citizen's duty, not of the intervention of the Imperial Govern-
ment. The same thing might have happened at Brisbane in 1912 had a ship
then been there.
D 2
CHAPTER III
THE LIMITATION OF THE PREROGATIVE
IT is now clear law that the Governor has a delegation of
so much of the royal prerogative as is required for the
conduct of the executive government of the Dominion or
State of which he is Governor, and time and good sense
have united to make it clear that this necessary delegation
includes practically all the prerogatives of the Crown in the
United Kingdom. Moreover in cases where there might
exist doubt Dominion or State legislation has long ago
disposed of the matter so as to render considerations of the
extent of the prerogative a matter of merely academic
interest. The old grant of the right to dispose of Crown
land which remains as a relic of the past in the Letters
Patent of Newfoundland of March 28, 1876, in those of
New Zealand and the Australian States, might have long
since disappeared from these instruments, as the disposal
of Crown land is regulated in the Dominions and States
and now also in Newfoundland by statutes, which render
obsolete the old discussions as to the power of the Governor
in respect of such lands. The prerogative of making
appointments to offices, including judgeships, though still
delegated is needless and of no value, since these appoint-
ments are regulated by statute,1 though it has been sug-
gested that the delegation serves as authority for the use
of the royal name in the instruments of appointment.
There are, however, certain powers which are held not to
pass without special delegation, and therefore only to be
1 See for New Zealand Act No. 23 of 1912 ; for the Union, No. 29 of 1912.
It has been argued that the power is one available to create a Royal
Commission ; ex parte Leahy, 4 S. R. (N.S.W.) 401, at p. 417, and it may be
useful for this purpose. The prerogative power is recognized in Common-
wealth Act No. 4 of 1912.
THE LIMITATION OF THE PREROGATIVE 53
available for exercise in accordance with the express terms
of the delegation. Of these the first and foremost is the
right to declare war and to make peace, which is not now
delegated to any Governor whatever. The forces raised
in a Dominion are forces for the protection of the Dominion
not for an aggressive war, and the Governor therefore does
not require for the government of the Dominion the power
of declaring war. Nor in the case of an indivisible empire
is it possible for one part to make peace without the assent
of the United Kingdom and, therefore, the Governor is not
given authority to conclude a peace. Hence in the European
War the measures of warlike operations undertaken by the
Governments of the Commonwealth of Australia, New
Zealand, and the Union of South Africa were all undertaken
on the strength of the royal declaration of war as com-
municated to the Governors of the several Dominions by
the Secretary of State for the Colonies, and the arrange-
ments made by the officers entrusted with the conduct of
hostilities by the several governments were of the nature
of military conventions such as are competent to sub-
ordinate military commanders in the field, subject of course
to confirmation or alteration by higher authority.1
It is clear that these prerogatives cannot belong to any
but a completely sovereign power, and that their concession
would convert the Dominions into independent entities even
if they owned allegiance to the same Crown, in which case
they would stand to the United Kingdom in much the same
relation as Hanover stood to the United Kingdom during
the period when that state was under the Crown of Britain.2
The essence of a united Empire in any form is that for
foreign affairs there can be only one voice, and these pre-
rogatives therefore cannot be sought if the unity of the
Empire is to be maintained. The same considerations
apply to the prerogative of concluding treaties of political
alliance or other purely political character, but with much
less force to the power of concluding other kinds of treaties
such as commercial treaties, and indeed international law
1 Part. Pap., Cd. 7873 and 7972. 2 See Part II, ch. ii.
54 IMPERIAL UNITY AND THE DOMINIONS
shows us cases where such treaties can be concluded by
non-sovereign states. An instance of a treaty so concluded
by the Governor of a colony under a special authority from
the Crown is that l between the Governor of the Transvaal
and the Governor-General of Mozambique of 1909 regulating
commercial relations and the employment of native labour
from the Portuguese territories on the Rand mines, but as
a normal rule it is found more convenient to adopt another
mode of procedure eliminating the action of the Governor,
which will be described later on.
A further consequence of the fact that a Dominion is not
a sovereign state in the full sense of international law is that
the Governor has no power to annex territory to the Domin-
ion, and that he can only do so under the express authority
of the Crown, whether conveyed before the annexation takes
place or sometimes given by way of ratification of a fait
accompli. The most famous case of the attempt of a Colonial
Government to make an annexation independent of the royal
authority is the Queensland effort to annex New Guinea,
which was not ratified by the Imperial Government, but
which in due course led to a minor annexation with new
authority. In harmony with this rule is the fact that none
of the territories occupied by the Dominion forces in the
Pacific and in South -West Africa in the course of the war
were annexed by the Dominion forces occupying them,
military possession alone being taken in the name of the
Crown.2 Here again no extension of the prerogative is
possible without impairing Imperial unity, unless the right
to annex is strictly limited to lands hitherto unoccupied
lying in the immediate vicinity of British territory, such as
the lands north of Canada or even those south of Australia.
A further prerogative which cannot be fully conferred
is that of the grant of honours. This power has always
been most carefully withheld from a Governor, who is merely
entrusted with the duty of investing the recipients of the
honours conferred by the Crown upon deserving Dominion
subjects. Indeed it is only the Governors- General who are
1 Part. Pap., Cd. 4587. » Part. Pap., Cd. 7873 and 7972.
THE LIMITATION OF THE PREROGATIVE 55
given the right to confer the title, degree, and honour of
knight bachelor upon such persons as they may be author-
ized to invest as Knights Grand Cross or Knights Com-
manders of the Order of Saint Michael and Saint George,
and the grant of medals to soldiers or others on the mere
authority of a Dominion Government has always been
regarded as a violation of the royal prerogative. The force
of the rule is obvious : the honours are not colonial honours,
but they are Imperial, and their value is increased by the
fact that they are not bestowed and cannot be bestowed
except on the direct approval of the Sovereign himself.
The honours so bestowed have a rank and distinction
throughout the Empire which is of no small value as sign
of Imperial solidarity. A Governor might, indeed, be
authorized by the Crown to confer honours with Imperial
validity, but the mere fact that they were not conferred
by the Sovereign would invest them with certain inferiority.
The alternative scheme that honours might be given which
should be confined within the bounds of the Dominion or
State can hardly be regarded as satisfactory : it is extremely
doubtful whether by any stretch of law it could be held
to be within the power of the Crown to confer any such
power on a Governor, and it is most improbable that such
honours would be valued highly even if the local legislature
were to confer upon the Governor the power of conferring
them, a view which is hardly within the bounds of possi-
bility.
Assuming, however, that titles and honours must be
conferred as the personal gift of the sovereign, the question
does arise whether any change is possible in the manner
in which they are at present conferred. The conferring of
honours is one of the most difficult and invidious tasks
which devolve upon the Secretary of State for the Colonies
and the Prime Minister, and there is no Dominion in which
trouble has not resulted from the mode of action. The
apportionment of honours among the Canadian ministers
on federation created much heartburning until it was found
possible by the grant of a baronetcy to sooth the indignation
56 IMPERIAL UNITY AND THE DOMINIONS
of Sir George Cartier at the higher position assigned to
Sir John Macdonald,1 and in more recent times the con-
ferring on Sir Joseph Ward of a baronetcy in 1911 was
followed by the introduction into the New Parliament of
a Bill which purported to forbid the use in the Dominion
of any title of honour, the truth being merely that the
Opposition were dissatisfied at the conferring of so high
a distinction on the leader of a government then tottering
to its fall. Much more important than this episode must
be reckoned the discussion which took place in the Dominion
Parliament on February 5, 1913, when the second reading
of a Bill to abolish titles of honour in Canada was moved
in the House of Commons by Mr. Burnham. He argued
that titles of honour which in their origin were indicative
of office or occupation had been appropriated for orna-
mental purposes and had developed into names for the
establishment of classes. The use of such names in a demo-
cracy was a contradiction in terms, and entirely contrary
to the wish and spirit of democracy.2 It was true that
titles had been conferred on men like Sir Wilfrid Laurier,
who was worthy of any title, but that fact did not make the
conferring of titles any less a violation of the principle nor
did it make it less likely for the democracy to incur the
grave and serious danger of drifting into a possible sale and
purchase of honours such as was alleged to have taken
place in England. In reply Mr. Foster pointed out on
behalf of the Government that the reference in the Bill to
titles of honour heretofore created by the Parliament or
Government of Canada had no application, as none had
been created by the Canadian Government. The bestowal
of honours came from the source of all honours, the King,
who must be allowed to be his own judge as to the selection
of persons upon whom honours should be bestowed. From
that point of view there was objection to the passage by
Parliament of such a Bill. Moreover he did not think that
1 See Sir C. Tupper, Recollections of Sixty Years, p. 62.
2 Cf. Canadian Annual Review, 1913, p. 297, for the view of the grain
growers of Canada.
THE LIMITATION OF THE PREROGATIVE 57
it was undesirable to have in a country some means of
giving recognition to deeds for the benefit of the country
performed in a patriotic spirit. Much of the best public
service in the Empire was done without payment, and he
did not think it took away from the merit of what was
done that there should be a superior power which when
there arose a striking case of public service could signalize
it by the grant of an appropriate honour. The principle
had done much good in the past and might do more in the
future. Sir Wilfrid Laurier, on behalf of the Opposition,
was also unable to support the Bill, though he admitted
that he was much disposed to agree with the mover. He
did not think that the mode of procedure by means of
a Bill was proper, and considered that the appropriate
procedure was a recommendation or address to the King
and not an Act of Parliament. He agreed that titles both
in Canada and in the mother country were a relic of feudal
society : his own title was the relic of such a state, and he
did not think that in Canada such titles were in accord
with the spirit of the age or could ever take root. But at
the same time the prerogative of the Crown had been exer-
cised for so many centuries with such general acceptance
that it was hardly possible to take very serious exception to
the manner in which the prerogative had been exercised.
At the same time, in reply to questions addressed to him,
Sir Wilfrid Laurier defined the position of the Prime Minister
of Canada as regards the responsibility for the grant of
honours. When he held that office he had regarded that
matter as a prerogative of the Crown and not a matter to
be covered by ministerial responsibility. The Governor for
the time being should consult the Prime Minister, and the
Prime Minister would mention the matter to his colleagues,
but he did not consider it a matter of such importance that
ministerial responsibility should be required. Even in
England, while the Sovereign would generally consult the
Prime Minister, there might be cases in which he would
exercise his own prerogative, and he doubted if any Prime
Minister would make it a matter of ministerial responsibility
58 IMPERIAL UNITY AND THE DOMINIONS
or ministerial crisis. This fact was evidence that titles
had become antiquated, but at the same time the experience
of France, where the Legion of Honour was more sought
after than it had ever been under the Napoleonic regime,
proved that even in a democracy there was always present
a tendency to confer such honours and distinctions.
In view of the agreement between the leader of the
Opposition and the view of the Government the Bill was
not pressed by its supporters and was negatived without
a division.
Sir Wilfrid Laurier's statement of the relation of the
Ministry to the Governor is capable of some expansion.
The conferring of any honour is made on the recommenda-
tion of the Secretary of State for the Colonies or of the
Prime Minister, according as the honour is one connected
with the Order of Saint Michael and Saint George or is of
a different character, though of course in the latter case the
Prime Minister acts on the advice of the Secretary of State :
knighthoods for Dominion services are conferred on the
advice of the Secretary of State after consultation with
the Prime Minister. The ministerial responsibility for
appointments therefore rests with the Imperial Government,
and not with any Dominion Government, and it is open
for the King to confer an honour on his own initiative,
though no doubt in such a case when a Dominion subject
was concerned he would consult the responsible minister
for the Colonies. But in making the recommendations of
honours to the Sovereign the Secretary of State must act
on advice for the most part since, save in the case of Gover-
nors and a few of the more prominent statesmen of the
Dominions, he cannot be in a position to decide on whom
honours would most properly be bestowed. Therefore it is
necessary for him to have recourse to the Governor and the
Ministry for guidance. The Governor in making recom-
mendations is not compelled to restrict himself to the
names submitted by his ministers : he is at liberty to
submit others, his special care being to bear in mind the
merit of public service, other than political, and the claims
THE LIMITATION OF THE PREROGATIVE 59
of art, science, and literature, but he is required to inform
his Ministry of the names proposed to be submitted, so that
they may take any exception which they think fit. In their
turn the ministers are at liberty to suggest any names
whatever, and these the Governor must forward with such
observations as he sees fit : it is understood that no honours
will be conferred on political opponents of the Ministry
without their sanction : thus when it was desired to recog-
nize the great services of Sir Charles Tupper to Canada the
full assent and approval of Sir Wilfrid Laurier were obtained
and communicated to the recipient of the Privy Coun-
cillorship then awarded.1 Nor is it normal to award any
honour to a public servant of a Dominion save with the
express approval of the Ministry.
The situation in the Commonwealth of Australia is,
however, complicated by the existence of a federal
government side by side with the State governments and
not, as in Canada, in marked preponderance over the pro-
vincial governments. In that case, while the same rules
apply as in the other Dominions, there is laid down the
further principle that with a view to attempting to balance
the claims of the different States of the Commonwealth the
Governors of the States are required to send to the Governor-
General copies of the dispatches forwarding their recom-
mendations to the Secretary of State. These recommenda-
tions may then be commented on by the Governor- General
to the Secretary of State, his duty being to assist the Secre-
tary of State in the apportionment among the various
persons recommended of the available honours, which
naturally fall short of the numbers of names put forward.
The position is clearly far from ideal, since the Governor-
General has his own recommendations and those of his
ministers to consider, though the latter duty is somewhat
diminished by the objections to putting forward any names
for honours entertained by the Labour Government when
in office, and he cannot be expected to be able to regard
the recommendations of the States with quite the same
1 Recollections of Sixty Years, p. 12.
60 IMPERIAL UNITY AND THE DOMINIONS
favour as those made by himself on his own personal know-
ledge or on the recommendation of his responsible advisers.
It is not wonderful, therefore, that the State Governments
from time to time formally raise objections to the system
by which the Governor-General has any voice in the matter
at all. The situation has also been rendered more difficult
by the complication which arises from the possibility that
a State official may be rewarded for a Commonwealth
service, and further trouble has arisen owing to the rule
that the Governor-General offers to invest any recipients of
honours who desire to receive investiture from him, thus
interfering in some degree with what the State Governors
feel is their proper function. Moreover the Governor-
General alone receives a delegation of the power to confer
the title of Knight Bachelor on the recipients of the honour
of K.C.M.G. or G.C.M.G. These matters are indeed trifles,
but that does not prevent them being sources of annoyance
out of all proportion to their intrinsic merit.
As the honours are Imperial and as they rest on the
personal bestowal of the Sovereign, the only change which
could be made in the mode of procedure would be to eliminate
the personal activity of the Governor and to lay it down
that no honour should ever be bestowed but on the recom-
mendation of the Ministry. This change would in effect
be very slight, the number of recommendations made by
the Governors being very small, and practically no such
recommendation would ever be accepted had it not received
the approval of the Ministry, when suggested to them.
Erroneous views as to the action of the Secretary of State
in this regard have now and then been expressed, as in the
case of a coronation honour bestowed on a Canadian gentle-
man engaged in finance, whose appointment was strongly
criticized in the Canadian press : in fact, however, the
gentleman in question was recommended not for Canadian
services but for his services as an M.P. in the United King-
dom by the leader of the Opposition, and the honour was
conferred on that ground alone without reference to the
Secretary of State for the Colonies. The issue, therefore,
THE LIMITATION OF THE PREROGATIVE 61
narrows itself to the questions whether every recommenda-
tion made by a Dominion Government is to be adopted,
and put in that form the answer must clearly be in the
negative, since, as the honour is an Imperial one and as the
number of honours to be bestowed must be limited, only
a selection of the names put forward can possibly be accepted.
In making his choice the Secretary of State naturally
welcomes the opinions of Governors as to the comparative
merit of the various candidates put forward by the Ministry,
but it must be remembered that the recommendation of the
ministers is submitted in full to the Secretary of State, and
that therefore, the opinion of the Governor is merely one
of the facts which the Secretary of State has to take into
account. It is doubtful, therefore, whether any substantial
change in the present procedure is either necessary or
desirable. The simple plan of abolishing honours for
Colonial services is one which has not yet by any means
won general approval in the self-governing Dominions, nor
at present is there any indication of the trend of public
opinion in these Dominions decisively in that direction.
At the same time it is right to say that the conferring of
hereditary honours in the case of residents in the self-
governing Dominions is probably a mistake. It is not
a practice of recent origin : baronetcies have been bestowed
from a comparatively early date upon men in respect of
Dominion services, nor can it be forgotten that a considerable
number of baronets in the United Kingdom claim to be
baronets of Nova Scotia. Peerages have been fewer :
Sir John Macdonald's services to Canada were recognized
by the conferring of one on his widow, and Lords Mount
Stephen and Strathcona obtained their peerages, in each
case with a special limitation, for financial services to the
Dominion. But in all these cases the recipient was resident
in the United Kingdom, and though the suggestion that
peerages might properly be bestowed for services in Australia
has been put forward occasionally in the Australian press,
it would be idle to deny that such a proposal would not
meet with general approval. The conferring of a baronetcy
62 IMPERIAL UNITY AND THE DOMINIONS
on Sir Joseph Ward was certainly unpopular among quite
a wide circle in New Zealand, and has told against his well-
deserved popularity in that Dominion : in the opinion of
competent observers it assisted in his defeat in the general
election of 191 1. In South Africa the feeling does not seem
to be so marked, but South Africa is not a pure democracy,
and its views cannot be deemed to be precisely those of
the great democratic communities generally. If as early
as the end of the eighteenth century it was felt that the
proposal to create a hereditary aristocracy which was
contemplated as possible by the Quebec Act of 1791 was
out of the question, the creation of a mere social aristocracy
must be deemed still less in harmony with the ideals of the
Dominions in the twentieth century. The grant of member-
ship of the various Orders, of knighthoods, of the highest
distinction of Privy Councillorships terminate with life, and
are earned by service : there is no essential objection on
democratic grounds to such distinctions which meet a need
of human nature, but there is the gravest objection to the
grant of honours which descend to those who have no
claim to them except by the accident of birth.
The grant of such honours is made the more objectionable
by the curious and indefensible anomaly laid down in
No. 142 of the Colonial Regulations, which in the last edition
reads as follows :
Except as provided in the following paragraph, British
subjects who enjoy in the United Kingdom precedence
by right of birth or by dignity conferred by the Crown do
not lose such precedence, while either temporarily or per-
manently residing in any part of His Majesty's over-sea
dominions.
In the absence of special instructions from the King, and
subject to any specific provision in the authorized local tables,
the precedence within any of the Governments of His Majesty's
over-sea dominions of all persons holding office or discharging
official duties, whether naval, military, or civil, within that
Government, is determined solely by official rank, and the
wives of such persons, even though they enjoy precedence in
the United Kingdom by right of birth, take their place
according to the precedence of their husbands.
THE LIMITATION OF THE PREROGATIVE 63
The second paragraph above cited lessens the absurdity
which would result from the strict application of the rule
as first enunciated, under which in not a few instances
subordinate officers would have taken precedence over the
ministers in charge of the departments of State in which
they were serving at the time. But the rule as a whole
must be deemed to be wholly incompatible with the prin-
ciples of responsible government which demand that
precedence should be regulated by the Governor solely in
accordance with the wishes of ministers as regards every
person residing in or visiting the Dominion, subject of
course to any wishes of the King regarding the precedence
of the members of the royal family, who normally rank
immediately after the Governor, though on special occasions,
such as the visit of the Duke of Connaught to the Union of
South Africa to open the first Parliament of the Union,
special precedence over all persons in the Dominion, includ-
ing the Governor- General, was granted by Letters Patent.
Subject to this one exception there is no possible ground
of Imperial interest in insisting that persons entitled to
precedence in the United Kingdom shall enjoy such pre-
cedence in the self-governing Dominions, and the rule as laid
down in the Colonial Regulations contradicts other instru-
ments of greater validity such as the authorized table of
precedence for the Commonwealth of Australia which does
not conform to the rule. Nor in point of fact is the rule
strictly observed : indeed save at the most formal functions,
such as birthday dinners, precedence is normally not
strictly observed in governmental functions in the oversea
Dominions. In the Commonwealth of Australia indeed the
question is as usual complicated by the existence of the
States and the Commonwealth as in some degree equal
authorities. The Commonwealth table assigns in the
opinion of the States too low a position at Commonwealth
functions to State ministers, and the States have State
tables of precedence which differ among themselves and
differ from the tables for the Commonwealth in the position
assigned to the several officers. In Victoria and Tasmania
64 IMPERIAL UNITY AND THE DOMINIONS
special precedence is conferred by law on the Chief Justices,
and this precedence can only be modified by legislation.
A further confusion arises from the question whether the
presence as a guest of the Governor-General turns a function
into a Commonwealth function, though the answer to that
question would appear to be clearly in the negative, and the
height of confusion is reached in theory though not in
practice by the occasional holding of joint levies by the
Governor- General and Governor of a State.
The question of ecclesiastical precedence, long agitated,
has practically been solved by the recognition of the sever-
ance of the Church of England in the Dominions from any
direct connexion with the State, and the natural conclusion
that ecclesiastical precedence must be honorary and need
not be confined to any one denomination, a position which
leaves the Governor to settle the matter with the aid of
ministers in such manner as meets from time to time the
needs of the community, even if it does not necessarily
satisfy wholly the views of the heads of the different Churches.
The question, like all questions of precedence, is essentially
one which does not lend itself to rigid definition, and the
compiling of a table of precedence for the Dominions is
a task which promises less and less success. The old
Canadian table which is nominally still in force contains
a good many anomalies and even absurdities, but any
alteration would raise thorny questions of the kind indicated
in a debate in the Canadian Parliament in 1909 when
a proposal was made that the quasi-diplomatic position
which the Consuls -General of the great powers were coming
to occupy in the Dominion should be recognized by the
assigning to them of a definite place in the table of pre-
cedence. The proposal was not without some weight, and
the Government were not at all unsympathetic in tone in
their reply, but it was not felt desirable to take any action,
nor indeed could a new table of precedence be drawn up
without raising grave questions connected with ecclesias-
tical precedence. The obvious conclusion to be drawn is
that precedence is essentially a matter for the judgement
THE LIMITATION OF THE PREROGATIVE 65
of ministers and for the fullest exercise of the rules of
responsible government.
A further prerogative, the complete exercise of which
is not entrusted to a Governor, is that of mercy, which is
still dealt with as in some degree a matter too important
to be completely entrusted to the Governor for exercise at
the discretion of his ministers. The reservation of authority
is a historical accident easily explained when it is remem-
bered that responsible government began at a time when
the Colonies were far from the mother country as regards
means of communication, and when the communities were
so small that the prerogative of mercy was one to be exer-
cised with great care under difficult circumstances. It was
also for a long time considered by ministers to be in their
own interest to maintain the responsibility of the Governor :
they were, in cases in which they were unwilling that the
prerogative should be exercised, able to state that they had
no power to comply with the requests made for the liberation
of criminals, and that the matter was one for the discretion
of the Governor. But naturally with growing sense of
self-reliance ministers began to feel that they were entitled
to have a say in all matters connected with the management
of the affairs of the Colony, and in 1888, as a result of an
insistence by the Governor of Queensland on the strict1
interpretation of his rights under the instruments of Govern-
ment, the Ministry resigned office, and the Secretary of State
for the Colonies found it impossible for him to support the
position taken up by the Governor. In 1892, as the result
of a communication from the Governor of New Zealand,
who pointed out the anomaly of a position in which the
Governor was instructed to exercise a personal discretion
which he could not effectively do in face of the power of
ministers to resign and render his position untenable, the
personal responsibility of the Governor in the Australasian
1 Perhaps an erroneous one, as the question actually raised was one
affecting a statutory power under the Probation of Offenders Act to reduce
sentences. But the principle was discussed as such ; cf. Queensland Votes
and Proceedings, 1888, i. 601-5.
1874 E
66 IMPERIAL UNITY AND THE DOMINIONS
Colonies was restricted, as it had already been restricted
in Canada since 1878, to cases in which the grant of a pardon
or reprieve might directly affect the interest of the Empire
or of any country or place beyond the jurisdiction of the
Government of the Dominion, in which cases the Governor
was to take these interests into his own personal considera-
tion in conjunction with the advice tendered to him by his
ministers. This is now the position in the case of Canada, the
Commonwealth of Australia, the six Australian States, and
New Zealand, but there are still further restrictions imposed
in the case of the Union of South Africa and of Newfound-
land. In the former case the Governor-General is required,
whenever any offender shall be condemned to death by the
sentence of any court, to submit to the Executive Council
any report made by the judge who tried the case, and to
consult them with regard to it, taking steps to obtain the
presence of the judge if that course is deemed desirable.
The Governor-General shall not pardon or reprieve the
offender unless it shall appear to him expedient to do so
upon receiving the advice of the Executive Council thereon :
but in all such cases he is to decide either to extend or to
withhold a pardon or reprieve, according to his own deliberate
judgement, whether the members of the Executive Council
concur therein or otherwise ; but in case he decides any
such question in opposition to the judgement of the majority
of the members of the Council he shall enter on the minutes
of the Executive Council a statement of his reasons for not
acting on the advice of that body. In other than capital
cases he is, like all other Governors, except that of New-
foundland, expressly required to receive the advice of one
at least of his ministers, who would of course be the minister
for justice or officer corresponding, and in such cases nothing
is said as to his forming a personal opinion in cases where
Imperial interests are concerned. In the case of Newfound-
land, which adheres to the old type, the Letters Patent and
Instructions dating from 1876 before the changes in the
Canadian instructions were made at the request of the
Canadian Government, no obligation of consulting ministers
THE LIMITATION OF THE PREROGATIVE 67
is expressly inserted, but in capital cases the Governor is
required to follow the procedure sketched above in the case
of the Union. The result in the Colony has been not alto-
gether satisfactory, since until quite lately the Ministry
have left the Governor to deal with all cases of pardon,
with the inevitable result that when Sir William Macgregor
pardoned an offender for a slight contravention of the game
laws, he was somewhat bitterly attacked in the Opposition
press, nor does it seem that in the time of his successor1
matters had altered in any way for the better, though it is
now recognized that theoretically at least Governors are not
responsible for dealing with cases of applications for remis-
sions of sentence, save in capital cases. It is, however, easy
enough to understand how serious is the pressure put upon
ministers in countries with a small population when death
sentences are involved : in Tasmania, on the last occasion
of such a sentence, the Governor took pains to point out
that the responsibility, no Imperial interest arising, lay on
his ministers, not on himself, and the Ministry, despite the
fact that the murder was a particularly inexcusable one,
felt bound to yield to popular feeling and commute the
sentence of death. Somewhat later in Western Australia
the Government were attacked bitterly in Parliament by
one of their own supporters for their determination to carry
through a death sentence, the justice of which could only
be denied by supporters of the abolition of capital punish-
ment for every offence. In New South Wales still more
recently the action of the Government in commuting the
sentence of the perpetrator of a particularly cold-blooded
murder was challenged in Parliament and attributed to the
lack of moral courage of the Government, an attack to which
the most effective reply of the Government was that their
opponents had shown equal lack of moral courage.2 In
Canada successive Governments have had energetically to
assert the principle that the action of ministers in granting
1 See Sir R. Williams, How I became a Governor, p. 415.
2 New South Wales Parl. Deb., 1910, Sess. 2, pp. 44 seq. Cf. ibid. 1911,
pp. 1295, 1296, 1316 ; Sydney Bulletin, July 13, 1911 ; Aug. 10, 1911.
E 2
68 IMPERIAL UNITY AND THE DOMINIONS
pardons must not be made the subject of parliamentary
discussion if the evil of dealing with judicial matters by the
worst possible of tribunals, a deliberative assembly acting
on ex parte statements and arguments, is to be avoided,
and the tenor of justice not obstructed. The strength of
popular feeling can be seen from the famous incident in
the Union of South Africa, when the Governor-General
in his Imperial capacity as High Commissioner commuted
a sentence of death passed for an offence committed by
a native in Southern Rhodesia, although of course Lord
Gladstone's action as High Commissioner was not in the
slightest degree a legitimate source of complaint by the
people of the Union, to whom he owed no duty or respon-
sibility in the matter.
But, though these instances might easily be increased
ad nauseam, it does not appear that any proper purpose
is served by the attempt to create an independent position
in these matters for the Governor or to throw upon him
a personal responsibility. It may be convenient for minis-
ters to shelter themselves behind that responsibility, but
that is no reason for sparing them the burden of a duty
which is an essential part of the Government of any country.
The retention of a clause requiring the personal responsibility
of a Governor for the execution of death sentences cannot
possibly be justified when the question is merely one of
internal administration : the concession of responsible
government should not be made to a community which
cannot be trusted to deal properly with its criminals. If
the question is one of Imperial concern, it is equally clear
that the decision should rest with the Dominion Govern-
ment, upon whom the Governor on his own account and
on the account of the Imperial Government can urge what-
ever considerations may be of importance in the matter,
and it really cannot be assumed that any Dominion Govern-
ment would fail to give due effect to these recommendations
on behalf of a criminal. At least it would be wholly im-
possible to find any case recorded in which the Government
of any Dominion or State has refused just consideration to
THE LIMITATION OF THE PREROGATIVE 69
such a claim, or any case in which the Governor has really
required to overrule his ministers on such a head. Any
cases in which representations on behalf of a criminal have
been made by foreign Governments of which there are
several on record, the best known being the case of Andersen
in South Australia, have, been examined by the Colonial
Ministries and any necessary action taken in respect of the
examination. The restriction in the case of the Union of
South Africa and Newfoundland might be said to have
a certain justification arising from the special facts of these
cases, but it may be doubted if it is really worth while
endeavouring in this very indirect way to secure protection
for natives in the Union in the solitary case of death sen-
tences, arid in Newfoundland the only Imperial use of the
prerogative could be to protect aliens in the enjoyment
of fishery rights from penalties imposed under local laws,
and it may safely be assumed that the Governments of these
aliens would take effective steps to relieve directly or
indirectly these alien subjects from any wrongful penalties
imposed upon them, though no doubt the remission by the
Governor of such penalties might be a more convenient
mode of procedure from the point of view of the Imperial
Government. But any real issue of this kind should be
met by direct action such as was taken in 1907, when for
a definite purpose the laws of Newfoundland regarding the
fishery were overridden by Order in Council1 in order to
preserve American fishery rights, and when the simpler
means of the use of the prerogative of pardon was not
resorted to, nor contemplated.
A further criticism on the existing rule as to pardon
presents itself. In every case it is expressly laid down that
the Governor is not to grant pardons conditional on the
person pardoned going into banishment or exile, though
except in the case of Newfoundland this rule is not applicable
to cases of a political offence unaccompanied by any other
grave crime, and in the case of the Union of South Africa,
in view of the extreme fondness of criminals for infesting
1 See Parl Pap., Cd. 3765.
70 IMPERIAL UNITY AND THE DOMINIONS
the Rand, the prohibition of banishment is restricted to
the case of British born or naturalized subjects. The
origin of the limitation is historical : the United States
Government complained in the case of one Gardiner that
he had been liberated by the Governor of New South Wales
on condition that he went into banishment, and protested
that this procedure was improper as tending to induce
criminals to have resort to the United States, and the
principle was then adopted that each Colony should accept
responsibility for the punishment of its own criminals.1
The principle is on the whole a just and proper one, at
least when it is limited to British subjects, as there may well
be cases where the best plan of dealing with a criminal
alien is to expel him for good from the scene of his misdeeds,
but it is not a principle which should be enforced through
the Governor in the mode prescribed. It could not of course
effectively be thus enforced. There is nothing whatever to
prevent the making of an agreement between the criminal
and the Administration that if he is willing to leave the State
he will be permitted to do so, but will be prosecuted if he again
appears in it, so that banishment can in practice be effected.
It is clear that the best course to adopt and that most
in harmony with Imperial relations is that the power to
pardon should be delegated in absolute terms without any
sort of reservation and subject to no conditions whatever.
The taking of this step would result in the removal of the
absurd anomaly through which the Governors-General of
Canada and the Union of South Africa have been deprived
of the power to pardon offenders who have committed
crimes outside the Dominion for which they may be tried
within the Dominion or Union. This anomaly is due, it
is clear, to following in the instruments for Canada and the
Union the terms of the Royal Instructions to the Governor-
General of the Commonwealth of Australia. In the Com-
monwealth the criminal law remains under the control of
the States, and the Governors of the States therefore possess
the power of pardoning offences against the criminal law,
1 See Par/. Pap., C. 1202, 1248.
THE LIMITATION OF THE PREROGATIVE 71
and also offences for which offenders may be tried in State
courts though the offence was not committed in the Common-
wealth. The power of pardon in the case of the Governor-
General is therefore limited to offences against the laws of
the Commonwealth, as is appropriate since the laws of the
Commonwealth and the States are distinct things. In
Canada and the Union, however, the Lieutenant -Governors
and Administrators of the provinces have no delegation of
the pardoning power from the Crown, though the former
have the power to remit penalties under provincial statutes,
a power conferred by statute, and accordingly the following
for Canada and the Union of the Commonwealth model has
resulted in an omission, which could only be made good in
strict law by the exercise of the royal prerogative by the
Crown or by a special delegation. Moreover, by the same
procedure the powers of the Governor- General of Canada,
as it existed under the Letters Patent and Instructions up to
1905, to pardon for offences against the laws of the provinces
is taken away and no power of pardon in the case of offences
against the provincial Acts of the Union is conferred on the
Governor-General, omissions of theoretic interest if of no prac-
tical importance, since apart from the question whether such
pardons are ever likely to be desirable, no one would question a
pardon , even if not lawfully granted , by the Governor-General .
A further power hitherto delegated to the Governor has
recently become of doubtful validity. Early in the history
of New Zealand it became obvious that it was often desirable
that when the Governor was on duty in some part of the
Colony at a distance from head-quarters, as was naturally
often the case, there should be some person within easy
reach available to perform the minor operations of govern-
ment which required his assent. It was therefore decided
that it would be desirable by express provision to alter the
rule that a delegate cannot delegate his powers, and pro-
vision was accordingly made in the Letters Patent of 1867
which permitted the Governor, in the event of his having
occasion to be absent for a short period from the Colony
or the seat of government, to appoint by an instrument
72 IMPERIAL UNITY AND THE DOMINIONS
under the public seal the Lieutenant -Governor of the
Colony, or any other person if no such officer existed, to
be his deputy and to exercise on his behalf during his
absence such powers and authorities vested in the Governor
by the Letters Patent as should be specified in the instru-
ment, without prejudice, however, to the full exercise by
the Governor of his powers. The same rule was adopted
in the case of the Australian Colonies, and the convenience
of the practice is obvious. Provision is also contained for
the appointment of deputies by the Governors-General of
Canada, the Commonwealth, and the Union of South Africa
in the constitutions of these Dominions, the power being given
by statute for the same reason as the creation by statute of
the office of Governor-General, the Crown having no pre-
rogative to create the federations or appoint their officials.
In 1906, however, a Bill was introduced into the House
of Assembly of South Australia and duly passed by that
House under which it was contemplated to confer on the
deputy Governor all the statutory powers of the Governor
and the powers conferred on the Governor by the Letters
Patent. The Bill was rejected by the Upper House, which
considered not unnaturally that, the matter affecting the
prerogative, it was neither necessary nor desirable, but in
1910 it was reintroduced and passed in an altered form,
and was reserved for the signification of the royal pleasure.
It appears from the preamble and the proceedings in the
Parliament on the Bill that it was felt by the Chief Justice
of the State to be doubtful whether the Letters Patent were
adequate to delegate to the deputy Governor any powers
other than those portions of the prerogative which were
actually possessed by the Governor by reason of their
delegation in the Letters Patent only, and whether anything
short of a statute would be adequate to enable the Governor
to delegate powers which were vested in him by statute
only. The Bill therefore delegated to the Governor the
power to appoint a deputy during his temporary absence
from the State or from the seat of government who would
be able, subject to any limitations contained in the instru-
THE LIMITATION OF THE PREROGATIVE 73
ment appointing him to be a delegate, to perform any of
the prerogative powers or statutory powers of the Governor.
It conferred the same power on the officer for the time
being administering the government and ex majore cautela
it ratified all acts done by deputy Governors in the past.
The essence of the argument plainly is that the term
Governor in local acts refers only, unless the contrary is
clearly expressed, to the person actually appointed by the
Crown to be Governor, and does not apply to a deputy
whom that person may be definitely permitted by the Crown
to appoint to exercise a certain portion of his functions.
The question is one doubtless not free from ambiguity, but
in favour of the validity of the power must be set the fact
that save by Sir Samuel Way in South Australia no doubt
seems ever to have been expressed by the law officers or
judges of Australia or New Zealand as to the right of the
Crown to confer this power, and that it is difficult to see,
in the absence of any statutory definition of the term
Governor, how it is not open to the Crown to arrange for the
action as Governor of a defined individual selected by the
Governor. At any rate although the Act was accorded
the royal assent by Order in Council, thus intimating the
acceptance by the Secretary of State of the views of the
Chief Justice, and although the attention of the other
States and of New Zealand was drawn to the passing of
the Act, the opinion of its necessity was not by any means
unanimous. New Zealand 1 indeed legislated by Act No. 4
of 1912 in the sense of the South Australian Act, and
Tasmania followed suit by Act No. 18 of the same year,
but no legislation seems to have been deemed necessary
by the high legal authorities of New South Wales2 and
Victoria, and the need for such legislation may very well
be doubted in the case of a prerogative exercised for some
fifty years without question raised.
1 See Parl. Deb., clviii. 530-2. So in Western Australia by Act No. 17 of
1911 ; Parl. Pap., Cd. 6091, p. 54.
2 Cf. Claugh v. Bath, 22 W. N. (N.S.W.) 152, where a signature of the
Chief Justice acting as Deputy was held valid though not stated to be
signed by him as deputy.
CHAPTER IV
IMPERIAL INTERVENTION IN EXECUTIVE ACTS
THE Governor of a Crown Colony is in constant receipt of
instructions for his guidance from the Secretary of State,
and in his executive action he is always subject to control
from home. The essence of responsible government is to
transfer the direction from the Imperial Government to
the Government of the Dominion or State, but the question
inevitably presents itself whether that transfer is absolute,
or whether there is any class of cases in which a Governor
should or may act in disregard of the wishes of the Ministry
of the day, on no other ground than that he is instructed
or holds that an Imperial interest is involved in the matter,
which it is his duty to preserve even at the expense of
disagreement with ministers. It is clear that in so far as
such a class or classes of cases exist there is a definite limit
to the self-government of the Dominions.
Apart from his action as part of the Legislature, which
will concern us later,1 two classes of cases have already 2
been mentioned. In the first place, the Governor has certain
definite obligations in the case of the exercise of the preroga-
tive of mercy, and in the second place, he is not bound to
support the recommendations for honours put forward by
his ministers or to refrain from putting forward names of
persons whom they do not recommend. These are definite
departures from the full rule of responsible government ;
the former is an anomaly which might well be removed,
but the latter is less easy to dispose of, as it is essentially
a case in which Imperial and Dominion interests are so
involved as to exclude the full operation of the rule of
responsible government, inasmuch as the principle in this
event comes into conflict with the principle that the Crown
has a right to confer honours without ministerial responsi-
1 Part II, chap. L * Above, chap. iii.
INTERVENTION IN EXECUTIVE ACTS 75
bility and that for the conferment of honours not made
proprio motu by the Crown the Imperial Government has
a responsibility to the Imperial Parliament.
The state of affairs as regards honours suggests that any
other instance in which the Imperial Government has
interfered or sought to interfere in connexion with the
executive acts of a Dominion Government will lie in a debat-
able region in which Imperial and Dominion action are
seriously confused. In point of fact this is precisely the case
in the most famous of modern instances, the instruction
sent by Lord Elgin as Secretary of State on March 28, 1906,
to the Governor of Natal to suspend the execution of twelve
natives who had been tried by a court-martial sitting under
martial law, proclaimed on February 9, for the murder of
two police officers who had fallen on February 8 in the execu-
tion of their duty in the arrest of certain natives.1 The
unrest in the Colony was apparently in some degree con-
sequent upon the removal of the forces of the Imperial
Government from Natal, with the exception of the remnants
of the garrison regiment which was then in the process of
gradual disappearance, the policy under which it had been
created having been abandoned by the Imperial Government.
The result of the withdrawal, which was in strict accordance
with the arrangements made on the concession of responsible
government, though the actual move was delayed owing
to the outbreak of the Boer War, was doubtless to impress
the Government of Natal with a sense of the danger of the
position of the Colony with its white population of 100,000
to nine times that number of natives, and the murder of the
policemen, which would normally have been regarded as
mere' matter for the action of the police force, led to the
hasty declaration of martial law, and an energetic appeal to
the Imperial Government was made by the Natal Govern-
ment for the sending of Imperial forces from the Transvaal,
on the ground that the moral effect of the sending would
be incalculable though it was not expected that any actual
use of the men would be made. The request was complied
1 Responsible Government, i. 291-6.
76 IMPERIAL UNITY AND THE DOMINIONS
with, the 2nd Cameron Highlanders being dispatched from
Pretoria to Pietermaritzburg, where their mere presence at
once impressed the whole native population of the Colony
with the view that the Natal Government had the full
support of the Imperial Government. In these circumstances
it would have been normally proper that the trial of the
alleged murderers of the two policemen should have been
carried out by the extremely competent High Court of
Natal, but the Government, despite the representations to
this effect by the Governor, who naturally considered that
with the situation well in hand there was no need for the
action under martial law when the courts of the Colony
were open, insisted on trying the natives by a court-martial.
Their persistence in this action is the more remarkable in
that they had clearly not the slightest desire to give the pri-
soners anything but a fair trial : care was taken to examine
witnesses in the defence of the accused, and to treat the
matter with all serious consideration, and the decision to
execute twelve of the natives was only arrived at after the
sentences of the court had been carefully considered by the
Governor in Council. On the other hand, the proceedings
could not from the nature of the case possess that validity and
security of due observance of the forms of law and justice
which would have resulted from the adoption of the normal
mode of trial by the law courts. This fact naturally caused
perturbation in the United Kingdom, and at the same time
the position of the Imperial Government was directly affected
by two considerations : in the first place, they could not
ignore the fact that the action of the Government of
Natal was in the long run rendered possible by the presence
of the Imperial forces in South Africa, and immediately by
the presence of the battalion in Pietermaritzburg, and in
the second place, they realized that the action of the Natal
Government and of the Governor must be sanctioned ex post
facto by an Indemnity Act, since obviously as the courts were
open there could be no chance of alleging successfully that
the court-martial held on the murderers was legal in itself.
It was in these circumstances that the Secretary of State
INTERVENTION IN EXECUTIVE ACTS 77
on March 28, 1906, learned from the Governor that it was
intended to execute twelve of the natives tried for the
murder of the policemen, that the trial had been conducted
in due order, that the sentences had been considered by the
Governor in Council, and that the Governor had agreed,
being satisfied that no injustice was being committed. Lord
Elgin replied by telegram on the same day that feeling
was being caused by executions under martial law, that the
Imperial Government was involved through the retention of
Imperial troops in the Colony and the necessity of sanction-
ing an Indemnity Act, and he added, 'I must impress upon
you necessity of utmost caution and you should suspend
executions until I have had opportunity of considering your
further observations '. The reply to this telegram was an
intimation through the Agent-General of the resignation
of the Ministry ; further information was supplied by the
Governor on March 29, and on March 30 the Imperial
Government agreed to the executions if the Ministry on
full consideration considered them necessary, a view which
the Ministry naturally held.
The episode is one which unhappily has never received the
discussion in cool and calm dispatches which Mr. Churchill
promised the House of Commons that it would in due
course receive, and the view of the Government on the topic
must be gathered from the reply made by Mr. Churchill
to the criticisms of the Opposition in the debate which took
place in the House of Commons on April 2 on the motion
for the adjournment of the House moved by Mr. Ramsay
Macdonald to discuss the way in which martial law in Natal
was being applied, and the imminent and grave dangers
to the native subjects of the Crown involved in its administra-
tion. The gist of this brilliant and combative defence is
that by an unfortunate concatenation of circumstances
the Governor failed, without any fault being imputed to
him,1 to make known the full situation as to the means
taken to make clear the guilt or otherwise of the natives,
so that the telegram of March 28 arrived when it had been
1 This was clearly absurd.
78 IMPERIAL UNITY AND THE DOMINIONS
assumed by Lord Elgin that the trouble was subsiding, that
the information of the proposed execution came as a great
surprise, that the telegram of suspension and inquiry was
absolutely essential in order that the Secretary of State
should be able to justify his position, that the resignation
of the Natal Government had a flavour of precipitancy,
but that it had not influenced in any way the decision of
the Imperial Government, which would have been the same
had the Government not resigned, once it had the requisite
information. He made further a strong point by insisting
that had Jhe persons executed been foreigners the Imperial
Government would have been the persons to whom the
foreign Government would have turned for redress, and he
also laid stress on the importance of the meting out of
even-handed justice to the native subjects of the Crown.
Colonel Seely reinforced Mr. Churchill's arguments by in-
sisting on the error of trying the men by martial law in
view of the defects of any military tribunal from the point
of view of appreciation of legal points. The Opposition was
feebly represented : Mr. Long was impressed with the gravity
of the question at issue and much relieved by the explanation
given, though he raised the question whether it was proposed
to treat the great self-governing Dominions in the same
fashion as Natal. Sir Gilbert Parker insisted that every
Colony had a perfect right to manage her own affairs, as she
thought proper ; and laid stress on the fact that the Common-
wealth of Australia has telegraphed to express objection
to interference with the action of a self-governing Colony.
It is clear that the comparisons of the case of the great
self-governing Dominions with that of Natal were hardly
seriously meant as contributions to the discussion, and
allowance must be made for the natural bitterness of feeling
of the Opposition in view of the recent defeat of the party
at the general election, which had been greatly contributed
to by the policy of the late Government as to Chinese labour.
The sufficient answer to that argument is that the self-
governing Dominions like Canada do not require the aid
of British troops to keep them from grave risk in the event
INTERVENTION IN EXECUTIVE ACTS 79
of a native rising, and that the acceptance and indeed earnest
solicitation of Imperial aid is not consistent with full self-
government when that aid is needed for the preservation
of internal order. Nor again can it be supposed that
a Ministry conscious of its true position and duty would
have resigned in the midst of what it declared to be a critical
situation without even arguing the question at issue with
the Secretary of State ; such headlong precipitancy was the
action of an admittedly weak Government seeking public
applause in view of an approaching parliamentary struggle,
and had the Imperial Government been as little aware of
its duty as the Government of Natal it could have met the
situation by the withdrawal from Pietermaritzburg of the
battalion, and the grant of leave of absence to the Governor,
leaving Natal to emerge as it best could from its difficulties,
with the immediate result of a collapse on the part of the
Ministry. Fortunately, the Imperial Government was not
in the slightest degree likely to take any such step, and so
the Government of Natal could take its dramatic exit with
safety. Nor on the main question was there the slightest
justification of the trial of the natives by martial law ; the
Governor urged them not to adopt this course, and no
unprejudiced judge can deny that he was in the right.
Had the Imperial Government in the special circumstances
of the case insisted on the Governor withdrawing the
proclamation of martial law, a serious issue might have
arisen between the Colonial Government and the Imperial
Government, but the action of the Imperial Government
amounted merely to a suspension of an execution pending
further information, and the resignation took place without
even an attempt to argue the matter.
It is right, however, to admit that the Secretary of State's
telegram was in one matter defective ; it conveyed to the
Governor an instruction to suspend the executions, and
this instruction was contrary to constitutional usage.1 After
1 This may seem a small point, but it appears to be valid : certainly it
would have been impossible for any official of experience to draft such
a telegram.
80 IMPERIAL UNITY AND THE DOMINIONS
all the Governor was acting as he had expressly stated on
the unanimous advice of ministers and he had declared
that no injustice was being done ; these were specific
statements, and while the burden of responsibility on the
Imperial Government in view of the employment of Imperial
forces de facto to keep the rebellion in check was a heavy
one, there was no ground on March 28 for the Secretary of
State to do more than to send an invitation to ministers,
through the Governor, to suspend the execution until he
was supplied with such further information as might be
necessary to place the Imperial Government in a secure
position from the point of view of its responsibility to
Parliament and the country at large, in which a good deal
of feeling had been excited and in which sympathy for the
natives was strong. Had such a telegram been sent, or had
the Secretary of State taken the still simpler plan of tele-
graphing in reply that he had learned with concern of the
necessity to execute the natives on trial by a court-martial,
but that if the Governor were assured of their guilt he must
accept his assurance, it would have been wholly impossible
to criticize the action of the Government in any way. But
by adopting the form of words cited above, which gave an
instruction to a Governor to override a decision of ministers
in which he had concurred, instead of preferring a request,
the Secretary of State was guilty of an error of judgement,
which a more expert Governor than Sir Henry McCallum
would have perhaps been able to make good. It must be
remembered in fairness to Lord Elgin and to Mr. Churchill
that both were wholly without familiarity with the conven-
tions of correspondence with self-governing Dominions, and
that their decision had to be taken in a very brief space and
without the full advantage of consultation with their per-
manent officials.
Such as it is the incident stands by itself, and the cir-
cumstances attending it are too peculiar to allow it to rank
as a precedent of any value for any purpose. The conclusion
has, however, been drawn by authorities who might have
been expected to be better informed that the Natal case
INTERVENTION IN EXECUTIVE ACTS 81
has established the rule that a Dominion Government in
any dispute with the Imperial Government has only to
resign in circumstances which make it certain that the
Governor cannot find any alternative Government for the
Imperial Government to give way. For this view there is
neither any logical ground nor any current of practice. The
solitary example which can actually be cited is, as has been
seen, sui generis, and concerned simply with an order to
a Governor to act independently of ministers in an executive
act under martial law. In 1 892 the Governor of New Zealand
refused the request of the Ministry of Mr. Ballance to add
twelve members to the Upper House ; the Governor acted
not on instructions from the Imperial Government but on
what he understood to be the line of policy laid down by that
Government in favour of the maintenance of the independent
character of the Upper House of Parliament. The Govern-
ment of the day declined to resign, on the ground that if
the Governor was acting according to his duty they could
not take that as a ground for refusing him their assistance
in the government, and the matter was in due course
settled in their favour by the Secretary of State.1 In 1907,
the next year after the Natal incident, the Government of
Newfoundland found their legislation overridden by an
Imperial Order in Council made under an Act of 1819, but
even the very extreme nature of this action did not result
in the resignation of the Ministry.2 In 1908 the then Govern-
ment of Natal found itself at loggerheads with the Imperial
Government over their stoppage of the payment of the
salary of the Chief Dinizulu, whom they had arrested under
the cover of martial law, proclaimed without any justification
and against the opinion of the Governor and the Secretary
of State ; Natal had agreed not to interfere with that
salary, save with the consent of the Secretary of State, at
the time when Zululand was handed over to the colony to
govern, and the Imperial Government insisted on their
intention to pay it . The Natal Government yielded and made
1 Part. Pap., H.C. 198, 1893-4.
* Ibid., Cd. 3765.
1874 F
82 IMPERIAL UNITY AND THE DOMINIONS
arrangements to assist the Chief in preparing his defence.1
The Parliament of New Zealand in 1910 passed a drastic
Shipping Bill intended to penalize vessels which employed
orientals in their crew ; the passing of the Bill was asserted
in Parliament to be essential, but when the Imperial Govern-
ment could not give its assent, the New Zealand Government,
despite the unanimity of feeling in the Dominion, took no
steps to resign. In 1906 the Parliament of the Common-
wealth passed a Bill to give a preference to British goods
conveyed in ships manned only by white labour and being
British ; the Imperial Government was unable to agree to
the Bill, partly on treaty grounds, but still more because
they could not accept a preference which was given in
a manner to differentiate against British subjects of Indian
origin.2 Nevertheless, Mr. Deakin, least likely of men to
acquiesce in any course not constitutional, remained in
office. In the midst of the very lively discussions between
the Imperial Government and the Canadian Government on
copyright, from 1889 to 1894, though the temper of Canada
ran high, resignation was never hinted at ; 3 nor from 1907
to 1913 did the Commonwealth ever threaten resignation,
despite the somewhat unbending attitude of the Imperial
Government regarding the treatment of merchant shipping.4
It would be easy to prolong the list of cases, but it is needless
to do so ; it is certain that no Government has ever resigned
because of disagreement with the Imperial Government on
any other subject than martial law executions in Natal.
Nor is it difficult to see the reason why this is so. The
Government of the United Kingdom could regard with
equanimity the resignation of a Dominion Government,
even if no other Government would take its place ; it is
not responsible for the carrying on of the Government, and
all inconvenience to the Governor could be avoided by the
simple process of giving him leave of absence. It is ludicrous
to suppose that the Dominion would remain without
1 Part. Pap., Cd. 3888, 3998, 4001, 4194, 4328.
1 Ibid., Cd. 3623. « Ibid., C. 7781, 7783.
« Ibid., Cd. 2483, 3826, 3891, 4355.
INTERVENTION IN EXECUTIVE ACTS 83
ministers and that its political life would end because there
was a disagreement between the Government and the
Imperial Government. The only means of bringing about
a really serious state of affairs would be for the Dominion
to set up as an independent state. The reason why the
action of the Government in Natal made the position difficult
for the Imperial Government was the simple fact that the
Imperial Government, having troops in the Colony and
having large and important interests throughout South
Africa, could not view with equanimity disorder in Natal.
The question is of importance because it illustrates the
negative side of responsible government ; while that govern-
ment means the greatest possible exercise of freedom of
action for the Ministry, it at the same time involves the
consequence that the Ministry must be guided by reason and
moderation, and must be prepared to consider the rights of
other governments within the Empire and to contribute
its share of concession in order to reconcile conflicting
interests, for the conflict of interest from time to time is
quite inevitable in any group of communities.
To the rule of action on ministerial advice it has been
often suggested that an exception exists in cases where the
power to act is given to the Governor by Imperial statute
and not by local act ; in these cases it is maintained the
Governor acts with the authority of an Imperial officer, and
not as a Colonial officer at all. This proposition will not,
however, stand consideration. In the first place the possi-
bility of acting effectively without the advice of ministers
is obviously minimal, and in the second place the only
sound principle must be that for action in a Dominion
there must be a minister responsible. Nor on examination
will any of the statutes be found to be such as to render such
personal action at all desirable. Thus certain powers were
given to Governors by the Acts for the protection of
aborigines in the Pacific when being recruited for work in
Queensland or elsewhere in the Pacific ; an attempt to
claim that the Governor of New Zealand should act on
his own discretion was very properly rebuked by the
F 2
84 IMPERIAL UNITY AND THE DOMINIONS
Governor who pointed out that he could not act in the manner
laid down except by the aid of his ministers, on whose advice
he would act. Other cases are the duties of Governors
under the Extradition and Fugitive Offender Acts, under
the Merchant Shipping Act, under the Territorial Waters
Jurisdiction Act, and minor Acts ; in each of them it will be
seen on analysis that it is presupposed that the Governor
acts with the full aid of a colonial administration, which is
as much as to say that he acts on the advice of his ministers.
CHAPTER V
THE DISSOLUTION OF PARLIAMENT AND THE
DISMISSAL OF MINISTERS
1. THE DISSOLUTION OF PARLIAMENT
IN the cases hitherto discussed the apparent exceptions
to the rule that a Governor, like the King, acts on ministerial
advice rest on two grounds, either the fact that in some
cases action on such advice may expose the Governor to
the risk of breaking the law, which it is his duty to uphold,1
or that he has Imperial interests to consider and Imperial
instructions to carry out.2 In neither of these cases does
there seem to be on examination any fundamental reason
for breaking the rule of responsible government, and the
Governor might well be freed from legal liability and thus
not put in the position of having to defy the law, and might
also well be instructed to act always on ministerial advice.
The only apparent exceptions to this rule which would
convert him into a viceroy proper would be cases in which
joint Imperial and Dominion responsibility was involved,
as when British and Dominion troops were operating
together in a Dominion, or when the question of the grant
of Imperial honours was concerned.
But the question of the meaning of acting on ministerial
responsibility brings us to a most important and character-
istic difference between the constitutional practice of the
United Kingdom and that of the self-governing Dominions,
a difference which is often hardly realized through the
vagueness of the term ministerial responsibility. In the
United Kingdom it means in the first place that a minister
must take responsibility for every act of the Crown ; that, as
the Crown can commit no wrong, if the Crown acts officially,
1 Above, chap. ii. 2 Above, chap. iv.
86 IMPERIAL UNITY AND THE DOMINIONS
its action must be countersigned or otherwise adopted by
ministerial authority. In the second place it means that
the minister is responsible to Parliament. These two
considerations are enough to establish a parliamentary
form of government as opposed to constitutions such as
the constitutions of the German Empire and of Prussia,
where the acts of the Sovereign are covered by ministerial
responsibility, but the minister is not responsible to any
power except the Sovereign. But in parliamentary govern-
ment as practised in the United Kingdom there must be
added the further rule that the King can only act on the
advice of a minister who is actually holding office, and that
without such advice he cannot act. This further point
differentiates the constitutional practice of the United
Kingdom from that of countries like Italy and Greece,
where the King can constitutionally refuse to accept the
advice of ministers provided he can find other ministers,
or, more strictly, persons ready to become ministers and to
accept responsibility for the action of the Sovereign.
It is true that this doctrine is not always accepted as part
of the received constitutional law of the country. Is it to
be contended that the Sovereign would have no power to
dismiss a Ministry which, having forfeited the favour of the
country, clung to office with the aid of a parliamentary
majority which had notoriously ceased to be in harmony
with the electorate, or, still worse, without a parliamentary
majority at all ? Would it not be the duty of the King to
decline to accept the advice of such ministers and to give
the people the free right to exercise their choice of a new
Ministry through the action of their representatives in
Parliament ? The answer to both these questions is, how-
ever, less difficult than might be expected. The essential
basis of the British constitution, as it stands at present,
is the close correspondence between the electorate and
Parliament, which ensures that at the outset of a Parliament
the Ministry of the day shall in great measure faithfully
express the will of the majority of the electorate. The
comparatively short duration of Parliament minimizes the
THE DISSOLUTION OF PARLIAMENT 87
possibility of the discord between Parliament and the
electorate becoming serious, while, it must be remembered,
as the members of Parliament are subject to the same
influences as the electorate, and also to the pressure of their
constituencies, a clear change of feeling among the electors
reveals itself among the members of Parliament. Of this
there can be no more striking example than the resignation
of Mr. Balfour's Government in 1905 when in possession
nominally of a decisive parliamentary majority, which,
however, through the change of feeling in the country, owing
to the rise of new issues which were not present to the
minds of the electors of the Parliament, had ceased to be
really effective for constructional work. Even in such
a case as this the balance of advantage lies in the strict
application of the constitutional rule : any action of the
Sovereign would have introduced yet a new factor into the
situation as it existed in 1905 and have obscured the issues.
Moreover, it is, and must always be, a matter of the most
grave difficulty to decide whether the people really approve
or not the existing Government, and it is not desirable that
the Crown should be involved in action which must rest on
doubtful calculation, and which in any case at once submits
the person of the Sovereign to the bitterness of political
discussion. In the second case the argument in favour of
the inaction of the Crown is overwhelming : there is no real
possibility of any Government defying Parliament for any
considerable length of time : they cannot but meet Parlia-
ment every few months, and a distinct defeat in Parliament
must be retrieved by an even more distinct vote of con-
fidence, or resignation must follow.
In view of these considerations the statements that from
time to time are made, that the Sovereign has a discretion
to dismiss ministers1 and to dissolve Parliament, cannot be
taken too seriously. It was, of course, very freely suggested
during the struggle over the Parliament Act that the King
should decline to accept the advice of the Ministry to give
an undertaking that he would permit the use of his power
1 See, e. g., Sir C. Dilke, Journal of Royal Society of Arts, Ivi. 344.
88 IMPERIAL UNITY AND THE DOMINIONS
to create peers with a view to securing the passage of the
Bill through the Upper House. But, while those who
pressed this view were frequently indiscreet in their protest
against the powerlessness of the Crown if it could not act
as they wished, they ignored the fact that had the Crown
acted on their advice the inevitable result would have been
that the political strife would have changed from an attack
on the privileges of the aristocracy to an attack on the
monarchy, and the position of the Sovereign would have
been gravely affected. It is easy to argue that a King
who must accept the advice of his ministers serves no
useful purpose, but the argument is as wrong as it is simple,
and aims at the very existence of the British monarchy.
The very fact that in the long run the Sovereign will act on
the advice of ministers places the Crown in a position of
great influence and effect when it seeks to exercise a moder-
ating control over the action of the Government. The
discussions between the Prime Minister and the King do
not assume the difficult and hostile form of a dispute
between equal authorities, but take the form of a discussion
in which it is the clear duty of the Prime Minister and of the
Cabinet of which he is the head to make every effort to
meet the views of the Sovereign, and to make it clear that
the action which they are taking is the deliberate will of
the majority of Parliament and of the electorate. Such
a position in the long run has far more effect in moderating
political action than any effort made by one party to play
the Crown as a pawn in their efforts to meet the tactics of
the other, however unfair they may deem these tactics to be.
These theoretical arguments may be applied to the
specific case of a dissolution of Parliament. It has recently
been contended l that the power to require a dissolution
is one which rests constitutionally with the King even
against the desire of his ministers. Put in its most favour-
able form the argument runs that no self-respecting Executive
confident in the support of the country would ever withhold
1 See the discussion by Mr. James Caldwell and Mr. Swift MacNeill, Times,
Sept. 22, 24, 29 ; Oct. 1, 1915.
THE DISSOLUTION OF PARLIAMENT 89
its consent to an appeal to the electorate if desired by the
Crown. If it did withhold its assent it could have no good
grievance if it were carried out without its consent. If the
result of the election were that the new Parliament returned
a new Executive, it would be proof that the Ministry had
no right to act as the Government : if on the other hand
the Parliament supported the Executive, it would have
little to complain of : it would have remained in office, it
would be armed with a fresh mandate from the electorate,
and Parliament would have five years to run.
The fatal objection to this view arises in the case of an
Executive which for some reason is not prepared to dis-
solve in deference to the royal wishes. The Government in
1910 did so dissolve, but such a result may not always be
possible : the Government may have very urgent work
to do, it may think that the appalling cost direct and
indirect of a general election is unjustifiable, or its followers
in Parliament may decline to agree to a dissolution possibly
at an early period after a previous dissolution. In that
event the King cannot dissolve Parliament without their
consent, and they still remain in office. The necessary steps
for a dissolution of Parliament require ministerial authority,
and therefore a Sovereign who was determined to dissolve
Parliament against ministerial advice must dismiss the
Ministry and appoint another before a dissolution is possible.
Now for such a dismissal of ministers there is absolutely
no parallel since the eighteenth century, when in 1784 the
King dismissed the coalition Ministry of Fox and Lord
North. The oft-quoted case of the action of William IV
with regard to the Melbourne Ministry is normally adduced
to prove that that Ministry was dismissed and that ex post
facto the full responsibility for the dismissal was accepted
by Sir R. Peel, which if true would show that ministerial
responsibility may be exercised ex post facto. But the
publication of the Melbourne papers has shown once and
for all that the example of dismissal is non-existent : with
his characteristic easy nature Lord Melbourne wrote to the
King saying that the latter might wish to change the
90 IMPERIAL UNITY AND THE DOMINIONS
Ministry, having regard to the losses of personnel it had
sustained, and it is as clear as possible that this letter was
an intimation of consent to change and, if the King desired
that change, of resignation by the Ministry of the day.1
Nor is it any more possible to find examples of dissolutions
forced on governments by the Crown since the establishment
of responsible government. It is not to be supposed for
a moment that the Crown accepts all the advice of ministers :
the Crown, as we know from the letters of Queen Victoria
as well as from less authentic sources, frequently makes
objections, especially in personal questions such as appoint-
ments, and ministers withdraw the. peccant proposals.2
But that is not the point : either the ministers of their own
free will, on consideration of the circumstances, decide
that a special point is not worth insisting upon in face of
the known wishes of the Crown, or in the alternative they
persist in their advice, in which case it is invariably followed.
Now in the self-governing Dominions and States the
position is in marked degree different from the position in
the United Kingdom, and in two diverse ways. In the
first place the Governor of the Dominion or State does not
share in anything like the same degree as the King the
knowledge of the policy of the Government. It is notorious,
and is exemplified very well by Queen Victoria's letters and
the dispute which ended in the decision to afford knowledge
of affairs to the late King, that the Crown is kept in the
closest touch with all questions of foreign policy ; doubtless
the decision and the direction of that policy rest with the
Secretary of State for Foreign Affairs, the Prime Minister,
and the Cabinet, but the Crown is not merely informed of
everything at once, but all decisions are, if possible, com-
municated to the Crown before dispatch or immediately
after dispatch. The close attention of the Crown to foreign
affairs is balanced by its attention to all important colonial
1 See Sir W. Anson, Law and Custom, of the. Constitution, II. i, pp. xxxi,
38, 39.
1 e. g. the case of Mr. H. Labouchere's proposed appointment to minis-
terial rank.
THE DISSOLUTION OF PARLIAMENT 91
or domestic questions, and the Cabinet is expected, when
any important step in domestic affairs is decided upon, to
communicate it to the Sovereign for his information and
consideration. There is no matter on which the Crown is
not entitled to ask for information if it is not spontaneously
offered, no matter on which it may not tender advice which
must be received with all due respect even if it cannot
always be given effect to.
The same relation should in theory exist between ministers
and the Governor of a Dominion or State, but it would be
idle to pretend that as a rule it does so exist. In some
senses the Governor is undoubtedly brought into very close
contact with the management of public affairs. It is the
practice for innumerable small matters to be disposed of
by order of the Governor in Council, and in the Australian
States, New Zealand, Newfoundland, and the Common-
wealth of Australia the Governor normally meets his
ministers or some of them in Council once a week to sign
the many documents which must be approved in Council.
In this respect there is close resemblance to the procedure
of making Orders in Council in the United Kingdom, but
there is no comparison between the limited number of
matters so dealt with in the United Kingdom and the
number of questions thus treated in the Dominions. The
report of Sir George Murray on the management of public
business in the Dominion of Canada,1 in which, however,
the Governor- General does not actually attend the Council
meetings, but merely signs the papers submitted, shows the
overwhelming number of documents which pass through
the Council, as a result of the determination of Sir John
Macdonald and subsequent Prime Ministers to endeavour
to keep control on the action of their fellow ministers,
especially in the matter of appointments and contracts.
The multiplicity and triviality of the questions dealt with
render the normal Council meeting purely formal, and
apart from these meetings the relations of a Governor with
ministers are often merely ceremonial and social. There
1 Dated Nov. 30, 1912.
92 IMPERIAL UNITY AND THE DOMINIONS
is not in many cases recognized any general duty of informing
the Governor of the affairs of the Dominion, and he is left
to judge the policy of his Government from the press.
Of course, to this rule there are many exceptions : at all
periods of responsible government an able Governor with
a sympathetic personality has been able to win the confidence
of his ministers and to receive full information of their
policies, but when all is said and done these cases are
exceptions, and the perfect confidence which should exist
between ministers and Governor is not often found. Nor
when it exists is it always uncriticized : the great skill in
securing confidence of ministers and in establishing with
them really cordial relations shown by Sir Gerald Strickland
in his administration of the Governments of Tasmania,
Western Australia, and New South Wales was made a subject
of attack by the opponents of the appointment of State
Governors from outside Australia, and it was alleged that
he exercised too decisive a control over his cabinets, prob-
ably the most effective compliment payable to the Governor,
whose services were also the occasion of a more formal form
of praise on the opening in Sydney of the Conference of
State Premiers in 1915. Other cases of marked success in
establishing close relations with ministers are of course not
unknown : Lord Grey's indiscretions did not prevent his
attaining really a considerable place in the regard of the
Canadian Government, and Lord Gladstone's administra-
tion as first Governor-General of the Union was marked by
very close relations with the Government of General Botha.
But instances to the contrary are not rare : it was shown
conclusively in the Victorian Parliament that Sir Thomas
Bent, at the end of 1908, obtained a dissolution from Sir
Thomas Carmichael under deliberate and grave misrepre-
sentations of fact as to the possession by the Treasury of
adequate finances in order to carry on the business of the
State during the period of the general election, and in the
Queensland crisis of November 1907 a serious factor in
the disagreement between Lord Chelmsford and the Premier
was the lack of complete confidence towards the former
THE DISSOLUTION OF PARLIAMENT 93
shown by the latter, which led him into a distinct intem-
perance in his treatment of the situation.
On the other hand, while the Governor in one way is far
less closely in touch with a Ministry than the Crown with
the Imperial Government, at the same time the Governor
is expected to exercise an independent discretion which is
not attributed to the Crown by anything more formidable
than occasional dicta. It is perfectly clear that in the
Dominions and States the Governor is expected to exercise
a personal discretion as to the grant or refusal of a dissolution
of Parliament, and that he is not expected to act on minis-
terial advice unless he is satisfied that it is in the best
interests of the Dominion or State. There are various
reasons for this position : Dominion Parliaments are nor-
mally of short duration, three years in Australasia, five
years in Canada and the Union, and frequent dissolutions
waste time, prevent progress with important private and
public measures, cost money, and impose upon members
of Parliament, who are all salaried, the trouble of defending
their pecuniary interest by appealing to their electors.
Moreover, it is argued that Dominion and State ministers
do not have that high sense of public duty which would
cause an Imperial Government not to ask for dissolution
unless it really considered it in the best interest of the
country. Further, as all Dominion Parliaments are com-
paratively small, a dissolution may often have no pronounced
result, so that every effort should be made to carry on
without one, until the next general election comes by
efflux of time. But, whatever the value of the reasons, the
practice is wholly beyond dispute, for at the Colonial
Conference of 1887 the question was formally debated at
the instance of New Zealand, and any change formally
decided against by the great majority of opinion of the
delegates present. Nor is there a single Dominion save
Canada and the recently formed Union of South Africa in
which many cases of refusal of dissolution have not occurred
up to the most recent dates. Indeed there is no doubt that
the refusal of dissolutions under certain circumstances by
94 IMPERIAL UNITY AND THE DOMINIONS
Governors is deliberately counted upon. An amusing
instance of this occurred in December 1913 in the State of
Victoria.1 The Government majority, which was over large,
was unruly, and in a division on a Redistribution Bill the
Government suffered defeat in the Legislative Assembly
by thirty -one votes to twenty-nine on the question whether
the numbers of that body should not be raised from sixty -five
to seventy. In intent to bring his followers into better order
the Premier, Mr. Watt, resigned office, and advised the
Governor to send for the leader of the Labour Party, Mr.
Elmslie. This gentleman accepted the duty of forming
a Ministry, with the result that the malcontents of the
Government side, seeing that they had no chance of being
asked to form a Government and oust Mr. Watt, came into
submission. Accordingly, after the new ministers had been
sworn in on December 9, thus forming the first Labour
Ministry ever known in Victoria, they were at once defeated
on the motion for the adjournment of the House, and
a week later, when the ministers were absent from Parlia-
ment seeking re-election as required by the Victorian
constitution which in this matter is old fashioned, they were
defeated on a direct motion of want of confidence, moved
by Mr. Watt, by forty votes to thirteen. They then applied
for a dissolution, which the Lieutenant-Governor promptly
declined, so that Mr. Watt, who had been able confidently
to reckon the failure of his opponents to obtain a dissolution,
was able to return to power and to reconstitute as he
desired his Ministry. The manoeuvre, indeed, was precisely
similar to that of Sir Elliott Lewis in 1909, in Tasmania,
when he found that one of his followers, Mr. Ewing, was
anxious to supersede him in office. He resigned, and the
Governor sent for the leader of the Labour Opposition, not
for Mr. Ewing. The gentleman sent for, Mr. Earle, asked
for but was refused a dissolution of Parliament, and Sir E.
Lewis was enabled to reassume office with the assurance
that he had disposed for the time being of the disloyalty of
Mr. Ewing.
1 Part. Pap., Cd. 7507, p. 62.
THE DISSOLUTION OF PARLIAMENT 95
The importance of avoiding a dissolution after a recent
election may lead to curious results : thus after the general
election in Newfoundland in 1908 the equality of parties
made it clear that it was not possible to carry on the govern-
ment satisfactorily, and Sir Robert Bond, the leader of the
Government, asked for a further dissolution. The Governor
declined this request and in his place appointed the leader of
the Opposition to the post of Prime Minister, on the under-
standing that Sir Edward Morris would spare no effort in
order to secure that the work of government should be
carried on smoothly. But when all the efforts of Sir E.
Morris to secure the adhesion of any member of the Bond
party failed, and when it became, as a result, impossible for
the House of Assembly to elect a Speaker, though Sir E.
Morris proposed one of his own supporters for that office,
he consented to dissolve Parliament once more, with the
result that, having the advantage of Government patronage
and control of the elections, Sir Edward Morris won a marked
victory. It is clear that, under the exact circumstances
of the case, the Governor acted in the only possible manner
in giving the dissolution to Sir E. Morris, but an interesting
position would have arisen had Sir Robert Bond had the
good sense to allow one of Sir E. Morris's supporters to be
elected Speaker, since then he could have defeated him in
the House and further confused the issues.
The principle of discretion as regards dissolving Parlia-
ment applies of course to every Executive action of the
Governor as the head of the Executive. There is no special
privilege of the Governor as regards dissolutions, and the
frequency with which he refuses dissolution and does not
refuse his assent to other actions of his ministers results
merely from the obvious fact that he can only refuse to act
if he can find other ministers to carry on the Government,
if the ministers whose advice he refuses to accept resign
office as a result of that refusal. Normally a Ministry is too
securely seated to allow the Governor to believe that he
can find other ministers. He cannot leave his post without
imperial permission, and if he tried to disregard the advice
96 IMPERIAL UNITY AND THE DOMINIONS
of ministers without being able to find other?, he would be
compelled to ask them to return to office at much personal
humiliation. But. if a Government asks for a dissolution,
fjf kypofktifi it is not secure, and the Governor has a real
choice of ministers which he can exercise. Nevertheless
occasions may arise where the Governor can refuse some-
thing other than a dissolution, and one of these arose in
New South Wales in July 1911. The Premier was then
on absence in the United Kingdom, and two of the labour
party then in power revolted at a decision of the Govern-
ment on the lands question and resigned their seats in order
to let their constituents have the opportunity of expressing
their views on the issue. The result was to deprive the
Government of their parliamentary majority, so that they
could not carry a motion for the adjournment of the Assembly
over the period necessary for the holding of new elections
to fill the vacant seats. The leader of the Government then
approached the Lieutenant -Governor, who was acting in
Lord Chelmsford's absence in England, and asked for
prorogation of Parliament over the interval. This would
in effect have been to use the prerogative to effect what the
Government had been unable to do in the normal way and
the Lieutenant -Governor declined to act as desired, and
asked the leader of the Opposition if he could form a Ministry.
The latter, however, was only prepared to try if he could
be given a promise of a dissolution of Parliament if he asked
for one after his appointment as Premier, and. when the
Lieutenant -Governor declined to promise this, he declined
to make the attempt to form a Ministry, with the result
that the Lieutenant-Governor asked the Labour Ministry
to remain in office and accorded them the prorogation
asked for.1
A further result from the discretion thus allowed to
a Governor is the fact that he can impose conditions on the
grant of a dissolution of Parliament, such as that the
Parliament shall be called together at the earliest possible
date or that supply must be obtained before the dissolution
1 ParL Pop,, Cd. 0091, jx 09.
THE DISSOLUTION OF PARLIAMENT 97
is granted, though in the latter case it is obvious that to
make his condition public might result in the Parliament
defeating his aim. Nor can he be fettered by any objection
raised by a parliamentary majority : thus in the Queensland
case in 1907, when the Governor declined to give assurances
as to overriding the Upper House when in disagreement
with the Lower House, his Ministry resigned, and, as they
had a large majority in the Lower House, secured from that
House a refusal of supply and a protest against a dissolution,
but nevertheless Lord Chelmsford gave the dissolution
desired. The example is a striking instance of the power
of the Governor to disregard ministerial advice, for the
Ministry had so solid support in the country and in Parlia-
ment that the success of the Opposition in forming a Ministry
which could win an election appeared from the first worse
than problematical.
But while it is idle to deny the existence of this discretion,
which means that ministerial responsibility can be applied
ex post facto for an act which must really be taken by the
Governor on his own initiative, it is much more doubtful
if the continuation of the practice is desirable for an indefinite
period. It is of course essentially a matter for the develop-
ment of constitutional practice in the Dominions, since it
has grown up there with the full approval of the electorate,
who feel that they have in the Governor a shield against the
vagaries of party politics. But it must be admitted that in
itself the practice is characteristic of immaturity and of
defective development. The proper penalty for disobedi-
ence of the laws of responsible government by a Ministry is
punishment by the electorate : it should not be any part
of the duty of a Governor to remedy the defects of political
conscience on the part of ministries, any more than that it
should be part of the duties of the Crown to remedy the
defects of ministries in the United Kingdom. Nor can
a high sense of political obligation be developed so long as
blame can be thrown on the Governor. It is a minor
matter that the Governor is open to constant imputations
of error in his actions and that such attacks may be very
1874 Q
98 IMPERIAL UNITY AND THE DOMINIONS
strongly worded. Thus, when Sir T. Gibson Carmichael
refused to accept the view that Sir T. Bent should not be
given a dissolution in 1908, he was bitterly criticized because
of failure to safeguard the rights of the electorate who were
compelled to vote at the Christmas season.1 When, again,
Sir Harry Barren refused a dissolution to Mr. Earle in
1909 in Tasmania, he was accused of being under sinister
influences.2 The action of Lord Chelmsford in the Queens-
land case resulted in his censure by the local Parliament,
and only the fact that the Premier was about to change his
policy probably led to the leaving of the matter without
a formal demand for his recall. The Governor- General of
the Commonwealth has thrice refused dissolutions of Parlia-
ment and in no case without a good deal of criticism.3
Indeed, it is obvious that if a discretion exists, the Governor
will be criticized, and no real meaning attaches to the
phrase that responsibility is accepted by the new Govern-
ment which takes office, for it is open to Parliament to
censure a Governor, while in the United Kingdom the King's
conduct cannot be drawn into question in debate.
Moreover, the practice of allowing a discretion inevitably
leads to placing Governors in false positions, as was shown
in 1914 by the case of Tasmania. The position of politics
in that State is rendered difficult by the fact that the Lower
House is very small, containing but thirty members, and
that these are elected by proportional voting in five six-
member constituencies. The result is that with parties
nearly equally divided between Labour and Liberal no
Government has a very secure position. In 1912 Sir Elliott
Lewis, the then Premier, resigned, as with parties at sixteen
Liberals to fourteen Labour he could only carry on with
full support from his party, and that could not be assured
at least under his leadership. Mr. Solomon, who succeeded
him, managed to carry on matters through the session of
1 Melbourne Age, Dec. 7, 1908 ; Argus, Dec. 7, 1908, and sul sequent
issues.
1 Hobart Mercury, Sept. 29, 1911.
» Turner, Australian Commonuxalth, pp. 89, 100, 101, 217-21.
THE DISSOLUTION OF PARLIAMENT 99
1912, though just at the end of the session one of his party,
who had independent views, proposed to desert him. This
move he countered by inducing the Speaker of the Assembly
to intimate his intention of resigning, and, as the independent
member did not finally succeed in making an agreement
with the Labour Party, the proposal to eject the Ministry
broke down, the vote of no confidence proposed being
withdrawn.1 But, in view of the difficulty of carrying
on, Mr. Solomon asked for, and obtained, a dissolution,
which resulted in giving him a Liberal in place of an Inde-
pendent Liberal. In the beginning of 1914, however, the
inevitable defeat occurred, and Mr. Solomon asked the
Governor to accord him a dissolution of Parliament. It
was clearly open to the Governor to grant or refuse the
request at his pleasure : there was clearly a possibility of
an alternative Ministry, and he had the onus of choice
with the feeling that in either case he would be certain to
give dissatisfaction. He not at all unnaturally formed the
opinion that the grant of a dissolution to Mr. Solomon would
not be likely to result in any clear majority, and he therefore
refused the dissolution, whereupon of course Mr. Solomon
resigned. The Governor then on April 3 offered Mr. Earle
the leader of the Opposition the post of Premier on the
distinct agreement that as Premier he would immediately
advise the dissolution of Parliament, that the newly elected
Parliament should be summoned before the end of May,
and that, in the event of the office of Attorney-General not
being filled by a duly qualified lawyer in practice, the
Governor must reserve the right to obtain legal advice
when he considered it necessary from other sources. These
conditions were accepted by Mr. Earle and also by the other
members of his Ministry, but on reconsideration Mr. Earle
and his colleagues came to the conclusion that it would be
preferable to carry on with the existing Parliament, and
they proceeded to execute a complete volte-face. On April 7
Mr. Earle addressed a memorandum2 to the Governor in
which he recalled the fact that he had on April 3 demurred
1 Parl. Pap., Cd. 6863, pp. Ill, 112. 2 Parl Pap., Cd. 7506.
G2
100 IMPERIAL UNITY AND THE DOMINIONS
to the first two conditions imposed, and stated that he
commanded the confidence of a majority of the House of
Assembly and had given an assurance that he could carry
on the Government. On these facts he respectfully
submitted (1) that the exaction of the pledge to advise
a dissolution of the House of Assembly was contrary
to the principles and well-established practice regulating
the conduct of parliamentary government, and (2) that the
circumstances of the case were not such as to justify the
Governor in forcing a dissolution on his ministers. To
enforce the carrying out of the pledge would be to cause
Mr. Earle to tender advice which he did not consider in the
interest of the State, and it was not right to demand a dis-
solution when there was available a party in Parliament
which could carry on government, and when there was no
great issue at stake between the parties in the country. In his
reply of April 8 the Governor pointed out that he had not
in any way pressed Mr. Earle to take office, that he had laid
down clearly the conditions which Mr. Earle had accepted,
and that his motive in laying down these conditions was
simply in order to secure the best advantage of the State
by taking such action as promised the best chance of a stable
administration.
Finding the Governor not inclined to consider their
change of view as binding him to change his policy, the
Government appealed to the House of Assembly, from which
they obtained, Sir Elliott Lewis dissenting, the passing of
an address in which they very respectfully expressed their
opinion that the action of the Governor in imposing on
ministers as a condition of their appointment an undertaking
to agree to a dissolution of Parliament, whether the House
approved the policy of ministers or not, was contrary to
the well-established usage of responsible government and
was undesirable, and requested the submission of the
address, together with copies of correspondence on the
subject between the Governor and the Premier, to the King.
This step was duly taken, and in the meantime the Governor
permitted his ministers to carry on their functions.
THE DISSOLUTION OF PARLIAMENT 101
The decision of the Secretary of State was intimated in
a dispatch of June 5, 1914, which was severely criticized in
Australia as obscure and indecisive, two completely different
interpretations being placed on its terms. The Secretary
of State, while recognizing that the condition of affairs in
Tasmania has been difficult owing to the practical equality
of parties, definitely pronounced the view that the Governor's
action in the matter was not in accord with constitutional
practice. The grounds for this view were stated as follows :
The observance of the principles of responsible govern-
ment requires that a Governor must be clothed with
ministerial responsibility for all acts in relation to public
affairs to which he is party as head of the executive. He
cannot therefore perform any such act except on the advice
of his ministers, and for performing it on such advice no
political responsibility attaches to him personally. The
question whether or not a dissolution should be granted is
a purely internal affair and is thus regulated by the general
rule. A Governor therefore cannot dissolve the Legislature
except on the advice of his ministers. There have, of course,
been not a few cases in which Governors have rejected advice
tendered to them by their ministers that the legislatures
should be dissolved. These do not, however, stand on a
different constitutional footing from any other case on which
a Governor may have found himself unable to accept the
advice of his ministers. In all such cases the ministers either
acquiesce in the Governor 's action, in which event they accept
responsibility for it, or leave the Governor to find new
ministers who will accept the responsibility.
A Governor may feel it incumbent on him to consider with
special care requests for dissolutions, but constitutionally
he has not special powers in such matters. It follows there-
fore that he is no more entitled to impose on an incoming
Ministry as a condition of admitting them to office that
they should advise a dissolution of the Legislature, than that
they should tender any other specified advice.1 A Governor
is, of course, entitled to discuss the aspects and the needs of
the political situation freely and fully with his proposed new
ministers, but he cannot go to the length of requiring them
to give any particular advice as a condition of accepting
1 Fee Sydney Daily Telegraph, April 13, 1914 ; Argus, April 13, 1914.
The Morning Herald rather supported the Governor. Cf. Round Table,
1914, pp. 736-8.
LIBRARY
UNIVERSITY OF CALIFORNIA
n A u U A U A
102 IMPERIAL UNITY AND THE DOMINIONS
their services without claiming a personal responsibility
which does not attach to him.
I have carefully examined in this connexion the action
of the Lieutenant-Governor of Nova Scotia in 1860, to which
my attention has been drawn as affording a possible parallel
to your action. In that case Lord Mulgrave had rejected the
advice of his ministers that a dissolution should take place
on the ground that it was improper thus to interfere with
the procedure provided by law for testing the validity of
elections of certain members of the Assembly. Before com-
missioning Mr. Young as Premier in succession to Mr. John-
stone, Lord Mulgrave required from Mr. Young an assurance
that each case of alleged disqualification should be inquired
into with as little delay as possible. This assurance was
duly given by Mr. Young before he was entrusted with the
duty of forming a Government. Viewed in the light of
what had happened previously, Lord Mulgrave 's action
was in effect merely a reminder to Mr. Young that in taking
office he would assume responsibility for the decision that
the law must take its course. The case thus presents no
analogy to that under discussion.
At the same time, while I consider that you should not
have imposed terms on Mr. Earle, I recognize that he was
entirely at liberty to decline the duty of forming a Govern-
ment unless he was left with complete discretion as to the
advice to be tendered to you. Instead of doing so, he decided
to take office, and thus must be held to have accepted for
the time being full responsibility for your action. He re-
mained fully responsible until the Ministry determined to
advise in the contrary sense, when the policy of dissolution
ceased to be authorized by ministerial advice, but became
a matter of your personal opinion, that is to say, no constitu-
tional means existed of giving effect to it without another
change of views on the part of ministers or another change
of Ministry.
The dispatch dealt with a very difficult position caused
by a breach of faith by a minister of the Crown and by
a mistake on the part of the Governor, and this fact explains,
no doubt, the obvious difficulties which its terms raise, and
its apparent inconsistencies. To say that the Governor
cannot perform any act as head of the Executive Govern-
ment except on the advice of ministers is wholly incon-
sistent with the admission that he may refuse a dissolution
THE DISSOLUTION OF PARLIAMENT 103
of Parliament to ministers, for in refusing a dissolution he
emphatically does not act on the advice of ministers ; and
even if it is argued per impossibile that a refusal to accept
advice is negative and is not included in the term act, still
it is perfectly clear that the new ministers whom he is left
to seek are not sought on the advice of the old ministers,
who would not dream of tendering advice to the Governor
to take others in their place. We must therefore fall back
on the rule that a Governor must be clothed with ministerial
responsibility either before or after his action, a position
in which, as has been seen, he differs essentially from the
King, who must be clothed — to adopt the metaphorical
language of the dispatch — with such authority in advance.
The rule, however, that ministerial responsibility ex post
facto covers any action of the Governor renders improper
the censure passed on the Governor for imposing conditions :
the censure is one directed on the Ministry, and it is in-
correct for a Secretary of State to censure a Ministry. The
Governor's error in this reasoning becomes reduced to the
mistake of not recognizing that his ministers were free to
alter their minds, since there is no relation between ministers
and Governor which compels them to adhere to plans
matured beforehand, even for a few days. Moreover, the
reasoning in the case of Lord Mulgrave's action is, it must
be confessed, sophistical and unhistorical. Lord Mulgrave
would certainly not have understood the version of his
action given by the Secretary of State : he belonged to
a generation which felt perfectly entitled to treat firmly
Colonial Premiers in small colonies, and he simply acted
as he reported he did : declined a dissolution and made
Mr.- Young Premier on a definite agreement, which he took
good care, as his report shows, to have carried out. It is
a blunder to think that the full doctrine of responsible
government was realized fifty years ago : it is a plant of
slow and gradual growth, and the mistake of the Governor
in relying on that precedent to justify his action was due
to the lack of historical sense : many things have been
done in the early days of responsible government which
104 IMPERIAL UNITY AND THE DOMINIONS
cannot now be done. The argument in the Secretary of
State's dispatch would have left Mr. Young the option of
discarding his pledge immediately on his appointment, the
last thing which Lord Mulgrave would have permitted.
The truth is that these sophistical arguments arise directly
from the false doctrine which permits a discretion to a
Governor and allows him to choose between acting on
advice from ministers, or disregarding their advice and
seeking ex post facto for ratification. These voyages of
exploration into the unknown are a mistake : they are, if
Dominion statesmen would only realize it, inconsistent with
full responsibility, and are signs of lack of political strength.
Nor are there wanting signs that the future may see without
any formal change some tendency towards the adoption of
the more self-reliant and independent mode of procedure.
This conclusion is based on the striking action of the
Governor-General of the Commonwealth in 1914 in granting
the request of his ministers for a double dissolution of the
two Houses of the Parliament of the Commonwealth.
The circumstances of the request were exceptional. At
the general election of May 31, 1913,1 the Labour Ministry
of Mr. Fisher appealed to the country not merely to return
them to power, but also to give a verdict on six Bills for
the alteration of the Constitution of the Commonwealth,
which, in accordance with that Constitution, had been passed
by the two Houses of Parliament and were therefore required
to be submitted to the electorate. The six Bills all dealt
with matters affecting trade and commerce, and they were
brought forward because a long series of judicial decisions
had established the invalidity of much Commonwealth
legislation on these topics, and had made it clear that the
Commonwealth Parliament had no power to regulate the
carrying on of trade within the States either directly or
indirectly.2 It was therefore proposed by the first of the
Bills to confer on the Parliament power to legislate as to
trade and commerce generally and not merely that between
the States and with other countries. The second Bill pro-
1 Parl Pap., Cd. 7507, pp. 59, 60. » Below, Tart II, chap, i, § 1.
THE DISSOLUTION OF PARLIAMENT 105
posed to confer on the Commonwealth a general power of
dealing with all corporations, whether Commonwealth, State,
or foreign, in place of the existing power, which was restricted
to foreign corporations and financial or trading corporations
formed within the limits of the Commonwealth, and even
with regard to them was held to be very limited in extent,
as it was not open to the Commonwealth to regulate their
mode of conducting trade, that being a matter for State law.
The third proposed law provided for the conferring on the
Commonwealth of plenary powers of legislation as to con-
ditions of employment, relations of employers and employees,
strikes and lock-outs, the maintenance of industrial peace,
and the prevention of industrial disputes, superseding the
very limited power of legislation for conciliation and arbitra-
tion for the prevention and settlement of industrial disputes
extending beyond the limits of any one State. The fourth
Bill extended this power of the Commonwealth to deal with
conciliation and arbitration for the prevention and settle-
ment of disputes in relation to employment on the railways
of a State. The fifth Bill gave the power to legislate as
regards trusts, combinations, and monopolies in relation
to the production, manufacture, or supply of goods, or the
supply of services ; while the sixth Bill authorized Parliament,
if both Houses in the same session by absolute majorities
declared that the industry or business of producing, manu-
facturing, or supplying any specified services was the subject
of a monopoly, to make laws for the carrying on of the
business or industry under the control of the Commonwealth
and acquiring for that purpose on just terms any property
used in connexion with the industry. The power, however,
was not to apply in the case of any industry or business
conducted by the Government of a State or by a public
authority constituted by a State. Similarly, concessions
to State feeling were made in the case of the first two Bills
by excluding from their operation trade and commerce on
State railways if not otherwise subject to Commonwealth
legislation and municipal or State governmental corpora-
tions, points in which the Bills differed from the proposals
106 IMPERIAL UNITY AND THE DOMINIONS
brought forward in 1911 and then rejected by the electorate :
on that occasion also the proposals were presented as two
Bills only, a fact which was held by "some authorities to
have militated against their acceptance.
The result on this occasion was, as in 1911, the rejection
of all six Bills ; but whereas on that occasion the Government
were left in power, as the proposals were not brought forward
together with an election, in 1913 the Government suffered
defeat by one vote, 38 to 37, in the Lower House, though
in the Senate they carried eleven out of the eighteen seats
contested, and were in possession of the other eighteen
which they had swept at the election of 1910, the tenure of
office of senators being six years. The Government accord-
ingly resigned office, being succeeded by Mr. Joseph Cook's
Ministry.
The position of Mr. Cook was unenviable in the extreme,
as he had in the Lower House only the Speaker's casting
vote to rely upon, and in the Upper House was in a minority
of twenty-two votes, a fact made the more serious by the
excellent organization of the Labour Party. The only mode
of action available was therefore to proceed with a view
to bringing into effect s. 57 of the Commonwealth
Constitution, which authorizes the Governor-General, if the
House of Representatives should twice pass a Bill in the
same or subsequent sessions, three months intervening, and
if the Senate should on both occasions reject it or amend
it in such a way that the Lower House would not agree, to
dissolve both Houses of Parliament ; thereafter, if the Lower
House should again pass the Bill and the Upper again reject
or alter it, the Bill could be submitted to a joint session of
the two Houses, and, if approved by an absolute majority of
the members, be presented for the royal assent. If a double
dissolution could be obtained, then there was a chance of
getting rid of the dead weight of the opposition of the
Senate. Accordingly the Government introduced two Bills
into the Lower House when Parliament met, the one of
which was intended to restore the postal vote at elections
for the Commonwealth which had been repealed in the
THE DISSOLUTION OF PARLIAMENT 107
session of 1911, and the other was to secure that no prefer-
ence or discrimination should be made for or against any
person in relation to any employment by the Commonwealth
or by any department or authority thereof, on account of
his membership or non-membership of any political or
industrial association. The first of these measures was
intended to remedy what was believed to be a hardship
on women desiring to vote, and the second was a protest
against the preference given by executive action in connexion
with Commonwealth employment to labourers belonging to
trade unions. Neither could be said to be a measure of first-
class importance, and the purpose of the latter, as far as
practical effect was concerned, was given by reversing the
former executive authority, but both were chosen as brief
points on which to base graver issues of principle. The Bills
were pressed on, and, though for a time the Senate declined
to consider them, after they had by the use of the closure
been forced through the Lower House, on the ground that
the Government had declined to treat seriously in that
House two motions of want of confidence in the Government
and the Speaker respectively moved by the Opposition,
they finally proceeded with the consideration of both
measures, rejecting the Bill to prohibit preference to trade
unionists, and so altering the other Bill that the Lower
House would not accept their amendments. In the following
session of Parliament in April 1914 the Government brought
the two Bills again forward, and promised a programme
which would have upset a good many of their predecessors'
actions, including in particular the arrangement by which
the Commonwealth bank competed with the States' savings
banks. Great difficulty was experienced in pressing forward
the Bills, but eventually the Bill forbidding preference to
unionists was carried through the Lower House, to be
rejected on first reading by the Senate, and the necessary
position for asking the Governor-General for a double
dissolution was created. This application was duly made,
and on June 5 the consent of the Governor-General to a
double dissolution was announced.
108 IMPERIAL UNITY AND THE DOMINIONS
The news of the Governor-General's consent was received
with much surprise. The late Attorney-General of the
Labour Government, Mr. Hughes, made public on June 9
a statement in which he expressly declared that the grant of
double dissolution was unconstitutional. He laid stress on
the fact that the Constitution gave the States equal repre-
sentation in the Senate, and thus indicated that the Senate
was intended to be a real power in the Constitution, and that
it should not be reduced to a formality. Section 57 of the
Constitution could not be applied to any Bill whatever
without reducing the Senate to a nullity and destroying its
co-ordinate legislative power. If it were right to dissolve
the Senate for the sake of the Preference Prohibition Bill,
it would be allowable to dissolve it for the sake of any
measure, however trivial. Even, however, assuming that
dissolution was constitutional in such a case, still this was
not a case where it was expedient to use the power. The
Governor-General of the Commonwealth had thrice l been
asked to dissolve Parliament and had never before con-
sented, but had instead invited some other statesman to
form a Government, which had been successfully carried out.
It had become an axiom of responsible government in
Australia that the possibilities of the Parliament must be
exhausted before a dissolution should be given. The
first consideration of the Governor- General should be the
carrying on of the business of the country, and the regular
practice was to send for the leader of a strong party in the
House of Representatives and to ask him to form a Ministry.
There was absolutely no reason to suppose that the Govern-
ment could secure a majority in both Houses. The figures
of the last election were fatal to such a presumption ; and,
if a double dissolution would not give the Government
a working majority, there was absolutely no justification
for the dissolution. The only possible justification for such
a dissolution must be that the Bill in question on which
a deadlock had arisen was one which the Government had
1 By Mr. Wateon in 1904, by Sir G. Reid in 1905, and by Mr. Fisher in
1909.
THE DISSOLUTION OF PARLIAMENT 109
a clear mandate from the people to pass into law, and this
was not the case in the instance at stake.1
It is obvious that if the Governor-General had refused
a double dissolution, the Government would have resigned
and there would have been little chance of the new Govern-
ment carrying on without a dissolution. But such a dissolu-
tion would have been only that of the Lower House, and on
every calculation of probabilities which was possible at the
time there seemed no reason to doubt that Labour would
carry a real majority in that House. The country had seen
without edification the struggles of a Government with
a majority of but one, and with a solid minority in the
Upper House. The peculiar mode of voting for the Upper
House, the State forming one constituency with three seats
vacant at each normal election made into six at a double
dissolution, made it almost incredible that the Government
could obtain a majority when in 1913 they had merely
carried seven out of eighteen seats, and it was therefore
probable that the country would prefer to give a real
majority in the Lower House to that party which was
securely entrenched in the Upper. There was also the
possibility, perhaps the probability, that the Labour Govern-
ment could have carried on without a dissolution, since
the organization of the Government Party was not so
secure as that of its rival, and some members or member
of it might have agreed to support a moderate Labour
policy.
The position was therefore that all the evidence pointed in
favour of the Governor- General, if he adopted the Australian
view of responsible government, deciding to refuse the
dissolution and to ask the Labour Party to form a Govern-
ment. That with all these facts present to Sir Ronald Munro
Ferguson he should have decided to grant a double dissolu-
tion is only susceptible of explanation on the ground that
he felt that it was best to adhere to the principles of respon-
sible government as they exist in their purest form in the
United Kingdom. In a very real sense his action, which was
1 Cf. Round Table, 1914, pp. 550-2.
110 IMPERIAL UNITY AND THE DOMINIONS
not altogether well received by Labour circles,1 constitutes
a landmark in the history of responsible government in the
Commonwealth, for three of his predecessors had declined
dissolutions in cases where a fair claim for a dissolution had
undoubtedly been made, and Labour Governments had
twice been the sufferers by the refusal.
Recovering from the shock of surprise at the decision of
the Governor-General, the Senate on June 18 2 presented
an address asking for the publication of the communications
between His Excellency and his advisers relating to the
simultaneous dissolution of both Houses of Parliament,
a request which was declined on ministerial advice by the
Governor- General. On June 19 much more important
action was taken. In the preceding session of 1913 and in
the present session the Senate had formally passed once more
the six Bills regarding the alteration of the Constitution
which had been rejected at the election of May 31, 1913,
and they now passed an address to the Governor-General
praying that in accordance with s. 128 of the Constitu-
tion he would be pleased to submit to the electors on the
day to be fixed for the taking of a poll for the election of
members of the House of Representatives to the next
Parliament the six proposed laws for the amendment of
the Constitution which had been passed within the statutory
interval by the Senate and not passed by the House of
Representatives. The section of the Constitution referred
to provides in the case of a proposed law for the amendment
of the Constitution being twice passed with an interval of
three months in the same or subsequent sessions by either
House and rejected by the other, that the Governor-General
may submit the proposed law to the electors in each State
qualified to vote for the election of members of the House
of Representatives. Now the wording of the Act is clearly
permissory, and does not impose any obligation on the
Governor-General so to submit the law, but it is perfectly
clear that it gives him a discretion to do so. The question
1 See Commonwealth Debates, 1914, pp. 1971 aeq., 2251 seq.
* Ibid., pp. 2257-61.
THE DISSOLUTION OF PARLIAMENT 111
therefore arises whether this discretion is personal or whether
it is intended to be exercised on the advice of ministers,
and in this connexion the following consideration is of great
weight. If the permission to refer is to be made dependent
on ministerial advice, then the clause definitely places the
Senate in a false position, for the Ministry of the day must
and does depend on the majority in the Lower House, which
alone possesses financial initiative, and therefore it would
rest with the Government of the day, i. e. the Lower House,
to decide if the Bills passed by the Upper House should be
submitted to the electors. But the clause manifestly is
intended to put the two Houses in this regard on an equal
footing, and this is right, for the Senate is representative in
theory of the States, and the House of Representatives of
the people at large, and an amendment may be properly
brought before the people on the volition of either party.
It must therefore be concluded from the mere terms of
the Act, no less than from its history — it was framed in the
first instance by men who were not convinced of the necessity
of responsible government in the parliamentary form — that
the discretion was intended to be personal to the Governor-
General, and not to be exercised on the advice of his Ministry.
Taking this to be the clear meaning of the Act,1 the decision
of the Governor-General to decline to submit the Bills could
hardly be held to be justified. He had decided to give
a double dissolution, which meant that great issues were to
be decided and there could be no more appropriate time for
deciding also the great issue of the referenda ; not to do so
might easily be held to be unfair to the Labour Party, who,
if victorious in the contest, would still have to face the trouble
of the voting on the referenda without the excitement of
a general election to help the bringing of voters to the poll.
On the other hand, as many good judges attributed the
victory, such as it was, of the Government at the polls in
1913 to the fact that the voters came forward in unusually
great numbers in their favour because they disliked the
referenda though they did not dislike seriously the Labour
1 Cf. W. Harrison Moore, Commonwealth of Australia, p. 600.
112 IMPERIAL UNITY AND THE DOMINIONS
Government, it might have been wise for Mr. Cook to
advise the Governor-General to exercise his power. At any
rate, the fact that the Governor-General accepted the
advice of his ministers and declined to submit the referenda
to the electorate, can be explained and justified only on the
ground that the British principle of responsible government
should prevail in Australia. Manifestly it is not open for
any successor without grave injustice to act in future in
the matter of s. 128 save on ministerial advice. Doubt-
less this was not the view of the fathers of federation, but
responsible government is too strong to be resisted in the
long run.
The final history of the episode is curious : war broke
out before the elections had actually been held, and the
Labour Party pressed energetically that steps should be
taken — by means of Imperial legislation if necessary l — to
revive the Parliament then defunct. This was refused by
the Government, apparently under the idea that they could
secure a favourable result at the elections in view of the
objections to disturbing a Government in office at such
a crisis. The view was as short-sighted as ungenerous :
the Government suffered complete and not undeserved
defeat and was replaced by a Labour Administration.
2. THE DISMISSAL OF MINISTERS
The undesirability and unsoundness of the existing
doctrine of the discretion of the Governor in granting
a dissolution is borne out by considerations of the allied
question of the dismissal of ministers by a Governor.
There is no conceivable reason why in itself it should be
more legitimate for a Governor to refuse a dissolution than
to dismiss ministers, and the only real ground of discrimina-
tion must be that the one course is much less risky than
another. If a Governor refuses a dissolution, he runs a fair
1 This was a moot ]X>int : mere re-election by agreement of the sitting
members was also proposed. It was agreed that a dissolution proclamation
ended the life of Parliament and could not be recalled. Cf. Round Table,
1914-15, pp. 210, 211. See also Part II, chap, i, § 1.
THE DISMISSAL OF MINISTERS 113
chance of seeing his ministers replaced by others who will
in a sense owe their position to himself, since ex hypoihesi
the Ministry which asked for the dissolution was in an
unsatisfactory parliamentary position. But it is different
if he has to dismiss ministers, and he must, before he can
risk the action, be very sure of his ground. Lord Chelmsford,
for the much less serious step of refusing to give a pledge
to swamp the Upper House of Queensland in 1907, narrowly
escaped a motion for his recall, and a dismissed Government
would certainly, if returned to power, secure the departure
of the Governor who dismissed them. But both actions are
essentially wrong in strict theory, though neither dismissal
nor still less refusal of a dissolution can be said to be extinct.
The question of dismissing ministers nearly always arises
when they seem to have forfeited the confidence of the
country, but cling to office either because they have still
a parliamentary majority or Parliament is not in session.
Reference has been made above to the fact that in the
United Kingdom the Crown leaves the ministers to work
out their own ruin in the due course of events, but in the
Dominions less patience is sometimes shown. In this con-
nexion an extraordinarily interesting account of a hitherto
unknown incident in Canadian history has been given by
Sir Charles Tupper in connexion with the fall of the Govern-
ment of Sir John Macdonald in Canada in 1873.1 At the
autumn session Mr. Mackenzie submitted a resolution of
want of confidence in the Government. Party feeling ran
high and the utmost bitterness prevailed. During the
progress of the debate, according to this account, Lord
Dufferin, the Governor-General, sent for Sir J. Macdonald
and asked him to resign. When Sir J. Macdonald took
Sir Charles Tupper alone of his colleagues into his confidence,
the latter proceeded to Government House and sought an
interview with the Governor-General, of which he gives the
following account :
I said, addressing Her Majesty's representative, ' I think
you have made a fatal mistake in demanding Sir John's
1 Recollections of Sixty Years, pp. 156, 157.
1874 H
114 IMPERIAL UNITY AND THE DOMINIONS
resignation. You are to-day Governor- General of Canada,
and respected by all classes ; to-morrow you will be the
head of the Liberal Party, and will be denounced by the
Conservatives for having violated every principle of con-
stitutional government. If Her Majesty would to-morrow
undertake what you have done she might lose her throne. '
' Well, what do you advise me to do ? ' asked Lord Dufferin .
' I desire to recommend that you cable the Colonial Office,
and ask what it thinks of your action.'
The result of that interview was that Sir John was aroused
from his bed at 2 o'clock in the morning, and notified that
Lord Dufferin had recalled his decision.
Curiously enough Sir Charles Tupper himself was to suffer
in somewhat the same way as had been the proposed fate
of his predecessor. In 1896, when the result of the elections
seemed to prove that his Ministry was defeated, Lord
Aberdeen insisted on exercising his own discretion as to the
acceptance of ministerial advice : thus his proposals for the
appointment of senators were rejected, many of his recom-
mendations of appointment of officials were not accepted,
and Lord Aberdeen declined to approve the granting
of a contract for a steamship service to the Allan line.1
In point of fact the new Government would no doubt
have cancelled any of these appointments which it could
cancel, as it did many others, and retribution fell on the
Liberal Party in 1912, when the incoming Government
cancelled many of their appointments, both important
— as, for example, the members of the Waterways Com-
mission— and unimportant. Canada has also been the
scene of repeated dismissals of ministers by provincial
Lieutenant -Governors, and, though both Mr. Letellier in
Quebec and Mr. Mclnnes in British Columbia were dis-
missed for their exercise of this right, their fate has not
deterred others from following with more good fortune the
same course.2 It was action of this kind by the Lieutenant-
Governor of British Columbia, in 1903, which terminated
the political chaos of that State, and began the regime of
stable government, and in 1915 the Lieutenant-Governor
1 Recollections of Sixty Years, p. 243.
2 Responsible Government, i. 226-45.
THE DISMISSAL OF MINISTERS 115
of Manitoba brought about the retirement of his Govern-
ment.1 It had, after a long term of control, been weakened
at the general election of 1914, when it lost most of its
majority, and strong allegations were made that the con-
tractors for the Manitoba Parliament buildings had ar-
ranged to find money for electoral purposes, a practice
which is not by any means unknown in the Dominion.
The Lieutenant -Governor eventually practically forced
ministers to appoint a commission of investigation, and
feeling that, discredited as was his Government, he could
not continue in office, the Premier resigned office, and
a Liberal Government succeeded him.
It is rather curious to contrast the comparative satis-
faction with which such action on the part of Lieutenant-
Governors in Canada is received by the public with the
indignation which would undoubtedly be excited by similar
proceedings if carried out in Australia by a Governor, at
any rate if not an Australian by birth. In Newfoundland,
also, there is record of a Governor who kept a Ministry
in power in 1894 against a parliamentary majority, until
election petitions had reduced that majority out of existence.
But it may very gravely be doubted if it is ever worth
while pressing these matters, in place of leaving them to
be dealt with in the ordinary course of Parliament. The
view taken by Lord Aberdeen in his dispute with Sir C.
Tupper was that the Government had not the control of
Parliament, and therefore should not exercise the full powers
of an unfettered Government, and Lord Aberdeen's view
was obviously correct : it was not right for a retiring ad-
ministration— for its fate was inevitable — to deal with
public affairs as if it had authority. But that is not the
question : the point at issue is whether it is necessary
that the Governor should interpose his authority in the
matter to prevent the Government acting contrary to pro-
priety. Theoretically a case can be conceived in which, as
in the case of the United Kingdom, it might be necessary
for a Governor to break all rules, and interpose for the
1 Times, May 13, 1915.
H2
116 IMPERIAL UNITY AND THE DOMINIONS
safety of the State, but in all normal cases there can be
no justification for this action. Time will bring its own
punishment if necessary for any improper conduct.
Nor is there lacking recent evidence of the acceptance
of this view. In the Newfoundland crisis of 1908,1 the
Governor expressly refrained from putting any pressure
on his ministers when he found that they had no Parlia-
mentary majority, and declined to act on the request of
the Opposition, that he should call on the Ministry to resign,
because it had no Parliamentary majority, a rather amus-
ing request, since the Opposition equally had no majority,
though it is true that the loss of the Government majority,
taken in conjunction with the fact that the Government
had appealed to the people with all the advantages of
control of the machinery, meant that the Government
had suffered in effect a defeat. Nor would he accept the
opinion of the leader of the Opposition, that he should
not consent to any official appointment or contracts being
made. But, on the other hand, he declined to commit
himself to any general approval of anything his ministers
might wish to do, expressed clear views as to the duty of
meeting Parliament in due course, though not pressing for
any unusually early meeting, and finally declined a dissolu-
tion. His conduct throughout was marked by excellent
judgement, and by as careful an application of the principle
of responsible government to Newfoundland as is com-
patible with the imperfect development of that principle in
parliamentary practice there. On the other hand, a singular
instance of the undeveloped condition of Newfoundland
political thought occurred some years afterwards, when the
Governor, Sir Ralph Williams, was asked to dismiss one of
his ministers on the ground that he acted improperly in
several ways, and in particular had misused his position
in private interests.2 The Governor, in a long examination
1 See Correspondence between H. E. the Governor, Sir Edward Morris,
and Sir Robert Bond, St. John's, 1909.
* Newfoundland Daily News, June 29, 1912 ; Daily Telegraph, June 28
and 29, 1912.
THE DISMISSAL OF MINISTERS 117
of the charges brought, was able to satisfy himself that the
minister had not forfeited his right to be retained in office,
though he had acted somewhat unwisely, but clearly the
position in which the Governor was thus placed was an im-
possible one. There was, however, a precedent in Newfound-
land itself, for an earlier Governor had dismissed Mr. Morine
from his office, without the Ministry resigning office.1
An example of the more normal procedure may be found
in the case of the reverses suffered by the Ministry of Sir
Joseph Ward at the New Zealand election of 1911. The
result was not unequivocal : the Government secured
nearly half of the seats, but the decision was left in the
hands of four Labour members, who were not absolutely
certain to vote one way or the other. There was naturally
a demand made by the Opposition that the Governor should
intervene at least to the extent of compelling ministers to
face Parliament at an early date, if not to leave office.
Lord Islington, however, deemed it best to allow matters
to take their parliamentary course. When Parliament met
on February 15, 1912, an attractive programme was placed
before the House, which resulted in the defeat of a motion
of no confidence by the casting vote of the Speaker. Sir
J. Ward, however, resigned office, on the ground that he did
not desire to carry on without a majority, his place being
taken by Mr. T. Mackenzie. Then followed a period from
March to July, in which Parliament was adjourned, and
the Ministry was in office without any real mandate, and
again it was suggested that the Governor should intervene.
This step was, however, not taken, and the matter was more
satisfactorily disposed of by the defeat of the Government
on July 5 in Parliament by a majority of eight votes,
a result which had been contributed to in no small measure
by the delay in meeting Parliament. Mr. Mackenzie then
accepted the office of High Commissioner for the Dominion
in London, an office in which he has represented the Govern-
ment with ability and distinction.2
1 Discussed at length in the Canadian House of Commons on March 29,
1912. 2 Part. Pap., Cd. 6091, pp. 68, 69 ; 6863, p. 116.
118 IMPERIAL UNITY AND THE DOMINIONS
It must always be remembered that strong action on
the part of a Governor is more likely to confuse an issue
than not : it at once tends to cast in the scales the strong
feeling which in any community with parliamentary govern-
ment is raised against an appearance of arbitrary authority,
and thus intervention by a Governor may interfere with
the natural play of political forces, and do more harm than
good. The best work of a Governor in these cases can be
done not by active intervention, but by the use of his influ-
ence in favour of the adoption by his ministers of the true
constitutional course, and in the majority of instances such
action is probably more effective in the long run than any
active use of reserve powers, which, while doubtless existing,
should be reserved for the most serious cases of trouble.
A Government may seem weak in suppressing a serious
strike, as was undoubtedly the case with the labour troubles
at Adelaide in 1910, but the idea that the Governor should
on that account dismiss his ministers was an absurd one,
and would have, if carried out, placed the Government in
the comfortable position of being able to divert attention
from their own shortcomings by an onslaught on vice-regal
interference.
It is important to note that in order to adopt in its full
sense the British doctrine of ministerial responsibility no
formal change is really necessary. It is true that the royal
instructions to the Governors of the Australian States,
Newfoundland, and New Zealand expressly provide that
in executing his official duties the Governor is to act
with his Executive Council, but may dissent from them
if he deems fit, reporting in that case to the Secretary
of State his reasons, but the practice in the case of the
federations, of the Union, and the Canadian provinces, where
no such instructions are given, is the same as in the cases
where the instructions permit dissent. The omission of the
provision of the instructions might therefore be made with-
out affecting the actual practice, and, on the other hand,
it would not be desirable to replace the instruction by
a general rule that the Governor must always act on the
THE DISMISSAL OF MINISTERS 119
advice of Ministers. Constitutionally the proper practice
is clearly to omit the mention in the instructions of the right
to act against the advice of ministers, and to leave the action
to be regulated by usage.1 The change from the present
system might be helped by an agreement or expression of
opinion at an Imperial Conference, as was suggested, though
unsuccessfully, by New Zealand in 1 887 : times have changed
since then, and the matter is ripe for reconsideration. The
actual mode of the change becoming operative would
merely be that on the first occasion of any request for a dis-
solution, in a case where there could be on earlier precedents
any grounds for the exercise of the discretion to withhold
it, the Governor should grant it on the express ground that
he was following the constitutional practice of the United
Kingdom, leaving it to the electorate to decide if in their
opinion the dissolution was properly advised by the Ministry.
1 The omission in the case of Canada is due to the action of Mr. Blake as
Minister of Justice, and it has been followed for the Commonwealth and
the Union. In no case has the change made any alteration in the practice.
B. THE LEGISLATURE
CHAPTER VI
THE LEGISLATIVE SUBORDINATION OF DOMINION
PARLIAMENTS
A DOMINION at the present time is essentially, from the
point of view of international law, not a sovereign State,
though certain concessions have been made to the prac-
tical position of a Dominion, and the Parliament of a
Dominion, and a fortiori of a State or a province, is inferior
to that of a sovereign Parliament. Such a Parliament has,
in the eyes of international law, an unfettered legislative
control over all persons actually within its territorial
boundaries, including in that term a certain area of sea
adjoining the coast, whether that sea is strictly to be
regarded as part of the territory of the State or is merely
subjected for definite purposes to its legislative control,
and, though it cannot exercise its legislative power over
foreign territory, it has a right to regulate the conduct of
its subjects wherever they are, and to punish them for acts
on foreign territory if it sees fit to do so. Moreover, it has
a clear right to regulate all persons on board its own ships
wherever they are, though of course in the territorial waters
of foreign countries these persons are subject also to the
foreign jurisdiction, and its own subjects on foreign ships, in
which case again there is a double jurisdiction. Further,
in the event of a treaty being made by which a foreign
State permits the exercise of jurisdiction actually by courts
established on the foreign territory, a sovereign Legislature
can provide for the exercise of such jurisdiction, the con-
stitution of courts to exercise it, the code of procedure to
be applied, and the substantive law. A sovereign Legisla-
ture should in its legislation respect any treaties by which
the country for which it is the Legislature is bound to other
SUBORDINATION OF PARLIAMENTS 121
powers, but the obligation is moral and political : it is not
a legal burden diminishing the sovereignty of the State :
no court has yet been established in any branch of inter-
national law which can examine the legislation of a sovereign
Legislature and pronounce it invalid or even incorrect.
Moreover, a sovereign Legislature is not bound within the
limits of the State as they exist at any one definite moment :
it can annex territory, it can cede territory, it can consent
to the uniting of the State with another State, even though in
such an act it loses its own sovereign character, and is merged
in a new body or continues its existence in a new and de-
pendent form : it may assent to the creating of a new Parlia-
ment distinct from the former units, which disappear as in
the case of the union of Scotland, Ireland, and England, or it
may remain, but surrender part of its authority to a federal
Parliament. Finally, without any new State unit being
created a sovereign Parliament may extinguish itself, or
may transfer all its power to some other body or individual,
whether directly or indirectly.
Now, in practice, the differences between the ambit of
the powers of a Dominion Parliament and a sovereign
Parliament like that of the United Kingdom are not very
noticeable. The main object of a Parliament has always
been in recent times the legislation for the actual territory
of the State, and for the guidance of the inhabitants of the
State, and extra-territorial legislation has never been a very
considerable part of its functions, still less is it normal for
a Parliament to meditate federation or suicide in any form.
Nor in its field of legislation is it usual or frequent for
the Parliament to be subjected at the present day to any
form of control, so that the normal working of Parliament
in the self-governing Dominions is far more analogous to
that of the working of the Imperial Parliament than might
be judged from a mere consideration of the differences
between the legal powers of the one and of the other. In
this fact lies the explanation why in the main it has been
possible for so many decades to conduct without serious
friction or appreciable difficulty the relations of the
122 IMPERIAL UNITY AND THE DOMINIONS
Imperial and the Dominion Governments : causes of dispute
have been on the whole few, and tend to grow fewer. The
existence of any restraint is naturally, however, objectionable
in itself to the growing self-respect of the Dominions, and
it is of importance to examine in detail how far that limita-
tion is necessary, and how far it can be relaxed.
The first of the legal limitations on the power of Dominion
legislatures is that arising from the nature of a Dominion as
a dependency in the sense of international law. It was long
doubted whether it was in the power of local legislatures
to deal with the subject of naturalization. It was pointed
out that the admission of an alien to nationality must be
an act of sovereign power, and that therefore there could
be no authority in a local body to grant naturalization.
The argument was not convincing, and not only was the
power to grant naturalization freely exercised, but its validity
was expressly recognized in the Imperial Naturalization Acts,
of 1847 and 1870, which, however, laid it down expressly that
the validity of such naturalization was confined to the colony
in which it was conferred. The Acts thus recognized the
essential fact that a Dominion is a dependency, and that it
cannot have inherent in the powers of its Parliament the
right to make a man a British subject throughout the whole
of the British Dominions. Nor again can a Dominion Parlia-
ment authorize the declaration of war or the making of peace
with a foreign power, for these are powers which appertain
to sovereignty, and therefore cannot be exercised by a
Dominion Parliament as such, under its power to legislate
for the peace, order, and good government of the Dominion.
It follows, therefore, that, while a Dominion Government
might decide to take no active steps to intervene on behalf
of the United Kingdom in war, and though it might pass
legislation which would undo the effects produced by a de-
claration of war on the status of alien enemies residing within
its limits, it could not by Act of Parliament declare itself to
be neutral, for such a declaration would be to deny that it
was a dependency of the United Kingdom, and as such would
be ultra vires the Dominion Parliament. Nor again could
SUBORDINATION OF PARLIAMENTS 123
a Dominion Parliament alter the succession to the throne of
the United Kingdom and the British Dominions beyond
the Seas, or change the title of the King, for these are things
which only the sovereign Parliament can perform.1 More
important than these considerations is the fact that a Do-
minion Parliament cannot extinguish itself on its own motion.
It is appointed to be a Parliament, and it must continue to
be that Parliament for the Dominion. In the case of pro-
posed federation it is obviously right and proper that the
Legislature should express its desire to agree to the federation
and to approve the terms, though that course is not essential
if it can be ascertained otherwise, e.g. by a referendum,
what the electorate desire, but the actual power to federate
must be conferred by the Imperial Parliament, as it was
conferred in the case of Canada, the Commonwealth of
Australia, and the Union of South Africa. Nor could a
Dominion Parliament absolutely merge itself in some other
form, if that form could not be regarded as a Parliament.
To take an extreme case, if a Dominion Parliament were
to transfer all its legislative authority to a single person,
it would be open to grave doubt whether, assuming that
all the ordinary formalities for a change of constitution had
been carried out, nevertheless the change from a Parliament
which is a deliberative body to a single individual could be
deemed to be really within the power of the Parliament.
It will be seen at once that these cases are all very hypo-
thetical and unimportant from the point of view of practice.
It is more important to realize that the actual powers enjoyed
by a Parliament of a Dominion without any special delega-
tion of sovereignty — for any sovereign power whatever could
be conferred on a Dominion by the Imperial Parliament —
are extremely wide, and are limited only by the discretion
of Parliament. The law courts have absolutely no right to
inquire into the motives or purposes of any piece of legis-
lation of a Dominion Parliament.2
1 See Parl. Pap., Cd. 708.
2 Attorney-General for Ontario v. Attorney-General for Canada, [1912J
A. C. 571.
124 IMPERIAL UNITY AND THE DOMINIONS
To take an extreme case, if the Union Parliament of
South Africa should impose a tax of £100 a year on every
person of British origin, the Act might well be one which
should be prevented from having any operation by the
refusal of the royal assent, but if that assent were accorded
no court could annul it, because it was clearly aimed at
ending the connexion of the Union with the United Kingdom
and bringing to a termination the state of dependency of
the Union on the United Kingdom. In so crude a form as
this no issue has ever arisen, but in the case of the Dominion
of Canada it has been sought to have federal Acts set aside
on the ground that the legislation, if passed, would have
a detrimental effect on the subordinate divisions of the
Dominion, and was really an encroachment on the powers
of the provinces, but such representations have never
succeeded unless it could be shown that the Act was not
within the orbit of the legal powers of the Dominion, what-
ever the motive of passing it might be, and whatever
effect might be likely to result.
Nothing is more striking as a proof of the wide authority
of the Parliament of a Dominion in striving for its ends than
the right which is accorded to it to delegate to other bodies
some measure of legislative authority. It has long since
been established law that the maxim delegatus non potest
delegare has no application to a Dominion Parliament,1 and
in virtue of this power many corporations, municipal and
otherwise, have been empowered to make by-laws with the
force of law when made within the limits of authority con-
ferred by the Parliament in each case. A still more daring
step has recently been undertaken in the form of substitut-
ing for the normal method of parliamentary legislation
a method in which the popular vote is given full play.
It was provided by an Act (c. 2) of the province of Sas-
katchewan, passed at the first session of the third Legislature,
that after the coming into operation of that Act no Act of
the Legislature should take effect, unless it was a supply
Act, until ninety days after the close of the session, unless
1 Hodge v. The Queen, 9 App. Gas. 117.
SUBORDINATION OF PARLIAMENTS 125
a contrary intention was expressed in the Act, and unless
in that case the Act was passed at the third reading by a two-
thirds majority of all the members present at such reading.
If, however, not less than five per cent, of the number
actually voting at the last election petitioned for a referen-
dum, the operation of the Act was to be further delayed
until it could be so referred to the people. Similarly, any
number of persons not less than eight per cent, of the voters
at the last election could petition the Legislature to pass
a measure a copy of which must accompany the petition,
and if not passed by the Legislature in the next session the
measure must be presented to the people at a referendum.
But no such Bill could be proposed which imposed a charge
on the public revenue, or was not certified by the Attorney-
General as being in his opinion within the legislative com-
petence of the province. In either case the voters at the
referendum were to be the electors, and the coming into
force of the Act was to depend on their decision. If, on the
other hand, they approved a proposed Act, it was to be
enacted by the Legislature at the next session without sub-
stantial change, while if they disapproved it no further
petition for the Act could be made for three years. The
coming into operation of the Act was, however, made by
c. 3 to depend on the result of a referendum, and was made
dependent on the casting of thirty per cent, of the votes
polled in its favour, and as this did not happen the Act
fell to the ground.
Not discouraged by the proceedings in Saskatchewan,
Alberta, by c. 3 of the Acts of 1913, provided for the system
of referendum and initiative ; without following in exact
detail the Saskatchewan Act, the provisions are practically
identical in substance, but there is no automatic provision
for deferring the operation of any Act, the power given being
merely that the Legislature may defer the operation of
any but the supply Act. The numbers of voters who may
demand a referendum or propose a law other than a supply
Act, are fixed at ten and twenty per cent, respectively, in
place of the low figures of five and eight per cent. An Act
126 IMPERIAL UNITY AND THE DOMINIONS
which on the referendum is not approved is to be repealed
in the next session, and an Act proposed by the electors is
to be enacted if approved by the voters at the referendum.
In both cases it will be seen that supply Acts were ex-
cluded from the purview of Acts which were to be delayed
in operation — unless of course this was desired by the
Legislature — and that in both the right of initiative was
denied in the case of supply Bills, doubtless for the reason
that all supply must be recommended by the Lieutenant-
Governor under the terms of the British North America Act,
1867, and that therefore the surrender of this privilege to
the electors would be unconstitutional, as well as suicidal,
since no Executive could ever manage the finances of a pro-
vince if it were open to electors to make proposals of supply
which might or might not be made effective by a referendum.
In the case of Australia, the initiative and referendum
form established parts of the legislative proposals of the
State and of the Commonwealth Labour Parties, but so far
no progress has been made in pressing through these pro-
posals. An elaborate Bill introduced by the Labour Govern-
ment in Western Australia in 19131 providing for initiative
and referendum was rejected by the Legislative Council.
It would be premature to express any opinion as to how
far these proposals of initiative and referendum are con-
sistent with the fundamental legal powers of the Dominion
Parliaments. The referendum cannot be considered as
seriously open to question : the effect of the referendum is
simply to decide whether a measure the exact terms of
which are contained in the Act as passed shall take effect :
it is, viewed in essence, nothing more than a local veto Bill
applied to the whole community : it is conditional legis-
lation, which had always been regarded as perfectly valid.
It is more difficult to feel assured as to the case of the initia-
tive in the form in which the Alberta and Saskatchewan
1 The Premier ingenuously commended the Bill on the ground that the
mention of the Saskatchewan Act in the Report of the Dominion Depart-
ment of the Colonial Office (Parl. Pap., Cd. 6863, pp. 38, 39) showed the
value attached to the system by the Colonial Office.
SUBORDINATION OF PARLIAMENTS 127
Acts enacted it. It places a definite constraint upon Parlia-
ment to pass an Act in a form prescribed by the electors :
it gives them no power to vary the Act in any point of sub-
stance, however defective it may be found to be. It de-
prives, in fact, Parliament of its deliberative function and
hands that over to the press, and that too in the most un-
fortunate manner, for, while a Bill can be amended in Par-
liament, in the case of the initiative it cannot when once
put in shape be changed in substance. Experience shows
that practically all Bills, and certainly every measure of
any consequence, require careful amendment, and the new
procedure prevents that being done. The initiative in this
form clearly reduces to a farce the proceedings of Parliament,
and it seems therefore that its validity may be called in
question on that account. It would be a very different
thing if the measure as petitioned for were merely to be
debated by Parliament, or even accepted in principle by
Parliament, when it could fairly be said that Parliament
still retained some useful function.
Closely connected with the limitation imposed by the
fact that a Dominion is a dependency is that arising from
the limitation of the Legislature to the actual territory of
the Dominion. The rule acts with a certain symmetry
and convenience, for it leaves the Imperial Parliament the
sole and undisputed right to deal with such important
things as the exercise of jurisdiction over British subjects
and British protected persons in such places as China,
Siam, Persia, and the Ottoman Dominions : further, it
leaves the British Parliament dominion over the high seas
so far as that power may be exercised at international law.
But the symmetry is not perfect and the restriction is
not altogether without disadvantages, apart from the
question of merchant shipping which will again l occupy our
attention. The nature and the extent of the territories of
the Dominions for the purposes of jurisdiction is a point of
the utmost difficulty : it was long in dispute between the
United States and the United Kingdom to what extent the
1 Below, chap. x.
128 IMPERIAL UNITY AND THE DOMINIONS
waters of the bays of North America could be deemed to
be territorial. It was contended by the Government of the
United States that the three marine mile limit applied to
all these bays, that the line must be drawn following the
sinuosities of the coast, and that no water could be con-
sidered to be territorial which was not within a distance of
three marine miles measured from some point of the shore
at low water mark. On the other hand, the British Govern-
ment claimed that the term bay meant that the three mile
line was to be drawn from an imaginary line drawn across
the bay when it first definitely assumed the configuration
of a bay. The dispute which caused much bitterness in
the years 1866-70, was settled for the time by the Wash-
ington Treaty of 1871, and revived after the termination
of that treaty, was dealt with in detail by the treaty nego-
tiated between Mr. Chamberlain and Mr. Bayard in 1888;
but that treaty failed to be ratified owing to the opposition
of the Republican majority in the Senate to a treaty which
had been negotiated by a democratic Government. For-
tunately, after a short period of friction, the matter was
adjusted amicably until revived by the action of New-
foundland, in 1905, in reopening the fishery question. A
period of some tension followed, which was relieved by the
overriding of Newfoundland legislation in 1907, and the
arrangement for the submission to arbitration of the whole
question in all its bearings as affecting both Canada and
Newfoundland. The decision of that tribunal in 1910
accepted the doctrine put forward in effect by the British
Government, but recommended for practical purposes
the acceptance of the definition of bays which had been
agreed upon between the negotiators in 1888, and this
recommendation was ultimately accepted. While the
decision is, in form and substance alike, only one between
the United Kingdom and the United States, it is most
doubtful that the position thus established can be upset
by any other international proceedings, and the limit thus
accorded may for legislative purposes be deemed to be the
limits of the legislative authority of the Dominion and of
SUBORDINATION OF PARLIAMENTS 129
Newfoundland. It has also been laid down authorita-
tively by the Judicial Committee of the Privy Council in
the case of Direct United States Cable Co. v. Anglo-American
Telegraph Co.1 that Conception Bay in Newfoundland is
territorial water of that Colony, and the Parliament of
Canada has asserted in the clearest terms, and so far with-
out protest or dispute, that the whole waters of the Hudson
Bay are portions of the territory of the Dominion. Parts,
too, of the seas to the north of the Dominion may well be
considered as appertaining to the bordering territory which
is or will be Canadian.
It is right to note that a certain doubt on the whole subject
of the control to be exercised over foreigners in foreign
ships in British waters was cast by the Franconia 2 case, in
which it was held, after an extraordinary deviation of legal
opinion, by a majority of the court before which the question
finally came, that it was not possible under the common law
to punish a foreign subject for an offence, in the special
case manslaughter, committed by means of a foreign ship
in British territorial waters. The ground of the decision
and its validity remain very doubtful, but much of its effect
was done away with by the enactment of the Territorial
Waters Jurisdiction Act, 1878, which expressly provides
that an offence committed by a person whether or not
a British subject on the open seas within the territorial
waters of the King's dominions is an offence within the
jurisdiction of the Admiral, whether committed on board
or by means of a foreign ship or not, but it imposes in the
case of a prosecution under this provision the condition
that if the person accused is a foreign subject the consent
of the Secretary of State must be obtained in the case of
the United Kingdom and of the Governor in the case of
proposed trial in any of the Dominions. The rule might
prove an inconvenient one, and it obviously would be
a distinct and annoying limitation on the autonomy of the
Dominions if the Act were to be considered as applying to
every proposed prosecution of foreigners for violating the
1 2 App. Cas. 394. 2 R. v. Keyn, 2 Ex. D. 63.
1874 I
130 IMPERIAL UNITY AND THE DOMINIONS
fisheries of a Dominion, but the Act has remained a
dead letter in the case of the Dominions. This is due to
the fact that by s. 5 of the Act it is expressly provided
that nothing in the Act shall be construed to be in dero-
gation of the rightful jurisdiction of her Majesty, her
heirs or successors, under the law of nations, or to affect
or prejudice any jurisdiction conferred by Act of Parlia-
ment, or now by law existing in relation to foreign ships,
or in relation to persons on board such ships. These words
have justly been deemed to cover the jurisdiction exercised
by the Dominions over foreign fishermen and others who
frequent their coasts in foreign ships, for it must be remem-
bered that the decision in the Franconia case is in no wise
binding on the Dominion courts, who are subject only to the
duty of obeying such doctrines as may be from time to time
approved by the Judicial Committee of the Privy Council.
It is also important to note that the Act expressly recites
in the preamble that the rightful jurisdiction of the Crown
extends, and has always extended, over the open seas
adjacent to the coast of the United Kingdom and of all
other parts of His Majesty's dominions, to such a distance
as is necessary for the defence and security of such dominions,
and the definition of territorial waters given in the Act
states that it means in reference to the sea such part thereof
adjacent to the coast of the United Kingdom or the coast
of some other part of His Majesty's Dominions as is deemed
by international law to be within the territorial sovereignty
of His Majesty. This definition is sufficient to cover all the
cases where the ordinary three-mile limit does not apply,
such as the cases of landlocked bays, which are so prominent
a feature of Canada and Newfoundland. In Australia the
question is different, for the bays there have seldom the con-
figuration which makes them territorial waters, or, where they
have this configuration, the narrowness of the entrances
makes it clear that they are not parts of the open sea.
It has also been held that in certain cases it is possible
to go further and to violate the strict letter of the provision
that legislation of a Dominion must be restricted to terri-
SUBORDINATION OF PARLIAMENTS 131
torial limits. For many years the power of the Dominion
Parliaments to pass Acts authorizing expulsion of aliens
was in doubt, but this power has at last been conceded by
the Privy Council, in the case of Attorney-General of Canada
v. Cain and Gilfmla,1 which establishes the doctrine that
the Parliament of Canada possess the power to deal with
aliens, and to expel them from Canada to the place whence
they came, which was in that case the United States, in the
same full manner in which that power is possessed by the
Imperial Parliament, the power being conferred by the
Imperial Constitution Act, and by the Canadian Act assented
to by the Crown made under the authority of that Act.
It still remains, however, undecided whether the power of
Canada to deal with immigration extends to the case of
British subjects being deported to the United Kingdom
in a British ship, for there is at present no reported case
which establishes the doctrine that the action of carrying
such a passenger against his will is legal outside the terri-
torial waters of the Dominion from which he is being ex-
pelled, and there is one case, arising out of the deportation
of political prisoners from a South American republic,
which suggests that the detention is not legal.2 It seems,
however, probable enough that the Privy Council would
see its way to extend the doctrine regarding aliens to the
case of British subjects also, and it may be that the British
Courts, which are not bound by decisions of the Privy
Council, would nevertheless find that, the origin of the
detention being legal, the subsequent steps necessary to
carry it out were also legal. The position was created by
the famous incident of 1914, when under the authority of
an Indemnity Act, passed ex post facto by the Parliament of
the Union of South Africa, certain British subjects were
expelled from that Dominion, and sent home on a British
ship. It was proposed by those thus expelled to take pro-
ceedings against the owners of the ship by which their
1 [1906] A. C. 542. Cf. Robtelmes v. Brenan, 4 C.L.R. 395 ; Keith, Journ.
Soc. Comp. Leg., xi. 235-7.
2 Reg. v. Lesley, Bell C.C. 220.
12
132 IMPERIAL UNITY AND THE DOMINIONS
transportation to the United Kingdom was carried out, but
this intention has not resulted in any action.
It is clear that unless the power to deport can be legally
exercised it would be impossible for the self-governing
Dominions to carry out their policy of the restriction of
immigrants, which in many cases is extended to the length
of expelling persons who have ceased to be in any real sense
immigrants because they have failed within a specified
period to make themselves independent of public relief, even
if this falling into poverty is the mere result of accident,
and having regard to the importance attached by the
Dominions to this control of immigration, it would be
necessary to enlarge the powers of the Legislatures if their
right to deport, as distinguished from exclusion which is
conceded as clearly theirs, were seriously to be denied.
A further possibility of difficulty in the interpretation of
the powers of Dominions' Legislatures from the point of
view of their extension in area is that arising from the
problem of the locus of assets of various kinds. There can,
of course, be no doubt as to the power of the Imperial
Parliament to impose such taxation as it thinks fit on any
property whatever, wherever situated, if it can in any way
bring its legislation into effective operation, but, as a Dominion
cannot legislate for matters beyond the Dominion, the
question arises whether it can lawfully enact a succession
duty to be charged, say, upon the personal property of every
kind of a deceased testator, even if he is domiciled in the
province or Dominion, on the ground that the property,
being personal, is to be deemed to be notionally present in
the province or Dominion. It is clear that the Dominion
or Provincial Legislatures could not impose a tax on real pro-
perty in the United Kingdom in the sense that the property
could be fettered by the tax, while such a power pertains
to the Parliament of the United Kingdom. In 1894, when
the Finance Bill for that year was introduced into the
Imperial Parliament, attention was at once called to its
terms by the High Commissioner for Canada and the
Agents-General of the Australian Colonies in London, who
SUBORDINATION OF PARLIAMENTS 133
represented to the Imperial Government that the Bill, if
passed in the same form as that which it bore on introduc-
tion, would seem to impose taxation directly on property
in the Colonies, which was objectionable on constitutional
grounds as well as on financial grounds,1 and accordingly
as finally enacted the Finance Act, 1894, contained specific
provision that no taxation imposed was to act as a charge
on property in the Colonies. In the case of personal property
Colonial Legislatures have freely assumed their power to
adopt the usual rule of taxation in the case of succession
duties, under which a tax is or may be levied on all property
locally situated within the Dominion or State of any person
in respect of the passage of the property on death, while in
the case of the death of persons domiciled, the whole personal
property is subjected to taxation wherever it may be situated.
This assumption of power has not been questioned so far
successfully in the case of any Dominion2 or State legisla-
tion, but under the constitution of the Dominion of Canada
the power of the provinces to raise direct taxation within
the province has been somewhat severely limited. In the
case of Woodruff v. The Attorney-General for Ontario 3 it was
held that the Legislature of Ontario had no power to levy
taxation on the property of a deceased testator, consisting
of bonds and debentures which had been deposited by him
in 1902, two years before his death, with the Mercantile
Safe Deposit Company of New York, and a bank balance
at New York, on the broad ground that it was not within
the power of the Legislature to tax property locally situated
outside the province, though, on the other hand, it has been
held by the same tribunal that it is not necessary that the
testator on whose death the duty is claimed should have
been either domiciled or resident in the province at the
time of his death, in order to authorize the taxation by the
Legislature of any of his property movable or immovable
situated within the province.4 The term situation seems to
1 See Parl. Pap., C. 7433 and 7451.
2 Hughes v. Munro, 9 C.L.R. 289. 3 [1908] A.C. 508.
4 E. v. Lovitt, [1912] A.C. 212.
134 IMPERIAL UNITY AND THE DOMINIONS
be given a strong local sense, and it is not altogether easy
to see a precise line of division which can be drawn between
the case of a Dominion or State and a province in this regard.
A further striking limitation of the provincial power of
legislation on the ground of locality is to be seen in the
Alberta and Great Waterways Railway case, which was
decided by the Privy Council in 1913.1 In effect the issue
which was presented in that case was the power of the
Provincial Legislature of Alberta to deal with certain
money on deposit at the Royal Bank of Canada at Edmonton,
Alberta, in the special circumstances in which that money
had been deposited there. It had been advanced by parties
in London on the security of bonds of the Alberta and
Great Waterways Railway Company, and on the authority
of the head office of the Bank of Montreal it had been lodged
in the Royal Bank in a special account to the credit of the
Provincial Treasurer of Alberta, the whole transaction
taking place on the understanding embodied in Acts of
the province that the money would be paid out as the
process of constructing the railway advanced. The bonds
of the company were guaranteed by the province. Scarcely
had the construction of the line begun than the Legislature,
which viewed with dissatisfaction — apparently natural —
the arrangement in question, passed an Act in which it
confiscated the money to the credit of the province, repeated
the guarantee, and indemnified the railway company
for all claims brought against it. In pursuance of this Act
the Government of Alberta sued the Bank for the sum of
six million dollars, with interest, on deposit therein, while
the Bank disputed the validity of the Act. The case was
decided in favour of the province by the courts of first
instance and of appeal in the province, the latter holding
that in any event the case must be decided in favour of
the province since the Legislature had undoubted power to
deal with the property and civil rights within the province
under s. 92 (13) of the British North America Act, 1867.
The Judicial Committee reversed the decision of the courts
1 [1913] A.C. 283.
SUBORDINATION OF PARLIAMENTS 135
below, and allowed the appeal of the Royal Bank. The
argument of the decision appears to be that the aim of the
Act was to alter the whole basis on which the special account
had been opened, namely, the carrying out of a defined
scheme : when the basis of a scheme was altered, on the
strength of which money had been subscribed, it was open
to those who had subscribed the money to reclaim the
money from those to whom it had been subscribed. Thus
in the National Bolivian Navigation Company v. Wilson 1 it
had been decided by the House of Lords that when money
had been subscribed on the strength of a scheme which
involved a Government concession, and, when the Govern-
ment concerned revoked the concession, the money advanced
could be recovered from trustees in whose hands it was,
on the ground that there was substantial failure of the con-
sideration on which the advances had been made. In the
case in question, an action would therefore lie against the
Bank of Montreal, which was not situated in Alberta,
in order to enforce the right of the lenders in London, and
this right of action on the part of the lenders against the
Bank of Montreal, not being a civil right within the province,
could not be affected by any provincial Act. As, therefore,
to give effect to the law of the province would involve de-
priving the Bank of Montreal of its power to meet a lawful
action, the legislation of the province must be held ultra
vires.
This is a very striking judgement, and it has been inter-
preted by high authority 2 as indicating that where a debt
is concerned the debtor and the creditor, and all parties
interested, must be in the province before the Provincial
Legislature can have any power to affect the debt. If this
is really the case, the power of the provinces would be gravely
limited, but it seems more likely that the case must not be
read as an authority for more than it seems to assert, namely,
that civil rights outside the province altogether cannot be
rendered nugatory by a provincial law, though even so the
1 5 App. Cas. 176.
2 Lefroy, Leading Cases in Canadian Constitutional Law, p. 77.
136 IMPERIAL UNITY AND THE DOMINIONS
limitation of provincial power is a serious one, and it is per-
haps not altogether easy to reconcile this doctrine with the
doctrine that property in movables owned by some one out-
side the province can be taxed on death by the local Legis-
lature.1
It does not, however, seem that in this case, any more
than in the case of succession duties, the Judicial Com-
mittee is in the slightest degree likely to extend to colonies
proper the rigid limitation of authority which it has imposed
on the Canadian provinces : if it were to do so, it is clear that
the limitation would have to be removed by legislation.
Apart, however, from these cases it is doubtful to what
extent it is really desirable or necessary to retain the
limitation as regards territorial effect. Under that limita-
tion it has been held in the case of Macleod v. Attorney-
General for New South Wales 2 that it is not possible for
a Colonial Legislature to punish the crime of bigamy, if the
second marriage takes place outside the colony, and, though
the Canadian law 3 still makes this offence a crime, and it has
been acted upon, it is doubtless invalid. Now this limitation
does not apply to Imperial legislation, but the Imperial Act 4
which makes it a crime to commit bigamy wherever the
second marriage takes place makes no provision for the trial
of an offender anywhere save in the United Kingdom, and
it is not clear that such an offence is one for which procedure
under the Fugitive Offenders Act, 1881, is available, so as to
permit of the sending to England for trial of an offender of
this class living in a colony. The same difficulty applies to
the much more serious case of murder or manslaughter com-
mitted by a British subject outside the United Kingdom :
the Imperial Act 6 makes the offence punishable, but, again,
apparently only if the man is found in England, where the
Act can be put in force. Exactly similar difficulties would
arise if the practice of regulating by law the actions of persons
abroad were freely resorted to by the Parliament of the
i R. v. Lovitt, [1912] A.C. 212.
1 [1891] A.C. 455. 3 Kevised Statutes, 1906, c. 146, s. 307.
« 24 and 25 Viet. c. 100, s. 57. 5 Ibid., s. 9.
SUBORDINATION OF PARLIAMENTS 137
United Kingdom as it is by some foreign powers, whose
criminal law in large measure attaches to a subject wherever
he may happen to be. The difficulty might be removed by
the conferring of special powers of legislation in any such
cases on Dominion or State Parliaments, but such limited
grants of power are not very convenient.
Moreover, it must be remembered that in a sense it is
possible for any Dominion or State Parliament to evade the
restriction regarding territoriality by adopting a specific
form of legislation. It is, indeed, not open to these Parlia-
ments to declare an act done on the high seas illegal, but
they can say that it shall be illegal for any person to enter
the territorial waters of the Dominion or State, having com-
mitted such an act on the high seas. It is true that in a sense
this is merely a way of evading the limitation, but the rule
as we have already seen is that motives cannot be considered
if the law is otherwise valid, and there is no other ground
than motive on which an Act can possibly be considered
invalid, because it forbids the entry into the Dominion or
State of persons guilty elsewhere of a crime. The principle
indeed has received the authority of the Judicial Committee,
for in the case of Peninsular and Oriental Steam Navigation
Co. v. Kingston* it was expressly held by the Judicial Com-
mittee that it was an offence against the Customs Act of the
Commonwealth for vessels to enter an Australian harbour,
having broken the seals placed on excisable goods at her
first port of call, although the breaking of the seals had taken
place at sea. In effect, therefore, the imposition of a tax on
the stores consumed at sea by the passengers, &c., of the
steamer was held to be valid, although the direct taxation of
the matter in question was impossible. Having regard to
this fact, it is possible even for Dominion Legislatures to affect
matters with which, strictly speaking, they cannot deal : thus
the Legislature of Newfoundland can effectively regulate,
as it has done by an Act of 1914, the prosecution of the seal
fishery, though, strictly speaking, it cannot deal directly
with some of the points touched upon in its legislation. The
1 [1903] A.C. 471.
138 IMPERIAL UNITY AND THE DOMINIONS
power is also available in the case of foreign ships taking
part in fisheries : in their case the Imperial Parliament also
has no legislative power under international law, so long as
they remain outside territorial waters, but in their case also
the necessity of using the harbours of the Dominions or
States makes it possible to subject them to licensing laws
and other enactments, as in the case of the fisheries of
Queensland and Western Australia, and those of Canada
and Newfoundland.
In these circumstances it must be regarded as extremely
doubtful whether the retention of the territorial limitation
of Dominion legislation serves any useful purpose. It cer-
tainly enables many difficult points of law to be discussed,
without any obvious public advantage : thus it has been
attempted in the Canadian Supreme Court to save an
American fishing- vessel from the consequences of capture
by a Canadian vessel when raiding the Canadian fisheries,
on the ground that she was captured outside the three-mile
limit, and that a Canadian vessel could not exercise coercive
power beyond that limit, a plea disposed of by the court
on the ground that the doctrine of hot pursuit might properly
be applied in the case of Canada as well as in the case of
a sovereign State.1 It would seem, on the whole, wise to
enact that the territorial limitation shall not be applicable
to Dominion legislation. To some extent the limitations
have been already relaxed, to some extent the conferring
of full admiralty jurisdiction on Colonial courts by the
Colonial Courts of Admiralty Act, 1890,2 renders legislative
authority less necessary, but the grant of this power would
be practically convenient, and open to no substantial
disadvantages.
The third great limitation on Dominion Legislatures
follows inevitably from their being Legislatures for depen-
1 The Ship ' North ' v. The King, 37 Can. S.C.R. 385.
1 For criminal jurisdiction see 12 and 13 Viet. c. 96 ; 23 and 24 Viet,
cc. 88 and 122 (which authorize the Colonial Legislatures to punish crimes
of murder, &c.,when the act takes place in but death outside the Colony) ;
37 and 38 Viet. c. 27 ; 57 and 58 Viet. c. 60, ss. 685-7.
SUBORDINATION OF PARLIAMENTS 139
dencies. The Acts of the sovereign Legislature must be
deemed by that very distinction between a dependency and
the State of which a Dominion is a dependency to be superior
in validity, so that, if the two Legislatures enact provisions
of different character on one topic which cannot be recon-
ciled, then inevitably the legislation of the dependency must
be deemed to be of inferior validity. In the early days of
Colonial history things were carried much further than this :
it was considered that laws of dependencies must be assimi-
lated as closely as possible to the laws of the mother country,
England, and the hapless people of Nova Scotia, who in the
innocence of their hearts enacted the excellent divorce law
of Scotland in place of the unequal law of England, were
compelled in observance of this fetish to replace the peccant
Act, which was deemed to be invalid, by legislation based on
the law of England : the case is of interest since it illustrates
how an old rule can affect future development : since the
passing of the British North America Act, 1867, the difficulty
of establishing a law of divorce, in the face of the opposition
of the Catholic hierarchy of Quebec, has prevented any
legislation whatever on divorce being enacted by the Parlia-
ment of the Dominion, while the power to enact any law of
divorce does not now belong to the Provincial Legislatures,
so that amid a progressive and advanced people the defects
of the old English law must still be tolerated.1 This curious
idea of repugnancy was gradually weakened by the applica-
tion of common sense, but it was not until the rise of grave
difficulties in South Australia, where the court took its duty
of examining laws for invalidities seriously, that the
matter was placed in 1865 on a perfectly clear basis by the
enactment 2 that any Colonial law which is in any respect
repugnant to the provisions of any Act of Parliament ex-
tending to the Colony to which the law relates, or repugnant
to any law or regulation made under authority of such Act
1 Early examples of grant of authority to deviate from English law are
6 and 7 Viet. c. 22 ; 22 and 23 Viet. c. 12 (as to evidence).
a 28 and 29 Viet. c. 63 ; c. 64 of the same session deals with Colonial
marriages, authorizing the validity of Colonial laws as to such marriages.
140 IMPERIAL UNITY AND THE DOMINIONS
of Parliament, or having in the Colony the force and effect
of such Act, shall be read subject to such Act or order or
regulation, and shall to the extent of such repugnancy,
but not otherwise, be and remain absolutely void and in-
operative, while any Act not so repugnant should thus be
free from suspicion of invalidity for any other ground of
repugnancy. Thus there came to an end the theory that
there were fundamental British principles which no Colonial
law could violate, though there was no one who could
possibly tell what these principles were, or what amount
of divergence would amount to violation. The same Act also
did away with the suggestion made from time to time that
no Colonial Legislature could alter its constitution, powers,
or procedure by expressly asserting the full existence of
this power in the case of every representative Legislature,
i.e. one of which at least one-half of the members are elective,
provided that the mode of alteration prescribed by any Act
of Parliament, Letters Patent, Order in Council, or Colonial
Act were duly observed.
The question of constitutional alteration will receive
further consideration later, but apart from that issue, which
presents special difficulties, the general question can be raised
whether the application of the Colonial Laws Validity Act to
the self-governing Dominions can now be justified. The
matter has not been formally in issue between the Imperial
and the Dominion Governments, but the delegates who came
to the United Kingdom in connexion with the passing into
law of the Commonwealth of Australia Constitution Act, 1900,
clearly intimated that in their opinion the application of that
Act to the laws of great self-governing communities was out
of date, and in some degree open to objection. This view
was not in any degree persisted in, and the application of the
Colonial Laws Validity Act to the Commonwealth has never
been doubted by the Courts. Nor is there any doubt that
the same rule applies to the Dominion of Canada. In that
case a curious doctrine was quite early enunciated that the
grant of exclusive legislative power to the Dominion Parlia-
ment by s. 91 of the Act in regard to the matters referred to
SUBORDINATION OF PARLIAMENTS 141
therein meant that in future the Imperial Parliament was
not to legislate, and that the Dominion Parliament was to
have power to repeal Imperial Acts covering the matter.
The theory as applied to merchant shipping was refuted very
effectively by Sir William Harcourt in a letter to The Times
of June 1, 1876, which elicited a certain amount of discussion.
The obvious meaning of the Act was to assign to the Dominion
Parliament certain powers exclusive of the Provincial Par-
liaments, and the courts have long accepted this meaning of
the legislation.1
Now in considering the question of repugnancy it must
be borne in mind that repugnancy is quite a different thing
according as the number of laws of the central authority
affecting the dependency is great or small. It is necessary
to distinguish between abolishing the doctrine of repugnancy
itself and between repealing Acts which needlessly and there-
fore improperly fetter the action of Dominion Legislatures.
It must be further taken into account that the relation of
federation and state or province automatically carries with
it the rule that if both Legislatures enact laws in themselves
valid, and if these laws cannot be read together, the law of
the lesser body must yield in validity to the law of the greater.
This is the rule tacitly or expressly in the Federations and the
Union, and even without express enactment it would un-
doubtedly be the rule in the British Empire, unless its applica-
tion were in set terms to be overridden : legislation expressed
to extend to a Dominion, and enacted by the Imperial Parlia-
ment, must be deemed to be superior to any Dominion legisla-
tion, if for no other than the simple reason that every Dominion
constitution can have no higher foundation for its existence
than an Act of Parliament — Newfoundland's constitution
rests on the prerogative merely — and that therefore to deny
the binding effect of an Imperial Act extending in express
terms to the Dominion would be to deny the validity of the
constitution itself. When the validity of the doctrine of the
inability of a Dominion Legislature to repeal an Imperial Act
1 See Smiles v. Belford, 23 Gr. 590 ; 1 O.A.R. 436. Cf. Imperial Book
Co. v. Black, 35 Can. S.C.R. 488.
142 IMPERIAL UNITY AND THE DOMINIONS
extending to the Dominion was being argued by Sir John
Thompson * on behalf of the Canadian Government, he could
not deny that an Act legislating for Canada subsequent to
the British North America Act, by which he asserted the right
to alter old Imperial Acts was given to Canada, would be
valid, since it would operate as a sort of alteration of the
constitution. It follows from this that even if an Imperial
Act declared that the doctrine of repugnancy would not apply
in future to Dominion Acts, nevertheless, if in any subse-
quent Imperial Act the measure were stated to apply to the
Dominions, the former Act would be superseded, since it is
not possible on the one hand for the Imperial Parliament
to fetter its own action in any binding way, and since any
Imperial Act expressed to extend to the Dominions must
be regarded as valid and as overriding a Dominion Act.
To repeal the Colonial Laws Validity Act would, therefore,
merely have the result of leaving the position vague and
difficult, unless all the clauses in Imperial Acts referring to
the Dominions were repealed, or the Dominion Parliaments
were given the power to repeal them. Even if this latter
step were taken, the possibility of future legislation binding
the Dominions would remain. The Act in fact is rather
a charter of liberties than a fetter : it merely expresses in the
irreducible form the nature of the relation between the central
authority and a Dominion. The real end to be aimed at
is not to abolish the form of repugnancy, but to render
it innocuous by removing the material in which it takes
shape.
While the relation of sovereign state and dependency
seems almost necessarily to demand that the legislation of
the sovereign state should overrule that of the dependency,
should they unhappily chance to concur in dealing with the
same point in incompatible ways, it is not at all obvious that
it is necessary that the sovereign state should have a direct
power of preventing the dependency legislating at all on any
subject. There may be a federal system without any power
of veto of legislation passed by the subordinate Legislatures :
1 Parl Pap., C. 7783.
SUBORDINATION OF PARLIAMENTS 143
this is the case with the United States, and it is, as a result
of the imitation of the United States model, a characteristic
of the federal system of the Commonwealth of Australia.
On the other hand, the power of disallowance is possessed by
the central government of Canada, and naturally, of course,
by the practically unitary central government of the Union
of South Africa. In the former case the influence of the
possession by the United Kingdom of the power of disallow-
ing Canadian Acts, no doubt, was the basis on which
the power of disallowing provincial Acts was taken, as
appears most clearly from the terms of the British North
America Act itself. The revolt of the confederated states of
the Union had made a deep impression on the minds of
Canadian statesmen, and they were determined to secure that
the central authority was not so helpless vis-a-vis the members
of the federation as the United States had proved to be.
The direct control of Dominion or State legislation
possessed by the Imperial Government can be exercised in
several slightly different ways. In the first place, the
Governor is always part of the Dominion or State Legisla-
ture, and the Governor might in theory withhold his assent
altogether from legislation passed by the two Houses, and
presented to him for the necessary assent. This case is, how-
ever, in practice negligible : there is no recorded case of its
use in recent years, and the high respect due to the elected
Parliament of a Dominion or State makes it clear that it would
be improper for a Governor, even on instructions from the
Imperial Government, to withhold assent to a Bill. It is
conceivable that a Governor might be advised by his
ministers to withhold assent from a Bill which the two
Houses had passed, purely as a technical means of reversing
an error in legislation, which had gone too far to be corrected
in any other way, and it has been suggested that when a Bill
had been passed in a defective form through the two Houses,
and it was desired to alter it, it would be better to let it thus
fall to the ground, and to bring forward a new measure,
but the possibility of such action remains hypothetical. On
the other hand, every Governor may reserve any Bill which
144 IMPERIAL UNITY AND THE DOMINIONS
is presented to him for the royal assent, and some Bills he
must reserve, though a distinction is to be drawn under the
Colonial Laics Validity Act, 1865, between the consequences
of his failure to do so according as the instructions are con-
tained in a document having the force of law, or merely in
the royal instructions, the measure assented to being in the
first case not brought into operation by the assent which is
a mere nullity, and in the second the measure having full
legal validity. The effect of reservation is to place the ques-
tion of assent entirely out of the hands of the Governor : the
Bill can, if it is to become law, only do so on condition that
it receives by Order in Council the royal assent. Equivalent
in effect to the reservation of Bill is the passage of such a Bill
with the inclusion of a suspending clause providing that it
shall not take effect until approved by the Crown : such a
Bill can be assented to, though sometimes a suspensory
clause is coupled with reservation.
The reservation of Bills in accordance with law is prescribed
in certain cases of constitutional change in the Common-
wealth and States of Australia, and the Union of South
Africa. Reservation under royal instructions, though possible
everywhere, is not prescribed in the case of the Federations
and New Zealand as regards any class of Acts, special in-
structions being sent instead, or the ministers tendering
advice in favour of reservation. In the case of the Australian
States there are certain standing instructions for reservation,
which include all Bills for divorce, for grants to the Governor,
affecting currency, contrary to treaty obligations, Bills of
an extraordinary nature affecting the prerogative or the
rights of persons being British subjects not residing in the
State, or the trade and shipping of the Empire, and Bills to
which assent has previously been refused. But reservation
is not necessary in these cases if the permission of the
Secretary of State to assent has been obtained in advance, or
there is a suspending clause or the matter is urgent, and the
Bill is not repugnant to the law of England, nor contrary to
treaty. In the case of Newfoundland, the list of 1876 adds
differential duties, and the control of the Imperial Forces in
SUBORDINATION OF PARLIAMENTS 145
the Colony. In the case of the Union the special instruc-
tion is given to reserve any Bill which on the ground of race
or colour alone excludes from the franchise in the Cape of
Good Hope any person who under the law of that province
as it existed in 1910 was or might become eligible as a voter
for the Cape Parliament. The procedure by suspending
clause is required in some Imperial Acts, e.g. as regards
merchant shipping and Admiralty jurisdiction.
When the reserved Act is not assented to, or the Act con-
taining a suspending clause is not brought into force by
the signification of the royal assent, the Bill becomes null
and void. The same result can be produced with regard to
any Act whioh is passed by the disallowance of the Act by
Order in Council within a period normally of two years,
one in the case of the Commonwealth and the Union, the
date being reckoned either from the time of the Governor's
.assent or from the date of receipt by the Secretary of State
for the Colonies, which may be somewhat later, though the
distinction, of importance in the old days of slow communi-
cation, is now of no real consequence. This form of dis-
approval is the worst possible : the Act having taken effect
there is no possible justification for upsetting it except in
the grave case of necessity, and if that necessity arises it
should be possible to secure the alteration which may be
required by the sending of a proper representation to the
Dominion Government, and not by the use of disallow-
ance. The existence of that formal power is sometimes
suggested to be desirable on the ground that it enables the
Imperial Government, in effect though not expressly, to put
pressure on a Dominion Government to amend a peccant
Act, since, if no amendment is made, it can be disallowed,
but the existence of this power at the present day is in all pro-
bability rather a disadvantage than otherwise, and, though
it is true that the power to disallow has perhaps resulted in
amendments of legislation being made, it is certain that
actual disallowance of laws when passed may be regarded as
now obsolete in the case of responsible governments.
The question remains whether or not the power to instruct
1874 K
146 IMPERIAL UNITY AND THE DOMINIONS
the Governor either in special cases or generally by royal
instructions to reserve Bills of certain classes if they do not
contain suspending clauses is one which should longer be
retained with the advance of responsible government. It
is important to point out that the suggestion made that
a Ministry may compel assent by resignation is not
one which need be taken too seriously. The resignation
of a Ministry on such an issue as the reservation of a Bill
because it was deemed to affect Imperial interests might be
inconvenient for the Governor, but he is always at liberty to
take leave of absence with the consent of the Imperial Govern-
ment, in which case he is relieved from trouble, and the
officer administering the Government, now normally the
Chief Justice, would not be likely to feel unduly oppressed
by the difficulties of the situation. It is perfectly clear that
no Dominion Parliament would allow the Ministry to remain
unfilled on the theory that the Imperial Government had
wrongfully insisted on the reservation of a Bill, and if, as
a matter of fact, the Parliament preferred that no Govern-
ment should exist rather than permit of the reservation,
then it would hardly be a matter of much concern to the
Imperial Government what happened in the matter of ad-
ministration. The position is clearly that the Dominion
enjoys full internal control subject to the occasional inter-
ference for Imperial reasons of the Imperial Government.
A Ministry accepts office, subject to the constitution, which
expressly provides for the part played by the Governor in
legislation, and also, it may be added, for the giving of in-
structions to him regarding the reservation of proposed laws.
Therefore, if a Ministry secure the passing of legislation by
the Houses, they fulfil their duty when they ask for the
royal assent, and if this is not at once accorded, then they
have no constitutional right to resign office, and, it may be
added, there is no constitutional obligation on the Governor
to accept their resignation. There is no greater fallacy than
to imagine that there is any right on the part of a public
servant to resign his post when he desires : the service of
the Crown is the paramount duty, and the Ministry can only
SUBORDINATION OF PARLIAMENTS 147
retire if their resignations are accepted. Constitutionally,
a Governor can only accept the resignations when their
action is constitutional, that is when he has refused to act
on their advice, not on the ground of imperial instructions,
but on the ground of his belief that he can obtain other
ministers to support his refusal. It must be admitted that
much of the confusion of thought on this subject is simply
due to the fact of the practice of Governors to refuse advice
on the ground that the Ministry do not represent the views
of the country or Parliament : if it had not been for this
practice the confusion of mind which asserts the right of
ministers to resign when the Governor acts on Imperial
instructions would not be possible.
The argument adduced in support of this theory, when it
is challenged, is that ministers must have complete responsi-
bility for everything affecting the Dominion, or they cannot
be expected to serve as ministers. This amounts simply to
the doctrine that a Dominion must not be a dependency at all,
that is that the whole constitution of the Empire must be
changed, and the Dominions become separate and inde-
pendent States, an idea perfectly open to discussion on its
own merits, but wholly incompatible with responsible govern-
ment in a dependency. The theory that the Imperial Govern-
ment must yield is based on the error that the Imperial
Government is responsible for the internal government of
a responsible government Dominion, which is not the case.
It is conceivable — there is no recorded instance — that in
some cases a responsible government Ministry might resign
over a question of reservation, and the Imperial Govern-
ment might give in on the ground that the matter was not
worth a dispute, a fact which would show that they had
acted foolishly in allowing or ordering reservation. But
in serious cases, as in that of the dispute with the United
States Government over Newfoundland in 1906, the Imperial
Government remained obdurate and refused to allow the
Foreign Vessels Fishing Act, lOOG/to take effect, heedless of
the probability of the resignation of the Government, and
1 Parl. Pap., Cd. 3262.
K 2
148 IMPERIAL UNITY AND THE DOMINIONS
the imjx)ssibility of a new Ministry being constituted : and,
indeed, they went so far as to override an Act of 1905,
which had taken effect, by an Order in Council under the
old Imperial Act of 1819 passed to secure the carrying out
of the Treaty of 1818 with the United States.1 Had the
Ministry resigned, they would simply have left the Colony to
arrange for the conduct of its internal government as it saw
fit : for that they had no responsibility, but they had a
responsibility to prevent war with a great and friendly
power.
It may, of course, be further argued that the result of such
a position would be the secession of the Dominion from the
Empire on the one hand, or on the other the failure of the
Imperial Government to give effect to its aim in preventing
the operation of the legislation in question. The latter
danger may be ignored : the Imperial Government in any
case cannot act executively in a Dominion territory proper :
it must leave the matter to be regulated by law and by
the Courts : if it forbids the operation of the law as in the
Newfoundland case, then the Courts will give effect to its
action, and the executive government cannot override the
courts. In the special case of Newfoundland where action
at sea was possible, the British Navy could have secured the
freedom of American vessels from illegal interference by
Newfoundland executive officers, but it is fair to say that
no such interference was dreamt of. On the other hand,
if it is really the will of the people of a Dominion to sever
themselves from the Imperial control and to set up as an
independent power, it is impossible to believe that the
Imperial Government would forbid the carrying out of this
desire, though it would doubtless take steps to secure that
the desire was a deliberate one representing the decision of
a real majority, and to safeguard the interests of those who,
having gone to settle in the Dominion on the faith of its
British character, did not desire to remain in it under a change
of regime.
Further argument is, however, needless, in view of the
1 Part. Pap., Cd. 3262.
SUBORDINATION OF PARLIAMENTS 149
absence of a single instance of such a resignation, and in the
presence of many cases where the refusal of assent has taken
place without any resignation of Ministers, some of which have
been referred to above.1 Not to take older examples, which
may be regarded as out of date, in the brief period from 1906
to 1912, the royal assent was withheld from one Bill of the
Commonwealth, one of Tasmania, one of New Zealand, one
of Newfoundland, two of Natal, and one of the Orange River
Colony, while one Act of that Colony with a suspending
clause, and one of the Transvaal were never allowed to come
into operation. Even in the case of Canada, there remain
two statutes on the statute book neither of which the Imperial
Government has allowed to have effect, the Act to amend
the Copyright Acts, passed in 1889, and the Act to provide
for the marking of deck and load lines passed in 1891, both
embodied in the Revised Statutes of 1906.
Despite, however, the theoretic defences which can be
made for the retention of the power of preventing a Dominion
Act having full operation, it is open to grave doubt whether
the power should not formally be surrendered as being an
anachronism. The presence of the power is misleading : it
results in the difficulty that the Imperial Government has
a power which it in theory can exercise, but which for one
reason or other it cannot possibly use without creating a
state of confusion which would be intolerable, as, for instance,
in the case of Indemnity Acts. Yet the fact that the Imperial
Government does not disallow imposes on it a responsibility
which it should not have to bear, and incidentally allows of
the discussion of questions affecting self-governing communi-
ties in Parliament in a manner which, while absolutely justified
by the present constitutional position, is extremely annoying
to these communities, who realize, in their own case at least,
that the discussion of questions without full understanding
is difficult and unsatisfactory in the extreme.
It may, however, be deduced from the fact that quite
recently refusal of assent has been necessary, that grave
Imperial injury would result from the non-retention of the
1 Part I, chap. iv.
150 IMPERIAL UNITY AND THE DOMINIONS
power to refuse assent. The answer to this is twofold : in
the first place, it should always be possible in a matter really
affecting Imperial interest to secure the modification of local
legislation to such extent as is necessary to meet Imperial
interests without the question of disallowance necessarily
arising at all : of this a partial instance at least may be found
in the case of the arrangements with the Union Government
regarding the immigration of British Indians, which will be
discussed below. In the second place, the Imperial Parlia-
ment can always, if it thinks fit, override a Colonial Act by
paramount legislation, and there is much to be said for the
taking of this bold course in case of absolute emergency. In
the first place, it would protect the Dominion from rash inter-
ference : there is no more valuable check on hasty action
than the need of satisfying Parliament of the necessity of
action. In the second place, the full explanations of the
case would have their effect in the Dominion, and produce
a spirit of conciliation, as was the case in 1891, when the
Imperial Government determined to legislate over the heads
of Newfoundland, if it would not come to a reasonable settle-
ment of the French treaty rights difficulty, with the result
that Newfoundland came to terms. In the third place, it
would make clear to the Empire at large the principles of
policy on which the Imperial Government had acted. It is
subject only to one disadvantage, though a grave one. It
is only too probable that the necessity of bringing the matter
before Parliament would encourage the Dominion in its
resistance on the ground that the difficulty of securing
Parliamentary legislation would deter the Government from
pressing its views. Some force must be conceded to this
argument, since it is certain that, until the sense of Imperial
duty increases, matters affecting the Dominions are apt to
be dealt with as matters of Party politics, as was shown by
the very unsatisfactory debate in 1906 over the execution
of the Natal natives, when the real constitutional position
was neglected in the desire of the Opposition to attack the
Government, and the no less great readiness of the Under
Secretary of State to meet the Opposition with counter
SUBORDINATION OF PARLIAMENTS 151
attacks. But these faults of immaturity of judgement may be
expected in due course to be overcome, nor can any one doubt
that, had it been possible in 1907 to legislate over the heads
of the Newfoundland Government, that course of action
would have been preferable on constitutional grounds to the
issue of an Order in Council under an Act passed thirteen
years before Newfoundland had even a representative
legislature.
From the theoretic grounds set out above, it seems to
follow that the Imperial Parliament might well relieve
Dominion and State Parliaments from the present restriction
affecting the territorial limitation of Dominion legislation
and might surrender the power of withholding assent to Acts
now enjoyed. From the point of view of the Dominions the
latter proposal might be subject to one objection : Ministries
there from time to time have been glad to avail themselves
of the interference of the Imperial Government as a means
of getting rid of proposals which they have no liking for,
but which they have not the courage to prevent their Parlia-
ments passing into law. There have been recent instances
of this, but it may suffice to refer to the frank admission of
Sir Charles Tupper 1 that he and the Canadian Ministry
generally were anxious to secure, and did secure, that the
Canadian Bill of 1868 reducing from £10,000 to £6,000 the
salary of the Governor-General should not receive the royal
assent, thus behind the back of Parliament upsetting the
wishes of that body : the incident is of special interest as
the reduction of the salary was the cause of the failure of
the proposal to appoint Lord Mayo to the office. The argu-
ment, however, cannot be seriously urged : it is compatible
only with a low ideal of responsibility, and may therefore
be disregarded, and it remains only by examination of
the various conditions in which the Imperial control has
been from time to time exercised to ascertain whether there
is any serious objection to the modification of the powers of
the Imperial Government, and the grant of greater freedom
to the Dominions.
1 Recollections of Sixty Years, p. 95.
152 IMPERIAL UNITY AND THE DOMINIONS
The question, of course, presents itself whether or not it
would be possible to invent a list of cases in which the
Imperial power of preventing a Bill taking effect would be
operative while in all other cases it would not be open to use
it. In effect this would amount to determining what are
Imperial and what are local topics, and such an attempt
experience indicates would never be successful. If the
separation could have been made it would probably have been
made when the Victoria Bill, which became law in an amended
form in 1855 as a schedule to an Imperial Act, was sent home
for consideration, as the plan of separation was there adopted
tentatively, and the question of adopting that proposed de-
finition or of thinking out a new one presented itself. The
effort to devise any successful plan of discrimination failed,
though Mr. Gladstone was anxious to see it carried through.
It would probably have been possible to provide some wide
clause regarding the right of the Privy Council to decide in
any case of doubt whether an Imperial interest or not was
involved, but that would have been very confusing and
complicated, and the adoption of the simpler plan of making
no distinction between classes of Acts was certainly wise.
The attempt would no doubt have overlooked the very Acts
which in later times have given most trouble, namely, the
Acts which, like the Western Australia Factories Act, 1904,
contain wholly needless discriminations against Asiatics
eo nomine, as well as against Chinese. The topics which
troubled the statesmen of that time were more obvious
questions of treaty relations, and the royal prerogative
a vague term the exact force of which was uncertain.
It is of interest as indicating a difference of outlook be-
tween the relations of a federal Government to its provinces,
and of the mother country to self-governing territories, to
contrast the attitude of the Dominion to the Canadian pro-
vinces in the exercise of their power of legislation. The
treatment of Colonial legislation has always been that it is to
be aimed at to prevent any legislation which is not to take
permanent effect being assented to at all, so as to cause
doubt and difficulty through the disallowance, and thus the
SUBORDINATION OF PARLIAMENTS 153
rules for reservation have been carefully planned and widely
used. In the case of a province, on the contrary, the reserva-
tion of Bills by the Lieutenant-Governors was never at any
time frequent and of late years has become almost, it may
be said, obsolete. The reason for this state of affairs is that
the Dominion does not object specially to interfering with
the province, and has no marked dislike to allowing the
working of an Act for a few months to show whether or
not theoretical defects are serious in practice and rouse
opposition to the measure among the people of Canada as
a whole.
CHAPTER VII
INTERNAL AFFAIRS
PRIOR to the grant of responsible government the Imperial
Government had been accustomed to scrutinize with the
most minute care the various enactments of Colonial Legis-
latures. Their supervision was based in the main on no
motive other than the legitimate desire to afford all possible
aid to young and struggling communities in their attempts
to legislate, and the skill of the United Kingdom often
enabled the Government to point out defects of a serious
character. With the grant of responsible government the
duty of supervising internal affairs passed away from the
Imperial Government, and, though it took some years for
the change to become effective, before 1875 it was well
established that folly in a law in the eyes of Downing Street
was no possible ground for taking any exception to its terms.
It must be remembered that there was temptation to inter-
vene : private individuals who deemed that their interests
were being wrongly handled by Dominion Parliaments were
very ready to appeal to the Secretary of State to prevent
gross injustice being done : nor indeed were their appeals
always in vain, as Prince Edward Island found in its efforts
to buy out the proprietors who had been established in the
island, and for whose expropriation equitable terms were
demanded by the Imperial Government. The most famous
case of interference perhaps on record was that in 1897 in
Newfoundland. The Government of Sir W. Whiteway had
found themselves in 1894 in an unhappy position : the
passing of an Act regarding elections had made the practices
normal in Newfoundland in the case of elections illegal, and
thus the Government found that its supporters were being
one by one attacked by election petitions, and found to have
been illegally elected. They, therefore, in fear of further
INTERNAL AFFAIRS 155
ills, passed in 1897 a Bill (c. 28) which was, however, reserved
by the Governor, and never assented to, since the result of
the assent would have been to condone the very serious mis-
application of public funds which was normal at Newfound-
land elections, and which certainly did not deserve to be
encouraged.1 But, on the other hand, the earnest attempt of
a very powerful party in Newfoundland to secure the dis-
allowance of the legislation regarding the Newfoundland
railway contract,2 though supported by strong arguments,
was completely unsuccessful, Mr. Chamberlain coming to the
definite opinion that the matter was one which wholly con-
cerned the Colony, and that accordingly there was no ground
for refusing to give full effect to the legislation which had
been passed by the Colony. He did not, however, conceal his
opinion that the handing over of all the natural sources of
wealth of the Colony to one firm, however distinguished,
was a mistake, and to a certain extent events justified his
view. The feeling against the contract was strong, and Sir
R. Bond, in deference to it, modified by another agreement
with Mr. Reid the terms of the contract, securing the
return to the Colony of the ownership of the railway, which,
however, was still to be worked by Mr. Reid, and of the
telegraph system, though only at the expense of the pay-
ment of very considerable sums of money. The case, how-
ever, is important, as it shows the impossibility of a position
which leads a strong party in a Colony to seek aid against the
elected Government by interference from Downing Street.
So decisive was this refusal, and so clear the repudiation of
any intention of the Imperial Government to intervene in the
internal affairs of a Dominion, that it is a matter of surprise
that cases of such application have not been unknown in
quite recent times ; thus, for instance, petitions for the with-
holding of assent were presented against a New South Wales
Act, dealing with the settlement of the claims arising out of
the land scandals in that State under the administration
of the Lands Department by Mr. Crick, and the land taxation
1 Part. Pap., H.C. 184, 1906, p. 4.
2 Ibid., C. 8867 and 9137.
156 IMPERIAL UNITY AND THE DOMINIONS
of the Labour Ministry in the Commonwealth in 1910. The
point of exception taken to the latter legislation was that
it struck at absentee owners, such as the land companies,
with double force, and that this change of taxation was unfair,
as these companies could not be other than absentees in the
technical sense, and that there was some force in this argu-
ment was admitted by the succeeding Liberal Government,
though it was not able to give any remedy, and by the action
of the New South Wales Labour Government in removing
the discrimination against absentees existing under the laws
of that State. But interference in such matters would
obviously be wholly absurd, and it is undesirable that it
should even be open to individuals to send petitions on such
questions as the Navigation Act of the Commonwealth to
the Imperial Government, a position which merely tends
to lead to friction.
Unfortunately, a difficulty arises in this connexion,
because of the right l of a British subject to petition the
Crown on any matter affecting his interests. In the case of
a self-governing Dominion it is clear that as the Ministry
are the responsible advisers of the Governor, who represents
the Crown, the petition should really be addressed to the
Governor, and disposed of by the Ministry who advise the
Governor what answer is to be returned. The right to
petition the Crown when acted upon places all parties in an
inconvenient position. The Crown must be advised what
action is to be taken by his Imperial Ministers, and for
this purpose they must be advised by the Dominion Govern-
ment, while the Dominion Government naturally enough
dislikes being asked for reports on such matters. In the
ordinary instance, however, it is simple to dispose of the
petition by advising His Majesty to refer the petition to
the responsible Ministry concerned through the Governor,
and this course is regularly adopted in the case of applica-
tions for the exercise of the prerogative of mercy in favour
of a condemned prisoner. But the case of a petition for
1 Whether it exists by strict law may be doubted, but the question is
not of importance. iSee 1 Will. & Mary, sess. 2, e. 2.
INTERNAL AFFAIRS 157
the disallowance of an Act of a Dominion Parliament cannot
be met in this way, since the responsibility of disallowing
rests not with the Dominion Government but with the
Imperial Government. Thus the necessity of calling for
a report from the Dominion Government is created, and
friction is certain to be engendered over a matter which is
not of Imperial importance. It is impossible to think that
it is desirable on principle to retain the present practice of
petitioning the Crown if it is deemed to be desirable, and the
only means of evading the present difficulty is the removal
of the Imperial veto, whereupon it is easy to dispose of
petitions by mere reference to the responsible ministers.
The alternative suggestion that all petitioners of the Crown
should be informed that their petitions will not be received
if they refer to matters arising in the Dominions is open to
the insuperable objection that they cut the connexion
between the Crown and the subject overseas.
On the other hand, in the case of petitions for leave to
sue the Crown there is nothing whatever to be said for the
grave anomaly by which these petitions may be addressed to
the Crown, and a fiat may be granted despite the objections
of ministers. This has happened on several occasions in
the case of the State of Western Australia, and there is no
doubt whatever that the right of so petitioning the Crown
exists in every self-governing Dominion and State, unless
it has been barred effectively by statute. To this rule the
only possible exception is in those cases where the basis of
the law of the Dominion is not English law, as in Quebec,
and the Union of South Africa. The validity of this distinc-
tion is doubtful, and rests merely on opinion, as there is no
decided case which deals with it, and it is indeed a matter
on which it would be difficult to obtain a legal decision,
except perhaps by a special reference to the Privy Council.
The point involved is whether the matter is to be treated
as one of the royal prerogative, namely the right of the
Crown to waive immunity to suit, or a matter of procedure
introduced with the English common law. But in the great
majority of cases the power need never be invoked, for while
158 IMPERIAL UNITY AND THE DOMINIONS
the remedy by petition of right is one very limited in extent,1
the Dominions and States have made much more ample and
generous provision in their statutes for proceedings against
the Crown, so that applications to the Crown and the
responsibility of Imperial ministers can seldom be of any
advantage. Moreover, the possibility of such applications
could be wholly prevented by the passing of local legislation
barring the right whether as part of the prerogative or a rule
of procedure, and it is surprising that this course has not been
adopted by Western Australia, to which the position was
made clear so long ago as at the Conference of 1897. It has
of course been argued that the Imperial Government ought
on these occasions simply to act on the advice of the local
Ministry as to the propriety of the application, but this is,
as in the case of the disallowance of Acts, impossible, since
the Ministry are responsible for the exercise of the power
of advice, and, as the matter is one of law, they are bound to
act on the same principles which guide the Ministry in the
United Kingdom in advising the grant or refusal of a fiat to
a petition of right. Moreover, in one case at least, ministers
have special responsibility if the claim is against the Imperial
Government, and not the Colonial Government : in these
instances the fiat alone is the method in which proceedings
can be taken, as the Dominion Acts deal with claims against
the Crown in its local aspect, and not with claims against the
Crown in its Imperial aspect. But this class of cases is
precisely that one in which the views of the local Govern-
ment are not constitutionally requisite for the guidance of
the Imperial Government, though they may be valuable,
and the existence of the procedure by petition of right in
these cases is both proper and not open to be barred by any
local Act, except in so far as the local Legislature might in
theory prevent the local courts from taking cognizance of
1 It does not refer at all to torts ; see Clode, Petition of Right, and
Robertson, Proceedings by and against the Croum. For New South Wales
see Act No. 27 of 1912. In the Cape up to 1881 a simple action could be
brought against any head of a government department with the consent of
the court.
INTERNAL AFFAIRS 159
such a case or acting on the fiat . Moreover, the right to grant
a fiat in this case applies to every Dominion or province.
These are comparatively trivial matters, but a good deal
of feeling long existed in the Dominions in connexion with
the question of marriage and divorce. The points at issue
were the strong feeling in the Dominions in favour of extend-
ing the grounds of divorce, and in favour of relaxing the
restriction on marriage with a deceased wife's sister. The
opposition to both proposals came in part, no doubt, from
episcopal feeling, but the real ground of objection was that
the introduction of the changes might produce confusions
of law, especially in cases of inheritance, since the English
courts could not recognize the offspring of marriages with
deceased wife's sisters as legitimate for purposes of intestate
succession to real property or titles of honour, and would
only accept as legitimate divorces those pronounced by the
courts of the domicile of the husband. In the end the
Dominions were permitted to legislate as they thought fit,
but only after the Governments had adopted in the case
of divorce the rule of domicile, save in the case of de-
serted wives,1 whose husbands had changed their domicile
without their consent. Moreover, in the long run the
influence2 of the Dominions produced first the passing of
the Act of 1906, which made valid for every purpose within
the United Kingdom a marriage with the sister of a deceased
wife which took place outside the United Kingdom between
persons domiciled in a place where such marriages were legal,
and in the second place the passing of the Act of 1907, which
made legal such marriages in the United Kingdom itself. Nor
has the influence of the divorce law of the Dominions been
without effect in the United Kingdom : certain of its features
received endorsement from the conclusions of the majority
report of the Royal Commission on the law of divorce, though
the possibility of legislation in the sense of these recommenda-
tions appears to be practically nil.
1 See Parl. Pap., C. 6006. Domicile must have existed, Brook v. Brook,
13 N.S.W.R. Div. 9 ; Whitehouse v. Whitehouse, 21 N.S.W.L.R. Div. 16.
For Western Australia see Act No. 7 of 1912. 2 Parl. Pap., Cd. 2398.
160 IMPERIAL UNITY AND THE DOMINIONS
But, while the efforts to control the Dominions in matters
of social relations are things of the past, the conception that
the Imperial Government , because it has a veto on legislation,
is responsible for other internal matters is a persistent one,
and its inconvenience was shown very convincingly in
the case of the deportation in January 1914 of certain labour
leaders from South Africa. The labour unrest of the preceding
year, which had come to a head in rioting at Johannesburg,
broke out again in January in the form of a general strike,
and as a result the Government of the Union had recourse to
martial law in several districts, called out the defence force,
which by this time had been duly constituted, thus rendering
the use of Imperial troops as in the preceding year unneces-
sary, and took every step to put down the strike. In this they
were successful without bloodshed, and so far their pro-
ceedings seem to have received general approval. They,
however, went further : on January 27 the Governor-General
received a notification from ministers that they had decided
in order to give a lesson which would be effective against
treasonable and seditious practices, and to secure the peace
of the Union, to deport forthwith ten specified persons, and
to forbid their return to the Union. They added that they
would at once ask Parliament to confirm their action. They
then proceeded forcibly to send to England from Natal the
men in question, frustrating efforts to invoke the assistance
of the courts on their behalf.1
The procedure adopted was wholly illegal : the exact
extent to which the actions of the Government in suppress-
ing a dangerous position may go under the common law of
South Africa is as doubtful as it is in England, and it is
perfectly clear that much that was done in the case at issue
might well have been perfectly legal under the maxim salus
reipublicae suprema lex. But in the particular case in ques-
tion the men were in prison powerless for evil, and their
removal from the country was flagrantly illegal : 2 the justi-
fication given by General Smuts was merely that if the
1 Parl. Pap., CM. 7213 and 7348.
8 Cf. Hound Table, 1914, pp. 567-81.
INTERNAL AFFAIRS 161
Government had not taken the step they would never have
obtained in cold blood from Parliament the right to expel
the prisoners, whose deportation then was not necessary as
a deterrent but merely as a punishment. The only possi-
bility, therefore, of legalizing the action was that of passing
a Bill of Indemnity, and that step was accordingly at once
taken by the Union Parliament in Act No. 1 of 1914, in which
provision was made for the withdrawal of martial law from
those districts in which it had been brought into operation,
to indemnify the Government, its officers, and other persons
in respect of acts advised, ordered, and done in good faith,
for the prevention and suppression of internal disorder,
and the maintenance of good order and public safety
and in the administration of martial law, and to declare
that the persons specified who had been deported from
the Union should be liable to deportation if they again
entered it.
The lawless and somewhat unwise action of the Govern*
ment in deporting men who should have been tried by law
was deeply disapproved by some of the best minds of South
Africa, such as that of Mr. Merriman, and it raised a feeling
of such indignation in the United Kingdom,1 that from
a British Dominion, on which millions of British money
and lives had been spent, ten British subjects had been
expelled without due process of law, whereas if they had
been proved to be criminals the Governor-General would
under the royal instructions have been precluded from par-
doning them on condition of their being sent to England.
It was realized that the passing of an Indemnity Act would
preclude the men receiving justice from the Courts of the
Union or the Courts of the United Kingdom, and that the
plan of bringing an action against the steamship company
who owned the steamer by which they had been brought
home, or the captain of the steamer, was an ineffective
way of proceeding to vindicate them, even if legally such an
1 See the debate in the House of Commons, Feb. 12, 1914. Most of the
organs of the press disapproved the action taken. See e. g. Morning Post,
Jan. 31, 1914.
1874 L
162 IMPERIAL UNITY AND THE DOMINIONS
action were to be successful. Two complaints were therefore
made against the Imperial Government : that the Governor-
General should have informed the Ministry that they must
not deport the men, and that the Imperial Government
should intimate that the Indemnity Bill would not be
allowed to come into operation if the men were not secured
their legal right of testing the validity of their deporta-
tion, or, as that would have been impossible, that the
Indemnity Bill should not be allowed at all to take effect.
The case was a crucial test of the doctrines of responsible
government. It was pointed out that a New Zealand In-
demnity Act in 1867 had been refused the royal assent,
because its terms were too wide and were not limited to
cover only acts done in good faith, and that a new Indemnity
Act had therefore to be enacted by the Parliament, but it
was not realized that there was all the difference in the world
between the case of an Indemnity Act in New Zealand, when
persons affected were Maoris, who were not at all likely to
have recourse to the courts of the Colony for redress for
acts done during the rebellion which had been put down,
and when the men were British subjects of a pugnacious
type, prepared to attack at once the officers of the Union
in the Law Courts, which would no doubt have given them
swift redress. The position in effect was that the Govern-
ment had placed themselves by their hasty action in a most
difficult position, from which nothing but an Indemnity Act
could extricate them, but that that Act had been forthcom-
ing with a degree of unanimity in the Parliament which
speaks more effectively for the terror raised in the Union
by the general strike than for the sense of liberty possessed
by members of the Union Parliament. But the Act was
there, the matter with which it dealt was obviously one of in-
ternal politics only, to refuse assent would be to create inex-
tricable confusion, and to discredit a government which had
certainly been faced by a grave danger, and which in the
main had met that danger without needless violence. The
preservation of internal order is clearly the main duty of
government, and it is impossible to undertake to scrutinize
INTERNAL AFFAIRS 163
too closely its methods if the local Parliament approves
them. The Imperial Government, therefore, while strictly
disclaiming any intention of expressing an opinion on the pro-
priety of the measures taken by the Government of the Union,
declined to withhold assent to the Bill. But they showed
their interest in the matter by pointing out during the
process of the passing of the Bill that as first drafted it
appeared to provide for the legislation of future action under
martial law, that this course was open to the same objections
as had been urged to s. 9 of the Natal Indemnity Act, No. 50
of 1906, and that it would appear better to restrict the Act
on the model of the Transvaal Ordinance, No. 38 of 1902, to
transactions of the past. The suggestion was accepted by
the Government of the Union, and the Act as passed and
assented to referred only to the exercise of martial law in
the past.1
While it is impossible to deny that the action of the Im-
perial Government was the only possible course to be adopted
in the best interest of South Africa, it is plain that their
attitude was rendered possible only by the fact that the
deportees were all British subjects. Had the deportees been
aliens, there would undoubtedly have arisen a question
of the gravest importance : no self-respecting foreign
Government would have acquiesced in the expulsion of its
subjects without trial, and a demand for arbitration on
the point could not have been declined. This fact would at
once have given the Imperial Government a direct Imperial
interest in the case, and while it doubtless would not have
prevented the giving of assent to the Act, that assent could
only have been given on the express understanding that the
Union Government was prepared to pay damages for the
injuries done to the men, if an arbitration decided against
them. But a further conclusion follows from this obvious
fact : as matters stand the subjects of the British Crown
have less effective protection from acts of illegality in self-
governing Dominions than in foreign countries, for in foreign
countries they have the support of the Imperial Govern-
1 Parl Pap., Cd. 7348, p. 103.
L 2
164 IMPERIAL UNITY AND THE DOMINIONS
ment, and such support cannot be effectively accorded
to them in the case of ill-treatment in the oversea
Dominions, since there is no mode by which the Imperial
Government can prefer a demand for compensation upon
a Dominion.
This fact is merely an extreme case of what is universally
true, that in many matters it is less possible for the Imperial
Government to bring effective pressure to bear upon the self-
governing Dominions than it is to bring pressure to bear
on foreign States. The latter for reasons of high policy, for
good fellowship, or other consideration, are often willing to
receive representations on the behalf of individuals, and if
not the network of arbitration treaties permits of reference
to arbitration. If a firm or individual complain of action in
a Dominion, he can only be referred to the courts which in
the event of the passing of Indemnity Acts may be powerless
to accord relief . An excellent example of this is afforded by
the famous case of the Cobalt Lake in Canada : the Govern-
ment of Ontario secured the passing of a local Act which was
alleged, rightly or wrongly, to cancel existing rights without
compensation : an appeal was made to the Federal Govern-
ment to disallow the Act, but, while the Federal Government
did not deem the Act desirable or fair, it declined to disallow
it on the ground that it was not the province of the Federal
Government to deal with provincial Acts with regard to
their intrinsic merit, but merely on grounds affecting the
Dominion in some vital way. Similarly in the Alberta and
Great Waterways Railway case, where the Legislature of
Alberta confiscated certain moneys forthe provincial revenue,
though this action was modified by other portions of the
same legislation, the Federal Government again asserted the
position that it was not its function to judge of the propriety
of measures of the provinces on grounds of morality alone.1
In either case the company or person affected by the action
of the provincial legislature could have received no compensa-
tion of any sort through the action of the Imperial Govern-
ment, which, had the transaction been done in foreign
1 Par/. Pap.. Cd. 6091, pp. 66, 67.
INTERNAL AFFAIRS 165
countries, could have claimed to intervene in their behalf. In
the latter case, curiously enough, the Judicial Committee of
the Privy Council found itself able to give relief,1 but this was
an accident pure and simple, though one not applicable to
a foreign country, and in the former case the Privy Council
had no such power, and refused leave to appeal from the
decision of the court in Ontario affirming the validity of the
act of confiscation.
The difficulty recurs in another form in the matter of the
treatment of British Indians in the self-governing Dominions.
In the case of the Union of South Africa, the contrast is
made more emphatic because part of the Union, the part
most concerned at the present day, was formerly foreign
territory and the full weight of the Imperial Government
was lent to the efforts to secure for Indians there a better
position. In point of fact, their position since annexation
has deteriorated in practice though not altogether in law,
and there is no tribunal which can be invoked to settle the
differences of opinion between the Imperial and the Dominion
Government, nor one to which India could appeal against
the action of the self-governing Dominions in treating harshly
resident Indians.2 In some cases the use of the power of
veto has prevented difficulties of this type so far arising,
but there may well be in the future further cases where the
Imperial and the Dominion Governments differ in good faith
on points which between foreign countries would be referred
to arbitration for discussion and settlement.
The proposal naturally suggests itself that the Judicial
Committee of the Privy Council should be used in these
cases as the means of adjusting differences. It would no
doubt be desirable that for this purpose the tribunal should
be strengthened by a stronger admixture of the element of
Dominion judges, and, if questions rather of statesmanship
than mere law are to be decided, it might be better to refer
the dispute by the statutory power of the Crown to a special
1 [1913] A.C. 283.
2 e. g. the dispute as to the .deportation of alleged domiciled Indians
via Lorenzo Marques ; House of Lords Debates, July 26, 1910.
166 IMPERIAL UNITY AND THE DOMINIONS
committee which might consist in part of high legal officials,
and in part of statesmen, chosen from the United Kingdom
and the Dominions. The possibilities of development of such
a body are obvious, and the nucleus of such action is present
in cases like the reference of intercolonial boundary disputes
to the consideration of the Privy Council. The sub-
stantive law to be considered by such a body would be the
general principles of international law as accepted by the
British Empire, but doubtless they would have to evolve a
good deal of law of their own, to meet the abnormal conditions
of the Empire. But it would be a real advantage to have
some recognized way of submitting questions to arbitration
in a satisfactory manner. The decisions of the arbitral body
would not be legally binding on any party, but they would,
like the decisions of an arbitral tribunal at international law,
doubtless be acted upon. To make the scheme effective it
would, no doubt, be essential to confine its scope to definite
complaints by one Dominion against another, or by the
United Kingdom against a Dominion, or vice versa, of injury
inflicted upon a British subject belonging to one part of the
Empire in some other under circumstances, which in inter-
national law would afford a cause of claim for damages.1
The institution of such a form of procedure would only be
another recognition of the obvious fact that the position of
the self-governing Dominions tends in an ever-increasing
degree to be assimilated to that of foreign states, while the
choice of tribunal would be a sign of the other essential fact,
the real unity of the Empire.
In the particular case in question, the deportation of labour
leaders from the Union, the situation in the Union changed
sufficiently later on to permit the Government to reconsider
its decision to keep the deportees permanently out of South
Africa. The suggestion that the Governor-General should
have himself intervened to prevent the action of his ministers,
or should have been instructed to intervene, cannot be re-
garded as convincing. The Governor-General was evidently
1 The restriction to such classes would be essential, as a body of this
type could not deal with policy.
INTERNAL AFFAIRS 167
deeply convinced of the necessity of the stern enforcement
of the law, as he showed in his careful statement of the situa-
tion, and probably he did not feel that the action of
ministers was in its essence such as to call for his interven-
tion, as they proposed at once to ask Parliament to
ratify their acts. The Secretary of State had certainly
neither the necessary time nor knowledge to interfere in the
matter. But there can be no more singular example of the
curious effects of the declaration of martial law than that
the Governor-General should have solemnly used his power
under royal warrant x to convene and confirm the sentences
of General Courts Martial, assembled for the trial of persons
subject to military law, to convene a General Court Martial
to try accused persons who under the martial law regulations
were declared to be subject to military law. The power
granted to Lord Gladstone by the Crown was one referring
to troops who become subject to the provisions of the Army
Act,2 and had nothing whatever to do with civilians who
might be declared by invalid and illegal regulations to be
subject to military law, nor could the Indemnity Act make
Lord Gladstone's use of his warrant in this way anything
but manifestly absurd : doubtless in the haste of the action
taken, the point of the legal propriety of the measure was not
considered with adequate care by the law advisers of the
Government. The serious point about the action of course
was that Lord Gladstone, whose power under the warrant
was, strictly speaking, a personal power, not to be exercised
on ministerial advice as a matter of course, was thus led to
make himself personally responsible for a wholly illegal trial,
which should have been carried out under martial law pure
and simple, and should not have been clothed with an
apparent legality to which it had no possible claim.
1 Part. Paper, Cd. 7348, pp. 200, 201.
2 The power was given as it might be useful in cases of troops of the
Imperial forces in the Union, and was therefore not a power of the Governor-
General as a colonial official at all.
CHAPTER VIII
THE TREATMENT OF NATIVE RACES
THERE is no more striking example of the difficulties of
the carrying out of responsible government than the con-
stantly recurring questions which have arisen as to the
right of the Imperial Government to interfere with the
actions of a Dominion in respect to its treatment of native
races. The problem has arisen from the fact that the
growth of a large white population has often seemed to render
the concession of such a form of government necessary,
while at the same time the white population has not been
able to rise to a really high view of its duty towards the
native peoples which it must control. In the case of the
Union of South Africa a still more complicated aspect has
been given to the matter by the fact that by conquest two
republics which set up the fundamental doctrine of the
inequality of the white and the black races have been
included in the Empire on terms which forbade the grant
of the franchise to the native races before the establishment
of representative government.
In Canada, indeed, and in Newfoundland, the question
of the native races presents little enough trouble : the
Boethucs of Newfoundland had disappeared before the
grant of a Legislature, and the natives of Labrador present no
problems for policy to deal with. In Canada the Imperial
Government established in its management of the Indian
tribes a record that has been worthily maintained by the
Dominion Government which takes care of all the Indians
throughout the Dominion, and secures their rights against
any serious encroachment. The Indian settlements have
been respected, and the necessary surrenders of lands from
them for occupation by white settlers have been acquired
THE TREATMENT OF NATIVE RACES 169
by agreements which have been faithfully kept, and in
which the interests of the natives are fully considered.
Indeed until quite recently the Indian Act1 did not contain
authority for the Government to take land compulsorily
from an Indian band, and the power was only given by an
Act (c. 14) of 1911 after it had been found necessary to pay
quite excessive rates to remove the Songhees Indians from
their reserve near Victoria, British Columbia. This Act
provides that in the case of a reserve within the area of an
incorporated city of not less than 8,000 inhabitants, if the
Indians will not surrender their rights the Governor-in-
Council may, on the recommendation of the Superintendent,
refer the question to a judge of the Exchequer Court, who
shall have power to decide whether the Indians should be
required to surrender the reserve and the amount of com-
pensation to be paid. The amount so awarded shall be spent
in providing the Indians with a new reserve, in compensating
any of those dispossessed for any houses or improvements,
in transferring the Indians to the new reserve, and in
establishing them there, any balance of the amount being
placed to their credit. The same Act provides a more
effective means of securing the recovery of possession of
Indian reserves from persons encroaching upon them by
means of proceedings in the Canadian courts : it also makes
the annuities payable to Indian tribes a direct charge on
the consolidated revenue fund of Canada, and it expressly
provides that, if any reserve is taken from the Indians
under the decision of a judge of the Exchequer Court, the
Indians shall not be removed until a new reserve has duly
been marked out for their use.
The only serious difficulty as regards the rights of the
Indians to their lands which is now outstanding is that in
British Columbia. The question of the precise nature of
the Indian rights in the other provinces of Canada has not
been definitely determined, but it is clear that the Indians
are not full owners of the land, but that they enjoy the use
of the land which they occupy by the benevolence of the
1 Revised Statutes, 1906, c. 81. See Part. Paper, Cd. 6091, p. 20.
170 IMPERIAL UNITY AND THE DOMINIONS
Crown,1 a fact which of course is for most purposes as good
as a fuller title. In the case of British Columbia the claim
of the Indians is that all the land of the province is theirs
by law, and that they have a right to it except in so far as
they have by proper means been induced to part with it.
They claim that by the royal proclamation of 1763 issued
by the King after the cession of Canada the native rights
in land were expressly preserved, and that at no time has
the Indian title to the lands been defeated. They point out
that in the case of Canada the procedure of extinguishing
the Indian title by agreement with the tribes has always
been faithfully followed, and that the same procedure
should have been adopted, but was not adopted, in British
Columbia. They recognize that the Government of British
Columbia has allotted certain reserves to the Indians, but
they complain that these reserves are only at the rate of
about twenty acres a head in place of from 160 to 180,
the amount considered proper in Alberta and Saskatchewan
by the Government of the Dominion, which controls the
public lands of these provinces. They say that they are
willing to treat with the Dominion Government for the
surrender of lands, but not to allow it to be assumed that
they have no right to the lands and only such a claim on
the benevolence of the Crown as the provincial government
may deem fit to allow.
The Government of British Columbia, on the other hand,
bases, it appears, their claim to be the judges of the needs
of the Indians and their denial of the Indian title on the
fact that the proclamation of 1763, which had certainly been
of importance in the direction adopted by the procedure
in Canada, had no application to the territory of British
Columbia, which was not then British territory at all and
was hardly known. They also point to the terms of the
agreement on the faith of which Canada was extended by
the inclusion of British Columbia, and which under the
British North America Act, 1867, have the force of an
Imperial Act. It is there provided that the charge of the
1 St. Catherine's Milling and Lumber Co. v. The Queen, 14 App. Cas. 46.
THE TREATMENT OF NATIVE RACES 171
Indians and the trusteeship of the lands reserved for their
use and benefit shall be assumed by the Dominion Govern-
ment, and a policy as liberal as that hitherto pursued by
the British Columbia Government shall be continued by the
Dominion Government after the Union. To carry out this
policy tracts of land of such extent as it had been the
practice of the British Columbia Government to appro-
priate for that purpose were from time to time to be con-
veyed from the local government to the Dominion Govern-
ment in trust for the use and benefit of the Indians on
application of the Dominion Government, and in case of
disagreement between the two Governments respecting the
quantity of such tracts of land to be so granted, the matter
should be referred for the decision of the Secretary of State
for the Colonies.
The result of this reference to an eventual right of the
Secretary of State for the Colonies has inevitably been
appeals to the Secretary of State to use his influence to
improve the position of the Indians. But the clause
merely provides for an appeal to him in case of disagree-
ment between the two Governments, and it is practically
impossible that such an appeal should ever arise, for the
simple reason that the policy of British Columbia before the
union in regard to grants of land was so extremely far from
generous that it is certain that the amounts of land which
it has from time to time handed over as reserves exceed the
amounts contemplated in the agreement, which seems to
have been passed on an erroneous view of the policy of
British Columbia. From the legal point of view of the
Indian claim it is clear that the agreement treats the Indians
as in the position of persons who have no claim on the
Government of British Columbia other than that of friendly
consideration, marked by the grant of reserves, and it
seems that from the beginning of colonization in British
Columbia that was the view taken to the land rights of the
Indians : they were savages, the territorial possession of
the land and the sovereignty being vested in the Crown,
and not in the natives at all, a view with which may be
172 IMPERIAL UNITY AND THE DOMINIONS
compared the attitude of the Hudson Bay Company towards
the natives in the vast lands of which possession was given
to them by the Charter of Charles II in 1673. This con-
ception of native rights is clearly very old-fashioned, but
it is difficult to deny that it was the basis of the proceedings
of the British Columbia Government before union, and the
Dominion Government, in their efforts to arrive at a friendly
settlement of the matter with the provincial government by
means of negotiation with a view to provide for the allot-
ment of further reserves for the Indians, do not seem to
have been prepared to admit that the Indian claim to the
property of the soil of the province can be upheld in point
of law. In any case, indeed, it must be plain that the
widest form of the Indian claim, that to the ownership of
the soil of the whole of the province except such parts as
have been formally parted with, is absurd : it would be at
most reasonable for them to argue that their possessions
extended to such parts of the soil as were fully occupied
by them : the mere wandering of tribes in the process of
hunting over wide areas cannot form a reasonable basis of
title, and in view of the British Columbia practice since
the existence of the Colony and its stereotyping by the
terms of union, it is difficult to see how any valid title could
be made out by the Indians.1 In Canada proper, it must
be remembered, to which the King's proclamation of 1763
applied, the position merely is that the Indians have a claim
to consideration from the Crown, and therefore, while the
procedure by means of extinguishing the Indian title pre-
vails, the procedure is based on consideration, not on
necessity. The mere passing of the Act of 1911, to which
reference was made above, is proof that the Indian title can
be defeated by Dominion — but not by provincial — legis-
lation, so that assuming even that the proclamation of
1763 can be held to have applied to British Columbia,
none the less it merely gave the Indians a claim to con-
sideration, which has been left to the Crown to deal with
as it thought fit prior to union, after which the terms
1 Cf. A. H. F. Lefroy, Canada's Federal System, pp. 711-14.
THE TREATMENT OF NATIVE RACES 173
of its action were defined by the agreement with the
Dominion.
Curiously enough, the question of the land rights of the
natives in New Zealand, as a result of the annexation of
the colony and the treaty made with the chiefs for the
annexation, has recently formed the subject of a somewhat
unexpected decision in the Supreme Court of New Zealand.
In the case of Tamihani Korokai v. The Solicitor-General,1
which came before the Court of Appeal as a special case
stated under rule 245 of the Code of Civil Procedure, the
question was raised as to the right of certain native tribes
occupying land adjoining Lake Rotorua in the North Island
to occupy exclusively certain defined portions of the lake
as fishing- grounds. On the part of the Crown it was alleged
that no such right existed, and that the lake was open to
public fishing. No agreement had been made at any time
between the Crown and the natives for the sale or cession
to the Crown of the bed of the lake or any part thereof, and
the natives claimed, therefore, customary title to the bed
which the Crown denied. In the alternative to claiming
the bed of the lake as customary native land, the natives
advanced claims of freehold based on their tenure of the
adjoining land, or at least to customary exclusive rights of
fishing and navigation. The main question in the court
was whether the mere assertion of the Solicitor-General
that the bed of the lake was Crown land, free from native
customary title, was conclusive on the count that no native
title or right of user existed, as upon this answer depended
the question what remedy the natives had for the native
customary land recognized as theirs by the treaty of
Waitangi, of 1840, as against the Crown, and in what manner
the legal right to their land, if any, could be extinguished
by the Crown.
The case made for the plaintiff expressly admitted that
the seisin of all land in New Zealand was vested in the
Crown, by virtue of the prerogative, but there was nothing
in the claim inconsistent with that seisin. The treaty
1 32 N.Z.L.R. 321.
174 IMPERIAL UNITY AND THE DOMINIONS
of Waitangi had ceded to the Crown the sovereignty of New
Zealand and the seisin of all the land in New Zealand, but
the cession was subject to the land rights enjoyed by
custom by the natives, as was expressly recognized by the
treaty which gave the Government alone the power to
acquire lands by purchase. The mere assertion by the
Solicit or- General of the right of the Crown was contrary to
the whole purpose of the treaty, which evidently contem-
plated that rights of this kind should be subject to the
courts, and to the whole machinery of the Native Land
Acts which were passed to regulate the mode of ascertaining
and modifying such rights. On the other hand the Solicitor-
General contended that the native claim was never a legal
one which could be enforced by action against the Crown :
it was merely for the Crown to say if it recognized the claim.
Any other procedure would throw into doubt all titles in
New Zealand, since it would be open to raise questions as
to whether the native claim in any individual case had been
duly disposed of. It had been laid down by the court in
New Zealand in the case of Wi Parata v. The Bishop of
Wellington1 that the validity of the title to land in New
Zealand, once granted by the Crown, could not be called into
question on the ground of the failure to extinguish the
native customary title. This decision was still valid, despite
the decision of the Privy Council in the case of Nireaha
Tamaki v. Baker.2 In that case the Privy Council did not
decide as to the question whether the native title was
available as against the Crown, but only decided that the
native title was a ground upon which an action could be
brought in the Supreme Court. They had decided that an
action could be brought, but the decision was based on the
Native Bights Act, 1865, s. 3, which had been repealed by
the Native Lands Act, 1909. The native title was analogous
to a possessory title, e.g. the title of an alien to land in
England before the Naturalization Acts, and was good
against all the world except the true owner. The New
Zealand title was therefore analogous to that in force in the
1 3 N.Z.J.R. (N.S.) A.C. 72. « [1901] A.C. 561.
United States and Canada. The principles there were that
absolute ownership of Indian land was vested in the state
subject to a possessory title in the Indians : the Government
had exclusive rights of pre-emption and could grant the
fee of land without the extinguishing of the native title,
but the native title was not available against the Govern-
ment. The two cases differed, however, in so far as the
American natives were looked on as separate political
communities, and under American law a treaty was part of
the supreme law of the land and prevailed over statute,
whereas the Treaty of Waitangi was not a treaty at all, but
a contract with certain individuals, and a treaty by English
constitutional law had in itself no legal effect, without
legislation. The legislation of New Zealand had never
made the native title legally enforceable against the Crown.
In reply the plaintiff laid stress on the fact that the mere
assertion of title by the Attorney-General was a mere
matter of pleading, which for validity must be supported
by evidence of the right of the Crown., Assuming that the
customary rights of the natives rested on the favour or
grace of the Crown, the Crown could not, in a constitutional
country, grant Crown lands or purchase native land except
by virtue of an Act of Parliament. All the judges were
unanimous in the decision of the case in favour of the plaintiff.
The Chief Justice pointed out that the only question at
issue was whether the assertion of the Crown that the land
was Crown land concluded the matter and prevented the
native land court from making any inquiries. The question
arose under the Treaty of Waitangi by which a large number
of chiefs ceded their sovereignty and in return received
a guarantee to the chiefs and tribes, and to the families and
individuals thereof, of the full exclusive and undisturbed
possession of their lands and estates, forests, fisheries and
other properties, retaining, however, an exclusive right of
pre-emption. It was agreed that every part of land had
a native owner, and the course of legislation had assumed
that lands were vested in the Crown, and that until the
Crown issued a freehold title customary titles could not be
recognized, but the Crown would give a freehold title to all,
wlu'ch proved that the land could not be taken or kept by the
Crown unless the natives ceded their rights to it. S. 73
of the Constitution Act of 1852 recognized the native title
as existing: the Act of 1862, the first Act to provide for
the ascertainment of ownership of native land, contained
a preamble reciting the Treaty of Waitangi. An Act was
passed in 1863 for the taking of lands from natives com-
mitting rebellion or guilty of insurrection, and no doubt
there had been interference by legislation with native lands,
but that was based on the right of eminent domain, and was
based on the same principle as the Irish Land Acts, and the
Scottish Crofters statutes.
The decision in the case of W i Parata had not altered
that position. It only emphasized the decision in Reg. v.
Symonds1 that the Supreme Court could take no cognizance
of treaty rights not embodied in statute, and could not deal
with native customary title. In the case of Niredha Tamaki,
the Privy Council had, however, recognized that the natives
had rights, under the New Zealand statute law, to their
customary lands. These rights were clearly recognized
in his opinion by ss. 84-89 of the Native Land Act, 1909,
which gave exclusive jurisdiction to the native Land Court
and required that court to deal with the matter in accordance
with the ancient custom and usage of the Maori people.
The Solicit or- General or the Attorney-General had no power
to declare that land was Crown land in the absence of any
statutory authority, and he must prove any plea to the
contrary. The only thing that could prevent the native
Land Court entering on an inquiry as to the customary
title was a proclamation of the Governor under statute as
provided for in s. 85 of the Native Land Act, 1909, or a pro-
hibition by the Governor under s. 100 of that Act, or proof
that the land had been ceded by the true owners or that
a Crown grant had been issued. The formal decision of the
court was therefore that the native Land Court had juris-
diction to entertain and determine a claim by natives to
1 Part. Pap., Dec. 1847, p. 64.
THE TREATMENT OF NATIVE RACES 177
ownership of land claimed by the Crown, and to determine
such a claim by an order binding the Crown unless its
power to do so were brought to an end by a proclamation
under s. 85 of the Native Land Act, 1909, or some such
similar statutory provision, or the Crown showed title to
the land. It was for the Native Land Court to decide
upon evidence whether any particular piece of land was
native customary land or not, and also whether according
to native custom Lake Rotorua did or did not belong in
ownership to the Maoris, or whether they had merely a right
to fish in the waters of the lake.
Williams J. pointed out that, even assuming that all the
land in New Zealand became vested in the Crown by virtue
of the prerogative and that the treaty was binding only
upon the honour of the Crown, it did not follow that the
Solicitor- General had any right to perform an act of sove-
reignty : any power he had must be derived from the
Governor in the right of the Crown, and the judgements
of the Privy Council in Musgrave v. Pulido 1 and Cameron
v. Kyte2 showed that even the Governor had no power to
interfere to prevent the exercise of rights given to natives
by the statute law of the Dominion. The treaty was one
with the Sovereign of the Empire, who would normally act
on the advice of his ministers in Great Britain unless the
power of deciding had been expressly delegated, and no
evidence of delegation to the Governor or action by the
Governor under such delegation had been adduced. But
in addition it was clear that the Crown by statute had
parted with the power to do what was alleged and the
right had been given by ss. 90-93 of the Act of 1909 under
which natives were entitled to have a legal estate in fee
simple, and any possession of such rights was valid against
the Crown.
Edwards J. concurred that the claim of the Attorney-
General or Solicitor-General could not be supported, and
Cooper J. also concurred. He pointed out that the Act of
1909 expressly showed the difference between native lands
1874
1 3 Knapp, 332. « 5 App. Cas. 102.
M
178 IMPERIAL UNITY AND THE DOMINIONS
and Crown lands, and that technically the legal estate in the
lands was vested in His Majesty, but subject to the right
of the natives to the possession and ownership of their
customary lands, which they had not ceded to the King.
Chapman J. concurred in the previous judgements. He
pointed out that it was doubtful whether the chiefs who
signed the Treaty of 1840 could be regarded as sovereign
chiefs, but the matter did not appear to be of essential
importance. The legislation of New Zealand had repeatedly
recognized the existence of the native rights over the land,
and had referred to the Native Land Court the investigation
of titles to native land. The lands might be Crown lands,
but they were not vacant Crown lands. To the objection
that, if this were the case, there would be no means of
reaching finality in land transactions, he pointed out that
the express power was given by s. 85 of the Act of 1909
to declare that the native title had been extinguished and
that, while it was presumed that the power would be honestly
exercised, when exercised the exercise was final. As regards
the claim of the Solicitor-General he pointed out that
whether or not the Crown had a prerogative right the right
could not be exercised by the Attorney- General : evidence
must be adduced of some deliberate and formal act in
exercise of the prerogative. It was further doubtful
whether the prerogative still existed, and whether in view
of s. 85 of the Act of 1909 there now existed any other mode
of putting a limit on the jurisdiction of the Native Land
Court than a proclamation under that section.
The importance of the decision is obvious, inasmuch as
it shows the stress laid on the fair treatment of native title
in New Zealand, where a long series of Land Acts has been
passed aimed at securing that the natives shall not part
foolishly with their lands, and that they shall retain sufficient
land to secure their reasonable subsistence. The natives
recognize in the main the fairness of their treatment, and,
though from time to time petitions are addressed to the
Crown against the native land legislation, they have of course
been powerless to effect any interference with the work
THE TREATMENT OF NATIVE RACES 179
of the Legislature, which is based on a deliberate considera-
tion of the best interests of the natives themselves. In
New Zealand as in Canada the question of the grant of land
in individual titles to natives has long been discussed, and
opinion in New Zealand tends to approve the system if
applied with due precaution.
In the case of Australia the question of the land ownership
of the aborigines has never become one of the first impor-
tance, as a result of the feeble hold of the aborigines on civili-
zation. In Tasmania the aborigines have disappeared ; in
New South Wales, Victoria, and South Australia 1 they are no
more than a feeble and dwindling remnant under the care
of a Government department, provided with doles. In
Queensland, the Northern Territory, and in Western Aus-
tralia they possess more vigour, and their stock-stealing
habits have constantly brought them into trouble with
the police. The habit of handcuffing these natives and
conveying them on long journeys in this condition has been
from time to time a source of protests by residents in the
States, and of late a real effort to prevent their lapse into
criminal habits has been made by the allotting to them of
very considerable reserves and the presentation of stock.
But all Imperial responsibility for them was abandoned by
the Imperial Government in 1897 after a period of seven
years, in which the department dealing with aborigines had
been placed under the independent control of the Governor.
The Colonial Government objected strongly to this restraint
on the power of the Government, and the Governor for his
part represented that the result of having a department shut
off from ministerial responsibility was that it was isolated
and could not effect much for the welfare of the natives,
and accordingly though in 1 894 an attempt by the Legis-
lature to amend the Constitution Act in this respect was
frustrated, in 1897 after the Colonial Conference of that
year, the Imperial veto was withdrawn and the Colonial
Government given full authority.2 There is no reason
1 Act No. 1048.
2 Part. Pap., C. 8350. Cf. Acts No. 14 of 1905 ; 42 of 1911.
M 2
180 IMPERIAL UNITY AND THE DOMINIONS
whatever to believe that the result has been disadvantageous
to the natives : the form of independent control without
the reality is never worth retaining. In the Northern
Territory of Australia, now under the care of the Common-
wealth, but formerly controlled by South Australia, recent
legislation has been passed first by the State J and later by
the Commonwealth 2 with a view to prevent as far as
possible the ill-treatment of the aborigines, whose importance
for the stock farms in the country is fully recognized. In
that territory, however, many of the tribes are wholly wild
and not under control : their numbers are really unknown,
but probably not very high, and their standard of civiliza-
tion is certainly low. In Queensland, the natives are also
protected by law, but the latest reports of the Protector of
Aborigines reveals that there also the process of gradual
extinction is going on, though the loss even economically
is very far from negligible. The cause of this decline is
partly no doubt heedless treatment on the part of the
settlers, but probably it is more an inevitable or practically
inevitable result of the contact of very inferior races with
an advanced civilization.
In all the self-governing Dominions other than the Union
of South Africa the native problem is one of no fundamental
importance save from the point of view of local duty.
In South Africa it is a question of infinite difficulty, and the
most serious problem, which the country has to face, lies
in the fact that the native race tends to grow more rapidly
than the white race, and that this tendency must be expected
to accelerate in proportion as the enforcement of the rule
of peace and the efforts made to improve the conditions
under which the natives live diminish the needlessly great
mortality which now takes place among them. Unlike the
aborigines of Australia, and even of Canada, the native of
South Africa appears to be essentially hardy, though
normally inferior in mental development. The problem is
further complicated by the presence of a large coloured
class, varying very much in admixture of blood, and of very
1 Parl. Pap., Cd. 6582, p. 33. « Parl Pap., Cd. 6091, p. 41.
mixed origin. This class is clearly distinguished from the
white class on the one hand and the native class proper on
the other, but its sympathies lie, as is natural, on the whole
with the white class to which it seeks to belong, rather
than with the native class from which it desires to rise.
The attitude is repaid by the natives by a marked dislike
in many cases, which is not shown to the white class proper.
But the two classes, coloured and native, both steadily
advance in civilization, and become economically more and
more important. The position is illustrated in an interesting
manner by the two different policies followed in the Trans-
vaal and the Cape with regard to the coloured skilled
workers : in the Cape they are accepted as members of the
trade unions, and they are encouraged to throw in their lot
with the white workers ; in the Transvaal they are excluded,
but the exclusion is the constant subject of objection.
The natives, again, are anxious to attain the rank of skilled
workers, and indefinite depression of their position is beyond
the sphere of possibility. These facts are far more serious
from the point of view of the future of the Union than the
possibility at some far distant date of a native rising.
The military organization of the Union, however, is under
the Defence Act l based on the rigid exclusion from the duty
of bearing arms of the members of the population who are
not of European descent, a fact which is of importance
when it is remembered that Maoris from New Zealand have
been used in the European War along with the other forces
of the Dominion.
The native question has been treated in different ways
in the several parts of the Union and with varying success.
The wise decision by which the franchise was given to
natives as well as white persons by the Constitution Act
of the Cape has definitely influenced the whole treatment
of the natives in that province, where it has set the ideal
of Cecil Rhodes of equal rights for every civilized man.
Though subsequent legislation in 1887 and 1892 modified
1 No. 13 of 1912, s. 7. Natives may be allowed to volunteer if the
Government so prescribes.
182 IMPERIAL UNITY AND THE DOMINIONS
the effect of the franchise, the restrictions imposed were
merely in harmony with that ideal, for they reinforced the
view that the civilization should be the test by requiring
that the property qualification necessary for a vote should
be property owned by a native personally and not as
a member of tribe, and that each voter should have a slight
tinge of education. The differential legislation of the Cape
against natives has accordingly been directed with fairness
and good sense, and the territories which are practically
purely native have been governed on lines different from
those of the rest of the province. In Natal, on the other hand,
the franchise was practically not conceded to natives at all,
for though it could be obtained on certain conditions these
were so strict that they were almost never fulfilled by the
native, and the attempt to mitigate the disadvantages of
this position by the plan of reserving to the Governor an
independent position with regard to the natives was a com-
plete fiasco. The Governor was authorized in his capacity
as supreme chief of the natives to act without regard to the
advice of ministers if he saw fit, but it was neither prac-
ticable nor reasonable to expect him so to do, and he cer-
tainly did not attempt to do otherwise than as his ministers
advised. It is clear that the executive government of
a colony cannot be divided between two sets of hands.
In the Transvaal and the Orange Free State the native
was definitely declared to be inferior to the white in Church
and State, and the Churches of these provinces deny the
native the equality conceded by the Dutch Reformed
Church in the Cape, insisting, even when the Churches were
united in one body, after Union on providing that the union
of the Churches should not confer on the Cape province native
members the rights of members in the Transvaal and the
Orange Free State. In revenge the movement of Ethiopian-
ism, the native Church of South Africa, has struck strong
roots in the two provinces, though the political danger
feared from it seems no longer to be rated so high as it was
some years ago.1 In practice the Orange Free State was
1 Cf. Parl. Pap., Cd. 2399. For the Church Act see Act No. 23 of 1911.
THE TREATMENT OF NATIVE RACES 183
more retrograde than the Transvaal, for it not merely
refused to allow a native to acquire land, but shut him out
from the practice of professions and skilled trades, an
exclusion which persists. In both countries the pass laws
by which the movements of the natives are regulated were
onerous in the extreme, and there was no effective repression
of ill treatment of natives by their masters. The advent
of British rule was of no great advantage to the natives :
it is true that there has been stricter enforcement of the
personal rights of natives to freedom from assault, the
notorious de Wet attributing much of his anger against the
British rule to his being fined for an assault on a native,
which was of course contrary to every Boer idea of pro-
priety, and certain minor alterations were made in the
way of relaxing the severity of penalties for evasions of
the pass laws,1 which still, however, remain onerous in the
extreme. Other points of complaint of differential treat-
ment are the severe penalties imposed on the illicit inter-
course of natives with white women, but not vice versa,
the differential administration of the law regarding assaults
of black on white and vice versa, the rules which forbid
natives to use sidepaths on streets, to ride inside tram
cars, to travel first-class on railway lines, and similar
other matters. Exemptions from the effect of the
numerous disabilities imposed on natives can be obtained
by specially qualified persons, but such exemptions are
not very freely granted in the Transvaal and Orange Free
State.
With the advent of Union one distinct diminution of the
status of the natives was brought about : the Union Act
not merely makes no provision for native voting in the
Union generally, though it preserves the Cape native vote
for the present, but it excludes from membership of the
Union Parliament any native or coloured man. This is
a retrograde step since the Cape Parliament was open to
native or coloured members, though it was not the practice
for them to be elected even by those constituencies where
1 Part. Pap., Cd. 714 and 904.
184 IMPERIAL UNITY AND THE DOMINIONS
the native vote was a factor of importance. Moreover it
must be admitted that even the native vote in the Cape
is less secure than it was. The vote could be taken away
by the action of Parliament, but, in deference to the strong
feeling in the Cape on this question, such a law must be
passed by not less than two-thirds of the total number of
the members of both houses at a joint sitting of the two
houses, a provision which gives a certain security for the
permanence of the vote. Moreover, in deference to the
expression of opinion on this subject in the course of the
passing of the measure through the Imperial Parliament,
it was expressly provided in the royal instructions issued
to the Governor- General that any Bill so passed by the
requisite majority must still be reserved for the signification
of the royal pleasure. But no other solution was possible :
the Transvaal and the Orange Free State would not hear
of the grant of the franchise, and indeed there has been,
especially since the inclusion of these territories in the
Empire, a steady tendency of opinion in favour of the
abolition of the Cape vote for natives : thus in the report
of the Native Affairs Commission1 of 1903-5 it was recom-
mended by a majority that in place of the vote being
allowed to natives, they should have a small and defined
representation in Parliament on the analogy of the Maori
vote in New Zealand. It is, however, very doubtful
whether, if this plan were adopted, there would be any
likelihood of the grant of the New Zealand scale of repre-
sentation, without which the New Zealand scheme would
be wholly unsatisfactory. Moreover the New Zealand
plan is effective because in effect the Maori electorates
are homogeneous in a marked degree, and in most parts
of South Africa it would be difficult to produce any
satisfactory result of elections of representatives of natives,
while if the alternative of nominee representatives were
adopted the result would be still more unsatisfactory.
Even in the case of the first Senate of the Union, in
which there were eight Senators nominated by the Govern-
1 Part. Pap., Cd. 2399.
THE TREATMENT OF NATIVE RACES 185
ment, half of whom should be chosen for their special
knowledge of native problems, one of the Senators was
given the appointment because he represented Natal, and
was unable to secure election to the Lower House, his
knowledge of native affairs being by no means extensive or
valuable.
As practically everywhere in South Africa also, the native
question centres in the question of land. The Orange Free
State in the period of its separate existence as a colony
commenced to deal with the question in one of its aspects,
the unrestricted squatting of natives of lands, which had
been condemned on excellent grounds by the South African
Native Affairs Commission. But the Act for this purpose
(No. 42 of 1908) did not receive the royal assent, without
which it could not take effect as it contained, in accordance
with the instructions to the Governor, a suspending clause.
The Secretary of State for the Colonies considered 1 that the
matter should stand over for general action in the Union,
the question being one which arose everywhere where there
was a settled white population. The Union Parliament in
1913 passed an Act No. 27 to deal with this problem on
the basis of segregation of the two races to a defined extent,
too close contact being deemed disadvantageous for both.
Under this Act a commission has been appointed to report
what areas in the Union should be set apart as areas within
which land may not be acquired by purchase or hire by
natives, and what areas should be similarly set apart as
areas in which interests may not be acquired by persons
other than natives. Pending the report of the commission,
no person save a native may without the special consent
of the Governor- General acquire any interest in land within
the native areas which are scheduled in full detail in the
Act. Conversely, save with the same permission, outside the
scheduled area no European can acquire interests in land
from a native, nor a native from a European. The harsh-
ness of these provisions is, however, modified by the fact
that existing contracts are not interfered with, and may be
1 Parl Pap., H.C. 160, 1912, p. 3.
186 IMPERIAL UNITY AND THE DOMINIONS
renewed except in the case of the Orange Free State, that
any number of labour tenants may reside on a Transvaal
farm, if they give not less than ninety days' work and do
not pay any rent, and that in the Transvaal and Natal no
native resident on a farm may be removed under the Act
if he or the head of his family is duly registered under the
Native Affairs Department of the Transvaal for taxation
or other purposes. In the Orange Free State the position
of squatters is assimilated to that of master and servants,
as was at one time the case.
The principle of the Act caused much heartburning among
the natives of the Union, and it was decided to petition
the Imperial Government for assistance in securing more
favourable terms. The burden of the representations made
by the natives was that the principle of separation could
not be carried further than it was already carried, that the
effect of the law would be to deprive natives who had been
saving money in order to acquire land of the legitimate
result of their labours, that the aim of the law was to compel
service by taking away the means of independence, and
that the result of compulsory service at reduced wages and
high rents would not be separation, but an intermingling
of both races of the most injurious character. In reply the
Government laid stress on the fact that in due course it
was proposed gradually to improve the existing system
by expropriating European owners in native areas, by
settling such areas on a definite system, by encouraging
the acquisition of holdings in such areas by natives, and by
permitting through native councils the local administration
of affairs in native areas. It was also pointed out that
the decision to separate interests was deliberate, but that the
utmost care had been taken to avoid unnecessary hardship
to individuals. What is more important, however, is the
fact that strong exception was taken to the proposal to
appeal on the measure to the Imperial Government : it was
pointed out to the petitioners that the matter was one
which essentially concerned the Government of the Union,
and that, therefore, it must be settled in South Africa, and
THE TREATMENT OF NATIVE RACES 187
the somewhat undiplomatic warning was given that any
other course of action would tend to prejudice the good
and liberal administration of native affairs in the Union.
The warning presumably was merely meant by General
Botha to imply that the generosity of the Union might not
be proof against annoyance caused by an appeal to the
Imperial Government, as it cannot be supposed that the
administration of native affairs would be allowed to be
conducted badly, but in any case it failed of its effect.
The Imperial Government, however, very naturally refused
to intervene.1
While, however, the Imperial Government is clearly
divested of any right to interfere in native policy in the
Union, and while the right of veto on Union legislation
in this regard is merely an inconvenient anomaly, the
Imperial Government is still responsible for the adminis-
tration of the colony of Basutoland and the protectorates
of Swaziland and Bechuanaland. By a somewhat illogical
procedure an attempt has been made in the schedule to the
Act of Union to prescribe the form of government which
is to be enjoyed by these territories when they are handed
over to the Government of the Union. The scheme of
government proposed is an ingenious one, based on the view
that the constant change of ministers of native affairs is
a grave drawback to the proper management of such affairs,
that continuity in such management is essential and that
it will best be produced by the giving of the control of the
territories to the Prime Minister of the Union, who shall
be advised by a council of non-political advisers of stand-
ing and ability : while the final control is reserved to the
Prime Minister, acting through the Governor- General in
Council, it is contemplated that the advisory council will
normally have the right to have laid before the Parlia-
ment records of the points on which they disagreed with
the Prime Minister. Provision is also made for free trade
and freedom of intercourse between the territories if taken
over and the rest of the Union, for the prevention of the
1 Parl Pap., Cd. 7508.
188 IMPERIAL UNITY AND THE DOMINIONS
sale of intoxicants, and the preservation of native land
rights.
The scheme is ingenious and the plan of handing over
territories on conditions of administration agreed upon has
a parallel in the case of the handing over in 1896 of British
Bechuanaland to the Cape Government.1 But it is cer-
tainly open to grave doubt whether the transfer of the
territories to the Union would in any way make for the
benefit of the natives or of the Union. Basutoland has
been preserved as a native reserve, in which the Basutos
prosper and very slowly advance in civilization, and Bechu-
analand is inhabited in large measure by feeble tribes who
are preserved merely by the lack of contact with a rougher
civilization. If the present regime is to continue, the
Union would reap no special benefit from taking over the
administration, while, if it is not to continue, the territories
would certainly from the native point of view be the losers.
The case of Swaziland is different : the folly of the rulers of
the land has so divided it up amongst white and native that
its merger in the Union is only a matter of time.
Should, however, it be decided to abandon Imperial control
over the territories, on the mere ground that the Imperial
Government has no interest in retaining that control in face
of the strong desire of the Union to take it over, despite the
fears of the natives, it seems to be unwise to attempt to lay
down for the Union any method of governing the territories.
It cannot be too clearly realized that a government should
be entrusted with full power or not entrusted with any
power at all, since it will prove in practice quite impossible
to maintain the restrictions which it is desired to impose.
The elaborate provisions of the schedule will not be upheld
if the Union Government dislike them, and, that being so,
it seems that it would have been wiser to leave them alone.
It is indeed open to argue that the constitution there laid
down is a good one, which will be necessarily tried by the
Union, and may be adhered to, but, on the other hand,
must be set the fact that any constitutional form imposed
1 Parl. Pap., C. 7962.
THE TREATMENT OF NATIVE RACES 189
from above is necessarily unpopular and suspect, and that
in any case the circumstances when the actual transfer is
made are very likely to render the schedule valueless. But
the fundamental error lies in seeking to surrender control to
responsible government, and yet to make conditions of the
exercise of that control.
CHAPTER IX
COLOURED IMMIGRATION
No problem of the present day presents more serious
difficulties than the question of the immigration of coloured
races into the self-governing Dominions. The cause of the
difficulty lies in the fundamentally different aspects from
which the people of the United Kingdom and of the
Dominions must view the question, and the resulting in-
ability to make full allowance for the attitude of the other
party to the controversy. The inhabitant of the United
Kingdom sees the oriental immigrant in the form of students
seeking knowledge of law, or medicine, or business, and of
European culture : he hardly ever comes across any re-
presentatives of the lower classes, unless it be an occasional
lascar seaman : the inhabitant of a Dominion rarely comes
in contact with an Indian of superior education or rank,
and sees either the Indian of the pedlar and petty trader
species or the agriculturist, who has been introduced under
indenture, or is descended from such an immigrant . Moreover,
it must be admitted that a certain lack of culture and good
breeding on the part of the average inhabitant of a Dominion
renders him incapable of appreciating the fact that oriental
civilization, however different from that of Europe, is not
therefore inferior eo facto, and that it is ludicrous to classify,
as mentally he often does, every kind of man of colour as
a coolie. Unfortunately the existence of this ignorance
and prejudice on the part of the people of the Dominions
diminishes the possibility of their learning to know better
the people of the East, since it is not to be expected that men
of high rank, princes, who in Europe will be treated with
distinction at every court, will visit countries where they will
certainly, if they obtain entrance at all, find hardly any one
who understands their true position.
COLOURED IMMIGRATION 191
At the same time it is fair to remember that this attitude
of contempt in the case of Australia and New Zealand covers
a considerable amount of uneasiness, especially in connexion
with the development of the Empire of Japan, which mani-
fested itself in the almost ludicrous affection of the greeting
shown in both Dominions to the fleet of the United States on
its famous voyage of intimidation to Japan. The fear of
China, which was so marked a feature of the end of the second
last decade of the nineteenth century, has in the twentieth
developed into a much more rational fear of Japanese expan-
sion, a fear which has spread to Western Canada, though
hardly yet in the East, and to the Pacific coast of the United
States. This fear has doubtless encouraged the feeling of
objection to the entry even of coloured British subjects,
and has intensified the devotion to the ideal of white
Australia. Nor is it in the slightest degree remarkable that
this ideal should be held with increasing vigour as time goes
on, for the fact is patent that nothing but the rigorous
exclusion policy which is now followed would have any effect
in preserving Australia for the European race . Nor is it , again ,
possible to deny that the exclusion is based on racial grounds,
pure and simple. It is, of course, common to assert that the
objection to oriental labour is that it is cheap, and that it
brings down the wages of European workers, and lowers
their standard of living, or that it defies the laws of sanita-
tion, and spreads disease. But both these things apply to
many of the lower-class foreign emigrants like the Lithuanians
and Galicians, who have for many years been welcomed into
their land by Canadians, despite the aberrations of the
Dukhobors, whom an ordinary judgement would put
down as very undesirable aliens,1 and there has been no
determination to exclude these nations wholesale on the
ground of nationality alone. Nor is it obvious from any
standpoint of morality that it is fair to blame a worker if he
demands less wages when his subsistence, owing to his tem-
perate habits and his abstention from beef and beer, costs
1 Cf. Parl. Pap., Cd. 7507, pp. 56, 57 ; Mitchell, Western Canada before
the War, pp. 11, 12, 133 sq.
192 IMPERIAL UNITY AND THE DOMINIONS
him far less than his European rival . But these considerations
do not invalidate the view that as it is clear that Indian and
Japanese workers would speedily oust British workers on
an equal field of competition in such climates as those of
Australia, and as they are dangerous competitors even in
Canada, the European workers are entitled, in obedience to
the law of self-preservation, and the desire to perpetuate
the type, to secure that they shall be left in free occupation
of the territory they have. This fact, of course, means that
Australia and New Zealand must hold firmly to the Imperial
connexion, since otherwise they could have not the slightest
chance of remaining in possession of land which they have
not the men to keep, and which they cannot hope adequately
to people for many years to come, especially as the birth-rate
in both countries is regrettably low for newly settled
lands.
The difficulty has of course been enhanced in recent years
by the growing national consciousness of India, and by the
power of India to express her feeling through the elective
members on her legislatures. The position is at once ren-
dered more easy and more difficult for the Imperial Govern-
ment. It has, on the one hand, the consciousness that it is
supported not merely by vague theories but by local public
opinion, while on the other it suffers in India the grave charge
of being unwilling to remedy the unfair treatment meted
out to British Indians in the self-governing Dominions.
There is no more cogent reason than this for pressing for
the representation of India at the next Imperial Conference :
it is desirable on every ground that the statesmen of the
Dominions should learn direct from those who can express
for India the feelings of India on this point. Nor, indeed,
would it be a bad lesson for Dominion statesmen to meet as
equals in a great assembly of the Empire the representatives
of a race whom they are accustomed to regard as undesirable
immigrants.
The difficulty of oriental immigration seemed to be disposed
of for a time by the adoption, on the suggestion of Mr. Cham-
berlain and with the concurrence of the Government of
COLOURED IMMIGRATION 193
India and of the Government of Japan,1 of the device of
exclusion of oriental migration by means of a language test .
Thus the Acts of New South Wales, South Australia, Tas-
mania, and New Zealand, which were passed in 1896 but not
allowed to come into operation, were superseded after the
Colonial Conference of 1897,2 when Mr. Chamberlain enforced
the principle of adopting the Natal Act as a model, by legis-
lation which left the exclusion to be carried out by the
device of a language test, and the Cape of Good Hope
adopted this principle also in 1903. Nor has the principle
been without value : for some years it certainly sufficed
well enough for the purpose it sought to attain, but there
are abundant signs that it is falling into disrepute, and that
the exclusion is being felt bitterly by those against whom
it was directed.
The case of Canada has presented recently special features
of its own, thanks to the desire of the Dominion to take
advantage of the terms of the treaty with Japan. The
acceptance of this measure necessitated the free entry of
Japanese into Canada, and the accidental circumstance of
events in Hawaii, which encouraged an exodus of Japanese
thence, produced a serious crisis in the Dominion, culminating
in riots in British Columbia in 1907.3 This episode brought
the question of oriental immigration to a head, and it was
decided, after a careful investigation of the whole question
by the Dominion Government, to seek an understanding with
Japan, which was happily brought about, with the aid of the
British representative at Tokio, by Mr. Lemieux and Sir
Joseph Pope. The result of this arrangement was to secure
the entry to Canada of every Japanese immigrant who came
with a passport in proper form from the Japanese Government,
while that Government gave a pledge that the total number
of passports issued to persons going to settle in Canada
for the first time should be confined to a definite number
a year — the figure being unofficially put at 400 annually.
The arrangement has worked satisfactorily, and has been
1 See Commonwealth Part. Pap., No. 41 of 1901.
2 Part. Pap., C. 8596. 3 Par/. Pap., Cd. 4118.
1874
X
194 IMPERIAL UNITY AND THE DOMINIONS
continued in force under the new position created by the
termination of the old treaty with Japan and the substitu-
tion of the Treaty of April 3, 1911, which was accepted1 by
Canada on May 1, 1913, with the express addition that the
acceptance of the treaty should not affect the operation of
the Canadian Immigration Act. The settlement is so far
satisfactory to both countries : Japan has no desire to see
carried out an unlimited emigration to the Dominion, while,
on the other hand, it is not prepared to find its subjects
denied entrance into any country if that country is to be in
close commercial relations with the Empire. In the case
of Australia the disadvantages of exposure to the higher
Japanese tariff have to be accepted as a penalty for refusing
a similar arrangement, and this fact is, as reported by the
Trade Commissioner of New South Wales in the Far East,
a grave disadvantage to trade. Even this limitation is not
satisfactory to all Canadians : the Legislature of British
Columbia has repeatedly attempted to exclude, either directly
or by the passing of a language test, the entry of all Japanese
whatever, but these efforts have both been unsuccessful,
for the Dominion Government has disallowed the Acts, and
the Supreme Court of British Columbia pronounced invalid
the Immigration Act of 1908, based on the language test,
on the ground that it ran counter to the Dominion Act (c. 50
of 1907) bringing into force the treaty with Japan, and cen-
sured the action of the Provincial Legislature as being a breach
of federal obligation.2 The Federal Government have also
successfully intervened to prevent the enactment by the
Legislature of measures vetoing the employment of Japanese
and other orientals on public works and similar enterprises,
but they have allowed to remain in operation legislation de-
priving Japanese and other orientals of the vote, and this
legislation has been pronounced valid by the Supreme Court
of British Columbia and the Judicial Committee of the Privy
Council.
The position of the British Indian is rendered the more
1 For the modus vivendi of 1911-13 see Cd. 5734.
1 In re Nalcane and Okazake, 13 B.C. 370.
COLOURED IMMIGRATION 195
difficult in comparison with that of the Japanese, because
of the impossibility of the adoption by the Indian Govern-
ment of any system of restraint of emigration to Canada on
the same lines as that adopted by the Government of Japan.
The result has been that, especially since the economic set-back
in Western Canada, which has been marked in the last two
years, the Canadian Government has been determined to pre-
vent the entry of any British Indians at all into the Dominion
on its western side. This plan has been carried out by the
adoption of rules which in effect but not in form discriminate
against Indians and other orientals. In the first place a rule
was made that no person could be allowed to enter Canada
who did not come in by a continuous journey from the place
of origin whence he migrated, and on a through ticket pur-
chased in advance : that rule evidently rendered it impos-
sible for any one to enter Canada from India in the absence of
any direct passenger steamship connexion. Further, it was
laid down that immigrants of Asiatic race must possess in
their own right not less than two hundred dollars apiece,
but from this rule were excepted natives of countries as to
which special arrangements were in force, like Japan, or as
to whom special statutory provision was made, such as
Chinese, who are admitted on a payment of five hundred
dollars a head as an immigration fee, intended, but not alto-
gether successfully, to prevent Chinese immigration. Finally,
to settle the matter definitely, it was ordered that no immi-
grant of the artisan or skilled or unskilled labourer class
should be admitted to British Columbia for periods defined
in the orders, but in effect continuous.1 The ground for the
passing of these orders was expressly specified as the lack of
employment in British Columbia, and there is abundant
evidence to prove that there was such unemployment and that
the immigration of any kind of workers — there was no racial
discrimination of any kind in the orders — was to be depre-
cated. Even the earlier order regarding the possession of
two hundred dollars by an Asiatic immigrant was only a more
1 See for the causes leading to these orders the debate in the Canadian
House of Commons, March 2, 1914.
N 2
196 IMPERIAL UNITY AND THE DOMINIONS
severe form of a rule applied to all immigrants, and was
based upon the undoubted fact that an Asiatic immigrant,
often unable to speak English, required more money in his
possession than a British immigrant. Further, the money
was not required to be deposited or paid to the Canadian
Government : the emigrant had only to prove that he had
the sum.
The result of the prohibition was the famous voyage of
the Komagata Mam from Hong Kong with a miscellaneous
body of Indians collected, many of them no doubt under
false pretences, but others collected with revolutionary intent.
The Indians in Canada were under the influence of the revolu-
tionary section of the Indians in the United States, and in the
minds of these revolutionaries was concerted the device of
the voyage of the vessel, with the idea either of compelling
the Canadian Government to permit their entry, or in the
alternative of intensifying indignation in India. The vessel
duly arrived, the law courts were invoked, but of course, in
view of the clear requirements of the law, in vain, in favour of
the Indians, save a few who, being domiciled in Canada, were
allowed entry, and after an effort to defy the law, the Canadian
Government, which, it should be recorded, behaved with
dignity and restraint, reprovisioned the vessel, and sent it
away on its return voyage. The subsequent history of the
revolutionary members of its passengers is well known,
and Canada could not help feeling that her wisdom in re-
pressing the entry of Indians was amply justified by the
event. The same feeling was intensified by a series of
murders of anti-revolutionaries by the revolutionary section,
and in particular the brutal murder in open court of
Mr. Hopkinson, who, on behalf of the Dominion and Indian
Governments, had been engaged in the attempt to protect
the peaceful Indians from the revolutionary section of the
populace.
On the other hand it is to be admitted that the settlers in
British Columbia had some real ground of grievance.1 Apart
from the general question of the entry of Indians, which must
1 Round Table, 1914, pp. 330-4.
COLOURED IMMIGRATION 197
be decided by the fundamental principle that a community
in the interest of its own preservation must protect its in-
dividuality, there was the fact that these immigrants, many
of them Sikhs, soldiers of the Crown, had entered Canada in
good faith without let or hindrance, had made good in the
country, and desired that they should be rejoined by their
wives and children. The difficulty felt on this head after the
adoption by the Government of Sir Wilfrid Laurier of the
policy of restriction after the riots in British Columbia led to
the sending of a delegation to the Minister of the Interior in
the new Ministry of Mr. Borden, and feeling was made more
bitter by the assertion that Mr. Rogers then promised the
deputation to relax the restrictions, and afterwards failed
to keep his promise. It is clear from the express denial of
any such promise ever having been made, which Mr. Rogers
issued, that there was misunderstanding, and it is probable
enough that the allegation of bad faith which was spread
widely over India was a deliberate invention of the revolu-
tionary section of the Indian population. In point of fact
the Government saw their way in a couple of individual cases
to relax the rigour of the law against the entry of the wives of
the immigrants, but the whole question had not been settled
by the time of the outbreak of the war, when the gallantry
of the Indian soldiers produced a feeling in the country
that there must be some effort made to relax the stringency
of the rules without endangering in any substantial way the
racial purity of the country.
Apart from the question of entry, and the attempts, mainly
unsuccessful, of British Columbia to hamper the operations
of Indian and Japanese settlers, the Dominion has been
free from any substantial amount of differential legislation.
Some annoyance was caused both in India and in Japan in
1912 by the enactment in the province of Saskatchewan of
an Act l which provided that no person should employ in any
capacity any white woman or girl, or permit any white
woman or girl to reside or lodge in, or to work in, or, save as
customer in a public apartment, to frequent any restaurant,
i Parl. Pap., Cd. 6863, p. 37 (c. 17 of 1912).
198 IMPERIAL UNITY AND THE DOMINIONS
laundry, or other place of business or amusement owned,
kept, or managed by any Japanese, Chinaman, or other
oriental person. The strictness of this law was such that the
most distinguished Japanese or Indian firm could not have
employed a typist, and the form of legislation was obviously
as offensive as its intention was doubtless good. As a result,
both Japanese and Chinese restaurant-keepers had to dismiss
their white employes, a result which was naturally repre-
sented by them as being devised by their white rivals in
business as a mode of interfering with their trade. Fortu-
nately these considerations appealed to the Dominion and
Provincial Governments, and in due course the Act was
amended by one passed in 1913 to omit all reference to
Japanese and other orientals, and to restrict the operation
of the measure to Chinamen, who are throughout the Do-
minions treated as being in an inferior position to any other
oriental peoples. A similar Act of Manitoba passed in 1913
(c. 19) has not been made operative.1
The Commonwealth of Australia shuts its doors firmly
on all entry of British Indians and Japanese, though it has
done so merely by a language test, and it has very sensibly
thought out a procedure in which provision is made for
the grant of temporary permits of entry to Indian students
and persons of similarly high education. Even these
persons, however, cannot settle as of right in the Common-
wealth, nor would, in fact, permission for them to remain
there be accorded. Nor can even a domiciled oriental suc-
ceed in obtaining permission for his children, if they have
not legally acquired as residents a domicile in the Common-
wealth, to stay in the country ; the Commonwealth Govern-
ment persisted in one case in expelling the wife of a Chinese
citizen of standing and long residence whom he had married
in China and who had been allowed to enter the Common-
wealth for a period, though a strong agitation was got up
by more moderate persons in the Commonwealth against the
absurdity of insisting on her departure with her child. In
these cases there is no doubt much room to see an exaggerated
1 Parl. Pap., Ce|. 7507, p. 25.
COLOURED IMMIGRATION 199
spirit of exclusion, while on the other hand the very rigorous
provisions taken to prevent the smuggling in of Chinese
immigrants were doubtless necessary and cannot be regarded
as too drastic in view of the established examples of clever-
ness of Chinese in evading the letter of the law.1 The
position of captains of steamers with Chinese crews is, how-
ever, rendered very difficult : they have no adequate means
of preventing them deserting in many cases, and when such
desertion takes place the imposition of a fine of £100 2 for
each deserter may be unjust, though in practice the Common-
wealth Government has on several occasions remitted
penalties thus imposed if satisfied of the bona fides of the
captain. On the other hand, it is impossible not to consider
as undesirable and needless in the long run the tendency
which is showed to restrict the rights of the resident orientals
to exercise trades freely and in other ways to expose them
to disabilities. The composition of the Australian popula-
tion is a matter of the highest importance from any point of
view, but the oppression in minor ways of persons lawfully
resident is unworthy of a great people, and every now and
then the fact receives some recognition, as, for instance, by
the Parliament of Western Australia rejecting in 1910 a Bill
which was introduced for the purpose of forbidding marriages
between Europeans and orientals. The Commonwealth Old
Age Pension Act 3 excludes Asiatics, but not those born in
Australia, a very sound principle, and it does not penalize
a woman for marrying a man who is excluded from the old
age pension on that ground. The most serious feature of
the present day is the tendency of the Parliament of Queens-
land to extend beyond the sphere of immigration which is
covered by Commonwealth legislation the principle of the
exclusion of Asiatics from employment because they cannot
pass a language test. It is not a case of the mere passing
of a factory Act, or, as in the case of Western Australia,
a mines Act requiring that the employes should have
1 See Act No. 38 of 1912.
2 Or even £200, if a previous offence has occurred,
3 No. 17 of 1908.
200 IMPERIAL UNITY AND THE DOMINIONS
a knowledge of the English language : such a rule has obvious
advantages and may well be treated as of importance for
the safety of those employed in the mines. But when it is
provided in an Act regarding the manufacture of margarine1
that no person who, not being of European descent or an
aboriginal native of Australia, has not obtained in the pre-
scribed manner a certificate that he is able to read and write
from dictation not less than fifty words in the English lan-
guage shall be employed in any factory licensed under the
Act, and, when it is remembered that the language test when
applied in Australia is not a test to examine knowledge but
a courteous mode of exclusion, it is perfectly obvious that
the possibility of a few orientals being employed on work on
which an aboriginal may be employed is a singularly absurd
example of jealousy of orientals. The existence of legisla-
tion hampering Chinese in the control of their business stands
in a different position, because it is true that Chinese are
very difficult to supervise in matters like the observation
of factory Acts, and the treatment of Chinese has long been
left to the care of the Dominions.
The differences between the Imperial and the Common-
wealth Governments as to the treatment of British Indians
has been confined in essence to the question of lascars on
British ships,2 and the British Government severed its con-
nexion with the Commonwealth Government in the mail
service rather than accept the view that the giving of a mail
contract to ships which employed lascars must be forbidden,
though of course they did not contest the right of the
Commonwealth to provide by law that no contract for the
carriage of mails in which the Commonwealth was con-
cerned should be given to such ships. The effect of the
passing of the Navigation Act, 1913, of the Commonwealth
into operation, when it is brought into effect, will be to
make it practically impossible to employ lascars in the
1 Act No. 9 of 1910 ; cf. No. 18 of 1904. But contra Part, Deb., 1912,
pp. 2092-7 ; Western Australia Part. Deb., 1912, pp. 2642 sq. ; New South
Wales Parl. Deb., 1912, p. 567.
* Parl. Pap., Cd. 1639.
COLOURED IMMIGRATION 201
coasting trade, which includes any trade done between Com-
monwealth ports by oversea vessels, since the requirements
of the Commonwealth laws regarding conditions of space
are such as to be impossible of convenient application to
lascar crews. More serious, however, is the fact that the
Royal Commission of the Commonwealth on the pearl
fishery is anxious to see the participation of Japanese in
that trade brought to an end by replacing the Japanese
with Australian divers and excluding them from the waters
of Australia, a recommendation which has not so far been
acted upon.1 But by joint action of the Commonwealth
and Queensland the sugar-growing trade has been closed
to Asiatics, with compensation for vested rights.2
In the case of New Zealand, while immigration has been
prohibited in large measure by the use of the language test
in the Immigration Act, in 1913 there was a good deal of
agitation on the ground that natives in considerable numbers
had succeeded in entering the country from Fiji, despite
the protection of the Act. The same feeling had manifested
itself earlier, in 1910, when the effort of the shipping interests
succeeded in obtaining the passing of a Bill3 which provided
for penalizing vessels which carried lascars as part of their
crew, and which traded from New Zealand to Australia, by
imposing on the passenger tickets and freight charges made
in respect of passengers and goods carried by them a duty
of 25 per cent, ad valorem, unless the vessels complied with
New Zealand conditions of coastal shipping as regards the
wages and treatment of the crew. The Bill was reserved
for the signification of the royal pleasure and was not
assented to, after it had been discussed at the Imperial
Conference of 1911 on general grounds. The measure was
open to serious objections as regards its proposed operation,
from the point of view of constitutional law, but it was
more directly objectionable by its attempt to drive lascars
1 Part. Pap., Cd. 7507, p. 66.
2 Queensland Act No. 4 of 1913 ; Commonwealth Nos. 25 and 26 of 1912 ;
Cd. 6863, p. 113.
3 Parl. Pap., Cd. 5582, p. 178.
202 IMPERIAL UNITY AND THE DOMINIONS
out of the shipping trade. Had the proposal been made by
a foreign power, it is clear that the British Government would
have been entitled to protest and to retaliate, and therefore
it was not less open to objection when the persons aimed at
were British subjects and the Dominion concerned a British
Dominion. The force of the position taken up by the Im-
perial Government seems to have been recognized in the
Dominion, where the failure of the Bill to receive the royal
assent has not been taken very seriously. More objectionable
even is the suggestion in 1913 that the immigration legisla-
tion should be strengthened by legislation affecting Asiatic
eo nomine, but though promised in Parliament such legisla-
tion has not been passed, and, in view of the fact that com-
plete exclusion is effected in the Commonwealth without
discrimination eo nomine, the need for any such measure
cannot be asserted.
But the real crux of the Indian problem lies in the Union
of South Africa.1 In that case the aim of the Government
and the people cannot be racial purity nor the danger of the
introduction of natives of an inferior race, for the South
African negroes are far inferior to the British Indian in all
regards, and indeed many of the Europeans who oppose
their successes as traders so bitterly are really Jews of very
low and undesirable class, who do not know English, and
who therefore only obtain entry into the country because
Yiddish, for purposes of the Immigration Act, is classed as
a European language. In this case the only ground for the
exclusion of the British Indian must be merely that the
appalling difficulties arising from the colour question in the
Union must not needlessly be added to by the creation of
a further difficulty in the shape of a large resident British
Indian population. The position of the Imperial Govern-
ment is, however, rendered the more difficult, since before
the Boer War the ill-treatment of the British Indians formed
a subject of severe remonstrance to the Boer Government
at Pretoria, and as high an authority as Lord Lansdowne
1 The Round Table, 1914, pp. 351-64 has a good article, written from the
South African point of view.
COLOURED IMMIGRATION 203
expressed the view that the treatment of the British Indians
was the worst of the crimes of the Transvaal Republic. The
irony of fate resulted in the failure of Lord Milner, as Gover-
nor of the Transvaal after the war, to remedy even one of the
grievances which the Indians had, while the administration
of the laws with the strictness of the new regime, as con-
trasted with the laxity of the old, made the position of the
Indians a good deal less favourable than it had been before
the war. To crown all, Lord Milner actually suggested the
passing of legislation which would have made the conditions
for the Indians much worse than before, but happily Mr.
Lyttelton declined to accede to this discreditable suggestion.1
It is, indeed, impossible to resist the conclusion that either
the protests made before the war with the approval and aid
of the High Commissioner, Lord Milner, were unjustified,
or that the policy of leaving these wrongs unredressed after
the war was unjustifiable.
For the period after the war the Crown Colony adminis-
tration kept the British Indians effectively out of the country
by the use of its wide powers under the Peace Preservation
Ordinance, 1902, and one of the first acts of the responsible
Government of the Transvaal after it had been appointed
and met Parliament, was to pass an immigration Act, No. 15
of 1907, which absolutely excluded the entry into the Trans-
vaal of any Indian who was not already domiciled there.
This legislation was accompanied by an Act, No. 2 of 1907,
which compelled registration of all Indians, a rule which
was declared to be necessary to prevent evasion of the
Immigration Act, but which was bitterly resented by the
Indian community and marked the beginning of a grave
struggle between the Indians, who adopted a passive-
resistance policy, and the Government.2 Out of the neces-
sary incidents of the struggle further grievances arose :
Mohammedan prisoners confined for breaches of the law
were refused any consideration in respect of observing
1 Parl. Pap., Cd. 2239.
2 Parl. Pap., Cd. 3887. Act No. 15 of 1907 was amended and made
more severe by No. 36 of 1908.
204 IMPERIAL UNITY AND THE DOMINIONS
religious festivals, such as the Fast of Ramazan, and Hindus
were compelled to do tasks degrading them in caste. The
Transvaal Government pleaded that the miscellaneous
population of the jails prevented discrimination, but the
Indian Government pointed out that in India with a more
miscellaneous population in the prisons it was found unneces-
sary to compel prisoners to add religious degradation to
civil punishment. Moreover, one device adopted in the
summer of 1909 by the Transvaal Government, the putting
of British Indians outside the borders of the Transvaal into
Portuguese territory, whereupon the Portuguese officials
promptly deported them to India, was bitterly resented
as an improper use of a foreign government as a pawn in
the game of oppressing British subjects. The situation was
aggravated by the persistent attempts of Natal, in 1908, to
limit further the rights of Indians in that colony. Natal
has attained prosperity through the work of her Indian
immigrants, and her determined attempts to exploit these
people by forcing them out of the country when they ceased
to be under indenture cannot be regarded with anything
except dissatisfaction. The first effort was that made in
1 895, when an annual licence fee of £3 was imposed on every
Indian of whatever age or sex who was not reindentured,
and it was imposed simply for the purpose of securing the
departure of the Indians after indenture. In 1897 there
followed a policy of leaving the dealing with the renewal of
the grant of trading licences in the hands of the munici-
palities, on which the British Indians were not represented.
The parliamentary franchise was also, in 1896, taken away
from Indians on the ground that they belonged to a race
who had not the franchise in their native country. In 1905
the further proposal was made to remove the municipal
franchise totidem verbis, and to rank Indians with uncivilized
people generally, but this Bill was not assented to by the
Crown, and in 1911 a further effort to exclude the Indians
from the franchise failed. In 1908 two further efforts were
made to deal with the matter : in the first place it was
proposed that no further licences for trading purposes should
COLOURED IMMIGRATION 205
be issued to Indians after the end of the year, and in the
second, that all licences held by Indians should cease to
have effect after ten years from the end of the year : neither
Bill, however, was allowed to become law. It was also com-
plained that by excluding all Indian children from secondary
schools they were deprived of any chance of higher educa-
tion. In the Cape there was little to complain of under the
generally reasonable control of the Cape Government and
the non-differential treatment of Indians, but minor points
were made l with regard to the hardship imposed on Indians
who wished to visit India, and who were only allowed one
year of absence without forfeiting their right to return, the
practical discrimination practised in municipalities in regard
to granting trading licences, and the fees charged for cer-
tificates permitting temporary visits to other parts of the
Union.2 In the case of the Orange Free State, the complete
exclusion3 of Indians was resented, but that fact prevented
any other grievances, such as the forbidding to hold land
or trade, being of much consequence.4 The land question
was of importance in the Transvaal. All ownership was
prohibited by a law of the South African Republic, bitterly
protested against by the British Government, but deliber-
ately acquiesced in by both Liberal and Conservative
Ministries, and it was possible to compel Indians to live
for sanitary reasons in locations, but they were pronounced
by the Supreme Court of the Transvaal free to trade out-
side locations. Minor grievances related to the regulations
putting British Indians on a par with natives regarding the
use of trams, sidewalks, railways, &c.
The Imperial Government, strengthened by the growing
indignation of India and by the effect produced throughout
1 Parl. Pap., Cd. 6283, pp. 7, 12. The right to regulate trade licences
was conceded to the provinces by Act No. 10 of 1913, but their power to
remove any appeal against a refusal to the Supreme Court was negatived,
in order to avoid injury to Natal Indians.
2 Parl. Pap., Cd. 6283, pp. 5, 6.
3 Law No. 18 of 1899 ; Ordinance No. 25 of 1902.
4 Law Book, ch. xxxiii.
206 IMPERIAL UNITY AND THE DOMINIONS
the Empire by the disastrous differences of opinion between
the Indians and the Government, which exhibited a position
fatal to any cohesion or Imperial unity, made a determined
effort to induce the new Union Government — to which the
control of matters differentially affecting Indians passed,
under s. 147 of the South Africa Act, 1909, on the formation
of a united South Africa — to take up in a new spirit the whole
question and reach a reasonable solution. They indicated
in a dispatch of October 7, 1910,1 that the solution of the
difficulties should not be of insuperable difficulty, having
regard to the expressed wish of the leaders of the Indian
community to arrive at a settlement based on the repeal
of the Act of 1907 of the Transvaal, which discriminated
directly against Indians, and by the enactment in its place
of legislation based on the language test principle, it being
understood that, while as a rule the test would be adminis-
tered in a differential manner, nevertheless the Government
would admit a limited number of educated Indians every
year with a view to the meeting of the spiritual and other
needs of the Indian community. The Imperial Government
also expressed the hope that it would be found possible to
make South Africa a single unit for immigration purposes.
It was further urged that some steps should be taken to
meet the grievances in Natal, and satisfaction was expressed
that it had been found possible, by giving an appeal in the
case of the refusal of the renewal of existing licences, to
mitigate the complaint of unfair treatment in Natal in the
matter of the withholding of such licences. It was also
intimated that the Government of India had decided from
July 1, 191 1, not to allow further emigration under indenture
to Natal, on the ground that it appeared that the Government
of Natal was not prepared to accept the immigrants as a per-
manent element in the population, and that temporary
emigration was considered undesirable in the interest of the
emigrants themselves.
The Union Government met the proposals of the Imperial
Government in a spirit of compromise : they consented to
1 Parl. Pap., Cd. 5579.
COLOURED IMMIGRATION 207
introduce a Bill based on a language test, namely, dictation
in a European language, at the request of the immigration
officer, and expressed their willingness to admit some edu-
cated Indians every year. But they declined to allow free
migration among the different parts of the Union. There
were no Indians in the Orange Free State, and it was most
undesirable that either there or in the Transvaal it should
be possible for the large population of Natal to penetrate.
On the other hand, the Government were anxious to miti-
gate as far as practicable the objectionable parts of the
Registration Act of the Transvaal, by abandoning the
demand for the prints of all the fingers in every case, and
by asking no finger-prints at all in the case of an Indian who
could write well. As a result of this attitude, in April 1911 x
a stop was put for a time to the passive-resistance move-
ment, but in 1912 it was not found possible to carry out the
proposed legislation. Further progress to an understanding
was made in the course of a visit by Mr. Gokhale to the
Union, and at the beginning of 1913 the legislation was at
last ready for introduction into the Union Parliament, where
the Government pressed it forward after receiving most
urgent representations from the Imperial Government to
the effect that it was of Imperial importance that the legis-
lation should be passed, without further postponement,
to alter the extremely unsatisfactory position of the Indians.2
The Act was assented to on June 14, and came into effect
on August 1, but it did not effect the settlement desired.
On the contrary, not only did Mr. Gandhi take exception
to certain of its provisions, but popular feeling was much
excited by the case of one Kulsan Bibi, who was pronounced
by the Court 3 not to be eligible for entry into the Union,
though she was the wife of a person domiciled therein. The
Act — which contained provision for a stringent language
test in the form of ability to read and write any European
language, including Yiddish,4 to the satisfaction of an
1 Parl Pap., Cd. 6283, pp. 3, 4.
2 Parl. Pap., Cd. 6940. 3 Parl. Pap., Cd. 7111, pp. 39, 40.
4 Yiddish as European was introduced by the Cape Act No. 30 of 1906.
208 IMPERIAL UNITY AND THE DOMINIONS
immigration officer, or, on appeal, an immigration board,
and which also empowered the Minister to exclude any
person or class of persons considered by him, on economic
grounds or on account of standard or habits of life, unsuited
for the Union or any province — permitted the entry of the
wife and children under 16 years of age of any person who
was lawfully domiciled in any province, including the wife
and child of a lawful and monogamous marriage duly cele-
brated according to the rites of any religious faith outside
the Union. There is no doubt that this clause was intended
to permit the entry of wives of Indians who in fact were
monogamous, but it was held that in law no Indian mar-
riage could be deemed monogamous if by the religious faith
of the Indian in question he could have more than one wife
without illegality. It was felt that the Government, in
taking the case of Kulsan Bibi to the courts, was deliberately
defeating the intention of the Act, and at the same time
a grievance which had not been dealt with in the Immi-
gration Act came to a head. Mr. Gandhi had expected the
repeal of the £3 tax imposed in Natal on Indians who did
not reindenture, and he believed, as most of the Indians
in Natal believed, apparently with good reason, that a
promise of this repeal had been in effect made to Mr. Gokhale
on the occasion of his South African visit. At the instigation
of Mr. Gandhi, a passive-resistance campaign was begun
in Natal, which in October ended in serious rioting with
loss of life to the Indians. The situation was serious ; the
riots were put down very firmly, and Messrs. Gandhi, Pollak,
and Kallenbach, the leaders of the movement, put in prison ;
but the Government of the Union recognized that the situa-
tion did no credit to the Union, and that some more effective
steps were necessary. They decided accordingly to submit
the examination of the cause of the riots to the judgement
of a judicial commission, and appointed accordingly such
a commission. To some extent the purpose of the Com-
mission was foiled, as the leaders of the Indians, for reasons
which are now of secondary importance, declined to accept
the constitution of the Commission as satisfactory, and
COLOURED IMMIGRATION 209
withheld all evidence, leaving it impossible for the Commis-
sion to investigate the stories of oppression of native Indians
which had been freely spread over India. But on the subject
of Indian grievances which led to the strike, the Commission
were able to arrive at very definite results.
The Commission dispelled the erroneous impression which
had prevailed that the effect of the Act of 1913 was in any
way to weaken the position of the Indians in Natal who
after indentures settled in the country : it had been sug-
gested that these Indians might under the definition of
domicile in the new Act be liable to be regarded as not
domiciled in the Union or entitled to remain there, and
after three years to acquire the right to leave the country
and return as domiciled persons. They also laid stress on
the fact that the provisions regarding the Orange Free
State merely preserved the status quo under which the State
was closed to Indian immigration of a permanent character,
while educated Indians could be permitted to enter on the
understanding that during their stay they must not engage
in trade or farming. But they definitely recommended that
the difficulties of the marriage question should be dealt with
by legislation. In the first place, they considered that it
was necessary to permit the entry of the wife and minor
children of a union which was in fact monogamous, though
the man might have power to marry more wives than one
under the law of his religion. In the second place, they
urged that in the case of a certain limited number of old
residents of South Africa, who had more than one wife,
these wives might be allowed to leave South Africa and
travel to India and to return again so long as their husband
was resident in the country. In the third place, they
recommended that the law should be altered to provide
a means by which natives of India could be married before
a marriage officer, who might be a priest of their religion,
that marriage having the effect of a monogamous marriage.
Fourthly, they recognized the right of Indians who had
de facto but one wife to have their marriages registered ex
post facto, on the understanding that thus they had in law
o
1874
210 IMPERIAL UNITY AND THE DOMINIONS
the effect of monogamous marriages. The question of
recognizing polygamy, which was pressed upon the Com-
mission by the representatives of the Mohammedans in the
Union, was negatived on the ground that the country was
monogamous, and that it could not be expected to alter
its fundamental view of marriage, but they expressly stated
that they did not see any reason to penalize such a man if
he subsequently performed a religious marriage, while, how-
ever, such a marriage could not be allowed to have any
effect in law. They also examined in detail the complaints
which had been made that the Act in effect diminished the
rights as to migration into the Cape of Good Hope of natives
of other provinces of the Union. Prior to the passing of
the Act of 1913, it was open to any British-Indian in South
Africa to enter at pleasure the Cape, but the Act of 1913
restricted the right to those who could pass the examination
test as laid down by the Cape Act No. 30 of 1906, which
required the writing of an application in a European
language. Though it seems clear that the change of law
was a deviation from the agreement made between the
Government and Mr. Gandhi in 1911, they concluded that
the grievance was in fact negligible, as the migration to
the Cape was very small, and the examination test one
which any Indian educated in the schools of the provinces
could easily pass. They further examined large numbers
of minor representations as to the working of the Immigra-
tion Act, and suggested remedies for difficulties : the chief
of these were the advice that identification certificates given
to persons leaving the Union for temporary purpose should
be allowed three years' validity instead of one, that greater
rapidity should be introduced in dealing with applications
for permits for certificates, that greater facilities should be
given for temporary visits to other provinces, and minor
matters. They also recommended that, in order to avoid the
loss of time and money entailed on women and children
coming to South Africa only to find themselves rejected as
prohibited immigrants, officers of the Indian Government
should be empowered to examine cases in which women
COLOURED IMMIGRATION 211
and children claimed to be the wives and children of persons
domiciled in the Union, and that these persons who were
provided with certificates of their identity by such officers
should be admitted without question.
The Commission also explained at great length the ques-
tion of the £3 tax in Natal imposed under Act No. 17 of
1895 * on all indentured Indians coming to the Colony after
the date of the coming into operation of the Act, who
declined to reindenture or to leave the Colony, and under
Act No. 3 of 1903 on all their children after attaining the
age of 16 for boys and 13 for girls who did not indenture
themselves or leave the Colony. They pointed out that,
whatever the doubt might be as to the understanding of
the condition by the natives who indentured, it was well
understood by the Indian Government, and that it might
be argued that the tax was defensible in the case of the
immigrants themselves as a matter of contract. But they
declined to settle the matter on narrow grounds, and exam-
ining the arguments adduced in favour of the tax they
found that in point of fact it did not secure the reindenturing
of many of the immigrants, and that it did not induce many
to leave for India. On the other hand, it was most difficult
to collect, and it encouraged vagrancy and roused ill-feeling.
Moreover, it was wholly inequitable to apply it to children,
and it even appeared that in 1895 it was not the intention
to apply it to women at all, nor did any one doubt that it
was improper to apply it : indeed, in 1910 the Natal Govern-
ment had given power to exempt women on grounds of age
and other causes, and in 1913 the Union Government intro-
duced, but failed to carry through Parliament, a Bill to
exempt them altogether.2 On all these grounds, therefore,
the Commission decided to recommend the repeal of the
Act in toto as regards this point.
The report 3 of the Commission was happily accepted by
the Government and by the British Indians as affording
an honourable ground of a settlement, and the sobering
1 Parl. Pap., Cd. 7111, pp. 75, 76. 2 Ibid., Cd. 6940, pp. 30, 31.
8 Ibid., Cd. 7265.
O 2
212 IMPERIAL UNITY AND THE DOMINIONS
effect in the country of the outbreak of rioting in Natal
contributed to render Parliament amenable to consider the
question dispassionately. It was recognized that the activity
of the Government in suppressing the riots showed that
they were not afraid of the British-Indian population, while
their willingness to accept the findings of the Judicial Com-
mission told in favour of their moderation. Accordingly,
Act No. 22 of 19141 was therefore passed to amend the
Act of 1913 in so far as changes were necessary to secure
the aim of the Government. It provides for the appoint-
ment of priests of any Indian religion as marriage officers,
with power to solemnize the marriage of Indians in accord-
ance with the rites of that religion, such marriages to have
the usual results of other legal marriages, and due registers
of such marriages to be kept. It also provides for the
validation by registration of marriages which are de /acto
monogamous, such registration to be followed by all the
results of a monogamous marriage. It further authorizes
the introduction into the Union of the wife and children
of any domiciled person, notwithstanding that the religious
law of that person would allow him to have several wives
at one time, but subject to the condition that there is no
person within the Union to whom he is united in such
a religious marriage, and that he has no offspring in the
Union by a woman still living. It is thus rendered legal
for an Indian who does not wish to have his marriage treated
as monogamic still to bring freely into the Union and to
take out of the Union, without losing the right to bring back
there, one wife and her children. The Act also repeals
entirely the provisions regarding the licence fee of £3 in
Natal, and forbids the taking of proceedings for arrears
accumulated before the repeal. The measure was received
with lively satisfaction by the Imperial Government as ter-
minating the movement of passive resistance and promising
well for the settlement by agreement of future difficulties.
Some of these difficulties are alluded to in the report of
the Commission. Into most of them they felt that they
1 Part. Pap., Cd. 7644.
COLOURED IMMIGRATION 213
had no power to inquire, as they could not be held to have
stood in causal relation to the riots, as for example the pro-
hibition in the Transvaal of landholding by Indians, and
their exclusion from the acquisition of rights under the
Gold Law, the insertion by the Government of the Trans-
vaal in grants and leases of land in townships of clauses
forbidding transfer or leasing to Asiatics,1 the alleged want
of proper educational facilities for Asiatics, the prohibition
to carry arms, their exclusion from the inside of trams in
the Transvaal, and so forth. They did, however, examine
the question of the grievances regarding the issue and
renewal of dealers' licences in the Cape and in Natal.2 In
the former case they found that the City Council of Cape
Town in effect refused the necessary recommendation for
the grant of new licences to Indians, or the transfer of an
existing licence from one Indian to another, but allowed
annual renewals without question. In the Natal boroughs
the grant of licences to Indians was restricted in the main
to those carrying on their work in Indian quarters, while
renewals were not, as in the Cape, granted as a matter of
course, but might be refused, in which case, however, an
appeal was allowed to the Supreme Court. Outside the
townships and boroughs in Natal there was no complaint,
the matter being in the hands of a Government licensing
officer, who acted with perfect impartiality. While recog-
nizing the difficulties to be faced by the Indians in the case
of the Cape municipality and the boroughs and townships
of Natal, the Commission felt that it would not be practicable
to interfere with the municipal control of the matter.
1 See Parl. Pap., Cd. 6087, as to the position of British-Indians under
the Gold Law, and the Townships Amendment Act.
2 Parl. Pap., Cd. 7265, pp. 38, 39.
CHAPTER X
MERCHANT SHIPPING
THE rule by which the legislation of a Dominion is re-
stricted within strict territorial limits carries with it the
consequence that all legislation by a Dominion for the control
of shipping must a priori be invalid whenever a ship pro-
ceeds beyond the limits of territorial waters. It would there-
fore follow that all legislation for merchant shipping to be
effective would require to be Imperial, and in point of fact
the Imperial Legislature long controlled merchant shipping in
a very minute degree. But as early as 1854 legislation was
passed allowing Colonial Parliaments to regulate the shipping
registered in the Colonies, and in 1869 power was given to
these Parliaments to deal with the coasting trade, but subject
to certain conditions. As re-enacted in s. 735 of the Merchant
Shipping Act, 1894, the Legislature of any British possession
may by any Act confirmed by His Majesty repeal wholly or
in part any provisions of the Act (other than those in Part III
regarding emigrant ships) relating to ships registered in that
possession, but such an Act cannot take effect until the ap-
proval of His Majesty has been proclaimed in the possession.
By s. 736 the power to regulate the coasting trade is given, but
any Act must contain a suspending clause, must treat all
British ships alike, and must respect any treaty rights granted
to foreign ships before May 13, 1869, and any renewal of
these rights. The wording of neither clause is free from
obscurity, but it may be assumed that the clauses are suffi-
cient to allow the Legislature to make laws which bind the
ships concerned while on the high seas.
In the earlier days of the self-government of the Dominions
few questions arose out of merchant shipping : the Colonies
were not then in any way anxious for more rigid rules than
those enforced in the United Kingdom, though a dispute of
MERCHANT SHIPPING 215
an energetic kind developed itself with the Government of
the Dominion of Canada over the question of load lines, the
Canadian Government contesting that as regards registered
vessels the Dominion Parliament could alter the Imperial
standards of load line, and that a vessel marked in accord-
ance with the Dominion standard was entitled to enter ports
of the United Kingdom free from question, although it did
not comply with the Imperial rules, while the Imperial
Government replied that this contention ignored the fact
that specific provision 1 was made as to load lines which
clearly negatived the idea that the power to repeal applied
to these rules in such a way as to render the new rules made
by the Dominion Parliament valid in ports of the United
Kingdom : neither party would give way, and the Act 2 still
remains on the Canadian statute book, but is not in operation.
The position, however, has undergone a very considerable
change since the growth of Australia and New Zealand, and
the rise of their advanced legislation regarding the privileges
of labour. In 1903 New Zealand enacted a new shipping
code, which went in many respects beyond the Imperial Act,
and applied much of its legislation to ships other than
registered ships and the coasting trade,3 and a Royal
Commission in the Commonwealth in 1 904 4 made recom-
mendations for legislation in much the same sense. The
New Zealand Act was assented to in 1905, but with a clear
intimation that much of it might be held to be ultra vires,
and as the result of prolonged correspondence it was decided
to convene in 1907 in London a Navigation Conference, at
which the Imperial Government and the Governments of
Australia and New Zealand were represented and there were
present representatives of the shipping interests of the three
countries.5 The result of the prolonged discussions which
ensued was to lay down the rule that the vessels to which
Australian and New Zealand conditions should be applied
1 57 and 58 Viet. c. 60, s. 444.
2 C. 40 of 1891. Cf. Part. Pap., C. 6239.
3 Parl Pap., Cd. 2483. * Ibid., Cd. 3023.
5 Ibid., Cd. 3567.
216 IMPERIAL UNITY AND THE DOMINIONS
were vessels which were registered in these Dominions while
trading therein, and all vessels while engaged in the coasting
trade, including vessels from oversea which took up passen-
gers or cargo at one port of a Dominion for delivery in
another, with a saving for the case where passengers or cargo
were landed at one port to be taken to their destination by
another steamer.
The result of this Conference in the case of New Zealand
was the passing in 1909 of a Bill 1 which was reserved for the
signification of the royal pleasure and assented to in 1911,
under which the operation of the earlier Act was limited to
such vessels as were deemed to be within the power of the
Legislature in the terms of the agreement of 1907. The only
point of importance which arose in the discussion was that
concerning the claim of the New Zealand Parliament to regu-
late the rules of interpretation of bills of lading entered into
in England for the carriage of goods to New Zealand, and
this claim was withdrawn in 1911 by an amending Act.2
But in 1910 difficulty arose over the Bill then passed requir-
ing that seamen employed on ships trading to the Cook
Islands or to Australia should be entitled to receive the same
rate of wages as was current in New Zealand, while if this
condition were not complied with a duty of twenty-five per
cent, should be levied on the amount paid for passages or
freight from New Zealand. The Bill raised questions of
importance as regards the differentiation against Asiatics,3
and on that ground was never assented to, but it also raised
serious difficulties apart from that consideration.
In the case of the Commonwealth difficulties arose which
had not made their appearance in the case of the Dominion.
The first of these arose from the fact that the Constitution
Act of the Commonwealth dates from 1900, whereas the
Merchant Shipping Act was passed in 1894. On the strength
of this fact the Commonwealth Government put forward
the claim that the power to deal with navigation given by
i No. 36 of 1909 ; Cd. 5135, pp. 73-83.
1 No. 37 of 1911 ; Cd. 6091, pp. 84, 85; New Zealand Shipping Co. v.
Tyree, 31 N.Z.L.R. 825. » Above, Chapter IX.
MERCHANT SHIPPING 217
the Constitution was a paramount power, which enabled it
to legislate without regard to the restrictions of the Act of
1894, and even to repeal the provisions of that Act in its
application to the Commonwealth. The obvious reply to
this contention was that the Constitution merely dealt with
the distribution of powers between the States and the
Commonwealth, and that there was no possibility of attri-
buting to it the sense that it emancipated the Commonwealth
from the effect of the Imperial Act of 1894. Finally, indeed,
the Commonwealth Government acquiesced in this view :
the Bill as formally passed by the Parliament in 1912 was
reserved for the signification of the royal pleasure, and
contained the necessary suspending clause. In the second
place, the Commonwealth of Australia Constitution Act,
following the precedent of the old Act of 1885 constituting
the Federal Council of Australasia, gives to the laws of the
Commonwealth a wider effect than is possessed by the
ordinary laws of the Dominions, for it expressly provides that
the laws of the Commonwealth shall be in force on all British
ships, the King's ships of war excepted, whose first port of
clearance and whose port of destination are in the Common-
wealth . The exact meaning of this provision is far from being
clear, but it has twice been considered by the courts of
the Commonwealth, and the definite sense which seems to
belong to it is to give the laws of the Commonwealth effect
on these ships which commence in Australia a round
voyage which brings them back to Australia, after absence
from Australian waters. The obvious nature of such a
round voyage is that of a voyage from the Commonwealth
to the islands of the Pacific and New Zealand, and this was
the case in the more important of the two cases decided in
the High Court of the Commonwealth. A dispute arose
between the Merchant Service Guild of Australasia v. The
Commonwealth Steamship Owners' Association,1 OVGT the wages
and conditions of service of the master and officers of a steam-
ship, The Fiona, belonging to the Colonial Sugar Refining
Company. The ship was registered in Sydney, and was
1 16 C.L.R. 664.
218 IMPERIAL UNITY AND THE DOMINIONS
used to make voyages to Fiji and Auckland without any
regular itinerary : the essence of its business was, however,
to take stores, &c., from Sydney or Auckland to Fiji, and
to carry sugar from Fiji to Auckland, whence it returned to
Sidney either in ballast or with sugar on board. Another
vessel of the Company in question traded from Melbourne
to Ocean Island, and the points brought before the High
Court was whether there was thus in existence a dispute
which extended beyond the limits of one State, and there-
fore a matter which could be dealt with by the Common-
wealth Court of Conciliation and Arbitration. If this
question were to be answered in the affirmative, two further
questions arose : if the Court of Conciliation and Arbitration
should see fit to impose duties to be observed on board
ships outside Australian waters, could the conditions be
enforced by penalty whether by virtue of the Commonwealth
Constitution Act or otherwise, and if this question were to
be answered in the affirmative, could the Court, in default
of an amicable settlement, compulsorily prescribe terms
which were to be deemed to be inserted in agreements of
services made by the respondents with members of the
claimant's organization ?
The case was first argued before the High Court in March
1912, when the members of the Court were equally divided
in opinion. It was therefore reargued before five justices
in March 1913, when it was impossible to secure a decision,
as the Judiciary Act, passed in 1912 (No. 31), required that
the decision on a constitutional point should not be given
by less than a majority of the total number of justices of the
Court, that is four. It was therefore reargued a third time
with a definite result. For the claimants it was contended
that the case was covered by s. 5 of the Commonwealth
Constitution Act, which clearly contemplated this class of
case, and that the requisite was merely that there should be a
single voyage, while the port of destination could not be de-
termined by the mere customs clearance, but must be decided
by the intention at the outset of the voyage. Apart from s. 5,
in the interpretation of which they had the support of the
MERCHANT SHIPPING 219
Commonwealth Government, which as usual intervened in the
case because of its interest in the interpretation of the powers
of the Commonwealth Parliament, it was contended that the
power of conciliation and arbitration for the settlement of
industrial disputes extending beyond the limits of one State
given by s. 51 (xxxv) of the Constitution implied that where
necessary for its effective enforcement the Parliament had
powers of extra-territorial legislation. The respondents, on
the other hand, contended that the power in s. 5 merely
referred to cases of simple voyage from one port in Australia
to another, a contention which had been put forward by the
delegates to the Imperial Parliament from the Colonies before
federation, when they defended the clause from the doubts
of the Imperial Government, and that the power under the
Constitution, s. 51, was confined to real Australian disputes ;
there could be no industrial dispute simply because a com-
pany employed coloured seamen all over the world, and the
white seamen in Sydney and Melbourne were to claim that
coloured labour should not be employed.
The Court was divided in opinion. The Acting Chief
Justice, Sir E. Barton, adhered to the view which had been
expressed by the delegates to the Imperial Parliament on the
occasion of the passing of the Constitution Act. He held that
the clause applied merely to coasting ships, that the port of
destination was that named in the ship's entry outwards,
and her port of clearance that whence she started her voyage,
thus restricting the extension of the term in the closest sense
to the coasting trade. Still less did he hold that there could
be any industrial dispute in respect of things happening out-
side Australia. Isaacs J. dismissed the argument from the
necessary implication of s. 51 (xxxv), on the ground that
it was a confusion between the fact that when a power was
given there was necessarily given the subsidiary authority
required to make the power effective, and the failure of
a power when fully exercised to attain all the results at which
it was desired to arrive. In the former case the power to
expel aliens had been held by the Privy Council to authorize
the deportation of aliens beyond the limits of the Dominion,
220 IMPERIAL UNITY AND THE DOMINIONS
but in this case the position was that despite the full exercise
of the power the result desired was not achieved, and there
was no authority for the view that the Act could be pressed
to yield the power. On the contrary, the Act when con-
sidered carefully gave no such authority, and must be held
in the absence of a quite express ground to be subject to the
general territorial limitation of Dominion legislative power,
which followed from the distinction between a sovereign
state and a dependency. Otherwise it would be difficult to
avoid conflict of legislation. It was not sufficient to argue
that the dispute existed on Australian territory : it must
be a dispute about the carrying on of an Australian industry :
a dispute about wages to be paid in England would not fall
within the meaning of the power given by s. 51, and indeed
any other result would be absurd, for it would result that by
engaging temporarily in trade with Australia all foreign ship-
owners would become subject to Australian jurisdiction for
acts done on the high seas. But in his opinion s. 5 of the
Constitution Act did deal with ships engaged in round voyages,
and was not confined to the coasting trade, nor could the
destination be limited to the destination shown in the ship's
papers. He considered that the judgement of O'Connor J.
in Mercliant Service Guild of Australasia v. Archibald Currie
& Co. Proprietary Ltd.1 Already before the formation of
the Commonwealth the legislation of New South Wales (42
Viet. No. 19) contained references to the intercolonial and
South Sea Islands trade as being on the same footing. His
answer, therefore, to the first question was that by virtue of
the covering section 5 of the Constitution a dispute was not
less a dispute extending beyond the limits of any one State,
merely because some of the operations in respect of which
the dispute existed were performed extra-territorially. The
second question he felt inclined to answer, but as the majority
of the Court held otherwise he left it unanswered. The third
question he answered to the effect that the Court had power to
require that any of the terms and conditions which it decided
1 5 C.L.R. 737. Cf. on the whole subject Keith, Journ. Soc. Comp. Leg.,
ix. 202 sq.
MERCHANT SHIPPING 221
should be in operation should be incorporated in written
agreements. Higgins J. agreed with Isaacs J. in his answer
to question one, this being the only point on which four jus-
tices among those by whom the case was heard agreed. He
also held the same view as to the meaning of s. 5, but he did
not argue the matter at length as the majority of the Court
declined to answer question two, as to the power of the Court
to impose duties enforceable by penalty on vessels outside
Australia. He agreed with the answer to the third question
as given by Isaacs J. Gavan-Duffy and Rich JJ. held that
the Court of Conciliation and Arbitration had power to con-
trol the parties to a dispute even as regards conduct in places
beyond territorial limits. The Imperial Parliament might
assume the right to bind British subjects or even foreigners
without the territorial limits of Great Britain, and might
confer the same right on any subordinate Legislature, and
British Courts would recognize legislation to this effect.
They were inclined to think that the power to settle disputes
necessarily implied a power to prescribe terms and conditions
for labour to be performed outside the territorial limits, but
in any case the covering section 5 of the Constitution Act
enabled the Court to settle the dispute by imposing obliga-
tions with respect to duties to be performed on British ships
engaged on voyages coming within the terms of that section,
though they did not desire to express a judicial opinion on
that subject. They held that they were not at liberty to
answer the second question, and the answer to the third ques-
tion was they thought that the power in question was clearly
intra vires. The answer of the Court therefore was confined
to the first and third questions, and was to the effect that
a dispute was not less a dispute beyond the limits of any
one state, merely because some of the operations in respect
of which the dispute existed were performed beyond the
territorial limits of the Commonwealth, and that the Court-
had power to require that any of the terms and conditions,
which it lawfully determined should be in operation between
the organization and the respondents to the plaint, should
be incorporated in a written agreement between them.
222 IMPERIAL UNITY AND THE DOMINIONS
The total effect of this judgement is clearly that in the
case of round voyages the Commonwealth has power to
regulate conditions of employment of masters and seamen,
and the Commonwealth Navigation Act, No. 4 of 1913, agrees
with the judgement in including such ships in its purview.
The power thus possessed goes, it must be admitted, a good
deal further than that possessed by any other Dominion, and
the question of its compatibility with the power possessed or
claimed by the New Zealand Parliament and courts is open
to doubt. In two cases l decided in the Supreme Court of
New Zealand, the doctrine has been laid down that it lies
with the Parliament of New Zealand to control the rates of
wages and similar points in respect not only of ships regis-
tered in New Zealand and trading from New Zealand to
Australia and the Pacific, but also in the case of vessels regis-
tered in Australia though subject to the rules laid down by an
award of the Commonwealth Court of Arbitration, and com-
plying with these rules, so that these vessels while engaged
in the coasting trade of New Zealand shall be obliged to pay
the rates of wages provided for in New Zealand. The validity
of this provision would appear to be open to grave doubt,
and the converse rule that the ships registered in New Zea-
land while coasting in the Commonwealth must comply with
Australian conditions will also apply to the detriment of
New Zealand awards in industrial matters. New Zealand,
however, appears to be in a disadvantageous position in so
far that the Australian law would appear under s. 5 of the
Constitution to have validity over any ship falling under
its terms even in New Zealand waters, so that the subjecting
of such ships to New Zealand conditions is really ultra vires
the Dominion. If this is the case, however, the discrimina-
tion between the two Dominions seems unjustifiable, and
New Zealand seems clearly entitled to have conferred upon
it the same power of dealing with ships on round tours as is
assigned to the Commonwealth. It could then be allowed
to rest with the two Dominions to decide in what way
they would arrange for the enforcement of their laws : the
1 See Keith, Journ. Soc. Comp. Leg., xi. 294-9.
MERCHANT SHIPPING 223
obvious plan would be to provide that compliance with the
rules in force in New Zealand would exempt a vessel from
compliance with those in force in Australia while that vessel
was engaged in the Australian coasting trade, and vice versa.
But it would be impossible in any case to enforce such a pro-
posal as was made in the reserved Bill of New Zealand,
No. 85 of 1910, which claimed to put New Zealand rates of
wages in force on every ship which traded from New Zealand
to Australia : such a rule could have applied to all ships
whether Australian or connected with the United Kingdom,
and apart from the territorial limitation of New Zealand
legislation would have been impossible to enforce, and
obviously unworkable : if every country provided that all
ships which left its ports were to pay wages prescribed by
it the result would be chaos.
Even in the admitted case of the right to control the
coasting trade the difficulties of the position are serious
enough. In the first place, the term coasting trade is cer-
tainly ambiguous, and the obvious difficulty has already
arisen in New Zealand whether a vessel, which spends a cer-
tain amount of time on the coast of the Dominion, and to-
wards the end of that period carries some cargo gathered in
one port to another port and discharges it there, can be held
to have been engaged in the coasting trade for the whole
period of its presence in New Zealand waters, or only when
actually coasting.
In the case of The Captain and Owners, SS. Durham v.
The Collector of Customs, Wellington,1 the Supreme Court of
New Zealand had under its consideration the question of
the power of the Dominion to regulate the coasting trade.
The SS. Durham commenced her voyage in England,
where she shipped her crew at the rates of pay ruling there.
In January 1911 she arrived at Auckland, New Zealand,
from the west coast ports of England with general cargo.
Having discharged all her Auckland cargo she loaded some
cargo for the west coast ports of England which was her des-
tination. From Auckland she proceeded first to Wellington
1 31 N.Z.L.R. 565.
224 IMPERIAL UNITY AND THE DOMINIONS
and then to Lyttelton, and at each port discharged further
cargo from England. She then went on to Port Chalmers,
where she discharged a further part of her outward cargo
and loaded cargo for English ports. She next proceeded
to the Bluff, where further cargo was discharged and where,
prior to loading any cargo, instructions were received by
cable from London on February 3 varying the steamer's
destination in England to the Port of London. After
receiving these instructions, some cargo which the shippers
had intended to be sent to west coast ports was loaded on
board at the Bluff, and this, together with what had been
collected at the other ports, was carried to Wellington,
where it was unloaded into the steamship Sussex, a vessel
belonging to the same owners, destined for the west coast
ports of England.
The question arose on an application for an order against
the Declaratory Judgements Act, 1908, interpreting s. 75 of
the Shipping and Seamen Act, 1908, with a view to ascer-
taining whether the movements of the SS. Durham brought
it within the rules affecting the coasting trade and, in
particular, the requirement of the Shipping and Seamen
Act of paying coastal rates to the seamen while engaged in
the coasting trade. The plaintiffs admitted that they were
liable to pay coastal rates to the seamen with respect to the
voyage from the Bluff to Wellington, while the Collector
of Customs claimed that the vessel was engaged upon
coastwise trade for the whole time when she left Auckland
on January 20, 1911, until her return to Wellington on
February 14, 1911.
On the other hand, the Solicitor-General for the defendant
pointed out that the validity of the provisions of s. 75
depended upon s. 736 of the Imperial Merchant Shipping
Act, 1894, and argued that if the vessel once took part in
the coasting trade it fell within the provision of the New
Zealand Act. He argued that there were various possible
meanings of coastal trade, namely, firstly, that it included
every ship which went from one port of the coast to another
on a trading venture : secondly, that it included any ship
MERCHANT SHIPPING 225
which loaded cargo at one port of the coast and discharged
it at another, and thirdly, that it included only ships which
were habitually engaged in those occupations. The last
meaning was too narrow a sense, and the Legislature must
be taken to be authorized to deal with all ships which carried
cargo from one New Zealand port to another. On the other
hand, it was replied on behalf of the plaintiffs that, if the
meaning of coastal trading were as suggested, the New Zealand
Legislature would have the right to control any vessel from
overseas which landed cargo at more than one port in New
Zealand, and the power to regulate shipping referred only to
the time when ships were actually engaged in the coastal trade.
Chapman J., in deciding the case, pointed out that the
question turned on the interpretation of s. 75 of the Shipping
and Seamen Act, 1908, which had to be construed with
reference to s. 2 of that Act and s. 736 of the Merchant
Shipping Act, 1894. S. 2 of that Act, which was originally
passed in 1896, while declaring that the Act should apply
to all British ships registered at, trading with, or being at,
any port within the jurisdiction of New Zealand, and to the
owners, masters, and crews thereof, declared that the
provisions of the Act were to be so construed as not to
exceed the legislative powers conferred on the General
Assembly by the Constitution Act, a term which no doubt
included s. 736 of the Merchant Shipping Act, 1894, as that
Act modified the Constitution Act by enlarging its scope
and so extending the ambit of the expression ' peace, order,
and good government of New Zealand '. Now s. 75 of the
Shipping and Seamen Act provided that when seamen were
engaged in New Zealand, or, having been engaged abroad
were employed in New Zealand, the seamen while so em-
ployed should be paid the current rate of wages for the time
being ruling in New Zealand. In this absolute form the
sentence would be ultra vires, as it did not relate exclusively
to the coasting trade of New Zealand, but a proviso was
added : ' Provided also that this section shall not apply to
ships arriving from abroad with passengers or cargo, but not
trading in New Zealand further or otherwise than for the
1874 p
226 IMPERIAL UNITY AND THE DOMINIONS
purpose of discharging such original passengers or cargo in
New Zealand and there shipping fresh passengers or cargo
to be carried abroad.' In a sense a ship which navigated
from port to port for the purpose of discharging its cargo
or picking up cargo for the outward voyage was employing
seamen in New Zealand, but it was at least doubtful whether
such a vessel was engaged in the coasting trade. He
referred to this as doubtful because it might be that else-
where in the Empire conditions existed which rendered it
necessary to impose on all British ships the duty of taking
a tug or of carrying pilots or of doing other things which
entered into the conception of the coasting trade. But in
the case before him the matter to be settled was simply
whether or not the SS. Durham came within the benefit of
the proviso. In his opinion the question must be con-
sidered from the point of view of the time when the Collector
of Customs had to consider under s. 75 whether or not it was
his duty to detain the final clearance of the ship oh the
ground that the proper wages had not been paid. It was
admitted that at that time the vessel had been engaged in
coastwise trade, but it was argued by the plaintiffs that the
obligations and the proviso were distributive and that
a vessel carrying cargo coastwise might be at one time
within and at one time without the protection. That was
not, in his opinion, the intention of the Legislature, and it
was not the intention of the Legislature that the matter
should depend on the intention with which the cargo had
been shipped originally (namely, that it should be conveyed
from New Zealand in the SS. Durham to west coast English
ports). It would be a matter of great inconvenience if
a vessel were merely to be required to pay coasting rates
for the time when it was actually engaged in carrying coast-
wise traffic between two ports, and a vessel might thus for
short periods be within the provisions of the law and for
short periods be without it. It was, in his opinion, clearly
within the power of the Legislature to provide, as it had
provided, by making two distinct classes — those which never
fell within the coastwise trade, and those which fell within
MERCHANT SHIPPING 227
it, and, in his opinion, the SS. Durham during the whole
period between its departure from Auckland on the 20th
of January and its return to Wellington in February was
engaged in the coasting trade.
It is of particular interest to note that Chapman J.
treated the whole question of merchant shipping as being
one in which the Dominion Parliament had none except
the express powers conferred by the Merchant Shipping Act,
1894. Thus he stated that earlier Imperial Acts reserved
the whole subject of shipping legislation to the Imperial
Parliament, and he treated the Merchant Shipping Act of
1894 as if it for the first time conferred upon the Dominion
Legislature any power to deal with coasting trade, though
the Act of course dates back to 1869.
The second question of importance which arises is that
of the mode in which the effective enforcement of the law
as to the regulation of the coasting trade can be carried out.
It is clear that so far as accommodation is concerned there
is no difficulty, but the question of wages seems insuperable.
The owner is not subject to the jurisdiction of the Common-
wealth outside the coasting trade, and, if he chooses to
arrange with the seamen that in consideration of the higher
wages which they will receive while on the coast they are
to be paid less wages elsewhere, it is difficult effectively to
prevent his so doing. The difficulty is met in the Common-
wealth Act by providing that a seaman shall not be deemed
to receive the due wages if he is paid less when outside the
jurisdiction of the Commonwealth, on the ground that he
has been paid more within, but the effectiveness of such
a provision may be doubted if the payment of lower wages
takes the simple form of decrease in the normal rates for
the main part of the voyage, based on the commercial fact
that higher wages will be paid for the coasting portion of
the voyage ; and it is obvious on economic grounds that
the mere intervention of one legislature cannot affect really
the wages of the sailors for the voyage as a whole. The
main object of the Commonwealth Parliament is doubtless,
however, to discourage the use of lascars as crews of vessels
P 2
228 IMPERIAL UNITY AND THE DOMINIONS
which desire to do coasting trade, and, while in their case
the difficulty of pay might easily be overcome, the real
obstacle will be the conditions of structure which are required
from all coasting trade vessels.
The Commonwealth Act, indeed, frankly recognizes that
its validity as a whole is not free from doubt, and an amend-
ment introduced by the Government in 1912 expressly pro-
vided that the Act was to be construed in the sense which
gave it legal validity. The same sense of doubt as to its
effect is shown in the elaboration of the provisions which
are inserted to secure the fulfilment of the rule regarding
wages : a memorandum of the new rate of wages is to be
made on the agreement, and the wages must be paid before
the ship leaves its last port in Australia : moreover, if the
ship does not conform to the conditions in question, it may
be disqualified from ever again engaging in the coasting
trade, which it can only do under a licence. Further doubt
is also thrown on the powers of the Commonwealth by the
decision in the case of the Kalibia,1 in which the High Court
laid it down that the power of the Commonwealth Parlia-
ment to enact a law giving compensation to seamen was
confined to seamen engaged in inter-state or foreign trade,
and did not apply in the case of mere intra-state trade. It
is also clear that despite the constant discussions with the
Imperial Government since 1908, it has not been found
possible to eliminate all the cases of ultra vires legislation
from the measure. It was, indeed, only in 1912 that the
Commonwealth Government consented to withdraw a clause
which provided that the cancellation of an officer's certi-
ficate by a Court of Marine Inquiry in the Commonwealth
should debar an officer from serving in that capacity in
Australia, even if his certificate had been returned to him
under the statutory power conferred on the Board of Trade
by s. 474 of the Merchant Shipping Act, 1894, a provision
which, unless limited to ships within the legislative com-
petence of the Commonwealth, was clearly ultra vires. Even
then the Government could not see their way to delete
* SS. Kalibia v. Wilton, 11 C.L.R. 689.
MERCHANT SHIPPING 229
a clause which prescribed the adoption at all seasons of the
year of the winter load-line, or, in the case of sailing vessels,
the North Atlantic load-line in respect of cargoes of dead-
weight cargo other than coal, although, apart from the
impossibility of defending the Act in this regard from the
charge of ultra vires, the Board of Trade adduced arguments
to show that the proposal was one which could not be
defended on grounds of seamanship. It is a minor matter
that many other provisions are open to doubt of their legality,
such as the transfer to the Attorney-General in place of the
Governor-General of the authority to permit prosecutions
for sending unseaworthy ships to sea, and the appropriation
to the Commonwealth of the proceeds of wreck which by
an intricate course of legislation are really the property of
the Imperial Treasury, being Crown rights surrendered by the
Crown under the Civil List Act in exchange for a civil list.
In the case of Canada also there has been difficulty arising
from the doubt as to the validity of the legislation of the
Dominion regarding shipping,1 and a Bill to remedy the
doubts by expressly securing that the laws of the Dominion
regarding shipping should be applicable to all vessels regis-
tered in the Dominion or engaged in the coasting trade
was introduced by the Government but delayed by the
outbreak of war. The difficulty in the main arose from the
failure to observe the terms of the legislation regarding the
conditions on which the coasting trade and registered ship-
ping could be governed, the necessity of suspending clauses
in the Acts having been overlooked after the earliest ship-
ping legislation. In that case the confusion which formed
the subject of representation by Mr. Brodeur, Minister of
Marine, at the Imperial Conference of 1911, was due to the
carelessness of the law officers of the Dominion, but the
trouble which has arisen in this case is a proof of the com-
plication of the position. Even in Newfoundland, shipping
legislation has proved provocative of difficulty, though of
a minor kind.2
1 Parl Pap., Cd. 5745, pp. 419, 420.
2 See Parl Pap., H. C. 160, 1912, p. 3.
230 IMPERIAL UNITY AND THE DOMINIONS
A further difficulty which arises even when the powers
of the Dominions are duly exercised requires consideration.
If the Dominion have power to regulate merchant shipping
registered in these Dominions, as seems only proper, can
they insist that their rules shall hold good in the ports of
the United Kingdom, and if so, can their rules be enforced
there — and in the ports of other Dominions — by the local
courts on the authority of the Dominion Acts ? The answer
to this question is far from obvious, and it is not covered
by any judicial authority. In the case of the Canadian
load-line question above referred to, it was denied by the
Imperial Government on the ground that there was express
provision in the Merchant Shipping Act for the recognition
under certain conditions of load-lines marked by Colonial
Governments as equivalent to the British-marked load-line,
and that this provision excluded the application of the
doctrine that the Colonial Parliament could make any load-
line it thought fit valid, in respect of ships registered in the
particular colony concerned, throughout the Empire and in
the courts of the United Kingdom. The same principle was
adopted in the case of the Wireless Telegraphy Act, 1904.
By Order in Council of February 29, 1908, it was ordered,
in virtue of the power conferred by the Act to extend its
operation to British ships on the high seas, that the Act
should apply to all British ships on the high seas, provided
that a person on board a British ship registered in any
British possession should not be deemed to commit an
offence against the Act by reason of the installation or work-
ing of wireless telegraphy on such a ship, if the authority in
such possession, having power by law to do so, had granted
a licence for the installation and working of wireless tele-
graphy on the ship and the person was acting in accordance
with the terms of the licence. It is clear that this contem-
plated a state of things under which it would be open to
each Dominion to regulate the use of wireless telegraphy on
board its own ships, but left the use of wireless telegraphy
in the territorial waters of the United Kingdom to be regu-
lated in each case under the law of the United Kingdom,
MERCHANT SHIPPING 231
and the use in the territorial waters of the Dominions to be
regulated by the law of the Dominions. In practice, how-
ever, it was considered by the Dominions and the United
Kingdom unnecessary to interfere with the use of wireless
telegraphy if the ship was licensed by one party and was
using its wireless telegraphy in accordance with the licence.
There was thus a perfect state of reciprocity in the matter.
This condition is not, however, observed in the Merchant
Shipping (Convention) Act, 1914, the last important Act
bearing on the subject. That Act provides many rules
regarding the safety in navigation of British ships, regis-
tered in the United Kingdom, embodying the results of the
International Convention signed on January 20, 1914, as
a result of the lessons of the Titanic disaster. By s. 23 of
the Act, compliance with the provisions of Parts II and III
of the Act relating to the manning, construction, or equip-
ment of passenger ships, or relating to the provision of
wireless telegraphy and wireless -telegraph watchers and
operators on a ship, and representing provisions of the
Convention, shall be required in the case of a foreign ship
or a British ship not registered in the United Kingdom
which comes into and proceeds to sea from a port in the
United Kingdom in the same manner as compliance would
be required in the case of a ship registered in the United
Kingdom. A certificate of safety granted by the Govern-
ment of such a ship, if recognized by the Board of Trade
as granted in accordance with the Convention, shall have
the same effect as a safety certificate granted to a British
ship registered in the United Kingdom. Moreover, such
ships shall be entitled in the British Islands to exemption
in whole or part if they hold certificates duly granted under
the terms of the Convention and recognized by the Board
of Trade. It is of course the case that these provisions are
necessary in accordance with the terms of the Convention
in order to make it really effective, but the fact remains
that the British legislation will be effective on registered
ships throughout the Empire, and even in territorial waters,
while the Dominion legislation would not be effective in the
232 IMPERIAL UNITY AND THE DOMINIONS
waters of the British Islands to override the provisions of
the Imperial Act. From the practical point of view, as the
three great Dominions, Canada, the Commonwealth of
Australia, and New Zealand, were duly represented at the
discussion, the Convention was certain to be adopted by
the legislation of these Dominions, and so the law would
be uniform throughout the Empire ; but the theoretic dis-
tinction of the Imperial and Dominion powers remains as
an anomaly. Moreover, the Act is unhappily silent on the
question whether the rules of the Dominions can be enforced
in the courts of the United Kingdom and of the other
Dominions, and this is a matter of very considerable impor-
tance because of the provisions of the first part of the Act.
These sections impose on the master of any ship registered
in the United Kingdom the obligation to report derelicts,
to observe certain rules of careful navigation near ice, and
to render assistance on receiving a wireless call of distress ;
and it also imposes obligations on owners of a fleet of such
ships to publish notices of their Atlantic routes. Not one
of these provisions is made applicable to a self-governing
Dominion's ships, for, though by s. 24 they do apply to
the vessels registered in the possessions without self-
government, they are by that clause excluded from opera-
tion in the self-governing Dominions and also British India.
The result is that, if no legislation is passed in the Dominions
regarding ships registered therein, the owner of a British
ship who wishes to save the master of his ship the liabilities
imposed by Part I of the Act need merely register his ship
in such an oversea Dominion. But if he does so, and the
Dominion legislates, the question at once arises whether
the legislation can be enforced in any court of the United
Kingdom. The point is of some interest, for though the
offence of not complying with the provisions of the Colonial
law could be punished in the Dominion, nevertheless, as
the ship need never go near the Dominion, it might avoid
compliance with the Act in toto and yet be exempt from
penalty, unless such a penalty could be enforced in the courts
of the United Kingdom or of another Dominion. To take
MERCHANT SHIPPING 233
a concrete case, ships registered in Newfoundland might
trade only between Canada and the United Kingdom and
disregard the rules of the Atlantic navigation without
penalty. The alternative theory is to hold that as the power
to regulate the registered shipping of a Dominion must be
meant to supersede the Imperial Act which it is allowed
expressly by s. 735 of the Merchant Shipping Act to amend,
it must be assumed that it takes the place of the sections
of the Act and can be enforced in the courts of the whole
of the Empire, just as the Merchant Shipping Act itself can
be enforced. The argument may be correct, and if not, it
is clear that there is a lacuna of some importance in the
network of shipping legislation.
It does not seem that there is any ground of theory or of
practice which stands in the way of the adoption of a perfect
reciprocity between the self-governing Dominions and the
United Kingdom in the matter of shipping legislation. This
perfect reciprocity does not at present exist, because of the
rule that the United Kingdom can regulate shipping regis-
tered in a Dominion when within the waters of the United
Kingdom, while the Dominion Parliaments can do this only
if the ship registered in the United Kingdom is at the same
time engaged in the coasting trade of the Dominion. To
effect perfect reciprocity it should be provided that the
Dominion legislation regarding the shipping registered in
the Dominion shall be applicable to any registered ship in
the United Kingdom, save when such a ship is engaged
in the coasting trade, or in the alternative, it should be
provided that the Dominion Legislatures have full power
to deal with all British shipping which comes to their coasts
while on their coasts, which is the position of the Imperial
Parliament with regard to Dominion-registered shipping in
point of practice. The former proposal seems by far the
more reasonable, since to interfere with the registered ship-
ping of a country save on some serious ground, such as
competition with the local coasting trade, is contrary to
international practice, and there is no good ground for
differentiating between the relations of the United Kingdom
234 IMPERIAL UNITY AND THE DOMINIONS
and the Dominions and the relations of the United Kingdom
and foreign countries in this question.
A further reform, which is surely desirable in the consti-
tutional relationships between the United Kingdom and
the Dominions in this regard, is the abolition of the absurd
rules regarding the insertion of suspending clauses in legis-
lation regarding registered and coasting shipping : l these
clauses ought not to be necessary if the principle of the
division of powers of legislation is clearly recognized, and
there is no just ground on which the autonomy of the
Dominions in this matter should be hampered and fettered.
The proper mode of dealing with objections to the terms
of intra vires legislation is by representations from the
interested parties, supported where proper by the views of
the Board of Trade, as is done in the case of foreign shipping
legislation affecting British vessels through the Foreign
Office. It is not unnatural that the Legislature of a Dominion
should feel some surprise that legislation which is freely
passed by the United States should be questioned and held
in suspense when enacted by the Dominion. Moreover,
the United States precedent is an unhappy one, for that
country in its merchant -shipping legislation frequently con-
travenes the rules of international comity, as in the famous
Harter Act, which in its application in the Commonwealth,2
New Zealand,3 and Canada, has been much modified and
limited in operation to shipping documents entered into
in these Dominions, or in respect of the carriage of goods
from these Dominions, while the American Act pur-
ports to regulate both carriage to and carriage from the
States.
It is of course certain that with increased freedom of
legislation British shipping might be exposed to some ham-
pering rules, but it may be doubted if these would prove
1 Also as to Admiralty jurisdiction, 53 and 54 Viet. c. 27, s. 4, but ap-
proval before enactment is allowed in that case, which is far more con-
venient and is usually resorted to.
2 Act No. 14 of 1904.
8 Act No. 37 of 1911, amending Act No. 36>f,1909.
MERCHANT SHIPPING 235
very serious in practice : the difficulties imposed by American
legislation, however severe in theory, have hitherto always
been overcome. What is probably more serious is already
in progress : the cessation of Imperial legislation for Domi-
nion shipping outside the United Kingdom, which is seen
at its full development in the case of the Merchant Shipping
(Convention) Act, 1914, has led to the danger that Dominion
legislation will lag seriously behind the British legislation.
In Canada, for instance, the improvements of the 1906 Act
regarding merchant shipping have not yet been adopted,
and the law regarding accidents and collisions and salvage,
which introduced a new standard for the apportionment of
damage, remained unaltered in the Dominions long after
the passing of the necessary legislation in 1911 in the United
Kingdom. This failure to act, however, is a mistake which
in due course Dominion Legislatures will outgrow : it is
probable that part of their slowness of movement has been
due to the complications of the form of legislation. An
instance of the possible danger of this position can be seen
in the recent Imperial British Ships (Transfer Restriction)
Act, 1915,1 which provides that with effect from February 12,
1915, any transfer of a British ship or a share therein to
persons not qualified to own a British ship shall be subject
to the approval of the Board of Trade on behalf of His
Majesty, and the attempt to make a transfer without such
permission shall be a misdemeanour, apparently wherever
the attempt to transfer is made, whether within or without
the British Islands. But the Act applies only to
British ships when not registered in one of the self-governing
Dominions,2 and accordingly the position is that the passing
of legislation with regard to their registered ships is necessary
to bring about a similar prohibition, and such legislation
would apparently have to be reserved or to contain a sus-
pending clause, and cannot come into force until the pleasure
1 5 Geo. 5, c. 21.
2 For this purpose and that of the Act of 1914 the Commonwealth
includes Papua and Norfolk Island, these being territories under the Com-
monwealth Parliament, the latter since 1913, Part. Pap., Cd. 7507, p. 63.
236 IMPERIAL UNITY AND THE DOMINIONS
of the Crown is formally signified in the Dominion. This
position of affairs is not so serious as might be thought,
since probably the actual number of ships which would be
transferred to undesirable owners is small, but it remains
the fact that if legislation were to be passed it would be
a slow business.
CHAPTER XI
THE subject of copyright is of considerable interest, inas-
much as no question ever raised more heated feeling between
Canada and the United Kingdom, and in no matter did the
United Kingdom adhere more firmly to a point which con-
stitutionally it had no right to press as a matter of right.
The question is also curious as showing the remarkable
power of the publishing interest in the United Kingdom,
which was able for years to thwart the demands of Canada
urged on grounds of constitutional law which can hardly
possibly be gainsaid.
Thefons et origo mali was the Imperial Act of 1842 (5 & 6
Viet. c. 45), which, enacting the principles of the law of copy-
right, applied the principle to the colonies then existing,
and thus gave to any work which was copyright in the
United Kingdom a copyright which was automatic and
unconditional in Canada. The difficulties of the position
were soon felt ; and the Imperial Government in 1846
admitted that the colonies must be given the right of regu-
lating the terms on which reprints of works issued in the
United Kingdom should be allowed to be imported from
the United States into the colonies, the rule being laid down
that provision must be made for charging a royalty to be
paid to the author of the original work. In 1847 this was
carried out by an Imperial Act which allowed of the suspen-
sion of the prohibition in the Imperial Act of any importa-
tion of copyright works in pirated copies, where arrangements
were made that the importation of reprints should be charged
with a suitable duty. This solution of the question was,
however, temporary only, for more acute questions developed
with the coming into operation of the Berne Copyright
Convention, and the anxiety of the Imperial Government to
238 IMPERIAL UNITY AND THE DOMINIONS
secure some measure of protection for foreign copyright in
the United States of America, a country whose policy of
blackmail in copyright matters was then at its most perfect
stage. The Dominion was consulted and definitely agreed
of its own will to join the Berne Convention,1 and thus it
bound itself, so long as it should be a member of that Con-
vention, to refrain from passing any law which made the
recognition of copyright in foreign works protected by the
Convention dependent on the printing of the work in the
Dominion. This disability would have been of little impor-
tance, had it not been that the Imperial Government suc-
ceeded in obtaining from the United States a very feeble
measure of protection for British works, on the understanding
that the law of copyright throughout the Empire forbade
the insistence on printing in any special place as the con-
dition of copyright.2 The agreement was ludicrously unfair,
as the American copyright conceded was essentially depen-
dent on printing in the United States, while the United
States author had merely to publish his book in the United
Kingdom, which meant putting a few copies on sale there,
and by that act he attained a copyright co-extensive with
the British Empire. The result to Canada was obvious :
the printers saw that the author of a Canadian book found
it more convenient and preferable in every way to set up
the type in the United States and then to publish the work
in the United Kingdom, by which he obtained copyright
for his book in Canada. The author of a work in the United
Kingdom similarly, when he desired United States copy-
right, had the type set up there, and then, by publishing
in the United Kingdom, obtained copyright in the Dominion.
The matter was made more annoying by the action of British
publishers, for they used regularly, even when a book was
printed both in the United Kingdom and in the United States,
to sell the Canadian market to the American publisher
instead of supplying it with the English edition.
The resentment felt by Canada took its shape in 1889 in
1 Part. Pap., C. 4606, 4856, 4910, and 5167.
* Part. Pap., C. 2870 and 6425.
COPYRIGHT 239
the form of the enactment of a measure which would have
refused copyright save on terms of printing in the Dominion,
and the request for the release of Canada from the terms
of the Berne Convention, on the ground that Canada had
been repeatedly assured that her continuance in any treaty
arrangements of this kind would be subject to her own
desire to withdraw at any time, on giving the prescribed
notice. On this point the Canadian Government was in an
unassailable position : to refuse to arrange withdrawal was
a clear breach of the understanding on which the adherence
in such a case was given. But the desire to withdraw was
obviously merely connected with the desire to secure the
abrogation of the rule that publication in the United King-
dom gave copyright in Canada, and this desire the Imperial
Government were determined not to concede, for the simple
reason that they were persuaded by the publishers that the
result would be the loss of even the limited American copy-
right, a fear probably reasonable enough in itself. The
royal assent was therefore refused to the Canadian Act,
which still remained a dead letter on the Canadian statute
book. This was not naturally acceptable to Canada, and
Sir John Thompson in 1891 and again in 1894, on his last
visit to the United Kingdom, urged most strongly the
unfairness of the position.1 His excursion into constitu-
tional law, in which he argued that the British North
America Act gave Canada the power to repeal Imperial Acts
passed before 1867, was supported by invalid instances, and
was probably a mere tour de force ; but his constitutional
claim could not possibly have been resisted for a moment
if seriously examined. To insist that Canada should con-
form her copyright legislation to that of the United King-
dom merely to please the publishers in the latter was con-
stitutionally a monstrous doctrine, nor can it be wondered
that the minister described the state of the law as odious
and unjust. It is possible that the energy of his represen-
tations would have had effect in the long run, but his death
at Balmoral terminated for a time the movement : the
1 Parl. Pap., C. 7783.
240 IMPERIAL UNITY AND THE DOMINIONS
politics of the Dominion fell into less effective hands, and
by the time the Government had come into the control of
Sir Charles Tupper the troubles of the Ministry over the
question of the Manitoba schools had become so pressing
as to allow all else to disappear. The matter would pre-
sumably have again raised its head, when the establishment
of Liberal government in Canada left the way clear for
further action, but by that time the British publishers and
authors, realizing the danger of their position, had taken
the necessary steps to place themselves on terms with the
Canadian publishers, who, satisfied with the new position,
and not interested in the mere question of printing in itself,
ceased to press the question on the attention of the Dominion
Government, nor does it appear that the matter would have
been raised again by the Dominion if circumstances occur-
ring elsewhere had not called the matter into prominence.
These circumstances were in the main the growing desire
of the publishers and authors of the United Kingdom to
secure better terms of copyright : with this object several
pilgrimages were made to Canada in the hope of winning
approval there for new legislation which would be applicable
to the Dominion, but without much result ; and it was not
until the conclusion of the new Berlin Convention in 1908
that further legislation became necessary, and the Govern-
ment were faced with the need of examining the problem
afresh. A little consideration showed that there was no
possibility of maintaining the old status of things, that the
Government of Canada were in a completely conclusive
case, and that there must be a reconsideration of the whole
affair. The reconsideration took the form of a Conference
held in London in 1910,1 being the first subsidiary Conference
held under the scheme of Imperial Conferences arranged in
1907, and it was agreed that in any further copyright legis-
lation the Dominions must be left unfettered to do what
they thought fit, though the general feeling of the Conference
was in favour of the acceptance of the Berlin Convention,
subject to the making of such provision as would prevent
1 Parl Pap., Cd. 5272.
COPYRIGHT 241
the possibility of an American author obtaining copyright
in Canada by mere publication in a Union country.
In the Imperial Copyright Act, 1911, accordingly, the
application of the Act was declared not to include the self-
governing Dominions unless the Act were declared to be
in force therein either as it stood or with such modifications
as related to procedure and remedies and other adaptations
to fit the Act to the circumstances of the Dominion. But
even if this were not done, if the legislation of the Dominion
were certified by the Secretary of State to be such as to confer
on works whose authors were British subjects resident else-
where than in the Dominion or, not being British subjects,
resident in those parts of the British possessions to which
the Act extended, the Dominion was to be treated for the
time while this state of affairs lasted as being a Dominion
to which the Act extended for the purpose of the rights
conferred by the Act. It was further provided that a
Dominion legislature could repeal any of the Imperial copy-
right legislation, including the Act of 1911 itself, while, until
the legislature did do, there would be left in operation the
Acts previously in force. If the Act did not extend to any
Dominion, the King was empowered by Order in Council to
grant to works first published in that Dominion and to
authors who were resident therein at the time of the making
of their works, the protection of the Act on such conditions
as seemed proper, if the Dominion gave adequate protection
to the works, published or unpublished, of authors who were
resident being British subjects in some place other than the
Dominion at the time of the making of the work. Such an
Order in Council was not, however, to apply to any self-
governing Dominion to which the Act might extend, but
the Governor in Council of the Dominion was authorized to
extend the like rights within the Dominion. It was further
provided that any legislature of a British possession might
modify or add to the Act, but save where the additions or
modifications related to procedure or remedies, the changes
must apply only to authors resident in the possession at
1 Parl. Pap., Cd. 6863, pp. 130-3.
242 IMPERIAL UNITY AND THE DOMINIONS
the time of making the work and to works first published in
the possession. In the case of Part II of the Act authorizing
the grant of foreign copyright on certain conditions, the
same power of granting the right was conferred on the
Governor in Council of any Dominion to which the Act
extended.
This mass of legislation was clearly confused in the
extreme, and the only mode in which it could have been
rendered reasonably simple would have been the immediate
adoption of the Act with necessary changes as to procedure
by the legislatures of the several Dominions. But here, as
usual, there was considerable delay and divergence of pro-
cedure. Australia finally, in 1912, legislated by Act No. 20,
which, while adopting the Imperial Act, provides in a satis-
factory way for the necessary local changes : it must, how-
ever, be noted that the provision for the establishment of
a system of voluntary registration, with special advantages
in the way of procedure to those whose works are registered,
seems hardly to be consistent with the principle of the Berlin
Convention, to which accession has been expressed in respect
of the Commonwealth. Newfoundland legislated in the
same year (c. 5), but the Act is defective, inasmuch as it
makes no provision at all for the necessary modification of
the measure to meet local circumstances. In 1913 New
Zealand legislated, but in this case the Act was not expressed
to extend the Imperial Act to New Zealand, but legislation
was passed based on the same principle as the Imperial Act,
though there were slight omissions in it, of no great import-
ance. In respect of these Dominions also has adherence
been expressed to the Convention.
By a curious irony of fate Canada, which was for years
so eager to get rid of Imperial control, has sunk into indiffer-
ence, or comparative indifference to the issue, and no legis-
lation has yet been passed to repeal the Imperial Acts which
fettered her right of action. Indeed, it has become necessary
to issue an Order in Council in the case of both Canada and
the Union to protect the works of authors there, since it is
clear that in the absence of such orders these works could
COPYRIGHT 243
obtain no protection from the Imperial Act ; while, on the
other hand, there is accorded, it would appear, protection
to works produced in the United Kingdom in so far as that
the old Imperial Acts are still in force therein.
Moreover, the wishes of Canada, as expressed at the
Conference of 1910, have been carried into effect by the
negotiation of an additional protocol to the Convention of
November 13, 1908. This document,1 signed at Berne on
March 20, 1914, by all the powers signatory to the Con-
vention of 1908, and ratified by the King on July 18, pro-
vides that, where any country outside the Union fails to
protect in an adequate manner the works of authors who
are subject to the jurisdiction of one of the contracting
countries, nothing in the convention of 1908 shall affect
the right of such contracting country to restrict the pro-
tection given to the works of authors who are at the date
of the first publication thereof subjects or citizens of the
non-union country in question, and who are not effectively
domiciled in one of the countries of the Union. The right
accorded by the protocol to contracting States belongs
equally to any of their oversea possessions. No restriction,
however, introduced in virtue of the protocol shall affect
the rights which an author may have acquired in respect
of a work published in a country of the Union before the
application of such restriction. Notice of the restrictions
imposed shall be given to the Government of the Swiss
Confederation by the States which restrict the grant of copy-
right in accordance with the protocol, and the declarations
shall be communicated to the States of the Union by the
Swiss Confederation. The protocol is to take effect one
month after the deposition of the ratifications which were
to take place not later than one year from the date of
signature.
1 Par/. Pap., Cd. 7613.
CHAPTER XII
NATURALIZATION AND NATIONALITY
NOTHING seems more characteristic of the sovereign
character of the Imperial Parliament than its power to
legislate regarding nationality, but the view that the grant
of legislative authority to a colony carried with it the right
to confer upon that person the status of a British subject,
was quite early developed, and it received its full approval
in the Imperial Naturalization Act, 1870, re-enacting an
Act of 1847, in which the validity of the naturalization of
aliens within the limits of the British possessions under
enactments of these possessions was recognized. The Act,
however, in doing this merely confirmed what has been the
accepted view : that the local legislature had power to
confer the status of a British subject, but only within the
limits of the Colony. Indeed, the principle was carried many
years after a good deal further, for, by Order in Council,
provision was made for the naturalization of aliens in the
Protect orate of Southern Rhodesia, though this was obviously
a somewhat strong step to take in respect of territory, the
essential feature of which is that it is not British.1 On the
other hand, the grant of naturalization in the United King-
dom was held to confer the status of a British subject
throughout the whole of the Empire, though this position
was long doubtful, and though the contrary view was held
to be supported by the language of the statute itself. The
question was never authoritatively decided in the self-
governing Dominions : parts of their legislation seemed to
suggest that a person naturalized in the United Kingdom
might not be a British subject in the British oversea posses-
sions, but other parts suggested the opposite conclusion,
1 Cf. R. v. Cretee, ex parte Sekgome, [1910] 2 K.B. 576.
NATURALIZATION AND NATIONALITY 245
and it is most probable that the general impression was
that such a person was a British subject for all purposes.1
The position of the person naturalized in a British posses-
sion had very obvious disadvantages, partly of sentiment
and partly of substance. In the Dominion of Canada, for
instance, it was easy for any immigrants from the United
States to become naturalized as citizens of Canada, but this
fact did not convert them outside Canada into British
subjects ; and though they might become loyal Canadians,
excellent judges like Sir Wilfrid Laurier could feel doubt
whether they were equally sure to become excellent British
subjects. From the practical point of view the difficulty
has no doubt been exaggerated from time to time. The
grant of naturalization in the United Kingdom is not
sufficient to enable the United Kingdom to protect a
foreigner naturalized therein unless he has under the law
of his place of origin ceased to be a subject of that State,
and the foreigner who had naturalized himself in Canada
was therefore in theoretically just the same position with
regard to British protection as was the man naturalized in
the British Islands. It is, however, true that this similarity
of position was often misunderstood.2 and British diplomatic
officers have been sharply criticized in Dominion Parlia-
ments for not protecting persons naturalized in the Domi-
nions, on the ground that they were so naturalized, when,
as a matter of fact, the case of the persons concerned was
precisely similar to that of a person naturalized in the
United Kingdom. There was, indeed, a formal difference
in the case of the passport issued to naturalized persons in
the oversea Dominions and the ordinary form of passport,
which made it appear that the naturalized person was only
entitled to the assistance of the British representatives
1 So asserted by Lord Emmott in House of Lords March 17, 1914, and
Mr. Harcourt in House of Commons, May 13, 1914. The opposite opinion
has often been expressed in England and Canada, e. g. House of Commons
Debates, Jan. 29, 1913.
2 In practice also in France ; at least some difference of treatment seems
to have been accorded as regards liability to military service.
246 IMPERIAL UNITY AND THE DOMINIONS
abroad as a matter of courtesy. The words were perhaps
inserted on the ground that in a foreign country a person
naturalized in a Dominion was without any nationality, or
at least, without any British nationality, and the British
Government could not as of right afford him good offices ;
but whatever the origin of the words, the practice was pre-
cisely the same in every case : the assistance of the repre-
sentatives of the Crown abroad was as fully accorded as it
was to natural-born British subjects.
So far, therefore, as executive action mattered, the posi-
tion of the person naturalized in a British colony was
assimilated to that of a person whose British nationality
prevailed throughout the Empire. But there were certain
provisions of law which could not be evaded in whole by
the action of the executive. It was not possible to confer
a peerage or a privy councillorship on an alien, and a person
naturalized in a Dominion was in the United Kingdom an
alien, though he might have held ministerial office in the
Dominion in which he was naturalized.1 Moreover, such
a person was not qualified for the parliamentary or the
municipal franchise in the United Kingdom, nor, until
special permission was given in the Merchant Shipping Act,
could he own a British ship. A will made by him did not
fall under the benefit of Lord Kingsdown's Act, and he was
not a British subject in the meaning of the Foreign Juris-
diction Act, 1890, and the Orders in Council issued under it,
though he might be treated as a British protected person
in some cases. Thus criminal jurisdiction exercised over
him by virtue of the Act would have been, strictly speaking,
unlawful. On the other hand, he would not be entitled in
a country like China, if not ranked as British subject, to
the protection of the extra-territorial jurisdiction of the
Crown. He would not fall within the penal clauses of Acts
punishing British subjects for such acts as murder and
bigamy committed outside the British Dominions, nor be
liable to the penalties imposed by the Official Secrets Act,
1 e. g. Sir G. Perley, Honorary Minister in the Canadian Government,
one of the first to be naturalized imperially under the Act of 1914.
NATURALIZATION AND NATIONALITY 247
1911, on British subjects for offences against that Act,
wherever committed.
It was natural that with a growing sense of nationhood there
should arise a growing sense that there should be one com-
mon naturalization for the whole Empire. The naturaliza-
tion law was considered in great detail by a Committee
in 1901, l and many of its defects were rendered obvious.
A distinct movement towards final agreement with regard
to the matter was made at the Colonial Conference of 1907,2
when the question was dealt with in some detail, and the
outlines of the proposed new legislation considered. It was
realized on all sides that the fundamental root of the diffi-
culty was the absolute separation of the two kinds of
naturalization : the British naturalization could only be
obtained either by service under the Crown or by residence
in the United Kingdom, while the Dominion naturalization
was restricted to cases where the residence had taken place
in the Dominion. No length of mere residence in a Dominion,
despite naturalization there, as the law stood would be of
the slightest aid to a man in becoming naturalized in the
United Kingdom, but, like any newly-arrived alien he
would have to reside for five years and declare his intention
to continue to reside or to serve abroad under the Crown.
The obvious mode of dealing with the question at issue
would have been that suggested by Sir Wilfrid Laurier — to
declare that every person naturalized in any Dominion
should have the status of a British subject throughout the
whole Empire ; but in 1911 the Imperial Government was
not ready to take this course. There were considerable
difficulties in the way, especially as regards the period of
residence which was required to elapse before naturalization
could be accorded. The United Kingdom period of five
years was equalled nowhere in the Dominions : New
Zealand prescribed no fixed time ; Australia, where by
Act No. 11 of 1903 a uniform Commonwealth naturalization
was prescribed, two years ; this period was adopted by the
Union of South Africa when laying down a universal South
1 Parl Pap., Cd. 723. 2 Parl. Pap., Cd. 3523 and 3524, pp. 94-9.
248 IMPERIAL UNITY AND THE DOMINIONS
African naturalization, and Canada alone demanded three
years. Nor in all cases was it certain that Dominion naturali-
zation was not to some extent abused in the desire to obtain
passports. There were certainly a certain number of aliens
who became naturalized in Canada, on the strength of resi-
dence and of declaration of intent to reside in the Dominion,
who shortly after started for travels which seemed to indi-
cate an intention of a very distant return to Canada.
Another consideration, not without importance in some
aspects, was the fact that, for example in the case of Aus-
tralia l in the grant of naturalization, a discrimination was
made between Europeans who were eligible and non-
Europeans who could not be naturalized, and it was held
that recognition by an Imperial Act of these differences of
treatment might be deemed to be equivalent to introducing
into Imperial legislation the hateful principle of a colour
bar. Nor again could it be doubted that many of the
persons who obtained Colonial naturalization appeared to
have done so without adequate consideration by the local
authorities of the probability of their becoming good citizens.
Not a few of them, at any rate, were disgracefully illiterate,
and in many ways undesirable.
The Imperial Conference 2 accordingly agreed on a com-
promise, under which, while local naturalization was to go
on as before at the unfettered discretion of each Dominion
Parliament, there should be created a new entity, Imperial
naturalization, which would have the effect of conferring
British nationality throughout the Empire and, so far as
international law permitted, throughout the world. The
period of five years would be retained as the condition for
this nationality, but residence in any part of the Empire
should count in this period, while the decision whether any
individual deserved the grant should be entrusted to the
Government of that portion of the Empire in which he had
spent the last twelve months before the grant. Further,
1 Act No. 11 of 1903 ; BO Natal Act No. 18 of 1905, superseded by Union
Act No. 4 of 1910.
8 Parl Pap., Cd. 5745, pp. 249-71.
NATURALIZATION AND NATIONALITY 249
in order to meet the susceptibilities of the Dominions, the
Act should not legislate for them, but should be framed so
as to allow them to make it effective within their boundaries
by their own legislation. Finally, it was agreed that it
should be made clear that the mere question of nationality
as dealt with in the Act should not affect the validity of any
Dominion legislation dealing with immigration or differen-
tiating against different classes of British subjects. This
last proposal was due to the widespread fear that in some
way the grant of Imperial nationality would give an
immunity from all laws affecting immigration or imposing
disabilities in naturalized persons, and so forth, quite
a number of Australian State Acts x differentiating for pur-
poses of political rights between persons natural born and
naturalized.
The resolution of the Conference was only tardily carried
into effect, a result due to the change of government in
Canada and the somewhat long time taken by the Canadian
Government to make up its mind on the question at issue.
The objections of Canada were based, as might be expected,
on constitutional grounds : 2 the Government were most
anxious not in any way to seem to interfere with the power
of Canada to prescribe its own conditions of nationality or
to determine what was the position in Canada of persons
having Imperial nationality. Finally, agreement was
reached, and the Imperial British Nationality and Status of
Aliens Act, 1914,3 deals with the question on the agreed
basis. It provides for the grant by the Secretary of State
of a certificate of naturalization to any alien on proof of five
years' residence in the British Dominions in the eight years
preceding his application and one year's immediately pre-
ceding residence in the United Kingdom, or, in lieu, five
years' service under the Crown. An applicant must be of
good character and have an adequate knowledge of the
English language, and must intend either to reside in the
1 Part. Pap., Cd. 5746, pp. 248, 249.
2 Cf. Canada House of Commons Debates, Jan. 29, 1913,
3 4 and 5 Geo. V, c. 17.
250 IMPERIAL UNITY AND THE DOMINIONS
British dominions or to serve under the Crown. In the case
of a woman whose alienage is due to marriage, and whose
husband is dead or is divorced from her, the period of resi-
dence may be dispensed with, and in any special case the
rule regarding the limitation of eight years may be relaxed.
A person thus naturalized is given all the privileges of
a natural-born British subject, the few restrictions on the
rights of naturalized aliens preserved by the Act of Settle-
ment 1 being abolished. The name of a minor child may
be included in the certificate granted to an alien, but such
a child may renounce British nationality within a year of
attaining full age, and in any case the Secretary of State
may grant a certificate to a minor if he sees fit. Any
certificate issued may be revoked if granted on false
representations or fraud.
The powers of the Secretary of State to grant a certificate
may be exercised by the Government of any British posses-
sion on the same terms mutatis mutandis, and with the
addition that, where another language is recognized as being
on the same official footing as English, that language may
be accepted as an alternative to English, as is the case with
French in Quebec, and Dutch in the Union of South Africa.
Any certificate so granted shall have the same effect as one
granted by the Secretary of State. But the legislative
authority of the Dominions is preserved by the enactment
that this part of the Act and any certificate of naturaliza-
tion granted under it shall not have effect within any of
the Dominions enjoying self-government unless it is adopted
by the Dominion legislature. Such adoption may be
rescinded by the legislature, but without prejudice to legal
rights existing at the time of rescission, and in adopting
the Act the legislature may make provision as to how the
powers of the Government are to be exercised.
The Act further lays down — and this generally and with-
out reference to legislation by the Dominion — rules for the
nationality of British subjects. A natural-born l British
subject includes any person born within His Majesty's
1 For the old law cf. Edwards, Journ, Soc. Comp. Leg. xiii. 314-26.
NATURALIZATION AND NATIONALITY 251
dominions and allegiance, thus excluding the child of a
foreign ambassador who owes no allegiance ; any person
born out of His Majesty's dominions whose father was
a British subject at the time of his birth and either was born
within His Majesty's allegiance, or was a person to whom
a certificate of naturalization was granted ; and any person
born on board a British ship, whether in foreign territorial
waters or not. It is expressly provided that the child of
a British subject, whether born before or after the passing
of the Act, is to be deemed to have been born within the
allegiance if born in a place where the Crown exercises
extra-territorial jurisdiction, and that a person born on
a foreign ship in British territorial waters shall not by that
mere fact acquire British nationality. These two provisions
are new : the first covers the case of children of British
subjects in protectorates and in places like Turkey, where
there is a resident British community of old standing. More-
over, the new provisions replace the rules of the Acts of
1730 and 1772 x regarding the nationality of the children and
grandchildren of British subjects born abroad. British
nationality may be lost by being naturalized by any volun-
tary act outside the British dominions, and in the case of
any person who has by birth two nationalities by a declara-
tion of alienage made within a year of attaining majority.
The national status of women who marry follows that of
their husbands ; but, if he changes his nationality in his life,
the wife may by declaration retain her British nationality,
and neither death nor dissolution of marriage shall per se
affect nationality. Where British nationality is lost, it shall
also be lost by minor children unless they would thus lose
all nationality, but on reaching full age they may recover
it by a declaration, and a widow's remarriage to an alien
shall not alter the nationality of any children of the first
marriage. These provisions are in part new, and in part
far more precise and less open to doubt than the old pro-
visions of law.
The status of aliens is regulated by the giving of all rights
1 4 Geo. 2, c. 21 and 13 Geo. 3, c. 21.
252 IMPERIAL UNITY AND THE DOMINIONS
in regard to real and personal property, but this is qualified
by the express provision that an alien shall not thus be
qualified to hold real property outside the United Kingdom,
not to own a British ship, nor to have any rights save such
as are expressly conferred on him. His mode of trial is to
be the same as that of a British subject, a provision of law
which need hardly have been retained as binding the whole
Empire. On the other hand, the penalty for false repre-
sentations is made to apply to the United Kingdom only.
The general powers of the Dominion Parliaments are pre-
served by the express provision that nothing in the Act
shall take away or abridge any power vested in or exercis-
able by the legislature or government of any British posses-
sion, or affect the operation of any law at present in force,
or prevent any such legislature or government from treating
differently different cases of British subjects. Local naturali-
zation is expressly authorized, as in the Act of 1870, and to
remove doubt as to the validity of State legislation dealing
with the rights of aliens and naturalized persons, it is pro-
vided that the power of the legislatures of British possessions
shall apply to both the central and local legislatures where
there are several, but subject to the proviso that no law
regarding naturalization made by a local legislature shall
be valid if the central legislature alone has authority to
legislate in regard to naturalization.
The Act is of great importance for many reasons. It was
passed with the full assent of the Dominion Parliaments
and Governments, and it is expressed in large measure
in terms which show that it applies without adoption by
the Dominion Parliaments to the whole Empire. Indeed, it
is a little difficult to see why the special case of naturaliza-
tion should have been selected for Imperial legislation only
to have effect with Dominion concurrence, were it not
for the fact that British nationality generally had not
been the subject of any Dominion legislation, and, as a
Dominion is a dependency, it may be that no legislature in
a Dominion would have been able to legislate so as to deprive
a natural-born British subject of his nationality, though it
NATURALIZATION AND NATIONALITY 253
might deprive him of all civil rights of every kind. As it is,
the law is now fixed by a measure which no Dominion legis-
lature can in any way affect, as the saving of the powers of
Dominion legislatures and governments in s. 26 cannot be
construed as giving them any power to repeal express pro-
visions of the Act, which thus fixes immutably the position
of natural-born subjects, the status of wives and widows,
and of children, the right of alienage and so forth. The one
point of some doubt is the constitutionality of the provisions
giving an alien a right to own personal property in the
Dominions, and forbidding any other mode of trial than is
practised for a British subject ; in the Act of 1870 by a
heading these sections were applied only to the United
Kingdom ; they seem not to be alterable now by a Dominion
Parliament, and thus are placed beyond the control of the
Dominions. As a matter of fact, it cannot be said that the
law is already complied with in the Dominions, where it is by
no means universally the rule that all personal property
may be taken, acquired, held, and disposed of by an alien
in the same manner in all respects as by a natural-born British
subject, and it would seem that in the case of the Dominions
it was not thought that the provisions to this effect in the
Naturalization Act of 1870 were applicable ipso facto to the
Dominions. Thus these provisions are not given as applic-
able to Queensland in the revised edition of the Statutes, and
they were enacted in Tasmania as a new Act as No. 12 of
1913, and have also been enacted elsewhere. It is just possi-
ble that the power to alter these provisions may be supposed
to be saved by the terms of s, 26, but that appears very
doubtful.
While British nationality is in one sense indivisible, there is
an inevitable tendency to make a distinction between British
subjects in regard to their connexion with the United King-
dom or a Dominion. The term British is often applied in the
Dominions to a native of the United Kingdom, and the terms
Canadian, Australian, New Zealander, South African, and
Newfoundlander, are regularly applied to the classes of
British subjects born in these Dominions, or identified with
254 IMPERIAL UNITY AND THE DOMINIONS
them by residence. In Australia there is a strong Australian
Native movement, which consists not of aborigines, as might
fondly be supposed, and as newly imported Governors are
most unjustly credited in the popular mind with a desire
to believe, but persons who being Australians were also born
there. The use is significant, as it proves that there is felt
to be need of a term to distinguish between the Australians
by adoption and those by birth.
Nor is this practical distinction of everyday life without
a result in law. In the case of the Commonwealth the power
of the Parliament is confined to immigration, and, by reason
of the division of powers between the States and the Common-
wealth, it is not open for the Commonwealth Parliament to
make of immigration a term of vague meaning sufficient to
cover any person entering a State of the Commonwealth.
It has definitely and very properly, it would seem, been held
by the High Court of the Commonwealth that a man cannot
be an immigrant if he is a native of Australia, so that while
an Australian law can shut out from entry an ordinary British
subject it cannot shut out an Australian British subject, and
this connexion would of course include any person domiciled
in Australia, for such a person cannot be held to be an im-
migrant by any effort of the imagination.1 Similarly by the
Immigration Act of Canada (c. 27 of 1910),2 it is expressly
provided that any person who has Canadian domicile or is
a Canadian citizen shall have an absolute right of entry into
Canada, and a Canadian citizen is defined as a person born
in Canada, who has not become an alien, a British subject
who has Canadian domicile or a person naturalized under
the laws of Canada who has not become an alien or lost
Canadian domicile, while Canadian domicile is acquired by a
person having his domicile for at least three years in Canada.
These provisions are of course in part very artificial, for that
three years' domicile should be necessary to confer Canadian
1 Cf. Chia Gte v. Martin, 3 C.L.R. 649 ; Ah Sheung v. Lindberg, [1906]
V.L.B. 323 ; 4 C.L.R. 949 ; Ah Yin v. Christie, 4 C.L.R. 1428 ; Potter v.
Minahan, 7 C.L.R. 277.
* Alsoc. 12 of 1911.
NATURALIZATION AND NATIONALITY 255
domicile for the purposes of the Act is at first sight wholly
anomalous, the rule of domicile being merely change of abode
to Canada with permanent intention of residence, but the
anomaly is explained by the fact that the Act permits the
removal from Canada within a period of three years of any
immigrant who proves unable to support himself, so that had
the right to enter Canada been given to any domiciled person
the Government would have been under the necessity of
allowing the entrance into Canada of persons whom it had
just expelled. It may be added that the reason why, unlike
the Commonwealth Parliament, the Parliament of the
Dominion has power to define as it pleases the nature of
immigration is because, unlike the Commonwealth, the
Dominion has plenary powers of legislation on all matters
save the excepted powers of the provinces, and in particular
has plenary power of legislation regarding immigration, though
a power in legislation in this connexion is also bestowed
on the provinces. In the other parts of the Empire also the
principle that the immigration laws should not be allowed
to exclude a native of the Dominion in question has been
borne in mind : it is recognized by the Immigration Act,
1913, of the Union of South Africa, and also in practice by
the Government of New Zealand, and the general fairness
of the principle has been expressly observed by the High
Court of the Commonwealth of Australia. Nor indeed is the
matter open to reasonable dispute.
From the unity of British nationality certain advantages
are derived by the inhabitants of the oversea Dominions,
such as the protection of the British power in the other States
of the world, the free right of entry into the United Kingdom,
and full political rights in that country. They also derive
a somewhat remarkable advantage which has perhaps not
always been realized. In the modern treaties of commerce and
navigation no less than in older documents it is the custom
to make express stipulations for personal rights of various
kinds. Thus, to take a modern case, the treaty with Japan
of 1911 assures to those entitled to its benefits the same
rights as native citizens as regards entry and residence, and
256 IMPERIAL UNITY AND THE DOMINIONS
the carrying on of commerce, manufacture, and trade, most
favoured nation treatment in the matter of the pursuit of
industries, professions, and trade, permission to own and
hire premises and warehouses, and to lease lands, to have
full access to the law courts on the same conditions as native
subjects, and to enjoy exemption from military service,
forced loans, and military requisitions, except such as are im-
posed on native owners of immovable property. The estates
of deceased nationals may be administered by consular
officers and so forth. These personal privileges as opposed
to such privileges as are directly connected with goods such
as the duties to be levied on goods on entry are held to accrue
to every British subject, wherever he may have been born
or be domiciled, even although the Dominion in which he was
born or is domiciled may not have been brought under the
operation of the treaty at all, as, in the case of the Japanese
treaty, is the position as regards Australia, New Zealand,
and the Union of South Africa.
There seems at first a very curious anomaly in this position,
for reciprocity would seem to demand that if an Australian
has a treaty right to settle in Japan, and if on the score of
his nationality he has a treaty right to have protection for
his industrial property in Japan under the Industrial Pro-
perty Convention, apart from the fact whether that Conven-
tion is applicable to Australia or not, Japanese subjects
should have in Australia the same rights. The answer to this
argument must be based on the fact that the treaties do
not contemplate any distinction between British subjects
because of their connexion with a Dominion : they merely
deal with questions of goods on a geographical basis,
and, unlike merchandise, a British subject cannot be expected
to have a geographical mark of origin. Moreover, it may be
urged, in practice it would be in the extreme difficult to devise
any system by which a distinction could be made between
classes of British subjects. That of birth is irrelevant for
the purpose : if a child is born in England but is taken at an
early age to Australia, what better right should it have to
entry into Japan than a child born in Australia ? The more
NATURALIZATION AND NATIONALITY 257
obvious test of domicile would be impossible to work as the
domicile of merchants, and more so that of other persons is
difficult to decide. If a man has houses of business both in
England and in Australia, is his domicile to be decided by the
relative importance of these houses or by his domicile as an
individual ? Moreover, in any case domicile is a matter
affording grave room for doubt in any particular case.
Strong as these arguments doubtless are, it is impossible
to assume that they can remain permanently satisfactory to
foreign governments, if they deem the refusal of personal
rights to natives or persons domiciled in oversea Dominions,
which stand aloof from British treaties, a matter which is
worth while carrying out. While domicile is doubtless not
a very easy criterion, it is after all a criterion which has to
be constantly applied in the common business of life, and it is
perfectly clear that it could be adopted as a criterion if desired
by a foreign government. Any theoretic difficulties of this
sort can be solved in practice with very little trouble to
the government concerned, even if individuals suffer incon-
venience. Moreover, it must be remembered that firms and
partnerships have often a very definite local habitat,
especially if they are formed as companies or partnerships
under the law of any Dominion, a fact which at once gives
them a local habitat which they cannot deny. It is, of course,
possible to argue that the question is one of no great impor-
tance for any foreign country, and that various means of
evasion might be invented, but none of these considerations
would avail to prevent the removal of the present anomaly
if any foreign country objected to the one-sided arrangement
now in force. It is in this connexion not unimportant that
the recent treaty with Switzerland, carried out in accor-
dance with the wishes of the Dominions at the last Imperial
Conference, does not permit the retirement of the Dominions
from all the treaty of 1855 regulating relations with the
Empire, but only from the purely commercial clauses.
While the advantages flowing from British nationality
to inhabitants of the Dominions are very considerable, it
can hardly be said that British nationality in itself confers
R
1874
258 IMPERIAL UNITY AND THE DOMINIONS
upon any British subject in the Dominions any special
rights. The express provisions of the British Nationality
and Status of Aliens Act, 1914, allow any Dominion or State
or Provincial Legislature and Government to exercise any
rights they choose in the differential treatment of British
subjects, and, unless the wording of the Act is strained, seems
even to confer on all aliens a right as to personal property
which is not conferred on all British subjects. In point of
fact, moreover, it is impossible to deny that the Dominions
treat various classes of aliens better than they do British
subjects. The European alien is, in Canada and Australasia
and in South Africa, treated much better than coloured
British subjects, the latter country showing a tenderness
towards the speaker of Yiddish which is peculiarly pathetic.
It is true that the Privy Council have laid it down that an
alien has no right enforceable by law to enter a British
Dominion, but the right of the coloured British immigrant
is in all the Dominions, save Newfoundland, where he does
not want to go, as nugatory as that of the alien, and in point
of fact the alien is admitted in many cases freely where the
British Indian is rejected. Even the alien Japanese has
a distinct preference de facto over the Indian in Canada,
though it must be noted that this preference is due to the
inability of the Government of India to adopt the same rules
of restricting emigration from that country as the Japanese
Government finds it possible to do in the case of the emigra-
tion of her subjects. Nor in any cases is it obvious that the
immigrants welcomed by the Dominions are really superior
to those whom on colour grounds they reject : the Galicians
of Canada are aliens in speech, in race, in religion, in social
customs, and in habits, and their competition with Canadian
labour is at least as disadvantageous as that of coloured
British subjects. The Yiddish-speaking immigrants in South
Africa do no credit to the name of European or the alleged
European languages which they speak ; years of South
African residence and naturalization under the laws of South
Africa not rarely leaves them devoid of a word of intelligible
English. The conclusion from these facts is not of course
NATURALIZATION AND NATIONALITY 259
that the Dominions should endanger their racial composition
or that they should attempt to mingle European and Asiatic
in one community, but that, possessing as they do the prin-
ciple of racial purity, they should be more particular in
choosing the class of European immigrant who is likely to
be a real element of value in the future, and should avoid the
absurdity of rejecting British Indians, and in some cases
European British workers, in favour of persons of inferior
race, mainly because they are able to provide for a time cheap
sweated labour for the rapid development of industry. In
this regard Canada has been the worst offender, with South
Africa a good second. The self-respect of Australia has of late
years done much to preserve a higher standard of immigra-
tion, though the special favour there shown, and indeed
generally displayed, to German immigrants, because of the
many excellent industrial and agricultural qualities, has by
no means always received its due reward in the European
War. In Canada, indeed, there is cumulative evidence of
open disloyalty among the German communities1 in the
western provinces, and some efforts have been made to
promote in the Dominion the same anti-British propaganda
which have marked the progress of the War in the United
States.
It is doubtless disappointing to realize that there is nothing
that British nationality can be said to carry with it as an
advantage in the oversea Dominions of the Crown : the pro-
tection of the Imperial Government for a British subject is
far more effective in foreign countries than it is in the oversea
Dominions, as was justly pointed out on several occasions by
sympathizers with the British Indians in the long controversy
over the rights of such Indians in the Transvaal.2 It is due
to this realization of the little value which attaches in these
Dominions to the status of a British subject that feeling
in India has turned somewhat strongly against the self-
governing Dominions, and it is therefore matter for sincere
1 Certain German organs of opinion in the West have systematically
extolled German and ignored British successes.
2 e. g. Lord Ampthill, House of Lords Debates, July 26, 1910.
R 2
260
congratulation that the service of British Indians side by side
with the forces of the Dominions in the European War have
enabled the people of these Dominions to realize that there
is another side to the people whom they know only in their
own countries as undesirable immigrants, whom they seek
to deprive of every privilege.
CHAPTER XIII
TRADE AND COMMERCIAL TREATIES
THE development of self-government in the Dominions
was greatly promoted by the fact that, at the time when cir-
cumstances rendered its concession on political grounds
desirable in the interest of the internal order of the colony
of Canada, events in the United Kingdom were leading to
the introduction of principles of economy which forbade the
further preservation of the rule of controlling the trade of the
colonies, and counselled leaving that trade to be managed by
the Parliaments of the newly established responsible govern-
ments. Naturally it was hoped, in the middle of the nine-
teenth century, that epoch of confidence in the automatic
working of economic maxims, that the new countries would
realize to the full the merits of the system of free trade, and
that they would not dream of imposing upon themselves the
fetters of protection. As a matter of fact the new countries
in some cases tried free trade, and then decided to fall back
on protection, and as early as 1859 the doctrine was expressly
asserted by Canada, and accepted by the mother country,
that the fiscal policy of a colony enjoying responsible govern-
ment was a matter for its own discretion. At the same time
the rule was still maintained that no discriminating duties
were to be imposed on imports, and the constitutional action
of New Zealand, and of the Australian colonies, were ex-
pressly fettered with this restriction on their powers of
independent action.1 This position was by no means alto-
gether attractive to these colonies when in the process of
their growth they desired to effect more close relations in
customs matters with each other, and with the colony of
New Zealand, and in the years 1869-1873 a vehement
1 13 and 14 Viet. c. 59, s. 27, forbad this for Australia and the royal
instructions for New Zealand.
262 IMPERIAL UNITY AND THE DOMINIONS
discussion arose between the Imperial Government and the
governments of the colonies on this question of differential
duties, in the course of which attention was drawn to the
undoubted fact that there had been in the days before
Canadian federation a number of cases where such duties had
been allowed to exist. The Imperial Government were hard
to move, but at last they yielded 1 to the extent of allowing
the Colonies and New Zealand to arrange for special duties
inter se, but they declined to extend the practice further, or
to permit the conclusion of treaties of commerce between
the colonies and foreign powers, or any differentiation in
favour of foreign powers by the colonies. The concession
thus hardly won was, like many other concessions which have
formed the subject of bitter controversy, made no use of
by the governments concerned, which turned out to have
different interests in the matter, despite the apparent
unanimity with which they had handled the matter when it
was merely a question of arguments with the hated tyrant,
the Secretary of State for the Colonies.
The treaty question having emerged, it was bound to lead
to further developments. The initiative came in the main
from Canada, where, on the defeat of the Liberal Government
which was contented with a low tariff in 1878, Sir John
Macdonald came into office with an active policy on tariff
matters. Sir A. Gait, sent to London as High Commissioner
for Canada, was instructed to open negotiations with foreign
countries with a view to enter into tariff agreements with them
for the benefit of Canadian trade : the Imperial Government
were approached on the question of the negotiations, and
they laid down that the negotiations with Spain, which was
to be approached at once, should be conducted by the British
representative there, who would however be largely guided
in his attitude by the views of Sir A. Gait. This was in effect
to concedethe position as negotiator to Sir A. Gait, and at the
same time the consent that negotiations should be opened
was an intimation that the old policy of forbidding the im-
position of differential duties which was enforced by the
1 36 and 37 Viet. c. 22.
TRADE AND COMMERCIAL TREATIES 263
requirements in the Canadian royal instructions against the
grant of assent to any such Bill, would not be adhered to. In
1883 this fact was frankly admitted in correspondence with
the Government of the Dominion, and in 1884 the further
point, mainly one of form, was conceded, and Sir Charles
Tupper, now High Commissioner in London, was allowed to
act not merely as adviser in negotiations, but also as negotia-
tor, though his efforts at that time were not successful in
bringing about any treaties. In 1893, however, he had the
pleasure of succeeding in bringing about the signature of a
treaty of commerce with France, regarding the commercial
relations of Canada : he signed this treaty in conjunction
with the British Ambassador and Sir Joseph Crowe, who had
been associated with the Ambassador in the negotiation
of the treaty : in point of fact, however, the main work of
the negotiation was that of the High Commissioner, who was
however aided by Sir J. Crowe throughout, and especially
in the fact that the latter was a fluent speaker of French,
which the High Commissioner was not.1
Moreover, it became clear that it was no longer possible, in
view of the attitude of the Colonies, to continue the practice
of making commercial treaties binding on the Empire as
a whole. The practice was therefore introduced of making
treaties subject to a clause providing that they should only
become applicable to the self-governing Colonies on notice
being given within a period of one or two years : the first
treaty actually so concluded seems to have been one with
Montenegro of January 21, 1882. It was not always possible
to secure the agreement of foreign powers to such a limitation,
and thus the Anglo-French treaty of 1882 ignores the Colonies,
but from that date no treaty made with a foreign power on
commercial matters has ever bound a self-governing Dominion
without its consent. It followed, however, that it was anoma-
lous that the Colonies should remain bound by treaties with
regard to which they had never been consulted at all, and the
difficulty of these treaties was increased by the desire of
Canada to arrange preferential trade with the United
1 See Sir C. Tupper, Recollections of Sixty Years, pp. 174, 175.
264 IMPERIAL UNITY AND THE DOMINIONS
Kingdom. It was early realized in the examination of the
matter that the treaty of 1862 with Belgium, and that of 1865
with the North German Confederation, were fatal to any such
proposals, for they made it clear that any concessions given
by any government in the Colonies to the Imperial Govern-
ment would have to be accorded to these two countries, and
therefore of course to all countries having most favoured
nation clauses in their treaties. It had been formerly the
practice of the Imperial Government to press for the in-
clusion of such clauses in British treaties, and it was there-
fore the case that quite a number of such treaties of impor-
tance existed.
These circumstances led to an elaborate discussion of the
whole position as to the possibility of closer union among the
several parts of the Empire as regards trade questions at a
Conference held at Ottawa in 1894,1 which was nearly though
not entirely representative of the whole of the self-governing
parts of the Empire. The Conference represented that it was
desirable to establish preferential trade among the various
parts of the Empire, and that pending such time as the United
Kingdom might adopt this policy the self-governing Colonies
should be allowed to enter into closer relations in this regard,
and that for this end the treaties with Belgium and Germany
should be got rid of so as to permit of the giving of preferences
to other parts of the Empire and the United Kingdom. The
reply 2 of the Imperial Government was that they were not
prepared to adopt preferential trade within the Empire as
a desirable course of policy, as it was contrary to the natural
movement of trade, and threatened even apart from foreign
retaliation no clear advantages, that they would withdraw
all objections to differential duties among the Colonies
generally, and for that purpose had procured the repeal of
the Imperial Act 3 imposing restrictions on the Australian
Colonies in this regard, and that the treaties in question, as
they did not prevent the grant of intercolonial preference
or preference by the United Kingdom to the Colonies, and
* ParL Pap., C. 7653. 2 Par!. Pap., C. 7824.
3 36 and 37 Viet. c. 22, repealed by 58 and 59 Viet. c. 3.
265
as the United Kingdom did not desire a preference in the
Dominions conditionally on their denunciation, were not in
their opinion suitable for denunciation, especially as the
denunciation might involve serious losses on the Colonies,
since there was a large export trade to Germany and Belgium
in colonial produce such as wool.
At the same time the Imperial Government intimated their
views on the question of the possibility of the making of sepa-
rate commercial arrangements with foreign powers as regards
the trade of the Colonies. They insisted on the principles that
a treaty must be between sovereigns, that the Imperial Govern-
ment must be the channel through which a treaty must be
negotiated, as the Imperial Government was the Government
to which any demand for redress must be made, that to give
the colonies powers of independent negotiation of treaties
would be to give them an international status as separate
and sovereign states, and would be equivalent to breaking
up the Empire into a number of independent states, a result
equally injurious to the Colonies and to the mother country,
and desired by neither. Any negotiation therefore must be
conducted by His Majesty's representative at the foreign
court, aided by a colonial representative as a second pleni-
potentiary or in a subordinate capacity as might be considered
desirable in each case, and any treaty concluded would have
to be subject before ratification to the approval of the Im-
perial Government, the Colonial Government and the Colonial
Parliament, if legislation were made requisite by its terms
before ratification could take place. At the same time the
terms on which such negotiations could be carried on were
explicitly set out : in the first place the concessions made
to any foreign country must be made also to any other foreign
country entitled by treaty to most favoured nation rights in
the Colony, and the Imperial Government would require to
be satisfied of the due passing of any necessary legislation
before they could ratify a treaty ; in the second place any
concessions to foreign powers, and therefore also to any
foreign nation with a most favoured nation treaty, must be
extended without compensation to the whole of the British
266 IMPERIAL UNITY AND THE DOMINIONS
possessions, since it was not to be supposed that any Colony
would wish to prefer foreigners to British subjects: in the third
place no concession could be accepted from a foreign power
which would be disadvantageous to another part of the Em-
pire : if a concession were sought which might have this charac-
ter, the Imperial Government would feel bound to endeavour
to secure the extension of the concession to the other parts
interested, and, if this were impossible, unless the other part
were indifferent to the concession, it would be doubtful if it
could be proceeded with. These rules were enforced by
arguments drawn from the unity of the Empire, and the
isolation and political attraction to a foreign community
which might result from the establishment of close relations
between one community and a foreign country. It was also
pointed out that in 1892 Canada had refused to discriminate
in favour of the United States against Newfoundland, and
in return had been assured that the Imperial Government
would not allow that Colony to discriminate against Canada.
The advent to office of the Conservative Government in
1895 was followed by the adoption of a more yielding attitude
in regard to the two treaties with Belgium and Germany.
After the Colonial Conference of 1897 l the insuperable ob-
jections hitherto urged to any alteration in this regard were
waived, and the two treaties were denounced. The action
was made the more needful since the Liberal Government
in Canada was pressing forward with proposals for Imperial
preference, and all attempts to evade the effect of the treaties
was clearly futile. The result of the denunciation in the
case of Germany was, however, as had been predicted, the
attempt 2 of Germany to injure Canadian trade by the refusal
to accord to that trade the same terms as were accorded to
British trade generally, and in 1903 Canada definitely re-
taliated against this policy and imposed a surtax of a third
on German imports.
It was inevitable that, once the question of permitting
the withdrawal of the Colonies from treaties was raised, the
older practice by which treaties were concluded with pro-
1 Parl. Pap., C. 8596. » Part. Pap., Cd. 1630.
TRADE AND COMMERCIAL TREATIES 267
vision for separate adherence in respect of the Colonies, but
without provision for separate withdrawal, should be revised,
and the first-fruits of this revision were seen in conventions
with Uruguay in 1899, and Honduras in 1900, permitting the
withdrawal of any British possessions from the operation of
the treaties of 1885 and 1887 with these countries. Further
impetus to this proposal was given at the Colonial Confer-
ence of 1902,1 when a resolution was passed in favour of the
examination of the navigation laws of the Empire and other
countries, and the desirability of closing coastwise trade, in-
cluding trade between the United Kingdom and the Colonies,
to those countries which closed their trade to British vessels.
The resolution was taken seriously by New Zealand which
legislated in 1903, taking power to close the coasting trade to
countries which closed it to British ships, and as this clause
would have run counter to the treaty with Greece of 1886,
new agreements of November 10, 1904, and May 4, 1905, were
negotiated by which the right to withdraw the self-governing
Dominions and other possessions from the treaty was secured.
The passing of a Bill by the Commonwealth Parliament in
1906, which proposed to give a preference to British goods
imported in British ships manned by white labour raised
new treaty problems in its restriction of the right to British
ships, and on the advice of his Ministers2 the Governor-
General reserved the Bill. It was fairly clear that the
measure contravened the treaties with Austria-Hungary of
1868, that with Italy of 1883, with Russia of 1859, and per-
haps those with Egypt, Greece, Morocco, Colombia, Salvador,
Honduras, Paraguay, and Liberia. The result of the dis-
cussion of the question at the Colonial Conference of 1907,3
when the Imperial Government in clear terms intimated its
inability to accept a preference given on conditions which
penalized British Indian subjects, was that the prefer-
ence actually accorded in 1907 was not hampered by any
reference to the mode in which the goods were imported.4
1 Parl. Pap., Cd. 1299. 2 Parl. Pap., Cd. 3339. 3 Parl. Pap., Cd. 3523.
4 Canada has power to close her coasting trade in toto, and freely exer-
cises it.
268 IMPERIAL UNITY AND THE DOMINIONS
It was nevertheless still desirable in the eyes of the Com-
monwealth and the other Governments concerned to proceed
with the question of freeing the self-governing Dominions
from the ties of old treaties which had been entered into
before the new regime regarding the autonomy of the
Colonies in commercial matters, and in accordance with
this view, which was reinforced in 1911 by the Imperial
Conference of that year, a long series of treaties has been
concluded which permit the King to withdraw from the
old treaties in respect of any one of the self-governing
Dominions on giving a year's notice of intention, without
affecting the validity of the treaty as regards the other
parts of the Empire. This concession was made by Egypt
in 1907, by Liberia and by Paraguay in 1908, while the
treaty with Salvador was denounced by that Republic and
ceased to matter. In 1911 the consent of Sweden to the
proposed arrangement was obtained, followed in 1912 by
the consent of France in respect of an old treaty of 1826,
of Denmark, and of Colombia, in 1913 by agreements with
Norway and Costa Rica, and in 1914 by one with Switzer-
land. The treaties with Austria have been brought to a
termination by the operation of the war, and the only l
treaty of outstanding importance which remains unassailed
is that with Italy of 1883, and in this case it must be remem-
bered that the colonies to which it applies became parties
to it by their full assent, and that they are under the same
difficulties with regard to it and no other as the United
Kingdom. All modern treaties, such as those with Nicaragua,
Rumania, and Bulgaria, of 1905, with Serbia of 1907, with
Montenegro and Honduras2 of 1910, and with Japan of
1911, contain clauses providing for separate adherence and
separate withdrawal in respect of the British possessions
generally. But as has been seen above, even in cases where
the Dominions are not included in the operation of the
treaty by adherence in respect of them, the personal rights
flowing from the treaty are claimed by the British Govern-
1 That with Russia of 1859 is of less consequence.
* Ratified only in 1915 ; see Par/. Pap., Cd. 7964.
TRADE AND COMMERCIAL TREATIES 269
ment to belong to the status of British subjects per se, and
not to be affected by the fact that a British subject is born
in or domiciled in or carries on business in a part of the
Empire to which the treaty is not applicable, and this claim
has not hitherto been effectively disputed by any foreign
country except Switzerland.
At the same time there has been a marked development
in the question of the making of commercial agreements
separately for the benefit of the self-governing Dominions,
and this in two rather different ways. In the first place, the
doctrine of formal negotiations through the medium of the
ordinary diplomatic channel has been developed in detail.
In a dispatch of July 4, 1907,1 Sir Edward Grey intimated
to His Majesty's representatives at Paris and Rome the
wish of the Canadian Government to initiate negotiations
with the French and Italian Governments for the conclusion
of more intimate commercial relations between Canada and
these countries. He recalled the conditions as to such
negotiations laid down by the Imperial Government in
their reply to the resolutions of the Ottawa Conference in
1895, but stated that he did not consider it necessary to
adhere in the present case to the strict letter of the regula-
tions then laid down, the object of which was to secure
that the negotiations should not be entered into and carried
through by a colony unknown to and independently of His
Majesty's Government. The selection of the negotiator
was principally a matter of convenience, and in the present
circumstances it would obviously be more practicable that
the negotiations should be left to Sir Wilfrid Laurier and
to the Canadian Minister of Finance, who would doubtless
keep the British Charge d' Affaires informed of their progress.
If the negotiations were brought to a conclusion at Paris
he was to sign the agreement jointly with the Canadian
negotiator, who would be given full powers for the purpose.
In accordance with this arrangement the treaty was nego-
tiated in Paris and finally approved after it had received
the careful consideration of the Imperial Government, the
1 Part. Pap., H. C. 129, 1910.
270 IMPERIAL UNITY AND THE DOMINIONS
signature being deferred until that consideration had been
accorded : * the signatures appended were those of the
British Ambassador, Mr. Fielding, and Mr. Brodeur, both
ministers of Canada. In 1909, in view of the failure of the
Convention of 1907 to secure the acceptance of the French
Chambers, Mr. Fielding visited Paris and engaged in con-
fidential discussions with the French Government, which
resulted in the preparation of a draft convention excluding
from the benefit of the French minimum tariff fat cattle
in condition for butchering, the French agrarian interest
having blocked the passage of the treaty into effect on
account of this concession. The draft was prepared and
sent by the Foreign Secretary to the British Ambassador
with authority to sign jointly with Mr. Fielding. In this case
again the proposed change had received the most careful con-
sideration from t he British Government . Soalsoinl9112 and
1913 respectively, the arrangements regarding trade between
Japan and Canada were concluded by Sir E. Grey on behalf
of the Crown, although the terms of both had formed the
subject of discussion between the Canadian Government
and the Japanese Consul-General at Ottawa. In both cases,
of course, the treaty was subject to the fullest considera-
tion at the hands of the Imperial Government before it was
concluded.
Ample as these arrangements seem to be for the purpose
of securing the wishes of the Dominion being given full effect,
some discontent was expressed in Canada, and in debate in
the House of Commons on February 21, 1908, it was con-
tended that the power of making treaties independently
should be conferred on the Dominion, a proposal which Sir
Wilfrid Laurier declared to be unnecessary as the existing
arrangement worked well. In 1910 a step of some conse-
quence was taken by Canada which deviated somewhat from
the precedents of commercial treaties. The action of Ger-
many in penalizing Canada for her British preference had
been resented in Canada, and retaliation had been imposed
in 1903. Germany had come to be wearied of the struggle,
1 See below, p. 274. * Par/. Pap., Cd. 5734.
TRADE AND COMMERCIAL TREATIES 271
and the German Consul-General at Montreal was empowered
to propose that, in return for the concession of Germany's
conventional tariff on those Canadian imports which mat-
tered to Canada, Canada should revoke the surtax on German
imports. The agreement was concluded direct between the
Consul-General and Mr. Fielding on February 15, 1910,1 and
was carried into effect by Order in Council remitting the
surtax, as was possible under the existing legislation of the
Dominion. As the Order in Council received the assent of
the Governor-General, it was, of course, not beyond the power
of the Imperial Government to intervene in the matter, but
the full control exercised when the negotiations were placed
formally on record in the form of a treaty was not possible.
This was followed by further cases of informal arrangement,
but in this instance the proposal for such negotiations came
through the British Embassy at Washington : the tariff of
the United States as amended provided that the minimum
tariff could be granted to countries which did not discriminate
against the United States, and the question had arisen
whether the effect of the convention with France, which had
to extend automatically to all countries with most favoured
nation rights, did not constitute an undue discrimination
against the United States. The position of the States was not
in equity a strong one, but it was felt desirable by Canada
to meet their views, and the promise was made of legislation
to lower the duties on certain articles which had been included
in the Anglo-French convention. No treaty was signed, but
both sides took the necessary action, Canada by an act which
lowered the duties on these articles to the whole world. Later
in the year an agreement was made with the Royal Consul of
Italy regarding Italian trade, and concessions were made to
Belgium and the Netherlands without asking for any return.
In all three cases Orders in Council were issued, on June 7,
1910, and so, as in the case of the concessions to the United
States, the action taken was not without opportunity of
objection on the part of the Imperial Government.2
Little comment was made on these agreements in the
1 ParL Pap., Cd. 5135. * Parl Pap., Cd. 5582, p. 9.
272 IMPERIAL UNITY AND THE DOMINIONS
United Kingdom, but in January 21, 191 1,1 an agreement
was reached between Messrs. Fielding and Paterson on
behalf of the Government of Canada, and the United States
Secretary of State, which proposed that a large programme of
reciprocal lowering of duties should take place between the
two countries in order to promote freer trade, especially in
natural products, the great question of the entry of fish to the
United States being disposed of on the basis of free entry of
fresh fish in either case and of preserved fish on a low basis of
duty. The published correspondence shows that the proposal
was based on discussions which had taken place in February
1910, between the representatives of Canada and the United
States, when discussing the question of the admission of
Canada to the minimum tariff of the United States. It was
proposed in May 1910 by the United States Government
through the British Ambassador to renew the discussions at
that time, but this could not be arranged as the Canadian
ministers were separated, and Mr. Fielding had gone to
England. On January 6, 1911, however, the Canadian
ministers, Messrs. Fielding and Paterson, appeared at Wash-
ington, and were introduced to the President and the Secre-
tary of State of the United States. The discussions with
the United States Government were carried on direct, but
the Ambassador was in constant communication with the
Canadian ministers. Unexpectedly the negotiations, which
had been expected to be of somewhat limited type, resulted
in the arrival at a very striking amount of agreement, and
on January 19, Mr. Bryce could telegraph that the negotia-
tions were well advanced : on January 22, he was able to
send the substance of the agreement concluded. No formal
treaty was arrived at : the proposals made were for con-
current legislation, and, unlike a treaty, no fixed time was
prescribed for the continuance of the arrangement, which
thus resembled rather an agreement on policy carried into
detail than a treaty proper.
In sending the text of the arrangement on January 22, the
Ambassador expressed the opinion that British interests were
1 Part. Pap., Cd. 5582, p. 9 and 5523.
TRADE AND COMMERCIAL TREATIES 273
not to any appreciable extent prejudiced and stated that he
had the assurances of the Canadian ministers to this effect.
No opportunity was lost in the course of the negotiations
of reminding them of the regard which it was right and fitting
they should have to Imperial interests, while doing their best
for Canada, and such reminders had received a frank and
cordial response. The arrangement rested on a realization of
the fact that a high tariff wall between contiguous countries
whose products were economically interchangeable was an
injury to both, and opposed to sound fiscal principles. This
was specially so in the case of food tariffs, with which the
agreement chiefly dealt. The arrangement would probably
be justified and defended in the United States as an outcome
of the traditional policy of increasing the economic relations
between the States of the western hemisphere, but this policy
has no influence, either in the states of America or in Canada,
on the sense of nationality and international importance,
and there was no likelihood that a freer interchange of com-
modities would lead to closer relations of a political kind.
The Ambassador also noted that in some cases the duties
charged on Canadian imports into the United States would
be less than those on British imports, but he had the
assurance of Canadian ministers that the British imports
would not suffer from this fact.
The result of the negotiation was embarrassing to the Im-
perial Government, which had, it is clear from the published
papers, no really effective chance of controlling the negotia-
tions. A good deal of blame was in some quarters attributed
to Mr. Bryce l for his share in the matter, but no accusation,
it is clear, could have been more unjustly made. It is obvious
that Mr. Bryce was in the very difficult position of being un-
able effectively to control negotiations carried on by the
United States Government in close relation with the Canadian
ministers, and at so rapid a pace that no time was allowed for
full effect being given to any views which he might wish to
offer. It appears indeed from the correspondence that he
was very imperfectly informed of the details of the scheme,
1 Cf. House of Commons Debates, May 6, 1912.
1874 g
274 IMPERIAL UNITY AND THE DOMINIONS
and had not the full result in his hands before signature. It
is idle to blame an ambassador in these circumstances : his
mission was one of settling the many outstanding difficulties
which existed between the United Kingdom and the United
States, and no useful purpose would have been served by any
effort of his to insist on a more leisurely mode of carrying on
the negotiations. Indeed, as Sir E. Grey pointed out in his
defence, the only result of his interference would have been
to stimulate the demand for the concession to Canada of
the treaty power.
At the same time it was perfectly clear that the spirit and
manner of the conduct of the negotiations departed seriously
from the spirit laid down in the dispatches of 1895, and from
the procedure followed in 1907 and 1909. In both the cases
in question the negotiations had been, before a treaty was
signed, carefully scrutinized by the Imperial Government ;
the assertion1 that this was not the case is a complete
blunder : indeed the scrutiny was with effect for British in-
terests. In 191 1 the agreement was concluded with all regard,
no doubt, for such interests, but by two ministers of Canada,
who could not know what Imperial interests really were
involved. No one could doubt the patriotism of Mr. Fielding,
or his devotion to the interests of the Empire as well as of
Canada, but his wide knowledge of Canadian agriculture and
industrial conditions was not accompanied by any similar
knowledge of conditions in the United Kingdom, and the result
was. therefore, that a treaty was negotiated which could be
fairly argued to be likely, by promoting extremely close rela-
tions economically between the United States and Canada, to
attract Canada into the influence politically of the United
States. It was the exact danger which had been foreseen
by the Imperial Government in 1895, and it arose because of
the regrettable deviation from the actual principles laid down
by that Government, and never relaxed by the Imperial
Government. The actual preference to the goods of Canada
which would have been accorded by the United States over
other British goods was probably not a very serious matter,
1 Mr. A. J. Balfour, House of Commons Debates, July 21, 1910.
TRADE AND COMMERCIAL TREATIES 275
though even that was denied by tin plate manufacturers, but
the broad fact was that the result of the negotiation was to
realize the ideal of continental free trade which had been an
aim of the Liberal party in Canada, and which had, in 1891,
led to the resignation of the Hon. Edward Blake, as he felt
that it might not be compatible with the autonomy of Canada
and the integrity of the Empire. The situation was rendered
more difficult by the imprudence or candour of the President
of the United States,1 who gave it to be understood that he
considered that the policy would tend to lead Canada into
political union with the United States of America. The same
warning was given by leaders of the Conservative Party in
the Dominion, who felt that the old policy of Sir John Mac-
donald was being cast into jeopardy, and that the time had
come when they could attack the Government on a broad
national as opposed to mere party issues. The Opposition
had the support in this movement of the great manufacturing
industries of Ontario, who held that there was risk of their
ruin under the influence of the influx of cheaper goods from
the United States, while many were troubled by reason of the
obvious injury which the agreement would inflict on the
British preference and the British connexion, even assuming
that no political ill results were to be feared. The result was
the complete overthrow of the Liberal Government, after it
had failed to pass the amendments of the tariff necessary to
carry the agreement into effect, and after it had decided, in
response to the challenge of the Opposition, to obtain the
ratification of its policy by the people of the Dominion.
Parliament was dissolved without the necessary supply being
obtained, and the general election of September 21, 1911, re-
turned a majority of forty-five members for the Opposition in
place of a majority of forty-one : eight ministers were defeated,
and the loss of the leaders of the Liberal Party was so over-
whelming, that the Prime Minister, who resigned office with-
out meeting Parliament, decided that he must assume the
burden of leadership in opposition, though he had decided
before the election to retire from politics if his Government
1 Cf. Sir C. Tupper, Recollections of Sixty Years, pp. 172, 306.
82
276 IMPERIAL UNITY AND THE DOMINIONS
were overthrown. The main cause of the victory was the
feeling in Ontario, where the Opposition won six-sevenths
of the seats, that the American manufacturers would capture
the Canadian market ; the loyalty of the Maritime Pro-
vinces, where the Opposition greatly improved their position,
and of British Columbia, where no Liberal could obtain
a seat ; while the popularity of the policy of free entry
of agricultural products into the United States was seen
in the middle provinces, the Government improving its
position in Manitoba, Alberta, and Saskatchewan. It
must, however, be remembered that in these provinces
there is not merely a strong non-British European element,
but there is also a very marked American influence, derived
from the migration of men from the United States, attracted
by the rich lands opened to settlement in the prairie provinces
and urged on by the comparative lack of equally attractive
land in the United States. The result was, it is clear, the
best vindication of the principles laid down in 1895 : had they
been observed, there would have been no risk of the con-
clusion of a treaty which would have endangered the political
allegiance of Canada. It is fair, in examining the situation,
to realize that the Canadian delegates went to Washington
with no very clear idea l that there was much to be attained,
and that the proposals of the President, who took the matter
largely into his own hands, were rather a surprise to them.
The action of the President was, it is clear, based on the fact
that his party were in desperate need of some means by which
they might diminish the very high protective tariff which
they had secured in 1909, without, at the same time, abandon-
ing the principles for which they had fought in that year.
Had they been able to secure the passing into force of the
agreement with Canada, they would have lowered the highest
and most serious of the burdens on the American consumer,
and they would at the same time have been able to point to
their action, as the President did point to it, as motived by
high political no less than economical considerations.
Whatever the cause, there has been, since the fiasco of 191 1,
» Part. Pap., Cd. 5523, p. 3.
TRADE AND COMMERCIAL TREATIES 277
no further attempt in any Dominion to arrange serious com-
mercial negotiations on any independent basis. On the other
hand, a very important innovation has been arranged in very
recent times, and one which reflects the growing importance
of the Dominions. It has long been the practice of the self-
governing Dominions to send representatives to a vast mass
of miscellaneous congresses on every conceivable sort of social
question,1 but these congresses were not such as directly to
produce political results, and therefore no question of treaty-
making arose. It was, and is, therefore, possible for govern-
ments like the states of Australia and the provinces of Canada,
which have no international status at all, to take part in these
congresses. On the other hand, where an international agree-
ment was to result, it used to be the invariable practice that
the Dominions should not be represented at all, or that at
most they should be included as advisers in the representation
of the Imperial Government. Of the latter mode of pro-
cedure an excellent instance is that of the International
Conference of June and July 1911, at which the representa-
tives of the United Kingdom, the United States, Japan, and
Russia devised a system of protection for fur seals which it was
hoped later to extend to other countries : at this Conference
the Canadian Under Secretary of State for External Affairs
was associated with the other British representative, Mr.
Bryce. On the other hand, in the case of the International
Opium Conference convened at The Hague at the end of 1911,
the labours of which resulted in an important convention,
signed on January 23, 1912,2 though the Dominion Govern-
ments were invited by the Imperial Government to send
representatives to assist the Imperial representatives, they
thought it needless to do so. The convention was, therefore,
riot signed by the British delegates on behalf of any Dominion,
but the power was reserved to sign separately in respect of any
Dominion, colony, possession, or protectorate, and the assent
of the self-governing Dominions to the signature of the con-
vention in question was obtained in the course of 1912.
1 See, e. g., Parl Pap., Cd. 6863, pp. 7, 8 ; 7507, pp. 8, 9.
2 Parl Pap., Cd. 6038.
278 IMPERIAL UNITY AND THE DOMINIONS
A new procedure was, however, to appear. In July 191 1 an
international conference was summoned by the United States
Government to be held at Washington for the revision of the
International Convention respecting the protection of in-
dustrial property, and the arrangement for the prevention
of the false indication of origin upon goods. A special invita-
tion to be present at the Conference was sent * to the Govern-
ment of Canada through the usual channel, the Ambassador
at Washington and the Governor-General. The Conference
resulted in a convention, but the delegates sent by Canada
were unable to see their way to agree to the convention, and
therefore the difficult question of their status and position
never arose. The difficulty was one under the constitution of
the existing international convention which made no pro-
vision for the separate representation of the Dominions, but
elasticity of international arrangements is shown by the fact
that the United States gave the invitation, and it was not in
the interest of any power to question the presence of the
Canadian representatives. The British delegates, however,
not only secured the usual power to adhere or withdraw from
the convention in respect of the British possessions of every
kind, but they made a formal declaration that certain British
Dominions, which adhered to the convention, and which
possessed legislative authority on the subject of industrial
property, should be represented at the Conference of the
International Union by delegates who should have the same
right to vote as was accorded to the delegates of contracting
countries, it being understood that the Dominions would con-
tribute in the same manner as other unionist states to the
expenses of the international bureau.
A further step in progress was taken in the following year.
It became desirable to convene an international radio-
telegraphic conference at London, and the question of the
position of the representatives of the self-governing Do-
minions at once arose. Already in the case of Postal Con-
ferences, it had been found possible to secure certain votes
for the British Colonies, and in 1906 2 the self-governing
1 Part. Pap., Cd. 5842. « Parl Pap., Cd. 3556.
TRADE AND COMMERCIAL TREATIES 279
Dominions, except Newfoundland, were represented by
delegates appointed by their governments and not included
in the British delegation. These delegates were thoroughly
anomalous in status. They did not act, as has been supposed,1
under the authority of the appointment of their local govern-
ments only : to avoid trouble arising, each colonial delegate
was presented with a curious document, signed by the Secre-
tary of State for the Colonies, purporting to confer on him
full power to act in the matter. The procedure was in every
way undesirable: the British delegates also had not full
powers, but authority from the Postmaster-General, and
the arrangements arrived at were not ratified but approved,
and confirmed by the administrations concerned. The
anomaly of the colonial delegates' position was thus
lessened, but the whole plan of action seems to be badly
arranged.
At any rate, the same mode of action was not followed in
the case of the Radio-telegraphic Conference : the four great
self-governing Dominions were each represented at it by
delegates who carried with them as their credentials full
powers 2 under the great seal of the United Kingdom, differ-
ing only from the full powers granted to the Imperial delegates
in having the words ' on behalf of the Dominion of Canada ',
or as the case might be, added after the words ' Commissioner,
Procurator and Plenipotentiary ' . The excellent precedent
thus set was followed less than two years later when, at the
International Conference 3 on the safety of life at sea, held
at London in December 1913 and January 1914, the self-
governing Dominions of Canada, the Commonwealth of
Australia, and New Zealand were all represented by pleni-
potentiaries.
The essential difference from the new as compared with the
old practice lies of course in the fact that the plenipotentiaries
of the Dominions are now no longer merely plenipotentiaries
1 J. S. Ewart, Kingdom Papers, ii. 234.
2 See the extract from the full powers in Ewart, Kingdom Papers, ii. 235.
3 Parl. Pap., Cd. 7426. Ewart, loc. cit., is misinformed as to the position
of the Canadian delegate.
280 IMPERIAL UNITY AND THE DOMINIONS
for the United Kingdom. In the case of their being included
in the British delegation, the vote of the British delegation
must be cast in the same sense,1 whatever the views of the
different members : in the case of separate plenipotentiaries
the votes of the several plenipotentiaries might be very
differently cast. This involves, of course, the curious posi-
tion that His Majesty may through one set of plenipoten-
tiaries declare one view and, through another, another view,
but it is merely a common-sense recognition of the diversity
within the uniformity of the Empire. It is no more curious
than the existence of independent governments within the
Empire pursuing different policies in many respects. Nor
must it be ignored that the grant of full powers is advised by
the Imperial Government, and that the ratification of any
convention rests with the King on the advice of the Imperial
Government. Thus the Imperial Government retains an
effective means of control on the action of the Dominion
Governments, however little such control may be likely to be
required.
1 In a case in 1883, on a conference on submarine cables, Sir C. Tupper
opposed the other British delegates and induced them to accept his view,
Recollections of Sixty Years, p. 175.
CHAPTER XIV
POLITICAL TREATIES.
FROM the political point of view, few points remain doubt-
ful in the rules regarding the treaty power. It is at present
settled law that a treaty proper can be made only by the
Crown on the advice in the long run of his Imperial ministers,
that responsibility for the carrying out of treaty rests on the
Imperial Government, to which demands for redress must
be sent by foreign powers, and that the mere making of a
treaty has no effect to alter the law of the United Kingdom
or any Dominion. The Imperial Government, therefore,
if it makes a treaty, must be prepared to secure that the
treaty shall be put into force, and to interpret the treaty
unless it is required or induced by the other party to submit
the meaning of the treaty to arbitration. But the main duty
of dealing with treaties which affect a Dominion must lie
with a Dominion, and any treaty which requires action by
a Dominion has normally been made subject to legislation
therein, as in the case of the treaties with the United States
affecting fishery matters in Canada in 1854 and 1871, as well
as the abortive treaty negotiated by Mr. Chamberlain in 1888
and the agreement made by the Canadian ministers and the
United States Secretary of State on January 21, 1911, which
never came to fruition. The theory that none but a sovereign
legislature and executive can deal with any matter affecting
treaty rights was nevertheless actually put forward by the
Government of the United States in 1886, when that Govern-
ment was annoyed by Canada, but was at once refuted by the
British Government, and Mr. Bayard, who put it forward,1
is shortly afterwards to be found writing to Sir C. Tupper 2
expressing his regret at the troublesome procedure of not
1 Par/. Pap., C. 4937, p. 37. 2 Recollections of Sixty Years, p. 177.
282 IMPERIAL UNITY AND THE DOMINIONS
dealing direct with Canada on the matter. A similar protest
against colonial action in 1891-2 by the French Government
in connexion with Newfoundland was met by a similar reply,1
and the Hague arbitral tribunal of 1910, in settling the
fishery dispute between the United Kingdom and the United
States, provided for the case of the carrying out of British
legislation by the Imperial Parliament and the Parliaments
of Canada and Newfoundland.2
The question has been raised in the Dominions, by no less
a person than the present Prime Minister of Canada,3 whether
any treaty which requires legislative action to make it effective
should not be expressed to be subject to the approval of any
Parliament whose action would be concerned. The circum-
stances of the case on which his remarks were based were,
however, very exceptional in international relations. In the
United States the treaty-making power is vested in the Presi-
dent of the United States, and until the Senate approves a
treaty it is contrary to practice that its terms should be
published, though de facto the treaty is printed in all the news-
papers from a copy lent by some Senator. This happened in
the case of the Treaty of 1909 with the United States regard-
ing boundary waters, which was published in the United States
at a time when the Canadian House of Commons had been
unable to obtain any details of its terms. The occasion was
made a ground of complaint against the theoretic ignoring
of Canada in the negotiations. Mr. Borden thought that by
making treaties subject to parliamentary ratification such an
incident would be avoided, but it does not appear that this
would in any way be the case, so long as the United States
Government continue to refuse official publication before
consideration by the Senate, and so long as the Senate allows
the treaties submitted to it to be divulged. The rest of Mr.
Borden's speech of May 14, 1909, was devoted to showing
the necessity of legislation to give effect to the treaty in
question, the desirability of ratification being made subject
to Parliamentary approval, and the enumeration of cases
1 Part. Pap., C. 6703. 2 Parl Pap., Cd. 5396.
' Canada Home of Commons Debates, May 14, 1909.
POLITICAL TREATIES 283
where treaties had been expressed as not taking effect unless
legislation should be passed. His arguments, however, are not
altogether convincing, if it is remembered that a treaty must
be ratified, and that it is easy enough to secure discussion of
a treaty before it is ratified, and that such a practice has
grown up in the United Kingdom, where even if legislation
is not required before ratification opportunity is given to
allow of discussion, while if legislation is needed it is duly
introduced and carried before ratification is accorded, as was
the case with the Copyright Act of 1911, passed in order to
allow of ratification of the Berlin Copyright Convention of
1908. Whether it is worth while making the treaty formally
dependent on parliamentary approval, as in the case of the
cessions of territory in the Anglo-German Treaty of 18901 and
the Anglo-French Treaty of 1904,2 is in the main a matter of
form. The important part of the question is the securing of
parliamentary approval 3 and the closer control of the treaty
power by Parliament, of the value of which a striking instance
has been given by the European War, which vindicates the
action of the Upper Chamber in rejecting in 1911 the Bill
which would have enabled the Government to ratify the
unhappy London Convention regarding naval warfare.
The ultimate right of the Imperial Government to inter-
pret treaties was contested very bitterly at various times by
Newfoundland, but the Imperial Government have twice
asserted their right in a convincing manner. On the first
occasion, an episode in the long discussion over the French
fishery rights in the colony,4 the Newfoundland delegates
would not yield to the views of the Imperial Government
until not only was a modus vivendi with the Republic passed
over their heads, but the Imperial Government, having
enforced it without legal authority, and having thought it
1 53 and 54 Viet. c. 32. 2 4 Edw. VII, c. 33.
3 So in 1914 the Act 5 Geo. V, c. 1, was obtained to allow of the ratification
of the Portuguese treaty of Aug. 12, 1914. In 1911 the Genera Convention
Act was passed to allow of adherence in full to the Convention of 1906
regarding the Red Cross.
4 Par/. Pap., C. 6703 ; Baird v. Walker [1892] A.C. 491.
284 IMPERIAL UNITY AND THE DOMINIONS
best to compensate those whose property they had inter-
fered with, brought a Bill forward which would have
settled the dispute in their favour. In the second case, that
of the dispute over the American fishery rights in Newfound-
land in 1905-7, the resistance of Newfoundland went so far
as to leave no option to the Imperial Government but to
override the legislation of the Colony by an Imperial Order
in Council of September 9, 1907, made under the powers
conferred by the old Act of 1819, which was passed in order
to enable the Crown to carry into effect the Treaty of 1818
regarding the American fishery rights in the waters of North
America. The resentment of Newfoundland against the
United States arose from the failure of the United States
Senate to ratify the treaty which was arranged between Sir
R. Bond and Mr. Hay in 1902 and concluded by the British
Ambassador at Washington. That treaty, which was marked
by the extraordinary provision that Newfoundland bound
herself to give the United States national treatment in regard
to all imports whatever, was blocked in the Senate by Senator
Lodge on behalf of the interests of the New England fisher-
men, and in retaliation Sir R. Bond began an energetic policy
of enforcing in the strictest manner possible the laws in force
against American fishermen, and secured the passing of a
further Act, in 1905, under the terms of which extensive
powers of boarding and bringing into port for examination
foreign fishing vessels were conferred on officers of Newfound-
land, and it was enacted that the presence on board such a
vessel of caplin, squid, or other bait fish, ice, lines, seines, or
other outfit, should be presumed to show that they had been
purchased within the waters of Newfoundland, it being, under
the Bait Act of 1887 of the Colony, an offence to make any
such purchase. These provisions were much resented by the
Government of the United States, and the situation assumed
an appearance of considerable gravity, which was compli-
cated by the fact that the Newfoundland fishermen were, in
marfy cases, most anxious to remain on friendly terms with
the Americans who employed them to catch fish for them,
1 Parl Pap., Cd. 3262 and 3765.
POLITICAL TREATIES 285
thereafter selling the fish thus caught in the United States
as American caught fish, and so passing them through the
customs free of the heavy duty levied on Newfoundland fish.
The situation was composed at last by means of a modus
vivendi after every effort had been made in vain to induce the
colonial government to agree to terms pending the reference
of the dispute to arbitration, which the Secretary of State
for Foreign Affairs had undertaken to arrange. As the New-
foundland Government would not yield and, as it would have
been disastrous to allow strife to occur in the period before
arbitration, a modus vivendi 1 had to be concluded over the
head of the Government, and to render it effective it became
necessary to override the law of Newfoundland. The period
when action became unavoidable was in September 1907,
when no meeting of Parliament was possible, and it was
therefore necessary to resort to the powers given in the Act
of 1819. In accordance with these powers an Order in Council
was therefore issued, the effect of which was to forbid the
boarding and bringing into port of an American fishing vessel
in the exercise of the treaty right, to put the onus of proof of
purchase in the limits of Newfoundland of bait, &c., on the
person alleging such purchase, and not on the ship, and to
forbid the serving of process on American ships or the seizure
of ships or gear without the consent of the senior naval
officer on the Newfoundland station. The effect of the Order
was admirable : the Government of Newfoundland pro-
tested, but the arguments adduced by the Secretary of State
were so convincing that there was not even a discussion in
the Imperial Parliament on the subject: it was felt in Canada,
as elsewhere, that the deliberate plan of endeavouring to
annoy the United States when arbitration had been agreed
upon was not one which could be supported, and the corre-
spondence published showed that every effort had been
made to bring about an agreement between the two Govern-
ments, and that no failure of communicating with the
Colony at every stage had occurred. Indeed, the Times,
never inclined to regard with approval overruling of colonial
1 Parl. Pap., Cd. 3754.
286 IMPERIAL UNITY AND THE DOMINIONS
governments, was constrained to express approval of the
attitude and action of the Government. Nor did any of the
other Dominions endeavour to intervene in support of New-
foundland ; the exposition of affairs given was clearly con-
vincing to these governments also, and, indeed, it is well
known that Canada was unable to sympathize in any way
with Sir Robert Bond.
While in political matters treaties have never been to the
same degree subject to the control of the Dominions as in
commercial matters, it would be a mistake to imagine that
there has ever been any tendency since the rise of self-
government to deal with important political questions affect-
ing the Dominions save in close conjunction with these
Dominions. Thus in 1857 Mr. Labouchere gave to New-
foundland, after her attainment of self-government, the
assurance that her position would not be affected by treaties
without her consent being obtained. In the great series of
negotiations which took place at Washington in 1871 Canada
was represented by Sir John Macdonald, who was one of the
British delegates, and who was unable to agree with his
colleagues on all points.1 Not only was the promise as to
France faithfully kept, but Canada was represented on the
delegation which arranged the abortive Treaty of 1888 with
the United States, and on the Joint High Commission which
in 1898-9 made a determined but unsuccessful effort to settle
the Alaska boundary and other difficulties outstanding be-
tween the two countries. After the crisis of 1907 was over,
Newfoundland was induced to co-operate in arranging a modus
vivendi for 1908, when the Order in Council passed in 1907 was
revoked, and both that Dominion and Canada concurred
in the wording of the terms of reference to arbitration of
the fishery dispute in 1909.2 In the case of the New Hebrides
efforts to keep in touch with the Governments of Australia
and New Zealand proved less successful,3 and thetwoGovern-
1 See J. Pope, Sir John Macdonald, ii. 104 sq. Contrast Sir C. Tupper,
Recollections of Sixty Years, pp. 371, 391.
» Pad. Pap., Cd. 4528 and 4815.
3 Parl Pap., Cd. 2385, 3160, 3288, 3300, 3525, and 3876.
POLITICAL TREATIES 287
ments protested with much vigour against what they con-
sidered the inadequate consultation of them in this regard,
though New Zealand consented to take a part in the drawing
up of detailed regulations under the Convention of 1905. Curi-
ously enough, in 1914, when a fresh conference on this question
took place, though the Dominions were consulted, the grave
mistake was made of having no representative of either on
the body of British delegates, an omission which might have
led to serious friction, but for the more important events
which rendered the work of the Commission in endeavouring
to introduce some order in the affairs of the New Hebrides
unlikely to bear much immediate fruit.
In 1908 a further step in emphasizing the independent
character of the Dominions was taken. In the arbitration
treaty with the United States, concluded in that year, it was
expressly provided that the Imperial Government reserved
to itself, the right, before accepting an agreement for refer-
ence to arbitration in the case of any matter affecting the
interests of a self-governing Dominion, to obtain the con-
currence of that Dominion in the agreement. The provision
was intended to place the British Government in the same
position in regard to such matters as the Government of the
United States. Any treaty negotiated by the Government of
the United States may fail to receive the approval of the
Senate, and thus it falls to the ground, and under the arbitra-
tion treaty the approval of the compromis in each case
was required from the Senate. It thus became possible for
the Senate to refuse to accept arbitration, and by the
treaty the same right was secured to any self-governing
Dominion in a case in which that Government was concerned.
The same principle was adopted in the Pecuniary Claims
Treaty of 1910, l and again in the Treaty of 19142 regarding
the establishment of a Peace Commission to consider ques-
tions in dispute between the two Governments, not only were
the Dominion Governments consulted before the treaty was
accepted, but it was provided that in the case of a dispute
affecting a self-governing Dominion the member of the
1 Parl Pap., Cd. 5803. 2 pari pap>> ctf. 7963.
288 IMPERIAL UNITY AND THE DOMINIONS
Commission chosen by the British Government could be
changed so as to secure the presence of a representative of the
Dominion on the Commission. But this principle has not yet
been embodied in any other arbitration treaty, whether first
concluded or renewed, since that date, as its acceptance
was only secured because of the very exceptional position
occupied by the Senate in the United States. On the other
hand the doctrine of asking the consent of the Dominions
before any arbitration treaty is concluded or renewed has
been definitely and successfully adopted, as in the case of the
renewal of the treaties with Spain and Italy in 1913, Switzer-
land in 1914, and the Netherlands in 1915. The gain in this
mode of procedure is obvious, as if dispute arises it is not
a question of the Imperial Government having to press the
Dominion Government to accept arbitration for the sake of
the Empire, but merely asking the Government to carry out
an arrangement made by its duly authorized predecessor.
Nor, so far, has it seemed necessary to obtain parliamentary
sanction for such treaties.
At the Imperial Conference of 1911 the question for the
first time was raised in concrete form as to the right of
the Dominions to be consulted in the case of the negotia-
tion of the great international conventions regarding war
and peace, the Hague Conventions. The point arose in
a rather curious way. The London Naval Conference l dealt
with questions of the first interest to the Dominions, questions
of contraband and capture at sea, and the results of the
Conference, which were summed up in the Declaration of
London, excited much interest in the United Kingdom,
where they provoked a lively polemic and helped to focus
the attention of the Dominions on the topic. The result was
the formal motion on the part of the Commonwealth at the
Imperial Conference2 regretting the failure to consult the Do-
minions regarding the Declaration of London, and the frank
admission of the Imperial Government that the omission
to consult arose directly from the fact that the Dominions
1 Parl Pap., Cd. 4554, 4555, and 5618.
2 Parl Pap., Cd., 5745, pp. 79 sq.
POLITICAL TREATIES 289
were not represented at the Hague Conference of 1907, nor
of course at that of 1899. Nor indeed had any suggestion of
their representation at these Conferences previously been
made by the Dominions. The Conference accordingly agreed
that, when framing the instructions to be given to the British
delegates at the next of such Conferences, the Dominions
should be afforded an opportunity of consultation, and that
when conventions affecting the Dominions had been provi-
sionally assented to at the Conference they should be circu-
lated to the Dominions for consideration before signature,
and that a similar procedure, where time and circumstances
permitted, should be adopted in the case of other international
agreements affecting the Dominions.
It is impossible to avoid raising the question whether the
position of the Dominions should not be definitely recog-
nized by their separate representation by plenipotentiaries
at the next Hague Conference or similar Conferences. The
proposal is, of course, new, and it does go a good deal beyond
anything contemplated at the Conference of 1911, when Sir
Wilfrid Laurier1 hinted reluctance to advise in these matters,
since advice meant backing up that advice with assistance in
war, and since Canada did not hold the view that she must
necessarily send men and ships to engage in all British wars.
The proposal then made did not go so far as even to suggest
that Canada or other Dominion representatives should be
included among the number of British representatives
appointed as plenipotentiaries. But in that position it may
be doubted if they would be a source of much strength : if
they disagreed with the British delegates they would have
to be overruled, and on the other hand their agreement with
these delegates would hardly add much to the force of the
British position, if they were merely regarded as classed with
the British delegation.
There are undoubtedly difficulties in the way of any such
proposal. In the first place it would be necessary for the
Dominion Government to be invited, but it is certainly not
an insuperable difficulty : it would always be possible for
1 Part. Pap., Cd. 5745, p. 117.
1874 rp
290 IMPERIAL UNITY AND THE DOMINIONS
the British Government to intimate that an invitation to the
Dominions was expected, and, if not received, that the British
Government would not find it possible to be present. Or, if
desirable, before the next such Conference, this invitation of
the Dominions could be secured by formal negotiations with
the great powers. In the second place it is possible to object
that such representation would be inimical to the unity of
the Empire, and the position of the British Government.
This view seems open to serious doubt : while on occasion
differences of opinion might arise — if it is true l that the
Dominions would have supported the exemption of property
from capture at sea at the last Conference, it is proof that
their absence from it was an excellent thing — but in the
main it would be advantageous to the United Kingdom to
have its views reinforced by those of representatives of
populations of over fifteen million white people. At the last
Hague Conference, of forty-four peoples represented, only
thirteen had populations larger than Canada. It is, however,
true that the spectacle of the separate representation of the
Dominions might emphasize in a marked way the separate
character of the elements of the Empire, but it is doubtful
whether this would be more the case than at present, when
the self-government of the Dominions has become notorious,
and the unity of the Empire is already in some measure
definitely broken up. But it must be remembered that in
point of fact the full powers to act on these occasions would
be issued by the Crown on the advice of the Imperial Ministry ,
and that the power of ratification again rests with the King
on the advice of the Imperial Ministry, and thus in effect the
presence of these delegates would attest the real unity in
foreign matters of the Empire, in so far as it represents one
sovereignty, and one controlling power for foreign affairs.
It is also to be noted that not only in commercial matters
such as merchant shipping, but also in the matter of radio-
telegraphy, which has close relation to national defence, the
precedent of the separate representation of the self-govern-
ing Dominions has already been set.
1 J. S. Ewart, Kingdom Papers, ii. 239.
POLITICAL TREATIES 291
The more serious objection to be urged to the proposal is
the fact that it would in such matters as those regulating
the rules of war be a necessity that the result decided upon
by the self-governing Dominions should harmonize with the
views of the Imperial Government. It is perfectly clear that,
if certain rules as to the conduct of war, whether naval or
military, are laid down, it is impossible for a Dominion to
refuse to allow the rules to be applicable in her case. If
the Empire is at war any enemy would treat it as one, and
could not be expected to discriminate between different
parts, just as it would in fact be impossible for the different
forces of the Crown to carry on the war according to different
rules. The most simple case that can be thought out is that
of the question of the capture of merchant ships at sea. It
might be agreed by the majority of the powers and by one
of the Dominions that this power should not be exercised,
while other powers, including the United Kingdom, retained
the power. Now the Dominion war vessels, if any, might in
theory not be used to capture such merchant vessels, and
in return the Dominion might expect that the foreign power
would not capture her registered merchant ships. Obviously,
however, the other power would at once be able to object
that the British disposition of forces would place the
Dominion vessel, with its inability to capture enemy mer-
chant vessels, in some part of the field of operations where
it would have other work to do, and would send a British
vessel instead to the point where merchant vessels could be
expected to be captured, and would not for a moment agree
to spare Dominion ships because they were registered in
such a Dominion. In any other case which can be imagined
the absurdity would become more palpable. If military or
naval forces act together they must act under one code of
international law, or confusion will be endless. The strength
of this reasoning can be illustrated by an obvious case : on the
occasion of the European War it was found essential for
France and the United Kingdom to assimilate as closely as
possible their laws as to naval prize, and that despite the
fact that the two fleets were in every way distinct and not so
T 2
292 IMPERIAL UNITY AND THE DOMINIONS
closely allied in action as any Dominion and British fleets
must be.
This consideration, however, is not an argument which
is conclusive against the concession of separate plenipoten-
tiaries : in these Hague Conferences, it is notorious that
allied powers go with the intention of supporting the views
which they have agreed upon before the meeting, and the
same arrangement could easily be made among the repre-
sentatives of the several Britannic Governments. It is only
necessary that the final action to be taken should be agreed
upon, so that if the delegates in the first instance cannot
agree, it is open for the final decision of the different Govern-
ments to be arrived at after the discussion at the Conference,
and after it is known how the majority of powers have decided
to act. This is rendered easy by the fact that signature
of the Hague Conventions can be delayed for a certain time,
which can be varied by agreement, and that if there arose
a difference of view among the delegates the matter could be
finally arranged by discussion with the governments con-
cerned. The position would for all practical purposes be
just as difficult if the Dominions were only allowed to send
members to serve on the British delegation. Such delegates
would certainly not consent to serve if they were simply to
agree with the British delegates : as early as 1883, at a con-
ference regarding the protection of submarine cables, Sir C.
Tupper voted differently from the other British delegates,
and won them round to his view,1 and in the negotiations
at Washington in 1871, Sir John Macdonald engaged in a
vehement controversy with the British delegates. Nothing
would thus be gained by the refusal to create the delegates
plenipotentiaries, and there would be lost the weight given
by the effective appearance of the representatives of coming
nations, two of whrch are already sufficiently large in popu-
lation to count as important powers even in an international
sense, while they have before them prospects which promise
the one a commanding position in the future comparable to
that of any power in the world, and the other a place of
1 Recollections of Sixty Years, p. 175.
POLITICAL TREATIES 293
honour and dignity among the nations. It is doubtful if the
sense of authority of such communities can ever be adequately
satisfied by mere inclusion in any British delegation, how-
ever much they might be able to influence that delegation.
It must be borne in mind that the making of conventions
tends more and more to require legislation in the Dominions,
and the time when the Dominions could be expected to pass
legislation in this regard without knowledge is past. It is
also equally out of the question to expect the Dominion
Parliaments longer to acquiesce in the passing of Imperial
legislation on these topics without consultation, and in most
cases the passing of local legislation will be doubtless pre-
ferred. The Geneva Convention Act, 191 1,1 indeed was passed
without any such reference to the Dominions, but provision
was made in it for adaptation by Order in Council to the
Dominions, and it was accordingly adapted in consultation
with the Dominion Governments, but even so the passing
of such a measure which actually interfered with Dominion
trade-marks was obviously unconstitutional.
There is every ground to prefer the extension of the
authority of the Dominion Governments under the form of
the appointment of plenipotentiaries by the King, and his
ratification of their actions with, in each case, the advice
of the Imperial Government. The latter qualification is of
course essential : if the advice on which the representatives
of the Dominion were appointed plenipotentiaries and their
acts ratified was that of Dominion ministers alone, then the
Crown would cease to be an element of unity, but would
become a different personality for each part of the Empire,
and nothing could result but inconvenience from a position
which converted the King resident in the United Kingdom
into an independent and different sovereign, living indeed in
the United Kingdom,but acting in a totally different capacity.
The exercise of the power of appointment and ratification
ultimately on the advice of the Imperial Ministry, though
1 It was passed to permit of the withdrawal of the reservation made by
the United Kingdom to the Geneva Convention of 1906 ; Par/. Pap.,
Cd. 7715.
294 IMPERIAL UNITY AND THE DOMINIONS
that Ministry would normally act as desired by the Dominion
Governments, retains in the Crown a centre of unity in the
Empire, and some unity is essential to the existence of the
Empire. Moreover, the observance of these forms would
avoid the disadvantages which now arise from attempts at
separate treaty- making, such as that of the Canadian minis-
ters in 1911, whose action, had it been ratified by the Par-
liament of Canada, would have undoubtedly tended to
diminish the unity of the Empire, and perhaps ultimately
to destroy that unity altogether.
It is a matter of some importance that the demand for the
right to make treaties independently of the Imperial power,
though it has been claimed now and then, as for instance, in
the proposal for the neutrality of the Colonies made in 1870
by certain members of the Royal Commission appointed by
the Governor of Victoria to consider questions of federal
union, and though it has on several occasions been the sub-
ject of discussion in the Parliament of Canada,1 has never
led to the definite adoption by a responsible Parliament
of the Empire of the demand as justifiable and desirable.
It is, however, clear that the policy of the Liberal
Government in Canada in the years 1910 and 1911 in
negotiating so freely with the Consuls-General of the foreign
powers resident in Canada was one of some danger to the
unity of the treaty power, and the sense of the changing
position thus accorded to consular officers was shown by the
debate which took place in the Canadian House of Commons
at the end of 1910,2 when the proposal was made that the
consular officers of the great powers should be given a
quasi-diplomatic rank and recognition, a proposal which Sir
Wilfrid Laurier neither accepted nor refused outright, con-
fining himself to a statement of the development in the
position of these officials, which had taken place. It must,
however, be regarded as doubtful in the extreme whether the
1 See House of Commons Debates, Oct. 3, 1874 ; April 21, 1882 ; Feb. 18,
1889; April 7, 1892; Feb. 20, 1908; Willison, Sir Wilfrid Laurier, i.
206 seq.
* Cf. Canadian Annual Review, 1910, p. 89.
POLITICAL TREATIES 295
development of the diplomatic position of consular officers
is in any way to be desired. It is indeed argued in favour of
this course that it is thus possible to ascertain more accurately
the views of the foreign powers than can be done through
the diplomatic channel, but the strength of this view cer-
tainly seems to be very slight, and to be contradicted by
probability and by facts. Quite as much as any diplomatic
officers, consuls have to refer back to their Governments at
every point for instructions, and detailed arrangements of
any kind are not matters in which they seem to be com-
petent to give any great deal of assistance. At any rate,
when the first adherence of Canada to the Japanese treaty of
commerce was given in 1906 the Canadian Government seem
to have acted on the views of the Japanese consular officer in
Canada to the effect that there need be no fear of any con-
siderable Japanese immigration, and, when his predictions
were falsified by the considerable influx of Japanese from
Hawaii which culminated in rioting in British Columbia, it is
significant that it was to Japan that Mr. Lemieux was sent
with instructions to negotiate with the assistance of the
British Ambassador an arrangement for the purpose of avoid-
ing any recurrence of the difficulty, and it was in Japan that
the satisfactory arrangement was arrived at. The two con-
ventions with France of 1907 and 1909 were both negotiated
direct with French ministers by Mr. Fielding, and it was at
Washington with the President and his Secretary of State
that the Canadian ministers in 1911 negotiated. Even
assuming that consular officers of specially high qualifica-
tions were sent to the Dominions, it would always seem better
for the Dominion Governments to get into direct touch
with responsible ministers in the foreign countries concerned,
and only thus of course, when they act formally and under
the control in the long run of the Imperial Government, can
they have any security that they are not inadvertently in-
juring other Imperial interests. Nor of course can the fact
be overlooked that the Imperial interest is often of the
greatest assistance to the Dominions in negotiating treaties.
It is not to be supposed for a moment that the same terms
296 IMPERIAL UNITY AND THE DOMINIONS
would, for instance, be given to Newfoundland l as are given
to the United Kingdom without the intervention of the latter,
and for most of the Dominions the Imperial Government has
already been able to win considerable commercial advantages
by associating them with herself in trade negotiations. In
fact it may fairly be said that a separate negotiation is really
one which is conceived from a purely selfish point of view,
and that if any Dominion is anxious not to neglect Imperial
interests at large she will normally and naturally seek the
support of the Imperial Government, which must have a
special knowledge of the interests of the other parts of the
Empire.
There is a matter of recent date which points to the realiz-
ation by the Dominions of the advantages which are to be
derived from close co-operation with the Imperial Govern-
ment. The practice of appointing trade agents to perform
in the foreign countries to which they are sent trade func-
tions for the benefit of Dominion subjects has been carried
to a considerable extent by the Dominion of Canada, and
to a much less extent in Australia. It is now clear that these
appointments have seldom much success in the purposes for
which they are intended. The propensity of Canadian trade
agents for getting into trouble with the Governments of the
countries where they are posted by injudicious action in
tempting people to emigrate from countries whence emigra-
tion is forbidden is notorious, and was the cause of a very
grave dispute in 1914 with the Government of Austria-Hun-
gary, which, though due in the main to intrigues on the part of
the German rivals of the Canadian railways, was in part, no
doubt, caused by connivance at prohibited emigration. In
this case the persons involved were not Government em-
ployees, but it was currently reported on excellent authority
that so distinguished a man as the late High Commissioner
for the Dominion was unable to visit Germany in view of
proceedings which the German authorities were anxious to
take against him in respect of contraventions of German law.
1 e. g. the concessions on Newfoundland fish secured in the Portuguese
treaty of commerce.
POLITICAL TREATIES 297
Further, the Conservative Government when taking office
in 1911 found that the conduct of the work of the agencies
in Europe was in considerable measure unsatisfactory, and
it decided to make more free use of the facilities offered by
the Foreign Office for the employment of British consular and
diplomatic officers in connexion with the advance of Canadian
trade. The wisdom of the decision in question is obvious : it
would be hopelessly expensive for any Dominion to duplicate
the system of consuls, and even if the men were appointed
they could not receive any consular status, as the right to
appoint consular officers is one which appertains only, and
is accorded in treaties solely, to the sovereign power in the
Empire. If it were desired to give them consular status,
this could indeed be done by securing their appointment by
the Crown as His Majesty's consuls for Canada, or whatever
other Dominion was concerned, but such an appointment
would mean that the holders of office were appointed on the
advice of the Imperial Government, and would have to be
subjected to the control of the Imperial Government, since
that Government would be responsible for them vis-a-vis the
foreign Government, as it is not now responsible for mere
commercial agents. The same result can be attained more
effectively and easily and much more cheaply by the use of
British consuls by the Dominions, who can pay if necessary
any extra clerical expense caused by their employment.
The same consideration, it may be added, applies to the
representation of the Dominions by diplomatic officers in
the foreign capitals : these officers could not, as long as the
Empire is constituted as at present, be other than appointees
of the Crown on the authority of the Imperial Government.1
One class of treaties presents a special interest, that re-
garding extradition, by reason of the curious fact that up to
the latest date these treaties have been regarded as some-
thing on which the Dominions do not need to be consulted,
1 The statement in the Canadian Annual Review, 1910, p. 90, that in
the case of Mr. Preston's appointment as Trade Commissioner in Holland
he was given a British status without British control is a mistake. This
was not done in any way.
298 IMPERIAL UNITY AND THE DOMINIONS
and which therefore become applicable to the Dominions
without reference to their wishes. There is, of course, no
logical reasoning for this procedure, which will doubtless
follow the example of similar illogical procedures and dis-
appear for good. The principle that a criminal should be
extradited, to whichever part of the world he may fly for
refuge, is doubtless sound, and the British Dominions are
hardly likely in any case in which they are consulted to seek
to refuse the surrender of a criminal by remaining outside the
scope of an extradition treaty, but that is clearly no reason
why they should not be allowed the option of deciding for
themselves, and similarly it should be possible for any
Dominion to be withdrawn from the operation of such a
treaty by due notice if it so wishes. In such a case, there
would of course be perfect mutuality of rendition : if the
Dominion were not affected by the treaty her criminals
could enjoy safety in the country affected by the refusal, and
vice versa. Moreover, it may be desirable that the views of
the Dominions should be consulted as to the exact nature
of the crimes to be inserted in the schedule to the treaty in
which the offences covered by it are enumerated.
A further deduction from logical principles leads to the
view that the Imperial Government must not hesitate when
desired to conclude special conventions for the extradition
of fugitive offenders for the benefit of special Dominions,
which may have special conditions not within the existing
treaties. It is probable enough that this could not effec-
tively be done under the terms of the existing Extradition Act,
which does not appear to contemplate any such procedure,
but to recognize only a general extradition treaty. But it
is obvious that should two countries, one a Dominion and
one a foreign country, have conterminous boundaries, the
effect to a treaty could always be given by the simple process
of reciprocal legislation without recourse to the terms of the
Extradition Act at all. More difficulty would arise if the
person to be extradited were being conveyed through British
territory outside the Dominion affected, since in such territory
he would appear clearly not to be in any legal custody what-
POLITICAL TREATIES 299
ever, and to legalize his detention either an extension of the
Imperial Act or local legislation would be required. It is,
however, obviously doubtful whether such a case could easily
arise, since the conclusion of special treaties would almost
always be required because of the necessity of meeting some
crime specially common in two adjoining countries with
common interests.
Special interest attaches to the Canadian legislation on
extradition, because alone of Dominion Legislatures that of
Canada has insisted on so legislating to cover the whole
ground as to allow of the suspension by Order in Council of
the Imperial Act in respect of the Dominion of Canada.
This suspension has, however, one real disadvantage : a
fugitive offender when being conveyed through the United
Kingdom en route to a foreign state on extradition cannot,
it seems, be said to be in legal custody in the United Kingdom
under a warrant of the Dominion. Of course, however, in so
far as the crime for which he is being extradited is one which
would render him liable to extradition under the treaty
from the United Kingdom, he could be rearrested, if he
attempted to secure his freedom by writ of habeas corpus,
under a British warrant. There is, however, the possibility,
decidedly remote and theoretic, that a crime might be one
for which a man could under the Canada Act be extradited
from Canada, and yet not under English law be technically
an extraditable offence, as the list of offences in the two
Acts does not quite perfectly correspond, but this is a case
of quite minimal possibility.
Canada is also of interest for her attempt to adopt in 1889
a system of extradition without treaty,1 a system which was
recommended for England by a Commission in 1878, but
which has never actually been made effective in that country.
In Canada also the part of the Extradition Act affected has
remained a dead letter, though it is legally ready to be put
1 It was actually in force in Upper Canada before the first extradition
treaty of 1842 by 3 Will. IV, c. 6. See now Revised Statutes, 1906, c. 155,
Part II. Its need was diminished by the passing of the new treaty of
1889 with the United States into force in 1890.
300 IMPERIAL UNITY AND THE DOMINIONS
in force if and when the Dominion Government deem it
desirable to take this course. The procedure would be easily
available for cases of crime in the United States : the
Dominion Government in this regard showed an admirable
promptitude of action in the famous case of the entry of the
criminal Harry Thaw into Canada on his escape from the
asylum in which he was then confined. The Minister of
Justice took the control of the question into his own hands,
and promptly under the powers of the Immigration Act de-
ported Thaw, and left him in the hands of the police on the
other side of the border, his personal action confounding the
efforts of Thaw's legal advisers to secure legal process pre-
venting his removal from the Dominion. The effectiveness
of the Minister's conduct l in preventing the scandal of pro-
tracted legal proceedings was admiringly noted in the United
States press. Nor could there be any doubt of the correct-
ness of the action of the Minister, as no alien has any statutory
right2 to enter the Dominion, and the question of whether he
was guilty of an extradition crime, in view of his having
been found insane at the time of the murder he committed,
would have afforded abundant theme for dispute before
the courts.
1 Cf. Canada House of Commons Debates, March 4, 1914 ; New York
Tribune, Sept. 11, 1913 ; Canadian Annual Review, 1913, pp. 239-41.
8 Musgrove v. Chun Teeong Toy, [1891] A. C. 272.
CHAPTER XV
THE QUESTION OF DEFENCE
1. MILITARY DEFENCE
THAT a self-governing Dominion should protect itself
from internal disorder, and that it should, as circumstances
allowed, make some provision for its own defence, was a truth
which was rather slow to receive quite definite formulation
after the grant of responsible government. The view was,
however, at last attained in 1862, when this doctrine was laid
down by a resolution of the House of Commons. Its execu-
tion was, however, far from hurried, and passed through the
stage when the colonies might have Imperial troops if they
chose to pay for them to the period when the Imperial troops
were strictly confined to the necessities of Imperial as opposed
to local defence. It was never for a moment doubted that if
any part of the British Dominions was attacked the whole
force of the Empire must be used to protect it : that prin-
ciple was reiterated time after time, and not a single utterance
to the contrary can be traced, but it was felt that except for
the needs of Imperial defence (including in this term the
defence of the colony against external attack) Imperial forces
could not properly be used. The conception of what was
necessary for Imperial defence naturally differed from time to
time. In Australasia the experience of the use of Imperial
troops in putting down Maori wars was unfavourable: a
New Zealand Government actually endeavoured to lay down
the rule that the troops must be employed as they thought fit,
and that the policy to be adopted towards the natives must
be precisely as they wished, a proposal which would of course
have reduced the Imperial Government to the level of
a tributary of New Zealand. The view was indignantly re-
pudiated by the Imperial Government of the day, a precedent
302 IMPERIAL UNITY AND THE DOMINIONS
which might have been borne in mind in the case of the
similar demand of Natal in 1906,1 and the result was the with-
drawal of the Imperial forces, in the confidence that on the
one hand the power of the natives had been so broken that
there was no danger of the colonists being unable to hold
them in subjection, while on the other hand the need of carry-
ing on their own wars of repression at the cost of their own
lives would impress on the colonists the desirability of sub-
stituting, for a policy of blood and fire, a milder and better
considered regime. The result was, as expected, to the great
benefit of the colony and all its inhabitants. In Australia
there was still less need to keep Imperial troops, and the
unwillingness of the colonies to agree to a plan for concentrat-
ing the troops, in case of need, led to their withdrawal also.
In Canada, on the other hand, the Imperial Government
recognized other obligations, and spent money freely on the
defences of Quebec, even after confederation, while it guaran-
teed a Canadian loan to improve the militia, and provide
fortifications for Montreal. In later times the Imperial forces
were still available for defence : in 1870, when the Kiel
rebellion seemed for a time to threaten the intervention of
the United States, and the dismemberment of the west of
Canada, it was an Imperial force which after a most difficult
journey arrived on the scene and ended the revolt at once.
In 1885, on the contrary, when the north-west rebellion broke
out, the building of the Canadian Pacific railway had made
things easy, and the Canadian forces performed without
difficulty the work of suppression themselves. The Imperial
forces, however, continued down to the period of the Boer
War to man Halifax and Esquimalt, on the ground that these
were important naval bases, and therefore of Imperial con-
sequence. But as a result of the pressure for troops in that
war, the Canadian Government decided to offer to relieve
the British Government of the need for retaining a garrison
there, and after the conclusion of the war arrangements were
made for the final handing over to Dominion control of the
two places, and the naval docks there on conditions which
1 Above, Part I, chap. iv.
MILITARY DEFENCE 303
secured their retention as naval bases open to the use of the
British fleet whenever required.1 With the departure of the
British forces finally from Canada, the former practice by
which the officer commanding the Canadian militia was
always an Imperial officer ceased to have effect, and the post
became open to officers whose military experience was
Canadian, one of whom, General Otter, held the post with
great distinction. In South Africa, on the other hand, the
final removal of the Imperial forces was only carried out at
the beginning of the European War, and the outbreak of
the grave rebellion in the Union, as a result in part of this
removal, proved that the retention of troops had not been by
any means unduly prolonged.2
During the long period after the practical withdrawal of
the Imperial forces from Canada and Australia, attempts were
steadily made by the Imperial Government to induce the
Dominions concerned to take seriously the necessity of main-
taining their forces in good condition, and Imperial officers
worked energetically in positions as commandants of these
forces to secure good results. The task was, however, prac-
tically impossible of realization. The officers themselves
were apt to misunderstand the limits of their authority and
power : the Canadian Government, indeed, found it almost
impossible to avoid quarrelling with its Imperial officers : it
dismissed one, and the others were always at variance with the
extraordinary methods by which officers were appointed on
political grounds alone. Moreover, in all the Dominions it was
hard to obtain funds for any serious military work, and there
prevailed the feeling that the British navy was the true basis
of defence and that local forces should just be sufficient to
keep down riots or disorder of an internal nature. It was
not until the twentieth century that anything effective was
done. The formation of the Australian Commonwealth had
been expected to mean a serious effort to reconstitute the
scattered forces of the states, but for years the expectation
was disappointed, and in 1908 the military efficiency of the
Commonwealth was certainly not superior to what it had
1 Part. Pap., Cd. 2565. * Cf. Parl. Pap., Cd. 7874.
304 IMPERIAL UNITY AND THE DOMINIONS
been in 1900, and indeed, may have been inferior. The trans-
continental railway to connect Western Australia with the
east of the country was still unbegun, and Australia could
not claim, as Canada claimed, both through its Liberal and
Conservative Governments, that with its limited resources it
was doing far more useful work for defence by its railway
policy than by training a few thousand more recruits
annually for a few weeks.1 Indeed, the obvious necessity
for military purposes of a single railway gauge had never
been recognized, and the gauge adopted by the several
states was a different one.
The distinct menace of European complications which
arose in 1909 had a considerable effect in fixing the views
of the Governments on defence questions. Canada indeed
remained practically unmoved, but in New Zealand 2 and
Australia 3 the view definitely presented itself that there
should be some system by which men should be trained for
the defence of the country, and in that year both countries
adopted defence systems of training which compelled the youth
of the country to undergo such training. But the schemes
were dominated by the fear of political consequences,
and" both stopped compulsion at the age when the youth
became a voter, an interesting example of the timidity of
even the Dominions in dealing with the duty of defence of
the country. These schemes, however, were revived when
Lord Kitchener visited both the Commonwealth and the
Dominion at the end of 1909 and beginning of 1910 : he
made a careful survey in each case of the existing conditions,
and insisted that if there were to be possible any adequate
defence scheme the training must not stop at the exact period
when a youth became valuable from a military point of view.
The result was that both Dominions4 amended their laws
in 1910, and have since then, despite modifications in detail,
adhered fixedly to the general plan then laid down.
1 Sir C. Tupper, Recollections of Sixty Years, p. 283.
* Act No. 28 of 1909. 3 Act No. 15 of 1909.
* Acts No. 21 of 1910 and 37 of 1910. See Parl. Pap., Cd. 5582, pp. 16,
17.
MILITARY DEFENCE 305
As a result of this report, New Zealand established a system
under which all male inhabitants of the Dominion after six
months' residence became liable for military training, pro-
vided they were British subjects : the periods were from
twelve years of age to fourteen years of age or the date of
leaving an elementary school in the junior cadets, from that
age to eighteen years or the date of leaving a secondary
school in the senior cadets, and from that age to twenty-
five either in the general training section or in the territorial
force, the distinction being due to the fact that it was con-
sidered impracticable to insist on all those eligible going
through the full training, as it would cost too much money,
and therefore the general training section was to be limited
to about 30,000 a year. The scheme, however, was modified
later l in three important respects : in the first place, after
further consideration, the military training of the junior
cadets was abandoned as useless, and a training under the
education department on the methods of the boy scout move-
ment substituted. . In the second place it was found prac-
ticable so to arrange the times of drill and training that an
average youth by the age of twenty-two would be free from
further training, though of course under liability to serve in
case of need, and in the third place exemption was accorded
to persons whose religious beliefs prevented them consenting
to military training, on the condition that these persons should
be called upon to perform such work for the public service,
other than military, as might be determined by the Governor
in Council. For the conscientious objector no place could,
however, be found, unless he could show that his conscience
rested on religious convictions.
The trainee from twenty-five to thirty years of age serves
in the reserve, and in time of war not only can these forces be
called out, but all male inhabitants of New Zealand between
the ages of seventeen and fifty-five may be called upon to
serve if they have resided six months in the country.
In the Commonwealth the scheme has been less modified 1
1 Act No. 20 of 1912 ; Part. Pap., Cd. 6863, pp. 15, 16, 134-43 ; 7507,
pp. 12, 13.
1874 TT
306 IMPERIAL UNITY AND THE DOMINIONS
than in New Zealand. All male inhabitants who have resided
for six months and are British subjects are liable for training
from age twelve to age fourteen in the junior cadets, from age
fourteen to age eighteen in the senior cadets, from age eighteen
to age twenty -five in the citizen forces, and from age twenty-
five to age twenty-six in those forces ; but, except in time of
imminent danger of war during the last period, the service
shall be limited to one registration or one muster parade in
each year. All male inhabitants between the ages of fifteen
and sixty years, after six months' residence, if British sub-
jects, are also liable for service in case of war. It has not been
found possible to make any exception in the case of liability
to military service even for religious objectors, and the work
of enforcing the military training on the cadets has necessi-
tated some additions to the criminal law, in the shape of the
invention of a process of military detention for boys who will
not obey the regulations. The periods of service at first
exacted have been considerably lowered, but the value of
such training as is given has been asserted on all hands.1
The example of Australia and New Zealand was followed,
but with innovations of an interesting character, by the
Union Government on its establishment. Under the Defence
Act, 1912,2 every citizen is liable between his seventeenth and
sixtieth year to render in time of war personal service in
defence of the Union, and he is also liable to undergo a course
of peace training for military service, and may be required
to commence that training in his twenty-first year, and to
complete it not later than his twenty-fifth year, but he may
voluntarily commence it in any year between his seventeenth
and twenty-first year, in which case, of course, he may even
finish his training before his twenty-first year is completed.
Of the total number liable to peace training only fifty per
cent, shall actually undergo the training unless special pro-
vision is made otherwise by Parliament. But every citizen
who has not been entered in his twenty-first year and is liable
1 Act* Nos. 15 of 1911 ; 5 of 1912 ; Parl. Pap., Cd. 6863, pp. 126, 127 ;
7507, pp. 11, 12.
* Parl. Pap., Cd. 6863, pp. 144-63 ; cf. 6091, pp. 88-106.
MILITARY DEFENCE 307
to training must serve as a member of a rifle association from
his twenty-first year for a period of four years. The privilege
of such service and the duty of so serving is, however, not
accorded to other than Europeans, a distinction resting on
the fundamental conditions in the Union.
In the case of Canada no change has been made for many
years in the conditions of service in the militia. All Canadian
inhabitants of British nationality are liable for such service
in the period between age 18 and age 60, and the Governor-
General may require all the male inhabitants of Canada
capable of bearing arms to serve in the case of a levee en
masse. But the militia is recruited in effect by voluntary
enlistment, though the power to use the ballot exists, and
every proposal to make the condition of service in the militia
compulsory would be resisted to the utmost by the province
of Quebec, as well as by many other elements in the Dominion.
The training of the militia, about 40,000 of whom serve
annually, is in many respects defective, the equipment is
deficient, and political influence has done its best to deprive
the force of efficiency ; but the raw material of the militia has
always been as excellent as the spirit of patriotism in the
forces. Moreover, the efforts of Sir Sam Hughes, the Minister
of Militia in the Borden administration, have undoubtedly
borne much fruit.1
The constitutional relations between the forces of the
Crown in the Dominions and those in the United Kingdom
are happily in the case of the Army of a very simple kind. It
was long ago recognized that in militia armies the exact code
of discipline of the regular British forces was out of place,
and a distinction has been drawn by Dominion legislation be-
tween the small permanent forces retained for instructional
purposes, or in South Africa in the main as a police force of
military character, and the mass of the forces. But the disci-
pline thus applied is based on the Imperial Army Act, and it
follows it closely in most of its principles. When the forces
of the Dominion are employed outside the Dominion in
1 Revised Statutes, 1906, c. 41. A most important report of Gen. Otter's
is summarized in Purl. Pap., Cd. 7507, pp. 10, 11.
U2
308 IMPERIAL UNITY AND THE DOMINIONS
operations it is provided by s. 1 77 of the Army Act that, where
any force of volunteers or of militia or any other force is raised
in a colony, any law of the colony may extend to the officers,
non-commissioned officers, and men of such a force whether
within or without the limits of the colony, and any such law
may apply, in relation to such force, and to any officers, non-
commissioned officers, and men thereof all or any of the
provisions of the Army Act, subject to such adaptations,
modifications, and exceptions as may be specified in such law,
and where so applied the Army Act shall have effect in relation
to such force, subject to such adaptations, modifications, and
exceptions as aforesaid, and where any such force is serving
with part of his Majesty's regular forces, then, so far as the
law of the colony has not provided for the government and
discipline of such force, the Army Act, and any other Act for
the time being amending it, shall, subject to such exceptions
and modifications as may be specified in the general orders
of the general officer commanding his Majesty's forces with
which such force is serving, apply to the officers, non-com-
missioned officers, and men of such force, in like manner as
they apply to the officers, non-commissioned officers, and men
of the regular forces. This, however, is not applicable in the
case of any officer belonging to any colonial force when he
is attached to or doing duty with, or to any non-commis-
sioned officer or man belonging to any such force when
attached to, or otherwise acting as part of or with, any
portion of the regular, reserve, or auxiliary forces in the
United Kingdom. The last provision is of value, since other-
wise it would appear that when an officer or man was attached
to an Imperial unit he would be governed by the colonial law,
which might result in complete confusion, since the unit itself
could not be subjected to that law.
In the case of officers lent and men placed at the disposal
of Dominion Governments by the Imperial Government
the Army Act remains applicable to them, but they fall also
under the law of the Dominion and its military regulations,
thus being subject to joint jurisdiction, which, however,
is a disadvantage of little special importance. Moreover,
MILITARY DEFENCE 309
legal provision has been made for and by the Dominions
to cover the case of recruits for the Imperial forces raised in
the Dominions, and to secure their discipline and control
before joining these forces, and on the way back to the
Dominions from such service, while of course it is still open
to recruit men directly for the Imperial forces in any Do-
minion, in which case the Army Act is directly applicable, as
in the case of Canada at the beginning of the war.
While the arrangements made by law to facilitate and
legalize the co-operation of the Imperial and the local forces
is now satisfactory, it must be recognized that the obligation
of such service imposed on the inhabitants of the Dominion
is service for domestic purposes, and not service for oversea
purposes, though men may volunteer for that purpose. It
follows, therefore, that not only has the Imperial Government
no power to move a single Dominion soldier, but that the
local Government has no power without fresh legislation to
compel service oversea. The principle of the autonomy 01
the Dominion is thus preserved in full perfection : any men
who serve overseas serve by the free will of themselves, and
if organized by the free will of their Government. It is true
that no Government has the power by law to prevent recruit-
ing for the British Imperial forces in the Dominion, but to
assume such a power would obviously be incompatible with
the constitution of the Empire, as it would mean that a portion
of the Empire could forbid a subject of the Crown from
fighting voluntarily in its cause, and such a claim could not
exist in the present circumstances. If the Government and
Parliament desire to assist actively in the war the Govern-
ment encourages recruiting, and spends money on the equip-
ment and pay of the forces, which it obtains from Parliament.
The necessary similarity of training which should exist
between the forces of the Empire is attained in such measure
as is available by the means of inspection, interchange, and
instruction of Dominion officers in schools of instruction in
the United Kingdom or in India and the creation of a general
staff.1 The inspection of the forces of the oversea Dominions
1 Part. Pap., Cd. 4475 and 5746, II.
310 IMPERIAL UNITY AND THE DOMINIONS
is and must be exercised on the request of these Dominions,
and the last important visits of inspection were those of the
Inspector-General, Sir Ian Hamilton, in 1913-14, to Canada,
to Australia, and to New Zealand. The value of these inspec-
tions by trained Imperial officers with practical experience of
war is greatly valued in the Dominions. The interchange of
officers is also sometimes possible with excellent results for
the Dominion officers on the one hand and with some profit to
the Imperial officers on the other, especially if the latter have
Dominion connexions of any kind. But the most frequent
mode of allowing Dominion officers to attain knowledge
must be the use of schools of instruction, and attendance at
the Staff Colleges at Camberley and Quetta, since it would
be difficult for any Dominion Government to afford the same
educational advantages to a student of war. The appoint-
ment of trained British officers to the chief commands in the
oversea forces is almost always advantageous to those forces,
and in the future the existence of large numbers of Dominion
trained officers will supply adequately all needs, and will
probably render exchanges more frequent and effective than
they have hitherto been. The Dominions also are learning
to make the necessary supplies of munitions of war of all
kinds, including artillery, and in this, of course, they follow
the teachings as a rule of the Imperial War Office : the chief
exception to this rule in Australia, a cartridge factory en-
trusted to American hands, has not been an unqualified
success.
2. NAVAL DEFENCE
The essential characteristic of naval action as operating
extra-territorially has resulted in the raising of grave ques-
tions of constitutional law for which no parallel has evinced
itself in the case of military defence. These questions have,
however, become of importance only of very recent years,
since the development of naval activity on the part of the
Dominions dates back in effect only to 1909. But the first
difficulties arose as early as 1860, when the Parliament of
Victoria, in view of the fact that they had under their control
NAVAL DEFENCE 311
an armed vessel, the Victoria, which was employed as a trans-
port to convey troops to New Zealand to suppress the Maori
rebellion there, found it necessary to establish the legal
position of the crew by legislating for the government of the
ship, its officers, and men. The passing of the Act, which the
Governor assented to on the ground of urgency, led to a full
consideration of the matter, and to the decision that it was
impossible for a colonial legislature to pass an Act which
would have extra-territorial validity, and that a vessel thus
acting under a mere colonial authority would therefore not
be a vessel of the Crown in the view of international law,
since her authority to do warlike acts, even in case of war,
would be limited to the territorial limits of the colony. To
remedy this defect, there was passed in 1865 an Act, the
Colonial Naval Defence Act, which governed the position in
Australia for many years. It authorized any colonial legis-
lature, with the approval of the Crown in Council, to maintain
ships of war, and naval forces, including volunteers, who
were to be bound to serve in the Royal Navy as required,
to regulate the conduct of such forces while ashore or afloat
in the limits of the colony, and to apply to the forces when
ashore or afloat within the colonial limits, or elsewhere, the
regulations in force regarding the Royal Navy. It also
authorized the acceptance by the Admiralty of offers of
colonial governments of vessels and men, in which case the
vessels and men would fall under the rules in force for the
Navy. It will be seen that the intention of the Act was to
leave the colonial legislature, if it desired, to make any regu-
lations which it wished for the government of the men within
the limits of the colony, but if they went without they would
fall under the regulations for the Royal Navy, and the same
result would be attained, but in a different way, if the men and
ships were transferred to the control of the Admiralty : in
the former case the control of the ships would remain with
the colonial government, in the latter with the Admiralty,
but, of course, the control of the Admiralty would in effect
have been exercised even in the first case had the vessel been
acting where there was a senior officer of the Navy present.
312 IMPERIAL UNITY AND THE DOMINIONS
The provisions of the statute were made effective in
Victoria in 1872 by the passing of Colonial Acts Nos. 389
and 417, and in 1884 further Orders in Council were issued
under the Act in respect of the Victoria, Albert, and Childers,
vessels of war which had been built in England for the
Government of Victoria, the vessels being placed under the
Admiralty for the time of their voyage to their destination,
when they fell under the control of the Victorian Government.
In 1900 Orders in Council were again issued to accept the ser-
vices of men offered by New South Wales and Victoria, and
a vessel, the Protector, offered by South Australia to the
Admiralty for service in China, and in 1884 an Order in
Council was issued in accordance with a South Australian
Act of that year to authorize the maintenance of the
Protector, while in 1885 two Orders in Council were issued
in accordance with the Queensland Act, No. 27 of 1884,
to provide for the maintenance of the Gayundah, and
its being placed for the time at the disposal of the
Admiralty.
It would, however, be erroneous to suppose that the whole
of the armed ships — of very miscellaneous character and
not much value — which the Commonwealth found owned by
the States when it came into existence were raised under the
powers of the Act of 1 865. In the majority of cases the vessels
were raised simply under the general power of the colonial
legislatures to regulate their own affairs within territorial
limits, and therefore their right to maintain a naval defence
force in these limits. It is beyond all doubt that internationally
within these limits the ships were as much ships of the Crown
as the Royal Navy itself, and the officers had internationally
all the powers of the officers of the Royal Navy in the matter
of the resistance of hostile attack and the capture of prize,
though luckily no need for the exercise of these powers
could well arise.
The Commonwealth of Australia Constitution Act, 1900,
raised a new question. It conferred on the Commonwealth
power to legislate as to naval defence, and that mere fact
was a clear hint that the purely territorial limitation of
NAVAL DEFENCE 313
colonial laws did not apply to this specific power. It was
obvious that the power to legislate must extend at least
to cover the case of any naval force operating to such extent
as was necessary to drive away enemy ships from the coast
of the Commonwealth, and this meant extra-territorial action
in many cases. This conclusion was greatly aided by the
fact that s. 5 of the Act expressly provided that the laws of
the Commonwealth should be in force on all British ships,
the King's ships of war excepted, whose first port of clearance
and whose port of destination should be in the Common-
wealth. The very nature of a defence force of the Common-
wealth meant that it would move from one point of Australia
to another, and therefore that it would always fall within
that clause, unless, indeed, it was contended that it was
exempt from Commonwealth control altogether by reason
of being one of the King's ships of war. Such an interpreta-
tion would obviously have been unreasonable, for it would
have rendered invalid the whole of the naval defence legis-
lation of the Commonwealth and made its power to legislate
for naval defence unmeaning. In point of fact, by an Act,
No. 20 of 1903, the naval defence of the Commonwealth was
fully regulated, and thereupon the state Acts fell to the
ground, and with them the Orders in Council based on them.
Doubtless it was still open for the Commonwealth to obtain
Orders under the Act of 1865, but that Act was not in any
way a necessary mode of procedure, and it was not surprising
that the Commonwealth Parliament, in its naval legislation,
No. 30 of 1910, relied solely on its own power of legislation,
and the same course was followed in that year in Act, c. 43, by
the Parliament of Canada. In the case of Canada the legal
validity of the power was hardly so clear as in that of the
Commonwealth, as the Canadian constitution contains no
clause similar to that of s. 5 of the Commonwealth Constitution
Act, but there could be no legitimate doubt as to the right
of the Dominion Legislature thus to establish its own naval
defence. Doubt was only possible as to what extent the right
could be carried, and how far from the shores of a Dominion
the defence could be exercised, without exceeding the lawful
314 IMPERIAL UNITY AND THE DOMINIONS
powers of the Parliament and the authority vested in it.1
Clearly, so far as these powers were lawfully exercised, any
Dominion ship was an Imperial man of war, but when they
were exceeded she ceased to have that character.
The solution of this legal difficulty was necessary, and it
was provided by an adaptation of the procedure laid down
in s. 1 77 of the Army Act. By the Naval Discipline (Dominion
Naval Forces) Act, 1911, it was provided that where in any
self-governing Dominion provision has been made for the
application to the naval forces raised by the Dominion of
the Naval Discipline Act, 1866, as amended by any subse-
quent enactment, that Act as so amended should have effect as
if references therein to his Majesty's Navy and His Majesty's
ships included the forces and ships raised and provided by
the Dominion, subject in the application of the Act to these
forces and ships to such modifications and adaptations as
might be made by the law of the Dominion to adapt the Act
to the circumstances of the Dominion, and in its application
to forces and ships not provided by the Dominion to any
modifications and adaptations made by His Majesty in
Council in order to regulate the relations inter se of the
different forces and ships. But if the forces and ships of
Dominions were placed at the disposal of the Admiralty, the
Acts should apply to them without any modification at all.
The Act was not to take effect in any Dominion unless pro-
vision was so made by the Dominion, and such provision
was duly made by New Zealand in its Act of 1913, and by
the Commonwealth in 1912 by Act No. 21, but in a form in
both cases which is of doubtful validity, as it makes the
application of the Act subject to the power of the Governor-
General or Governor in Council to modify it, which is clearly
not possible, as it is not provided for by the Imperial Act.
The Dominion of Canada, however, has not legislated on the
subject.
1 The views of J. S. Ewart, Kingdom Papers, i. 203, 204, are vitiated by
his fundamental error in stating that Canadian law follows a Canadian ship.
It does not do so save as regards merchant shipping matters, under 57 and
58 Viet. c. 60, s. 735; see Responsible Government, ii. 1200 seq.
NAVAL DEFENCE 315
While the legal position is now clear, and established on
a constitutional basis, the question of the policy of naval
defence is still one which is wholly undecided. The attitude
of Canada may be dismissed in a few words : down to 1909 the
Dominion declined to consider naval defence as incumbent
on her resources : the use of Imperial ships was requisitioned
for the purpose of protecting the fisheries from American
depredations in the years after the abrogation of the Recipro-
city Treaty of 1854, and again after the termination of the
Treaty of Washington, and the Imperial Government doubt-
less felt that a certain advantage was derived from this fact
in that it enabled them to regulate precisely the amount of
armed action to be taken in an international matter of great
difficulty. Newfoundland also was patrolled by British men-
of-war to secure that the fishery rights of the French and the
American fishermen were not violated by the Newfound-
landers, nor, on the other hand, exceeded by the foreigners.
In both the Dominion and Newfoundland ships were in time
provided for fishery protection purposes, but these were not
vessels of war : similarly, Canada had vessels on the great
lakes with a light armament, but these again were not to
be reckoned as naval vessels proper, and their discipline was
regulated by an Act regarding Government vessels,1 not by
a naval defence Act, though these vessels in their pursuit of
foreign fishing vessels encroaching on Canadian limits were
accorded by the Canadian courts the privileges of hot pursuit,2
when it was contended that the limited and territorial
character of Canadian jurisdiction rendered the action of
the captains outside territorial waters ultra vires vis-d-vis
a foreign ship.
In the case of Australia an intercolonial conference of
1881 decided that the duty of maintaining the Imperial Navy
should rest on the Imperial Government, which ought at its
own cost to defend Australia by sea. The conference also
pressed for an increase in the strength of the squadron kept
on the coast. The Admiralty naturally did not appreciate
1 Revised Statutes, 1906, c. 111.
2 The Ship ' North ' v. The King, 37 S.C.R. 385.
316 IMPERIAL UNITY AND THE DOMINIONS
these views, from which, it is noteworthy, South Australia
dissented, and in 1886 commissioned Rear- Admiral Tryon,
then commanding on the Australian station, to negotiate
with the Governments on the question. The result of these
negotiations, which were brought to a close at the Colonial
Conference of 1887, was the agreement of the Australian
colonies to contribute £126,000 and New Zealand to con-
tribute £20,000 towards the provision of five fast cruisers
and two torpedo boats for the protection of floating commerce
in Australian waters, two vessels to be kept in New Zealand
waters either from these vessels or from the normal Imperial
squadron which was to be continued. The agreement was for
a period of ten years, and in 1 897 it was simply renewed ; but
in the following year the Cape of Good Hope made without
conditions a present of £30,000 a year to the Imperial Navy.
In 1902 the policy of the Imperial Government was fully
explained by Lord Selborne in a memorandum laid before
the Colonial Conference.1 The essence of the memorandum
was that the Navy existed for offensive purposes, not for
defence, and that separate local defence navies were a mere
blunder, fatal if the enemy adopted proper strategy and
attacked each portion in detail. Moreover, he insisted on
the absolute necessity of one control. The result of the dis-
cussions, as modified later, was that the Australian contri-
bution now paid by the Commonwealth was increased to
£200,000 and the New Zealand to £40,000, that it was agreed
to keep in Australian waters, with power to operate in China
and East Indian waters, a force of one first-class cruiser,
three second-class cruisers, and five third-class cruisers,
two in commission, and three partly manned as drill ships,
and to establish branches of the Royal Naval Reserve in each
Dominion, which were only to be called out on the advice of
the two governments concerned. One vessel and the drill
ships were to be manned by colonial seamen at special rates
of pay, commanded by officers of the Royal Navy and of the
naval reserve, and one drill ship and one other cruiser were
1 Parl. Pap., Cd. 1297 and 1597 (Lord Selborne's memorandum). Of.
C. 8596.
NAVAL DEFENCE 317
normally to be in New Zealand waters. Further ships were
to be supplied if needed. At the same time the Cape
gave £20,000 a year more and Natal began a gift of £35,000
a year without conditions of any kind. Newfoundland gave
£3,000 a year with a single payment of £1,800 for fitting
up a ship, for the sake of having a royal naval reserve
of 600 men.
The next six years witnessed the development in the
Commonwealth of the desire for an independent navy of
their own, a desire which nearly led to the rejection of the
agreement arranged in 1902, which, however, finally became
law in 1903. The Director of the naval forces of the Common-
wealth put forward a scheme for the local defence of Australia
by means of cruiser destroyers, torpedo-boat destroyers, and
torpedo boats, and as this scheme seemed to be within the
means of the Commonwealth, and as it seemed to promise
the satisfaction of the amour propre of Australia, it was pressed
by Mr. Deakin on the acceptance of the Admiralty, which on
the other hand insisted that the real aim of naval policy must
be attack, that defence tactics were erroneous, and that the
only result of the local navy policy would be dissipation of
resources. In 1907, at the Colonial Conference * of that year,
the First Lord of the Admiralty asked for aid in the main-
tenance of the Navy if the Colonies saw their way to give it,
but he insisted that the unity of the sea and of the Empire
entailed the unity of naval control, and he acknowledged the
absolute obligation of the United Kingdom to defend the
oversea Dominions to the best of its ability even if they
would not help. Australia, through Mr. Deakin, pressed
the case for a local navy, urging that the disadvantages of
divided control could be exaggerated, but he made it clear
that, the defence being local, even in war the control would
be vested in the Commonwealth Government. Dr. Smartt, for
the Cape, proposed a motion recognizing simply the duty of
giving help by a grant of money, or by a local navy, as the case
might be, but Sir Wilfrid Laurier objected to the recognition
of any obligation at all. The Admiralty were not anxious
1 Parl. Pap., Cd. 3523.
318 IMPERIAL UNITY AND THE DOMINIONS
to see the agreement of 1 902 upset ; they were ready to
agree to it if desired, but made it clear that in that case they
would resume full liberty to post their ships t s strategy
required, and not as pleased Australian opinion. Nothing,
therefore, was done, and in 1908 the duel between Mr. Deakin
and the Admiralty went on : Mr. Deakin suggested the
setting up of a local flotilla of destroyers and submersibles,
and the raising of 1,000 Australian seamen, to which
should be added two cruisers lent by the Admiralty to
train the naval militia, and two cruisers maintained by
the Admiralty, on which 400 of the seamen provided by
Australia would serve, but he still declined to hand over
complete control of the flotilla in any event, though he
believed that the control would normally be transferred by
the Government. The Government of New Zealand, how-
ever, made an increase of £60,000 a year in its contribution
without conditions, and the Cape started a branch of the
royal naval volunteer reserve, paying the cost from its grant
to the Imperial Navy.
The revelations of the dangerous situation of foreign politics
and the growth of the German Navy in the speeches of the
Prime Minister and First Lord on March 16, 1909, led to a
response from the Dominions.1 New Zealand offered one or
two Dreadnoughts. Canada agreed to organize a Canadian
naval force, recognizing the necessity of the naval supremacy
of Britain to the security of commerce, the safety of the Empire,
and the peace of the world. Australia, now under Mr. Fisher,
offered the continuance of the naval agreement to the end
of its due term of ten years and the creation of a naval force
which would in war automatically fall under the Imperial
Government, and in peace when outside Australian waters
would fall under the command of any senior naval officer.
This offer did not satisfy the Commonwealth generally. New
South Wales and Victoria offered to supply Dreadnoughts,
and a general change of feeling returned a new coalition
Government to power, pledged to some such policy. The
result was the opening of a Naval and Military Conference,
1 Par/. Pap., Cd. 4948.
NAVAL DEFENCE 319
which sat in London from July 28 to August 19, 1909, and
which decided in favour of the creation of three naval units,
one in Australian waters, one in China waters, and one in the
East Indies. Each unit was to consist of a cruiser of the
Indomitable type, three second-class cruisers, and six de-
stroyers with three submarines. The battle cruiser of the
China squadron was to be provided by New Zealand, which
was to continue its payment of £100,000 a year, while Aus-
tralia was to provide a whole unit, and the Imperial Govern-
ment to provide the rest. Part of the China squadron was
normally to be in New Zealand waters. Canada was to com-
mence the construction of a local fleet, with cruisers of the
Bristol class and destroyers.
The Commonwealth of Australia set at once about the
carrying out of the programme of defence, arranging to have
one of the cruisers constructed in Australia from materials sent
out and placing orders for the other vessels. In 1 91 1 the Im-
perial Conference1 dealt further with the international ques-
tions arising out of the use of the Dominion fleets in their
new form, and agreed upon a simple set of rules. Separate
stations were marked out for the operations of the fleets
of Canada and the Commonwealth, in which these govern-
ments were to control their own ships entirely. Their ships
should fly the white ensign at the stern, and the characteris-
tic flag of the Dominion at the jack-staff. Notice should be
given to the Admiralty when any Dominion ship was to be
sent out of its station, and if the destination was a foreign
port the concurrence of the Imperial Government must be
obtained. When at a foreign port the Commander of a
Dominion ship was, as regards international matters, to obey
the instructions of the Imperial Government, and to report his
proceedings to the Admiralty or the British Commander-in-
chief. If a ship of the Admiralty should meet a Dominion
ship the senior officer would take command in matters of
ceremony or international courtesy, but should have no
power to control the movements of the other ship, unless
united action were agreed on, when the senior naval officer
1 Parl Pap., Cd. 5746, II.
320 IMPERIAL UNITY AND THE DOMINIONS
would command, but not interfere needlessly in internal
matters on the other ship. The necessary officers were to be
lent to the Dominions, the commissions * of officers were to
run by their dates when given by any of the Governments,
and the officers were to be shown in the Navy List. The
Governments were to keep one another informed of all
changes in rules of discipline, the Dominions having applied
the Imperial rules in principle to their forces.
The Common wealth obtained, in pursuance of their scheme,
in 191 1, a report from Admiral Sir R. Henderson2 in which he
planned the development of a great Commonwealth fleet to
consist in 1933 of eight armoured cruisers, ten protected
cruisers, eighteen destroyers, twelve submarines, three
depot ships, and one fleet repair ship, at a cost of £23,290,000
and an annual expenditure in 1933 of £4,794,000, and an
additional expenditure of £40,000,000 on docks. The per-
sonnel for such a fleet would be about 15,000, costing
£2,226,000 a year, and six naval bases and eleven sub-bases
would be required.
Canada had obtained by purchase from the British Govern-
ment the vessels Niobe and Rainbow, both of very little
fighting value, and had allowed the Niobe to be gravely
damaged by sending it to a dangerous port in order to
gratify a local supporter of the Government, while the Rain-
bow had caused legitimate surprise by sailing fast enough to
catch a foreign fishing vessel which was not at anchor.
The fall of the Liberal Government found the contracts for
new vessels which had been called for unawarded, and the
Conservative Government came to the not unnatural con-
clusion that there would be little but needless expense
involved in the continuance of the project.3 This was the
position when the speech of the First Lord of the Admiralty
in the House of Commons on July 22, 1912, explained the
1 A common form of commission was agreed on in principle to be applic-
able to all the naval forces.
* Parl Pap., Cd. 6091, p. 15.
8 Canada House of Commons Debates, March 18, 1912 ; Parl. Pap., Cd.
6091, pp. 14, 15.
NAVAL DEFENCE 321
nature of the danger to the Empire involved in the rapid and
unexpected growth of the German Navy, and the building of
Dreadnoughts by other powers, including Austria- Hungary
and Italy. The question of naval defence naturally formed
part of the matters discussed with the Prime Minister of
Canada on his visit to England in 1912, and on December 5,
1912, Mr. Borden laid on the table of the House of Commons
of Canada a memorandum l on naval requirements for Im-
perial defence prepared by the Admiralty at the request of
Mr. Borden. In this document stress was laid on the fact
that the Admiralty did not wish to put any pressure on
Canadian public opinion or seek to influence the Dominion
Parliament in a decision which solely belonged to Canada,
and that the Imperial Government were prepared from their
own resources to supply whatever was needed for Imperial
defence. It was pointed out that aid now given was not
a mere question of ships and money, but a testimony to the
united strength of the Empire, and the resolve of the oversea
Dominions to maintain its integrity. The answer to the
question of Mr. Borden as to the most effective means of
help was that it should take the form of the provision of
a certain number of the largest and strongest ships of war
which science could build or money supply. In view of this
advice Mr. Borden asked the Parliament to vote a sum of
thirty-five million dollars for the purpose of constructing
three battleships or battle cruisers of the first strength to be
placed at the disposal of the Admiralty, but to be re-trans-
ferred to Canada if Canada should decide to set up its own
Navy. He pointed out that Canada had made no direct con-
tribution to naval defence hitherto, and that the naval expen-
diture of the United Kingdom from 1870 to 1890 on Canada
was from twenty-five to thirty millions, and the military
expenditure from 1853 to 1903 about twenty-three millions.
The proposal was bitterly resisted by the Liberal Oppo-
sition in the Commons. Sir Wilfrid Laurier urged that the
proper policy required at least the verdict of the electorate,
while Mr. Borden referred to his own action in February
1 Parl Pap., Cd. 6513 ; cf. Cd. 6689.
1874 x
322 IMPERIAL UNITY AND THE DOMINIONS
1910 in moving a direct contribution of a sum equal to the
cost of two battleships as showing his views. The situation
was urgent, and a local Navy would be a matter of long
delay. The ships now given could be recalled when Canada
desired a local force, subject to reasonable notice. The
amendment in favour of reference to the people was defeated
by 122 to seventy-five votes, and that of Sir Wilfrid Laurier
in favour of the creation of two Canadian squadrons by the
same figures, and the second reading of the Bill was ulti-
mately passed by 1 14 to eighty-four votes, there being voting
against the Government by some French-Canadian members.
The further progress of the measure was systematically
obstructed, and it was only by dint of passing a closure rule
that the third reading could be passed. The Senate, how-
ever, in the exercise of its discretion, declined to pass the
measure by a party vote of fifty-one to twenty-seven votes,
on the ground that it should be referred to the people. The
decision was by no means altogether expected, as the patrio-
tism of Sir George Ross, the leader of the Senate, was relied
upon to overcome his objections, on party grounds, to the
measure. It was rumoured, however, that the failure to
reject the Bill would bring about the resignation of Sir
Wilfrid Laurier, and the patriotic members of the Senate felt
that they could not desert the leader of the party in his day
of defeat. But the episode was deeply to be regretted :
Sir George Ross was happy enough not to live to see the day
when the failure of Canada might well be thought to have
encouraged the attacks of Germany ; and the Senate of the
Dominion completed its course of blind partisanship by its
rejection of a measure which it had not the slightest right to
refuse, and which had it been the House of Lords in the
United Kingdom it could not have touched. The irony of
a constitution which put such power into the hands of a body
of partisan nominees, most of absolutely no distinction of
character or intellect, can hardly be excelled.1
In the meantime the Imperial Government, profiting from
the Imperial spirit of Sir Robert Borden and from his mani-
1 See Canadian Annual Review, 1912, pp. 48 seq. ; 1913, pp. 148 seq.
NAVAL DEFENCE 323
fest readiness to depart from the particularism l of his
predecessor, had taken a step of the highest importance and
interest. On December 10, 1912,2 the Secretary of State
for the Colonies addressed a dispatch to the Governors-
General of Australia, and the Union of South Africa, and
to the Governors of New Zealand and Newfoundland on the
subject of the representation of the Dominions on the Com-
mittee of Imperial Defence. This dispatch communicated
the text of resolutions which had been adopted on May 30,
191 1, at a meeting of the Committee of Imperial Defence, and
which were to the effect that one or more representatives
appointed by the respective Governments of the Dominions
should be invited to attend meetings of the Committee of
Imperial Defence, when questions of naval and military
defence affecting the oversea Dominions were under consi-
deration, and that the proposal that a Defence Committee
should be established in each Dominion was accepted in
principle. It was stated that the Canadian Government
having changed in the Autumn of 1911, it was necessary to
put the proposals before Mr. Borden and his colleagues when
they visited London in 1912, and that Mr. Borden had pro-
visionally accepted the resolutions and had stated that he
saw no difficulty in a minister of the Dominion Government
spending some months of every year in London, in order to
carry out the intention. Mr. Borden had also expressed the
desire that the Canadian and other Dominions ministers who
might be in London as members of the Committee of Imperial
Defence should receive in confidence knowledge of the
policy and proceedings of the Imperial Government in foreign
and other affairs. It had been pointed out to Mr. Borden
that the Committee of Imperial Defence was a purely
advisory body and could not become a body deciding on
policy, which must remain the sole prerogative of the Cabinet,
subject to the support of the House of Commons. But any
Dominions minister resident in the United Kingdom would
1 Still firmly maintained by Sir W. Laurier ; see Round Table, 1915,
pp. 430 seq.
2 Part. Pap., Cd. 6560.
X2
324 IMPERIAL UNITY AND THE DOMINIONS
at all times have free and full access to the Prime Minister
and the Secretaries of State for Foreign and Colonial Affairs
for information on all questions of Imperial policy. From
Mr. Borden's speech in introducing the Canadian Naval Bill,
it appeared that he accepted the proposals, and the same offer
was open to all the other self-governing Dominions if they
wished to adopt it, but it could be varied in the case of each
or any Dominion to suit their wishes or the special circum-
stances of their case.
The position of the Imperial Government was further
explained by Mr. L. Harcourt, the Secretary of State for the
Colonies, in a speech which he delivered in his constituency
on October 25. l In this speech he pointed out that there was
on the part of the Canadian Government and people a natural
and laudable desire for a greater measure of consultation
and co-operation with the Imperial Government in the future
than they had had in the past. This was not intended to,
and need not, open up those difficult problems of Imperial
Federation, which, seeming to entail questions of taxation
and representation, had made that policy for many years a
dead issue. Speaking for himself he saw no obstacle, and
certainly no objection, to the Governments of all the Do-
minions being given at once a larger share in the executive
direction of matters of defence, and in personal consultation
and co-operation with those individual British ministers
whose duty it was to frame policy in the United Kingdom.
He would welcome a more continuous representation of the
ministers of the self-governing Dominions, if they so wished,
upon the Committee of Imperial Defence, and the Imperial
Government would be glad if a member or members of those
Cabinets could be annually in London. The door of fellow-
ship and friendship was always open and no formalities of an
Imperial Conference were required for the continuity of
Imperial confidence.
1 In a speech on March 15, 1910, Lord Crewe similarly urged that the
Dominions should take a greater part and interest in British diplomatic
affairs and problems, and urged co-operation and common action in these
matters : Canadian Annual Review, 1910, p. 89.
NAVAL DEFENCE 325
In reply to the dispatch from the Secretary of State the
Government of the Commonwealth on December 19, 1912,
suggested a subsidiary conference on Naval Defence to be
held in January or February 1913 in Australia, New Zea-
land, South Africa or Vancouver. In answer it was pointed
out by Mr. Harcourt that it would not be possible to hold
a general Conference at the places suggested on the date
named. The other Dominion Governments could not attend
a Conference on such short notice, and it was doubtful
whether they would wish a general Conference. The Minister
of Defence of New Zealand was on his way to the United
Kingdom, and in May the Minister of Defence of South
Africa was due for consultation. It was therefore suggested
that after the general election due in May the Defence
Minister of the Commonwealth should visit England. To
this proposal no reply was then made. The views of the
Government of the Union, as conveyed in a minute of
January 30, 1913, were that the existing machinery for
consultation and suggestion, in the shape of the Imperial
Defence Committee and the Overseas Defence Committee,
had worked so smoothly that they doubted if it were desir-
able to inaugurate any new departure which might in the
end prove less satisfactory in practice. In particular they
doubted whether the idea of a minister of the Union residing
in London for the purpose of constantly representing the
Union Government on the Imperial Defence Committee was
practicable. As long as the control of foreign policy
remained, as under present conditions it must necessarily
remain, solely with the Imperial Government, and the Im-
perial Government continued, as agreed at the last Imperial
Conference, to consult the Dominions on all questions of
foreign policy which affected them individually, they did
not think it necessary to have a minister in constant atten-
dance at the Imperial Defence Committee. It was always
open to the Union Government either to seek advice from
the Imperial Defence Committee in writing or in more im-
portant cases to ask for personal consultation between that
Committee and the representative of the Union Government.
326 IMPERIAL UNITY AND THE DOMINIONS
In the later case, undoubtedly the more convenient course,
at any rate as far as the Union was concerned, would
be that either the Prime Minister, or minister or ministers
whose departments were more especially concerned, should
visit London for the purpose of such consultation. The
Government of Newfoundland saw no difficulty in ministers
when in London placing themselves in touch with the
Imperial Defence Committee. The Government of New
Zealand stated that they did not consider it advisable at the
time for a permanent appointment to be made to represent
the Dominion in London, but preferred that when accredited
ministers of the Government of the Dominion were in Eng-
land they should be invited to attend the deliberations of the
Committee of Imperial Defence, as had been the privilege
of the Dominion minister of defence during his recent visit
to the United Kingdom.
The visit of Colonel Allen on behalf of the Dominion had
arisen out of the comparative failure of the Imperial Govern-
ment to carry out its share of the agreement of 1909.1 In
1912 the Government of Mr. Mackenzie agreed to permit
the retention of the New Zealand, constructed at the cost of
the Dominion, in European waters, on the strength of repre-
sentations by the Imperial Government that it was required
there. This action was fully concurred in by the Conserva-
tive administration which succeeded Mr. Mackenzie's
Government, but Colonel Allen was sent to England to
consider whether some steps could not be taken to make
effective the remainder of the agreement. He found that
the Imperial Government were faced with such a change of
naval conditions that the two cruisers of the Bristol class
which they had intended to send to New Zealand waters
could not be spared, being required for the China Station,
and the Minister of Defence accordingly suggested that New
Zealand should begin training her own personnel on a sea-
going ship to be lent by the Admiralty, with the necessary
crew and officers, that in addition two light cruisers be
placed in the waters of New Zealand by the Admiralty, and
1 Parl. Pap., Cd. 6863, p. 11.
NAVAL DEFENCE 327
that the Dominion should purchase a cruiser of the Melbourne
type as being specially suited for the defence of commerce.
The New Zealand Government, however, decided that more
than this should be done, and therefore determined to secure
a cruiser of the Bristol class, 4,000 tons, costing £400,000,
and to take over from the Admiralty the Philomel, 2,575
tons, as a training ship. Recruits could easily be obtained
from both the European and native population, and a career
would be open for them in the ships of the Royal Navy as
well as in any New Zealand ships. Officers would be sup-
plied by cadets, of whom two would pass through Osborne
or Dartmouth every year, and eight through the Royal
Australian Naval College, founded by the Commonwealth
Government for the training of naval officers, and recog-
nized by the Admiralty. The administration of any New
Zealand ships should be entirely under the Dominion in
peace, but would pass in war automatically to the Admiralty,
and would be transferable to the Admiralty if risk of war
were apparent. The Government recognized the essential
necessity of unity of control of the Fleet in war or in antici-
pation of war, and the necessity of similarity of discipline,
and they were prepared to face the necessary cost in view of
the necessity of keeping naval supremacy in the Pacific.
The combined action of the United Kingdom and the
Dominions would result in securing the position desired.
The proposals of the Government were accepted by
Parliament, though only by a majority, as the Opposition
under Sir J. Ward would have preferred the retention of the
older policy with its more defined pecuniary liability. The
Act, No. 45 of 1913,1 makes provision for the raising by
voluntary enlistment of a force and for its discipline apply-
ing the Naval Discipline Acts, the King's Regulations and
Admiralty Instructions to the force subject to the Act, and
to any modification and adaptations prescribed by regula-
tions under the Act, to the forces raised by New Zealand.
As in the case of the Commonwealth Act of 1912, the making
of the application of the Imperial Act of 1911 subject to
1 Parl. Pap., Cd. 7057, pp. 79 seq.
328 IMPERIAL UNITY AND THE DOMINIONS
modification must be deemed as a mistake, and to render it
not free from doubt whether, in point of law, the Act has
ever been applied to the forces at all. It is, however,
expressly provided that on the declaration of war between
Great Britain and any other country or countries, or on the
outbreak of hostilities, the ships and forces shall pass imme-
diately under the disposition of the Government of Great
Britain, and the officers and men shall be subject to all the
regulations affecting the King's Navy, for the period of the
war, while even without actual war the Governor, if he
thinks it expedient to do so in the interest of Great Britain,
or is requested by the Government of Great Britain to do so,
or when war is imminent, can by proclamation transfer the
ships and men to the British Government for such time as he
thinks fit. Needless to say, this power is one not given
personally to the Governor, for it is to be exercised by pro-
clamation, which implies ministerial responsibility.
In the meantime, the Government of the Commonwealth
had suffered defeat at the general election and a new Ministry,
that of Mr. Cook, had taken its place. On August 16 the
Government telegraphed that they were considering the
Naval Defence situation, especially the arrangement arrived
at by the Imperial Conference in 1909, by which three Fleet
units were to be formed to make an Eastern Fleet for the
Empire. The Australian Fleet unit as agreed to was nearly
ready, but it did not appear that the China and East Indies
units were in course of being provided. The Government
inquired the intentions of His Majesty's Government in this
respect : if any new circumstances had arisen to render
a change of plan desirable, the Government would be glad
to be informed of them, and, if thought necessary, would
arrange to be represented at a Conference, should His
Majesty's Government consider such a course necessary.
In reply, the Commonwealth Government were informed of
the views of the Admiralty as to the possibility of adhering
to the proposals of 1909, and it was added that if, after con-
sideration of the statement of the Admiralty, the Government
considered it desirable to confer, as the Governments of
NAVAL DEFENCE 329
other Dominions had done, with His Majesty's Government,
His Majesty's Government would be glad to welcome, at any
date convenient to them next year, a visit of representatives
of the Commonwealth Government. To this remark no
reply was received, but as it appeared from a question and
answer in the Commonwealth Parliament of October 10,
that the Commonwealth Government thought that such an
invitation to the Imperial Government to convene a Confer-
ence had been sent, the Secretary of State pointed out in
a dispatch of November 21, that such an invitation had not
been received, as it was not contained in the telegram from
the Government of August 16. In a telegram of February 9,
1914, it was explained that the telegram of August 16 had
been intended to be such an invitation. The Imperial
Government then offered to receive representatives of Aus-
tralia for conference forthwith, and proposed to include
New Zealand in its scope, but the proposal fell through as
the Commonwealth Government could not send a represen-
tative, the session being about to open.
The correspondence is of some importance, as it shows that
the attacks made on the Imperial Government for failure to
summon a Conference were not justified. The truth was,
no doubt, that the Commonwealth Government, with a
majority of the Speaker in the Lower House and a minority
of twenty-nine in the Upper, was not in a position to spare
a minister, and was therefore more anxious to placate its
opponents by throwing the onus on the United Kingdom.
It is otherwise impossible to explain why the Government
never, from August 16 to February 9, reminded the Imperial
Government of their request, and why, after the receipt of
the dispatch of November 21 at the end of December, it
took some six weeks to send a reply of a few words stating
a fact. The occurrence of more grave events has doubtless
effaced the memory of this episode, but it is worthy of record
as a striking example of the use of unfair tactics against the
Imperial Government, as a device of a party in a difficult
situation to avoid admitting its own defects.
Just at the moment when the proposal of a Conference
330 IMPERIAL UNITY AND THE DOMINIONS
between the United Kingdom, New Zealand, and the
Commonwealth was breaking down on the inability of the
Commonwealth to send a representative, a new and very
important pronouncement on the relations of the Dominions
and the Mother Country in matters of naval policy was
made by the First Lord of the Admiralty in the House of
Commons on March 17, 1914.1 Mr. Churchill explained that
the views of the Admiralty as to the need for Canada, in
common with other Dominions of the Crown, taking effective
part in the defence of the Empire, had been expounded in
the memorandum of August 1912, and the case there set out
had been strengthened by the lapse of time, and constituted
an absolute justification for prompt Canadian action. In
July 1912, after considering the problem of Naval Defence
in the Mediterranean, it had been decided that a British
battle squadron should be maintained there, with a view
to protecting the important and long established British
interests in the Mediterranean without incurring any excep-
tional obligations in any direction. It had been decided,
therefore, to place there at the end of 1915 a battle squadron
based on Malta of eight battleships, including six of the
Lord N el-son type. For this purpose it was necessary that
the three Canadian ships should have been laid down in
June 1913 and in the place of that it had been necessary to
accelerate three ships of the British programme, by beginning
them eight or nine months earlier than was originally pro-
posed. By this acceleration, involving a vote of £437,000,
it would be possible to keep the proposed squadron in the
Mediterranean from the latter part of 1915 to the middle
of 1916. The Canadian Government could not renew the
Naval Aid Bill, and so no new ships could be begun in 1914.
It was therefore necessary to repeat on a smaller scale the
course followed in the previous year, and to accelerate the
work on two ships of the 1914 programme, so as to have them
ready in the third quarter of 1916 : it was not necessary to
increase the rate to three, as in 1913 the programme gave an
excess of one ship, available for the whole world programme
1 Foreshadowed in part in his similar statement of July 17, 1913.
NAVAL DEFENCE 331
service, and that gain would be repeated in 1915, so that in
that year, if Canada still delayed, the position in the Mediter-
ranean could be maintained by the acceleration of but one
ship. There were, however, good prospects that the Cana-
dian deadlock might be relieved by one party or the other,
or best of all by joint action. The wealth and interest of
Canada rendered it right that she should make some pro-
vision for her own naval defence, as much as would be
required if she were annexed to the United States or were
independent, and he did not wonder that Canadians of every
party felt it beneath the dignity of the Dominion to depend
entirely on the exertions of the British taxpayer, many of
whom were much poorer than the average Canadian.
In the Pacific the naval power of the Empire secured
Australia and New Zealand from all danger from any
European power, and also at present from Japan. While
the Japanese alliance lasted, Japan was safe from attack by
sea by the great fleets of Europe, and in no other way could
it protect itself in the years immediately to come from the
dangers of European interference. Moreover, the reasons
which made Japan contract and renew the alliance would
grow stronger with time, and the growth of European interests
in China, and the development of European navies on a scale
which Japan could not afford to imitate. The alliance
required England to maintain in the China sea a force
superior to any other European power, and thus provided
against any danger to Japan from a gradual increase of
European squadrons in the far east. As regards the naval
agreement of 1909 with Australia and New Zealand, the
central principle was that His Majesty's Government should
maintain in the Pacific and Indian Oceans double the force
of the Australian flotilla. More than that was being done,
but not in the same form as had been proposed. The pro-
posed battle cruisers were being kept at home, where alone
they would meet their equals, and on the China and Indian
stations had been placed two battleships and other armoured
cruisers which were quite sufficient for the work they had to
do, and which were not merely an equivalent but an improve-
332 IMPERIAL UNITY AND THE DOMINIONS
ment upon the mere duplication of the Australian Fleet unit.
The alliance with Japan had been renewed with the concur-
rence of the oversea Dominions until 1921, and it was not
expected that after that date Japan would have less need of
a powerful friend at the other side of the world, which would
continue to be the foremost naval power. Apart from the
good sense and moderation of the Japanese Government,
and from the mutual benefits rendered, there was a strong
continuing bond of interest on both sides which was a true
and effective protection for the safety of Australia and New
Zealand. If the British Fleet were defeated in the North
Sea, there were no forces to prevent territorial expansion of
a European power in the Pacific, and similarly against Japan
there were no means by which for the next ten or twelve
years Australia and New Zealand could expect to preserve
themselves single-handed, and their only course would be to
seek the protection of the United States.1 From this point
of view the profound wisdom of the naval policy of New
Zealand could be appreciated in giving the New Zealand
to strengthen the British Navy at a decisive point. The
Dominion of New Zealand had thus provided in the most
effective way alike for her own and for the common security.
The situation of the Pacific would be absolutely regulated by
the decision in European waters ; two or three Australian or
New Zealand Dreadnoughts, if brought into line in the
decisive theatre, might turn the scale and make victory not
merely certain but complete, but the same vessels in Aus-
tralian waters would be useless the day after the defeat of the
British Navy in home waters, and their existence would only
serve to prolong the agony without altering the course of
events. Their effectiveness would have been destroyed by
events which had taken place on the other side of the globe,
just as surely as if they had been sunk in the battle. The
Admiralty were bound to uphold the broad principles of
unity in command, but their responsibilities ceased when the
1 In 1915 in New Zealand feeling against the failure of the United States
to protest against the violation of Belgium ran strong : Round Table,
1915, p. 492.
NAVAL DEFENCE 333
facts had been put before the Dominions. It was recognized
that time would be required before the principles of naval
strategy were applied to their full extent in the Dominions.
The Dominions wished to have ships under their own control,
which they could see and touch, and these feelings were facts
which would govern events. There were at present insuper-
able difficulties in enlisting the active co-operation of the
Dominions in naval defence by means of ships which they
rarely saw, and which were absorbed in the great fleets of
Britain at the other end of the world. The Admiralty had
therefore co-operated to the best of their ability in the de-
velopment of the Australian Fleet unit : they regarded the
effort which the Commonwealth were making as heroic, and
would leave nothing undone to make it a complete success.
A sound agreement had been made between the Admiralty
and the Commonwealth, relating to the use of the Common-
wealth Fleet in war ; the importance of creating a naval
sentiment in the Dominions, and of creating a reserve of
personnel and local naval establishments was realized, and
the design of an Imperial squadron had been conceived,
with the object of combining sound military principles with
local aspirations. There should be developed severally in
Canadian, Australian and South African waters a naval estab-
lishment with docks, defences and repairing plant, which
would enable the Imperial squadron to operate in its theatre
for a prolonged period. In the second place, local defence
flotillas should be developed, both destroyers and submarines,
to defend the bases and establishments, and co-operating
with the Imperial squadron. In the third place, the Do-
minion should maintain local light cruisers to co-operate
with the fleet on its arrival, and also to protect commerce in
their own waters. In this way a true distinction would
be made between the services which were essentially local
and those necessarily of general Imperial character. The
Dominions would be afforded the individual local develop-
ment which was necessary to arouse and maintain keen naval
interest and to procure the sacrifices necessary for the main-
tenance and development of that naval power, while by
334 IMPERIAL UNITY AND THE DOMINIONS
sending any capital ships to the Imperial squadron they
would create a really strong, effective naval force, not one
or two ships isolated on particular stations, which could move
rapidly and freely about the world, bringing aid in sufficient
strength wherever aid might be needed in time of war.
The answer of the Commonwealth Government to Mr.
Churchill's speech was made in the form of a memorandum
circulated by the Minister of Defence of April 13, 1914.
The effect of the document was that alliances were uncertain,
and preparations should be made in good time. The attitude
of the Admiralty had changed since 1909, when they were
encouraged to found a fleet unit, charged primarily with
the protection of British interests in the Paciiic, and with
relieving the Royal Navy of part of its burden of responsi-
bility. That aspect had reconciled many supporters of the
contribution policy to support the unit scheme, and the new
proposals destroyed the ideal of a joint Imperial Fleet
working for common ends and discharging a common Im-
perial responsibility. Australian opinion would neither find
the men nor money for the dispatch of Australian battle
cruisers to European waters. But even if the ultimate
success of such a battle squadron as was suggested was
admitted, it was clear that the Australian forces, as they
were, were no more than adequate to provide experience for
the creation of that organization, without which, in time of
war, a fleet would be worse than useless. It was open to
question whether it was wise in the interests of the Empire
to rely on the ability of the Admiralty to send to a sphere of
danger, at least four or five weeks distant from Europe,
a powerful fleet to meet any emergency that might arise.
In any case, the Australian scheme provided the essential
nucleus for such a fleet. Naval bases could only be kept
efficient by constant use by every type of vessel which was
likely to require their aid, and without an adequate fleet
there could be no effective training of officers and men.
The minister emphasized the' difficulty caused by apparent
change of policy on the part of the Admiralty, and pressed
for the convening of a general Conference in 1915.
NAVAL DEFENCE 335
The question thus raised is, it is clear, one of the highest
importance to the future of the Empire, though it has no
essential relation to its unity. It is perfectly possible to
hold that the existence of allied fleets on the basis of the
1909 arrangements would work satisfactorily for the defence
of the Empire, in so far as it is quite possible that the neces-
sary similarity of discipline and training and tactics, which is
essential for really effective combined action in time of war,
could be obtained by the adoption of similar rules and by
frequent exchanges between the Australian and the British
Navy. The Australian Navy is at present in effect a British
Navy, nor is it probable that there would be in any time
which can reasonably be foreseen a fundamental change in
this regard. But this consideration does not dispose of the
argument from principles of strategy. It is certain that, if
any naval force is not on strategical grounds needed in any
place, it is being wasted, and not even Australia can afford to
waste money,1 even if it felt inclined to do so, having regard
to the very severe strain on British finances of the cost of
the Navy, and this consideration must tell more and more
effectively in both countries in view of the drain of strength
in the European War. The Admiralty should clearly have
the control of the movements of the capital ships of the fleet,
and direct their movements in immediate touch with the
principles of foreign politics, as conveyed by the Imperial
Government to its technical advisers. The argument of
Senator Millen that it is not wise to trust the Admiralty to be
able to send a strong squadron to a threatened point in
proper time, which is of course an allusion to a sudden attack
from Japan, is based on a view of foreign politics which is
fundamentally unsound. The war with Germany arose
indeed in a very brief period, but from 1909 the danger had
been realized, and from 1912 it had been recognized to have
become more serious. It was hoped by the Government and
by every sober man to avoid war, but the dispositions of
the Admiralty throughout this period, and the magnificent
1 Her defence expenditure in 1913-14 was £4,752,735 for a population
under five millions ; cf. Round Table, 1915, p. 451 ; 1915-16, pp. 168-75.
336 IMPERIAL UNITY AND THE DOMINIONS
preparation shown at the hour of the emergency of the Em-
pire, prove that the views of the Government of the Common-
wealth as to the probability that a sudden attack could be
made on Australia, which the British Fleet could not be
ready to counter, are based on no reasonable foundation.
It is perfectly plain that if no precautions at all are ever to be
taken, if British naval strategy has no relation to diplomacy,
then the only means of attaining security must be to scatter
ships widespread throughout the world, in sufficient numbers
to meet any attack. It is hardly to be seriously supposed
that this is possible : certainly it is not possible for Australia
to accomplish. In the meantime, what useful purpose would
be served by one battle cruiser against the theoretical strong
invading force which it is supposed might assail Australia
when the Admiralty were so unsuspicious of danger as to
have nothing nearer than four or five weeks' steaming ? It is
certain that if at any time the Japanese alliance comes to an
end,1 there will be grave need for the placing in the Pacific
of a great battle fleet, though its main habitat would hardly
be the coasts of the Commonwealth, but in the meantime,
every sound principle makes it right not to provide against
a conceivable danger and to ignore a real danger. The
actual events of the war have been hailed in some quarters
in the Commonwealth as a proof of the wisdom of the Com-
monwealth policy. Nothing could be further from the truth
than this conception. The only difference, which the carry-
ing out of the agreement of 1909 in its full shape would
have made, would have consisted in the presence of two
fewer Dreadnoughts at the heart of the Empire in the days
of the greatest need of the Empire : as it was the Australia
was away, where she had no work to do worth her power and
strength, and had to be brought back to British waters, and
the much dreaded Japanese undertook much of the impor-
tant work of the protection of the Pacific against the German
squadron. The aid of Japan in the movements of ships and
men in the east has been effectively acknowledged by the
1 On Oct. 15, 1915, Japan adhered to the agreement of England, Russia,
and France to conclude no separate peace; Part. Pap., Cd. 8107.
NAVAL DEFENCE 337
First Lord of the Admiralty, and it may be hoped that the
co-operation in this naval action may serve in some degree
to mitigate the unreasoning attitude of Australia towards
the empire of Japan.1 It must be remembered that the
exaggerated fear of Japan which forbids the calm weighing
of the position is due to an altogether not unreasonable
reaction from the foolish complacency with which Australia
used to regard her isolation. Until the Russo-Japanese War
it is doubtful if any large number of people in the Common-
wealth realized the factors of international politics, and, when
that war wakened them with a rude shock to the possibilities
of danger, the reaction urged by the Bulletin led the popular
mind beyond due limits.
It is also to be borne in mind that the success of the opera-
tions of the Australian fleet in the Pacific was the success,
not of the direction of the Commonwealth Government, but of
the Imperial Admiralty, to whose control the fleet passed at
once on the outbreak of war, first de facto and then formally
under transfer by the Commonwealth Government. The
action of the Commonwealth was wise and inevitable, but
it shows that there is no ground to use this case as proof of
the possibility of successful action by separate naval forces.
The loss of time, which is inevitable in every case of dual
control, is by itself a most potent argument against any
division of responsibility in war time. The effective action
of the British forces with the Japanese forces and with each
other was possible merely because the Admiralty in London
and the Commander-in-chief in the Pacific were sole masters
of the situation, and could plan and arrange without heeding
more than was in their opinion desirable the representations
of the Dominion ministers.
It is, however, right to give some weight to Senator Millen's
arguments from the necessity of the Commonwealth seeing
its naval forces if it is to be prepared to provide the men and
money for them. In part the argument is answered by the
fact that the Commonwealth would be expected, under the
1 The policy of New Zealand has changed ; Round Table, 1915,
p. 490.
Y
1874
338 IMPERIAL UNITY AND THE DOMINIONS
scheme of the Admiralty, to own not merely great naval
bases, but also cruisers and minor vessels such as submarines
and destroyers for local action. This part of the scheme
would thus give the Commonwealth as much as was ever
aimed at by Mr. Deakin, and, what is more, give it as the
Commonwealth's own fleet. Much therefore of the money
that, on the plan of Sir R. Henderson, which seems still to
hold the field in the Commonwealth, is to be spent would
still be spent locally, and that this is an important con-
sideration is of course recognized. The remaining sums
would be spent as thought fit from time to time in providing
and preferably equipping and maintaining a Dreadnought
or more, to form part of a squadron for Imperial purposes,
which would be based, it is suggested, on Gibraltar, but
would be always ready to move to any part of the world
where its services were needed, and in time of peace would
of course visit the Dominions, in order that the Dominions
should see their ships and be encouraged to take an interest
in the fleet. It is difficult, apart from considerations of the
expenditure of money in Australia, to see the difficulty of
recognizing the fine aspect of a fleet of this kind, which would
surely be a more effective sign of Imperial strength than odd
battleships scattered over the Empire. Nor is it possible
to understand how the men would suffer : it has always been
part of every scheme that there should be free interchange
of men to secure full training, and that the Australian men
and officers should not be restricted to an Australian career
only, and it is therefore not easy to see how it can be con-
tended that the attraction to an Australian to join the Navy
is that he may cruise in an enormous Dreadnought about the
coast of the Commonwealth. The presence of the battle-
cruiser always on the coast is a poor ideal to be represented
as the aim of Australia, and it is somewhat unhappily similar
to the spirit which nearly cost the lives of the whole crew of
the Niobe.1
On the other hand, it is perfectly fair to hold that
a Dominion which gives generously is entitled to some
1 Cf. the view of Sir J. Ward, Round Table, 1915, p. 501.
NAVAL DEFENCE 339
degree of control in the action of what it gives.1 But this
action is essentially subject to the control of the Admiralty,
and the Admiralty is nothing save the tool of the Imperial
Government of the day, so that the position reduces itself
to the great problem, in what way the Dominions can obtain
a share in the direction of the foreign policy of the Empire.
It is hardly, it is probable, realized by those who advocate
the establishment of separate navies that this arrangement
diminishes, and does not strengthen, the demand for a share
in the knowledge of Imperial policy. If the position is that
a Dominion fleet must be obtained as a loan after the out-
break of war. on condition that the Imperial Government
can satisfy the Government of a Dominion that the war is
necessary and just, and that naval policy which prompts
the proposed loan of the ship is prudent, it will be inevitable
that the Admiralty will make its plans irrespective of the
Dominion fleet, and that the Imperial Government will in
a corresponding degree be unwilling to trouble to share with
the Dominion the knowledge of its foreign policy before the
event happens which causes the need of the Dominion fleet
to arise. It will be obvious that, confronted with war, it will
be very difficult for a Dominion to refuse to give the use of
its fleet, and that therefore its power of control of Imperial
policy will tend to be less than ever. On the other hand,
if in some way by a direct contribution of ships, some share
of control may be won, the gain will be much greater than
could otherwise be attained.
3. WAR AND PEACE
It is perfectly clear that in international law 2 the whole of
the Empire is at war if the United Kingdom is at war, and
that it lies in the hands alone of the Imperial Government
to declare war and to make peace. A Dominion Government
might attack another power, and the other power might
carry on war in consequence, but the beginning of the war
1 Sir R. Borden's view, Round Table, 1915, p. 427.
2 Sir W. Laurier, House of Commons Debates, 1910, pp. 2964, 2965 ;
Mr. Borden, p. 2982.
Y2
340 IMPERIAL UNITY AND THE DOMINIONS
would be attributable to the Imperial Government only
if that Government should not disavow the action of the
Dominion and take steps to offer reparation. Nor is there
the slightest reason to believe that this position is not under-
stood in the most full manner possible by the statesmen in
every responsible-governed Dominion. It would be impos-
sible to find the evidence of a single remark to this effect
made by any one of these statesmen, and the views to this
effect attributed to them from time to time are based on
misunderstandings of their language. At a very famous
stage of the history of Victoria, when anything savouring
of Imperial control was, under the influence of Sir Gavan
Duffy, bitterly objected to, a Committee appointed by the
Governor on the advice of his Ministry to consider Federal
Union did definitely suggest that the status of neutral states
should be sought by the British Government for the sake of
the colonies, which should at the same time be given the
treaty power, and thus be made into fully independent
Governments, united merely through the personality of the
ruler of all. The proposal went on to make the extremely
naive suggestion that the growing tendency of the maxims
of international law to greater humanity would assist the
British Government in securing this aim, while at the same
time the position of neutrality would not prevent the colonies
from coming to the help of the mother country in an emer-
gency, but would merely add to the effect of their inter-
vention in her favour as independent powers, a conception
of neutrality of undoubted originality. The views of the
small knot of statesmen who produced this report had no
effect in the colonies of Australia, and the proposal for the
conversion of the status of these colonies was never renewed
by any responsible statesman. Based on similar ignorance
of international law was the suggestion made by part, not
the, whole, of the Dutch press in South Africa in 1911, that
it was possible for the Union to remain neutral during a war
in which the Imperial power was engaged, a view which was
contradicted effectively by the Union Government at the
time when it was put forward.
WAR AND PEACE 341
But it is another question entirely to what extent the
Dominions are obliged actively to assist the Imperial Govern-
ment and the people of the United Kingdom when the latter
begins a war, or when it is attacked. In the latter case it
would seem doubtful whether any Dominion would or could
stand aloof : it is improbable that it would not be felt to be
too dangerous to remain indifferent to an onslaught upon
the centre of the Empire. But the case has not yet arisen in
any form calling for action by the Dominions, and the ques-
tion of more importance is to what extent the self-governing
Dominions are under obligation to take part in the wars of
Britain generally. The answer to this question is perfectly
simple : the Imperial Government and Parliament have
never claimed that the Dominions must afford any active aid
in men, money, or ships, in the case of a war waged by the
United Kingdom, while, on the contrary, they have repeatedly
acknowledged their obligation to the best of their ability to
defend the whole of the Dominions of the Crown. There can
be few more striking examples of this fact than the procedure
followed in the Boer War and the European War, when it
was desired to remove the British Imperial forces from
Canada and South Africa respectively : no step was taken
without the full concurrence of the Governments of the
Dominion and the Union in each case. The basis of this
attitude is presumably to be sought in the fact that the
Dominions have no share in the election of the Parliament,
and thus the appointment of the Government by which are
determined the questions that lead to peace or war, and,
having no share, they cannot be held to be bound to under-
take actively burdens which may have been brought about
by the errors of others, and which in any case expose them
to grave dangers, or at best serious inconveniences through
commercial difficulties. Similarly the obligation to give aid
in wars brought about by Imperial policy follows from the
fact that the Dominions had no part in the shaping of Im-
perial policy, and that the Imperial Government must make
good the results of their errors.
It follows, of course, that if the war were brought about
342 IMPERIAL UNITY AND THE DOMINIONS
by a cause which was not due to Imperial policy, but to the
action of a Dominion, that Dominion would be expected to
share in the burden of the war which it brought about, but
though on several occasions in the history of Canada since
responsible government this result has seemed near at
hand, owing to the question of the fisheries and the American
seizures in the Behring Sea, nevertheless, that calamity has
been avoided, in no small measure thanks to the intervention
of the cool judgement of the Imperial Government. It is
easy for Canadian patriots to attack the policy of the British
Government, and to deny that the British protection has
ever been of any value,1 but no sane man will deny that but
for the British protection the Dominion of Canada would
now have been a part of the United States. Such destiny,
doubtless, is one which cannot be deemed in any way degrad-
ing, but the British power has preserved for Canada a still
greater future as British North America, and it lies with
Canada herself to make worthy use of the splendid oppor-
tunity afforded her to achieve greatness, without at the
same time falling into so many grave errors as have the
States in the manner of their social and economic develop-
ment. On the other hand, if a Dominion is attacked, it
must be expected to defend itself, though even in that case
there is no record of any compulsion to this end imposed by
the Imperial Government. In the crisis of the war in South
Africa, while the Imperial Government made every use of
the colonial forces which offered themselves, and while they
could not, of course, consider as possible the idea of the
neutrality of the Cape in the war which was put forward by
Mr. Schreiner's Government, they did not compel the Cape
forces to serve, nor did they supersede by Crown Government
the responsible Ministry at the Cape,2 or still less at Natal,
which indeed hampered the effective conduct of the war by
the stress which the Ministry laid on the effort to protect
untenable positions for reasons other than strategic.
1 e. g. J. S. Ewart, Kingdom Papers, ii. 59-146. No one knows better
than Mr. Ewart that his case is purely ex parte.
8 Parl Pap., Cd. 1162; cf. Lucas, South Africa, ii. 155 seq.
WAR AND PEACE 343
The most consistent exponent of the freedom of Canada
to decide whether to take part in an Imperial war or not
has always been Sir Wilfrid Laurier. In the case of the
Boer War he was disinclined to take any steps to afford
official aid from the Dominion to the mother country,
doubtless in the main because he feared the effect of such
participation upon the minds of that most suspicious of
races and in some ways least warlike of men, the French
Canadians of his native province, who throughout his career
have been his main support in Government. Fortunately
the Opposition, under Sir Charles Tupper's patriotic lead,1
gave him the desired assurances of support, the stanchly
British element in his Cabinet rallied to the support of the
British cause, and enabled their chief to throw aside his
fears of the result of the crisis to his party and to send to the
United Kingdom the aid which it valued. The Conservative
Party had already had the credit of such an action, for in the
Egyptian campaigns in the hope of finding or avenging
Gordon Canadian voyageurs had served with distinction
and credit. In the case of the Boer War the amount of aid
sent was quite considerable, and the Canadian arms won
distinction at Paardeberg, but the amenity of the situations
was somewhat marred by a vehement quarrel between
Colonel Sam Hughes, the Minister of Militia, and the General
Officer commanding in South Africa.
A formal expression of Sir Wilfrid Laurier's views was made
at the Imperial Conference of 191 1,2 in regard to the proposal
to enable the Dominions to see the text of proposed Hague
Conventions when they were negotiated in a preliminary
manner. He was not enthusiastic regarding the arrange-
ment, and made it clear that his difficulty arose from the
fact that, if the Dominions tendered advice to the Imperial
Government, they ought to be ready to fight to make good
the advice if need be, and Canada had not by any means
come to the conclusion that she would take part in all
the wars of the United Kingdom. Or, as he said in
1 Recollections of Sixty Years, p. 311.
2 Parl. Pap., Cd. 5745, p. 117 ; cf. Gen. Botha, pp. 131, 132.
344 IMPERIAL UNITY AND THE DOMINIONS
1910 l in the Canadian House of Commons : ' If England is
at war, we are at war and liable to attack. I do not say
that we shall always be attacked, neither do I say that we
would take part in all the wars of England. That is a matter
that must be determined by circumstances, upon which
the Canadian Parliament will have to pronounce and will
have to decide in its own best judgement.'2 Or again:
' Does it follow because we are exposed to attack that we
are going to take part in all the wars of the Empire ? No.
We shall take part if we think proper : we shall certainly
take part if our territory is attacked.'
In the case of Sir Robert Borden is to be found the other
side of the attitude of Sir Wilfrid Laurier. ' If Canada', he
says, ' and any other Dominions of the Empire are to take
their part as nations of this Empire in the defence of the
Empire as a whole, shall it be that we, contributing to that
defence of the whole Empire, shall have absolutely, as
citizens of this country, no voice whatever in the Councils of
the Empire touching the issues of peace and war throughout
the Empire ? I do not think that such would be a tolerable
condition. I do not think the people of Canada would for
one moment submit to such a condition.' 3 The same view
has also been expressed by Mr. Doherty, now Canadian
Minister of Justice ; speaking in the House of Commons on
February 24, 1910, he said : ' What I desire to point out is
that under our constitution there is no obligation on the
part of Canada legally or constitutionally speaking to
contribute to the naval forces of the Empire, and that
position will continue to exist so long as the United Kingdom
alone has exclusive control of the foreign affairs of the
Empire.' The positive side of the line of argument was set
out by Sir R. Borden on December 5, 1912, in moving for
leave to introduce the Naval Aid Bill, when he said : ' When
1 Debate*, 1910, p. 2965.
1 He most eloquently justified the participation of the Dominion in the
war of 1914 as a matter of duty and righteousness ; see Round Table, 1915,
pp. 430-2 ; and cf. Canada Commons Debates, 1909, pp. 3511, 3512.
8 Cf. Mr. Doherty's views, House of Commons, 1910, pp. 4137-44.
WAR AND PEACE 345
Great Britain no longer assumes sole responsibility for
defence upon the high seas, she can no longer undertake to
assume sole responsibility for or sole control of foreign
policy, which is closely, vitally, constantly, associated with
defence in which the Dominions participate. It has been
declared in the past and even during recent years that
responsibility for foreign affairs could not be shared by
Great Britain with the Dominions. In my humble opinion
adherence to such a position could have but one and that
a most disastrous result. During my recent visit to the
British Islands 1 ventured on many public occasions to
propound the principle that the great Dominions, sharing the
defence of the Empire upon the high seas, must necessarily
be entitled to share also responsibility for and in the control
of foreign policy. No declaration that I made was greeted
more heartily and enthusiastically than this. It is satis-
factory to know that to-day not only His Majesty's ministers,
but also the leaders of the opposite political party in Great
Britain, have explicitly accepted this principle and have
affirmed that the conviction that the means by which it can
be constitutionally accomplished must be sought, discovered,
and utilized without delay.' He proceeded in the course
of his speech to explain the constitution of the Imperial
Defence Committee, its familiarity with foreign politics, the
offer of the Imperial Government to summon to it regularly
a minister sent by Canada, and the offer to give such a
minister full information on foreign politics, and urged that
such an arrangement, though only provisional, would be of
great advantage to the Dominion. Effect was later given
to the proposal, as described in the Secretary of State's
dispatch of December 10, 1912, by the appointment of Sir
George Perley, an honorary minister in the Canadian
Cabinet, to act as High Commissioner in London, the office
having been vacated by the death of Lord Strathcona, and
to represent Canada. The appointment was an unprece-
dented one, and its existence proved of service in accelerating
the co-operation of Canada and the United Kingdom, which
marked the opening of the war.
346 IMPERIAL UNITY AND THE DOMINIONS
The Australasian Dominions have never been under the
guidance in recent years of statesmen who asserted so h'rmly
the doctrine of the facultative grant of aid to the Empire as
Sir Wilfrid Laurier. The response made at the time of the
Boer War was hearty in the extreme, though the perfection
of accord between the two Governments was marred at the
close by some minor incidents which need not be examined
in detail. But the Labour Party, which as recently as the
general election of 1914 was attacked by very ill-advised
members of the Opposition as anti-British, has shown a
singular eagerness to secure the due organization of the
people for naval and military warfare. Mr. Hughes, now
Prime Minister, and formerly Attorney-General, who, with
Mr. Fisher, has been the leading spirit in the Labour Govern-
ments, since Mr. Watson abandoned the joys of leadership
of the party for the more effective if less showy occupation
of managing the party from behind the scenes, was one of the
protagonists of universal training, and though it was not the
lot of the Labour Government to introduce the principle
into practice, still it has shown throughout great friendship
for the proposal, and its Minister of Defence, Mr. Pearce, has
been honourably noted for success in working the details.
The attitude of Mr. Fisher has been throughout the same :
the assistance of the Dominions means that they should have
every possible opportunity for obtaining foreign information
and understanding of the issues of foreign politics. New
Zealand, with its constant loyalty and eagerness for the
Imperial connexion, has of late very clearly adopted the
same attitude : the sharing of the responsibility as well as
the burden of defence is eagerly sought by some at least
of the ministers of the Coalition Government by which the
destinies of the Dominion are now controlled.
In all these Dominions the outbreak of the war of 1914
found the most eager response to the need of the moment.
The Imperial Government had barely had time to warn the
Governments of the critical state of affairs before the war
became inevitable, but even the few days of suspense marked
the arrival of most welcome assurances of support from the
WAR AND PEACE 347
Dominions. When war became inevitable, the action taken
was decisive ; Canada offered a Division, which, by the time
it was ready, amounted to over 33,100 men, including a
regiment mainly of ex-regulars recruited in the Dominion,
commanded by the Governor-General's Secretary, Lieut.-
Colonel Farquhar, which was to win the highest distinction
in battle, and to suffer the most grave losses, including its
leader. The Niobe and Rainbow, poor substitutes for the
great addition to the Imperial power offered by Sir R.
Borden, were transferred to the control of the Admiralty
and engaged in useful work. A garrison was supplied for
Bermuda, enabling the British force to leave at a time when
every really trained man was invaluable. Moreover, assur-
ances were given that while some 8,000 men would be kept
on garrison duty in Canada, 30,000 men would be kept in
training, so as to allow of successive reinforcements of 10,000
at a time being sent to the United Kingdom.1 Australia at
once promised to send a Division and a light horse brigade,
and shortly added an offer, which was gratefully accepted,
of an infantry brigade and a light horse brigade, and under-
took to dispatch further reinforcements from time to time :
by November 1915 92,000 had thus been sent ; strong opinions
have also been expressed in the Commonwealth in favour
even of compulsory service for the sake of the war, though
the troops raised as volunteers have been easily secured.
New Zealand offered at once a body of over 8,000 men
and constant reinforcements. These troops — amounting to
25,000 by November 1915 — with the Australians were, in
view of the need of protection against Turkey, landed and
trained in Egypt, whence they were taken to win fame and,
in too many cases, death in the Dardanelles. But in addition
the naval forces of both Dominions were at once placed at
the disposal of the Crown, and served in the reduction of
Samoa and of German New Guinea with all the other German
islands.2 Newfoundland not merely contributed her naval
reserve, but raised an excellent body of volunteers as soldiers.
1 In December 1915 it was decided to raise 500,000 men.
2 Japan took and transferred to Australia the Marshall Islands.
348 IMPERIAL UNITY AND THE DOMINIONS
The position of the Union of South Africa was more diffi-
cult. The Government agreed readily to the withdrawal of
the Imperial forces, and these trained troops were of great
value to the Empire. But they were also invited to under-
take the responsibility of capturing the wireless telegraph
apparatus in German South-West Africa,1 which was being
used to give information to the German cruisers in the
Pacific and was even suspected to be communicating direct
with Berlin. The Union Government honourably under-
took the duty, and Parliament, though with hesitation in
some quarters, accepted the policy. This acceptance was
unexpected by the group of malcontents who were looking
for an opportunity to overthrow the Botha Administration,
and in a brief period the forces which had been gathered for
the attack in part turned traitor under the leadership of
Maritz : rebellion broke out in the Orange Free State and
part of the Transvaal, headed by de Wet and other leaders :
the ex-Commandant-General of the Forces, who had taken
part in the opening of the campaign and had been given full
confidence, turned traitor, and neither Mr. Steyn nor Mr.
Hertzog were willing to lay aside their personal feelings to do
South Africa the benefit of saving her from rebellion. The
German forces in the Protectorate were, however, slow in
action and their strategy was ineffective : they failed to
establish any real communication with the rebel forces, while
on the other hand, after parleying long with the rebels and
exhibiting the utmost forbearance, General Botha determined
to strike, and in a short time crushed the movement. De Wet
was captured when seeking to flee to the Germans, Beyers
perished in seeking to cross a swollen river in flight, and
almost all those who had served with Maritz surrendered
when they realized that the rebellion had been a fiasco. The
campaign against German South- West Africa was then
resumed and carried out with skill and determination against
an enemy who, for some reason, failed to exhibit that
desperation in resistance which might have been expected.
1 Parl Pap., Cd. 7873.
WAR AND PEACE 349
The rebellion,1 however, had revealed, the more closely it was
examined, the existence of a long conspiracy to overthrow
the British power, a conspiracy in which the aged de la Rey
had been engaged through his belief in the vaticinations of
a prophet, van Rensburg, who failed to foresee, it seems, his
own fate. Fortunately, as it proved, for de la Rey, an
accidental shot, fired at the motor-car in which he was riding
with Beyers, ended his life before he was able to carry out
his intended treason, and the accident — the sentry was on
guard for a motor containing some bandits who had com-
mitted murders, and fired at the car because it would not
stop — served in some degree to throw out the plans of the
conspirators. The action of the Government in view of the
coming general election and the need of harmony in the land
was extremely mild : there was constituted a special court
to try offences, but the power to inflict the death penalty
was taken away, and the ordinary rank and file of the rebels
were accorded pardons, or were merely detained until the
end of the campaign in German South- West Africa.2 The
bulk of the troops used to put down the rebellion were Boers,
as it was felt that it would be both more just and more
politic thus to use them against their countrymen, but the
British element supplied the greater number of men for the
conquest of German South- West Africa.
The best case that could be made out for the rebels by
those who shared their views, but were afraid to put them
into practice, was that the expedition to German South-West
Africa was uncalled for, and that it was endangering the
position of South Africa in the case of a British failure in
Europe. In point of fact, it turned out that there had been
for some considerable time a definite propaganda amongst
the Boers of certain classes to start rebellion in order to
recover their independence as soon as a favourable oppor-
tunity presented itself. The Government of German South-
West Africa had been consulted and had received the
approval of the Emperor for the proposal to approve the
i See Round Table, 1914-15, pp. 224 seq., 463-86, 875-80; Part. Pap.,
Cd. 7874. 2 Even de Wet was released after payment of a fine.
350 IMPERIAL UNITY AND THE DOMINIONS
plan, the Germans guaranteeing the position of the Boers.
A significant commentary on the meaning of the guarantee
was given by a map found by the Union forces in the course
of their victorious progress, which was drawn by a German
to illustrate the conception of the state of South Africa to be
attained at the end of the war under the terms of peace :
the Union of South Africa had disappeared, and there was
only to be seen a piece of country marked ' Boer reserve ',
in the same way as here and there throughout the Union
reserves are marked out for the native races. This was a
somewhat crude but very expressive symbol of the fate
which would have awaited South Africa, had the British
power been overthrown. The risk of intervening on the
British side was of course that the British might be over-
thrown and the Union be then at the mercy of Germany,
but the fate of the Union if Britain were overthrown without
her help being afforded to her was equally certain. The
German Emperor was not so foolish as voluntarily to leave
in the hands of a weak republic the best part of the whole of
South Africa and the finest ports. The criminality of the
rebels appears the more clearly in that it was certain that,
if they were able to win some considerable success, the
whole of South Africa would have been plunged into fratri-
cidal war, and that troops from India must have been
imported to maintain the British control, pending the full
possibility of reconquest. Unhappily the crime of rebellion
in South Africa is regarded as venial, and the only satis-
factory episode in the whole affair was the evidence afforded
of the determination of the Government of General Botha
to uphold the sovereignty of the King, and the magnanimity
of the British population, who not merely spared no effort
to assist in restoring order, but acquiesced in the decision of
the Government, for political reasons, to inflict no more than
nominal punishment on rebels who had conspired with
Germany to overthrow the sovereignty to which many of
them, like de Wet, Maritz, and Beyers, had sworn allegiance.
Indeed, perhaps the most deplorable feature of the rebellion
is the fundamental dishonesty of temperament among many
WAR AND PEACE 351
of the Dutch population which it has revealed, and which
augurs badly for the future of the country.1
The rebellion, too, suggests another problem of great diffi-
culty. It is impossible not to raise the question whether the
case may not arise that a majority in the Parliament and the
white population of the Union might not desire to set up
an independent regime, throwing off their allegiance to the
British Crown. If this were the attitude of any other
Dominion, the case would be simple : the desire must be
conceded on terms to be amicably arranged. But in the case
of the Union the Imperial Government has clearly a serious
duty to the native population, which is not represented in
the legislature, and to the British section of the population,
who, for the most part, would certainly desire to retain the
British sovereignty. Nor, it may be feared, would it be of
much use to attempt to grant independence on the condition
of any privileges to be retained for natives or British sub-
jects, for the enforcement of such rights would either be
impossible or lead to war. It would therefore very possibly
be impracticable to allow the country to be independent, and
this fact must probably govern the situation in the Union
for many years to come. Moreover, the attitude of the
Union renders it doubtful whether in the interests of Rho-
desia entrance into closer relations with that country should
not be delayed for a considerable period : possible acquisi-
tions of other outlets may enable Rhodesia to remain outside
the orbit of the Union altogether, or at least until time has
succeeded in building up there an effective spirit of unity in
allegiance to the sovereignty of the Crown.
Unlike the Boer War, where the enemy were confined to
a single portion of the world, and where any aggressive
action outside South Africa was not to be seriously expected,
in this war the wide effect of the outbreak of hostilities
was evidenced everywhere by special legislation to meet
the needs of the case. It is important to note that this
1 The general election of October 1915 gave Gen. Botha 54 votes, the
Unionists 40, Independents 5, Labour 4, and Nationalists 27, a serious sign
of the feeling of the Dutch districts.
352 IMPERIAL UNITY AND THE DOMINIONS
legislation was not Imperial, but Dominion, and State or
provincial : the existence of a condition of war brought with
it, of course, the result that the enemy became in the posi-
tion of alien enemies, but it did not in any way abrogate the
doctrine that the passing of any legislation arising out of the
state of war was a matter solely for the consideration of
the Dominion Governments and Parliaments. Even in minor
details care was taken to secure that the position and auto-
nomy of the Dominions should not be affected injuriously by
the war. The mere outbreak of war made it an offence to
trade with the enemy, unless with the royal permission.
The prerogative of the Crown to grant such permission and
thereby to relieve the actor of responsibility for breach of
law is naturally not delegated in time of peace to the
Governors of Dominions. The first proclamations regarding
trading with the enemy, in which matters affecting the
Dominions were dealt with, were widely worded, and no
special rule laid down for the case of the grant of permission
to trade in the Dominions, but the omission was remedied
by a Proclamation of October 8, 1914, in which, in the
operation of the provisions of the Trading Proclamation, for
Orders in Council made and published on the recommenda-
tion of a Secretary of State was substituted, as regards
persons resident or carrying on business in the Oversea
Dominions, an Order of the Governor in Council published in
the official gazette, and the power to grant licences to per-
form certain acts which would otherwise have been illegal
was conferred on the Governors- General * of the Common-
wealth, the Union, and Canada, and on the Governors of
New Zealand and Newfoundland. The same power was also
given to the Governors of the colonies not possessing respon-
sible government, but in their case the grant was for reasons
of convenience, not for constitutional grounds.
The grant of extra powers taken by the Dominion govern-
ments was generally wide. Thus in Canada one Act (c. 2)
1 This was, no doubt, correct ; though internal trade is a State matter,
licences would nearly always involve external trade, a Commonwealth
matter under s. 51 (i) of the Constitution.
WAR AND PEACE 353
ratified all the actions done on or after August 1, 1914, by
or under the authority of or ratified by the King-in-Council,
any minister or officer of the Imperial Government, the
Governor-in-Council, any minister or officer of the Canadian
Government, and any other authority or person which would
have been authorized by the Act or by orders or regulations
under it had they been done after the passing of the Act.
It was provided that the issue of a proclamation by His
Majesty or under the authority of the Governor-in-Council
should be conclusive evidence of the existence of war and
of its continuance, and it was declared that war had existed
since August 4, 1914. The Governor-in-Council was given
general power to do and authorize such acts and things,
and to make from time to time such orders and regulations
as he might by reason of the existence of war, invasion, or
insurrection deem necessary or advisable for the security,
defence, peace, order, or welfare of Canada, including
censorship, arrest, detention, exclusion, and deportation,
control of harbours, ports, and territorial waters of Canada
and the movements of vessels, transportation by land, air,
or water, trading, exportation, importation, production and
manufacture, appropriation and control, forfeiture and
disposure of property, and of the use thereof. In any case
where property or its use was appropriated by the Crown,
and compensation was to be made therefor, in default of
agreement it was to be decided by a judge of the Supreme
Court of Canada, or a superior court or county court of the
province in which the claim arose. Penalties for violations
of orders and regulations made under the Act could be
imposed, but not to exceed a fine of 5,000 dollars, or im-
prisonment not exceeding five years, or both fine and
imprisonment. No person held for deportation under the
Act or any regulations, or who was under arrest or detention
as an alien enemy or upon suspicion of being such an enemy,
or for preventing his departure from Canada should be
released on bail or otherwise discharged without the consent
of the Minister of Justice. The Immigration Act was
amended by providing that no resident of Canada, whether
1874
354 IMPERIAL UNITY AND THE DOMINIONS
or not he was a Canadian citizen or had Canadian domicile
or not, who left Canada to perform any military or other
service for a country then at war with His Majesty, or for
the purpose of aiding and abetting His Majesty's enemies,
should be permitted to land in Canada or to remain therein
except with the permission of the minister. Other Acts
passed at the same session, summoned immediately on the
outbreak of war, dealt with the conservation of the com-
mercial and industrial interests of the Dominion, authorized
the modification of the rules regarding the issue of Dominion
notes, changed the customs- tariff in order to raise a larger
revenue from imports of certain articles of food and drink,
and incorporated the Patriotic Fund of Canada to deal
with cases of need. Another Act appropriated the sum of
fifty million dollars from the consolidated revenue fund
towards defraying any expenses to be incurred by or under
the authority of the Governor-in-Council during the year
ending March 31, 1915, for the defence and security of
Canada, the conduct of naval and military operations in
or beyond Canada, promoting the continuance of trade,
industry, and business communication, whether by means of
insurance or indemnity against war risks or otherwise, and
the carrying out of any other measure deemed necessary or
advisable by the Governor-in-Council in consequence of the
existence of a state of war. The Governor-in-Council was
also authorized to raise money by loan for making payments
covered by the authority of the Act.
Equally effective steps were taken by the Governments
of the Commonwealth and the States in Australia and by
the Government of New Zealand.1 Much of the legislation
was devoted to securing the full control of the food supply
so as to prevent the holding up of stocks and the making
thereby of undue profits at the expense of the public, while
steps were also taken to secure that the export from Australia
1 See account in Round Table, 1915, pp. 201 seq. ; 1914-15, pp. 240 seq.
The generosity of the Imperial Government in providing large loans for
the Dominions and in taking up foreign bills held by Dominion banks
greatly aided the Dominions.
WAR AND PEACE 355
of any articles of food which were in demand was prevented.
The State of Queensland, acting with foresight and effective-
ness, passed an Act providing for the acquisition of the whole
of the meat produced in the State with the view to its sale
to the British Government, a step which aided considerably
the victualling of the armies of England and France and in
keeping within fairly reasonable limits the rise in the cost
of commodities. In the case of New South Wales an Act
was passed authorizing the acquisition by the Government
of the wheat supply, the Government intending to secure
that there should be no shortage in the State. This decision
of the Government had the result of disappointing and
causing loss to certain speculators and dealers in Victoria
who had relied on obtaining supplies from New South Wales,
and the result was that the matter was brought before the
Interstate Commission established by the Interstate Com-
mission Act, 1912, in order to obtain a declaration that
the Act was ultra vires the Parliament of New South
Wales, as it constituted an interference with freedom of
intercourse among the states provided by s. 92 of the
Constitution of the Commonwealth. The Interstate Com-
mission, on the hearing of the case, stated a special case for
the consideration of the High Court as to the extent of its
jurisdiction to deal with the matter, and at the hearing of
the case, on the suggestion of the Chief Justice, the Common-
wealth of Australia brought an action against the State
for a declaration of the invalidity of the Act, so that, even
if the Interstate Commission had no jurisdiction, the
question at issue should be disposed of.
On March 23, 19 15,1 the decision of the High Court was
delivered, in which they unanimously held that the Act of
New South Wales was intra vires. It was contended for the
Commonwealth that the law must be invalid because it
interfered with the right of persons who in New South Wales
had contracted to sell their wheat to persons in another
state to carry out the contract, and that thus the prohibition
of the Constitution against the existence of any hindrance
1 Melbourne Argus, March 24, 1915.
Z2
356 IMPERIAL UNITY AND THE DOMINIONS
to free trade was evaded. The Chief Justice pointed out
that if the contention of the Commonwealth were to be
supported to its full extent, it would amount to a claim
that in any Act for the regulation of the expropriation of
private property there must be an exception for any case
in which the property was an object of state commerce at
the time of expropriation. If this were the case, still the
law could clearly stand as to other property, the rule being
that a law must be read as dealing with the subject-matter
which it could control, and therefore the Act could not be
ultra vires on this ground. But he pointed out that the
effect of the Act was not to limit the powers of an owner to
export his goods to another state, which the constitution
forbade, but the effecting of a change of ownership of the
goods. The state became the owner of all the wheat in the
state, the owner having merely a compensation claim, and
the new owner was free to export as he liked. The result
was that the Act could not be said to violate s. 92 of the
constitution, even if it were notorious that the Government
of New South Wales acquired the wheat to prevent export.
Moreover he held that the Interstate Commission had no
authority in the matter, as it had no judicial power proper.
The Commission was created under the power given by
s. 101 of the constitution to set up a body provided with such
powers of adjudication and administration as Parliament
should deem necessary for the execution and maintenance
within the Commonwealth of the provisions of the con-
stitution relating to trade and commerce and the laws made
thereunder. In exercising this power in the Act of 1912
Parliament conferred express judicial authority on the
Commission and made it a court of record and invested it
with the powers and privileges of the High Court of the
Commonwealth itself. In support of this action of Parlia-
ment it was argued that the constitution in s. 73 spoke of an
appeal on points of law lying from the decisions of the
Commission, and that this showed that it was to be a real
judicial body. The Chief Justice overruled this argument,
on the ground that it clearly was provided by s. 71 of the
WAR AND PEACE 357
Constitution that judicial power was to be exercised in the
Commonwealth by the courts therein expressly provided
for, and that mode of appointment of the Commission and
their tenure of office was specially provided for in the
constitution, showing that they did not fall under the
same principles as justices of the Commonwealth. The
right of appeal was given because in the operation of their
functions the Commission must decide mixed questions of
law and fact, and it was felt right that they should be subject
in matters of law to the control of the High Court. The
power of adjudication as given was one of a different kind,
analogous to the power given in England to bodies like the
Board of Trade or Local Government Board or other bodies,
as in the case of the Imperial Act, 9 Edw. VII, c. 44, regarding
housing, town planning, &c. It was never used in British
statutes for the purpose of conferring jurisdiction proper,
and it could not in the case of the Commonwealth be given
that sense in the face of the plain distinction between judicial
and other powers. The view of the Chief Justice was shared
by Isaacs J., who compared the functions of the Commission
as quasi- judicial with those of customs officials or the
commissioner of patents, and by Powers and Rich JJ. On
the other hand, Barton J. held that the powers of adjudication
were equivalent to judicial power, and this view was shared
by Duffy J., but both agreed that the New South Wales Act
was valid, though Barton J. only on the ground that it was
valid in so far as it does not interfere with s. 92 of the
constitution.
A further case of interest arose from the operation of
the War Precautions Act of the Commonwealth. By s. 4
of that Act power was given to the Governor- General to
make regulations for securing the public safety and the
defence of the Commonwealth. Under this Act a regulation
was made authorizing the Minister of Defence, when he had
reason to believe that a naturalized person was disloyal or
disaffected, to order him by warrant to be detained in
military custody until the end of the war. By virtue of
a warrant under the hand of the minister one Franz Wallach,
358 IMPERIAL UNITY AND THE DOMINIONS
manager of the Australian Metal Company, was detained
at a military camp at Langwarrin, and obtained a writ of
habeas corpus on which he was brought before the full court
of Victoria on August 2, 1915.1 The Minister of Defence
attended the court and gave evidence on oath that he had
reason to believe that the prisoner was a person who should
in the interests of the Commonwealth be interned, but he
declined to explain the nature of his information on the
ground that it would be prejudicial to the interest of the
Commonwealth to do so, and in this contention he was
upheld against the Chief Justice by the other two judges.
On the main question whether the regulation in itself was
reasonable the court was divided in opinion, but the Chief
Justice and a'Beckett J. held that it was not. The power
to suspend the habeas carpus Act rested with Parliament,
and it was clearly possible for Parliament to authorize the
step taken if it thought fit, but the regulation in question
was made under no express power to deny a British subject
the ordinary right of liberty, and it was therefore, as it gave
no ground for the court examining the cause of the detention,
too wide and could not be held to be intra vires. A'Beckett J.
concurred in this view : under the regulation far too wide
a power was given to arrest and detain without examination,
and though the power was given to the minister it was
equally open in law for the power to have been given to any
person if the regulation was intra vires under the Act.
Cussen J., on the other hand, held that in war time and
under an Act dealing with war precautions the regulation
could be upheld. As a result the prisoner was discharged,
only at once to be rearrested on the strength of a new
regulation under the Act, providing that if in view of the
hostile associations of any persons it is in the interest of
public safety and the defence of the Commonwealth that he
should be detained in military custody, the minister may order
his detention, and the decision was reversed on appeal.2
In the case of the Union a Public Welfare and Moratorium
Act, No. I of 1914, conferred on the Governor power to fix
1 Melbourne Argu*, August 3 and 10, 1915. a 21 A.L.R. 353.
WAR AND PEACE 359
prices for commodities, to ascertain the amounts of com-
modities stored, to appropriate commodities for the public
use, if unreasonably withheld, on payment of compensation,
to take possession of premises for the storage of goods,
to prohibit the publication of false news, and of information
regarding defence matters. He was also authorized to
proclaim under certain conditions a moratorium, and
further Acts conferred various financial and other powers,
besides authorizing the construction of a railway to facilitate
the attack on German South- West Africa. The presence of
German subjects in the Cape raised at once the same
difficulties as in the United Kingdom. In ex parte Belli *
a German resident at Capetown asked the Cape Provincial
Division to declare illegal his arrest by the authority of the
Union Government and his removal by the same authority
to confinement at Johannesburg. The applicant was
exempt from military service in Germany and not a reservist.
He had, prior to his arrest, reported himself to the Capetown
magistrate. The application was rejected by the court.
While they recognized that there was modern authority for
mild treatment of alien enemies, they could not deny the
positive right of the Government to take the action in
question, as it was within their legal right to detain as
prisoners of war every subject of a hostile power found
within their territory, and the court had no discretionary
power to intervene. The same court in September 1914,
in ex parte Savage and others,2 decided the rights of alien
enemies to sue and be sued in the Cape courts in the same
sense as that of the decision of the English Court of Appeal.3
It was laid down that the character of an alien enemy is
determined by residence in a hostile country, and that in
accordance with the rules of English common law this pre-
scribes a prohibition of intercourse between such alien
enemies and persons resident in the Cape, and the court
held that, unless special legislation was passed in accordance
1 [1910] C.P.D. 742. 2 [19HJ C.P.D. 827.
3 Porter v. Freudenberg, Kreglinger v. 8. Samuel & Rosenfeld, in re
Merten's Patents [1915] 1 K.B. 857.
360 IMPERIAL UNITY AND THE DOMINIONS
with the Hague Conference of 1907, forbidding interference
with legal proceedings, the common law rule involved
a prohibition for an alien enemy to use any South African
court of justice. The same rule did not interfere with
suing alien enemies in a civil action, as there was nothing
against public policy in this, and it resulted that an alien
enemy could be sued in the courts of the colony. It was
also held that as the method of substituted service did not
prevail in the courts of the Cape, and as edictal citation
would be an imperfect means of giving notice, recourse could
be had to the method of seizure of property ad fundandam
iurisdictionem or simply to service of the summons on the
local branch of the firm in question, whose head office was
at Berlin but which had branches in the Cape.
It is quite inevitable that after being so deeply affected
by the war as the Dominions have been, and after making
such ready sacrifices for the cause of Empire, they should
seek the assurance that they shall most fully be consulted
with regard to the termination of hostilities. For a time
a somewhat determined movement was made in favour of
the holding in May or June 1915 of an Imperial Conference
to discuss affairs,1 but the proposition, though apparently
seriously intended and supported by the wishes of the
Commonwealth Government, could hardly be taken as
practicable. The Canadian Government, by means of their
minister stationed in London, had the fullest and most
intimate relations with the Imperial Government, and
a conference would have had no attractions for them in
any way. The Prime Minister of the Union of South
Africa was busy in devising an attack on the German forces
in South Africa, and was also for the earlier part of the war
deeply engaged in contending against a dangerous rebellion,
and after its suppression was very busily involved in an
election campaign. In the Dominion of New Zealand
a curious political position arose in December 1914, for the
opposition, as a result of the general election, found itself in
1 See The Times, May 22, 1915 ; Round Table, 1915, pp. 325 seq. The
latter is a reasoned statement of great interest.
WAR AND PEACE 361
almost an equality with the Government, the issue depending,
as usual in such cases, on the decision of one or two doubtful
seats. The position therefore left no possibility for the dis-
patch of a minister to the United Kingdom until, after a long
series of tactics, it was agreed to found a coalition govern-
ment and to send a united representation to any Imperial
Conference held in the future, a decision the wisdom of
which was obvious, since the two parties in the Legislature
have clearly come to almost the same numbers and degree
of popular favour. In the Commonwealth alone could
ministers have been spared to visit the United Kingdom,
and the holding of a Conference with these ministers was of
course open had they cared to come, but naturally enough
they preferred a full Conference. Accordingly the meeting
of the Imperial Conference due for 1915 was postponed by
agreement until a more convenient season, but a most clear
intimation was given that the terms of peace as affecting
the Dominions would be discussed with the Dominions
before the peace was concluded.
In the military operations which were undertaken by the
Dominions against the German Protectorates in Samoa, in
New Guinea, and in South Africa the Governments con-
cerned acted entirely on the understanding that any con-
quests which were made by their troops were made in the
name of the Empire, and that the question of annexation
or other action in regard to the conquests must wait until
the conclusion of the war. The territory thus taken was
therefore not annexed to the Crown, as often loosely stated :
the territory was merely occupied, and is now being adminis-
tered by the Dominion Governments on behalf of the Crown
pending the final allocation in time of peace. The con-
ventions which were made with the German forces occupying
the islands were nothing but military conventions, though
the fullest use of the freedom of a commander was made
by General Botha in settling the terms on which German
South-West Africa was to be yielded to the British arms.
It is, however, very certain that neither New Zealand, nor
the Commonwealth of Australia, nor the Union, will be
362 IMPERIAL UNITY AND THE DOMINIONS
willing to relinquish the territory which they now hold.
New Zealand bitterly resented in 1899 the conclusion of the
Samoa Convention,1 though that Convention was really
forced from the Imperial Government by reason of the
pressure exerted by the German Government at the moment
when the British reverses in the Boer War had begun to
look serious. At that psychological moment the pressure
of public opinion in Germany, which had been fairly calm,
became, in the view of the German Government, so serious
that something had to be done to assuage it, and the action
taken was in the form of asking for the cession of the British
share of the islands. Luckily the British Government, by
remaining firm, succeeded in obtaining the cession of all
German claims on Tonga and the giving up of the Solomon
Islands, but obvious considerations of this kind do not
appeal very forcibly to persons not familiar with foreign
politics, and at a great distance from Europe. The feeling,
however, that Great Britain was negligent of the interests
of New Zealand in that matter, though it cannot be too
often said that it was perfectly unfounded and that British
diplomacy in this affair showed itself at great advantage,
is one which it is not to be expected that any considerations
will eradicate, and the demand of New Zealand for that
island will be firmly pressed at any conference or discussion.
Similarly Australia remembers that Queensland tried in
vain to annex what is now German New Guinea, and may
be trusted to demand that the full possession of the territory
will be secured to it, not indeed because of any intrinsic
value, of which it probably has very little, to judge from the
case of British New Guinea, which will not progress despite
much effort and some money, but because it is most undesir-
able to have in foreign hands any part of an island which
is really an integral part of the continent. In the case of
South Africa General Botha has already declared that the
German territory is required for the Union. It is said to
have in it not merely great wealth in diamonds, which is
admitted, but considerable ranges of land suitable for
1 See Par/. Pap., Cd. 7, 38, 39, 98.
WAR AND PEACE 363
settlement, and the great need of the Union Government is
such land. Moreover, quite just emphasis has been laid by
General Botha on the conduct of Germany in its treatment
of the Hereros as a source of unrest and discontent among
the native races of South Africa. Nor in fact can it be good
for a country to have as next neighbour a country which
exterminates a nation with as little humanity as shown by
Germany to a helpless if not very attractive native race.
Moreover, the actual presence on South African soil of
a power which has intrigued against the Government of
South Africa is really an intolerable -grievance, which the
Union cannot be expected to acquiesce in unless it is
essential.
It is obvious that there is abundant room for difficulty
in the granting of their desires to the Dominions unless the
war has a perfectly favourable ending, and in that case
there is the danger of the desire to mitigate the harshness
of the terms given interfering with the demands of the
Dominions. It is right to recognize the danger, for the
absurd view has actually been expressed that, as a matter
of goodwill, in the case of success in the war many colonies,
including German South- West Africa, should be returned
to Germany. If the Imperial Government has the power
to retain German South-West Africa and does not do so,
it will be clear that the sacrifice of the Dominions has
been wasted and that the Empire is merely a name, but
the contingency of any such folly on the part of the Imperial
Government should not be accepted as a possibility. The
more serious position may be that some sacrifices have to
be made to ensure peace, and that the Dominions may be
involved in the sacrifices. The mere possibility of this is
adequate reason to render the prosecution of the war by
the Government the more effective and resolute.
A mere consideration of the actual position of the war,
the great efforts which must still be made before there can
be any hope of peace, shows how idle were the proposals to
have an early meeting of the Imperial Conference, based
on the idea which the Dominions, not perhaps unnaturally,
364 IMPERIAL UNITY AND THE DOMINIONS
entertained, since many people in the United Kingdom
suffered from the same delusion, that there was a chance of
an early peace. It is still premature to discuss the actual
mode of arranging peace when no peace is in sight. It is,
however, quite a different thing to discuss the steps which
should be taken in settling the outlines of the conditions of
peace to be sought, and that could be done by a conference
if the time and circumstances of the Dominions permitted
a full attendance of ministers. It may, however, be
observed, that the appointment of the ex-Labour Prime
Minister to be High Commissioner of the Commonwealth in
London affords a simple and effective means, if desired,
for keeping the Labour Government in touch with the
Imperial Government and with foreign affairs. It is true
that the High Commissioner remains a civil servant of
a special kind, but that does not alter the fact that he must
be in complete sympathy with the Labour Government of
which he has so long been the leader in Parliament, and
that owing to the caucus system he is not in the same
position towards his ministerial superiors as the ordinary
High Commissioner to the Government by which he is
appointed. The Labour system of rule gives to the private
individual a considerable amount of importance as com-
pared with ministers, for it reduces their rank by sub-
ordinating their position to the control of the Labour Party
in Parliament, and behind that the Labour Party in the
country, and thus while the position is experimental it is
not impossible that in this way the needs of consultation
might be met effectively and conveniently. That if possible
a full Conference should be held is obvious, but must depend
on the wishes and needs of the Dominions as a whole :
Australia and New Zealand have far more need for confer-
ences than the nearer Dominions.
The position of the Dominions in any actual Peace Con-
ference which might be held to settle terms of peace is
a more difficult question. If a formal meeting similar to
those which marked the end of the great wars of the begin-
ning of the nineteenth century were held, it might be possible
WAR AND PEACE 365
to have the Dominions represented by advisers of the British
plenipotentiaries, or as members of the British delegation
acting on the rule that the final decision would rest with the
Imperial Government. It might also be possible that they
should act as plenipotentiaries to represent the King on
behalf of the Dominions, as has been done in the case of
two commercial conferences, and has been suggested above 1
as a suitable procedure for Hague Conferences. But it may
be doubted if, in case of the peace necessary to effect a settle-
ment after a war in which there are the wishes of so many
allies to consider and so many conflicting aims to be recon-
ciled, it would not be better to allow the Dominions merely
to be represented in an advisory capacity.
It must of course be remembered that the common idea
that in this war the Dominions are coming to aid the Empire
merely out of chivalry and loyalty is not an accurate
representation of facts. It is most true that this is the
feeling animating many of those who have offered them-
selves for service, but it would be idle to deny that the war
is essentially one as much for the freedom and the power of
self-government of the Dominions as it is for the freedom
of the United Kingdom. We may indeed go further and
assert that the Dominions are in rather more danger, with
the exception of Canada, which would be protected by the
United States in accordance with the Canning doctrine 2 as
enunciated by Monroe in her own vital interests,3 than the
United Kingdom herself, which is too strong to be finally
ruled even by a victorious Germany. But Australia and New
Zealand, and still more South Africa, would have no chance
of resisting appropriation by a victorious Germany, and
it is idle to deny that the obtaining of such possessions
would exactly meet the German view of their future in the
world. There has been evidence already in the Common-
1 Part I, chap. xiv.
2 See J. S. Ewart, Kingdom Papers, ii. 169-92, who usefully reminds his
fellow Canadians of the true source of the policy.
3 This would be humiliating to Canada, as pointed out by Sir W. Laurier ;
Hound Table, 1915, p. 431, and by Sir R. Borden, ibid. p. 432.
366 IMPERIAL UNITY AND THE DOMINIONS
wealth 1 of the insidious control which has been effected of
the whole metal industry, a control which the Commonwealth
Government has set itself successfully to defeat for good,2
and the university circles of New Zealand have given
a signal example of their lack of common-sense by their
determined resistance to the wise decision of the Govern-
ment and the Parliament that an unnaturalized German
professor should not be allowed to continue the instruction
of youth.
1 Note should be made of the clear recognition of the Bulletin (e. g.
Aug. 12, 1915) of the real stake of Australia in the war.
2 See Round Table, 1915-16, pp. 175-80. The necessary co-operation of
the Imperial Government is to be obtained by Mr. Hughes during his
visit of March 1916 to London.
C. THE JUDICIAL POWER
CHAPTER XVI
APPEALS TO THE PRIVY COUNCIL
THERE still exists at the present day a very wide right
of appeal to the Crown-in-Council from the courts of the
oversea Dominions possessing responsible government, and
it is perhaps not always realized that the right to appeal is
not one which can be taken away at pleasure by the Legis-
latures of the Dominions. Apart altogether from the
question of the exercise of the right of the Crown to withhold
assent from a Bill fettering the right of the Judicial Com-
mittee of the Privy Council to grant leave to appeal from the
decision of a Dominion court, in almost every case such an
attempt at legislation would be ultra vires, and would
therefore not in law hamper the exercise of the discretion
of the Judicial Committee in performing their function of
considering such appeals. Moreover it must always be
borne in mind that the Judicial Committee is a judicial
body, and that, though it is not impervious to considerations
of a quasi-political nature as to the mode in which it should
exercise its right to grant special leave to appeal, neverthe-
less it is bound to deal with any such application in a judicial
spirit and to decide it in a judicial manner. It would not
be possible to lay down for that body any rule that the
dislike of a Dominion to the hearing of appeals should be
a ground for not hearing those appeals which were actually
brought to its notice.
The right of the Crown to grant special leave to appeal
rests on the royal prerogative in the first instance, but the
prerogative can be barred by local legislation in most cases,
and it may be held that it could effectively be barred in the
case of this prerogative also. There is, however, a certain
difficulty in the matter which cannot be wholly ignored.
The prerogative is exercised in the United Kingdom, and
not in the Dominion, and it may be argued that the effect
of a local Act being limited in territorial effect would not
bar the possibility of the grant by the Crown of special
leave, and that, if on the hearing of the appeal the judgement
were reversed, the effects of such a reversal would follow
automatically in law, if not in practice. On the other hand
the question is really academic, for, if the actual effects
were not permitted to follow in the Dominion, if the courts
there were instructed by local law that their decisions were
to be treated by them as final, the reversal of a decision on
appeal would matter nothing, and, what is more important,
the Judicial Committee would not deal with judgements
which would not be affected by their decisions. In any case,
however, the power to prevent the operation of the preroga-
tive is taken away from nearly all Dominion Legislatures
by the provisions of an Act, 7 and 8 Viet. c. 69, which was
passed, not for this purpose but merely because it had been
found doubtful whether the Crown had power to hear cases
brought on appeal, not from the last appellate jurisdiction
in a colony, but from an inferior court. It may at first
sight seem strange that there should have been any desire
to hear appeals direct from the inferior courts, but the
explanation is that in several colonies the final court of
appeal in the colony itself was the Go vernor-in- Council,
not a judicial body in any very satisfactory sense, and not
one which was likely by its deliberations to add much of
value to what was said in the highest inferior court. Indeed
this anomalous system remained alive in theory in Western
Australia until 191 1,1 when the last remnant of it was
abolished as the result of the discovery that apparently the
Governor-in-Council was a court of appeal in divorce cases,
a duty which that body had not the slightest desire to
perform. The Act, however, while permitting appeals to
be brought direct from any inferior court, incidentally
abolished all restrictions on the right to bring appeals
i Act No. 4 of 1911 ; Pad. Pap., Cd. 6091, p. 53.
APPEALS TO THE PRIVY COUNCIL 369
from the final court in any colony by including that court
in its wording.
Curiously enough the effect of the Act in question was
long overlooked : it is otherwise inexplicable that there
should have arisen any dispute regarding the Act creating
the Supreme Court of Canada, when the Imperial Govern-
ment in 1875 clearly intimated that the Act must not touch
the prerogative right to grant special leave to appeal, or it
could not expect to obtain the royal approval. The same
question arose further regarding the right of the Privy
Council to grant special leave to appeal in the case of
criminal cases in Canada. The matter was brought to
a head by the discovery that the Privy Council in a suitable
case would grant such leave, as in the case of the trial of
Louis Kiel l for his part in the North-West rebellion of 1885.
The Canadian Government decided that the prerogative
must be barred, and after one failure secured the placing on
the statute book of a law, which was held by them to have
attained this end. The Act, however, is not a triumphant
example of the barring of the prerogative, but a striking
example of the fact that the Act of 1844 seems to have been
as little read by the lawyers of the Crown in Canada as by
those of the United Kingdom. In the case of New Zealand
an Act dealing with divorce passed in the year 1912 sought
to restrict the right of appeal to the Privy Council in a minor
matter : the point at issue was infinitesimal, but it was at
once recognized that the Act was ultra vires the Parliament
of New Zealand and by Act No. 69 of 1913 the peccant
paragraph was emended.2
It is not of course to be supposed that the Judicial Com-
mittee are indifferent to the views of the Dominion Govern-
ments in the matter of what appeals are proper. Of their
own motion they have insisted on declining in normal
circumstances to hear appeals in criminal cases and have
refused to become a court of criminal review, though they
have always held themselves at liberty in any very extra-
ordinary case to grant leave to appeal. The trial of Kiel
1 Riel v. Reg., 10 App. Cas. 675. 2 Part. Pap., Cd. 7607, p. 47.
1874 A a
370 IMPERIAL UNITY AND THE DOMINIONS
was clearly such a case : not only was the matter one of the
utmost political interest in the Dominion, where the people
of Quebec were eager to save a man whom most of Canada
regarded as no better than a murderer and who was in fact
a good deal of a madman, but the questions raised as to his
trial were serious questions of constitutional law, dealing
with the problem how far it was possible for the Legislature
to repeal the old statutes in force in the territory before it
was placed under the legislative power of the Dominion of
Canada. It is not likely that any such case will ever again
arise in Canada, but, if it did arise, it is not certain that the
Judicial Committee would feel bound to refuse to decide it :
it is not even impossible that it might be desirable and
desired that the Judicial Committee should so decide it,
for Canada has very high respect for the advantages of
a tribunal which is above any suspicion of being swayed
by party politics in the Dominion. On the other hand,
the Judicial Committee on May 7, 1914, declined to admit
an appeal from the Supreme Court of Canada in Carey v.
Roots, which was a case arising out of contract to purchase
land : the matter was disputed and there was very con-
siderable conflict in the courts below, the decision of the
Supreme Court reversing a decision of the Supreme Court of
Alberta in its appellate jurisdiction, a fact which was
urged as a reason for having the matter finally disposed of
by the highest tribunal. In this sort of case appeals have
not rarely been allowed in the past, but the Lord Chancellor
announced that in his view the practice of the court had
been unduly lax, especially as the Supreme Court Act of
the Dominion evidently deprecated any appeal at all being
brought to the Privy Council. The view is one which is
naturally felt strongly by the Supreme Court of the Dominion
itself, and there is this amount of justification for the objec-
tion to the hearing of such appeals on other than constitu-
tional questions, in that the plaintiff or defendant, as the
case may be, who is defeated below can carry the case direct
to the Privy Council from the appellate division of any
province, so that if he chooses to go to the Supreme Court
APPEALS TO THE PRIVY COUNCIL 371
he should accept the decision as final. In a case where the
appeal to the Supreme Court is brought by the party who
is victorious in that court the case for a decision by the
Privy Council is stronger, as obviously the other party had
no option of action accorded to him at all.
As in Canada, in the Commonwealth there is the same
possibility of elaborate appeals arising from the fact that
an appeal lies from every Supreme Court in a State to the
Privy Council or alternatively to the Commonwealth High
Court, and that from the latter an appeal lies by special
leave to the Judicial Committee. The case of the Common-
wealth is, however, differentiated greatly from that of
Canada by the arrangement made to preserve for the
Commonwealth the decision of the interpretation of its own
Constitution, a decision based on the American models which
it was the glory of the fathers of federation to follow with
more affection than wisdom, as the stormy history of the
interpretation of the Constitution has shown. The Con-
stitution as finally accepted by the Imperial Government
allowed the High Court of the Commonwealth to be the
final judge in any case brought before it where the constitu-
tional rights of the States inter se or of the Commonwealth
and the States were concerned. It was recognized at the
time that, as the State courts would deal with these questions
in matters coming before them and as the appeal from the
State courts still lay to the Privy Council, there might
arise the possibility of the two tribunals giving different
judgements on the same point, that of the High Court
being final unless it should be pleased to grant permission
to appeal from its own decision. But it was argued that as
normally the Privy Council was the higher court, the High
Court would bow to its views. The result proved the
supposition to be quite unfounded. The High Court not
merely held l that the salary of a federal officer could not be
taxed by a state since that would allow a state by taxation
to interfere with a Commonwealth instrumentality, which
the courts of the United States held to be wrong, but when
1 Deakin v. Webb, 1 C.L.R. 585; Keith, Journ. Soc. Comp. Leg. ix. 269-80.
Aa2
372 IMPERIAL UNITY AND THE DOMINIONS
the Privy Council * ruled in precisely the same issue brought
on appeal from Victoria in precisely the opposite sense,
they persisted in their view and declined either to accept
the view of the Privy Council or to allow an appeal from
their judgement to that body. The situation was ludicrous,
and the knot had to be cut. The Parliament legislated2
to allow the States to tax federal officers at a rate not
exceeding that imposed on other inhabitants of the States,
and it also3 enacted that no constitutional case affecting
the powers of the Commonwealth or the States inter se
should be determined by a State supreme court, but must
be removed to the High Court itself for determination.
The Act was intra vires as the power had been given to the
Parliament to deal with federal jurisdiction, and it effected
its aim. The High Court proceeded to interpret the con-
stitution of the Commonwealth with such effect that the
most wholesale attempts at amendment have been made
by the Labour Party to rescue the Commonwealth as they
hold from the legalism which has deadened its life and is
destroying it. On the other hand the High Court on the
occasion when it has allowed the Privy Council to deal
with its judgements has not fared altogether very satis-
factorily at its hands, and the irony of fate is that while the
High Court of the Commonwealth has on the whole dis-
tinguished itself by the upholding of the rights of the
States and not of the Commonwealth — whereas the tendency
of the Supreme Court of Canada has rather leaned to the
other side, the Privy Council, with whose decision it quarrelled
in the early history of the court on the ground that it was
too favourable to the States, has gone in its latest judgement
much further than the Commonwealth High Court, by holding
that the Royal Commissions Act, 191 2, of the Commonwealth,
on which action against the Colonial Sugar Refining Company
was based, was not merely not applicable in that special case,
but was in itself ultra vires as containing matter which was
quite beyond the authority of the Commonwealth.
1 Webb v. Outtrim, [1907] A.C. 81.
« Act No. 7 of 1907. 8 Act No. 8 of 1907.
APPEALS TO THE PRIVY COUNCIL 373
In the ordinary jurisdiction of the High Court of the
Commonwealth on appeal from the Supreme Courts of the
States, the judgements of the Commonwealth have not
received always very respectful handling from the Judicial
Committee of the Privy Council : in one case which arose
out of the interpretation of a law of New South Wales and
affected the question of the degree of privilege which was
allowed to a society which for gain carried on the work of
giving information about the financial status of private
persons, the result of the reversal of the decision of the
High Court in favour of such societies possessing privilege
by reason of interest was that the New South Wales Govern-
ment introduced an amendment into their law 1 of libel
which would have resulted in undoing for New South Wales
the interpretation of the law as laid down by the Judicial
Committee. The result, however, was not what was
proposed : the Bill was so considerably amended before it
became law that it could not be said to have accomplished
its purpose in any degree. Nor, to do the then Prime
Minister of the State justice, did he suggest that the view
of the Privy Council was bad law : he merely thought that
the law as it resulted exposed to too serious risks of heavy
penalties firms who were performing a useful work in
a country where credit is of much importance, and he
considered that, if they did their work honestly and in
a competent manner, they should be privileged in respect of
a mis-statement as to a man's position made in good faith,
without negligence and without malice.
In the case of the Union of South Africa far greater
inroads in theory have been made on the royal prerogative
than in any other Dominion. The South Africa Act, 1909,
replaced the old procedure under which appeals came to
the Privy Council from a considerable number of colonial
courts, three in the Cape, two in the Transvaal, two in
Natal, and one in the Orange River Colony, by the establish-
ment of a new regime under which one Supreme Court for the
Union was constituted, to which in its appellate division
1 Act No. 22 of 1909 ; Part. Pap., Cd. 5135, p. 15.
374 IMPERIAL UNITY AND THE DOMINIONS
all the appeals which formerly went to the Privy Council
as well as others might come. From the divisions of the
Supreme Court no appeal was henceforth to lie to the
Privy Council, but from the appellate division only might
an appeal be brought by special leave to the Judicial Com-
mittee. It was also intimated that the occasions on which
appeals could be allowed were expected to be very rare
indeed, as it was desired that the appellate division should
in effect be the final appeal court for South Africa.1 It
must, however, be remembered that the state of affairs in
the Union is somewhat unusual — the law in force there is
Roman-Dutch law, and the lawyers of the Union are familiar
with the peculiar variety of that law which applies to the
Union : the Judicial Committee of the Privy Council has
no such familiarity with that special law, and therefore it is
not unnatural that parties in cases are not specially anxious
to take their cases away from the domestic forum. More-
over, the bringing of appeals is especially a matter for
wealthy firms and companies, and these are not in South
Africa constantly engaged in litigation arising out of con-
stitutional points as in Canada. The Parliament of the
Union is, subject to the control of the Imperial Parliament,
in effect a sovereign body, and cases of constitutional law
of real importance will always, it may safely be said, be
comparatively rare.
Efforts have of late years, especially since the beginning
of the century, been made to arrange improvements in the
Privy Council which will make the position of the court
less open to attack on constitutional grounds. It is idle
to suppose that the anomaly of a court which sits in England
and which is not in any very obvious way in touch with
Imperial issues can be regarded universally with satisfaction,
and there has always been a certain current of opinion
in the Dominions in favour of the restriction of the right of
appeal. The Constitutions of the Commonwealth and the
Union both permit legislation by Parliament to restrict
1 The expectation has been fully realized; appeals have almost dis-
appeared from the Court in its Union jurisdiction.
APPEALS TO THE PRIVY COUNCIL 375
the right of appeal, but the legislation for this end must be
reserved for the signification of the royal pleasure, and no
responsible Government has gone so far as to introduce
a Bill to this end. Nor have the Dominions yet put forward
a demand for the restriction of appeals, and indeed there
is a fair amount of evidence that the statesmen of the
Dominions have not yet reached the stage of holding that
it is a matter of importance or even perhaps really desirable
that the appeal should be taken away. The possibility of
occasional ebullitions of feeling is always present : New
Zealand some years ago was bitterly moved by a judgement
which was, it held, based on the totally wrong-headed view
that the New Zealand Government had been trying to
neglect native interests, and from this time dates the strong
antipathy of Sir Robert Stout, the Chief Justice, to the
Privy Council. The disputes between the Privy Council
and the High Court of the Commonwealth created strong
feeling both for the Privy Council and against it : the
States thought that it was upholding their rights and the
judgements of State courts : the Commonwealth feared
that its influence would be thrown on the side of the States.
In Canada of late years it has rendered some constitutional
judgements of great value from the point of view of calming
popular feeling : its decision l that the House of Commons
of Canada had no power to enact a general Marriage Act
providing for the universal conditions of recognition of
validity of marriages, in face of the fact that under the
constitution the provinces have the exclusive right to
legislate regarding solemnization of marriage, put an end
to an inconvenient and troublesome agitation based on the
fact that the Ne temere decree was supposed to have legal
validity in Canada, as was suggested by the decision of one
judge in a Quebec case of a marriage of two Catholics by
a Protestant. On the other hand, feeling in Quebec in
1913 was somewhat strongly moved by the decision of the
Privy Council in the case of Cotton v. Rex.2 The matter
was one of succession duties : all the provinces of the
1 [1912] A.C. 880. 8 [1914] A.C. 176.
376 IMPERIAL UNITY AND THE DOMINIONS
Dominion are anxious to get as much revenue as they
can in this way, and they therefore seek by every device
whatever to secure that revenue by evasions of the rule
which limits them to taxation of property actually in the
province. The Privy Council in that case did not, however,
as in an earlier case,1 discuss the matter on the subject of
the nature of taxation within the province, but instead
they dealt with the matter as of indirect and direct taxation.
The Provincial Legislatures are limited strictly to direct
taxation and are not allowed to levy indirect taxes, so that
the problem was whether the taxation in this case was
direct. The scheme of the Act in the opinion of the court
was that it levied a duty on all movable property wherever
situated of a man who died domiciled in the province, and
required that every executor, administrator, trustee, uni-
versal legatee or notary before whom a will had been
executed should furnish within a certain time a schedule
of the estate. The collector of revenue then intimated the
amount of duty payable which the declarant had to pay
within thirty days. The collector could thus recover the
money from the declarant, who would in most cases be
merely the notary, who in his turn would have to recover the
money from the estate or, more correctly, the people con-
cerned in it. Now, if an ordinary case were taken of
movable property in New York dealt with by the will
of a person domiciled in the province, the legatee could
obtain the sum outstanding under the law of New York
without showing that he had paid duty in Quebec, and the
case would clearly arise of the declarant in Quebec being
a person who was not expected to pay the duties in respect
of this legacy at all, but to recover them from some other
person. This could not be direct taxation within the
meaning of the words in the British North America Act,
which clearly contemplated as direct taxation only what
was held by Mill to be such taxation. The Privy Council
therefore held the whole scheme of succession duties in
Quebec invalid.
1 Woodruff v. Attorney-General for Ontario, [1908] A.C. 508.
APPEALS TO THE PRIVY COUNCIL 377
The Act was obviously a rather unpleasant blow to the
Government of Quebec, which was put in the position of
losing all its revenues from the duties and of having a crop
of actions for the refund of duties already paid. The Legis-
lature therefore hurriedly set to work in January 1914 to
enact measures to establish the tax as a direct tax, and one
of these measures was directly aimed at the Judicial Com-
mittee. It recited that the judgement rested in large
measure on conditions which were non-existent, the alleged
obligation of the notary to pay the duties, as under art. 1380
of the Revised Statutes, 1909, the notary was expressly
exempted from the class of persons who must make the
declaration, and therefore be liable to pay the duties, and it
asserted that the Acts regarding succession duty all agreed
in not taxing the person making the declaration, but did tax
immediately and without benefit of recourse the beneficiaries
under the Acts. It proceeded, however, to spoil the effect
of its assertion that the case was decided on the ground of an
error, which was obviously not the case, though the remark
regarding the notary was an error, by admitting that the
rule by which a declaration was made by one person only
and he became liable to pay the whole duty on the estate to
the collector, was introduced by an Act, 58 Viet. c. 16, s. 2,
which was passed merely to obviate the trouble under the
old rule, by which every person had to send in an inventory,
though each was only liable to pay on his share of the estate.
Moreover, it argued, even if one person could be called upon
to pay the whole amount, which was not the intention of the
Acts, though it might be possible under their terms, still he
did not pay in the expectation of indemnifying himself, but
he merely paid as representative of the other heirs out of the
common estate. It further stated that, as those who paid
succession duty before the introduction of the new procedure
were not entitled to recover back the duties paid, clearly it
would be unfair to these persons if persons who had paid
subsequently could recover the duties paid, and it accord-
ingly provided that the intention of the Acts was and had
been, that every person to whom property or any interest
therein was transmitted owing to death should pay to the
Government, directly and without having a recourse against
any other person, a tax calculated on the value of the pro-
perty as transmitted, and that there should be no right of
action against the Government for the recovery of any money
heretofore or hereafter paid to it in respect of succession
duties for the reason only that the taxes were not direct
taxes. The Act was not to apply, however, to pending or
decided cases. It is clear that the enactment validating
what had been done is of doubtful validity, since what is not
a direct tax cannot be made a direct tax by any effort of the
Provincial Legislature, and a provision forbidding an action
has no validity if it deals with an action for an illegal act of
the province, since it shares in the illegality of the action
under the Constitution, but the enactment presumably
secured the position as to future tax-payers. On the other
hand, the passing of such an Act was a clear breach of the
courtesy due to the Final Court of Appeal, for even had the
Act been correct in point of fact and the decision of the court
much influenced by the fact of the notary paying — which
was not the case — the terms of the preamble are unwise.
It remains, however, curious that the error should have been
committed : the case was argued as always by expensive
Canadian counsel, who must have been guilty, one would
think, of some error in their presentation of the case.
Apart, however, from ebullitions of feeling of this kind, it is
clear that the permanent acceptance by the Dominions of
a court in London is impossible, unless that court can be so
enlarged as to give the Dominions some just feeling that it is
an Imperial court. The arguments which can be adduced
for the retention of the appeal to a purely colonial court, as
the Privy Council may rightly be said to be, as colonial
appeals occupy its attention far more than anything else,
and as its judgements are not binding on the British courts,
are not of sufficient importance to induce the Dominions to
accept it permanently. It is true that the court is of some
value as dealing in a uniform way with the prerogative of
the Crown which is, generally speaking, identical in all the
APPEALS TO THE PRIVY COUNCIL 379
Dominions, but this is subject to local legislation and
therefore is often to be interpreted, not on the broad
basis of the ordinary law, but on the special basis of local
Acts. It is also true that it is a body which in cases of strong
political excitement in a Dominion may be relied on to be
calm, and give an unbiased judgement. There is, too, a
special propriety in entrusting to it such cases as the boun-
dary dispute between South Australia and Victoria, which it
disposed of very satisfactorily, for the settling of such dis-
putes is part of its historic functions, but for this purpose it
must be remembered that it need not have been invoked in
its judicial attitude proper : the power of the Crown to make
special references could have been used as in the case of the
disputes over the Ontario and Quebec boundary in 1878,
and Ontario and Manitoba in 1884, and the pending refer-
ence in the case of the Newfoundland and Canada boundary.
The English common law, however, is so far from alive in
most parts of the Empire where it is now in part embodied
in statutes, in part changed by legislation, that the function
of the Privy Council in maintaining uniformity of law is not
to be taken very seriously.
But there would be some real temptation to the Dominions
to take part in the reconstruction of the Judicial Committee
if they could be given the assurance that the body would be
concerned with appeals from England, Scotland, and Ireland,
as well as with appeals from the Colonies, and that the mem-
bership of Dominion judges would be really welcomed. The
two things must go together in the long run, and the ideal
of the Dominions, so far as they do not prefer to have the
abolition of the appeal in toto, is that expressed by the
Commonwealth Government in 1901, at the Conference1 held
in that year in view of the passing of the Commonwealth of
Australia Constitution Act, in which for the first time the
prerogative was seriously affected by the exclusion of consti-
tutional cases in certain instances from its purview. It was
then suggested that there should be constituted an Imperial
Court of Final Appeal, including Dominion representatives,
1 Part. Pap., Cd. 846.
380 IMPERIAL UNITY AND THE DOMINIONS
one for Canada, one for Australia, and one for South
Africa being suggested, which would exercise the whole
jurisdiction of the House of Lords on appeal, and of the
Judicial Committee, on Colonial and Indian appeals. The
court was also to include an Indian judge, and was to sit in
two divisions, on one of which could be a Colonial judge and
on the other one Indian and one Colonial. For special cases
the two divisions would sit together, and the expert opinion
of the judge most familiar with the subject-matter of any
case would be utilized by the Lord Chancellor as the ground
for assigning one case to any division. The proposal, how-
ever, was not then generally acceptable to the Colonies, and
nothing further was done for the moment.
Of the two ideals of the Commonwealth view in 1901, the
first, that there should be one court only of appeal for the
whole Empire, has been left in practically the same position
as in 1901. The latter, the question of the addition of
Colonial judges, has been dealt with piecemeal, and on the
whole rather unsatisfactorily. The first step was taken in
1895, when by the Judicial Committee Amendment Act, 1895,
it was rendered possible to add to the Privy Council not more
than five persons being Privy Councillors who were also, or
had been, Judges of the Supreme Court of the Dominion of
Canada, or of any of the superior courts of the provinces, or
Judges of the Supreme Courts of the Australasian Colonies,
and the two South African Colonies, or other Colonies named
by the King in Council. The number of five was only
gradually made up : the Chief Justices of Canada, of the
Cape, and of South Australia were appointed in 1 897, and later,
in 1904 and 1901, were added Sir H. E. Taschereau, the new
Chief Justice of Canada, and Sir S. Griffith, the Chief Justice
of Queensland. The places of the two older Canadian judges
were taken by the appointment of Sir C. Fitzpatrick, Chief
Justice of Canada from 1906, and of Sir E. Barton, of the
High Court of Australia. But there was no provision in the
Act for the payment of the judges, and as a result, though
they might sit occasionally, that could only be on rare visits,
when judges came to the United Kingdom on other business
APPEALS TO THE PRIVY COUNCIL 381
at their own expense or at the expense of the Government
which they represented. In 1907 the discussion at the
Conference l led to no definite result, except that it was
agreed that it would be a good thing to re-codify the rules
regarding appeals from the Dominions, provinces and states,
and to make the conditions more even. Not only was this
done, but a useful step was taken by giving the courts in
the provinces, the states, New Zealand and Newfoundland,
the power wherever they thought fit to allow an appeal to
the Judicial Committee. The old rule applied only to
appeals in certain defined cases, and if the cases did not fall
within the exact wording of the rules, the appellant had to
ask special leave for his appeal, and though in point of fact
this could be obtained reasonably easily, and occasionally
the application could be treated as the trial of the case, still
the possibility of waste of time and effort, not to mention
money, was always present. But in more serious matters
nothing was done of importance. An Act of 1908 provided
that a judge of a Colonial court from which an appeal was
being heard, or a judge of a court to which an appeal
would lie from that court, might if available be summoned
as an assessor at the hearing of the appeal. Moreover, it
added the High Court of Australia and the Supreme Court
of Newfoundland to the lists of courts whose judges, if Privy
Councillors, might be members of the Judicial Committee,
and added to the South African Colonies the two new
Colonies of the Transvaal and the Orange River Colony.
The first clause remained a dead letter, and the second
merely had the effect of qualifying Sir Edward Barton as
a Privy Councillor to fill the first vacancy in the number of
five judges which occurred.
The discussion at the Imperial Conference of 191 12 was
in effect little more satisfactory. The Dominion Govern-
ments were not united in desiring anything : Canada had to
think of the provinces, and Sir Wilfrid Laurier wished to
leave things alone : New Zealand was anxious to have
a New Zealand judge to hear cases on appeal from that
1 Parl Pap., Cd. 3523. 2 Ibid., Cd. 5745.
Dominion, as matters affecting native land were of great
importance to the Dominion, and the Dominion was anxious
that no mistakes should be made in dealing with such
questions. The Union of South Africa did not wish any
appeals to come save in the most infrequent cases, and had
no interest in any change of the court. Australia had lost
some of its enthusiasm for any action, and had apparently
an insufficient knowledge of the position, due to the absence
of a lawyer on the delegation and the usual imperfect pre-
paration of the subject which marks all Imperial Conferences.
The only result was that the Conference agreed that a change
should be made in the rule under which, as being in theory
an advisory body, the Judicial Committee delivers but one
judgement without indication of dissent. In the place of
this rule it was unanimously agreed that it was right that
the judges who dissented should be allowed to express their
reason for their dissent, though the Lord Chancellor depre-
cated the proposal as being in his opinion unwise and tending
to diminish the respect felt for the judgements given.
Despite the unanimity of the resolution it was never carried
into effect : on second thoughts the new Government of
Canada disliked the idea, and the other Governments on
second thoughts nearly all concurred in thinking that the
new Government of Canada was quite right. The other
change made was one which was merely based on Imperial
needs : it was desired by the Imperial Government to secure
the addition of two Lords of Appeal, and it was thought that
the putting forward of the proposal under the guise of a
resolution of the Imperial Conference would bring the House
of Commons, which was then in a mood for economy, to
accept the idea gladly. Therefore the proposal was made
that two new judges should be added, to be used both in the
Privy Council and the House of Lords : the Conference,
which had not proposed the idea and which clearly did not
care a straw for it, acquiesced in a matter which they made
it plain did not really concern them, and the Government
presented the proposal to the House of Commons and com-
pelled its acceptance on the strength of the Conference reso-
APPEALS TO THE PRIVY COUNCIL 383
lution, it being clear that hardly any of the members who
discussed the Bill in the Commons or the Lords had looked
at the Conference Debates on the point at issue. At the
same time it was agreed that the anomaly of fixing the num-
ber of representatives of the Dominions on the Committee
under which New Zealand could not be represented should
be. removed, and that the number who might be appointed
should be raised to seven, while to avoid difficulties arising
from the comparative amount of representation of the
Dominions the King in Council should be empowered to
arrange which Privy Councillors who were qualified should
sit so as to secure due representation of the Dominions.
Accordingly, an Imperial Act, 3 and 4 Geo. V, c. 21, provides
for the addition of two Lords of Appeal to the four already
appointed under the Appellate Jurisdiction Act, 1876, the
raising to seven of the number of Privy Councillors who, if
Colonial judges shall be members of the Committee, the sub-
stitution of the Union for the four South African Colonies,
and the grant of power to the King in Council to regulate
the manner in which eligible Privy Councillors shall in future
be given places. The only result of the Act as far as the
Dominions were concerned was the appointment of Sir
Joshua Williams to represent the Dominion of New Zealand.
A new departure was, however, made in his case : not only
did the Government take the appointment seriously, but
they actually sent the judge home to sit on cases, and on
his death decided to replace him by Sir R. Stout.
The opportunity had been afforded by the passing of the
Act to take a real step towards the creation of a genuine
Imperial Court, a step too of a simple kind, which would not
have fettered the discretion of the Government if it had
proved that the step was not a wise one. It would have been
an easy and a gracious act to give one of the new appoint-
ments to the most distinguished of Dominion judges, Sir
Samuel Griffith, whose long career as statesman and a judge
had won him the respect of the whole of the Commonwealth,
and recognition even in the United Kingdom. By his
appointment to act both in the House of Lords and in the
384 IMPERIAL UNITY AND THE DOMINIONS
Privy Council, which would have meant the giving him an
adequate salary from Imperial funds in the first instance,
though doubtless that point could have been arranged with
the Commonwealth if it were preferred that part of his pay
should be derived from the Commonwealth, the beginning
of a true Imperial Court would have been provided, and in
his case the doubtless sometimes just remark that Colonial
judges need not be, and often are not, of the same calibre as
British judges of the highest orders of rank, could not be
said to be applicable. Unfortunately, the indifference which
characterizes statesmen of both parties to questions of Im-
perial sentiment, and the unwillingness of the Commonwealth
to press forward a claim that they had constitutionally l no
right to make, prevented advantage being taken of the
opportunity.
The responsibility for the failure to take this step must
rest with the Liberal Administration, which is the more
remarkable in that the Lord Chancellor at the time, Lord
Haldane, had for years been noteworthy for his advocacy
of an Imperial Court, and it might have been expected
that in accordance with that opinion he would have eagerly
welcomed the opportunity afforded to him to carry out the
policy of his pre-ministerial days. Curiously enough, after
the chance was over, presiding at a series of Rhodes's lectures
delivered in University College, London, he drew attention,
in connexion with the question of the reform of the House of
Lords, to which the Government of which he was a member
was pledged, to the fact that the reform when carried out
would make a new Supreme Court of Appeal for the United
Kingdom necessary. On his visit to Canada he had been
struck with the feeling among those most competent to give
an authoritative opinion, that if any change took place with
regard to the Final Court of Appeal they did not wish to have
a court outside the Dominions. The opinion of Canada set
value on an appeal to the King in Council : there was no
desire to alter it, and if any change in judicial arrangements
1 Perhaps, too, the personal friction between the Government and the
Chief Justice had its share in this result.
APPEALS TO THE PRIVY COUNCIL 385
was necessary, it was hoped that the foundation and principle
of that appeal and the form of the court would not be
varied. The same view would also probably be taken by
all the self-governing Dominions, and it meant that they
regarded the King in his Privy Council as something not
outside themselves. He suggested that the true line of
future development would be that all appeals, whether from
the Oversea Dominions or from the United Kingdom itself,
should lie to the King in Council, as was proposed in the
case of Irish appeals under the Government of Ireland Bill.
The Judicial Committee had already been strengthened by
adding two more judges : it might be with increased respon-
sibilities that an Act could be passed enabling it to sit in
more divisions than one, and enlarging its membership. As
the King was not a local but an Imperial institution, as the
King was present in each of his Dominions and represented
by his ministers, and as the Imperial Privy Council was an
Imperial body existing for, and drawing members from, all
parts of the Dominions, and containing on its Judicial Com-
mittee chief justices and judges from all points of the Empire,
they had at once a court that did not offend against the
canons which the self-governing Dominions wished to set
up, namely that their Supreme Court of Appeal should not
be outside themselves. If the Judicial Committee could sit
in more than one division, a solution would be found of
difficulties which had taxed more than one statesman.
Supposing they had a boundary case in Canada, as had been
the case some time ago, it would then be easy to send mem-
bers of the Judicial Committee from London to sit in Canada
and determine the question. They might, for example,
invoke the assistance of the Chief Justice of Australia, who
had been sitting in the Judicial Committee hearing appeals
from various parts of the Empire, and indeed the Chief
Justice of South Africa had been sitting to hear Scottish
appeals in the House of Lords. The instrument available
in their hands should be developed by transferring all appeals
whatever to the King in Council, and by dividing the Judicial
Committee into divisions which would sit in the several parts
1874 B b
386 IMPERIAL UNITY AND THE DOMINIONS
of the Empire from time to time, thus helping largely
towards the solution of the question of Imperial unification.
This solution would be in precise accordance with the existing
principles of the constitution of the Empire.
The proposal thus adumbrated has not yet received any
endorsement or, on the other hand, dissent from the respon-
sible Governments of the Empire. It has been less discussed
than its importance merits. There are obvious advantages
in a procedure by which appeals could be tried, say in
Canada or Australia, without the expense of the present
procedure of bringing the counsel employed to London, but
it is right to note that the present system owes some of its
popularity with counsel in the various parts of the Empire
precisely to the fact that it gives them opportunities for
visiting England, and, while this consideration may be dis-
missed as not very material, this would be to ignore the
importance of contact between the people of the Dominions
and those of the mother country, especially in the case of the
educated classes of the Dominions, who lose much by being
isolated from the main current of the affairs of the world.
On the other hand must be set the fact that the visit of a
distinguished body of judges to a Dominion would probably
be an event of much intellectual profit to the Dominion,
and that it would inevitably be of advantage for Imperial
unification. But it must be quite clearly realized that the
scheme must be one in which Dominion judges play their
due part in looking after English, Scottish, and Irish cases.
If the Parliament of Ireland should legislate in such a way
as to call into activity the powers of the Privy Council in
interpreting the range of its authority, there must be no
hesitation to employ colonial judges as part of the court to
hear the case : there must be no attempt to delude the public
with words which seem to mean that the House of Lords and
the Judicial Committee are parts of one Imperial Court of
Appeal, whereas in point of fact they are in no sense of the
word such parts, since, while the judges of the one may sit in
the other, the judges of the other cannot sit in the House of
Lords, unless on the rare occasion when one like Lord de
APPEALS TO THE PRIVY COUNCIL 387
Villiers happens to be a peer and a persona grata. Of
course with the project of the disappearance of the House of
Lords as a judicial tribunal would disappear any ground for
a distinction between the different aspects of the Judicial
Committee, and the Dominions could have their proper
place.
With the giving of such a place it might be possible to
expect the Dominions to pay their judges. It would pro-
bably be enough to give the Dominions each the right to
appoint one, and the two greatest of them the right to appoint
two, making seven as at present, while, if the Newfoundland
choice were to become ineffective at any time by the inclusion
of Newfoundland in the Dominion, then Canada could have
three, the numbers of course being varied as occasion might
require from time to time. The cost of paying these judges,
once they were real workers, would naturally fall on the
Dominions, with the exception of the case of Newfoundland,
in which the salary might be defrayed by the Imperial
Government, but that is a matter of wholly infinitesimal
importance. On the other hand, if all the appeals of the
United Kingdom were to go to the court, it would be neces-
sary to reconsider the question of the final appellate courts
in the Dominions, with the aim of diminishing, if possible, their
numbers by removing the existing highest Courts of Appeal.
In the case of Canada and the Commonwealth, already many
of the provincial and the State appeals never go near the
Supreme Court of Canada and the High Court of Australia :
it might be a matter for consideration how far these courts
could not be relieved of their merely appellate jurisdiction,
and confined instead to the work of federal jurisdiction
proper. Similarly the appellate side of the Supreme Courts
of New Zealand and the Union might be dispensed with if
there were available for a definite period in each year a court
of the King in Council sitting in the Union of South Africa
or the Dominion. The objection that some delay might
result will not be regarded as very serious, when it is remem-
bered that the power to deal with urgent matters can easily
be exercised by some court below, and that appeals which go
Bb2
388 IMPERIAL UNITY AND THE DOMINIONS
to the highest tribunal are always lengthy. There would on
the other side have to be set the fact that there would be
no possibility of further appeal, and that the cost of appeals
would be greatly lessened. But the ingrained conservatism
of lawyers renders such a change very far from probable.
Moreover, such a procedure would have the advantage of
creating a body which might be set to deal with those dis-
putes between the Imperial Government and a Dominion
Government and Dominion Governments inter se, which
must arise as long as there are human beings in existence
and conflicting interests to consider. There would be no
need to treat such a body as suitable for dealing with purely
political questions which must be reserved for some other
body, but they could well be entrusted with the settlement
of other forms of legal dispute, such as form the subject-
matter of the ordinary treaty of arbitration. To such a
tribunal could well have been referred the question of the
position of the deportees from South Africa in the beginning
of 1914, had the question not been amicably arranged before
the necessity arose of pressing the matter to any kind of
decision.
A body of the nature contemplated would of course be
well able to undertake all the miscellaneous duties of the
Privy Council, special references on such questions as the
Canada-Labrador boundary, the removal of colonial judges
in the case of the Crown Colonies, appeals in prize matters,
in ecclesiastical law, and a number of minor powers under
such Acts as the Patent Acts, the Endowed Schools Acts,
and so forth.
By Act 5 and 6 Geo. V, c. 92, provision has been made
to enable the Judicial Committee to sit in more than one
divi si on, primarily to facilitate the disposal of prize appeals,
but the step is of possible future importance.
D. THE AMENDMENT OF THE
CONSTITUTION
CHAPTER XVII
DOMINION PARLIAMENTS AND THE
CONSTITUTIONS
THE paramount position of the Imperial Parliament results
in a fundamental distinction between the Imperial Constitu-
tion and that of any self-governing Dominion. The Im-
perial Parliament cannot bind itself : it can fetter itself as
much as it pleases, but it can cut its fetters asunder at
pleasure. It may provide that no Act shall be passed to alter
an Act which it has passed save by a two-thirds majority of
both Houses, but the next Parliament may by simple majority
repeal the offending Act, and it is in vain that the effort to
bind itself had been made. But in the case of a Dominion
the position is not so simple. Any rule whatever which has
been laid down by any legislative authority with regard to
the mode of modifying the constitution is a fetter on the
freedom of the Dominion Parliament which it cannot break
save in the way appointed by the Act imposing the fetter.
If a Dominion Parliament enact to-morrow that any Act
which it passes must be passed by a two-thirds majority to
take effect as an alteration of the constitution, then this
condition becomes one which, so long as the Act in question
stands, cannot be undone by the Parliament save in the
prescribed manner, that is to say, if the Act has been careful
to make it clear that this provision itself is to be protected
in this way. In Queensland indeed, in 1908, it was found
possible to evade a difficulty that no alteration of the con-
stitution of the legislative Council could be made except by
a two- thirds majority in the Council by repealing the proviso
in the Constitution Act of 1867, which made this necessary,
as the proviso itself was not covered by the requirement,
390 IMPERIAL UNITY AND THE DOMINIONS
but the really effective method of requiring that the majority
should apply also to any alteration of the law affecting the
principle would secure the effectiveness of the rule. The
limit thus put on the powers of Dominion Parliaments is at
first sight rather curious, but it follows inevitably from the
express provision in the Colonial Laws Validity Act, 1865,1
that the power of constitutional alteration there accorded
to every representative legislature shall be exercised in such
manner and form as may from time "to time be required by
any Act of Parliament, Letters Patent, Order in Council, or
Colonial Law, for the time being in force in the said Colony.
The actual limitations which apply to the Dominions and
States are extremely various. At the one end of the scale
stands Canada, and at the other the Commonwealth of
Australia; the other Dominions occupy an intermediate
position. The constitution of Canada was the result of the
agreement of four colonies, and the fact that the federal pact
was in effect a treaty has never for a moment been forgotten
by any of the parties to that pact, and was indeed explicitly
recognized in 1907 by the Dominion Government, and by the
Imperial Government, when the British North America Act
was amended as regards the payments made to the pro-
vinces.2 The amendment was only carried out when it was
ascertained that all the provinces were in full agreement
that it should be made, and that the only difficulty was that
British Columbia was anxious to get more than it was given,
but preferred to have something rather than nothing. The
occasion is of interest for another cause : the Parliament of
the Dominion, naturally enough from its own point of view,
but from the point of view of the Imperial Parliament in an
unconstitutional manner, wished the Act to declare that the
settlement of payments by the Dominion to the provinces
contained in the Act was to be final and unalterable. Such
a declaration could not have been placed in an Act without
an absurdity, since the Imperial Parliament cannot bind
and ought not to purport to bind a successor, and the
difficulty of meeting the wishes of the Dominion and of
1 28 and 29 Viet. c. 63. * 7 Edw. VII, c. 11.
DOMINION PARLIAMENTS AND CONSTITUTIONS 391
avoiding an unconstitutionally, while at the same time
meeting the objection of British Columbia to any action by
the Imperial Government, which could be interpreted as an
indication that that Government was not prepared to allow
its chance of obtaining better terms any weight, was relieved
by reciting in the Act the resolution of the Canadian House
of Commons, in which the agreement of the provinces was
expressed and in which the Dominion view of the final and
unalterable character of the settlement was set out. In
point of fact the new Dominion Government recognized that
the province had a grievance, and set up an arbitral tribunal
to decide the question what additional sum ought in fairness
to be allowed to the province.
Hence it follows that in all fundamentals the constitution
of Canada cannot be changed by the Dominion Parliament.
In many matters, of course, the constitution can be altered :
but these are minor matters, not matters of the first order
of importance. Even the mode of increasing the number of
members of Parliament is determined on a population basis,
a fact explicable of course by the federal principle. The
most serious thing is, of course, the position of the two
Houses : they stand in such a relation that the certainty of
friction whenever there is a change of Government is pro-
duced, and such friction has always been produced. The
system of life nomination is a thoroughly bad one in any
country where the nominations are made solely on political
grounds, and, while it was recorded that Sir John Macdonald
only once gave a Senatorship to a political opponent, it was
denied of Sir Wilfrid Laurier that he ever was guilty of that
indiscretion. The Senate accordingly in the long regime of
the Conservatives from 1878 to 1896 became a mere Conser-
vative stronghold, and it mortally offended Sir Wilfrid
Laurier by refusing to accept his proposed railway to the
Yukon, a fact to which he was wont to trace the loss of the
Alaska boundary arbitration, but at any rate, after the
Liberal regime from 1896 to 1911 the Senate proved itself
at least as obstructive to the new Government as its prede-
cessor had been to the Liberals. The position was obviously
392 IMPERIAL UNITY AND THE DOMINIONS
difficult : the only power of overriding the views of the
Senate was that provided by s. 26 of the British North
America Act, 1867, which merely allowed the addition, by the
authority of the Crown only, of three or six Senators, and as
the Imperial Government laid down in December 1873, when
the use of this power was applied for by Mr. Mackenzie, when
he came into office on the defeat of the first Mmistry of Sir
John Macdonald in that year, the power was only intended
to be used for the settlement of some serious deadlock, when
the numbers on each side were equal. The addition of six
members in the early years of the Borden Ministry would
have been quite useless save to add to the debating power
of the Government. In 1912 the Senate, under the direction
of Sir R. Cartwright, who had, even under the Liberal
Government, been anxious to make it a more active body,
threw out three Bills : they amended a Bill to set up a tariff
commission in such a way that the Government had to drop
it, they insisted that subsidies for road-making in the pro-
vinces should be on a proportional basis, and they would
not give a subsidy to the Temiskaming-Ontario railway on
the ground that the railway had been built and was working
at a profit, and needed no subsidy. The more obvious
reason for the refusal was that Ontario was the centre of
the Conservative authority and therefore unpopular with the
Senate. A further attempt to interfere with a Bill granting
a subsidy to the British Columbia section of the Canadian
Northern Railway was a failure through the error of the
member in charge of the Opposition in thinking that the Bill
could be amended, which, as the matter was a money Bill,
the Speaker of the Senate ruled was impossible. A subsidy
of 100,000 dollars a year to Prince Edward Island was
opposed, but there was a split in the Liberal camp, and the
Bill was passed by 15 to 12 votes.
In 1913 l matters were not better between the two Houses.
The most important action, of course, was that of the
Senate in rejecting by 51 votes to 27 the Naval Aid Bill,
providing for the grant of 35,000,000 dollars for the construc-
1 Parl. Pap., Cd. 1501, p.51; Canadian Annual .Review, 19 13, pp. 44 1,442.
DOMINION PARLIAMENTS AND CONSTITUTIONS 393
tion of ships for the British Navy, to which reference has
been made above. But the Senate also declined to approve
proposals made for the grant of assistance in road-making
to the provinces, unless the strict system of proportional
payments per head of population was adhered to, and unless
the Government dropped the clause in the Bill authorizing
the expenditure of the proposed subsidy moneys by the
Minister of Railways and Canals in a manner agreed upon
with the Provincial Legislatures and Governments. They
further ruled out as inadmissible proposals which were made
by the Government to authorize the Minister of Railways,
with the consent of the Governor in Council, to construct
lines of railway not exceeding 200 miles in length, and to
purchase lines not exceeding twenty-five miles in length,
unless the contract of purchase or other document was laid
before the Parliament for approval, an arrangement which
the Government contended would deprive the Bill of all
possible value to them. Nevertheless, in 1914 the Govern-
ment managed to carry out most of its proposals, and the
decision to arrange a satisfactory settlement of the question
of redistribution with the co-operation of the Opposition
was widely approved. Under the redistribution as settled
the numbers of the House of Commons were re-arranged
as follows : — Ontario, 82 ; Quebec, 65 ; Nova Scotia, 16 ;
New Brunswick, 11 ; Manitoba, 15 ; British Columbia, 13 ;
Prince Edward Island, 3; Alberta, 12; Saskatchewan, 16;
and the Yukon, 1. The marked changes were of course
in the western provinces, where the census had shown the
great growth of population : Ontario lost four members, the
unit being adjusted by the sixty-five allotted to Quebec, and
being based strictly on the number of voters ; Nova Scotia
and New Brunswick two apiece, Prince Edward Island one,
while Alberta and Manitoba won five each, and the other two
provinces six each . The growth in the population of the west
rendered it necessary and desirable to increase the number
of their representatives in the Senate, but there arose a
serious amount of friction over the question whether the
increases proposed to be made in the number of the Senate
394 IMPERIAL UNITY AND THE DOMINIONS
by assigning six Senators each to the provinces of Alberta,
Saskatchewan, British Columbia, and Manitoba, should be
postponed, in effect, until after the coming into operation of
the new representation of the Lower House at the general
election . The Government ob j ected strongly to this proposal ,
on the broad ground that the question of increasing the
Senate had nothing whatever to do with the question of the
Lower House, and that it was based on the simple considera-
tion of the numbers of the population, which had increased
since the last census in such a way as to leave the proportions
anomalous, seeing that the great provinces of Saskatchewan
and Alberta had, like Manitoba, but four members apiece,
and British Columbia but three, which was quite out of pro-
portion with the populations of the provinces, as contrasted
with the provinces of the east. The Opposition, however,
remained firm, alleging, with of course much truth, that the
aim of the Government clearly was to provide themselves
as soon as possible with a majority in the Senate, which the
increase of the numbers of members, plus the rapid process of
death in an assembly where most of the members are not
young at appointment, would soon bring about. Eventually
the Government decided to give way on this point, and the
necessary Imperial legislation was procured for effecting the
additions.1
The necessity of invoking the aid of the Imperial Parliament
induced the Canadian Government to clear up obscurities
in its position in respect of the Senate. The British North
America Act, 1867, provided for a Senate of seventy-two
members, representing in equal numbers the three divisions
of Canada, Ontario, Quebec, and the maritime provinces of
Nova Scotia and New Brunswick. It was also provided that,
if Prince Edward Island should come into the Union, it
should be included in the third division, the two provinces
losing two each of their Senators, which would fall to Prince
Edward Island, and this took place in 1873. If Newfound-
land were to be added, then it would have four Senators of its
own, and not be included in any one of the three divisions.
i Parl Pap., Cd. 7897 ; 5 and 6 Geo. V, c. 45.
DOMINION PARLIAMENTS AND CONSTITUTIONS 395
The importance of these divisions lay in the fact that if the
Crown were to approve the addition of three or six Senators,
in order to decide some deadlock, one or two, as the case
might be, were to be taken from one of the three divisions
of the Dominion. The anomaly of the position of New-
foundland in this case would have been negligible, but the
position became more difficult when the grant of powers to
the Dominion in 1871 l and in 1886 2 to set up new provinces
and to give them representation in Parliament, and to assign
representation in Parliament to parts of Canada not included
in any province, enabled Canada to create new Senators.
In virtue of the power thus given by the Act of 1871, Canada
set up the province of Manitoba in 1870,3 with a maximum
of four Senators, and those of Alberta and Saskatchewan in
1905,4 with a maximum of six Senators, the number to be
subject to increase to that figure after the decennial census
of 191 1 . The number in the case of Manitoba was also made
a maximum of six when new territory was added by the
Dominion Act of 1912.5 It was therefore possible for the
Parliament of Canada to increase to six members each the
representation of these provinces in the Dominion Parlia-
ment, without recourse to the Imperial Parliament. But,
on the other hand, the terms of union of British Columbia
allowed only for the appointment of three Senators, and, as
these terms could not be altered by Canada, the aid of the
Imperial Parliament had to be invoked if the number were
to be raised to six. Further, the same aid was needed to
divide the Senators into a fourth group, consisting of Mani-
toba, British Columbia, Saskatchewan, and Alberta, each
with six Senators. The creation of this group necessitated
the alteration of the number of Senators who could be
summoned by direction of the Crown to four or eight, one or
two from each of the four divisions of the Dominion. At the
same time the number of Senators which would be allotted
to Newfoundland if she entered the Union was increased to
1 34 and 35 Viet. c. 28. 2 49 and 50 Viet. c. 35.
3 30 Viet. c. 3. * 4 and 5 Edw. VII, cc. 3 and 42.
6 c. 32 ; Parl. Pap., Cd. 6863, p. 18.
396 IMPERIAL UNITY AND THE DOMINIONS
six, and a long cherished wish of Prince Edward Island was
granted, by enacting that no province should be represented in
the House of Commons by fewer members than the number
of her Senators, thus preserving from annihilation the repre-
sentation of the province in that House by four members.
It is not very easy to see how the position of dependence
on the Imperial Parliament in the case of the Dominion is to
be altered. It would be different if there were any sign of
the provinces being willing that the Dominion should be en-
trusted with greater powers in this regard, but the provinces
treat the matter with much emphasis and are not in the
slightest degree likely to consent to any change which would
place their legislative power in any further degree in the
hands of the Dominion. The constitution of the Dominion
must therefore remain in statu quo until the provinces and
the Dominion can agree on some system under which altera-
tions can be made independently of the Imperial authority.
In the case of the Commonwealth, not merely the constitu-
tion of the Commonwealth itself, but also that of the States
in their relation to the Commonwealth, is subject to altera-
tion, for the power to alter the constitution is expressly
conferred by the constitution, and can be exercised by an
absolute majority vote in the two Houses, followed by sub-
mission to the electors in the Commonwealth : any change
must be approved by a majority of the electors and a ma-
jority of States, and, if it affects the position of the provisions
of the constitution relating to any State, or diminishes its
number of Senators or its minimum representation in the
House of Representatives, it must also be approved by the
majority of the electors in that State. If the two Houses
disagree on a proposed amendment, then, after either has
passed it twice with an interval of three months in the same
or subsequent sessions, the Governor-General may submit
the matter to the electors, though in the one case in which the
exercise of the power has been sought it has not been ac-
corded. The power is by no means free from doubt : the con-
stitutions of the States are expressly continued in operation
subject to the constitution, until altered by the State in
DOMINION PARLIAMENTS AND CONSTITUTIONS 397
accordance with its constitution, and this at first seems to
give the States an independent position. But the power of
alteration extends to the whole constitution, and there
seems no reason to doubt that the Commonwealth constitu-
tion might be so amended that the State constitutions
disappeared in their present form : it has already been
proposed in the Commonwealth Parliament to legislate so as
to create a unitary in place of a true federal Government ;
the proposal has the strong support of the Bulletin, and must
therefore be regarded as one of the ideals which the Common-
wealth Labour Party will endeavour to carry out. In the
meantime the great question is that of the giving to the
Commonwealth of wider powers on all subjects of trade and
commerce, and, though the concession of these powers will
certainly not leave the State Parliaments bereft of all
authority, it will deprive them of the important part of the
work which they do, and diminish effectively their value as
legislative bodies.
The States themselves are under few restrictions as to
constitutional changes. The Act of 1907, which was passed
to sweep away an intolerable muddle in the matter of the
reservation of Bills, which threw no credit on the drafters of
the constitutions of the Australian colonies, provides merely
for reservation of Bills affecting the constitution of the
Legislature, and even this phrase is made less serious than it
might seem, on the ground that it is defined not to cover cases
of fixing the qualifications of the electors or of the members
of elective Houses, the numbers of elective members, the
districts for which they are to be returned, and the numbers
for each district. There are also a few minor restrictions1
under colonial Acts, but in the main the States can freely
enough amend their own constitutions. The matter, however,
does not end there : the constitutions are in some ways not
exactly ideal or convenient to work, and the mere statement
that a constitution can in law be amended has no value, if
in fact the relations of the two Houses are now fixed in such
a way that change is almost impossible. It is not desirable
1 Parl. Pap., H.C. 131, 1893; Responsible Government, i. 432-6.
398 IMPERIAL UNITY AND THE DOMINIONS
that any country should have a constitution which cannot be
altered constitutionally, and in four cases in the States there
is always present the possibility of a deadlock.
In the case of Queensland and New South Wales the
difficulty which arises is one which can always be solved,
and accordingly Imperial intervention is not required. The
right of rejecting and altering legislation, enjoyed by the
Upper House in New South Wales, is subject to the fact
that the House can be swamped, and would no doubt be
swamped if it were found that it persistently refused to
accept Bills sent up by a Ministry possessing the control of
the electorate. In the unquiet period which intervened
between 191 land 191 3, the Upper House was never confronted
by a really strong Government : the Labour Ministry held
office by the skin of its teeth, and was often apparently on
the point of collapse : a minister of importance, Mr. Beeby,
resigned on December 9, 191 2,1 and another of the scanty
majority was absent on a mission in the United States. The
treatment of Bills by the Upper House was not unreason-
able : they accepted an Income Tax Bill which was not a
model of legislation : they rejected very properly the ridicu-
lous proposal that death sentences should be relegated for
consideration to a Council of Judges, as a mere effort to
evade the moral responsibility which must rest with an
executive Government. They also rejected a proposal that
all persons in receipt of poor relief should be at once en-
franchised. A Gas Bill, which as introduced might perhaps
be described as predatory, they altered into a fair and
reasonable shape, following British precedents of regulating
the cost of gas to the consumer on the one hand and the rate
of profit on the other. In 1913,2 however, it had to come
more directly into conflict with the Lower House : that body
was the scene of some proposed legislation which was perhaps
not very seriously intended as a contribution to anything
but the programme of the party for the general election.
At any rate, the Council threw out a Fair Rents Bill to fix
rents of certain houses in Sydney on the ground that it would
1 Parl. Pap., Cd. 6863, p. 109. * Part. Pap., Cd. 7507, p. 61.
DOMINION PARLIAMENTS AND CONSTITUTIONS 399
do much more harm than good, and that it was economically
quite unsound ; a Bill to allow railway servants to appeal
from decisions of the railway commissioner, which was a
certain means of ruining discipline ; a Bill to provide all
public servants with superannuation allowances, a measure
the finance of which was clearly sketchy ; and a Bill to provide
for an eight hours' day in the chief industries. But the
Council had the excuse that the Government had a poor hold
of the Assembly : its Vaccination Bill, introduced because of
the fear of smallpox, was rejected on a non-party vote, when
it was found that it would be otherwise defeated on a party
vote ; and a Bill for an underground railway in Sydney shared
the same fate. The Government, moreover, did not venture
to press for the ratification of the proposed agreement for
the construction of railway lines by an English firm of con-
tractors, on the basis of the State paying the cost, and the
contractors having a commission, but advancing through
an ingenious scheme the necessary funds. The result of the
election in that year, however, was decisive in favour of
the Labour Party : they won forty -nine seats to thirty -nine
of the Opposition, with two independents, the victory being
in the main secured on the second ballots, which went nearly
all against the Liberals : the Independent Party, which had
promised well, came to disastrous defeat. The Upper House
at once recognized the changed position by accepting several
items of legislation in a modified form, which the Govern-
ment presented. It was expressly explained in the Upper
House that, if the people should see fit to approve the pro-
jects of the Government, the Upper House held no brief to
alter these proposals in matters of first-class importance.
The Upper House, however, retains quite a valuable power
over the construction of public works under the Public Works
Act.1 That Act lays down the principle that no public work
which is to cost over £20,000 shall be commenced without
the adoption of the procedure of referring it on the motion
1 The same principle has been followed in the Commonwealth by Act
No. 20 of 1913 ; Part. Pap., Cd. 7507, pp. 34, 35. The limit there is
£25,000.
400 IMPERIAL UNITY AND THE DOMINIONS
of a minister in the Assembly to a Committee, consisting
of three members of the Upper and four of the Lower House.
On the report of this Committee the Assembly decides
whether the matter should be proceeded with, and, if it passes
a resolve to that effect, a statutory duty is imposed upon the
minister to bring in a separate Bill to carry out the proposed
work, and of course such a Bill may be rejected by the
Council without the inconvenience of rejecting a general
Appropriation Act. In 1911 an attempt to insert an appro-
priation in an ordinary Bill appropriating moneys was
defeated by the distinct ruling of the Speaker that the Act
of 1900 could not in this way be overridden.
In the case of Queensland the nominee Upper House is
now placed in a definite relation to the Lower House by the
provision for the reference to the people at a referendum of
a measure which on being twice sent up by the Lower House
the Legislative Council will not pass. This provision in the
law has definitely, it may be taken, destroyed the right to
swamp the House in normal circumstances, though it might
be that in a case of great urgency, when there could be
no referendum from considerations of time, this course of
harmonizing the views of the two Houses might be used. In
the years since 1908 up to 1914 there was no serious possi-
bility of disagreement between the two Houses, as the
Government of Mr. Kidston, after carrying the legislation of
1908, was much altered in composition and views by the
making of an alliance with the Opposition and the breaking
up of the agreement with Labour, by which the change in
the constitution had been effected. Even so, however, in
1911 the Upper House dealt somewhat severely with a
Licensing Bill, by insisting that the majority to authorize
the closing of licensed houses under the local option system
should be three-fifths, that Sunday closing should be limited,
and that increased compensation should be paid to licence
holders who suffered from the effect of the Act. The
Government on some of the points could not give way, and
it took steps to put the referendum into operation,1 but in
i Par/. Pap., Cd. 6091, p. 71.
DOMINION PARLIAMENTS AND CONSTITUTIONS 401
the session of 1912 the matter was disposed of by mutual
accommodation. The position, however, is seriously altered
by the defeat of the Government of Mr. Denham, who
succeeded Mr. Kidston in the leadership of the joint party
on the retirement of the latter from political life in conse-
quence of domestic bereavement, and who definitely adopted
a more conservative line of action than his predecessor, at
the election in 1915. The Government had won much
distinction by its firm handling of the great strike atJBrisbane
at the beginning of 1912, but the victory then achieved was
frittered away by means of a somewhat amorphous policy,
and the Labour victory of the Commonwealth helped to give
Labour in the State a chance of reasserting its position,
and, although there exists a simple means of deciding any
ordinary dispute between the Houses, the Lower House has
declared in favour of abolishing the Council.
In the other four States, with their elective Upper Houses,
Victoria has twice in the past been the scene of grave dis-
putes between the two Houses, but it is doubtful whether
the risk of friction is so great now as it then was. The Upper
House is not very extreme in its views : the men composing
it are in the main reasonable in political outlook, and treat
the questions submitted to them in a moderate and, indeed,
committee spirit. In 191 11 there was an example of the
usual relations between the two Houses : the Upper House
so altered a Wages Boards Bill as to render it unacceptable
to the Lower House, and a Bill for cold storage they altered
by reducing from £84,000 to £9,000 the appropriation
which it was proposed to make. Under the constitutional
powers of the Upper House this reduction could only be put
as a suggestion, but the lack of distinction between a sug-
gestion and an alteration was seen when the Upper House
persisted in its suggestion, and thus compelled the Lower
House to lay aside the Bill, since obviously it had ceased to
be the same measure at all ; indeed, the Upper House would
not even agree to allow the £9,000 it was willing to spend to
be spent in the way proposed by the Lower House. The
1 Parl. Pap., Cd. 6091, p. 70.
1874 c c
402 IMPERIAL UNITY AND THE DOMINIONS
Government was annoyed, and, as a general election followed
shortly, they declared that it was part of their policy to
secure the passing of legislation to facilitate a decision in the
case of disagreements between the two Houses : it is doubtful
whether the proposal was meant very seriously, as the Upper
House was not in the slightest degree likely to pass any such
Bill, but in point of fact, when the Government succeeded in
being returned to power at the general election, the Upper
House accepted their victory as a sign that they should
agree to the Cold Storage Bill, which accordingly received
their concurrence without substantial amendment, and
became law. But the future is not without elements of
doubt : Victoria has never had a real Labour Government :
one Labour Ministry only has ever held office, and that
nominally for a few days as a mere incident in a competition
in December 1913, between two opposing factions in the
Government. If the Lower House should become in time
Labour, then the Upper House which, like all the Upper
Houses of Australia that are elective, is based on a property
qualification in the electors, which is higher than that for
the Lower House where adult suffrage prevails, has a long
record of successful resistance of the Lower House behind it,
and trouble might easily result. For this there is no obvious
means of solution unless by the action of the people and
Parliament of the Commonwealth, in the form of a change
of the Commonwealth Constitution, which would be a very
difficult and hardly proper mode of effecting a settlement,
or the intervention of the Imperial Parliament, which, as it
alone has the power in the case of deadlocks to break the
deadlock, would have to intervene if a really good case were
made out. Even in 1914 the Upper House delayed for
a whole month the passing of a very important Bill for the
control of prices, a fact which was believed to have told
against the Liberals at the federal election of that year.1
In the neighbouring State of South Australia, in the
course of 191 1,2 very serious difficulties arose between the
two Houses, for which the intervention of the Imperial
1 Bound TabU, 1915, p. 681. * Parl Pap., Ccl. 6091, pp. 70, 71.
DOMINION PARLIAMENTS AND CONSTITUTIONS 403
Government seemed to the Labour Government to be the
only remedy. The Labour Government, which took office
in 1910, introduced a measure to bring about the solution of
differences between the two Houses on the basis that if the
Lower House passed a measure three times, a general election
intervening between the second and third times of passing,
each passing being in a separate session, then, if the Council
rejected the Bill, the Bill might be presented to the Governor
for the royal assent. The Bill was passed through the Lower
House by the necessary majorities of 21 to 15 and 21 to
10, on its second and third readings, as required by the
constitution, under which absolute majorities are needed for
the passing of legislation altering the constitution, but the
Upper House rejected it on the second reading. But the
Upper House went further : at the end of the year it threw
out the Appropriation Bill on the ground that it contained
items for the establishment of Government brick and timber
works, which were to supply these commodities for the use
of the public at large and not merely for governmental
purposes. The result of this action on the part of the Upper
House was to determine the Government of the State to make
an appeal to the Imperial Government. What they asked
in their appeal of November 2, 1911, was that the Imperial
Government should provide the safety-valve that was
necessary to settle a deadlock which there was no constitu-
tional means of overcoming, by intimating that the con-
stitution would be amended by Imperial Act, if the Council
did not accept in principle such a measure as had been sub-
mitted and had been rejected. They pointed out that the
intention of the constitution had been always to be a demo-
cratic one, that the original proposal in 1853 to have a
nominee Upper House was rejected precisely on the ground
that it would be undemocratic, and instead a system of
elective Houses with different constituencies had been
adopted : that the result of this differentiation, aided by
female suffrage, had been to strengthen the position of pro-
perty owners : that in the United Kingdom the Crown
afforded a means to reconcile the will of the people and the
CC2
404 IMPERIAL UNITY AND THE DOMINIONS
action of Parliament by insisting on submission to the
popular will by the Upper House, but that in South Australia
no such power existed. A dissolution would merely mean
the return of the Council by its electors to retain its old
position. The Government also pointed out that of the
electors only 33 per cent, of those on the Assembly rolls were
electors for the Council, while even of this number only 13
were able to return half the members of the Council. In the
previous year the Upper House had already rejected a land
tax measure and a Bill for adult suffrage for the Upper House.
Their position, however, was weakened in 1911 by the fact
that they had found themselves unable, through the defec-
tion of one of their supporters, to press their franchise mea-
sures upon the House. Moreover, the Legislative Council
argued in the matter of the rejection of the Appropriation
Bill that the compact of 1857 between the two Houses on
the question of Money Bills was expressly made on the
understanding that the Appropriation Bill was not to con-
tain provisions for new and unusual heads of expenditure,
but that such heads were to be made the subject of separate
proposals. There could be no doubt that in this point the
Council had a complete case : the compact of 1857 was
passed precisely because the constitution contained no
provision regarding the powers of the two Houses as to
Money Bills, and therefore some arrangement had to be made
if any work was to be done. The Government in return
argued that the agreement of 1857 was unconstitutional ;
that the agreement between the two Houses was a departure
from the spirit of the constitution, which was meant to
follow that of the United Kingdom ; and that therefore the
power of the Upper House to deal with Money Bills should
be held to be non-existent. The argument was clearly bad :
apart from the fact that it was idle to argue in 1911 against
an agreement which had prevailed, more or less continuously
observed, since 1857, it is certain that the relations between
a nominee body and an elective body and two elective bodies
could not be regarded as analogous to each other. The real
strength of the argument of the Government, so far as it
DOMINION PARLIAMENTS AND CONSTITUTIONS 405
existed, would have been in the fact that the Upper House
was defying the will of the people, and the small and uncer-
tain majority of the Government in the Lower House made
that position impossible to uphold. The refusal of the
Imperial Government to intervene, on the ground that inter-
vention was only possible if all constitutional remedies had
been exhausted, and only then on a request of a large ma-
jority, and if essential to enable the work of the State to be
carried on, was clearly and plainly inevitable. The Labour
Government evidently recognized that this was the case :
they at once advised a dissolution of Parliament with a view
to strengthening their hands in the struggle, and the Upper
House readily passed a Supply Bill for £800,000, to let affairs
be carried on. The election of January 1912 was disastrous
to the Government, and Mr. Peake took office with a majority
of 24 votes to 16.
The new Government then secured the passing of the
Appropriation Bill, but deleted the offending items. They
further took occasion to place on record, in a memorandum
of April 24, their disapproval of the action of their prede-
cessors in invoking the intervention of the Imperial Govern-
ment, and they pointed to the defeat of the Government as
an indication that the action taken by them in this matter
had not been approved by the people of the State. They
themselves, however, attempted to regulate by legislation
the relations as to Money Bills of the two Houses, and, after
introducing a Bill confined to this alone in 1912, they in 1913
laid before the House of Assembly an elaborate Constitution
Amendment Bill which not merely dealt with the relations of
the two Houses as to Money Bills, but also the constitution
of Parliament, the franchise for both Houses, and the settle-
ment of deadlocks generally.
The deadlock provisions were based on those in the
Commonwealth constitution : they proposed that if a Bill
were twice rejected by the Upper House, after being passed
twice with an interval of three months in the same or
successive sessions of Parliament, the Governor might
dissolve both Houses, and, if this were done and the Upper
406 IMPERIAL UNITY AND THE DOMINIONS
House persisted in its attitude, then the matter should be
settled by a joint session of the two Houses. It was felt
necessary to follow the model of having a dissolution before
a joint session. Even, however, in this form the Upper
House declined to accept any deadlock provisions, but they
accepted the rest of the Bill with various amendments.
By it the numbers of the Council were raised from eighteen
to twenty, elected for five constituencies, four members in
each, and the number of the Assembly from forty to forty-
six, with eight three-member and eleven two-member con-
stituencies. The franchise for the Upper Chamber was
considerably extended, rather in theory than in reality,
by the alteration of the occupation franchise, so as to
include any inhabitant occupier as owner or tenant of any
dwelling-house, and not merely one of £17 value yearly,
with, however, no* vote for joint occupation. As regards
Money Bills, the Act repealed s. 1 of the Constitution Act,
No. 2 of 1855-6, which provided that all Bills for appro-
priating any part of the revenue of the province or for
imposing or altering or repealing any rate, tax, duty, or
impost, should originate in the House of Assembly, and
substituted the following provisions : — A Money Bill or
money clause in a Bill shall originate only in the House of
Assembly, and the Legislative Council may not amend any
money clause. The Council may, however, return to the
House of Assembly any Bill containing a money clause,
with a suggestion to omit or amend such clause, or to
insert additional money clauses, or may send to the assembly
a Bill containing suggested money clauses which must
then be printed in erased type, and shall not be deemed
to form part of the Bill, requesting by message that the
suggestion be given effect to, and in every case the Assembly
may comply with the suggestion with or without modifica-
tions, but the power of the Council applies to the money
clauses contained in an Appropriation Bill only when such
clauses contain some provisions appropriating revenue or
other public money for some purpose other than a pre-
viously authorized purpose or dealing with some matter
DOMINION PARLIAMENTS AND CONSTITUTIONS 407
other than the appropriation of revenue or other public
money. A Bill for appropriating revenue or other public
money for any previously authorized purpose shall not
contain any provision appropriating revenue or other public
money for any purpose other than a previously authorized
purpose. No infringement or non-observance of any of
these provisions shall be held to affect the validity of any
Act assented to by the Governor, and, except as provided
as regards Money Bills, the Legislative Council shall have
equal power with the House of Assembly in respect of all
Bills. A Money Bill is defined to mean a Bill for appro-
priating revenue or other public money or for dealing with
taxation or for raising or guaranteeing any loan, or for the
repayment of any loan, and a money clause means a clause
of a Bill which appropriates revenue or public money or
deals with taxation or provides for raising or guaranteeing
any loan, or for the repayment of any loan. A previously
authorized purpose means a purpose which has been pre-
viously authorized by Act of Parliament or by resolution
passed by both Houses of Parliament, or a purpose for
which any provision has been made in the votes of the
Committee of Supply whereon an Appropriation Bill pre-
viously passed was founded. No Bill or clause of a Bill
shall be taken to appropriate revenue or public money, or
to deal with taxation by reason only that it contains
provisions for the imposition or appropriation of fines or
other pecuniary penalties, or for the demand or payment
or appropriation of fees for licences, or for services under
the proposed Act. Any revenue, money, taxation, or loans
raised by local authorities are not within the scope of the
Act.1
The Peake Government, however, was defeated in the
election of 1915, and the Labour Government which came
into power brought forward after the election in the first
session of the Parliament in July 1915 proposals to undo
the position of the Houses. The Governor's speech announced
1 Parl. Pap., Cd. 7507, pp. 39-41. There is a Committee on Railways
as in New South Wales on Public Works under Act No. 1089,
408 IMPERIAL UNITY AND THE DOMINIONS
measures for the restoration to the House of Assembly of
control over Money Bills, which they declared had been
taken away from the people by the late Government in the
Act of 1913. The measure was to be accompanied by
a complementary measure for adult suffrage for the Legis-
lative Council, the amendment of the electoral code, and
the adoption of effective voting, with a rearrangement of
the electoral districts, the constituencies having been in
the opinion of the Government gerrymandered by the late
Government in the Act of 1913. The speech also announced
the change of the incidence of taxation by increasing the
tax on unimproved land values, with reduction of income
tax and the charges for conveyance of the produce of the
primary producers. There is, of course, no prospect of the
settlement of all these issues without much friction, and the
possibility of Labour appeal to the Imperial Parliament
must always be present so long as the Upper House is elected
on a property franchise of any kind which differentiates
the electorate quite considerably from the electorate by
adult franchise for the Lower House.
jThe position in Tasmania is closely analogous to that in
the case of South Australia. There, however, the Upper
House is absolutely independent of the Lower in every
respect, and no compact even regulates the relationships
of the two bodies. On the other hand, the position of the
Government in the Lower House is rendered ludicrously
weak by the system of proportional voting l acting on the
small number of members arranged in six-member con-
stituencies. Hence the prospect of any serious conflict is
minimized, since the Lower House realizes that, if it is able
merely to carry a measure by one vote, it can hardly insist
that the Upper House must hold that the wisdom of the
Lower House is superior to its own, and a majority of ten
or twelve against in a House of twenty -four members is very
possibly a proof of better views than a majority of one or
two in a House of thirty members. Hence even in the
1 On this topic see Par/. Pap., Cd. 7507, pp. 67-69, which summarizes
a Tasmanian report.
DOMINION PARLIAMENTS AND CONSTITUTIONS 409
emergency legislation of the war in 1914, the Upper House
rejected certain measures as to control of prices and of
foodstuffs sent up by the Lower House,1 and it normally
exerts as great an influence on legislation as the Lower
House ; it freely rejects and alters Bills every year, and
alters Money Bills or rejects proposals of expenditure as it
thinks fit.
In Western Australia the position is different : the power
of the Lower House is constantly checked by the Upper,
but the Upper is not so strong as in Tasmania, for the
Lower House can show real majorities, at present over-
whelmingly Labour in complexion and determined in
character. The election of October 1911 gave Labour
a majority of twenty in a House of fifty, and it carried
much legislation, the Upper House declaring emphatically
that it had no party character, and would consider all
proposals submitted merely on that basis. It rejected,
however, a proposal to set up a Public Works Committee
on the model of that existing in New South Wales, and it
further declined to accept the proposal of the Government
regarding arbitration. In 19122 there was more friction
between the two Houses. The Upper House rejected Bills
for the setting up of State hotels, as it disapproved of muni-
cipal trading, for amending the land laws by the substitution
of the principle of leasehold in every case for that of free-
hold, for setting up a Public Works Committee, for authoriz-
ing a railway from Norseman to Esperance, and a Land
and Income Tax Bill. The State Hotel Bill was intended
to control the liquor traffic, and it was pointed out by the
Premier that at the local polls held under the existing Act
the great majority of the voters in every licensing district,
with few exceptions, had voted in favour of the holding
of new licences by the State : under the Bill the Govern-
ment would have had power to set up a State hotel in
every licensing district. The majority in the Legislative
Council, in rejecting the Bill, expressed readiness to consider
it if restricted to defined cases, and a further Bill in this
1 Round Table, 1915, p. 678. 2 Parl Pap., Cd. 6863, p. 111.
410 IMPERIAL UNITY AND THE DOMINIONS
sense was accepted by the Council. In the support of the
Land Bill reference was made to the evil result of freehold
in the United Kingdom, where the absolute ownership of
more than half the land was enjoyed by 2,500 persons,
while experience in Victoria with freehold showed that,
despite the large alienation of land from the Crown, the
land cultivation had not increased for many years. It was
the desire to set up a community of tenant farmers, cultivat-
ing land under the State. All acquired rights were to remain
in force, and all contracts carried out. A lease of land in
perpetuity, with a rental at 2 per cent, of the assessed
unimproved value, was to take the place of freehold. In
reply, the Council argued that the principle of leasehold
had been abandoned in 1912 in New Zealand,1 and that
France, Denmark, Norway, Belgium, Switzerland, and
Ireland showed the advantages of freehold. The same year
showed some feeling between the two Houses arising out
of an incident in the action of the Government. In 1911-12
the Parliament had agreed to give a sum of £250,000 as
an advance to the Treasurer to meet expenditure which
from time to time might not be provided for, and the
Government used some of the money for the purpose of
purchasing steamers to provide a Government service to
the northern portion of the State. This interference with
private enterprise annoyed greatly the members of the
Upper House, who had mostly large business or agricul-
tural interests, and who did not wish any interference with
private concerns. When Parliament met in 1912, the
Upper House recorded its disapproval of the expenditure
of the money by the Government, and criticized adversely
a portion of the Governor's speech which seemed to claim
that the Lower House could by mere resolution legitimize
expenditure incurred by the Government. The Government,
however, made it clear that they made no such claim, as
was asserted, for the Lower House. But they insisted that
they could use at their discretion the sums placed at their
disposal by the Act of the preceding session. The Governor's
i Cf. Round Table, 1915, pp. 692, 693.
DOMINION PARLIAMENTS AND CONSTITUTIONS 411
position in the matter was called into question, but it was
vindicated on the ground that he had acted in accordance
with the advice of his law officers and of the Ministry, and
indeed it seems clear that his action was strictly legal, and
that the error of the Upper House was in agreeing to the
grant in the previous session without imposing conditions.
In 191 3 l there was again friction in the two Houses. The
Government proposed an initiative and Referendum Bill,
which would have enabled the people to claim the sub-
mission to the electors of any measure passed by the Houses,
and to demand the legislation of any measure desired by
the electorate. This was rejected by the Upper House on
eighteen votes to six. The Council also rejected the land
and income tax proposals, and Bills for the setting up of
a Public Works Committee, for the amendment of the
Factories Act, and the construction of a railway from
Esperance northwards. The position is in fact somewhat
difficult, for the possibility of effectively coercing the Upper
House does not exist, and its franchise has not yet been
extended to cover all householders, as in South Australia :
even if it were, there would still be no certainty of its being
in harmony with the Lower House at any future date.
In the case of New Zealand the Legislative Council,
originally composed of nominees for life, was modified in
constitution in 1891 by the introduction of the limitation
of the tenure of office by new appointees to seven years.
The appointments made by the Liberal administrations,
which held office for twenty years consecutively, were
political in origin, and therefore after the very beginning
of the Liberal Government, when the refusal of the Governor,
Lord Glasgow, to add members to the number desired by
Mr. Ballance to the Upper House was overridden by the
Secretary of State,2 the Houses had been in general harmony,
the Upper House merely delaying the passing of measures
which it distrusted, though in some cases it did so for
considerable periods. This state of affairs came to an end
by reason of the defeat of the Liberal Government in 1912,
1 Parl. Pap., Cd. 7507, pp. 62, 63. 2 Parl. Pap., H.C. 198, 1893.
412 IMPERIAL UNITY AND THE DOMINIONS
and the position became at once difficult. Even in the
times of the Liberal Government there were many sugges-
tions of alteration of the constitution, and in his last
policy speech the former Prime Minister, Sir J. Ward, had
suggested that the proper way to deal with the matter was
to make the Upper House elective, the members being
chosen by the Provincial Councils, which he also proposed
to set up in order to deal with local affairs and relieve the
Parliament of excessive centralization of business. In the
session of 19121 the new Government brought forward
a proposal to make the Upper House elective, consisting
of forty members, elected by the North and South Islands
in equal numbers by proportional 2 voting on the system
advocated for the Imperial Parliament by Lord Courtney.
The members were to hold office for six years, one-half
retiring every three years : the franchise for both Houses
was to be the same. While according the Bill, which was
as a matter of courtesy introduced in the House affected,
a second reading, and thus affirming the principle of election,
the Upper House resolved by twenty votes to thirteen
that, the principle having been affirmed, it was not desirable
to proceed further with the measure in the session then in
progress, in order that the country might have the chance of
considering the steps to be taken to give effect to this prin-
ciple. The Government then proceeded in the Lower House
by resolution to affirm the principles of their Bill, and asked
the Council to pass a Bill to restrict to three years the
tenure of office of the next appointees to the Council. It
was explained that, as sixteen of the members would retire
in 1914, it was desired to be able to fill their places with
men whose appointments would terminate within the life
of a single Parliament. But the Council would not proceed
with the Bill. In the session of 1913 3 accordingly the
Government again introduced the Bill with alterations.
1 Part. Pap., Cd. 6863, pp. 117, 118.
2 The system of second ballots was repealed for the Lower House by Act
No. 36 of 1913.
* Parl. Pap., Cd. 7507, pp. 69, 70.
DOMINION PARLIAMENTS AND CONSTITUTIONS 413
In place of two great divisions there were to be four, two
in each island : the members to be elected were now to
be eleven for each of the north divisions and nine for each
of the south, thus avoiding the unfairness of the original
proposals. The mode of choice was to be the Tasmanian
system of proportional representation, and the idea of
a periodic retirement of half the members was to cease,
the members holding office for five years from election, and
then until the next dissolution of Parliament. The electors
were to be the same as those of the Lower House. In the
first place, however, as there were still some members who
were entitled to remain members for life, or a portion of
seven years, the elections would be confined to seven members
for each of the North Island divisions, and five for each
of the South, an unfair majority for the North, but unavoid-
able, since for proportional representation to work there
must be an uneven number of members to be returned.
Further, the relations of the two Houses were to be set up
on a new model in place of the mere constitutional under-
standings of the past : the proposal made was a mixture
of the procedure under the Irish Parliament Act and the
Commonwealth Constitution Act. The Council was to have
no power to initiate appropriation or taxation Bills : it
could not amend any Bill imposing taxation or appropriat-
ing money for the ordinary annual services, nor amend any
proposed law so as to increase a charge on the people.
But in the case of any law which it could not amend it
could request an alteration by the other House. A Money
Bill which was to be defined in the manner of the Govern-
ment of Ireland Act, when certified as such by the Speaker,
must be passed by the Upper House within a month after
it had been sent up, or it could be presented to the Governor
for his assent. In the case of disagreement on any other
kind of Bill, if passed twice by the Lower House in sub-
sequent sessions, and rejected by the Upper, the Governor
might convene a sitting of the two Houses, and, if the Bill
were affirmed by a majority vote of the members sitting
together, the Bill should be presented for the royal assent,
414 IMPERIAL UNITY AND THE DOMINIONS
and if not the Governor could dissolve both Houses simul-
taneously.
For its part the Council set up a committee to consider
the matter. The Committee came to the conclusion that the
position of the Council should be in all matters that of the
House of Lords as it stood before the passing of the Par-
liament Act, and that the Council should insist on its right
to deal with Bills exactly to the same extent as the House
of Lords used to do. They accepted as correct the view
that the Upper House should yield to the Lower House,
when it was seen that the views of that House represented
the deliberate opinion of the nation. They also agreed
that the principle of nomination should be abandoned in
favour of election, and they then defeated by five votes
to three the proposal that the Government plan of direct
election by the same electorate as that of the Lower House
should be resorted to. By six votes to two they rejected
the proposal of one member that, as vacancies occurred,
three-quarters of the Council should be elective and one-
quarter nominee, and decided that the constitution of the
Council should be limited to forty members, and that as each
vacancy occurred the place should be filled by election by
the members of the two Houses sitting together and voting
by ballot. They further recommended that the tenure of
office should be seven years, that the proposals of the
Government regarding the powers of the two Houses should
be accepted, and should be modified by the addition of the
provision that, if after a dissolution of both Houses the Bill
was again passed by the Lower House and rejected by the
Upper, it could be presented to the Governor for his assent.
They also made provision for the summoning by nomina-
tion of two Maori members to the Council, and of one
member of the executive Council.
The difference of opinion between the two Houses was
too complete to allow of reconciliation, but the possibility
of any very decisive conflict was diminished by the con-
tingency of the outbreak of the war, and the result was
that the proposals of the Government became law as Act
DOMINION PARLIAMENTS AND CONSTITUTIONS 415
No. 59 of 1914. The ensuing election, followed as it
was by a series of election petitions and negotiations for
a coalition, rendered the country indifferent to the ques-
tion of the reform of the Upper House. But the position
of that body must some day be definitively solved, and the
problem is one of difficulty : it was, it may be added, doubted
whether it was possible for the Parliament without the aid
of the Imperial Parliament to effect the whole of the changes
contained in the measure proposed either by the Govern-
ment or the Committee of the Legislative Council. The
doubt, however, seems to be somewhat mistaken : it is
true that in certain respects the power of the Parliament
of New Zealand to alter the Constitution Act of 1852 was
expressly limited when express authority of alteration was
given by the Imperial Parliament in the Act 20 & 21 Viet.
c. 53, but this was prior to the passing of the Colonial Laws
Validity Act, 1865, and the general power of constitutional
change there given seems sufficient to cover any of the
changes which in either of the Bills was proposed to be
effected.
The Union of South Africa differs essentially from Canada,
and resembles Newfoundland and New Zealand in being
in effect a unitary colony, and the power of constitutional
alteration possessed by the Parliament is therefore of the
most extensive kind. The only restrictions on the altera-
tion of the Constitution are that none of the provisions for
whose operation a definite time is fixed, as in the case of
the appointment of Senators, shall be changed in that
period, and that the provisions of the repeal clause 152
itself, of clauses 33 and 34 providing for the number of
members in the Lower House and their mode of increase,
of clause 35 relating to the franchise with its special pro-
vision to safeguard the native franchise in the Cape, and
of clause 137 providing for the equality of language within
the Union, as regards English and Dutch, shall not be
repealed unless the Bill be passed by a two-thirds majority
of the total number of members of the two Houses of the
Union sitting together in joint session. There exists also
416 IMPERIAL UNITY AND THE DOMINIONS
the restriction that any Bill which alters the constitution
or powers of Provincial Councils as provided in the Act
or that changes the provisions of the fourth chapter of the
constitution regarding the Lower House shall be reserved,
while any Bill altering the provision to this effect con-
tained in s. 64 of the Act must itself be reserved. But
these few technical points seem of very little consequence,
and the Union of South Africa may be said without doubt
to have within itself the full power of its own control. It
must always be remembered that the provincial Councils
cannot pass any law which contravenes any law of the
Union, and that the Union Parliament can pass any law
it likes and override the legislation of a Provincial
Council.
In the case of Newfoundland and the provinces of Canada,
the power of constitutional alteration is possessed in the
widest degree. The provinces are, unlike the Dominion, free
to change their constitutions at will save as regards the
position of the Lieutenant-Governor, who is the bond of
executive authority between the Dominion and the pro-
vince, and who, therefore, in that aspect could not be
made subject to change by the province. But the control
of such constitutional change is exercised by the strong
power of the Dominion Government, and therefore such
alteration cannot be dangerous to the federation in any
way. Newfoundland is subject only to the control of the
Imperial Government, but it is difficult to conceive any
way in which the desire to alter the constitution could arise.
The Upper House, which is nominee, is however not directly
under the control of the Government of the day, for unlike
the case of New South Wales, Queensland, and New Zealand,
the number of members who can be appointed by the
Governor on the advice of ministers cannot rise above
fifteen, so that, if any further members are needed, it is
necessary to make the appointments by the issue of warrants
by the King. This at once places the Government in the
position that it has to satisfy the Imperial Government
of the need for extra members to allow of the smooth
DOMINION PARLIAMENTS AND CONSTITUTIONS 417
working of Government before the number of the Upper
House can be altered. The number has from time to time
been increased : in 1904 it was brought up to eighteen in
order to secure the passage of any necessary legislation
regarding the new arrangements with the French Govern-
ment as to the fisheries, and in 1908 a further increase
by three members was rendered desirable by the change
of Ministry, which put the new Government of Sir E. Morris
in the position of having a solid majority against them
in the Upper House of some thirteen to five. The Upper
House has, however, shown a sensible spirit of compromise,
and, though it every now and then amends a Bill or throws
one out, it does not do so in such a way as to cause needless
offence or ill feeling.
In the provinces of Canada difficulties with Upper Houses
can exist in but two cases. In the case of Nova Scotia the
Upper House, which is in effect limited in number through
the absence of any legal means of increasing the number,
at one time was somewhat independent in its attitude
towards the Lower House, which made an energetic effort
to abolish it. But the Upper House has managed to retain
its existence by dint of the process of consenting of late
years to most of the measures of the Lower House, except
any suggestion of its own abolition. In Quebec, where the
Upper House is also limited in number, there has been no
serious friction, and the House may well continue its exis-
tence undisturbed. But in either case, if serious deadlocks
arose, they could be solved only by the intervention of the
Imperial Government, since there is no power in the Dominion
to alter the Constitutions, and there is no reserve authority,
such as that possessed by the Governor in the Australian
States and New Zealand and the Crown in Newfoundland,
to intervene and compose differences by the addition of
members to the Upper House in either case.
1874 D d
PART II. POSSIBILITIES OF UNION
CHAPTER I
IMPERIAL FEDERATION
1. CANADA, THE COMMONWEALTH, AND THE UNION
THE essential characteristic of any federal system springs
from the fact that a federation must be a compromise :
it is a form of government which preserves multiplicity in
unity, which admits that union is strength, but which
insists that individuality must not be swamped. A federa-
tion may claim to be an organism, in that it should exhibit
the most complete unity in diversity, each part being an
indispensable member in the whole, but at the same time
deriving its real effectiveness from its conjunction with other
parts to form that whole. But in any case of a real as
contrasted with an ideal organism experience shows that
there are defects, and while in an organism not composed
of conscious individuals capable of expression the failures of
adjustment show themselves only in the imperfect indivi-
duality and success in maintaining itself of the organism,
in the case of a federation the imperfection of adjustment
expresses itself in friction among the organs of government.
While therefore in theory a federation should be the most
effective form of government inasmuch as the whole
should be enormously strengthened by the individual
character of the parts, in point of fact it is, so far as it yet
appeared in the world, a much weaker form of government
than it should in theory be. This loss of strength is due
to the dissipation of effort caused by the disputes between
the central and the local authorities, and not less by the
fact that both central and local authorities in their executive
and their legislative action are subject to the control of the
federal courts, which may adopt a point of view satisfactory
CANADA, COMMONWEALTH, AND UNION 419
neither to the federation nor to the states. In a unitary
state the executive and the legislative powers stand in the
closest connexion, and this connexion is also to be seen in
most federations, but the judicial power in a federation
stands apart from the other two powers in a very marked
degree. In a unitary state the laws of the legislature are
carried out by the executive, and their proper performance
can be enforced through the courts, which are bound by
them. In a federation the judiciary ceases to be a means
of enforcing the will of the legislature and nothing more :
its function includes the duty of scrutinizing the action of
the legislature and the control of the legislature when it
exceeds its due powers. The executive thus ceases to have
the unquestioned duty of obedience to the legislature :
it is entitled and indeed it is bound to ask whether the
legislature is acting within the sphere of authority assigned
to it or whether it is going beyond its bounds, and seeking
to lead the executive into paths of error. Now it follows
essentially from these considerations that unless the authority
of the Parliament can be precisely defined in such a way as
to leave no doubt as to its powers, there must be waste of
power. The time occupied in considering problems of
ultra vires must divert attention from greater issues, and the
burden of reform must often be imperfectly borne from
doubt as to the legal means of executing the reforms
aimed at.
The same position in the central government and legis-
lature is repeated in the case of the local governments and
legislatures. They cannot well be certain of their rights
and authority, either inter se or towards the federation, and
the spirit of local autonomy is naturally felt most strongly
in the minds of the executive officers, the legislators, and the
judiciary of a province. The Government and Parliament
will, experience shows, nearly always be more anti-federal
than the constituents by whom the legislature is elected and
the officers indirectly appointed.
These theoretical considerations receive, it must be
admitted, very marked illustration in the case of the two
Dd2
420 IMPERIAL UNITY AND THE DOMINIONS
federations within the British Empire. In both cases
federalism seemed destined to come without undue delay :
in both cases the particularism of the units prevented the
change of government being made until the force of circum-
stances made choice practically unavoidable. In the case
of Canada federation was achieved thirty-three years before
it came to pass in the Commonwealth, and it would be wholly
idle to deny that the cause of the earlier fruition of the
movement in the Dominion was essentially the danger which
menaced Canada from the south, and which was so real that
it was the essential ground why Canada was denied the
title of Kingdom which Sir John Macdonald and his fellow
leaders of federation would gladly have seen assigned to her.
It was felt that the chance of the weak provinces of Canada
maintaining themselves against the attractions of the
United States, to annexation, for which there had been
a strong movement in 1847, was much less than the pro-
bability of the resistance of a united Dominion conscious
of future possibilities of greatness. In point of fact, even
then the carrying out of federation was almost hampered
by an accident. Prince Edward Island, which had at first
consented to come in, decided at last to stand out ; and
Nova Scotia, after declaring for union, was completely
carried over to the opposite opinion for a time by the
eloquence of Howe. Had it not been for the cleverness
shown by Sir C. Tupper as leader of the Government at the
time in Nova Scotia and the eagerness of the Imperial
Government to secure union,1 the attempt would have been
practically a complete failure, since New Brunswick could not
with Canada have made a union worth bringing about.
Similarly it was in large measure due to the influence of the
Imperial Government th.at the newly created Canada was
allowed to secure the Hudson Bay Company's territory
and the North-West, and that British Columbia was induced
to join the union, thus giving the Dominion the assurance
of a brilliant future when the first difficulties of growth had
been successfully overcome.
1 Recollections of Sixty Years, pp. 69-73.
CANADA, COMMONWEALTH, AND UNION 421
In the case of the Commonwealth the extraordinary
difficulty of inducing six colonies with a fairly homogeneous
population and, on the whole, similar conditions to federate
without external pressure was exhibited. It is certain that
in this case also something towards federation was con-
tributed by reasons of defence. The feeling was gradually
growing for years, especially after 1885, in the Common-
wealth that further unity for defence purposes was necessary,
and the obvious exposure of the Commonwealth to attack
from any great power in the Pacific was realized by a number
of statesmen. But the feeling was not strong : the move-
ment for unity which began at the very outset of the history
of the country was extraordinarily slow in developing, and
it is plain that its development in the long run was feeble
in the extreme, for the form of the Commonwealth Con-
stitution shows the many compromises necessary to secure
the consent of the States to union ; arid the State of New
South Wales at the last moment would not agree to union
unless it were given certain concessions, including the
undertaking that the federal capital should be situated
within its territory at such a distance as not to rival Sydney.
The result of the different circumstances of the two cases
is obvious in the whole aspect of the Constitutions. The
essential difference is seen at once in the attitude to the
two federations as regards external affairs. In the case of
Canada no doubt has ever existed that the Federal Govern-
ment alone is concerned with the external affairs of that
Dominion, in so far as a non-Sovereign State can have such
affairs. This fact reveals itself very obviously in the case
of treaties : it is not possible for Canada to become a party
to any treaty through the King's adherence in respect of
the Dominion, save on the condition that the whole of
Canada is bound by the treaty : that is to say, the provinces
have not enough individuality as units of Empire for His
Majesty to undertake obligations in respect of some one
of them by itself. For the same reason the full power is
granted to the Parliament of the Dominion to legislate to
carry out the treaty obligations of Canada. This power
422 IMPERIAL UNITY AND THE DOMINIONS
applies not merely to obligations contracted before the union
of the provinces, but also to obligations contracted there-
after : the most striking case l of this is the legislation passed
by Canada under the Boundary Waters Treaty with the United
States of January 11, 1909, and the Protocol of May 5, 1910,
modifying the treaty in one respect. By s. 2 of the Act,
chap. 28 of the Statutes of 1911, provision is made that the
laws of Canada and of the provinces are amended and
altered so as to permit the performance of the obligations
undertaken by the Crown in the treaty and so as to impose
the various rights, duties, and disabilities which are intended
to be conferred by the treaty. Any interference with, or
diversion from their natural channels of, waters in Canada
which in their natural channel should flow across the inter-
national boundary or into boundary waters, which results
in any injury on the United States side of the boundary,
shall give the parties injured the same legal remedies as if
the injury took place in Canada. Jurisdiction is given in
any such case to the Exchequer Court of Canada. Power
is also given to the International Joint Commission con-
templated by the treaty to compel by appli cation to a judge
of the superior court in the province in which the sitting
of the Commission is held the attendance of witnesses and
to take evidence on oath, and provision is made for
appropriation for the salary and the expenses of the Com-
mission so far as they fall to be paid by the Dominion of
Canada. It will be noted that the Act deliberately deals
with provincial law as it thinks fit, and it does so without
the consent of the provinces being obtained. There is no
case of legislation like this in the Commonwealth as yet.
Moreover, though the External Affairs Department of
Australia is older in origin than the corresponding depart-
ment in the Dominion of Canada, the latter since 1912, under
the Prime Minister,2 has far more reality and importance,
mainly, of course, because of the fact that the proximity
of the United States renders it necessary to maintain
1 Parl. Pap., Cd. 6091, p. 19; Journ. Soc. Comp. Leg. xvi. 5-12.
2 See c. 22 of 1912, replacing c. 13 of 1909 ; Parl. Pap., Cd. 6863, p. 16.
CANADA, COMMONWEALTH, AND UNION 423
a constant stream of negotiations with that country, so that
the British Ambassador, who is the intermediary, is always
kept busy in dealing with the external affairs of Canada
through the Governor-General — or sometimes less formally
direct with ministers or the Under-Secretary of Canada,
and the States Department of the United States.
In the Commonwealth the power to legislate as to external
affairs was given to the Commonwealth by the Constitution,
and an External Affairs Department early appeared on the
scene. But the position of the Commonwealth in the
matter of external affairs was early and energetically
challenged by the Government of the State of South Aus-
tralia.1 The Dutch Government made a representation to
the British Government that the authorities in South
Australia had failed to arrest the crew of the ship Vondel
as they were required to do under the terms of the Anglo-
Dutch Treaty of 1856. The Imperial Government com-
municated the complaint to the Commonwealth, asking
that Government to obtain a report on the alleged failure
of duty from the State Government. The State, however,
energetically declined to report otherwise than direct and
at the direct request of the Imperial Government. It based
its view on the provisions of the Constitution of the Common-
wealth : the authority to which application in any matter
should be made must be the authority which was entrusted
with the legislative authority, and therefore the executive
authority, by the Constitution ; and, even when the Common-
wealth had power to act, still the action must be not merely
one which the Commonwealth could take under the Con-
stitution, but action which it had empowered itself to
perform by legislating on the topic. Thus there remained
to the States all those matters in which the legislative
power did not rest with the Commonwealth, and until
legislation was passed by the Commonwealth all those
powers which the Commonwealth could exercise but had
not exercised, and the Commonwealth could deal only with
the departments transferred to her control by virtue of the
1 Parl. Pap., Cd. 1587.
424 IMPERIAL UNITY AND THE DOMINIONS
Constitution Act, e. g. customs, or matters on which it had
legislated. But this division of authority in external
affairs according to the legislative authority was not accepted
by the Imperial Government or the Government of the
Commonwealth, which insisted that the federation of
Australia was not merely the creation of a seventh govern-
ment beside the others, but of a new government, which for
some purposes and for all external purposes must be regarded
as above all the States. The responsibility for answering
questions raised by foreign governments rested with the
Imperial Government, which in its turn was entitled to
ask the Commonwealth Government for an explanation,
which that Government could ask from the State Govern-
ment. To deal direct in such a case with the State
Government would completely fail to fulfil the essential
purpose of the Commonwealth Constitution, the creation as
an external unit of one Australia. The State Government
remained unconvinced, and the position is still unsatis-
factory : if a State Government makes any representation
which deals with external affairs, the Imperial Government
will not deal with it until the Commonwealth Government
have expressed their views, and they send all complaints
to the Commonwealth, but the Commonwealth has no
control over the States, and, if they refused to reply, could
not make them reply. Nor, of course, has the Secretary
of State in his action any legal authority to rest upon save
his own opinion : indeed it may be doubted if the current
of judicial opinion in the Commonwealth is not directly
against his action, for the High Court of the Commonwealth
has expressly used the term Sovereign States of the States
of the Commonwealth, meaning by this to place them on
the same footing of authority as the Commonwealth itself,
from which it does not follow that the external affairs
power excludes in any way the direct relation of the States
to the real sovereign power, the United Kingdom. The
real reason in favour of the course of action adopted is
not a legal one at all, but is one of common sense. The
Commonwealth Government has the military and naval
CANADA, COMMONWEALTH, AND UNION 425
power in the Commonwealth : it has the customs power,
and it must therefore be vitally interested in all matters
of foreign relations and should be allowed to express its
opinion in regard to them freely, and this can best be
secured by making it the channel of correspondence. Even,
however, this principle cannot be carried out rigidly : the
legislation of the States is not subject to the control of the
Commonwealth Government, and if clauses in that legisla-
tion offend, as was the case with a Queensland Act in 1911,
the Imperial Government must forgo the pleasure of in-
sisting on the correct mode of procedure and deal directly
with the State Government, or it may be feared the State
Government would not meet the views of the Imperial
Government. Where the proper procedure of recognizing
the position of the State in such a case is observed, as was
the case with the Act in question, no difficulty in securing
the preservation of treaty rights is found. Thus while the
Queensland Act, No. 31 of 1911, was passed providing that
no land could be leased to aliens unless the alien could pass
a dictation test, it was expressly provided, in deference to
representations made by the Imperial Government and re-
ceived after the Bill had passed both Houses of Parliament,
that nothing contained in the Act should prejudice the
rights of any of the subjects of a foreign power between which
and the United Kingdom of Great Britain and Ireland
there was subsisting or should in future subsist any treaty
of commerce whereby reciprocal civil rights of the subjects
of such treaty powers were reserved, granted or declared,
and to which treaty the State of Queensland had acceded
or should thereafter accede. Similar legislation was shortly1
afterwards passed by New South Wales to amend the error
in the Land Act 2 of that State by which certain disabilities
in respect of land-holding were placed on all aliens who were
not naturalized within a certain time, contrary to the
provisions of the Treaty of 1883 with Italy and the Treaty
of 1859 with Russia.
In the case of treaties the self-dependence of the States
1 Act No. 53 of 1912 ; 7 of 1913. a Act No. 6 of 1912.
426 IMPERIAL UNITY AND THE DOMINIONS
is emphasized in two ways. While it is now clearly the
established practice, as it ought to be, that accession cannot
be expressed to any treaty without the desire of the Common-
wealth Government, whatever the wishes of the States, it is
not possible for the Commonwealth to accede to any treaty
until it has secured the concurrence of the States and the
promise or passing of the necessary legislation, if the subject-
matter of the treaty falls within the sphere of the States in
whole or part. In the second place, there is no theoretical
objection to the King acceding to a treaty in respect of part
only of the Commonwealth, though the policy of such
action might be doubtful. The first point is the result of
the fact that the Commonwealth power to deal with external
affairs is of quite unknown extent, and there is no legal
authority for the view that it confers on the Commonwealth
Parliament the same power to enforce .treaty obligations
which is given in express terms by the British North America
Act to the Dominion in Canada. If, therefore, the Common-
wealth asked that accession be expressed to a treaty affecting
matters of domestic importance, as for instance the necessary
changes required in the law of the States to prevent the sale
or manufacture of white phosphorus in matches if the
international convention to suppress the use of this abomina-
tion is to be carried out, and if the States declined to legislate,
the position of the Commonwealth would be hopeless.
Similarly when the Opium Convention was accepted by the
Commonwealth, it first of all ascertained that all the States
concurred in the proposal. But the anomaly that the
Commonwealth could ask that accession be declared for
one State alone is remarkable and shows how feeble the
unity of the Commonwealth is.
The same looseness of structure is to be seen in the pro-
cedure regarding the recognition of consular officers, on
which there has been correspondence at various times and
which has been discussed at the Premiers' Conference of
1914. The position is obvious that, if external affairs are
to be taken au pied de lettre, the whole business of consuls
should be handed over to the Commonwealth, and that all
CANADA, COMMONWEALTH, AND UNION 427
requests from the Imperial Government for the recognition
of consuls, provisionally or definitively, if there is no objec-
tion, should be addressed to the Commonwealth Government
alone. It would rest, as in Canada, with the Commonwealth
Government to consult with the State Government and to
answer the inquiry on its own authority after hearing the
views of that Government. The State Governments, how-
ever, at an early period in the history of the question
brought any attempt thus to deal with them to an untimely
end, by adopting the policy of simply taking no notice of
any consul unless he had been approved by them. The
result was, of course, that the consul, whose duties bring
him into constant contact with the State authorities, would
have found that the comfort of being recognized by the
Commonwealth would have been somewhat void ; and the
Imperial Government, with good sense, resorted to the plan
of asking both Commonwealth and State if they saw any
objection to the appointment, the Commonwealth from the
point of view of the relations of the proposed official with
the Commonwealth authorities, and the State from the
point of view of his communications with the State authori-
ties. The importance of this procedure must be recognized
when it is remembered that the consul is often a resident
Australian citizen and that it is not desirable that men of
any but excellent character should be appointed to these
posts. In the case of a consul de carriere, the highest
luminary in the consular firmament, no inquiry is needed,
as an exequatur can be issued at once for him, and the
Commonwealth and State Governments are merely informed
of the recognition accorded by the King. There remains,
of course, possible trouble in regard to the fact that the
views of the two governments might disagree, but in that
case it is to be hoped that in the interests of common sense
the report would be treated as unfavourable. It would
be absurd for the State to recognize a man whom the
Commonwealth disliked and not less absurd to adopt the
reverse course.
Apart, however, from external affairs in the fuller sense
428 IMPERIAL UNITY AND THE DOMINIONS
of the word, there is a complete distinction between the
Dominion and the Commonwealth in the relation of the
local governments to the Imperial Government. The pro-
vinces of Canada are so subordinated in this regard to the
Government of the Dominion that they are not at liberty
to address correspondence to the Imperial Government on
any topic, and the Dominion Government uses its discre-
tion as to whether it will forward any correspondence it is
asked to send on, and that discretion is often in the negative,
even if the matter is one on which the province is very
anxious to enlighten the Imperial Government, though it is
perhaps fair to say that the failures to forward papers may
be in some cases merely due to the propensity of all Canadians
and provincial governments to lose all their papers. On
the other hand, the Governors of the States correspond
directly with the Imperial Government on all matters
falling within the sphere of the States authority and often
on matters outside that sphere, though in such cases they
are required to send copies of their correspondence to the
Governor- General for his information, and if the correspon-
dence is public for communication if necessary to ministers.
The Secretary of State, on his part, replies direct to all
communications from the States unless they deal with
federal matters, in which case he would normally reply
through the Commonwealth ; but in some cases, as we have
seen, and notably in the case of consular correspondence,
he does not adopt this plan, since it lies in the power of the
States to refuse to act if he overlooks what they deem their
rights in this matter, and he has no legal authority to
support his view. The result of the quasi-independent
position of the Governors regarding the Commonwealth
and the Governor- General is inevitably to create friction
between the Governors and the Governor-General. This is
especially the case with the Governor of Victoria, who by
residing in the town in which de facto the Governor- General
has his abode pending the building of the federal capital
at Canberra, vies with the Governor- General and cannot
but be felt by the latter to diminish in some degree the
CANADA, COMMONWEALTH, AND UNION 429
prestige of his position as the representative of the Crown.
It would be contrary to human nature if the two viceregal
personages were to be naturally on really good terms, and
that they are so can hardly be asserted, though the degree
of obvious lack of cordiality varies considerably with the
personality of the men concerned. Of late years it is
certain that in Victoria, since the appointment of Sir T.
Gibson Carmichael to be Governor of the State, a real effort
has been made by the Governor to ease the position, but
it is inevitable that there should be difficulty, and the
transfer of the Governor-General's residence to Canberra
should be a fortunate period for the Governor of Victoria.
On the other hand, it is doubtful if the Governor- General
will really like banishment from the sea and Melbourne to
the obscurity of a bush town.
The extent to which friction in these matters can be
carried is revealed in a very curious manner by the famous
dispute over the position of Government House, New
South Wales, which was a cause, celebre, and on which the
amount of learning spent was prodigious. The old Govern-
ment House of New South Wales, a very fine building, was
at the time of federation placed at the disposal of the
Commonwealth Government rent free by the State of
New South Wales, because it desired that the Governor-
General, whose residence was during the session of Parlia-
ment to be at Melbourne, the seat of Parliament under
the Constitution pending the building of a federal capital,
should make Sydney his head-quarters in the recess. This
arrangement was renewed in 1906 for a further period of
five years, and when the agreement was about to expire,
the Commonwealth Government suggested that it be
renewed for one year. The New South Wales Government,
which was not on good terms with the Commonwealth
Government, thought that, if the agreement were extended,
which it did not wish to agree to, but might do as a matter
of courtesy to the Governor-General, it should receive rent
for the house. But the Commonwealth discovered that it
would be unconstitutional to pay rent, since while it had
430 IMPERIAL UNITY AND THE DOMINIONS
an obligation to provide a residence for the Governor-
General during the session of Parliament, and to provide
him with temporary accommodation in the various other
States than Victoria during the recess, it had not any
right to pay a State a rent for a Government House. The
argument was a silly one, but the Commonwealth was as
angry with New South Wales as the State with the Common-
wealth and the Governor-General had to'suffer. On October 7,
1912, accordingly the last visit of Lord Denman took place,
and the State Government then took charge of the house
and began to turn the stables into a conservatorium of
music, a proceeding which produced a good deal of amuse-
ment. The loyal citizens of Sydney, however, losing all
sense of humour, after attacking the Government in vain
in the Legislature, where its action was upheld by thirty-
three votes to twenty-nine in the Lower House, brought
an action against the Government for the purpose of obtain-
ing an injunction against their using the house for any
purpose other than a residence for the King's representative.
The action was unique, for it was brought by the Attorney-
General, on behalf of the members of the public concerned,
against the King, and thus the Crown in effect sued the
Crown ; but the court decided that this was a very legitimate
form of procedure, and pointed out that in the Common-
wealth the Commonwealth and the States were constantly
able to sue one another, a fact which was obviously not
very much to the point. But the court found that the
case of the Attorney-General was made out and that the
Government House was vested in the King, dedicated to
the purpose of serving as a residence for the Governor or
representative of the Sovereign in New South Wales, and
that the concurrence of the Imperial Government must be
required before there could be any change in the position of
the house, and that, as there was no hint that the Governor
had ever approved the action, the matter having been
dealt with by ministerial action alone, there was no possi-
bility of the approval of the Imperial Government to the
change ever having been given. The court therefore
CANADA, COMMONWEALTH, AND UNION 431
granted an injunction against the proposed transmutation
of the stables to purposes of music. The Government of
New South Wales thereupon proceeded to appeal to the
High Court of the Commonwealth, where the case was
elaborately considered, and the decision of the court below
reversed in 1913 on the reasonable ground that that court
was wrong in holding that the house had remained the
property of the Crown in its Imperial aspect, like the military
reserves. On the contrary, the land and house had really
passed under the terms of the Constitution Act of 1855,
accompanied by the Act of that year relinquishing hold
of the land in Australia to the control of the local govern-
ment, and further, even if this were in doubt, by an Order
in Council, made in order to surrender the reserved military
lands to the Government of New South Wales in exchange
for certain work for naval purposes done by New South
Wales, the whole claims of the Imperial Crown to property
in New South Wales had been handed over, so that the
action of the Government of New South Wales had been
in due order. This decision was upheld on appeal in 1915
to the Judicial Committee of the Privy Council, with the
result that the Government House was left in the posses-
sion of the State Government and available for restitution
to its rightful occupier, the Governor of the State of New
South Wales, Sir Gerald Strickland.
In the case of Canada, on the other hand, the Lieutenant-
Governor of a province is not appointed by the King but
by the Governor-General of the Dominion, acting with the
advice of the Privy Council of Canada, and he is liable to
be removed by the same authority, subject only to the
rule that the cause must be stated to the Parliament of
the Dominion. The power is not a dead letter, as the famous
cases1 of M. Luc Letellier in Quebec in 1879 and of
Mr. Mclnnes in British Columbia in 1900 have shown.
The first case was that of Lieutenant-Governor of the
Liberal Party dismissed by a Conservative Government as
a result of his alleged improper dismissal of a Conservative
1 Responsible Government, i. 226 seq.
432 IMPERIAL UNITY AND THE DOMINIONS
Provincial Ministry : the second, of a Liberal by a Liberal
Ministry, because he had set about to endeavour to turn
the province into a good Liberal province and had dis-
missed a couple of ministries as a preliminary to this result,
and had kept another Ministry in office for months without
a parliamentary majority. But it is not to be imagined
that the duties of a Lieutenant-Governor are normally
supposed to be of this energetic type : he is usually
a gentleman retired from political life, of mature years,
anxious for a quiet life, and devoted, if to any form of
activity, to encouraging charities : a good example of the best
kind of Lieutenant-Governor is given by the history of the
latter years of the life of Sir Oliver Mowat, when in retirement
from the issues of his earlier years he governed Ontario to the
satisfaction of every party and faction in the province.1
While the actual amount of control over the Executive
Governments of the provinces exercised by the Govern-
ments of Canada through the Lieutenant-Governor cannot
be said to be extensive, save in so far as all direct com-
munication with the Imperial Government is cut off, the
control of the legislation of the province by the Dominion
Government is effective and direct, whereas in the case of
the Commonwealth the Central Government has no control
whatever over the legislation of the States, which may
legislate on any topic they please, subject only to the
royal veto and the control of the courts. The Dominion
Government can disallow any provincial Act within a year
after its receipt by the Governor-General from the Lieutenant-
Governor, and this power has been exercised on very many
occasions. In the early years of responsible government
it is not too much to say that it was deliberately used as
means for enforcing the interpretation of the Dominion
Constitution which appealed to Sir J. Macdonald, and this
was a very restrictive one. In later years this degree of
control has been relaxed. For this there are several reasons :
in the first place many of the imaginary limitations of the
power of legislation laid down by the early opinions of
1 See Biggar's Life of Sir Oliver Mowat.
CANADA, COMMONWEALTH, AND UNION 433
Canadian Ministers of Justice, with whom lies in the first
place the duty of reporting on the propriety of leaving
provincial laws in operation, have disappeared under the
efforts of the courts to interpret the constitution and to
make clear the powers of the provinces. In the second
place, the growth of the provinces has increased the sobriety
of their legislation on the one hand and on the other ren-
dered the Dominion Government chary of raising serious
points of controversy with them. In the third place, the
Dominion Government has gradually come to feel that it
is not well for it to sit in moral censure on the acts of pro-
vincial governments, but that it should leave the operation
of the laws passed by the provinces to be dealt with by
the courts. This view was laid down by the Liberal Govern-
ment in the year 1909, in the Cobalt Lake case, where it
was contended that the Government of Ontario had inter-
vened by legislation to deprive certain persons of the right
which they enjoyed to establish certain claims to mining
areas. The case on the facts adduced seemed to be a bad
one of governmental action to prevent the men in question
profiting by their diligence, but the Minister of Justice
considered that the law, being constitutional, should not be
interfered with by the Dominion Government. In 1911
the Conservative Government was invited to disallow an
Act passed by the Alberta Legislature, c. 9 of 1910. This
measure confiscated the moneys at the Royal Bank, which
had been provided by certain investors in England on the
strength of a scheme for the building of a railway by the
Alberta and Great Waterways Railway Company, under
which the bonds issued by the railway company in return
for the money invested were guaranteed by the Government,
and the money was to be paid out as the building of the
railway progressed. The legislature mitigated in some
degree the effect of the Act by passing another Act (c. 11)
in which it was provided that any person holding himself
to have suffered injury by the passing of c. 9 might within
six months file a claim, which was to be reported on to the
next session of the Legislature by the Lieutenant-Governor
1874 Ee
434 IMPERIAL UNITY AND THE DOMINIONS
in Council, but it did not admit the validity of any such
claim. On the other hand, the guarantee of the bonds
was repeated in the Act, c. 9. The reasons alleged for
disallowance were partly constitutional, on the ground that
the Act interfered with the law of banking, and that it
affected to deal with rights not inside the province, and
partly moral, that confiscatory acts were undesirable.
The Government after examining the ca.se in detail decided
that, while they would not absolutely rule out the possi-
bility of the disallowance of a provincial Act on the ground
that it was unjust, they could not hold that the Act in
question was so obviously unfair as to render disallowance
necessary, especially as the Act, c. 11, seemed to indicate
a desire on the part of the legislature to do justice, and
the Premier had stated in the legislature, with the assent
of both political parties, that the Government would do
what was fair. Any question of constitutionality could
best be dealt with by the courts, which in point of fact
decided that the Act was invalid.1
The most characteristic cases of recent control of legisla-
tion are the series of disallowances of Acts of British
Columbia aimed at the exclusion of Asiatics, especially
Japanese, from the province, and their restriction in
regard to kinds of employment when they were there.
The position of the Dominion Government has always
been in this regard strictly imperial : they have consistently
disallowed such Acts, and have sought to find means of
limiting migration by virtue of their own power. The
courts have also helped them by declaring that the legisla-
tion of the Dominion, passed in virtue of the power to
regulate treaty matters and immigration, overrides similar
legislation on the part of the province, in so far as it con-
flicts with the Dominion legislation.2 Of late the British
Columbia Government, as a result of the advent of the
Conservative administration in the Dominion, have ceased
1 Parl. Pap., Cd. 6091, pp. 66, 67. The Provincial legislation later on in
1913 repealed their legislation ; Canadian Annual Review, pp. 645-50.
2 In re Nakane and Okazake, 13 B.C. 370.
CANADA, COMMONWEALTH, AND UNION 435
passing the objectionable Acts in such numbers. The use
also of the intimation of disallowance in the case of the
Saskatchewan Act, regarding the employment of women
by orientals in 1912, secured the due amendment of that
Act by confining its effect to Chinamen. On the other
hand the Dominion have not felt obliged to prevent the
exclusion of naturalized Asiatics from the provincial fran-
chise, a power recognized as constitutional by the Privy
Council, in the case of Cunningham v. Tomey Homma,1
in which it was held that the power to legislate as to aliens,
given to the Dominion exclusively by s. 91 (25) of the
British North America Act, 1867, did not mean that no
power to legislate was to be possessed by the provincial
legislatures which differentiated against aliens or naturalized
people, the power of the Dominion being apparently the
power to confer the status of naturalization and to deal
in some especial way with aliens, as in the Acts regarding
alien immigration. The decision being later than must
leave doubtful the meaning of an earlier decision in Union
Colliery Co. v. Bryden,2 in which it was laid down that it
was not within the power of the legislature to exclude
Chinese from any employment about mines, as the legisla-
tion was aimed at preventing them earning their living
and therefore residing in the province, and was not a real
exercise of mining legislation at all. The other matter in
which the power of disallowance has been exercised within
recent years is in an effort to compel provincial companies
to restrict within closer limits the powers given to these
companies. The provinces, in exercise of the right claimed
by them to incorporate companies with power to carry on
business outside the provinces, incorporate companies with
objects covering business in all Canada, and in the last
years of the Liberal administration the Minister for Justice
carried on a disallowance crusade in support of his views
as to the powers of the provincial legislatures in this regard.3
1 [1903] A.C. 161. 2 [1899] A.C. 580.
3 e. g. Order in Council of May 31, 1911, disallowing Quebec Act, c. 82
of 1910, an Act to amend the Charter of the General Trust.
EC 2
436 IMPERIAL UNITY AND THE DOMINIONS
The action taken was not intended to be in any way pro-
vocative, but it was based on the view that if these companies
acted ultra vires they might bring loss on their shareholders.
The whole question has since then been referred to the
Supreme Court of Canada l and to the Privy Council, but
even the Judicial Committee is hardly likely to decide
all the possible niceties. The truth is that the provinces
are anxious to extend their powers so as to make no real
difference between a Dominion and a provincial company,
but they have so far been defeated in that the Judicial
Committee have decided in The John Deere Plow Co. v.
Wharton 2 that the powers of a provincial legislature do not
extend to passing legislation which would in effect deny
the right of a Dominion company incorporated under the
trade and commerce power, s. 91 (2) of the British North
America Act, to carry on business within the province,
without submitting to registration under a scheme framed
to make a Dominion company in effect a provincial com-
pany in all matters.
The wisdom of the attitude of the Dominion Government
in restricting in the closest possible way the power to
disallow 3 has led it away from many difficulties and dangers,
and it is doubtful if the power of disallowance has ever
been of very great value save as an extreme remedy against
the action of British Columbia. In the case of the States
of Australia the disallowance of any Act by the Imperial
Government on the request of the Commonwealth, or
proprio motu, because it was unconstitutional, has never
been attempted : it is clear, as was long ago pointed out by
the Chief Justice of the Commonwealth,4 when it was sug-
gested that this would be a suitable mode of preventing
1 48 S.C.R. 331. Cf. the Privy Council decisions in Bonanza Creek
Gold Mining Co. v. The King, and Attorney -General for Canada v.
Attorney -General for Alberta, Times, Feb. 25, 1916.
« [1915] A.C. 330.
3 An Ontario Act of 1911 regarding chartered accountants, disallowed
because of its ignoring the position of British chartered accountants as
entitled to use that designation in Ontario, was re-enacted in 1912 in the
same form. « 4 C.L.R. 1087, at 1120.
CANADA, COMMONWEALTH, AND UNION 437
differences rising between the States and the Commonwealth,
that the proposal would impose unbearable burdens on
those who sought to decide what was and what was not
constitutional, and that it would be most objectionable if
these problems were not left to the decision of the courts
in due course. The only way, therefore, of restraining the
legislation of the States is by means of the judgements
of the courts of the Commonwealth, or rather since the
legislation of 1907 by the High Court, since that court
alone has full federal jurisdiction in cases involving the
consideration of the powers of the Commonwealth and the
states inter se.
The action of the courts, however, while negatively
doubtless of value, is as a positive factor singularly un-
important. Nothing can better illustrate this fact than the
famous dispute which raged for years between British
Columbia and the Government of the Dominion of Canada
regarding the building of the transcontinental railway.
The terms of union laid it down that the railway was to
be built, but the question of carrying out the terms was
one which could not effectively be brought before any
court, and for years the indignation in the west was very
high : Lord Carnarvon's interventions arranged a set of
terms as a compromise, which after a good deal of difficulty
and delay were at last carried into effect by the Conservative
Ministry largely owing to the initiative of Sir Charles
Tupper.1 There have been many disputes between the
provinces and the Government at Ottawa since that date,
but many of them, such as the demand of Alberta, Sas-
katchewan, and Manitoba for the control of their public
lands, which in the main are reserved under the direct
administration of the Dominion as being responsible for
immigration, are of minor importance, and have not led
to serious difficulty. More importance no doubt attaches
to the disputes with British Columbia on her Japanese
immigration restriction policy, and the Government found
it necessary to appoint a commission in 1902 to examine
1 Recollections of Sixty Years, pp. 134 seq.
438 IMPERIAL UNITY AND THE DOMINIONS
that question in full detail, and to seek to find some solution
for the problem. The most famous of the later difficulties
between province and Dominion was that arising out of
the religious teaching in the schools of Manitoba. The
difficulty arose out of s. 93 of the British North America
Act, as applied to the province by the Canadian Act estab-
lishing the province. The education system of the province
which had at one time made a certain provision for Roman
Catholic teaching, by allowing each denomination to do its
own teaching, was altered into a defined system with
rates, and the Catholic minority complained that they had
to pay rates which were not applied for the maintenance
of Catholic teaching, the Government having decided not to
have any specific denominational teaching in the schools.
It was decided by the Privy Council1 that the Manitoba
legislation did not prejudicially affect any right or privilege
existing at the time of union, as at that time the only right
or privilege enjoyed was that of paying for their own
schools, but the satisfaction of Manitoba was later removed
by the same body holding that the legislation of 1890 on
which the difficulty arose did affect the position of the
Roman Catholics in the province, and that under the third
subsection of s. 93, the Governor- General in Council had
a right to decide in what manner the local legislation should
be modified to meet the situation.2 The local legislature
was not, of course, in the slightest degree prepared to yield
and the Conservative Government, to its undoing, failed
in the session of 1895 to deal with the matter. In 1896, as
the Parliament was due to expire by efflux of time, the
Opposition prevented the legislation to remedy the state
of affairs in Manitoba, as authorized by the British North
America Act, which the Government brought forward, from
being passed, and the result was that the Government had
to go to the country without having passed the legislation
requisite. This fact was used by the Liberal Opposition to
take away the confidence of Quebec, and on the other hand
1 City of Winnipeg v. Barrett, [1892] A.C. 445.
2 Brophy v. Attorney-General for Manitoba, [1895] A.C. 202.
there were many who objected to the coercion of a province
in favour of Roman Catholics, and thus Ontario felt dis-
trust in the Government which not unnaturally fell from
office, because on the one hand they had tried to coerce
a province to give too good terms to Catholics, and because
on the other they had failed to relieve the needs of good
Catholics. The new Government managed to bring about
a compromise, but its permanency is again threatened.
Somewhat parallel to these cases of the ineffectiveness of
legal judgements of the courts for enforcing obligations in
a positive sense is the case of the action of the Government
of the Commonwealth of Australia in the great strike at
Brisbane in the beginning of 1912.1 The origin of the strike
was a dispute between the manager of the Brisbane tramway
and the employees as to the right of members of trade unions
to wear a trade union badge. The result was a strike, but,
as non-unionists came in considerable numbers to replace
the unionists, they called on the Trades Council to bring out
other unionists in a sympathetic strike : this was done, forty-
three unions being brought out, despite the fact that they had
no dispute with their employers, while many were working
on industrial agreements approved by Wages Boards and
legally binding on masters and men alike. The men stopped
all traffic in Brisbane for two days. As it seemed impossible
to keep order with the small force of police available, the
Government of the Commonwealth was asked under s. 119
of the Constitution to send military aid to protect the State
against domestic violence. It was replied by the Common-
wealth Government that the state of matters in Brisbane
did not render such assistance necessary. The help was
therefore not sent, and the State had, in the absence of any
military force, to put down the rioting with civilian special
constables. The State argued that the Constitution clearly
placed an absolute duty upon the Commonwealth Govern-
ment, and that the States would never have agreed to give
up their militia on federation had not the right to the use
of the Commonwealth forces been assured to them. It was
1 Parl. Pap., Cd. 6091, p. 71.
440 IMPERIAL UNITY AND THE DOMINIONS
proposed during the federal conventions to restrict the right,
but the proposed restrictions had been negatived. The real
reason, of course, for the attitude of the Commonwealth
Government was political : in the first place, the then Prime
Minister, Mr. Fisher, who was a Queenslander, was a Labour
member, and he showed his practical sympathy with the
strikers in his usual indiscreet fashion by subscribing towards
their distress funds. In the second place, the Labour Party
had just learned from the Conference of the Labour Party
at Hobart that the use of the armed forces of the Crown
against strikers would be gravely condemned, and they were
compelled therefore to violate the Constitution rather than
offend the Labour Party, which had gone so far as to demand
that the use of the forces against strikers should be made
illegal, a step which the Government did not take, presum-
ably because it would have been flying too openly in the face
of the Constitution. The State Government talked of bring-
ing an action against the Commonwealth Government for
breach of their duty under the Constitution, but unhappily
for the student of the Constitution nothing came of the pro-
posal. The case was a bad one ; public opinion in Australia
refused to approve the strike : the Labour Party indeed were
severely defeated at the general election which was then
sprung on the State by the Government, and for three years
was out of any possibility of gaining power.1
A good deal of disappointment was also for a long period
expressed in Western Australia at the delay which ensued
after federation in carrying out the agreement to make the
transcontinental railway, on the faith of which Western
Australia consented to enter the federation. Here again,
as in the case of British Columbia, it was found impossible
to bring the matter in any shape before the courts, and,
fortunately for the Commonwealth, the visit to it of Lord
Kitchener resulted in the realization that on military grounds
the long delayed railway must be built, though all the Con-
ferences which have taken place since 1911 have still left
1 In the general election of 1915 they defeated the Government and came
into power.
CANADA, COMMONWEALTH, AND UNION 441
the Government unable to decide the exact mode of convert-
ing the railway gauges of the Commonwealth to the one
gauge which military considerations render absolutely
imperative.
From the negative point of view the courts are, of course,
extremely powerful. But in the case of Canada and the
Commonwealth there is the fundamental distinction that
the constitution of Canada has been interpreted by the Privy
Council, that of the Commonwealth almost entirely by the
High Court under the provisions in the constitution under
which the appeal to the Judicial Committee is made depen-
dent on the consent of the High Court, a body which early
in its history laid it down l that it was its duty not to allow
appeals to go outside the Commonwealth. The principles of
interpretation of the Constitution have therefore differed
fundamentally. In all probability the application of the
different principles has had far more effect than the formal
differences in the distribution of legislative power in the two
cases. In that of Canada reaction from the error in the
United States which led to the war of secession resulted in
the assignment to the Dominion of all residuary power, and
to the grant to the provinces of only specified powers, but the
effect of this rule is considerably modified by the wide
character of the provincial authority in its defined powers.
In the case of the Commonwealth the powers of .the States
in certain matters were definitely taken away, and in most
matters left unchanged, but in many matters the Common-
wealth was given paramount power of legislation. The
necessity of conflict was fully recognized by the time when
the Commonwealth was created : in the case of Canada it
was assumed that the divisions were exclusive save in the
specific subjects of immigration and agriculture, where the
two jurisdictions might clash, in which case the federal law
was to prevail.
In the case of Canada the general powers of the Parlia-
ment have been little resorted to, and the enumeration of
powers in s. 91 of the British North America Act, though it is
1 Deakin v. Webb, 1 C.L.R. 585; Flint v. Webb, 4 C.L.R. 1178.
442 IMPERIAL UNITY AND THE DOMINIONS
expressly said not to be intended to restrict the generality
of the Dominion power to legislate for the peace, order, and
good government of Canada, in large measure covers the
field of its actual legislative activity, just as the enumerated
topics of the Commonwealth power cover the whole field of
its activity. The powers in the case of Canada include the
necessary powers of a civil government, namely the control
of the property of the Dominion, the raising of taxation,
the borrowing of money, the control of the public debt, and
the provision of a civil service. The questions of Military
and Naval defence are entrusted to the Federation, as are
the postal department and the census and statistics. In
regard to trade, besides a general authority to regulate trade
and commerce, the Federation is entrusted with the regu-
lation of weights and measures, currency and coinage, and
paper money, banking, including savings banks, bills of
exchange and promissory notes, interest, legal tender,
bankruptcy and insolvency, and industrial property in the
shape of patents of invention and discovery and copyright.
Communications are placed under its control in the shape of
ferries or lines of steamers from any province to a country
abroad, railways, canals, telegraphs, &c., serving as means
of communication between one province and another, and
any other public works which are declared before or after
their production, even if entirely within a province, to be for
the general advantage of Canada, or of two or more provinces,
by Parliament. Navigation and shipping, beacons, buoys,
lightships and lighthouses, quarantine and marine hospitals,
and sea-coast and inland fisheries are also assigned to the
Federation. The criminal law with criminal procedure, and
the provision of penitentiaries, and in civil law, marriage and
divorce, together with aliens and naturalization, complete
the record of exclusive powers.1 It has also paramount
powers as to immigration and agriculture.2
On the other hand,3 the provinces have exclusive control
of all matters of merely local or private nature in the pro-
vince, and of property and civil rights in the province, of
1 30 and 31 Viet. c. 3, a. 91. * Ibid., 8. 95. 3 Ibid., s. 92.
CANADA, COMMONWEALTH, AND UNION 443
local works and undertakings where not assigned to the
Dominion by reason of their affecting the whole of Canada
or two provinces, and of municipal institutions. It has also
the full power to provide for the administration of justice,
including the establishment of both civil and criminal courts,
and civil procedure : it can provide prisons and reforma-
tories, and impose fine or imprisonment for breaches of its
laws. Like the Dominion, a province can manage its pro-
perty,1 raise taxation, which can, however, only be direct or
take the form of shop, saloon, tavern, auctioneer or other
licences for the purpose of raising a revenue for provincial,
local or municipal purposes, borrow money and provide for
a civil service. Moreover, three odd powers are given, the
control of the solemnization of marriage, the incorpora-
tion of companies with provincial objects, and the establish-
ment of hospitals and other institutions other than marine
hospitals.
In one matter the provinces have more power than the
Dominion for they are, unlike the Dominion, essentially
constituent bodies, free to alter everything in their con-
stitution save the office of Lieutenant-Go vernor, and this
the Dominion Parliament seems unable to touch, though the
point is not free from obscurity.2 In the case of education
the power of the Dominion to legislate is merely remedial,
and it has never been exercised : in immigration and agri-
culture both legislatures have the power to legislate, but the
Dominion Acts prevail. The meaning is clearly that the
provinces can pass laws as they have passed laws to facilitate
bringing in settlers on special terms, and to promote agri-
culture, and similar Acts of the Dominion are in force ;
usually they do not clash : if they do, the Dominion Act
prevails.
In the case of the Commonwealth,3 the enumerated powers
1 The act divides property between the Dominion and the provinces.
2 This seems to follow from 30 and 31 Viet. c. 3, s. 91 (29), the right to deal
with this office, but this would conflict with the general inability of the
Dominion to change its constitution.
3 63 and 64 Viet. c. 12, Const, s. 51.
444 IMPERIAL UNITY AND THE DOMINIONS
are in great measure the same as those exercised by the
Dominion : thus naval and military defence, the postal
department, and census and statistics, are assigned to the
Commonwealth. Foreign and inter-state trade and com-
merce are also accorded, and generally currency, coinage,
legal tender, banking, other than state banking, so far as it is
intra-state, bills of exchange and promissory notes, bank-
ruptcy and insolvency, patents and trade marks, and copy-
right. Insurance other than intra-state state insurance is
added, but this is one of the recognized exercises of the general
authority of the Canadian Parliament. The Commonwealth
can tax, but must not discriminate between states or parts
thereof, and grant bounties on production or export which
must be uniform : it can borrow money. Its powers extend
to navigation, lighthouses, lightships, beacons and buoys,
and to quarantine, but it has only power over fisheries in
Australian waters beyond territorial limits, an extra-
territorial power of legislation, not granted to Canada.
Astronomical and meteorological observations are assigned
to the Commonwealth and exercised by Canada. It also
controls naturalization and aliens, marriage and divorce, and
the people of any race not aboriginal in a State for which
special legislation is deemed desirable. Immigration and
emigration and the influx of criminals are powers also
exercised by Canada. The powers as to external affairs and
relations of Australia with the islands of the Pacific corre-
spond only vaguely to the treaty execution power of Canada.1
Two powers which have been the subjects of much doubt
are the control of foreign corporations and trading and
financial corporations, formed within the limits of the
Commonwealth, and conciliation and arbitration for the
prevention and settlement of industrial disputes extending
beyond the limits of one State. Other powers are those for
the recognition of civil and criminal process issued by the
States throughout the Commonwealth, and the recognition
of the laws, public acts and judicial proceedings of the
States. The Commonwealth may, with the consent of
1 30 and 31 Viet. c. 3, s. 132.
CANADA, COMMONWEALTH, AND UNION 445
a State, acquire a railway in it or build and extend such
railways, as it has done in the case of the railway between
South and Western Australia. It has, moreover, the right
to control transport on any railway for naval and military-
purposes. It has further the odd power of dealing with old
age and invalid pensions, given to it for financial reasons,
and it may legislate on any subject if power is delegated by
the State Parliaments.
These powers are none of them expressed to be exclusive.
But the Parliament is given elsewhere x exclusive powers in
regard to the transferred departments, namely customs and
excise, and such of the following, postal, military and naval,
lighthouses, &c., and quarantine as might be taken over by
the Commonwealth, the seat of government, and the amend-
ment of the Commonwealth Constitution, with the assent
of the people.
In the case of the States, the powers possessed by them on
federation remained vested in them,2 subject to the loss of
power to legislate on the matters affecting the transferred
departments, and to certain other regulations. Thus they
are forbidden to maintain naval or military forces except
with the consent of the Parliament of the Commonwealth,
or to tax Commonwealth property, while the Commonwealth
may not tax State property.3 They may not coin money or
make anything but gold legal tender : 4 they can impose
inspection taxes, the proceeds to be paid to the Common-
wealth on imports and exports, but these taxes may be
annulled by the Commonwealth Parliament if it so desires.5
The powers of the State are also limited in various ways, as
by the requirement that, after the coming into existence of
the Commonwealth, a citizen resident in any one State of the
Commonwealth shall not be subject to any disabilities on
another State, which would not be equally applicable to him
if he were resident in that State,6 and that there must be
freedom of inter-state commerce.7 Moreover, a state must
1 63 and 64 Viet. c. 12, Const, a. 52. 2 Ibid., ss. 106, 107.
3 Ibid., s. 114. « Ibid., s. 115. 6 Ibid., s. 112.
6 Ibid.,s. 117. 7 Ibid., s.92.
446 IMPERIAL UNITY AND THE DOMINIONS
make provision to receive in its prisons persons who are
accused or convicted of offences against the laws of the
Commonwealth, and the Commonwealth is empowered to
make laws on this question.1 The Commonwealth, on the
other hand, may not legislate as to religion, or give prefer-
ence to any State or part thereof, or obstruct the right of
a State to use rivers for irrigation or conservation.1
In the interpretation of the two Constitutions the essential
difference of treatment has been based on the fact that the
Privy Council have treated the Constitution of the Dominion
as an ordinary Imperial Act, subject to the normal rules of
construction, and therefore intended to be given the fullest
effect in each clause that is contained in the Act. If such
an interpretation should result in producing inadmissible
results the Committee has felt that the error can be altered
by Parliament, but in point of fact the interpretation which
they have adopted has not yet led to the appearance of any
insoluble anomaly. On the other hand, the High Court of
the Commonwealth has treated the Constitution as a docu-
ment which cannot be altered save by the very cumbrous
process of the referendum, and they have applied to it the
principles which have been adopted in the interpretation of
the Constitution of the United States. It must, indeed,
be admitted, that this mode of interpretation no doubt ex-
presses well enough the interpretation which the founders
of federation desired to place on their Constitution, for they
were admirers of the Constitution of the United States, and
lived too remote from the civil war and from the experience
of the actual working of the Constitution of the States to
realize its grave imperfections. Moreover, they probably
ignored the fact that the Constitution could be easily
amended if it were really desired by any real majority of the
people to amend it, and that the process in the United States
is far more difficult, not merely by reason of the inevitable
complication resulting from the large number of states, but
still more from the high majority of states required for
a constitutional amendment. Nor in the case of a Constitu-
1 03 and 64 Viet. c. 12, Const, s. 120. * Ibid., as. 116, 99, and 100.
CANADA, COMMONWEALTH, AND UNION 447
tion conferred by Act of Parliament can the possibility of an
amendment by the same power be ignored, though the
Commonwealth High Court doubtless holds the view that
further Imperial interference with the Constitution must
not be invoked.1
The fundamental difference of the results which can be
arrived at from the adoption of these two points of view can
be seen from the case of the taxation by the local Govern-
ments and Parliaments of the salaries of federal officers.
In the view of the Judicial Committee the matter was simple
enough : it was merely necessary to look at the express
words of the Commonwealth Constitution. There was an
express declaration that the powers of the States remained
inherent in them unless they were expressly given to the
Commonwealth : the power to tax remained unaltered, and
it must extend to the taxation of the salary of Common-
wealth officials.2 But the High Court took precisely the
opposite view. In the early days of the history of the United
States, when the feeling between the States and the Central
Government ran high, the question was raised whether the
State of Maryland 3 was entitled to levy a tax on the salary
of a federal officer. Now in these times there was no doubt
the obvious possibility that, in order to annoy the Federation
and intimidate its officers, the State might tax the salaries
of the latter so highly that the officers would be hampered
in the execution of their duties. There being no obvious way
of restraining the activities of the States in this regard save
by a Judicial decision, the Supreme Court of the United
States produced the doctrine of the immunity of instru-
mentalities, which asserts that the instruments necessary for
the carrying out of the functions of federation may not be
subjected to control by the local Governments : or more
simply, that a State cannot tax the salary of a Federal
1 Mr. Hughes suggested recourse to the Imperial Parliament in 1914 to
recall the late Parliament of the Commonwealth ; Pound Table, 1914-15,
p. 211.
2 Webb v. Outtrim, [1907] A.C. 81.
3 McCulloch v. Maryland, 4 Wheat. 310.
448 IMPERIAL UNITY AND THE DOMINIONS
officer, for instance, by making him give a stamped receipt
for his income,1 or charging him income tax along with other
citizens.2 Nor would the High Court yield in its view of the
law, even to the opinion of the Privy Council, while the
Government, in order to support the Court, rescinded by
legislation the prohibition on taxation of official salaries, but
by another Act removed from the Privy Council the chance
of deciding on any of these questions between the States and
the Commonwealth, save by the permission of the High
Court. There was an obvious flaw in the action of the
Government and Parliament, but one denied by the High
Court : 3 if the result of the immunity of instrumentalities
were part of the constitution, it could not be removed, it
must follow, by legislation by the Commonwealth Parlia-
ment. To complete the story, it must be added that the
Supreme Court of Canada,4 when the question which had
formerly been decided in Canada in the same sense as in
Australia, under the influence of the decisions of the Supreme
Court of the United States, came before it, followed the
reasoning of the Judicial Committee in the Commonwealth
case, and declared the taxation to be perfectly legal.
Some of the problems which the Judicial Committee have
had to face in the case of the Dominion, could hardly arise
in the Commonwealth : thus the long contested point in the
Dominion as to whether the Lieutenant-Governors of the
Provinces could in any way be said to represent the Crown,
which was definitely settled in the case of Liquidators of the
Maritime Bank of Canada v. Receiver-General of New Bruns-
wick 5 in favour of their being such representatives for pro-
vincial purposes, so that the Crown right of priority of
payment over other creditors enured to the Provincial
Government, could not arise in the Commonwealth, where the
States clearly remain directly connected with the Crown
and not, as in Canada, shut off from immediate access to it.
» VEmden v. Pedder, 1 C.L.R. 91.
1 Deakin v. Webb, 1 C.L.R. 585.
3 Chaplin v. Commissioner of Taxes for South Australia, 12 C.L.R. 375.
* Abbott v. City of St. John, 40 S.C.R. 697. 8 [1892] A.C. 437.
CANADA, COMMONWEALTH, AND UNION 449
The presence of the words exclusive in the powers enume-
rated in the British North America Act, ss. 91 and 92, as
belonging to the Federation and to the provinces respec-
tively, furnished the chief basis for the argument disposed of
in Smiles v. Belford,1 that the Parliament of the United
Kingdom had purported to divest itself of any legislative
power in Canada, and had authorized therefore the Parlia-
ment of the Dominion to repeal Imperial Acts applying to
Canada, to which Canadian legislation would otherwise be
repugnant : the vague power given to the Commonwealth
Parliament, to exercise with the consent of the State Parlia-
ments any power which, prior to Federation, could only be
exercised by the Imperial Parliament or the Federal Council
of Australasia, remains uninterpreted by the High Court.
The maxim that any of the legislatures of the Federations
can delegate powers, as they are not subject to the rule dele-
gatus non potest delegare, established in the case of Hodge
v. The Queen,2 is definitely accepted by the Commonwealth
for its Parliament.3
But in other matters the Privy Council has followed a
different path from the High Court. It has acted on the
principle of reconciliation of the conflicting provisions of the
constitution, by endeavouring to give them all a reasonable
sense, and to allow the fullest measure of validity to the Acts
of both the central and the local legislatures, overriding the
local legislatures or the central legislature only when it is
impossible to avoid doing so. On the other hand, the High
Court has, on the American model, developed the doctrine
that many of the powers apparently assigned to the Common-
wealth are only to be exercised in such a way that they shall
not encroach upon the reserved powers of the States, and
everything is reserved which is not expressly given to the
Commonwealth, or which is not definitely ancillary to the
execution of the powers of the Commonwealth. In some
degree the distinction may be held to be based on the fact
that the residual power of legislation, in the case of the
1 23 Gr. 590 ; 1 O.A.R. 436. 2 9 App. Cas. 117.
3 Baxter v. Ah Way, 8 C.L.R. 626.
1874 F f
450 IMPERIAL UNITY AND THE DOMINIONS
Commonwealth, belongs to the States, but it is doubtful if
this affords by any means an adequate explanation of the
distinction of treatment.
Thus the Privy Council have laid down that in respect of
its power of dealing with such subject as bankruptcy, copy-
right, and patents the Federation may deal with matters of
property and civil rights in the provinces, though in one
sense these are exclusive powers of the provincial legislature.
Thus the Dominion may regulate the conditions affecting
warehouse receipts, taken as security by banks, under its
power to regulate banking,1 though the legislation is incon-
sistent with an Ontario law regarding the form of such
receipts. The trade and commerce power of the Dominion,
on the other hand, does not exclude the power of the pro-
vinces to regulate the trading of insurance companies within
the province, intended to secure the adoption of standard
forms of policy for fire insurance business. Though the
Dominion has power to deal with bankruptcy, and in the
exercise of that power might deal with voluntary assign-
ments for the benefit of creditors, unless and until it has
done so, it was decided in Attorney-General of Ontario v.
Attorney-General of Canada,2 it is open for the Ontario Legis-
lature to enact a law on the subject of such assignments as
a matter affecting property and civil rights in the province.
Both the Dominion and the provinces may seek to regulate
the liquor trade, the Dominion under its residual power, and
so far as it is impossible to reconcile the provisions of the
two sets of legislation the Dominion Act must prevail, but
not otherwise is the local legislation invalid, as has been
settled in Russell v. The Queen,3 and Attorney-General for
Ontario v. Attorney-General for the Dominion* In the case
of conflict in the laws of the two powers, then if part of one
law is valid and part invalid, the valid part can be enforced
if it is separable from the invalid part, so that its enforcement
would not make the elimination something quite different
from what was intended. The Privy Council held in the
1 Tennant v. Union Bank of Canada, [1894] A.C. 31.
* [1894] A.C. 189. 3 7 App. Cas. 829. « [1896] A.C. 348.
CANADA, COMMONWEALTH, AND UNION 451
case of the older Dominion Liquor Licence Acts1 of 1883-4,
which sought to deal with the liquor trade in a way generally
beyond the power of the Dominion, that the clauses regard-
ing adulteration of drink might have been upheld had they
been separable, but that as they stood the whole Act must
fall to the ground. In its liquor legislation, however, the
Dominion, as it can act only under its residual power, is
restricted to legislation to the peace, order, and good govern-
ment of Canada : thus, while in the case of its specific
powers, it has been decided in Quirt v. The Queen2 that the
Dominion may pass an Act under its power regarding bank-
ruptcy for the winding up of the bank of one province only,
or otherwise legislate for a portion of the Dominion as it
thinks fit, in the case of the residual power it would be
difficult as a rule to uphold legislation for one province only,
unless the circumstances were such as made legislation there
necessary for peace, order, and good government in a
special sense.3
The doctrine of the immunity of instrumentalities was
raised on behalf of the Dominion in the case of Bank of
Toronto v. Lambe* where it was argued that, if the provinces
were able to impose any taxation which they liked on banks
incorporated by the Dominion, they could in effect prevent
the exercise of the Dominion power to incorporate banks.
The Privy Council overruled this argument, and with it the
doctrine of the immunity of instrumentalities. So also
provincial Acts may require brewers and distillers, though
duly li censed by the Dominion, to take out and pay for
provincial licences also. What applies to Canada also
applies in the Privy Council view to the Commonwealth, but
the High Court has always held the contrary view.
The Privy Council has also refused to accept the view that
the Dominion cannot legislate because it interferes with the
powers of the provinces. Thus it was contended, in the
1 4 Cartwright, 342, n. 2 19 S.C.R, 510.
3 Attorney- General for Ontario v. Attorney-General for the Dominion, [1896]
A.C. 348.
4 12 App. Cas. 575.
Ff 2
452 IMPERIAL UNITY AND THE DOMINIONS
course of the discussions * on the legislative authority of the
Dominions and the provinces in the matter of liquor, that
the Dominion legislation was invalid as it, though merely
passed under its residual power, would interfere with the
power of the province which was exclusive to raise revenue
by means of taxation in the form of saloon licences. This
view was rejected by the Privy Council : the power to raise
money in this way was exclusive, but, unless the Dominion
attempted to exercise a forbidden power, it was not possible
to restrict the exercise of its actual powers on the ground
that the sphere of operations of the provincial legislatures
would thus be diminished or otherwise adversely affected.
But the principle affecting the use of the residual power is
that it ought to be restricted in its operation to matters
which are Canadian in interest and importance, and that it
should not deal, except incidentally and unavoidably, as in
the case of the liquor questions, with any of the exclusive
powers given to the provinces, since otherwise the exclusive
authority of the provinces would disappear. An instance of
the distinction, which would make a matter Dominion as
opposed to provincial, is that suggested by the Privy Coun-
cil : the sale of revolvers to young persons in a province
might well be forbidden by the province : the arms traffic
as a whole might require for international purposes Dominion
control.
A complicated series of questions arising out of the differ-
ence of the authority of the Dominion under its enumerated
powers and its residual power, and the vagueness of the
power as to trade and commerce, concerns itself with the
position of companies. It is clear law that a company for
Dominion purposes can be incorporated by the Dominion
Parliament, and that its status as a company cannot be
denied by the courts of the provinces or affected by the
legislation of the provinces.2 But its power to act in defiance
1 RuweU v. Reg., 7 App. Cas. 829, at pp. 837-9.
* The John Deere Plow Co. v. Wharton, [1915] A.C. 330. If the power to
incorporate falls under the trade and commerce power it is clear that that
power does not extend to regulating in all its details the act ion of a company,
CANADA, COMMONWEALTH, AND UNION 453
of provincial laws depends on whether the powers it has are
under the enumerated authorities or under the residual
power, and this involves the decision whether trade and
commerce covers company legislation, and, if so, to what
extent it goes. If it did in its whole ambit, then all com-
panies incorporated by Canada would seem to be above all
provincial law, but it is clear that the Judicial Committee
do not favour this view of trade and commerce and indeed
give it no very definite sense, save as certainly including
commercial regulation for treaty purposes or something
similar. Hence, while a telephone company 1 authorized by
the Dominion Government to make telephones cannot be
hampered by a law of the province that the consent of the
municipality is necessary before it can exercise its powers of
erecting telephones in its limits, while the Dominion Par-
liament for the purposes of Dominion railway may dispose
even of provincial Crown lands,2 and a provincial legislature
cannot give a company an exclusive right to operate in the
province to the exclusion of a Dominion company,3 in
matters not inconsistent with the Dominion legislation the
province retains its powers, and can compel the Canadian
Pacific Railway Co. to clean a ditch alongside the railway
line,4 but not to fence the line.5 If the company is only
created under the residual power it is practically subject in all
respects to the provincial law, provided that that law does
not deny its status as a company or seek to compel it to
become a provincial company, and that is the case even if
the company restricts operations to one province alone.
but merely as to its incorporation and status. The view of the court in
Citizen Insurance Co. v. Parsons, 7 App. Gas. 97, at pp. 116-17, gave incor-
poration as a general power. The later judgement seems to tend to the
other view, but to arrive at the same result.
1 City of Toronto v. Bell Telephone Co., [1905] A.C. 52.
2 Attorney-General of British Columbia v. Canadian Pacific Railway Co.,
[1906] A. C. 204.
3 La Compagnie hydraulique de Saint- Francois v. Continental Heat and
Light Co., [1909] A.C. 194.
* C.P.R. Co. v. Corporation ofNotre-Dame de Bonsecours, [1899] A.C. 367.
5 Madden v. Nelson and Fort Sheppard Railway, [1899] A.C. 626.
454 IMPERIAL UNITY AND THE DOMINIONS
On the other hand, the powers of the provinces to enact
legislation regarding companies and the validity of the
Insurance Act of Canada of 1910, which seeks generally to
regulate insurance in the Dominion other than mere intra-
state insurance, has been the subject of the most elaborate
and unconcluded debate.1 The question arose whether the
provincial purposes for which the province can alone incor-
porate companies must mean mere business in the province,
or whether a company incorporated had the right to avail
itself of the comity of other provinces and foreign countries,
and to make contracts inside or outside the province in
respect of business in the provinces or foreign countries.
Moreover, the question also arose whether the objects and
functions of a provincial company could be increased by
the legislation of the Dominion or other provinces, so that it
could carry on business outside the province, or was this
entirely outside the meaning of the Imperial Act? The
Supreme Court, on being asked to advise under the power of
the Government to obtain advisory judgements, which
though questioned on the ground that it was invalid and
ultra vires has been upheld by the Privy Council,2 gave con-
flicting opinions.
The question of railway legislation has also raised diffi-
culties : the Dominion in its Railway Act claimed the power
to impose Dominion legislation on the subject of through
traffic on provincial railways, which had never come other-
wise under the legislative control of the Dominion Parlia-
ment. The claim was, however, rejected by the Privy
Council,3 who denied that the proposal could be upheld
whether under the residual power or the trade and commerce
power of the Parliament, or on the ground that it was neces-
sarily incidental to the power to control Dominion railways.
There was available in the case of a recalcitrant provincial
railway the power of the provincial legislature to cause it to
meet the views of the Federal railway and the Dominion
Government, and in the worst case the Dominion could
1 See Journ. Soc. Comp. Leg. jriv. 357-68. 2 [1912] A.C. 571.
3 City of Montreal v. Montreal Street Railimy, [1912J A.C. 333.
CANADA, COMMONWEALTH, AND UNION 455
subject the provincial railway to Federal control by declaring
it to be a work for the advantage of Canada.
The fishery rights of the provinces have been a subject of
consideration, and it is now clear law x that in the open sea
the sole power to regulate the right of public fishery within
the limits of Canadian jurisdiction is vested in the Dominion
Parliament under its power to legislate as to the fisheries :
the same rule applies to the estuaries and tidal portions of
rivers. Further, the sole right of regulating the modes of
fishery belongs everywhere to the Dominion. On the other
hand, the Dominion has no proprietary right in the fisheries
in non-tidal waters at all, unless, as in the case of the railway
belt in British Columbia, the lands have been transferred to
the Dominion by the province in virtue of some arrange-
ment. Otherwise the sole right to regulate the fishery,
whether by the grant of leases or licences, as a matter of mere
property, rests with the province in its right to regulate civil
rights in the province, whether the property right rests with
the province or is in the hands of private owners.
The marriage question is notorious because of the great
amount of excitement which it produced in the Dominion.
It was held by the court of Quebec in one case that the
effect of the document known as the Ne temere decree was
to render invalid a marriage contracted between two
Catholics by a Protestant minister otherwise than in accord-
ance with the rule that such marriages must be contracted
before the priest of the parish of the contractors of the
marriage.2 The decision was, it seems, bad law,3 but in the
meantime, before it was so declared to be, an agitation
arose in the Dominion Parliament with a view to the enact-
ment of a law which was intended to have the effect that
if a marriage were solemnized before persons having a limited
authority to solemnize marriages under the provincial law
1 Attorney-General for the Dominion v. Attorneys- General for the Provinces,
[1898] A.C. 700; Attorney-General for British Columbia v. Attorney-General
for Canada, [1912] A.C. 153.
2 See J. S. Ewart, Kingdom Papers, i. 121-32.
3 Q.R.J. 41 C.S. 249.
456 IMPERIAL UNITY AND THE DOMINIONS
the marriage would be valid in all cases — that is, if a priest
having authority only to marry certain persons on grounds
of religious faith should marry others, still the marriage
would stand good. The government referred the Bill for
an advisory judgement to the Supreme Court ; it was held
to be ultra vires, a decision approved by the Judicial
Committee, which adopted the view that the power to
regulate the solemnization of marriage given by the con-
stitution to the province exclusively was a power under
which the forms of celebration could be regulated by the
provinces, and such regulation was not open to be
overridden by the legislation of the Dominion.1 It should,
however, be noted that the power given to the province is
restricted to the province : it is not in the power of the
province to regulate the provisions to be observed by people
who go outside the province to be married elsewhere :
if any further legislation is required on this subject , which now
is regulated by the rules of private international law under
the aegis of the Judicial Committee, it would seem to fall
under the Dominion power of legislation as to marriage.
The Dominion power to regulate divorce is a dead letter,
as the French Canadian population would not acquiesce
in its use, so that each divorce has to be performed by Act
of Parliament save in the provinces of New Brunswick,
Nova Scotia, and British Columbia, where divorces still
can be given under the Acts as they stood before federation,
but where no change of law is now possible by local legis-
lation. In Prince Edward Island the power to grant
divorce has been disused for a century.
The restriction of the legislative authority of the pro-
vinces to direct taxation has led to the strict limitation of
the rights of the provinces to raise succession duties, with the
result that the law is completely confused. The provinces,
however, instead of accepting loyally the restrictions on
their powers of taxation and agreeing on some definition
which would provide that they did not transgress into
fields of taxation open to other provinces or to the Dominion,
1 [1912] A.C. 880.
CANADA, COMMONWEALTH, AND UNION 457
spend their energies in spreading as widely as possible the
net of their taxing Acts. Thus the Ontario Legislature, in
its taxation of insurance companies' premiums, as amended
in 1914, demands a tax based on the amount of gross pre-
miums received in respect of business transacted in Ontario,
and includes as such premiums any premiums paid in the
province, and premiums paid anywhere in respect of persons
or property in the province at the time of payment. It is
clear that in this, as in the Succession Duty Acts, double
taxation is a constant incidence of the peculiar method of
procedure.1
The question of the position of the Indians and their
land claims has elicited the decision that the legislative
power of the Dominions in respect to Indians leaves the
property in the lands occupied by them in the hands of the
province, so that if the Indian claims are satisfied the
beneficial ownership of the land reverts free of any control
or claim by the Dominion to the province : 2 indeed so much
is that so that the Dominion cannot claim the sums expended
on the removal of the Indians' claims unless a specific
agreement to pay has been entered into : there is no known
principle of law which allows the Dominion to set out that
such payments were in effect paid by it as an agent for the
province.3 The nature of the title of the Indian is held
never to have been, since the British occupation of Canada
and the royal proclamation of 1763 which promised the
Indians that their lands would be reserved to them, more
than a usufructuary use and claim on the consideration
of the Crown, whence it has been deduced that in law the
annuities arranged to be paid to the 0 jibe way Indians
under the Cession Treaty of 1850 by which they resigned
their claims to considerable areas of land in the Lake
Huron and Lake Superior districts is merely a contractual
right and not a real burden in the form of a trust or interest
on the lands, in the sense that the revenues should be
1 Cf. Sir ,T. Aikins, Journ. Soc. Camp. Leg. xv. 279.
2 St. Catherine's Milling and Lumber Co, v. The Queen, 14 App. Cas. 46.
3 Dominion of Canada v, Province of Ontario, [1910] A.C. 637.
458 IMPERIAL UNITY AND THE DOMINIONS
applied to the payment or augmentation of the annuities.1
It has also been held that escheats 2 and precious minerals 3
are included in the property of the provinces, being royalties
which with lands, mines, minerals, belong under s. 109 to
the provinces. The possession of these lands, &c., is not,
however, given by the arrangements for the erection of new
provinces, and the Acts enforcing these terms, to the new
provinces of Manitoba, Alberta, and Saskatchewan, whence
has arisen the steady agitation of these provinces to have
the lands conceded to their care. In British Columbia,
while the lands as a whole are retained by the province,
large grants have been made to the Dominion for public
purposes in connexion with the building of the trans-
continental railway, and the exact powers of the province
and Dominion over these lands and the water rights
affecting them have been dealt with by the courts.4
The administration of justice enables the provinces to
impose, it would seem, duties on Dominion officers,6 and
it is clear that the Dominion can impose the duty of dealing
with contested elections for the Federal Parliament on the
provincial courts.6 The control of the criminal law is
federal, and the passing of a Lord's Day Observance Act is
therefore ultra vires a province,7 but the provinces have
power to create and do create a quasi criminal law by
imposing fines and imprisonment for breaches of their enact-
ments, and it is no answer to such fines and imprisonment
that the act is also a crime under the Canadian law.
The powers of the provinces in regard to municipalities
1 Attorney- General for Canada v. Attorney-General for Ontario, [1897]
A.C. 199.
2 Attorney-General of Ontario v. Mercer, 8 App. Cas. 767.
3 Attorney-General of British Columbia v. Attorney-General of Canada,
14 App. Cas. 295.
4 The matter has been adjusted by the Dominion conceding power by
law to the province (1912, c. 47).
6 In re County Courts of British Columbia, 21 S.C.R. 446.
• Valin v. Langlois, 5 App. Cas. 115.
7 Attorney-General for Ontario v. Attorney-General for the Dominion,
[1896] A.C. 348, at pp. 363, 364.
CANADA, COMMONWEALTH, AND UNION 459
depend entirely on the constitution and have no relation
to the powers of municipalities before the union. The
power is to establish civic bodies and to confer on them such
portions of authority as can be given under the enumerated
powers of the provinces. The right to tax possessed by
the municipalities is based on the provincial powers which
are delegated to it, for it is fixed law that a province
can tax one part of the province and not another as it
sees fit.1
It is doubtless curious that with the establishment of
a federal constitution there should have been no provision
for a local court inserted in the constitution other than the
mere power of Parliament to establish a court. The power
to establish a court has been argued to be the only power
which the Parliament should have in this matter, and this
was one of the grounds of objection to the practice of
asking the Supreme Court for advisory judgements in matters
of law regarding the constitutional powers of the Dominion
and the provinces. Such an opinion would not bind the
court itself in a concrete case and was not therefore a judicial
opinion at all. The Supreme Court 2 and the Privy Council,3
however, both agreed that the power, which had certain
analogies in the British constitution, could not be said to
be non-judicial, though it should be used most carefully,
and though it was perhaps necessary in some cases for the
judges to explain to the Government that the questions
could not be answered. In point of fact, however, most
important questions have more or less satisfactorily been
thus dealt with by the court and on appeal by the Privy
Council, and it is far from likely that any decision on such
hypothetical cases would be varied in a real case. Moreover,
in any real case it is nearly impossible to arrive at the real
elements of the problem, since the courts must often decide
on minor issues, and it seems as if the new procedure, which
has become extremely frequent of late, will be permanent :
the references on the fishery and the marriage laws have, as
1 Dow v. Black, 6 P.O. 272. 2 43 S.C.R. 536.
3 [1912] A.C. 571.
460 IMPERIAL UNITY AND THE DOMINIONS
decided, given much satisfaction, and the tangle of company
legislation seems to need some clearing up in this way.
The practice of bringing all constitutional questions on
appeal from the Supreme Court to the Privy Council in
one sense certainly weakens the authority of the Supreme
Court. At the same time it exempts it from the very trying
position of the High Court of the Commonwealth, which sits
in the midst of the governments whose position its judge-
ments affect. It would be idle to deny that there have
been signs of dissatisfaction with that court. The original
body consisted of three justices set up by the Act of 1903,
which provided for the number of the court, though the
main outline of its powers was laid down in the constitution,
contrary to the Canadian practice. In 1905 two more
justices were added, and conflict of opinion arose between
the two new men, who represented the modern school of
Australian thought with a labour leaning, and the three
older justices who were fathers of federation and admirers
of the constitution of the United States. The result was
that in a series of cases the judgements of Sir S. Griffith,
Sir E. Barton, and Mr. O'Connor were opposed by the judge-
ments of Messrs. Isaacs and Higgins, the former insisting
on the doctrines of the immunity of instrumentalities and
the reserved powers of the States, the latter preferring to
read the Commonwealth powers in the normal manner
applicable to Imperial Acts as authorizing the Common-
wealth to legislate, independently of considerations of the
powers of the States, in the matters prescribed. Ultimately
in 1912 the Labour Government, which was very indignant
with the Chief Justice, legislated to add two new justices
to the court, and to provide that no constitutional decision
should be valid unless a majority of all the justices, i. e. four,
concurred in the judgement. The Act was severely criticized
as an effort1 to alter the rulings of the court by the intro-
1 Its validity was also called in question on the ground that Parliament
could not legislate as to majorities necessary or rules as to how, in case of
equality, the decision was to go, but these objections seem to have been
ineffective.
CANADA, COMMONWEALTH, AND UNION 461
duction of new men, and the appointment of one of the new
judges, Mr. Piddington, was so badly received that he
resigned office, being succeeded by Mr. Rich. A further
change in the court has been caused by the death of Mr.
O'Connor, who was succeeded by Mr. Gavan Duffy, the
bearer of a well-known name in Australia. The other judge
appointed under the new Act was the Commonwealth
solicitor, Mr. Powers. Whatever the expectation of the
Government as to the effect of the change, and it is idle to
suppose that the Government did not wish an alteration of
view in the court, the result has not been in any marked
way to modify the opinion of the court on any topics pre-
sented to it. Perhaps too much faith was placed by the
Government in passing the measure on the dicta of the two
judges appointed in 1905, that they felt themselves at
liberty to disregard in future majority decisions of the High
Court if they thought them wrong, which was interpreted
in some quarters to be an indication that they would, if they
were supported by colleagues, reverse older rulings. The
adoption of such a policy would have been a blunder :
the proper way to upset the decisions of the High Court is
clearly merely by constitutional alteration.
The view of the Commonwealth Constitution taken by the
High Court emphasizes the independent position of the
states as retaining in all matters not occupied effectively
by the Commonwealth their sovereignty : it has even been
doubted if the Commonwealth has power to enact a law
regarding fugitive offenders or extradition. This question
raises the difficult point to what extent the Commonwealth
is a central legislature within the meaning of the Interpretation
Act, 1889, so as to exercise, in reference to the States, the
powers given by Imperial Acts to such legislatures as opposed
to local legislatures. The answer must clearly be that the
Commonwealth Parliament is not a central legislature in
any matter in which it has no legislative power : therefore
the Governor of a State is still the Vice-Admiral of the
Commonwealth1 and not the Governor- General, a fact
1 53 and 54 Viet. c. 27, s. 10.
462 IMPERIAL UNITY AND THE DOMINIONS
admitted by the Commonwealth Government at the begin-
ning of the war, when the State Governors as well as the
Governor-General issued proclamations of the outbreak of
war so as to bring into operation the working of the prize
courts in the States as required under the Prize Court Act.1
The State Governor again is not subject to mandamus
under any Commonwealth Act 2 since that would be a
violation of State sovereignty. But the Commonwealth is
not a mere agent of the States for any purpose : 3 even if
the States have a share in the customs revenue, and the
surplus over Commonwealth requirements is to be paid
to the States, the Commonwealth Parliament alone must
decide what is the expenditure which it will incur. Nor
is the Commonwealth Parliament in the slightest way
fettered in deputing to the Governor- General in Council
powers of subordinate legislative authority.
The powers of the Parliament in the opinion of the court
depend in the first place on the meaning of the terms used
in conferring them, and on this ground they have considered
very carefully the power of dealing with immigration, and
have decided that a person who is definitely connected
with Australia in some way, such as birth therein or fixed
abode, cannot be treated as an immigrant,4 though mere
artificial domicile under the law that an infant, who has
never been in Australia, has the domicile of his father is not
a good reason to permit his immigration. They have also
held that a workers' trade-mark which is a mark to show
that the article was manufactured under trade union
conditions is not a subject of Commonwealth power at all,
as no such trade-mark is included in the meaning of the
terms of the constitution giving the power.6 But in addition,
even if the power is given by the mere words it cannot bo
1 57 and 58 Viet. c. 39, s. 2 (2).
2 The King v. Governor-General of South Australia, 4 C.L.R. 1497.
3 State of New South Wales v. The Commonwealth, 1 C.L.R. 179. This
replies to such assertions as that in Parl. Pap., Cd. 3340, p. 24.
* Potter v. Minahan, 7 C.L.R. 277.
6 Attorney-General for New South Wales v. Brewery Employes' Union of
New South Wales, 6 C.L.R. 469.
CANADA, COMMONWEALTH, AND UNION 463
supported if it offends the doctrines of the immunity of
instrumentalities or the reserved powers of the States.
The immunity of instrumentalities was first, as we have
seen, applied by the High Court to the simple case of a
receipt stamp for a federal salary, which was denied validity ;
it was also applied to the salaries of the federal officers,
commencing a dispute which only ended in 1907 ; it was
also cited as preventing the municipality of Sydney levying
taxation on the property of the Commonwealth.1 But if
used against the States it soon appeared that it could be
used for them : it was relied upon by the High Court to
forbid the application of the Commonwealth legislation to
railway servants who were employed by a State Govern-
ment.2 But they declined to extend this doctrine to
protect the State in importing barbed wire for the use of
farmers,3 or even from it to draw the less unnatural conclu-
sion that the State was entitled to import duty free the rails
needed on the Government railways of the State.4
The doctrine of reserved powers was first asserted by the
High Court in Peterswald v. Hartley,5 where the power of
the States to impose licence duties on the manufacturers of
beer was expressly asserted, and the general doctrine
enunciated that the constitution contained no provisions
for enabling the Commonwealth Parliament to interfere
with the private or internal affairs of the States or to
restrict the power of the States to regulate the carrying on
of any business or trade within their boundaries, or even,
if they think fit, to prohibit them altogether. Otherwise the
effect of the constitution would be to deprive the States
of the power to regulate their internal affairs in connexion
with nearly all trades and businesses carried on in the
States. To construe the constitution thus was to run
1 Municipal Council of Sydney v. The Commonwealth, 1 C.L.R. 208.
2 Railway Servants' Case, 4 C.L.R. 488.
3 The King v. Button, 5 C.L.R. 789.
4 Attorney-General of New South Wales v. Collector of Customs of New
South Wales, 5 C.L.R. 818.
5 1 C.L.R. 497.
464 IMPERIAL UNITY AND THE DOMINIONS
counter to its whole spirit. The same doctrine was applied
by the three first justices of the court in the famous case of
the excise on agricultural machinery,1 in which the Common-
wealth Parliament, in an effort to carry out by its powers
the new protection, i.e. a protective policy in which the
workers should have their assured share of the increased
price produced by protection, laid it down by Act No. 16
of 1906 that an excise duty should be paid on agricultural
instruments, provided that it would not be levied if certain
conditions of the remuneration of labour were complied
with. They held that in substance this was not a valid
exercise of the power of imposing excise duties, but an
attempt to regulate the conditions of labour in the States
which was ultra vires : the new justices disagreed, holding
that, as long as the power was given to tax, the motive was
immaterial. The same divergence of opinion marked the
discussion of the question of the validity of Part VII of the
Commonwealth Trade Marks Act, 1905,2 which provided
for the marking of goods by a mark indicating that the
goods had been made under union conditions. The majority
of the court dismissed the idea that such a mark was a trade
mark at all, and they held that, treating the matter solely
as an exercise of the commerce and trade power, the sections
of the Act in question were void as an attempt to regulate
the trade of the States qua internal, which was expressly
forbidden, since the power of the Commonwealth was
restricted to inter-state and foreign trade. The same prin-
ciple was again applied to limit the power of the Common-
wealth as to corporations,3 the majority of the court deciding
that the power to deal with them was confined to prohibiting
their engaging in trade or to imposing conditions on their
being permitted to do so, but not to imposing rules on them
affecting their conduct of operations if they were allowed
1 The King v. Barger, 6 C.L.R. 41.
2 Attorney-General for New South Wales v. Brewery Employes Union
of New South Wales, 6 C.L.R. 469.
3 Ifinl'l'irt Parker and Company Proprietary Limited v. Moorehead,
8 C.L.R. 330.
CANADA, COMMONWEALTH, AND UNION 465
to engage in trade : it was not open to subject them to
special laws as regards monopolies or conditions of wages or
anything else of the kind, all these being powers of the
States alone.
The same principle has been used to limit very severely
the value of the power of the Commonwealth to legislate
for conciliation and arbitration for the prevention and
settlement of industrial disputes extending beyond the
limits of one State. The High Court decided1 that the
power thus given did not allow the court to prescribe in
the settlement of any dispute the payment of wages which
were at variance with the wages fixed by Wages Boards in
States acting under statutory authority to fix minimum
rates, though they allowed the court to override awards of
State arbitration courts and industrial agreements which
were legal and effective under State law. They, however,
qualified seriously the effect of this rule by allowing the
court to give a higher rate of wages than the minimum fixed
by a State Wages Board, on the ground that as the parties
could agree to fix a rate higher than the minimum the
court had equal power in this regard.2 But they definitely
declined,3 and in this all the justices for once agreed, to
admit that the court could impose a common rule regulating
any trade as to which it had intervened to settle or prevent
a dispute. The court pointed out that the giving of this
power was not necessary as part of a scheme of arbitration
or conciliation : it dealt with cases where no dispute had
arisen or even threatened, and it was in effect legislation
by the Court of Conciliation and Arbitration ; no such
power of legislation had been conferred on the Common-
wealth Parliament itself, and it could not indirectly do
what it had no direct power to do, even if the lack of this
power were likely, as pointed out by Higgins J., to render
1 The Woodworkers' Case, 8 C.L.R. 465.
2 Australian Boot Trade Employes Federation v. Whybrow and Co.,
10 C.L.R. 266.
3 Australian Boot Trade Employes Federation v. Whybrow and Co.,
11 C.L.R. 311.
1874
466 IMPERIAL UNITY AND THE DOMINIONS
the powers of the Court of Conciliation of which he was
President somewhat inadequate. Further difficulty has
arisen from the fact that the question what is a dispute
extending beyond the limits of a State raises so many
nice points of law as to render any discussion or decision
very difficult. It is not wonderful therefore that efforts
to exclude the High Court from interfering by prohibition
with the powers of the Court of Conciliation were made by
the Parliament of the Commonwealth, but the effort was a
failure, the court being prepared to hold, apart from specific
provisions of the constitution and of the Judiciary Act,
that the nature of federal jurisdiction gave the High Court
the right to control by prohibition any improper exercise
of it.1
The doctrine also was applied in 1910 to the case of
merchant shipping, when it was decided that the Common-
wealth power was confined to inter-state shipping and to
foreign shipping, and not to intra-state shipping at all.2
A Seamen's Compensation Act was therefore held ultra vires
because it did not make the necessary distinction, and the
whole Act had to fall with the invalid part, since it was
impossible to hold that Parliament would have consented
to distinguish the two classes of cases.
More serious, however, than even these instances was
the decision of the Judicial Committee of the Privy Council
in the matter of the Royal Commissions Act, 1912. The
question arose out of the desire of the Commonwealth
Government to ascertain the real position in trade of that
great monopoly, the Colonial Sugar Refining Company of
New South Wales, which carries on business in Fiji and
New Zealand. In order to obtain the information desired
after some trouble with the Company in 191 1, the Common-
wealth by Act No. 4 of 1912 gave extensive powers to Royal
Commissions to compel the appearance of witnesses and
the production of documents. After the passing of the
Act the Royal Commission summoned the manager of the
Company, requiring him to attend and to produce certain
1 11 C.L.R. 1. « 88. Kalibia v. WiUon, 11 C.L.R. 689.
CANADA, COMMONWEALTH, AND UNION 467
books and documents. He replied1 by bringing an action
for a declaration of the invalidity of the Royal Commissions
Act, and an injunction to restrain the Commission from
proceeding on the summons, or alternatively, if the court
should decide that the Act was not invalid, a declaration
that the manager was not bound to answer questions nor
to produce books or documents relating to matters as to
which the Federal Parliament had no legislative powers,
or which were not relevant to the subject-matter of the
Royal Commission on the sugar industry. Stress was
laid by the plaintiff on the famous decision on the validity
of Form IV in the case of Dyson v. The Attorney- General.1
The case was heard by four justices, and the validity of
the Act was upheld. The Chief Justice said that the power
must be deemed to refer to matters falling within the
ambit of federal power, and that therefore the Act itself
could not be held to be invalid, but he considered that
many questions to be asked were not relevant to the powers
of the Commonwealth, which did not extend to inter-
ference with the internal or domestic management of the
affairs of corporations trading under State laws. Nor was
an inquisition into the operations of the Company outside
the Commonwealth within the ambit of federal power, save
in so far as it related to the conditions of carrying on the
sugar industry in the abstract. He considered therefore
that the Commissioners should be restrained from requiring
the manager to answer any questions or produce any
documents which were relevant only to the internal manage-
ment of the affairs of the Company, the operations of the
Company outside the Commonwealth except in so far as
they related to the conditions of carrying on the sugar
industry irrespective of the persons by whom it was carried
on, matters relating to the value of particular parts of the
property of the Company, except such parts as were actually
used in the production and manufacture of sugar in the
Commonwealth, and details of salaries paid to officers of
the plaintiff Company, except in so far as they were relevant
1 18 Argus L.R. 429. 2 [1911] 1 K.B. 410; [1912] 1 Ch. 158.
Gg2
468 IMPERIAL UNITY AND THE DOMINIONS
to the actual cost of such manufacture and production.
The opinion of the Chief Justice was shared by Barton J.,
but Isaacs J. and Higgins J. in varying degrees dissented.
In view of this dissent the High Court certified that the case
was one which might properly go to the Judicial Committee.
The result of that journey was startling.1 The Judicial
Committee examined the basis of the constitution of the
Commonwealth, and laid much stress on the fact that the
Canadian constitution was based on a very different prin-
ciple from that of the Commonwealth constitution, in that
it transferred the residual power to the Dominion, whereas
the tenth amendment of the American constitution expressly
reserved that power to the States of the Union. The
Commonwealth constitution therefore gave the Common-
wealth only such powers as were transferred, as was plain
from the express words of ss. 51 and 107 of that constitu-
tion. Now the power of imposing restrictions on the liberty
of the subject by causing him to answer inquiries was one
which did not appear to have been transferred to the
Commonwealth : that Parliament had power to deal with
various subjects, and in connexion with them it might
impose obligations to give information, but the Royal
Commissions Act dealt quite generally, and gave the coercive
powers it mentioned to all statutory or common law com-
missions, nor indeed had specific Acts been passed giving
the directions to give information for which inquiries might
have been directed. The inquiries might be urged, as by
Higgins J., to be relevant to the possibility of altering the
constitution either under s. 128 of the constitution or to
the exercise of the vague power in s. 51 (xxxviii) empower-
ing the Parliament to exercise, with the concurrence of the
States concerned, any power which at the time of the estab-
lishment of the constitution could only be exercised by the
Imperial Parliament. But, until the constitution had been
altered, it was impossible for the Commonwealth to justify
its legislation imposing the duty to answer such inquiries,
1 Attorney-General for the Commonwealth v. Colonial Sugar Refining Co.
[1914] A.C. 237. Printed in the Commonwealth Part Pap., 1914 ;No. 25.
CANADA, COMMONWEALTH, AND UNION 469
which was a power not given, and therefore not exercisable.
Nor could the Act be supported as incidental to the exercise
of powers actually existing by statute or common law.
No such powers had been actually set in operation, and the
Royal Commissions Act must be held to be invalid, without
an alteration of the constitution, though the Committee
had hesitated to give this decision in view of the contrary
opinion of the Chief Justice and Sir E. Barton.
As against this crushing demolition of the Royal Com-
missions Act there can only be set the fact that the High
Court of the Commonwealth declined to apply the doctrine
of reserved powers to the Land Tax Act, 1910, of the Com-
monwealth.1 It was pressed on the court that the Act was
really meant for the purpose of breaking up large estates,
and was not a taxing Act at all, but the court had no diffi-
culty in distinguishing between the fact that an Act was
really intended for one purpose and merely nominally
carrying out a power, and the probable effect of a genuine
taxation Act. The boundary line in any individual case
may, of course, be slight, but the general soundness of the
distinction seems beyond cavil.
Another point of much dispute has been the prohibition
of the imposition of taxation by the State on Common-
wealth property or vice versa? The difficulty came to a
head in the case of the importation of steel rails for the use
of the New South Wales Government railways, when the
New South Wales Government took the law into its own
hands and took the goods away from the custody of the
federal authorities, refusing to pay duties. The High Court
decided that the duties were levied not on property but
on the importation, but this seems rather a forced view,
and it is perhaps safer to say that property in the section
of the constitution in question was not intended to refer
to imported goods at the time of importation.
The question of non-discrimination between residents of
1 Osborne v. The Commonwealth, 12 C.L.R. 322.
2 Attorney-General of New South Wales v. Collector of Customs of New
South Wales, 5 C.L.R. 818.
470 IMPERIAL UNITY AND THE DOMINIONS
different parts of the Commonwealth is not an easy one.
The ruling has, however, been laid down that an Act based
on domicile does not offend against the prohibition of
differential treatment, so that it is not a contravention of
the rule if a State raises succession duties in a different
way in the case of succession of domiciled persons and
other cases.1 On the other hand, it was held that the section
had no application unless a person residing in one State
seeks to enforce rights in another : it could not apply to
the case of a man who was resident in the State which
legislated.2
More generally important is a decision under s. 92, which
provides for freedom of intercourse and trade among the
States. The question was discussed at some length in
a case, The King v. Smithers, ex parte Benson,3 which was
decided at the end of 1912. The point at issue was
whether the provisions of a New South Wales Act to prevent
the influx of criminals were valid, inasmuch as they pro-
hibited the entrance into the State of any person sentenced
in another State for a crime, the punishment of which was
death or imprisonment for a year or upwards. The case
was brought on a writ nisi for certiorari to remove the
conviction of one Benson in New South Wales into the
High Court. All four justices who heard the case agreed
that the conviction was bad. The Chief Justice did not
rest his view on either s. 92 or on s. 117, but on the general
principle, which arose from the mere nature of federation.
This principle proved that the power of police was limited
to cases of necessity for self-defence, which did not exist
in such a case, and Barton J. concurred. Isaacs and
Higgins JJ. rested their agreement with the view that the
conviction was bad expressly on s. 92, which they held as
a warning to both the Commonwealth and the States that
there were to be no boundaries for intercourse or trade.
S. 92 has also been invoked in Fox v. Bobbins* to show
1 Davies and Jones v. State of Western Australia, 2 C.L.R. 29.
8 Let, Fay v. Vincent, 7 C.L.R. 389.
8 16C.L.R. 99. * 8C.L.R. 115.
CANADA, COMMONWEALTH, AND UNION 471
that it is impossible for a statute to impose higher duties
for licences to sell the wine produced in another State
than the sum charged for a licence to sell local wine only,
an interesting decision since otherwise a State might by
licences, which it can legally impose, practically give a prefer-
ence to its own products over those of another State, a result
clearly opposed to the principles affecting a federal con-
stitution. On the other hand, in 1915, an effort to make
the principle apply to prevent a State Government exercis-
ing its sovereign power of expropriation of goods was
defeated by the judgement of the High Court,1 which also
by a majority of four judges to two pronounced the judicial
power conferred on the Interstate Commission by the
Commonwealth Act constituting it to be ultra vires as an
attempt to confer judicial authority in a quarter beyond
the High Court.
It is by no means unnatural in view of these many restric-
tions on the Commonwealth powers that successive Common-
wealth Governments should have aimed at the securing
of greater powers for the Commonwealth Parliament. It
is the obvious result of the creation of any political body
that it should seek to enlarge in every way the ambit of its
authority, and the Government and the people of the
Commonwealth seem to have steadily been approaching
nearer the period when the constitution will have to be
largely altered in important respects. The first formal
effort to change the powers of the Commonwealth was
made by Parliament in 1910,2 when two proposed laws
were duly passed, and referred to the people, but failed in
1911 3 to obtain acceptance in five out of the six States,
though the Government still enjoyed popularity in the
country. The extraordinary position then arose that, though
the Government's proposals were emphatically rejected, the
Government were not affected politically in any direct
manner by the result of the voting. In 1912 the proposals
1 Melbourne Argus, March 24, 1915 ; above Part I, chap, xv, § 3.
2 Parl. Pap., Cd. 5582, pp. 29, 30, 42.
a Parl. Pap., Cd. 6091, p. 68.
472 IMPERIAL UNITY AND THE DOMINIONS
were again passed by Parliament, but this time as six laws,
which have been summarized above.1 In this case also
the referendum was held simultaneously with the federal
elections, and the result was curious.2 The Commonwealth
Government were defeated by one vote in the Lower House,
but three States, South and Western Australia and Queens-
land, approved the referenda, and the majorities against
them were nowhere at all very serious. The determination
of the Government to proceed with them in the session of
1915, after their return to power, was only to be expected,
and the appeals made to prevent the spread of party feeling
by pressing these proposals were somewhat belated,3 as
the Government in its over-confidence had pressed on the
general election, when it might have avoided the result
by agreement with the Opposition, which had offered frank
and full co-operation. However, it must be remembered
from the point of view of the Government that they had
asked in 1914 for their referenda again to be submitted to
the people at the time of the general election, and that
this request had been refused. To expect them therefore
to forgo the chance of success in the repetition of the
referenda could hardly be expected. Moreover, an additional
reason for having a referendum was afforded by the proposal
to change the law of Parliament to secure the concomitance
of the election for Senators and the Lower House in 1918.
This cannot be done under the existing constitutional powers
of the Commonwealth, and had therefore to be sanctioned or
denied by the people, unless the alternative of an Imperial
Act were faced, and it is the desire of all parties in the
Commonwealth as a rule to avoid such an application.
The most attractive counter-proposal which has been
made in the matter is undoubtedly one which was put
forward by Mr. Holman as a solution of the difficulty.
He was anxious to see that the Commonwealth secured
1 Parl. Pap., Cd. 6863, pp. 108, 109 ; above, Part I, chap. v.
* Parl. Pap., Cd. 7507, p. 60.
8 Round Table, 1914-15, pp. 209 seq. For the other side see
P. M. Glynn, Federal Constitution.
CANADA, COMMONWEALTH, AND UNION 473
for the purpose of conciliation and arbitration definite
wider powers, while the States would retain the general
control of their internal affairs. He recognized that the
confusion arising from the existing state of things, seven
different systems, all acting at the same time, was disastrous,
and, as it appeared to him useless to ask the Commonwealth
to restrict its powers either by Act or by constitutional
change, he thought it would be wisest to transfer to the
Commonwealth all the power to deal with trade disputes
by conciliation and arbitration, abolishing seven conflict-
ing sets of rules, and securing at the same time in all proba-
bility more smooth working. If the matter were in Com-
monwealth hands it would still work by local, if federal,
courts, and these courts would be just as likely to consider
local conditions carefully as any existing courts, while as
they were federal courts there would be less temptation
on the part of the Commonwealth Court to interfere with
its local branches. Such a solution, however, would clearly
not go far enough for the Labour Party at large, and, whereas
in 1911 the referenda of the day were frankly opposed by
many Labour men in New South Wales, in 1913 the recal-
citrants had come in the main into line, a fact which explains
in part the much more favourable appearance of the voting
for the referenda, though that was in part due to the fact
that the referenda coincided with a general election.
A fairly comprehensive scheme of arrangement was also
suggested by Mr. Holman at the conference of State Premiers
held in 1912,1 when it was proposed to resolve that the
several Parliaments should pass laws transferring to the
Commonwealth legislative power with regard to labour
and employment so far as necessary to enable the Common-
wealth to prevent and settle industrial disputes extending
beyond the limits of any one State, and to provide that
certain conditions of employment considered suitable by
an authority constituted under the law of the Common-
1 For Mr. Holman's proposals see Parl. Pap., Cd. 6091, p. 73 ; the above
represents the degree of agreement arrived at, but New South Wales and
Western Australia dissented from the proposals as inadequate.
474 IMPERIAL UNITY AND THE DOMINIONS
wealth should be a common rule of the industry, and should
override the local rules pro tanto. The Commonwealth was
also to have power over monopolies and combinations if
extending beyond a single State, and declared to be in
restraint of trade or commerce to the detriment of the
public by the High Court, so that the Commonwealth
might acquire the business on just terms or carry it on,
or acquire property used in connexion with the business,
the subject of the combination or monopoly. Further, in
order to prevent unfair competition, it was proposed to set
up a procedure under which the Commonwealth Court of
Conciliation and Arbitration would have power to lay down
regulations as to conditions of employment in any trade,
if complaint were made by a State court, on the motion
of a State industrial tribunal, that an industry in that
State was suffering from unfair competition as a result of
the industrial laws of another State.
These proposals are interesting, not because of their
completeness, but because they show that the feeling that
the provisions of the constitution are not by any means
satisfactory is generally recognized in the Commonwealth.
The Commonwealth Government, in the arguments of
1912 in Parliament over the passing of the Bills for the
referenda, laid stress on the fact that the law of Australia
was inadequate to deal with monopolies or combines, as had
been proved in the failure of the proceedings in the case
against the steamer owners and the coalowners who made
an agreement to raise the price of coal to the detriment of
consumers,1 by the proceedings in the case of the Colonial
Sugar Refining Company, which made the people of Australia
pay £7 75. 2d. more for their sugar than they charged the
people of New Zealand, and paid 10 per cent, annually,
and by the experience of the Government in trying to buy
steel rails for the transcontinental railway, thanks to the
opposition of the steel trust. The Opposition argued, in
reply, that the same result could be attained by co-opera-
tion of the States and the Commonwealth, and that it was
1 The coal vend case ; Commonwealth Parl. Pap., 1914, No. 22.
CANADA, COMMONWEALTH, AND UNION 475
desirable not to seek uniformity overmuch, but to encourage
individuality by allowing each State to preserve a vigorous
personality instead of reducing the position of the States
to a nominal power alone.
The Opposition also pointed out that there were several
matters in which change of constitution seemed more
necessary than in regard to the legislative authority of the
Parliament, including especially the position of the Senate.
That body, which was appointed to be in theory the repre-
sentative of the interests of the States as against the Lower
House based on population, can hardly be said to have
shown much activity in this regard, though here and there
on an odd point, such as the building of a quarantine station
in Tasmania, the local Senators secure by their unity the
rejection of a proposal. Normally, however, the result of
the system of election of the Senators has been to throw
the power into the hands of the best organized party — the
Labour Party. Each State forms one electorate for the
election of the three Senators whose office falls vacant
every three years, the term of a Senator's office being six
years. There is no preferential voting, and, as a State is
an enormous area, an individual cannot possibly canvass
it in any way. Therefore, the party which has its can-
didates and its electors best in hand has the great advantage
of being able to send its three candidates out to the different
parts of the State, and thus to cover the ground more or
less effectively. A party with less excellent organization
falls short in this important point.
The inaccuracy of the present system as a means of
representing the parties of the country can be best seen
by the figures of the election of 1913 : the result for the
Lower House, single member constituencies without pre-
ferential voting, was that thirty-eight members of the
Opposition were elected, and thirty-seven of the Govern-
ment.1 The proportional figures on gross numbers would
perhaps have been thirty-nine to thirty-six in favour of
the Government : at any rate, the Government was fairly
1 Parl Pap,, Cd. 7507, p. 59 ; Keith, Journ. Soc. C&mp. Leg. xiii. 526-41.
476 IMPERIAL UNITY AND THE DOMINIONS
well matched in every way with the Opposition, and lost
a good many votes because of the referenda, which were
voted on at the same time and defeated. On the other
hand, while the referenda agreed with the actual result
of a small success to the Opposition by giving the party
against an advantage of about 25,000 on a vote of nearly two
millions, the Senate saw the return of eleven Government
members to seven Opposition. By good organization the
Opposition won all the seats in New South Wales and
Tasmania, and one in Victoria, but none elsewhere. Clearly
New South Wales should have returned one Labour member
at least, if the representation of the State were to represent
in any way the people : the same thing applies to Tasmania,
while on the other hand Victoria, which would but for the
intervention of an independent candidate have sent three
Opposition candidates back, gave but one to the Opposition.
In all the other three cases the Opposition should have
had one member apiece, and the result should have been
nine to nine. The position is, however, even worse than it
seems, for at the election of 1910 the whole eighteen places
of Senators were secured by Labour, while undoubtedly on
any reasonable system of voting the Opposition should have
had at least six seats, so that in a House of thirty-six on the
two election results they would have numbered fifteen
votes, in place of a negligible seven. In the general election
of 1914, out of thirty-six places contested they won but
five, one by an accident, though they had about 48 per
cent, of the voting strength.1 It is certain, therefore, that
the present plan is open to the criticism that it tends to
the undue swelling of majorities, and that it makes the
decision of an election depend on electoral organization
and wire-pulling to an exaggerated degree. But the chance
of any change is scarcely to be called worthy of considera-
tion. The Lower House could, indeed, if it felt able, force
the reference to the people of a change in the mode of select-
ing Senators, but the difficulty of carrying in the teeth of
1 In the Lower House the Labour Party, with 52 percent, of the votes,
won under 57 per cent, of the representation.
CANADA, COMMONWEALTH, AND UNION 477
Labour a measure which would attack them in their favourite
stronghold can hardly be exaggerated.
Curiously enough, by the side of the regular organization
of the Commonwealth there has grown up a new feature
of the lif e of Australia, the holding of periodic conferences
among the Premiers and other ministers of the States in
which problems affecting the States are discussed with the
Commonwealth ministers or among the State Premiers,
according to the nature of the subject-matter of the dis-
cussion. The flourishing character of these conferences is
rather interesting, since at first sight at least it seems odd
that it should be found desirable or necessary to continue
meetings which before federation were the only effective
means of co-operation between the States, but which after
federation might seem to have sunk into unimportance.
But this result has not been attained, by reason in part of
the independent position still occupied by the States, and
by reason also of the fact that the Commonwealth and the
States are placed by the agitation for the referenda in
a position which is sometimes almost one of antagonism.
The States, moreover, in the early days of the Common-
wealth especially, were desirous of discussing among them-
selves many of the financial questions affecting them and
the Commonwealth, such as the long- vexed problem of
how to settle the finance of the Commonwealth and States,
which finally was disposed of by the adoption of the payment
of twenty-five shillings per capita, in place of the old and
inconvenient three-quarters of the net customs and excise
revenue, thus compelling the Commonwealth to raise three
times more money than any sum required by her for
expenditure from this source. On few of these occasions
has much important business been done, but that of March
1914 was noteworthy for its tone of hearty friendship
between Commonwealth and States, a fact due to the
presence in office of the brief-lived Liberal Government
of Mr. Cook. The nature of the work done at these con-
ferences is indicated by the discussions which then took
place : the problem of the use of the waters of the Murray
478 IMPERIAL UNITY AND THE DOMINIONS
River was to be solved by an elaborate scheme benefiting
South Australia, Victoria, and New South Wales alike,
the Commonwealth rendering the plan of constructing
a huge system of weirs and locks practicable by bearing
half the cost, while Australia would win half a million
irrigated acres. It was also agreed to settle one of the
chief disputes between the states and the Commonwealth
by giving up the separate post office banking business
transacted by the Commonwealth Savings Bank,1 and allow-
ing the States to enjoy this popular mode of securing
money cheaply, while in return the States were to transfer
their banking accounts to the Commonwealth Bank, and
thus give it the strength which it required. But while
these two projects, neither of which has matured, were
instances of the possibility of co-operation, the conference
left the old question of the position of the conversion of
the railway gauge in practically the old impasse, by merely
agreeing that the Interstate Commission should be asked
to consider the possibilities of conversion : the error made
through colonial jealousy in the early years of the founda-
tion of Australia has left Victoria and South Australia
with 5' 3" gauge lines, and New South Wales with 4' 8J",
while the Commonwealth has commenced its east to west
line to join Kalgoorlie with Port Augusta, on the New
South Wales gauge. The necessity of a uniform gauge for
military defence would seem to be obvious ; the funds to
carry it out are lacking.
But though, like many other forms of conference, the
conferences of State Premiers are not necessarily very
fruitful2 in results, and though sometimes the discussions
seem to lead to no end, the value of the conferences is not
to be underestimated, and the formal conference of May
1915 at Sydney, when Mr. Fisher attended to represent
the Commonwealth, and every State was represented, shows
that the change of Government in the Commonwealth
1 Cf. Mr. Fisher's proposals in 1912 ; Parl. Pap., Cd. 6091, p. 72.
2 A Conference in August 1914 to agree on a policy as to food prices and
conservation was not very effective ; see Round Table, 1915, pp. 677 seq.
CANADA, COMMONWEALTH, AND UNION 479
means no serious change of co-operation between the
States and the Commonwealth. It is characteristic that
the relations of the States and the Commonwealth do not
by any means necessarily become closer through the simi-
larity of political faith between the parties in the Common-
wealth and the States. The Labour Ministry of New South
Wales in particular has shown signs of sharing the general
dislike of seeing the engrossment of all authority by the
Commonwealth, and it is only through the pressure of the
Labour organization outside Parliament, under the leader-
ship of Mr. Watson, the first Labour Premier of the Common-
wealth, that the State Labour Party has been more or less
effectively brought into line.
The advantages of encouraging co-operation with the
States have recently revealed themselves in an unexpected
manner. The result of the general election of September
1914, which was rashly provoked by the Government, was
their complete and effective overthrow by the loss of four
seats in the case of New South Wales and two in the case
of Victoria, and the new Government were therefore under
a clear duty to proceed with their policy, provided it
was not inconsistent with the action requisite for the
purpose of ending the war, so far as that lay in the power
of the Commonwealth. The Opposition tendered to the
Government the fullest measure of co-operation in all
matters pertaining to the war, and even went beyond the
Government in urging, with the Bulletin, that compulsion
should be employed if necessary to secure adequate men
for the aid of the mother country ; this view was also
adopted by the Labour Government of South Australia
which had come into office in 1915 as the result of the defeat
of the Ministry of Mr. Peake at the general election of that
year. The Government, on the other hand, were extremely
anxious to carry out anything necessary in the interests of
the Empire, but they thought that they were clearly entitled
to proceed also with the six referenda which had been
rejected on May 31, 1913, but which they claimed would
confer on the Commonwealth powers which it was absolutely
480 IMPERIAL UNITY AND THE DOMINIONS
essential that it should possess in time of war, and they
proposed to add a seventh so that at the next general
election for the Lower House the election should correspond
with that of the Senators whose places would then be
vacated. The position, therefore, threatened to degenerate
into a case in which the Commonwealth would be distracted
with a referendum just at the time when its whole energies
should be concentrated on the successful carrying on of the
preparations for war, and the feeling throughout the country
was strongly against disunion, though the Labour Party
observed that this could be avoided by the simple expedient
of the Opposition conceding the principle that the referenda
should be accepted, in which case the actual voting would
cause no friction or difficulty. Fortunately at almost the
last moment it was found possible amicably to arrange
the issue by the agreement of the States — which, however,
has not been approved by the Parliaments in five of them
—to pass legislation conferring on the Commonwealth
Parliament for the period of the war and for the term
of one year thereafter the powers considered essential
by the Commonwealth, though not the full powers which
the Commonwealth wished to have, but rather those which
were advocated in 1912 by the Premier of New South Wales.
From both the federations the Union differs essentially
because it is really, as its name proclaims it, a union. There
seemed to be at first sight no place in the British Dominions
where every circumstance made more for mere federation.
Natal was a very British colony with an enormous native
population in a barbaric condition and a British Indian
population outnumbering the white population : the Cape
was an old-established British-Dutch colony with a native
franchise and a record of staid and sober government :
the two Dutch republics, then British colonies, had never
been able to agree in their independent existence to form
a unity, and certainly had so developed on different lines
that the idea of any close association seemed out of the
question. Nor were the colonies in the slightest degree
affected by mutual affection : the people of each had a very
CANADA, COMMONWEALTH, AND UNION 481
modified opinion of the merits of those of the other Colonies,
and very special idiosyncrasies, though in each Colony,
but least in Natal, there was a certain similarity in the type
of the ignorant farming Boer. On the other hand, the most
active and pushing men of the Dutch race were to be
found in the Transvaal, while the most ignorant were also
there in the out-of-the-way parts, and the Orange Free
State contained the most conservative of the Dutch.
The causes which compelled union in place of a real
federation were economic pure and simple. The movement
to federation became possible with responsible government,
and not only did it become possible but it became necessary.
As long as the Imperial Government controlled the fate of
the Transvaal, the Colony could not take any step which
was disagreeable to its neighbours, but its hands were
untied at once when it was given liberty to guide its own
course, and General Botha showed at an early date the
decision of his Government to carry the day in South
Africa. The Cape would naturally have expected to be the
leading party in any discussion, but the Cape was economic-
ally unable to rival the Transvaal. If the Transvaal could
not be satisfied, it could cease to let the Cape or Natal have
any of its goods traffic, and the long lines of railway, built
at great cost to convey the produce of the Rand to the
coast and to carry back in return food stuffs and mining
machinery and material, would lose the best part of the
traffic, and the economic ruin of the Colonies was as good
as certain. Moreover, the miners of the Transvaal were
clamouring for cheaper imports and objecting to the pro-
tective policy of the Cape, which was binding on the Trans-
vaal while it was still bound by the Customs Union, and the
Transvaal Government had only to threaten to refuse any
renewal of that agreement to show the coast Colonies their
danger, in view of the tempting nearness of Delagoa Bay
and the fact that the Government of Mozambique and the
Transvaal were on terms of marked intimacy.
But, while the aim of the Transvaal was bent on the closer
union of all South Africa, it was for long the view that
1874
482 IMPERIAL UNITY AND THE DOMINIONS
there should merely be a federation, and it was argued
conclusively in favour of this view that the essential differ-
ences between the Colonies were exactly those which caused
federation and not union to be inevitable. The Colonies
had common interests, but differed greatly, and therefore
should be allowed to be unhampered in individual growth,
subject to the existence of a union to represent all South
Africa and to deal with questions of common interest.
It had been pointed out by Lord Selborne in the memor-
andum x as to the position of South African affairs which he
wrote at the request of the Government of the Transvaal,
that the union of the Colonies of South Africa would greatly
promote independence of the Imperial authority, which was
quite impossible as long as the different Colonies disagreed
among themselves and one or other appealed to the Imperial
Government to use its influence in respect of the policy
of another Colony. But when the attempt to frame a
constitution was made, the federal solution was felt to be
impossible, so many and important were the things on
which united action was required, and so comparatively
few those matters on which the provinces could engage in
separate action. This was due in large measure to the
nature of the country. To take an obvious instance, cattle
disease and other agricultural troubles could not be allowed
to be dealt with on four different systems without grave
danger to the different Colonies, and therefore agriculture
must be capable of being controlled by the central govern-
ment. The railways must be run on one principle and
through traffic facilitated, and so the railways, which in
Australia are state controlled and in Canada are largely
privately owned under Dominion control, but in South
Africa are nearly all state owned, had to be managed by
one central body. Needless to say, customs and defence
must be national, with the post office and statistics, naviga-
tion and all that pertains thereto. Moreover, there must be
a uniform native policy : that had been decided from the
beginning of things as essential in any federal scheme, for
1 Parl Pap., Cd. 3564.
CANADA, COMMONWEALTH, AND UNION 483
the Native Affairs Commission of 1903-5, on which were
representatives of all the Colonies as well as of Rhodesia
and Basutoland, had reported in a sense which showed that
the management of such affairs was far too chaotic and
confused by reason of the different policies of the four
Colonies.1
There remained, therefore, nothing but union as a prac-
ticable course, and the decision to set up provincial councils
and provincial administrations was only in the first place
an effort to meet the natural difficulty which would have
arisen, had the apparatus of government at once been
removed from the four capitals to one only, and had no
places been left for local politicians. In the second place,
it is certain that local government is important in the case
of South Africa, and it is appreciated, and therefore the
setting up of the councils was an effort to encourage an
active spirit of local interest in affairs. But the essential
features of the whole constitution are that it is a unitary
one and not a federation in any real degree.
This fact is sufficiently shown by the powers of the federal
Parliament which are quite inconsistent with those of the
Union Parliament. The latter has the power to abolish
the provinces and to alter their constitution as it thinks fit,
subject only to the nominal requirement of reservation of
any Bill so abolishing the Provincial Councils or abridging
their powers. In the second place, the laws of the provinces
have validity even when within the ambit of their powers,
only so far as they do not conflict with a law of the Union,
and the Parliament of the Union has unfettered power to
legislate on every topic which the Provincial Council can
deal with, though it may be granted that the Union Parlia-
ment should as a matter of courtesy refrain from gratui-
tously occupying the field left to the provinces. But that
field is again subject to many limitations, part of which are
in the hands of the Government of the Union. A provincial
council may legislate as to roads, ponts, outspans, and
bridges, but not as to bridges connecting two provinces,
1 Parl. Pap., Cd. 2399.
H h 2
484 IMPERIAL UNITY AND THE DOMINIONS
as to markets and pounds, fish and game preservation,
hospitals and charitable institutions, municipal councils,
divisional councils and other similar local institutions,
elementary education for a period of five years and there-
after until Parliament otherwise decides, and direct taxation
within the province for the purpose of raising a revenue
for provincial purposes. But to raise money it must
conform with directions laid down by Parliament and
obtain the sanction of the Governor-General in Council ;
agriculture is in its province only so far as Parliament
thinks fit : local works and undertakings are subject to it
only if not ports and railways, and any work may be
declared a national work by Parliament and constructed
by its authority by agreement with the Provincial Council
or otherwise. The Council may also deal with any matters
which the Governor- General in Council considers of merely
local or private nature and with any subjects sent to it by
Parliament. It can also impose fine or imprisonment for
a breach of laws made within the ambit of its power.1
Moreover, when the Provincial Council has passed a Bill,
it must receive the assent of the Governor-General in
Council, and this assent is only given if the Union Govern-
ment think that it ought to be given, acting on its own
discretion.2 The short period since the origin of the Govern-
ment of the Union shows that there is not the slightest
prospect of any undue readiness to yield to provincial
wishes in these matters.
Further, the control of the executive government of the
province is largely in the hands of the Union Government.
The executive administration of provincial affairs in matters
over which the province has legislative power is entrusted
to an executive committee consisting of four persons,
whether members of the Council or non-members, elected
by its members by means of the transferable vote on the
principle of proportional representation, and they are joined
with the Administrator of the province, a Union officer,
who has a vote in their deliberations and also a casting vote.
1 9 Edw. VII, c. 9, s. 85. « Ibid., a. 90.
CANADA, COMMONWEALTH, AND UNION 485
Further, his importance is increased by the fact that he can
act for the Union Government in matters not within the
power of the Council, if authorized to do so, and in so acting
is not bound to consult the committee at all. The members
of the committee need not even be members of the Provincial
Council, and they hold their offices from general election to
general election independently of the views of the Council,
so that there is no responsible government in the manage-
ment of the affairs of the province, though there is of
course some approach to it in that the members are elective,
and are not permanent. Moreover, the further control of
the Administrator is secured in that he must recommend
any appropriation of money for governmental purposes,
and all monies can only be issued on his warrant, after such
appropriation,1 and the accounts of the province are audited
by an Auditor- General, appointed by the Governor-General
in Council and removable by the same authority.
At first the whole expenditure of the provinces was
subject to the approval of the Governor-General, and the
revenue was paid by the Government from appropriations
made by Parliament, the only fixed amount being that for
education, other than higher education, when the sum paid
was based on the appropriations of the colonial Parliaments
for that purpose in 1908. By Act No. 10 of 1913 2 the
financial relations of the provinces to the Union are regulated
up to April 1, 1917, in accordance with the consideration
given to the question by a commission appointed by the
Union under the terms of the Act of Union. The province
is given a subsidy from the Union, certain revenues are
transferred to it, and others are assigned, and it is empowered
to raise additional revenues in certain ways. The subsidy
is to be half the normal expenditure of the province, includ-
ing in that sum expenditure by divisional councils, school
boards, and native councils out of sums raised locally, but,
if in any year after March 31, 1914, the normal expenditure
exceeds that of the year before by more than 7| per cent.,
1 Except in special cases under s. 17 of Act No. 10 of 1913.
2 ParL Pap., Cd. 7607, pp. 85-90.
486 IMPERIAL UNITY AND THE DOMINIONS
only a third of the excess will be allowed in providing for the
expenditure for the next year. The expenditure of the
province is to be classed as normal and non-recurrent, the
former including all expenditure on administration generally,
the cost of carrying out the matters entrusted to the
province where it does not fall under the head capital
expenditure, interest and sinking fund payments in respect
of advances made to meet capital expenditure, and the cost
of construction and maintenance of roads, unless the cost
of construction but not of maintenance is allowed by the
Treasury to be treated as capital expenditure. Capital
expenditure covers expenditure on the erection or improve-
ment of any building, bridge, or any permanent work or
undertaking, provided that the expenditure on a building
must exceed £500, and that on a bridge or other work
£1,500. The provinces of Natal and the Orange Free State
receive also additional subsidies of £100,000 a year. The
subsidies are to be estimated by the Administrator and to
be paid in the financial year to which they apply, but
readjustments are to be made subsequently. The subsidies
may be readjusted if the province ceases to be expected to
deal with any matter at present entrusted to it. For
capital expenditure, loans are to be made by Parliament at
interest not over 5 per cent, to be repaid by equal half-
yearly instalments within forty years.
The province receives also the revenues derived from
certain fees, dues, and licences including hospital fees,
education fees in respect of elementary education, totalizator
fees, auction dues, game licences, certain dog licences, trade
licences, and other miscellaneous receipts. The Councils
may legislate as to the raising or management of such
revenues and may amend the laws of the Union in
regard to these matters. But a Provincial Council cannot
make an ordinance relating to licences to trade so as to
take away any right existing at the commencement of
the Act to appeal to a court of law against a refusal
to renew any licences, this provision being intended to
preserve the appeal given to British-Indians against
CANADA, COMMONWEALTH, AND UNION 487
refusals of the Natal municipal bodies to renew existing
licences.1
Provision is also made for the enlargement of the authority
of the provinces : if the matter is one which falls under the
heads specified in the second schedule to the Act, the Governor-
General may with the concurrence of the executive com-
mittee determine whether the additional matter shall be so
entrusted, while on any other matter an Act of Parliament
shall be necessary. When any power is allotted, the
Provincial Council may make ordinances in respect of the
transferred matters. The matters scheduled include the
destruction of noxious weeds and vermin; the registration
and control of dogs outside municipal areas ; the experi-
mental cultivation of sugar, tea, and vines save as these
matters concern the administration of the laws relative to
diseases of plants ; the making of grants to agricultural
and kindred societies not being registered under any law ;
the administration of libraries, museums, art galleries,
herbaria and botanic gardens, excepting the governmental
libraries at Capetown and Pretoria ; the control of places
reserved out of crown lands by the Union Government as
public resorts or as of historical or scientific interest ; the
administration of cemeteries and casual wards ; the distri-
bution of poor relief ; the regulation of opening and closing
of shops and regulation of hours of shop assistants ; the
administration of the Labour Colonies Act, 1909, of the Cape of
Good Hope ; the establishment and administration of town-
ships ; the licensing and control of vehicles and of other
means of conveyance using roads under provincial control ;
the regulation of horse-racing and betting and of totalizators.
In addition to the transferred revenues certain revenues
of the Union are after collection to be paid to the provinces,
namely those derived under the laws affecting transfers of
or successions to immovable property, revenues under laws
regarding licences for the sale or supply of intoxicating
1 See above, pp. 206, 213. The power of a Province to discriminate
on colour grounds is denied; Williams v. Johannesburg Municipality,
[1915JT.P.D. 106.
488 IMPERIAL UNITY AND THE DOMINIONS
liquor, and in the case of the Transvaal the revenue from
licences for the employment of natives. These matters shall
remain under the sole legislative control of the Union.
In the case of Natal a special grant is to be made equal to
the amounts derived by the municipal and local authorities
from trading and liquor licences. The powers of Provincial
Councils as to licences are further limited to a considerable
extent by forbidding the receipt of revenue or the making
of ordinances in respect of licences for commercial travellers,
companies or banks, or insurance and friendly associations,
newspapers, gold dealers, brokers and cutters of precious
stones, for prospecting for metals, manufacturing cigarettes,
dealing in arms, ammunition or explosives, engagement or
recruitment of natives, or the ownership or use of boilers ;
nor may any province exact licence fees which may be
exacted by any municipal or local authority.
The Act gives also to the Administrator authority to allow
the expenditure of money in cases of emergency despite the
fact that no appropriation has been made, if postponement
would mean serious injury. The total sum so to be author-
ized shall not exceed £25,000, and the expenditure must be
submitted at the next ensuing Council at latest, to the
Provincial Council for appropriation.
The expectation with which the provinces were set up
has hardly been in the full degree carried out, as it was
probably thought that they would not be marked by party
feeling to any great extent. The Transvaal, however, has
proved that the expectation is not exactly justified. The
deportation of the workers at the beginning of 1914 roused
much bitterness of feeling and the Provincial Council became
the scene of strife. The Council determined to enter upon
a course of resistance to the control of the Union Govern-
ment, by setting up select committees in place of the executive
committee of the province as entitled to the powers of an
executive under responsible government, and claiming to
be entitled to fuller powers and to complete freedom in the
use of the powers which they enjoyed. This would have
meant the reduction of the Administrator, both in his
CANADA, COMMONWEALTH, AND UNION 489
capacity as head of the administration and in his capacity
as the servant of the Government of the Union, to the
position of an ordinary Governor or a Lieutenant-Govemor
in a Canadian province who normally acts on the advice of
ministers, and the Union Government could not be expected
in any way to agree to a change in the existing relations
of the two authorities, even had it been in the legal power
of the province to do so, as it was clearly not.1 Nor will the
Union assent to the desire of the Provincial Council that all
taxation should be based on land values,though it has allowed
the Council to establish various rules for itself on other points.
One of the difficulties in the way of the Union which
caused some trouble was the language question : in the
Cape there was limited equality of the Dutch and the
English languages confined to the use of them both in
Parliament, but in Natal there was no such equality at all,
and the provisions of the constitutions of the Transvaal
and the Orange River Colony gave Dutch privileges, but
not full equality. It was, however, decided that the grant
of full equality should be accorded, on the ground that
only thus could the Union be satisfactorily brought about.
It is not easy to accept the view that this concession
was desirable : it was absurd in a place like Natal to flood
the country with useless duplicates in Dutch which nobody
wanted to read, and even in the Cape the practice of printing
matter in Dutch had by a commonsense Ministry, whether
British or Boer, been restricted to documents which were of
some real interest to the Dutch-speaking race. The result
of union was not merely to confirm an existing rule : it was
definitely to give Dutch a far higher place than it had
hitherto occupied, and nothing but the agreement of the
South African parties would have rendered the concession
a reasonable one. The best excuse for the policy is that the
future of English in the Union is assured, since Dutch will
never be a language of any literary or political or com-
mercial importance in the world and the speakers of Dutch
must perforce learn English. But this is not the ideal of the
1 See Round Table, 1915, pp. 573, 739, 740.
490 IMPERIAL UNITY AND THE DOMINIONS
Dutch at all, and the first few years of union were rendered
difficult by the determined efforts of Mr. Hertzog, whose
loyalty to the Empire was found singularly wanting in
1914-15, to force a bilingual system of education upon the
schools throughout the Union. This was brought about
by a device 1 in which, in return for the Orange Free State
modifying its compulsory Dutch teaching, the other pro-
vinces went further in admitting the teaching of Dutch
than had been done before. The system as finally agreed
upon in effect aims at bilingualism, but does not make it,
as formerly in the Free State, compulsory. Up to the
fourth standard the child shall be taught in its home lan-
guage, but the parent may insist on the pupil being gradually
accustomed to be taught also through the medium of the
other language. After the fourth standard both languages
are to be used unless the parent prefers one only, and in
either case there must be provision for efficient teaching in
separate classes, if the pupils are numerous enough. More-
over, the other language of the two shall always be taught
in all schools, unless the parent of the pupil objects. The
teachers in future will be expected to pass the highest
examination in both languages when seeking a certificate :
the medium of examination is to be chosen by the teacher,
and he must pass one language on the higher standard
and one at least on the lower. But no English- speaking
or Dutch-speaking teacher in office when the laws in the
various provinces came into force was to be penalized, if
otherwise competent for his duties, by reason of lack of
knowledge of the other language.
In Australia the language question has never appeared
in a practical form, though here and there may be found
villages of German parents who have little knowledge of
English. In Canada, on the other hand, French in Quebec
naturally maintains its position, and it is by law given equal
rights in the Parliaments of the Dominion and of Quebec,
and in the law courts of the Dominion and of Quebec.2
1 See Parl Pap., Cd. 6091, pp. 81, 86, 87.
2 30 and 31 Viet. c. 3, B. 133.
CANADA, COMMONWEALTH, AND UNION 491
But in Ontario also1 there has been of late an increasing
effort on the part of the French-speaking section of the
people to insist on the practical recognition of the French
tongue, though it has no legal rights whatever. The
examination of the educational system of the province
undertaken by the Government resulted in the realization
of the fact that in many schools in the French-speaking
districts of the province the use of English was systemati-
cally regarded as undesirable and no teaching was taking
place in it, or if it was being taught it was taught in such
a way as to be of no real value to the pupils. The action
of the teachers was clearly to be reprehended : the educa-
tion system of Ontario is based on instruction through
English, with an exception in case of German and French
communities where, the home language not being English,
the use of English as a medium would at first be absurd,
but it is intended that the use of English should be gradually
increased, as should obviously be the case in a British
Dominion. The Government as the result of the investiga-
tion carried out by its commissioner decided that the use of
French or German as a medium of instruction and means
of communication should not be continued beyond a child's
second year of school life, that the instruction of children
in English should begin immediately after the entry of
a child upon school life, and that additional inspection to
secure this result should be provided, while government
grants would be confined to schools which had competent
English teachers on their staffs. It is characteristic of the
feeling created by these subjects that the decision of the
Ontario Government was a source of bitter complaint in
Quebec and denounced as a deliberate attack on the French
element of the population.
The example of Quebec undoubtedly proves that the
grant of official encouragement to a foreign language in a
British possession has grave disadvantages from the point
of view of unity. It is undeniable that until the European
War it would have been quite impossible to predict that the
1 Parl Pap., Cd. 6091, pp. 65, 66 ; Bound Table, 1915, pp. 661-9.
492 IMPERIAL UNITY AND THE DOMINIONS
French-Canadians in any substantial numbers would show
themselves eager to take part in the wars of the Empire, and
of course, even now, when they are fighting with and for
France, their response has not been comparable to that of
the British. The bond of language is a strong one for pur-
poses of separation, and it is idle to deny that a very large
proportion of the French in Quebec neither know nor wish
to know any other tongue. Real fellow feeling in other
matters is thus impossible, as is indicated by the fact that
the division between the Irish Catholics and the French
Catholics in Canada is extremely marked. The case is of
course far worse with the masses of Galicians, Ruthenians, or
other similar peoples whom the foolish immigration policy
of the Dominion of Canada has allowed to be settled on its
western lands. These communities are often determined
not to be educated : they ignore the ordinary laws of society,
and their presence in Canada will steadily make for the
introduction there of all the evils of the system of the older
civilization in over-crowding, lack of independence of the
workers, and so forth.
In the case of the Union alone is there any prospect, or
indeed possibility, of further addition of territory on an
important scale : that Newfoundland should ultimately
become part of Canada is suggested by geographical con-
ditions, and was foreshadowed in the British North America
Act, 1867. But while the other changes foreseen by that
Act have been fulfilled, and all the continent of North
America so far as it is British is now under the Dominion of
Canada, and the greater part of it assigned by the new
legislation of 1912 * to the existing provinces, leaving to the
Dominion under her direct control only the far north, the
Island of Newfoundland has remained steadily outside the
circle. The temptations to enter the Union would of course
have to be mainly financial, and the difficulty is that the
Government of the Dominion has not yet been able to see its
1 Parl. Pap., Cd. 6863, pp. 17, 18; Acts, cc. 40 (Ontario) ; 45 (Quebec);
32 (Manitoba). The Dominion reserves full control of Indian affairs and
lands, and in Manitoba of public lands also.
CANADA, COMMONWEALTH, AND UNION 493
way to give terms which could be accepted by the Colony.
Moreover, prior to 1904 the existence of the French rights in
Newfoundland, and the controversies which they excited,
led to the reluctance of the Dominion to take upon itself
the troubles which would result from having those thorny
questions on hand. Nor, until 1910, was the difficulty with
the United States disposed of more or less completely.
But, while intrigues for the bringing of the Colony into the
fold are a regular amusement of the statesmen of the Do-
minion and the Colony alike, there is no immediate prospect
that the fishermen and the merchants will be convinced that
a change of political status would benefit them financially,
unless the Dominion is prepared to pay dearly for the
privilege of including the Colony. The power of appointing
Senators from the Newfoundland Ministry of the day and
other means of providing remuneration for these ministers
might easily result in the readiness of a Ministry to see the
change accomplished. Indeed ministers have always been
accused, probably with a good deal of truth, of having the
possibility of federation before them at all times, but the
terms of the Dominion must be improved a good deal before
they can be accepted, or in the alternative the Colony must
suffer such a set-back as will induce the people to accept
much less than they want. The change, however, if and when
accomplished, would be of minor consequence from the point
of view of the Empire. It is inconceivable that connexion
with the Dominion would make the Newfoundlanders less
loyal, though it is true that they would lose in status, and
also perhaps in other ways not material, from ceasing to be
autonomous, and becoming subject to the wirepullers at
Ottawa. Moreover, they are far from Ottawa, and it is
quite possible that development would merely be retarded
by union, for the eyes of Canada are set, and will for some
time be set, on the west and on the prairie provinces.
The further question arises in the case of Australia,
whether New Zealand and the Commonwealth might not be
united to form one powerful Dominion of Australasia. The
proposal, however, seems one which can hardly be accepted
494 IMPERIAL UNITY AND THE DOMINIONS
by New Zealand without great loss in many respects. The
Dominion is large enough in area and in potential population
to become a powerful country if not a great one, and her
interest and wants are in many small ways very different
from those of the Commonwealth. The Central Government
of the united dominion must lie in Australia, and the power
of such a central government effectively to exercise authority
over New Zealand without much friction seems very doubtful.
But the failure of every effort from 1890 onwards to solve
the problem of including the Dominion in the federation is
a distinct proof of the difficulty of carrying federation effec-
tively beyond certain limits.
In the case of the Union the possibility of attaining
Rhodesia is one of the aims of the Union Government, and
Rhodesia was allowed to participate in the constitution-
making of the Union. But Rhodesia has shown itself
unwilling to merge its future in that of the Union. The
position of the country is greatly complicated by the presence
of the governing and other powers of the British South Africa
Company, by which, under the terms of its charter of
October 29, 1889, the administration of the country is
carried on, subject to certain changes made by subsequent
legislation. From 1903 onwards there has been the growing
desire of the settlers to secure the freer development of the
country apart from the management of the Company, which,
having commercial as well as administrative functions to
fulfil, is regarded by them as incompetent to manage the
two successfully. The Company, on their part, while pre-
pared to concede in principle that the administrative power
of the Company should be brought to an end, have contended
that their rights in the lands of the country and their claims
to be repaid thereby if not otherwise, for all their expendi-
ture on the conquest and administration of the country, in
so far as these sums have not been repaid by administrative
revenue, should be secured to them : the nature of the sums
can be judged from the proposals in 1903-4, which would
have given the settlers control in exchange for the acceptance
of liability for a debt of about £7,500,000, of which only a
CANADA, COMMONWEALTH, AND UNION 495
third would be represented by sums to be spent on develop-
ment, the rest being dead-weight debt. This proposal could
not be accepted as the country could not bear such a burden,
and the Imperial Government refused to assist, and in 1905
vetoed the proposal to raise a loan of £250,000 for advances
to farmers on the security of the administrative revenue.
In 1907 the Company adopted the policy of making a dis-
tinction between the commercial and administrative aspect
of their business transactions, but without any approval
from the Imperial Government, while there was steadily
growing in the country a determination to question the title
of the Company to the control of the land, on the ground that
the control of the land was vested in the Company merely
as an administrative body, and that it had no proprietary
right to the land, so that, if it were deprived of its adminis-
trative powers, the proprietary claims it asserted would dis-
appear, and the new administration would have complete
control over all land not lawfully alienated or leased. The
Company in its turn relied on its conquest of the land plus
its concessions from Lobengula, and its occupation to give
it a proprietary title. In 1908 and 1909 efforts were made
to induce the Imperial Government to settle this dispute,
but the Secretary of State declined to intervene, seeing that
an effective settlement was only possible if both parties
agreed, and the Company declined to agree. But the Im-
perial Government insisted in 1911 l on the issue of an Order
in Council to carry out the promise of a wider representation
of the people of the country by the abolition of the nominee
majority in the part elective Legislative Council set up by the
Order in Council of 1903, and by the new Order the Legisla-
ture was made to consist of five nominee to seven elective
members in place of equal numbers of each. In 1912
a movement of some strength apparently developed itself
in favour of ultimate union with the Union, but in 191 32 the
Company made a new statement of policy modifying in the
1 Parl Pap., Cd. 7264.
2 Ibid., Cd. 7645, pp. 31-7. For the proposed expenditure for 1913-14
see Cd. 7708.
496 IMPERIAL UNITY AND THE DOMINIONS
direction of greater freedom their position of 1907. They
agreed to increase the Legislature to eight nominee with
twelve elective members, to carry out more completely the
separation of administrative and commercial revenue, by
taking care that the commercial department paid its obliga-
tions to the administration in cash and on the same terms as
the ordinary public, to transfer all administrative buildings
to the administration without extra cost, and to surrender
some additional sources of revenue to the administration.
They announced their intention to favour responsible govern-
ment if that were desired, in which case no claim would be
made for the initial expenditure of the Company on the
acquisition and defence of the country, which the Company
would put down as the cost of its winning control over its
assets in land and mines. They moreover expressed readi-
ness to arrange for loans for capital expenditure desired for
administrative purposes, and agreed that after October 29,
1914, they would not, if the charter came to an end in respect
of their administrative privileges, claim under the terms of
clause 33 of the charter the value of public works carried out
since October 29, 1914, if on the whole period the adminis-
tration had paid its way and, if it had not, the amount
claimed would only be the actual value or the deficit in the
total cost of administration as compared with administra-
tive revenue, whichever should be the less. Partly as a
result of this, and partly as the result of the growing feeling
of distrust of the Union in consequence of Mr. Hertzog's
anti-British propaganda, the electors at the elections for the
reformed Council to which five new elected members were
to be added, refused to return any candidate suspected of
leanings towards the merger of Rhodesia in the Union, and
the Legislative Council thereupon asked1 that the existing
form of company government should be continued for the
time being, a proposal rendered necessary by the fact that
the Crown under the charter had the power to alter the
administrative position at twenty-five years from its grant,
and thereafter at ten-year intervals, but that there should be
1 Par/. Pap., Cd. 7645, pp. 10, 11.
CANADA, COMMONWEALTH, AND UNION 497
made arrangements to allow of the introduction of respon-
sible government when the country was fit for such govern-
ment. It was further asked that the audit of the accounts
of the Company should be placed in the hands of an auditor
who should not be an ordinary servant of the Company,
that loans on the security of the Company's administrative
revenue should be allowed, and that any member of the
Council should be permitted to propose appropriations after
provision had been made for civil service, police, and the
maintenance of law and order. The Imperial Government,
in consultation with the Company, arranged that there should
be issued a supplemental charter,1 providing that, if the
Legislature should resolve by a majority that responsible
government should be introduced, this could be done if the
Imperial Government thought fit, but that otherwise the
charter should not be changed as regards the general prin-
ciples of administration. They also agreed to the appoint-
ment of the Auditor or Auditor- General being made, like
those of the judges, one to which the approval of the Secre-
tary of State was necessary, the same approval being requisite
for dismissal. The proposal to allow any member of the
Legislature to propose appropriation was rejected, on the
ground that the responsibility for expenditure must still rest
with the Company, which under the Order in Council of 1911
retains the control of all initiative of expenditure and taxa-
tion, and without whose consent no legislation affecting
their rights can be passed. But the Imperial Government
approved of a modified system of raising loans : it rejected
the simple expedient of the issue of bonds charged on the
administrative revenue, proposed by the Company, but
agreed that the Company should advance monies to the
administration for the purpose of carrying out works which
could not be defrayed from ordinary revenues, the sums to
be repaid from such reveruie as rapidly as possible, say in
twelve years, on the understanding that, if the administra-
tion of the Company terminated, the Company would have
no right to the repayment of the sums outstanding, but would
1 Parl. Pap., Cd. 7970. The charter is dated March 13, 1915.
1874
498 IMPERIAL UNITY AND THE DOMINIONS
have a right to the cost of the works executed, in so far as
they had not been defrayed from the balance, if any, between
administrative revenue and expenditure, an ingenious device
for securing due economy by both the administration and
the Company.
The land question, which had been of course keenly
debated for the whole period, was for the moment disposed
of by being referred to the Judicial Committee of the Privy
Council for its consideration and determination under the
provisions of the Judicial Committee Act, 1833. The Com-
mittee decided to hear the various interests involved, includ-
ing that of the natives who might have a claim to the land,
by counsel, and the Company undertook to place their case
on record for discussion.
2. THE POSSIBILITY OF IMPERIAL FEDERATION.
The summary of the chief points in the federations already
existing in the Empire will bear out the view that the
creation of federal government is not merely a matter of
great difficulty, but that the working of such a government
adds very considerably to the complication of existence, and
from one point of view retards progress by absorbing in the
legal difficulties which arise much intellect and much effort.
In Canada, for instance, there is considerable need for legis-
lation as to the pollution of waters of various kinds, but the
carrying of such legislation is hampered by the admitted fact
that it is very doubtful if the legislative authority to pass
such legislation is vested in the Dominion Parliament at all,
and the theory that changes of law can well be effected by
the parallel action of a number of legislatures is one which
would not be entertained very readily by any person who
has observed the great difficulty experienced in the United
States, or in any other federation, in securing any real
similarity of legislation by different legislatures. There is
the highest authority for saying that the provinces of Canada
consistently differ in detail in their legislation on every
conceivable topic, and these divergencies are very trouble-
POSSIBILITY OF IMPERIAL FEDERATION 499
some in business transactions : each province has its own
ideas as to company law and of insurance, and if the Do-
minion had not been the sole authority in matters of patents,
trade-marks, and copyrights, it would doubtless have its own
laws in respect of these points also. To ask one legislature
to follow the precedent of another and to expect it to do so
faithfully is futile : it is an essential part of human nature
to seek to improve on whatever is put before one, and the
tendency to do so is always felt by legislatures : slight im-
provements are made on the model, involving other changes
and spoiling the uniformity, even if the principles of the
legislation are adopted.
Moreover, there is always present in a federation beside
the constant questions of ultra vires, the hampering of the
Government, and the weakening of the Legislature and the
Executive, the possibility of quite serious disputes between
the federation and its members. These disputes are ren-
dered free from real danger to the Empire when they occur
merely in one area : in the Dominion or the Commonwealth
the mere physical proximity renders the seriousness of dis-
agreement infinitely less than the dangers which would be
incurred in the case of disagreement between members of
a federation which are separated by the sea. It is more
difficult in a single area with facilities for close intercourse
between the members of the several political divisions for
those feelings of hostility to spring up which make a dispute
between the members of federation a real danger to the
federation. The danger to Canada from the attitude of
British Columbia in the seventies lay precisely in the fact
that the Province was not united by railway with the rest
of the Dominion, and that it felt that, if the agreement to
unite it were not carried out, it would cease in fact, and there-
fore should cease in law to be part of what was in effect
a foreign State. Similarly, had the failure of the Common-
wealth to carry out the making of the railway between South
Australia and Western Australia been indefinitely prolonged,
there might have grown up a dangerous feeling of discontent-
ment in the west : even as it is, there is clear trace of a growth
I i 2
600 IMPERIAL UNITY AND THE DOMINIONS
of different national sentiment in the west, and it is well that
the railway will not be long unfinished : the mere needs of
defence are in the long run not more important than the
fact that national unity in the Commonwealth can never be
complete without real possibilities of free intercourse. It
is the same cause which makes the people of Newfoundland
in many respects essentially distinct from those of Canada :
they are not in immediate contact with the Dominion, and
their outlook is not identical with that of the Dominion.
Similarly the great and probably fatal objection to unity
between New Zealand and Australia lies in the fact of the
distance between them which would render the government
of the Dominion by a Federal Government, with its abode
somewhere in Australia, obnoxious.
These are very obvious considerations, and they struck
powerfully home to the members of the movement for Im-
perial federation who, in the period from 1880 on, sought to
secure some measure of Imperial unity by means of federa-
tion. The problem in one aspect was at that time more
promising, in that the Australian colonies were still quite
separate, and it was not therefore a question of dealing with
so strongly formed a national unit as the Commonwealth of
Australia. Moreover, at that time the dependence of the
colonies on the protection of the Mother Country was more
obvious and undeniable : the first assistance of any serious
kind, and then only valuable as a token of sentiment, was
given in the Sudan expeditions of 1884-5 by Canada and
New South Wales, and the policy of naval development had
neither been conceived by the colonies nor favoured by the
Imperial Government. An offer to give a colony a share in
the control of the Empire meant therefore more then than it
would now, when in Australia there is a national Govern-
ment with very wide authority. But the Imperial Govern-
ment in summoning the first Colonial Conference of 1887,
which was an assemblage of notables and not a political body
proper, th3 representation including every part of the
Empire, and not merely representatives of Governments in
power in ths self-governing colonies, as in 1897 and 1902,
POSSIBILITY OF IMPERIAL FEDERATION 501
through the Secretary of State for the Colonies, expressly
ruled out the question of federation as a matter for serious
consideration. In 1891 the efforts of the movement elicited
from Lord Salisbury1 the express assertion that the orga-
nizers should frame a definite scheme, a challenge which they
could not meet, and the movement for the time died away.
Interest in some degree transferred itself to the preparatory
matter of the federation of the Commonwealth, and at the
Conferences of 1897, 1902, and 1907, the idea of federation
was not mooted : indeed, the first two Conferences showed
contentment in the main with the existing arrangements of
the Empire.
It was therefore all the more striking when Sir Joseph
Ward, the Prime Minister of the Dominion of New Zealand,
at the Imperial Conference of 191 12 introduced the subject
of the possibility of the creation of federation for the Empire.
The reception of his proposal was rendered difficult and
unsatisfactory because of a defect for which he must be held
to have been responsible. The resolution which was put
forward by New Zealand for consumption by the Conference
was not the one which he actually submitted, and indeed
differed from it as fundamentally as any two proposals on
one subject could well do. The original proposal was that
there should be an Imperial Council of State with represen-
tatives from all the constituent parts of the Empire, whether
self-governing or not, in theory and in practice advisory to
the Imperial Government on all questions affecting the
interest of the Oversea Dominions. The proposal had
resemblance to the views expressed by Mr. Chamberlain in
1897 and 1902, and was in the main line of development of
Imperial ideals, but that resolution was never discussed at
the Conference, as in place of it Sir Joseph Ward set out
a new plan, one for an Imperial Parliament of Defence, by
which he meant naval defence only, as alone being common
to all parts of the Empire. He proposed that it should
be a genuine Parliament elected in such manner as each
1 Sir C. Tupper, Recollections of Sixty Years, pp. 251, 257.
2 Parl Pap., Cd. 5745.
502 IMPERIAL UNITY AND THE DOMINIONS
Dominion thought fit, as regards the members representing
that Dominion in the Parliament. The basis of represen-
tation was to be one member for 200,000 of population,
which, on the then population of the Dominions and the
mother country, would give the latter 220 members, Canada
37, Australia 25, New Zealand 6, South Africa 7, and New-
foundland 2, or just under 300 members. These would con-
stitute the Lower House, and there would be an Upper House
or Senate, of twelve members, two chosen by each of the
members of the federation to represent them. The execu-
tive power corresponding to the legislative power of the
Parliament would be vested in a body of fifteen, of whom not
more than one should be a Senator. The legislative powers
of the Parliament would extend to naval defence and to
treaties, and questions of war and peace, treaties mainly in
their relation to such naval defence. The Parliament would
have no power to deal with taxation, but it would be entitled
to be provided with funds for the first ten years of its exis-
tence by the Dominions, and the Imperial Parliament would
have a right to decide the amounts to be contributed to the
expenditure to be incurred, on the basis that the Dominions
were to pay per capita for defence purposes only half of what
the people of the United Kingdom paid per capita, but were
to contribute equally on that basis for other purposes. The
mode of payment after the first ten years would be left to
be decided by the Dominions themselves. As a supplement
to the scheme the proposal put forward the suggestion that
the Dominions should raise ten shillings a head for naval
defence, giving a revenue of £6,500,000, sufficient to build
three Dreadnoughts annually, or preferably to pay the
interest on, and provide money to replace the ships purchased
by, a loan to be raised to the amount of £50,000,000, with
which twenty-five Dreadnoughts could be constructed, and
these vessels would be available for the defence of the oversea
Dominions, in effect being a far better mode of protection
than the local fleets contemplated by Australia and Canada,
The scheme he also recommended as being likely to give the
Dominions a real knowledge of, and voice in, Imperial policy,
POSSIBILITY OF IMPERIAL FEDERATION 503
without at the same time taking away the control of that
policy from the United Kingdom.
The criticism of the proposals of Sir J. Ward was as
unsatisfactory as criticism on an unexpected scheme always
is : much of it consisted in verbal points impeding the
progress of the speaker in his effort to explain his scheme,
though in part this was due to his own complete change of
front in advocating a Parliament after proposing a Council.
Moreover, he did not improve his case by his somewhat wild
naval schemes, which he had probably assimilated from
a proposal current in some political and commercial circles,
that a loan of a hundred millions should be raised to purchase
Dreadnoughts, oblivious of the question of providing men
for these ships. His financial calculations were also chal-
lenged by Mr. Fisher, whose criticisms were obviously due
to an imperfect power of calculation which did not recognize
that the revenues proposed to be raised would have easily
sufficed to pay interest on the loan and sinking fund, and
provide for the replacement of the vessels at the end of the
period of fifteen years assumed by the proposer to be the life
of a Dreadnought. But the most irritating feature of the
whole discussion was the fact that the members present did
not seem to recognize that they were being asked to enter
into federation, and that the proposal carried with it certain
consequences. It is perfectly clear that the proposal meant
that the foreign policy of the Empire would be entrusted to
the executive, subject to the control of the new Parliament :
the suggestion that Sir J. Ward meant to give the negotiation
of treaties and so forth to a Parliament was absurd, and still
more absurd the idea that the proposal was that this new
body should leave to the British Government the manage-
ment of treaty negotiations and foreign relations, and step
in to decide if there should be war or peace. The proposal
was clearly intended to create a federation which should, for
the sake of preserving as far as possible intact the autonomy
of the Dominions, be confined to what was essentially
Imperial, the navy and foreign affairs in their connexion
with peace and war : doubtless this carried with it the
504 IMPERIAL UNITY AND THE DOMINIONS
general control of foreign affairs, as it would be impossible
to divorce one side from the other, and also therefore the
diplomatic service. But the scheme went no further, had
it been set out in detail, than to propose a legislature and
executive entrusted with power to deal with naval defence
and foreign relations. It would have been satisfied from the
executive side by placing the Navy and the Admiralty under
the federal executive, and by placing the Foreign Office and
the Diplomatic Service under the same authority. The
consular service might also have been transferred to it, but
that step would hardly have been necessary or even desirable.
When this is realized, it will be seen at once that the
criticism of Mr. Asquith upon the proposal was in the main
an attack on a proposal which had not been put forward.
' It would impair,' he said,1 ' if not altogether destroy the
authority of the Government of the United Kingdom in the
conduct of foreign policy, the conclusion of treaties, the
declaration or the maintenance of peace and the declaration
of war, and indeed, all those relations with foreign powers,
necessarily of the most delicate character, which are now in
the hands of the Imperial Government, subject to its respon-
sibility to the Imperial Parliament. That authority cannot
be shared, and the co-existence side by side with the Cabinet
of the United Kingdom of this proposed body — it does not
matter what name you call it for the moment — clothed with
the functions and the jurisdiction which Sir Joseph Ward
proposed to invest it with, would in our judgement be abso-
lutely fatal to our present system of responsible Government.'
The criticism is of course quite just, but it is a criticism
of an imaginary proposal. The proposal of Sir J. Ward was
intended to destroy the Imperial Parliament : he made that
perfectly clear, for he expressed the view that it really
meant that the Imperial Parliament must be replaced by
a system of local Parliaments in the United Kingdom, beside
which there would be no place for an Imperial Parliament
other than his own proposed creation, the powers of which
1 Parl Pap., Cd. 5745, p. 71. The defence in Round Table, 1915, p. 334
ignores the fact that this was a reply to a proposal of federation.
POSSIBILITY OF IMPERIAL FEDERATION 505
might in time be increased. Similarly the objections
unanimously urged by the representatives of Canada and
Australia with much lack of courtesy, and by that of South
Africa with much courtesy, ignored the aspect of Sir J.
Ward's scheme, which meant that the Imperial Parliament,
as at present constituted, would cease to exist, and a new,
really Imperial body take its place, with powers of a very
limited order. The substitution of the new for the old
Parliament would, in fact, have freed the Dominions from
any control whatever except the control for foreign affairs
and defence at sea, which would be given to the new Parlia-
ment. It would, on the one hand, have federated the
Empire for defence and foreign affairs, but at the same time
it would have freed the Dominions from the, at present,
theoretically complete and in practice not negligible, supre-
macy of the Imperial Parliament. The representative of
Newfoundland, though he differed in theory from Sir J.
Ward, was less remote from him in spirit than he believed,
for he suggested that some representation in the Imperial
Parliament might be desirable, as a matter of interest.
But though the discussion was a bad one, and not really
based on the true nature of the scheme, it is not to be
thought for a moment that the proposal, if better expounded
and less deliberately misunderstood by its critics, would
have stood any better chance of a favourable reception.
The obvious fact was that federation of this sort would
deprive the Imperial Parliament of its present supremacy,
and in 1911 the Imperial Government were not prepared
to limit that supremacy. The Imperial Parliament would
have sunk to be a mere Parliament for the United Kingdom
and the Crown Colonies : it is a sign of the imperfection
of the thinking out of the scheme that it did not indicate
what Parliament was to deal with the parts of the Empire
other than self-governing : clearly, as they did not fall
under the control of the new Parliament, the old Imperial
Parliament, even if there were set up separate Parliaments
for Scotland and Ireland, must have been needed for some
purposes, perhaps for supreme authority over the British
506 IMPERIAL UNITY AND THE DOMINIONS
Islands, and the non-responsibly governed parts of the
Empire.1 But the new Parliament would have been pre-
dominantly a British Parliament, inasmuch as the British
representatives would have outweighed all the others, and
while in the case of foreign affairs the power exercised to
control these matters would have been new, and the
Dominions would have been admitted to a power which
they never possessed before, on the other hand it would
be at the expense of submitting themselves to the will of
the majority in the Imperial Parliament in the matter of
defence expenditure for the Navy and of the control of
naval policy. Now the strategical principle of the founda-
tion of local navies is absurdly wrong, as can be seen on
any consideration of the matter, but that does not alter
the other factors which affect the question, and, while the
obvious advantages of a single Imperial Navy would have
been asserted by the Imperial Parliament,2 the Dominions
would have felt the indignity of being deprived of the right
to have their local navies as they decided to do in 1909.
In short, the essential features necessary to make a federa-
tion acceptable were absent in the discussion of 1911.
The theoretic power of the present Imperial Parliament
does not press hardly enough on the Dominions to make
them resent it seriously, and they enjoy under it a degree
of autonomy, which in a federation they could never have,
while the gain from federation would be very slight, since
the inequality of the several parts of the Empire would
result in the preponderance of the United Kingdom on
such a Parliament to an extent which would make the
appearance of Dominion power illusory. For the appearance
of controlling the policy of the Empire it would be folly,
the Dominions thought, to sacrifice their power over their
own fleets : the Imperial Government for its part felt that
for the sake of acquiring the power of carrying out a naval
1 Hence in the suggestion in the Round Table, 1915, p. 624, the Crown
Colonies would fall under the Federal Parliament.
1 So Sir J. Ward, but not Sir W. Laurier in 1911 or now (Round Table,
1915, p. 433).
POSSIBILITY OF IMPERIAL FEDERATION 507
policy on one basis, it would pay much too dearly in sacrific-
ing its control of Imperial affairs generally and foreign
policy in particular. No Government indeed will willingly
sacrifice anything of its powers but for a very striking good
to be gained, and the position in 1911 presented neither the
Dominions nor the mother country with any such good.
Moreover, it must be admitted that even in foreign
affairs the new arrangement would have tended, while it
appeared to give the Dominions a higher position, to lower
their actual powers. In all cases of commercial treaties
the negotiations would under the new system have had to
be carried on by the executive Government of the Empire,
and in their hands it can hardly be supposed that the same
regard to Dominion wishes would have been paid, as is now
paid by the Imperial Government. For instance, the com-
pact made in 1911 by Canadian ministers with the United
States Government was in all probability an unwise one
in the interest of the Empire,1 and, if constitutionally the
negotiation and the approval of it had rested with an
Imperial Executive, it is idle to suppose that the matter
would not have been subject to careful consideration, in
which the wishes of the representatives of the United
Kingdom must have prevailed. Doubtless such a view
was very present to Sir Wilfrid Laurier, whose visit to the
Imperial Conference had only been arranged with great
difficulty by means of a truce for a short period in his great
fight with the Opposition to carry his proposed fiscal arrange-
ments into effect : doubtless, too, the same consideration
occurred to the Governments of the other Dominions. The
position is yet more complicated when it is remembered
that foreign policy and commercial tariffs are often closely
related. Germany for years imposed disabilities on Canada,
and Canada retaliated, without the relations between
Germany and the United Kingdom being seriously affected :
such a position would hardly be possible if an Imperial
Executive dealing with all the foreign affairs of the Empire
were set up. It is not that separate arrangements for
1 Cf. Canadian Annual Review, 1911, pp. 57 seq.
508 IMPERIAL UNITY AND THE DOMINIONS
different parts of the Empire could not be made as easily
as of old, but that the tendency would be for an Imperial
Executive in the full sense to hold its views superior to any
opinions of the local Governments.
Nevertheless, the rejection of the idea that the Imperial
Government, as now constituted as the Government of the
United Kingdom, can share with any other authority its
responsibility for foreign affairs is a doctrine which, as
pointed out by Sir Robert Borden, in his speech in the
House of Commons of Canada in moving the introduction
of the Naval Aid Bill on December 5, 1912, could have
but one disastrous end, if persisted in when once the Imperial
Government ceased to be able without Dominion assist-
ance effectively to protect the Empire. There are, indeed,
only two alternatives available for the future of the Empire :
either the doctrine that the Imperial Government cannot
share responsibility can be persisted in, which must mean
that the Dominions shall become independent for purposes
of international law of the Imperial Government, as they
cannot remain indefinitely in the humiliating position of
dependencies without share in foreign policy, or in the
alternative some means of associating them in the control
of the Empire must be found, which shall fall short of
federation. That at the present time is out of the question,
in view of the fact that federation would mean to the
Dominions a subjection of their individuality with no real
control conceded in return, while for the United Kingdom
it would mean loss of unquestioned authority for an
inadequate return. It is perfectly true that in one sense
of the word there can be no sharing of responsibility by the
Imperial Government, in so far as the ministers can be
responsible in point of effective practice only to the power
which makes them ministers and unmakes them, the House
of Commons, as representing the people of the United
Kingdom. But this fact in no way prevents them in effect,
if they think fit, sharing in quite a considerable measure
the burden of their responsibility for the defence of the
Empire and the conduct of its foreign policy with states-
POSSIBILITY OF IMPERIAL FEDERATION 509
men from the self-governing Dominions. The people of the
United Kingdom already recognize and will recognize in
increasing measure the fact that the Dominions are vitally
interested in questions of this policy, which has led them
to be involved in a war of the first rank. They will be
prepared for a time to accept a position in which ministers,
while responsible to them alone, can yet plead that their
action must be regarded, not merely from the narrower
British point of view, and can quote the approval of the
Dominions as a part of their justification. In this sense,
prior to federation, it may be possible to secure the Dominions
a larger share in the control of the defence and foreign
policy of the Empire. No such arrangement can be more
than a preliminary stage, either on the one hand to federa-
tion or on the other to independence and perhaps alliance,
nor is it well to be under any misapprehension on so funda-
mental a point as this. But in politics it is necessary to
progress in the way and at the speed which is most practic-
able. The effect of the war may be to cause the desire of
federation to develop in the oversea Dominions : it may
produce the view that in the United Kingdom there should
be a division between those who conduct domestic affairs,
and those who busy themselves with foreign policy. It is
perfectly true that foreign policy has been seriously hampered
by the fact that the Government has never been able to
devote to it the due amount of attention, and that domestic
policies have prevented the people from understanding the
dangers of the attitude of Germany in anything like a full
degree. But it is certain that the divorce of the control of
external affairs from the control of internal affairs is a thing
which will be but slowly accomplished in any case, be it in
the United Kingdom or the Dominions, and it is therefore
necessary not lightly because of theoretical considerations
to maintain that there is no choice between the non-
participation of the Dominions in the control of defence
and foreign policy and the accomplishment of a federation.
This, if it is held to be Mr. Asquith's attitude in 1911, can
hardly have been his attitude in later years.
CHAPTER II
THE INDEPENDENCE OF THE DOMINIONS
THE natural solution for the position of the Dominions,
suggested by the result of the Conference of 1911, is that
each Dominion should proceed to attain complete inde-
pendence as a unit of international law, and that the
Empire should be reconstituted on the basis that on the
one hand should stand the United Kingdom in political
control of the Crown Colonies and of India, and on the
other hand the self-governing Dominions, each as an
independent State. Or at least, if the suggestion seems
rather absurd when put in this wider aspect, the great
self-governing Dominion of Canada should declare its
position to be that of an independent State, leaving it
for Australia, New Zealand, and South Africa to follow
suit either at once or in due course. It is not suggested
that this independence need be separation : the Dominion
might still under its new status remain a kingdom closely
allied with the United Kingdom in sentiment and under
the same monarch, but nevertheless as an independent
unit in international law, and therefore internationally not
responsible for or involved in the blunders of British foreign
policy. The proposal has a faint resemblance to that made
by certain politicians of Victoria in 1870, but it differs
from the lucubration of Sir Gavan Duffy and his friends
in its greater clearness of outline and understanding of
international politics : it is not suggested that the Dominions
should seek to be neutralized, still less that if they were
neutralized they would be at liberty to afford aid to the
mother country with the greater effectiveness arising from
their position as independent States. The Dominions are
to stand on their own feet as nations, prepared to accept
THE INDEPENDENCE OF THE DOMINIONS 511
the duties as well as to avail themselves of the rights of
the status of States of international law.
The case for the independence of the Dominions and
primarily of Canada deserves careful consideration, because
it has been set out in full detail and with many and varied
arguments by a Canadian, Mr. J. S. Ewart,1 who has for
some years conducted to the best of his ability a movement
destined, as he hopes, to carry out his scheme in a complete
form. He recognizes that as a practical policy, and perhaps
also on theoretic grounds, it is not desirable to set out any
scheme which would result in the dissolution of any link
of union between the United Kingdom and the Dominions
and leave the later independent States divorced wholly
from the United Kingdom. This view is clearly sound,
as a matter of political possibility. The idea that the
Dominions might desire and achieve independence, and
that the Imperial Government might well be content that
it should be freed from them, has disappeared into com-
parative oblivion with the growth of the Dominions and
the obvious interest which they display in their connexion
with their native land. Professor Goldwin Smith adhered
to the last to his view that the natural destiny of Canada
was union with the United States, but he lived to see the
Dominion growing more and more self-reliant and less and
less inclined to do anything which might hasten her steps
in a direction which she did not desire. The Labour
Party in the Commonwealth has been accused of lack of
interest in the mother country and of republicanism : these
accusations made at the general election in 1914 were
repudiated by those attacked, and the people of the Common-
wealth showed their disbelief in them by returning the
suspected party to power, where it spent all its exertions
to accomplish its declared desire to afford the Empire all
its possible aid. It would be idle to doubt the attachment
of the people of New Zealand and of Newfoundland to the
mother country : the inhabitants of the Dominion may be
willing to believe with the Chief Justice that they have
1 In The Kingdom of Canada and The Kingdom Papers.
512 IMPERIAL UNITY AND THE DOMINIONS
before them a glorious future, but they do not share his
dislike of the Imperial Government, nor have they taken
very seriously his efforts as judge to assert the sovereign
powers of the legislature of New Zealand : in Newfoundland
the attachment to the United Kingdom is remarkable in
its intensity. In the Union of South Africa, alone in all
the Dominions, can there be seen any trace of a desire for
republican freedom, and the ghastly bad faith which that
desire has involved on its authors, and their share in the
rebellion which they so wrongfully brought about, may be
held to have discredited republican leanings in the Union
for the time being at least.1
This fact, however, of the clear desire on the part of the
Dominions, as shown by their remarkable support of the
United Kingdom in a war which they had no chance of
preventing, imposes a serious burden on the statesman who
wishes to press for the formal transformation of the relations
of the United Kingdom and the Dominions, for it compels
him to show that it would be compatible with the constitu-
tion of the United Kingdom that the Dominions, while
becoming units of international law, should remain under
the same King as the United Kingdom. The fact is not at
all obvious, and the proof requires great care. It rests,2
putting aside the case of the Ionian Islands, which cannot
be taken as a serious parallel to even the smallest of the
Dominions, on the fact that from 1714 to 1837 the Imperial
Crown of the Kingdom of Great Britain and Ireland was
worn by the ruler of Hanover, and that from 1603 to 1707
the union between the two Crowns of Scotland and England
was personal. During that period the sovereignties remained
quite distinct, the countries had separate flags and coinages,
the Parliaments were independent, and imposed various
restrictions on the trade between the countries, and finally
the two Parliaments enacted laws which but for union
1 The return of 27 Nationalists at the election of October 1915 is a sign
that, despite the loyalty of the Union, there ia a republican spirit.
* Ewart, Kingdom Papers, i. 178 seq. Cf. Ward, Great Britain and
Hanover.
THE INDEPENDENCE OF THE DOMINIONS 513
would have resulted in the separation of the thrones on the
death of the reigning Queen. The same procedure was in
force when the Crowns of Hanover and Great Britain were
united : the two Governments were absolutely distinct,
the Hanoverian being purely despotic, the English par-
liamentary ; the flags were distinct, and the terms on which
the King of Great Britain held his throne expressly denied
the obligation of that country to engage in any sort of war
in respect of his other possessions, unless with the consent
of Parliament. It is sometimes forgotten that, so long as
the Hanoverian Crown was united with that of Great
Britain, the royal prerogative of declaring war was fettered
by this express restriction. Moreover, it is certainly the
case that the distinction of the two kingdoms was recog-
nized throughout the period in international law. As
Elector of Hanover, George I took part in the war between
Prussia, Denmark, and Russia on the one side, and Sweden
on the other, and for his assistance in this regard was
given the occupation of certain Swedish territory : the
British Fleet made some demonstrations in the Baltic, but
this was alleged to be due to the need to protect British
merchant vessels, and in point of fact the friendly relations
of the Swedish and British Crowns were never interrupted.
Similarly, the efforts of Peter to obtain subsidies from his
ally, George, were met with the reply that as King of
England he was not at war with Sweden but would perform
his obligations as Elector of Hanover, and the good offices
of England were used as a means of bringing about peace
between Hanover and Sweden. The same distinction was
observed consistently later on : the two kingdoms remained
distinct, and the actions of the Governments of the two
varied from time to time in no small degree. But the
possession of Hanover was never regarded with unmixed
satisfaction by British statesmen, and its loss by the opera-
tion of the Salic law on the accession of Queen Victoria was
regarded by public opinion as an unmixed blessing.
It must, however, be noted before accepting the complete
parallelism which it is suggested might be drawn between
1874 K k
514 IMPERIAL UNITY AND THE DOMINIONS
the case of the Kingdom of Canada and a Kingdom of
Hanover, that the position of the Kingdom of Hanover
was not quite as satisfactory from the point of view of
independence as might be expected from its theoretic
position. In the later days of its existence the power of
Britain so overshadowed that of Hanover, that at the
great European conferences, such as those which decided
the fate of Europe in 1815, the King of Hanover played no
part at all. He was ignored as much as the other numerous
petty princes of German States, even when they remained
sovereign, were ignored by Prussia, Austria, and Great
Britain. The illustration is important because it indicates
that the parallel between the position desired for Canada
as a kingdom and Hanover is not complete. Hanover
could be ignored because its King was a despot, who had
behind him the power of his British Kingdom, but it is
precisely at such conferences as the great Conferences of
The Hague, that the Dominion as a Kingdom would desire
to be represented, and at such conferences history shows
that Hanover was not represented, and did not have a voice.
Similarly, history shows that Great Britain and Hanover
could make treaties with each other, but the terms of these
treaties remind us that Hanover was politically the King,
not an independent power.
This indeed is the precise spot in which the argument
from Hanover breaks hopelessly into pieces. It was well
enough in the early days of international law and responsible
government, when the personal rule of the King was
a matter of importance, to permit the two kingdoms to stand
together as independent units, and to allow the King to
be in one an independent sovereign ruling despotically, and
in the other to be a King falling more and more under the
control of ministers, though it must be remembered that
down to nearly the end of the eighteenth century the
power of the King was enormous, thanks to his control of
patronage. Would it be now possible for the same King
to be sovereign of two Governments which in foreign
affairs acted contrary to the views of each other? It is
THE INDEPENDENCE OF THE DOMINIONS 515
difficult to think that this would be possible : the per-
sonality of the King having vanished as an element in the
function, you are faced with the Governments of the coun-
tries, and that these Governments would be content to
have the same monarch if they were opposed in foreign
policy is most improbable. Moreover, a practical difficulty
of great importance exists : if there were to be two sovereign-
ties, and still more if several, the question must arise
whether the King was to retain power to appoint a Viceroy
or whether the office was to be hereditary in some member
of the royal family. In the former case the dependence of
the one kingdom in status would be obvious, while in the
other the position of the Viceroy would be extremely
difficult, if the policy of the two Governments was to diverge
seriously. The union of Hanover and Great Britain was
rendered easy enough because the first King was fond of
visiting Hanover and leaving his minister to rule England
in his place, while, when he was in England, Hanover was
governed by his directions, but since George III, the United
Kingdom would, it may safely be said, not tolerate that
the sovereign should for any substantial length of time be
absent from the Kingdom.
It may be feared therefore that any real attempt to alter
the constitution of the Empire on the model of Hanover
would involve serious risk of the breaking up of the Empire
into totally independent States, without even a personal
relationship in the case of the monarch.1 Or in the alter-
native an attempt at such a relationship might in the long
run lead to a closer union, as in the case of England and
Scotland. It is nevertheless possible that the status might
be created and last some time, and it is therefore desirable
to consider the arguments adduced in favour of the
position.
1 If the monarch remained the same by English law, all his subjects
would be to one another not aliens ; Isaacson v. Durant, in re Stepney
Election Petition, 17 Q.B.D. 54. No doubt this could be altered by legisla-
tion. On the separation of the Crowns, Hanoverians became aliens, just
as on annexation Boers became British.
K k 2
516 IMPERIAL UNITY AND THE DOMINIONS
In the first place it is asserted 1 that the assumption of
independence by Canada would be an assertion of fact, since
in fact it is independent and since this fact is accepted by
British statesmen. This statement is, however, a serious
over-statement and can hardly have been carefully thought
out. It is true that distinguished British statesmen have
made a number of statements which seem in agreement
with Mr. Ewart's assertion. Mr. Chamberlain, out of office,
has called the Dominions ' states which have voluntarily
accepted one crown and one flag, and which in all else are
absolutely independent of one another ', and has talked of
them as ' sister states equals of the United Kingdom in
everything except population and wealth'. Lord Curzon
has spoken of the Dominion Governments as ' partners as
free as ourselves and with aspirations not less ample and
keen'. Sir H. Campbell-Bannerman at the Colonial Con-
ference of 1907 called freedom and independence the essence
of the Imperial connexion, Mr. Lyttelton talked of practical
equality of status, and Mr. Balfour of formal equality, and
so forth. These assertions may be strengthened by the
words of Mr. Asquith that the United Kingdom and the
Dominions are ' each master in their own household, a prin-
ciple which is the life blood of empire, articulus stantis aut
cadentis imperil '.
It is needless to say that neither these assertions nor the
more guarded conception of Sir F. Pollock, that the Domin-
ions are ' separate kingdoms having the same king as the
parent group, but choosing to abrogate that part of their
full autonomy which relates to foreign affairs ', have any
close relation to facts. Despite Mr. Asquith's words, the
Conference over which he presided declined to allow New
Zealand to pass into law her Bill to suppress the use of
lascar crews in her trade, or to add to the powers of Canada,
or Australia or South Africa to deal with merchant shipping,
and the Commonwealth Government had to concede the
position as to its legislative power asserted by the Imperial
1 Ewart, Kingdom Papers, ii. 203, 204. It is useless to cite these flowers
of rhetoric as serious argument.
THE INDEPENDENCE OF THE DOMINIONS 517
Government and advise the Governor- General to reserve
the Navigation Bill on the pain of finding it waste paper,
when it was challenged in the courts, from which they
could not prevent an appeal lying to the Imperial Privy
Council, without obtaining the sanction of the Imperial
Government. In 1915 and 1916 Canada had to come to
the Imperial Parliament in order to secure the amendment
of its constitution in matters of great moment. Granted
that the Imperial control is exercised with consideration and
restraint, can it be pretended that the Dominions are
independent nations, when the Imperial Government can
in 1914 suggest to the Union of South Africa that in its
Indemnity Bill it should avoid seeming to claim the power
to legalize the continuation of martial law under statute ?
Or are independent nations subject to have an Act of 1819
invoked in 1907 to override their duly enacted laws because
their views of policy do not suit those of the Imperial
Government ? That in many of these matters more liberty
should be accorded to the Dominions is perfectly proper
to argue, as has been seen above, but the fact of indepen-
dence is far from being yet attained.
The matter is still more striking when the question of
treaties is raised. Mr. Ewart claims that Canada has made
her own treaties, but the claim cannot be made out for
a moment. Canada has concluded several agreements,
but internationally they are waste paper, and neither the
Dominion Government which concluded them nor any
foreign power thought otherwise. The essence of a treaty
is that it is definite in duration, or, if indefinite, that it is
permanent. The agreements made by Canada with Germany
and Italy were agreements of no defined duration, which
merely resulted in action by both parties in the way of
legislation, while that with the United States ended in
a refusal of the Canadian Parliament to legislate. Had it
been a treaty it would have imposed an obligation to
secure legislation : as it was, it resulted merely in an agree-
ment between statesmen to try to obtain concurrent
legislation in the two countries. The department of external
518 IMPERIAL UNITY AND THE DOMINIONS
affairs of Canada has no power to negotiate with any foreign
country whatever, and the negotiators of the agreement
of 1911 went formally to the British ambassador in order
to be placed in touch with the United States Government.
The negotiations with the German and Italian consuls
imposed no obligation on either side : the Government
agreed to ask the Governor-General to sign an Order in
Council bringing to an end the surtax on German goods if
the German Government would also cease imposing special
taxation on Canadian goods, but it was expressly declared
that the arrangement was merely temporary, with a view to
a treaty being negotiated, and similarly in the case of Italy.
Mr. Ewart, however, lays stress on the fact that Article 10
of the Boundary Waters Treaty1 with the United States
provides that ' any question or matters of difference arising
between the high contracting parties involving the rights,
obligations, or interests of the United States or of the
Dominion of Canada either in relation to each other or
to their respective inhabitants may be referred for decision
to the International Joint Commission by the consent of
the two parties, it being understood that on the part of
the United States any such action will be by and with the
advice of the Senate, and on the part of His Majesty's
Government, with the consent of the Governor-General in
Council'. This agreement is relied upon by Mr. Ewart as
showing that the power to discuss any subject with the
United States has been formally given to Canada in place
of procedure through the Governor-General, the Colonial
Office, the Foreign Office, and the British ambassador
before reaching the United States Government. The idea
is, of course, absurd : the reference is expressly stated in
the treaty to be one made by the high 'contracting parties,
i.e. the Imperial Government, or strictly the King on the
advice of his Imperial ministers ; in respect of Canada
being vitally interested, the King will act on the advice of
his ministers with the consent of the Canadian Government,
1 Cf. Round Table, 1915, pp. 851-5. The omission there to cite the end
of the clause may be misleading.
THE INDEPENDENCE OF THE DOMINIONS 519
if he thinks fit to agree with their advice. The point of
the words is obvious : it is to ensure that the reference of
any subject to the Commission is made with the consent
of Canada just as, in the arbitration and the pecuniary
claims treaties, the assent of the Dominions in cases where
they are specially interested is set off against the right of
the Government of the United States to obtain the assent
of the Senate. In such a case the procedure has neces-
sarily to be most formal, and the assent of the Imperial
Government must be expressly obtained. But in normal
cases minor matters between Canada and the United States
are, and have been for many years, disposed of by direct
communication between the Governor-General of the
Dominion and the British ambassador at Washington,
while the Imperial Government is informed of anything
of importance by one or both of these officers, and so can
intervene.
The second reason adduced by Mr. Ewart is that in
defence matters the declaration of independence would be
of the greatest advantage, since it would remove Canada
from the danger of being involved in British wars, while
it would be wholly unwise to lean upon British assistance
if there should arise need for it : nay nothing in British
history gives any assurance that the only use of an emer-
gency made by the British Government would not be to
cement her friendship with a foreign state at the expense
of Canada. On the other hand, it is intolerable that, while
Great Britain can rely on Japan in certain circumstances
or on France, she could not rely in any event on active
aid from Canada. In the case of independence there would
have to be a definite arrangement, which would be better
for both.
Now the position of Canada in regard to war obligations
is undoubtedly curious, since she can be involved in war
without her consent, but need not fight if she does not wish
to so so. It is, however, obvious that another way of
avoiding the anomaly presents itself : Canada might
acquire a voice in deciding questions of war. The lack
520 IMPERIAL UNITY AND THE DOMINIONS
of obligation on Canada to fight for the Empire is certain,
the treaty of alliance with Japan imposes an obligation
by British constitutional law on the United Kingdom
alone to succour Japan in the events contemplated, but the
disadvantage is one which accrues to the United Kingdom,
and hardly a reason for insisting on Canadian independence
in itself. But the assertion that Canada cannot rely on
British support in any difficulty must be met as being both
counter to theory and to fact. The theory is undoubted :
apart from the earlier admissions of statesmen made to
the British House of Commons in 1861, it was made clear
in the negotiations regarding Canadian defence from 1864
onwards that the obligation to afford Canada every pro-
tection was in the fullest degree recognized by the Imperial
Government, and the same thing was repeatedly asserted
at later times as at the Colonial Conferences of 1902 and
1907, and in Parliament by the First Lord of the Admiralty
in 1914. The constitutional doctrine still holds good down
to the present time that the obligation of defence in the
case of the Imperial Government is absolute.
The real question therefore arises whether in point of
view of history the defence has failed. It is needless to
say that the errors of 1783 and of 1814 have nothing to do
with Canadian self-government : the treaty of 1842 may be
considered as having been concluded after that system
had set in, and in that regard recent research has shown
that the treaty was an excellent piece of diplomacy for the
United Kingdom, making good in no small degree earlier
errors. The Reciprocity Treaty of 1854, negotiated by
Lord Elgin, was a splendid bargain for Canada, and the
United States were very glad in 1866 to be rid of it. Nor
is there the slightest doubt that the Treaty of Washington
of 1871 was an excellent one for the Dominion : the United
States Government terminated it with much pleasure in
1885, and when a new treaty embodying some of its pro-
visions was negotiated in 1888, the United States Govern-
ment could not obtain its ratification.1
1 Sir C. Tapper, Recollections of Sixty Years, pp. 371, 391.
THE INDEPENDENCE OF THE DOMINIONS 521
The accusation1 is, however, made that the case of Canada
in the matter of the control of the bays on the coast of the
Dominion against American fishermen was seriously injured
by the British policy of concession. The first charge is
that the Bay of Fundy was conceded in 1845, but the
sufficient answer is that the Government of Nova Scotia
was prepared to agree, and did so, and the objections of
that Government to the opening of other bays were respected.
Secondly, it is objected that in 1866 the British Government
insisted on the reduction of the Canadian claim to exclude
United States fishermen to the case of bays with mouths
not exceeding ten miles in width, the three mile line being
drawn from a line between the headlands at the point
where the bay reached that width. The rule, however, then
laid down and accepted by Canada was based on the fact
that the United States Government denied and had a right
to deny, if they thought fit, the British claim to bays
in toto, and therefore the British Government were in the
position that they must either insist on making good their
position at the risk of war or must adopt a compromise
which they could be certain of carrying with an arbitral
tribunal if asked to arbitrate. The third charge, the opening
of all the bays from 1870 onwards by a system of licences
or by treaty, was a policy in which Canada thoroughly
concurred, and the reason for her concurrence can be seen
from the proceedings of 1887, when she tried to enforce
exclusion of American fishermen by the policy of forbidding
them to purchase bait in Canadian waters. The United
States Congress passed a non-intercourse Act, and though
Mr. Ewart considers that this Act was a mere ' bluff ', it
is sufficient to say that Sir C. Tupper, who was the joint
negotiator with Mr. Chamberlain of the treaty of 1888,
regarded the measure as a very serious menace to the
position of Canada, and doubtless his view, based on his
knowledge, as minister, of the whole position, must be held
to have been correct. It is fair indeed to record in favour
of Canada that, during the whole period of the fishery
t, Kingdom Papers, ii. 113-46.
522 IMPERIAL UNITY AND THE DOMINIONS
negotiations, she realized that the position was complicated,
and that the differences of opinion between her and the
Imperial Government as to the degree in which the rights of
the British Crown should be enforced turned in the main
on details. Moreover, it is undeniable that the British
case at The Hague in 1910 was fought with an excellent
persistence, and that the British Government gave valuable
assistance through the Attorney-General. Mr. Ewart com-
plains that it had been expected that Canada and New-
foundland would be allowed the complete control of their
own case, but the assistance of the British Government
was appreciated and valued by the Dominion and the
Newfoundland Governments, and took place with their full
concurrence, apart from the fact that in the case of a treaty
the intervention of the Imperial Government was both
constitutional and necessary.
Another charge 1 against the United Kingdom is that the
interests of Canada in the Behring Sea case were neglected
by the Imperial Government, and in special by Lord Salis-
bury, who spent his time in giving away concessions to
the United States. The accusation is, however, hardly
borne out by the facts : the United States Government
did desist from seizures in Behring Sea after asserting its
full right to make them,2 and it is idle to presume that it
did so out of any other consideration than that it felt that
it could not go to war with the United Kingdom on the
question at issue : it is not to be supposed that the United
States feared Canada. The fact that the ultimate result
of the negotiations was an arrangement which restricted
the rights of Canadians to take seals on the open sea was
due to the obvious consideration which every scientific
man admitted, that the process of killing seals on the open
seas was not merely barbarous but very wasteful, and in
1911 Canada herself fully agreed to a treaty, which included
Japan and Russia, and set up the principle that all pelagic
sealing was a nuisance, and should be put down, com-
pensation, on the other hand, being made to the pelagic
1 Kingdom Papers, ii. 59-112. * Above, p; 17.
THE INDEPENDENCE OF THE DOMINIONS 523
sealers for being shut off from their occupation. The
Canadian Government accepted the seal fishery arrange-
ments, for it recognized that the claim of the sealers to
exercise their occupation was one which was undeniable,
but which, unless carefully regulated, would have resulted
in the rapid destruction of the seal herds, and the end of
the sealers' occupation, and their reward was the wise
treaty by which the seals are protected for the most part,
and the Dominion compensated for giving up the right
of its subjects to engage in an undesirable trade.1
Far more serious is the complaint made by Mr. Ewart2
of the conduct of the Alaska boundary arbitration with the
United States of America. It is difficult, if not impossible,
to condone the folly which caused the British Government
to insist that there should be a British arbitrator on a tribunal
which was to deal with a question purely Canadian, and to
keep him there when it was learned that the impartial
jurists of repute stipulated for by the treaty had been chosen
from gentlemen who had declared themselves irrevocably
opposed to the British claims, though their mistake in this
regard was shared by Canada, who adhered to the original
choice of arbitrators. The choice of Lord Alverstone was
singularly unfortunate, as he belonged to a type of man,
good and clever enough, no doubt, but completely at the
mercy in point of tactics of his American colleagues, and
he was, moreover, determined to have the question solved.
In the result he produced a settlement in flat defiance of
his Canadian colleagues which could only be called ludicrous,
as it contravened every principle of common sense and
geography in its location of the initial part of the boundary
line, spoiling the frontier, and making it indefensible from
a strategic point of view. The worst of the matter was
that it was quite clear that he had yielded on this point
merely to secure a settlement. His concession of the other
points was perfectly legitimate as a judicial finding, even
if it may seem to some that he misconceived the weight of
1 Parl. Pap., Cd. 5971 ; 6091, pp. 12, 13.
2 Kingdom Papers, ii. 108.
524 IMPERIAL UNITY AND THE DOMINIONS
the argument, but his yielding of the question of the boundary
among the islands could not be defended. His conduct
was bitterly resented for years in the Dominion, and, had
it not been that the importance of Alaska has diminished
considerably of late, the injury done by his errors and
complaisance to the relations of the Dominions and the
United Kingdom might have been incalculable. For-
tunately, the Alaska episode is isolated, and probably on
it alone has been based the prevalent idea of the British
Government as sacrificing the Colonies cheerfully for the
sake of popularity.
A further objection to connexion with the United King-
dom is based by Mr. Ewart on the ground that in the Hague
arbitration the British case had to meet the fact that the
headland doctrine had not been insisted upon by the British
Government elsewhere, but that that Government had
endeavoured in Europe to restrict it as closely as possible.
This accusation, however, seems wholly groundless : the
British case rested throughout on the definite fact that the
treaty of 1818 dealt with the bays of North America as being
closed waters, the three mile limit of exclusion being drawn
from the coasts and the bays, not from the coasts of the bays.
To this contention the United States Government proved to
have no adequate reply of any kind, and the terms of the
treaty made the British practice elsewhere irrelevant. Nor
does it seem to have weighed with any of the arbitrators,
who paid most stress to the terms of the Treaty of Wash-
ington of 1888, which never came into force, but which made
practicable suggestions for the decision of the bay question,
suggestions depending on the opinion of the Canadian
negotiator, Sir Charles Tupper, who defended his views on
these points with great vigour and success in the Dominion
House of Commons, in moving the approval of the treaty.
In truth, the complaints made by Mr. Ewart seem to point
to failure to realize the essential features of foreign negotia-
tions, namely that the British view of what is right is not
necessarily the only view, and that inter se great powers
cannot simply issue orders. The concessions and half
THE INDEPENDENCE OF THE DOMINIONS 525
measures of the British Government he constantly repre-
sents as grievous failures, and contrasts them with the strong
words of Canada, but Canada had between it and the United
States the British buffer, and the real question to be put
is rather what attitude would Canada have been able to
adopt vis-a-vis the United States, had the Imperial Govern-
ment not been at hand to bear the brunt. Unless per
impossibile it can be said that Canada would have done better
for herself by herself, it is idle to hold that Canada has
suffered from British protection. Nor in quite recent years
would Canada deny the value of the aid given by Mr. Bryce
as ambassador, in negotiating for her one treaty after
another of the highest value and importance.
In the third place, it is argued that by becoming an
independent State Canada would be able to take part in
international Conferences, such as that of The Hague and the
London Conference, and be able to give her opinion contrary
to the British view, in favour of the immunity of merchant
ships from capture at sea.1 If the delegates of Canada
would have done anything so excessively foolish after having
the opportunity to hear the views of British Admiralty
experts, it may well be doubted. But, if they had, they
would certainly, as theory before and practice in the present
war shows, have been entirely wrong. But the demand
that Canada should be allowed to take part in these Con-
ferences is in itself entirely right, and such participation
would be of the greatest aid to educate Canada in the nature
of foreign politics, a fact on which Mr. Ewart justly lays
great stress. But it is premature to suggest that Canada
cannot be represented without becoming independent : it
is true that the Imperial Conference 2 of 1911 merely went so
far as to assure Canada and the other Dominions the right
to take part in the preparation of instructions to the dele-
gates to the Conferences in future and the circulation
among the Dominions of treaties affecting them before
1 Ewart, Kingdom Papers, ii. 243-53. This paper was dated June 1914 ;
August sufficed to show its complete erroneousness.
2 Parl. Pap., Cd. 5745, pp. 15, 130-2.
526 IMPERIAL UNITY AND THE DOMINIONS
signature. But the restricted nature of the proposals was
merely due to the fact that the Dominions did not ask for
any more, and it is an established maxim of governments to
concede so much as is asked for and no more. There appears
to be no reason whatever why the right to take part in these
Conferences by plenipotentiaries should not be accorded to
Canada, and yet Canada might remain part of the Empire,
her plenipotentiaries receiving their full powers under the
great seal of the United Kingdom on the responsibility of
Imperial ministers. The plan has been adopted for a con-
ference of quasi-political character, that on wireless tele-
graphy, and the precedent might well be followed in a
future case.
In the fourth place, it is contended by Mr. Ewart that the
change would make for clear thinking, and that confusion
results from the fact that Canada to-day is held to be part
of the Empire, while in fact it is not part at all. The ques-
tion here seems to be begged : there is no conceivable reason
why there should not be clear thinking as to the present
relations of the Empire, and the objection to the use of
' empire ' of the British Empire, though it has the authority
of Lord Milner, is a singular example of logical fallacy.
Empire, it is argued, on no conceivable ground, means that
part of the Empire is subject to the United Kingdom. But
in truth, empire merely means a sovereignty, and says
nothing about the relation of the parts : an empire com-
posed of self-governing communities is not in the slightest
degree anomalous : obvious instances are the Empire of
Austria and the Empire of Germany, or the former Empires
of Brazil or Mexico. The Empire of India is not given that
title because1 it is subject to the United Kingdom, but
because it is a sovereignty in itself. Nor in truth is there
any other term by which the congeries of communities which
make up the dominions of the King can well be called, and
the collective name ' empire ' means merely that the whole,
for purposes of international law, consists of one single
sovereignty.
1 Plainly this is Lord Milner's view, Standard of Empire, May 23, 1908.
THE INDEPENDENCE OF THE DOMINIONS 527
A more serious consideration is the fifth, that the change
of relationship would relieve the Imperial Government of
difficulties arising from the anomaly that, though part of
the Empire, Canada does not submit to allow to enter her
territories any British subjects save such as she chooses.
It is pointed out that it is difficult to understand, if Canada
is part of the Empire, that she should refuse entrance not
merely to Hindus but also to Englishmen, if they seem to
fall short of her exacting standards of late years. It is
difficult for India to understand that a self-governing
Dominion cannot be coerced, when they know that their
Government at home is manifestly subject to very close
control by the Imperial Government. Nor is there any
doubt that there is force in this argument : if Canada were
an independent power, then on the one hand the position of
the Imperial Government vis-a-vis India would be as simple
as it is in the case of the United States, and on the other
hand, the Imperial Government could deal with Canada
more frankly and freely when it had over it no legal au-
thority, but merely the considerations of courtesy and
international law.
The position of India with regard to the self-governing
Dominions is indeed one of the greatest difficulty and com-
plication, nor can any solution immediately be expected.
It is difficult for India to appreciate the position of the self-
governing Dominions : it is true that in practice the self-
governing Dominion of the Union of South Africa treats
British-Indians worse than any foreign possession, and that
they were before the European War less harassed in German
possessions in Africa than in Natal, to the prosperity of
which they have contributed so greatly. Nor is it unnatural
that, when an Indian cannot set foot in Australia without
being exposed to insolence from petty officials, it should be
asked why Australians should be entitled to compete in the
India Civil Service examination, and be appointed to posts
in India. But to recognize the difficulty of the position and
to despair of a solution are very different things, nor is it
worth while to untie the bonds of empire because Canada
528 IMPERIAL UNITY AND THE DOMINIONS
prefers Galicians to British-Indians, and ejects British sub-
jects who fail to establish themselves within three years,
acting sometimes with great unfairness and injustice. The
assistance rendered to the Empire by the Indian1 forces in the
European War must have its effect in breaking down the
worst of the prejudices prevailing among the colonial forces :
it cannot be without a lesson to the more intelligent of our
fellow subjects in the Empire, that, while India was able to
send men to the front in France at the time of greatest need,
the Dominion in which Indians have been treated worst not
merely was powerless to send aid, but was in the throes of
a dangerous rebellion.
Finally, Mr. Ewart contends, the status of colony is
one which is unworthy of the self-respect of the Dominion.
' The colonial status ', says Professor Leacock, ' is a worn-
out, bygone thing. The sense and feeling of it has become
harmful to us. It limits the ideas and circumscribes the
patriotism of our people. It impairs the mental vigour and
narrows the outlook of those who are reared and educated
in our midst.' Or, as Dr. Parkin says, ' If the greater British
colonies are permanently content with their present political
status, they are unworthy of the source from which they
sprang.' All this must at once be admitted : 2 if the
Dominions were to be content to entrust their foreign policy
to the Mother Country, and to lean on that country for
defence perpetually, they would show a failure of vigour
which would be deplorable, but the supposition that inde-
pendence is the only way to solve the problem is not correct
nor reasonable. The process of development of the Do-
minions has been slow but sure : they have grown from
strength to strength and have attained more and more the
stature of nationality : they are not now colonies, save from
the point of view of formal law, and the use of the word
' colonial ' is due only to the fact that the substitute ' Do-
minion ' is difficult to adapt for all adjectival purposes.
1 So also as regards Japan ; cf. Round Table, 1915, p. 493, as to New
Zealand feeling.
8 Cf. Round Tabk, 1915, p. 624.
THE INDEPENDENCE OF THE DOMINIONS 529
But that their emergence into national life should be by way
of independence, perhaps followed by a closer union, is rather
an unreasonable theory, and those who have expressed the
view, that the development of national status is a necessary
preliminary to closer union, did not as a rule mean that the
Dominions should first become independent : they meant
only that the fullest development of autonomy consistent
with the unity of the Empire is a necessary phase of the
development of the Dominions. This would be fully ad-
mitted by Sir Robert Borden, but he has enunciated the
principle that it now lies to extend the nationality of the
Dominions, not by excluding them from British nationality,1
but by giving the Dominion a just share in the control of
foreign policy in return for their assumption of a just share
in the burden of defence.
There can indeed be no doubt that the two things are
inseparable. The acute mind of Sir Wilfrid Laurier 2 has
always seen that the two go together : if advice is given and
acted on by the Imperial Government, the Dominions, he
pointed out at the Imperial Conference of 1911, are morally
bound to follow up that advice by assistance in war. In
this Sir Wilfrid sees more clearly than Mr. Ewart, who con-
siders that Canada might properly have pressed the United
Kingdom to adopt the suicidal policy of exempting merchant
vessels from capture at sea in time of war, without accepting
any responsibility for this advice. That position is impos-
sible if advice is meant to be considered seriously, and
a great Dominion should not offer platonic remarks on vital
issues of the conduct of war.
1 The ideal of M. Bourassa (Que devons-nous a VAngleterre ? Montreal,
1915).
2 Part. Pap., Cd. 5745, p. 117 ; Round Table, 1915, p 431.
1874
CHAPTER III
IMPERIAL PARTNERSHIP
THE chief claim which the solution of the independence of
the Dominions as ending the complications of the present
relations of the Empire can make is that it would be simple.
It would be effected by nothing more than a treaty and an
Imperial Act ratifying the treaty. With this there would
fall to the ground the marks which formally show the position
of a Dominion as a dependency, the selection of the Governor
on the advice of Imperial Ministers, the power to withhold
assent to Acts of Parliament or to disallow such Acts if
assented to by the Governor, the power to pass Imperial
legislation applicable to the Dominion, and the subjection of
the Dominion Courts to the control of the Judicial Committee
of the Privy Council. The new State would have to decide
in what manner it would constitute its Executive Govern-
ment and its Legislature, and much would require to be done
to arrange for its recognition by the powers and to set up the
regime in full form, but the difficulties would be compara-
tively small. It is a much more difficult thing to devise
some plan by which the Dominions may retain their auto-
nomy, but yet may be associated in Imperial policy and
play their part in Imperial defence.
It is important to note that the difficulty as it now presents
itself is not one of material means of furthering the growth
of the Empire. The Dominions have grown without such
means to greatness, and they feel that they must have in
some way a national status, a feeling which of course has
been greatly strengthened by the facts of the European War.
No country which has played its part in that struggle could
ever again be expected to content itself with the position of
a mere dependency. The change of emphasis is undoubtedly
for the better : the old struggle over Imperial Preference
IMPERIAL PARTNERSHIP 531
was one in which there could be difficulty due to mere
pecuniary considerations, and such differences are less
amenable to treatment than differences regarding more
intangible things. The stress laid on Imperial Preference
may, perhaps, be traced as a matter of history to the strong
efforts made by Sir Charles Tupper J to impress this doctrine
upon his contemporaries as the one mode of effecting Imperial
unity. The proposal in his mouth was an extremely natural
one indeed, for he was anxious to build up the Dominion of
Canada at a time when, in 1891, there was no sign of the
realization of the great prospects of the Dominion, and it
was only right that he should advocate a policy that
seemed to him to promise Canada the population which she
so urgently needed, and which persisted in flowing to the
United States. Moreover, he had assured himself from a
study of the effect of a rise in wheat prices on the cost of
bread that a rise in the price such as would be caused by the
imposition of a tariff on non-colonial wheat imports would
not affect the price of bread to the consumer. To his view,
therefore, the project of Imperial Preference for Canada, and
in modified shape, e. g. in reduced duties on Colonial wool,
for other parts of the Empire, seemed feasible and inevitable.
This view was expressed by Canada, the Cape, and nearly
all the Australasian Colonies at the Ottawa Conference of
1894 ; but the Imperial Government of the day deliberately
rejected it as contrary to the principles of Free Trade and
unlikely to benefit the United Kingdom or the Colonies them-
selves, while leading in all probability to difficulties with
foreign powers, though it was explained that there would
have been no objection whatever to a proposal of Free
Trade within the Empire, which the fiscal exigencies of the
Dominions rendered out of the question. Revived effectively
in 1902, the project became a living issue in the United
Kingdom by the determination of Mr. Chamberlain, after his
visit to South Africa in 1903, to present it as the best policy
1 See an article in The Nineteenth Century, October, 1891, and a further
explanation in the same journal of April, 1892 ; reprinted in Recollections
of Sixty Years, pp. 256-98.
L 1 2
532 IMPERIAL UNITY AND THE DOMINIONS
for the ultimate federation of the Empire. It is perfectly
clear from his speech on Imperial Federation, delivered to
the Unionists of West Birmingham on May 15, 1903, that
the genesis of his support of Preference was the belief that
only thus could the growing nations oversea, which by that
time had already a quarter of the population of the United
Kingdom, be induced to unite in due course in a federal
union. He laid stress on the fact that in the South African
War some 50,000 Colonial troops had at one time or other
taken part in the conflict, but that the pecuniary burdens
of the war had been borne in far too high a measure by the
Imperial Government. It was in the extreme desirable that
any offer by the Colonies to show their readiness to benefit
the Mother Country should be reciprocated : the principle
of Preference had been agreed to by Australia, New Zea-
land, and South Africa, and Canada had carried it into
effect, for which Germany was now penalizing Canadian
imports. It was surely not a true interpretation of the
doctrine of Free Trade, which he himself held, believing that
the aim should be to increase trade and make its movement
more and more free, to lay down that nothing could be done
to assist Canada, either directly or indirectly, by inducing
Germany to abandon her hostile attitude.
The proposal for a revision of the conception of Free Trade
in the interest of Imperial unity was gradually accepted by
the Unionist Party, and by other members of that party was
developed into a full-grown theory of Protection as being
desirable in itself for the benefit of the United Kingdom,
a conception which, of course, is not completely to be made
consistent with the doctrine of Imperial Preference. The
chief attack of the Liberal Party in the period from 1903 to
1905 was directed against the principle of Protection ; and
the principle of Colonial Preference was assailed in the main
either because in theory it was contrary to the rules of Free
Trade, or more often because, without a violation of the fiscal
system of the country by the imposition of new taxes simply
for the purpose of remission in favour of the Dominions, no
effective preference could be given. The position of Mr.
IMPERIAL PARTNERSHIP 533
Chamberlain in his proposals had been rendered much more
difficult by the fact that without his knowledge or concur-
rence the registration duty on wheat, imposed for revenue
purposes during the South African War, with which he had
proposed to operate in favour of the Dominions, was repealed
by Mr. Ritchie as Chancellor of the Exchequer. The subject
of course led itself to indefinite numbers of difficulties and
doubts, but the main argument which was effective in the
country was undoubtedly the view that, unless the price of
food was increased, there would be no return of an increased
price to farmers in Canada, and therefore no obvious benefit
to the Dominion, while, if the price were to be increased, it
would press most heavily on the very poor classes of the
population, who were very much worse off in every way than
the farmers from whom an increased price was asked. On
the other side it was argued that, without any actual increase
of price, the imposition of a differential duty on wheat against
the foreign imports would result in an increased supply being
obtained from the Dominions, which would enable the
maintenance of a large population, and it was pointed out
that the increase of population in the Dominions was a
matter of great Imperial importance. At the same time it
was suggested that there could be no expectation of the re-
tention of the Colonial preferences accorded by the Colonies
if there was to be no reciprocity. To these arguments it
was replied that the mere aggregation of population in a
Dominion was not desirable, that quality was important,1 and
that Canada, in her indiscriminating readiness to take in any
kind of men, was adopting a less wise policy than Australia,
even if the latter might go rather far in her exclusiveness,
when it was applied to keep out men whose only fault was
that they had taken the ordinary precaution to secure an
engagement before they proceeded to the Commonwealth,
as in the famous case of the Six Hatters, which cast just
ridicule on the Commonwealth Government. As regards
the withdrawal of the Colonial preferences, it was pointed out
1 Cf. Mitchell, Western Canada before the War, pp. 133 seq., and the reports
there cited.
534 IMPERIAL UNITY AND THE DOMINIONS
that the preferences were really advantageous in their own
way to the people of the Dominions, as they formed a con-
venient method of obviating the very high prices which the
duties caused consumers to pay.1 Moreover, the preference
was some recognition of the great services rendered to the
Dominions by the Imperial Government in regard to pro-
tection of trade, the foreign services, diplomatic and con-
sular, and naval defence generally.
It is probably now possible to look at these matters in
a more dispassionate light than was conceivable at the time
when the matters had been turned into questions of party
politics. It would be idle to deny now that the question of
securing the union of the Empire by commercial means is
not of the highest importance : it was made a party issue
in connexion with the Colonial Conference of 1907, mainly
through the fiery eloquence of Mr. Deakin, who in 1908
secured a satisfactory grant of British preference, on the
line of the established Commonwealth and Colonial doctrine
that no such preference can ever be given as will hamper the
development of any Dominion industry. It is important to
realize that this principle lies at the bottom of all the pre-
ferences accorded : the Dominions are not prepared for
a moment to accept the doctrine suggested by Mr. Chamber-
lain that, while protecting already existing industries, the
Dominions should refrain from protecting industries not yet
established, in return for a protection for their agricultural
and pastoral products in the United Kingdom. Most
Dominion statesmen are not so unwise as to adopt the lan-
guage of Sir W. Lyne, Mr. Deakin's colleague, that the
importer is a nuisance,2 who ought to be abolished, but each
Dominion feels that it is a legitimate part of its national life
to make itself as self-supporting in every way as possible.
The work of the Commonwealth Parliament has largely con-
sisted in considering applications for increases of tariffs, and
modifications of tariffs in order to protect new industries, or
further to protect old industries, and the policy of the Com-
1 A view widely held by the farmers of Canada.
1 Cf. Canadian Annual Review, 1913, pp. 296 seq.
IMPERIAL PARTNERSHIP 535
monwealth, of New Zealand, and of Canada has been always
the same, that, on a case being made out for protection by
reason of inability to compete with imported goods, duties
will be imposed or bounties given on local production, or
both methods will be resorted to. It would be idle to
criticize the policy of the Dominions in this regard. What-
ever may be thought of the policy which originally set the
Dominions on the path of protective tariffs, it would pro-
bably be absurd to try to leave that path in any abrupt
way, and it must be left for the future to show whether the
Dominions will follow the example of the United States, and
finally themselves of their own free will lower their tariffs.
New South Wales has never been satisfied that the tariff
policy is as satisfactory as Victoria believes it to be. In
Canada the movement for lower tariffs is a very important
one,1 and the value of the British preference there as breaking
down excessive tariff bars is shown by the solidarity of the
whole of the west and of much of the east itself in the demand
that it shall not be touched if it cannot be increased. In
this case at least there can be no question of the voluntary
character of the preference or pressure for its reciprocation.
In the Union of South Africa, on the other hand, while the
tariff preference has not been withdrawn, the proposal was
mooted as suitable for discussion 2 at the Imperial Conference
of 1911, that the tariff preference might be replaced by
a payment made by the Union for purposes of defence, but
the Government withdrew this proposal before it was finally
placed on the agenda of the Conference. The value of the
preference in the case of South Africa has beyond all doubt
been considerable, and its withdrawal would be a matter for
regret, but reciprocity in any effective way is practically im-
possible in the special case of the nature of Union products.
From the point of view of the United Kingdom the policy
of Colonial Preference and Protection generally must now be
considered in the main simply in relation to the advantages
to be derived in the United Kingdom. The obvious fact
that the Dominions do not need eleemosynary aid renders it
1 Cf. Ibid. 2 Parl. Pap., Cd. 5513, pp. 15, 16.
536 IMPERIAL UNITY AND THE DOMINIONS
unnecessary to consider the question as one of support for
feeble dependencies, like the West Indies, and due impor-
tance must be attached to the fact that the Dominions in
their policy simply consider, and no doubt rightly consider,
their own interest as the determining point in the matter.
The situation is not rendered any easier by the European
War : it is certain that on the conclusion of that war it will
be necessary for every consideration to be given to the wishes
of Russia, of Japan, of France and Italy and of other
countries for closer commercial intercourse in order to
strengthen the economic bonds among the Allies of the War,
and this fact will doubtless not render Imperial Preference
less difficult. But the important fact, in the meantime,
is that the question of fiscal relations is no longer the point
of most concern in the connexion between the United King-
dom and the Dominions, the centre of gravity of these
relations having shifted from trade to foreign affairs. It is
now practically certain from the drift of political feeling that,
if the United Kingdom alters its fiscal system, it will be in
the direction not of mere Imperial Preference intended to
consolidate the Empire, but of preferential trade primarily
aimed at the strengthening of the trade of the United King-
dom, and Imperial Preference will play a subordinate part.
The matter therefore becomes one of economic theory rather
than of constitutional politics.1
One obvious means of communication between the Do-
minions and the Imperial Government, available at all times
without difficulty, presents itself, and it is not surprising
that the question should have been frequently raised why it
is not more regularly used. The Colonies have represen-
tatives in London, High Commissioners for the four great
Dominions, Agents-General for the Australian States : why
should not their services be availed of as a means of keeping
each Government in the Empire in touch with the Imperial
Government ? The fact is, however, beyond dispute that
this mode of procedure has never been adopted in any con-
1 My colleague, Prof. J. Shield Nicholson's work, A Project of Empire,
is the best presentation of the case of Imperial trade relations.
IMPERIAL PARTNERSHIP 537
sistent way. The best case of a High Commissioner who
was in close touch with his own Government and with the
Imperial Government is perhaps that of Sir Charles Tupper
during his tenure of the High Commissionership for Canada :
he was so closely united in sentiment with his Government,
and was in such harmony with it, that he actually for a period
left his High Commissionership in order to lend his colleagues
aid in an electoral campaign, and to act as their represen-
tative in connexion with the negotiations with the United
States over the abortive Treaty of Washington of 1888.1
Further, he was asked to stand for the leadership of the
party on more than one occasion, and finally was induced
to take up that post in the last days of the Conservative
Ministry, a position in which he made a gallant fight for his
party. Moreover, when High Commissioner, he was engaged
in various negotiations under the aegis of the British Govern-
ment, and, as plenipotentiary, arranged and signed, with the
British Ambassador, the first Convention in 1893 regarding
the trade between Canada and France. He was also en-
trusted by his Government with urging on the Imperial
Government their plans for the development of a swift
steamship service between Canada and England, and the
establishment of the Pacific Cable, and he was a protagonist
in the movement for the repeal of the restrictions on the
grant of preference by the Dominions to the Mother Country
through the denunciation of the treaties of 1862 and 1865
with Belgium and the German Confederation. Yet it would
be idle to say that he was at any time in close touch with the
Imperial Government save for the specific purposes on which
he was authorized to deal with that Government. Still less
by far could this be said of the ordinary Agents-General of
the Colonies. There is an interesting record of the failure
of any scheme to make the Agents-General a council of
advice in a memorandum dated February 24, 1885, by Sir
J. Vogel,2 then Colonial Treasurer of New Zealand. ' During
the last eighteen months,' he wrote, 'the Mother Country
1 See Recollections of Sixty Years, pp. 204 seq.
2 Parl. Pap., C. 4521.
538 IMPERIAL UNITY AND THE DOMINIONS
has been considerably interested in those questions relating
to the Pacific Islands which the Colonies of Australasia have
regarded as possessing supreme importance. These Colonies
have been represented in the Mother Country by exception-
ally able Agents-General, well fitted for any confidence Her
Majesty's Government might deem it fitting to repose in
them. But yet they have in no sense been called into
council. That it has not been deemed expedient to associate
them in the negotiations that have been proceeding is proof
sufficient that a Board of Council or Board of Confidential
Advice is not found desirable or workable. Had it been
otherwise there probably never was a time during which the
Secretary of State would have been more inclined to such
a plan.' The truth of his opinion is undeniable, although the
alternative proposed by the writer, the election by the
Colonies of members to sit in the Imperial Parliament, not
exceeding twenty in number, if desired without the right
to vote, was hardly a conceivable improvement on the plan,
which he regarded as out of the question and proved to be
a failure. Even the advent of the Commonwealth, by
reducing the number of Agents-General to be taken into
discussion, since for most purposes of Imperial importance
the High Commissioner alone has power to represent the
Commonwealth, has produced no alteration in the position
as regards Australia. At the Imperial Conference in 1911 x
a proposal was made indeed by New Zealand, which seemed
intended to suggest that the High Commissioners should be
altered in position and become a real part of the Imperial
machinery of communication. It was proposed that the
High Commissioners should become the sole channel of
communication between the Imperial and the Dominion
Governments, the Governors-General and Governors, how-
ever, being given identical and simultaneous information,
that they should be invited to attend the meetings of the
Committee of Imperial Defence when questions of naval
or military oversea defence were under discussion, and that
they should be invited to consult with the Foreign Minister
1 Parl. Pap., Cd. 5513, p. 4 ; 5745, pp. 77-88, 92, 93.
IMPERIAL PARTNERSHIP 539
on matters of foreign industrial, commercial, and social
affairs in which the oversea Dominions were interested, and
should keep their Governments informed. This proposal
would clearly have turned the High Commissioners into
important links of Empire, and have provided a way of
keeping the Governments in touch with such parts of foreign
affairs as were not directly political ; but, whatever its merits,
the scheme was not seriously advocated by its proposer, and
the representatives of the other Dominions were quite clear
that they had no intention of altering the status of their
representative, one of the South African representatives at
the Conference going out of his way to make it clear that the
then High Commissioner had been selected because of his
special commercial abilities, and not for political purposes.
The curious fact in that case was that the High Commissioner,
more nearly than any other representative of a Dominion
Government since Sir C. Tupper, had fulfilled the ideal of
keeping his Ministry in touch with Imperial affairs, and had
been in the closest personal confidence of the Prime Minister
of the Union .
The fact, of course, is that the proposal to make the High
Commissioner a means of keeping in close touch with the
Imperial Government offends against a fundamental con-
stitutional principle. The Agents-General and the High
Commissioners are Government officials who hold their office
under Acts of Parliament for definite periods, and who
cannot be easily removed from office by any Government.
Further, this tenure is in no small measure due to the fact
that it is the custom for the office to be held by a person who
has held high political office in the Colony or Dominion,
often in the case of the Australian Colonies by the late Prime
Minister. But practically in every case the appointment is
made from the ranks of the political supporters of the
Ministry of the day, and, in default of a Prime Minister, then
a minister who has social ambitions or who is too big to play
a second part at home is dispatched to England. In the
Dominions political parties, other than the Labour Party,
have not the fixed character of the parties in the United
540 IMPERIAL UNITY AND THE DOMINIONS
Kingdom, and a minister who has belonged to a party may
find after his appointment that the party changes consider-
ably in tone and character, and that in effect it is no longer
in complete harmony with him : still more frequently the
Ministry is succeeded by another Ministry of completely
different political tendency. The test is very clear in the
case of the Dominions proper : Canada was represented from
1896 to 1914 by Lord Strathcona,1 who was a nominee of the
Conservative Government, of which he had been a supporter
in Parliament : his eminent financial abilities rendered his
appointment one to which exception could not possibly be
taken by Sir W. Laurier's Government when it came into
office shortly after his appointment, but on the other hand,
it could not be expected that in any intimate matters the
Government should give him the confidence which existed
between his predecessor, Sir Charles Tupper, and the Con-
servative Ministries. Sir George Reid was an able politician,
if a man of no profound knowledge, great ability, or grasp of
principles ; but it was absurd to expect that the Labour Party
in the Commonwealth, with which he had been at variance
all his political life, on finding him in office as a legacy from
their predecessors, should trust him with political informa-
tion. Sir T. Mackenzie, as High Commissioner for New Zea-
land, stood precisely in the same position : it was desired to
secure his departure from New Zealand in order to permit the
due formation of the new Government of Mr. Massey, but
between a Liberal and a Conservative Government no real
harmony could be expected to exist.2
It is an agreeable peculiarity of High Commissioners to
deem themselves in some sense not general agents, as the
popular mind is liable to deem them, but persons charged
with ambassadorial privileges, and this belief is rightly
encouraged by the British Government in the sense that they
are shown marks of courtesy and distinction appropriate to
the functions which they think they hold. But the essential
distinction between an Ambassador and a High Commis-
1 Sir C. Tupper, Recollections of Sixty Years, p. 309.
* Part. Pap., Cd. 6863, p. 116.
IMPERIAL PARTNERSHIP 541
sioner lies in the fact that the former is a servant who is in
the confidence of his Government, while the latter is not.
It is open to the Imperial Government at any moment to
remove an Ambassador from his office in toto or to put him
elsewhere, and this is occasionally done on change of Ministry,
but it is seldom necessary, for an Ambassador belongs to
a class which is, in fact, strictly non-political in its views and
action. The Imperial Government can therefore have the
utmost assistance from its ambassadors, and can trust them
in the fullest degree, but that cannot be the case with a man
who is normally a politician, and is at least appointed by
a political party on party grounds, and holds office indepen-
dently of the new Government. Men of ambassadorial
character would not be very easy to find in the Civil Service
of the Dominions, which is, save in the cases of technical
appointment, recruited from men of too inferior social and
educational standing to develope the necessary qualities for
ambassadorial functions.
But even if this difficulty were not so serious as it appears,
and if in due course the Dominions could send men of the
right class to represent them in this respect, there would
still be difficulty in arriving at- the fullest degree of inter-
communication between the Governments. It must be
remembered that the position is not merely that the
Dominions wish information on questions of foreign affairs,
but the Imperial Government desires to get into direct
touch with the views of the Dominions. This could be
done no doubt in some degree if the representatives of the
Dominions in London were strict non-party men with
permanent careers to look forward to and devoid of political
ambitions of any kind ; it might then be possible to induce
their Governments to accord them full confidence in every
regard. But the most effective manner is undoubtedly
that laid down in the offer made by the Imperial Govern-
ment to the Dominion Governments in the dispatch from Mr.
Harcourt of December 10, 1912,1 in which the definite sugges-
tion was made that a Dominion minister might be sent to
1 Parl. Pap., Cd. 6560; above, pp. 323, 324.
542 IMPERIAL UNITY AND THE DOMINIONS
London, where he would be available to represent the
Dominion on the Committee of Imperial Defence, in which
questions of foreign politics are considered in immediate
relation to the essential question of the defence of the
Empire as motived by these questions, where also he would
have free and full access to the Prime Minister, the Foreign
Secretary, and the Colonial Secretary on all questions of
Imperial policy.
It is important to note that the concession here offered,
and ascertained to be satisfactory for the time being to
Sir R. Borden,1 is a very great one, unprecedented in the
history of the Dominions. It is true that the assertion is
expressly made that the Committee of Imperial Defence is
a purely advisory committee, which could not become
under any circumstances a body deciding on policy, which
must remain the sole prerogative of the Cabinet, subject
to the control of the House of Commons. But this assertion
is obviously a mere statement of what is notorious : the
policy of the United Kingdom 2 must be guided by the
Cabinet, which is responsible to Parliament. It would be
impossible for any body which Parliament could not directly
control to be responsible for or decide on policy, without the
disappearance of responsible government altogether, and
the position is understood in all the Dominions. But the
idea that a minister should reside in London and actually
be in constant intercourse with the Prime Minister or
Foreign Secretary is a novelty of the most pronounced
kind. It is perfectly true that the High Commissioners
and even Agents-General have occasionally had direct dis-
cussions with the Foreign Secretary or had interviews
with him in conjunction with the Colonial Secretary, and
that from quite early times, and the Prime Minister has
naturally often seen and talked with Dominion ministers,
but these are quite different things from a right to full and
1 Canada House of Commons Debates, December 5, 1912.
* See Lord Kimberley's dispatch of June 12, 1882, and Mr. Chamberlain's
dispatch of May 27, 1903, in reply to Home Rule addresses from the
Dominion of Canada ; Purl. Pap., C. 3294, p. 4 ; Cd. 1697, p. 4
IMPERIAL PARTNERSHIP 543
free access to both, that is a right, not to ask the Colonial
Secretary to arrange an interview, but to ask for an inter-
view direct and to discuss as an equal the affairs he wishes
to discuss. Moreover, it is to be remembered that the
discussion is not limited to foreign affairs : Mr. Borden's
desire was that Canadian and other Dominion ministers
who might be in London as members of the Committee of
Imperial Defence should receive in confidence knowledge
of the policy of the Imperial Government in foreign and
other affairs. Further, foreign affairs include par excellence,
foreign political affairs, a point in which the scheme differs
vitally from the abortive proposal of the Dominion of New
Zealand at the Imperial Conference of 1911.
The Imperial Government offered to make the scheme
different in any way any other Dominion liked to have it
varied . It is a striking confirmation of the view that these
Governments do not trust their High Commissioners, that
not one of the Dominions suggested that they would like
him to be placed in the position indicated. Canada had
already shown that she was only prepared to use a minister
in the post. Australia replied by asking for a full Imperial
Conference ; New Zealand and the Union of South Africa,
not to mention Newfoundland, were not prepared to appoint
resident ministers, holding that the existing means of
co-operation were for the time adequate. The replies of
the Dominions are most significant of the different stature
of the Dominion of Canada as compared with the other
Dominions, who may fairly be said to be in some degree still
in the dependency stage of development, and even in Canada
there was delay before the plan was made effective. The
opportunity for this was given in 1914 by the death of
Lord Strathcona, whereupon the Dominion Government
sent in his place as their representative an honorary minister,
Mr., now Sir, George Perley. This minister was not, how-
ever, to be High Commissioner,1 but he was to perform the
functions of the High Commissioner while fulfilling the
1 He could not legally have been Minister and paid High Commissioner
simultaneously; Revised Statutes, 1906, c. 10, s. 10.
544 IMPERIAL UNITY AND THE DOMINIONS
duties of resident minister. Chance made his position in
that respect of special importance, inasmuch as the out-
break of the war made his services as an intermediary
between the Dominion and the Imperial Government
specially valuable.
The appointment of a resident minister may be thought
to be a diminution of the position of the Governor-General
or Governor. But it would not be possible to make the
Governor a channel of confidential communication in the
sense in which a resident minister can serve. In the first
place, the Governor is like a High Commissioner : he is
appointed for a time, which is fixed at five or six years,
according as he pleases, and Governors are not changed on
changes of the Imperial Government. He is therefore very
often not at all in harmony with the views of the Imperial
Government. In the second place, the Governor is very
seldom well informed before the event of the intentions of his
ministers, as, on the whole, Ministries appear to be reluctant
to give him their confidence. But a really more serious
objection is the fact that the Governor has different functions
to perform than an intelligence agency : his duty is to
represent the King as the head of the local Government,
and to serve as the channel of formal communications
between the local and the central Governments, and in the
performance of these functions his duty is fulfilled. Or in
fact, just as in foreign politics, as experience in the European
War has shown, direct discussion between ministers of the
Crown is far more efficacious than any amount of com-
munications through ambassadors, so in Imperial relations
the direct intercourse of minister and minister is far prefer-
able to any other form of communication.
It is, of course, obvious that the mode of communication
adopted for the present by Canada is not a permanent settle-
ment of the question of the relations of the Imperial Govern-
ment and the Dominions as regards foreign affairs or
anything else. But, while it leaves the responsibility of the
United Kingdom untouched, it does secure an effective
method by which the responsibility shall not be exercised
IMPERIAL PARTNERSHIP 545
until it has been considered in what respect the decisions
of the Imperial Government will affect the Dominions of
the Crown. The Committee of Imperial Defence is essen-
tially a body whose advice is of very great importance,
even if its power is merely advisory : the Dominions cannot
claim at present any share of responsibility, but the means
of advising are surely of the greatest value.
But it is important to note that the principle has been
carried a good deal further than this, for on his last visit
in 1915 1 to the United Kingdom the Imperial Government
took the further step of inviting Sir R. Borden to attend
a meeting of the cabinet. As a Privy Councillor, the Prime
Minister of Canada has, of course, attended council meet-
ings, as have many of his predecessors in colonial office
and authority, but the attendance of a cabinet by a Dominion
minister is totally without precedent in the history of the
Empire, and its significance was duly noted at the time.
It is a privilege not even accorded to Lord Onslow when
acting in lieu of the Secretary of State during the visit of
Mr. Chamberlain to the South African colonies : when his
opinion was desired on colonial matters it could not be
given and discussed by him in cabinet, but only to some
members of the Government, who could repeat it in cabinet.
As in the case of the attendance of Dominion ministers at
the Committee of Imperial Defence, it connotes no responsi-
bility on the Dominion minister, but it does most emphatic-
ally permit him to set out in the most effective manner his
opinion on questions of importance to the Dominion.
Now it would be idle to suppose that any such practice
as that followed by Sir Robert Borden can at once be
accepted by the other Dominions. There is one good
reason for this at least, in the reluctance of any Dominion
to imitate another. But there is a more valid reason in
the difficulty of providing as easily, as in the case of Canada,
for a resident minister even for a period of the year. The
1 See Times, July 15, 1915. Mr. Hughes was sworn of the Canadian
Privy Council, and sat at an Imperial Cabinet meeting on March 9,
1916.
1874 M m
546 IMPERIAL UNITY AND THE DOMINIONS
Governments of the Commonwealth have seldom been
strong enough to provide a minister who could be allowed
to leave the country for long periods while still remaining
a minister, and the state of New Zealand since the fall of
Sir J. Ward from power in 1912 to the autumn of 1915
was such that a single vote could never have been spared.
In the case of South Africa, and doubtless too in the other
cases, considerations of effective touch with the absent
minister would have weight, and also, but mainly in the
case of the Union, fear lest in some way the Dominion
should be dragged willy nilly into the vortex of Imperial
policies. This fear of the power of the United Kingdom,
and nervous desire not to approach too closely the brilliance
of its Government, are characteristic of the childhood of states,
and it will, it may be believed, disappear with growing
consciousness of strength as it has disappeared in Canada,
but the difficulties of sparing ministers, the lack of stability
of governments, and the distance will make progress, it may
well be, slower in the case of the other Dominions, while
Newfoundland naturally realizes that in such case for her to
send a resident minister would be unwise and unnecessary.
But even if the full programme of a resident minister
cannot be carried out, there may be possibilities in the
way of giving increased power to a resident High Com-
missioner,1 especially in the case of the Labour Party in
the Commonwealth, where the Government counts for
little in the political world in comparison with the Labour
Party caucus and the labour organizations behind the
caucus. The appointment of a labour minister to succeed
Sir G. Reid as the High Commissioner will for a time keep
the Government and High Commissioner in unity of thought,
but apart from changes of Government, it is doubtful if
1 The Colonial Secretary in 1907 endeavoured to encourage the use of
the High Commissioner in connexion with the secretariat of the Conference
(Parl. Pap., Cd. 3795, p. 4), but the Commonwealth and the other Govern-
ments remained indifferent. Indeed the whole history of the recent years
of efforts to use High Commissioners has been one of reluctance on the
part of the ministries who are sensitive of their personal position.
IMPERIAL PARTNERSHIP 547
this unity can long prevail. The representative in London
of a Dominion is always a potential rival for power at
home, a fact which adds to the difficulties inherent in
securing close harmony of action.
It is creditable to the intelligence of Sir C. Tupper that
as far back as 1891 he saw quite clearly that the only
possibility of establishing a Council of advice would rest
on the sending of ministers, not officials, to represent the
Government of the Dominions. More attention might per-
haps have been given to his advice at that time, had it not
been adverse to the established idea then prevailing that
some form of federation might be worked out, and had it
not been bound up with the idea of preferential trade in
some form or other. Nor doubtless was the idea anything
but premature, since it has clearly been seen at the present
day that the Dominions generally have not been able to
accustom themselves to the conception.
It is fairly clear from the replies * of Australia, New
Zealand, and the Union of South Africa to the offer of the
Imperial Government, that these Dominions think that the
machinery of the Imperial Conference, plus arrangements
for individual ministerial visits, cover adequately the whole
ground of the needs of the day. It is important in this
connexion, however, to remember that Mr. Fisher, when
Prime Minister of the Commonwealth, was a declared believer
in biennial or even annual conferences, and that his belief
was founded on the need of keeping in close touch with the
Imperial Government regarding foreign affairs. This was
shown very clearly at the Imperial Conference of 1911
when he made the suggestion that the affairs of the self-
governing Dominions might be transferred from the minis-
terial control of the Colonial Secretary to that of the Foreign
Secretary. It was abundantly evident that his desire was
to be au fait with the progress of the foreign relations of
the Empire, and for that purpose he valued the holding of
conferences. In this attitude he recognized the funda-
mental truth that by far the most important subject of the
1 See above, Part I, chap, jcv, § 3.
M m 2
648 IMPERIAL UNITY AND THE DOMINIONS
Conference of 1911 was the one not recorded in the official
proceedings, the attendance of ministers at the Committee
of Imperial Defence to hear an exposition of the foreign
policy of the Empire and the situation of affairs from the
Secretary of State for Foreign Affairs.1 But it is perfectly
clear that annual conferences for this purpose are a clumsy
means of procedure, and that the attendance of an individual
minister for a short time would be more simple and more
effective. But this policy would have parliamentary dis-
advantages which cannot be ignored. The departure of
one minister would be often inconvenient as Parliament
could not reasonably be asked to suspend operations for that
cause, while an Imperial Conference gives a good excuse
for three ministers or even more taking a journey to the
centre of the Empire, where they can mix agreeably the
utih with the dulce. Nor has the demand for more frequent
conferences any real chance of obtaining general assent
at present, considerations of ministerial convenience being
conclusive.2
The Imperial Conference must, therefore, be regarded
not so much as a means of solving the fundamental problem
of the grant to the Dominions of a share in the management
of the external affairs of the Empire in return for their
efforts to take part in its defence, but as a means of pro-
viding for the discussion of matters of common interest,
on the basis of absolute autonomy and equality, or of
strivings in that direction. It is undoubtedly true that as
regards a good deal of the work which has come before
Imperial Conferences the subject matter might quite as
well have been treated by international conferences, since
it has nothing specifically imperial connected with it.
There are obvious examples of such cases in subjects like
copyright, trade marks, patents, workmen's compensation,
international exhibitions, mutual provisions for deserted
wives and children, cheaper cable rates, universal penny
postage, and so forth. Other matters are more truly Imperial,
1 Parl. Pap., Cd. 5745, p. 440 ; Gen. Botha, Times, June 22, 1911.
2 Round Table, 1915, pp. 670, 671, 700.
IMPERIAL PARTNERSHIP 549
but they all fall under the head rather of questions requiring
legislation in the Empire than of matters of policy for
executive decision. Nor is it unnatural that this should
be the case : it is very seldom that any executive matter
can conveniently be decided by discussion at a conference
composed of persons, who have not been in contact with the
questions from which the matter requiring decision arose.
There is a very obvious instance in the case of the Conference
of 1911. The Conference, after hearing the arguments of
the Foreign Secretary in favour of the ratification of the
Declaration of London, agreed to recommend its ratification,
Australia abstaining on a technical point, but not denying
the wisdom of the course. Fortunately, the attempt to
pass off this discussion as the considered opinion of the
Dominions was not taken seriously by the House of Lords,
which threw out the Bill on which ratification depended,
and they did thus incidentally a great service to the inter-
national position of the Empire in the European war.
But the important point to note is that the Dominion
ministers from lack of familiarity with the practical aspects
of the matter at issue were hopelessly incompetent to deal
with the position in the form of a set conference.1 Their
ammunition of arguments had been picked up from repre-
sentations made at the time by miscellaneous private bodies,
and they were wholly unable to see, before they were pointed
out, the fallacies in the arguments which they adduced, or
what was far more important to realize that the arguments
of the Foreign Secretary, while valid against their own
errors, were not conclusive of the main issues at all. It
may safely be predicted that, if the Dominion representatives
are to have only such control of or intelligence of foreign
politics in their relation to the Empire as they can pick
up once in four years at a very much overcrowded con-
ference, they are not likely to benefit the Empire very
seriously by their advice. Nothing but the close following
of the trend of politics abroad can be useful to a Govern-
ment, and since 1911 only the Government of Canada has
1 Parl. Pap., Cd. 5745, pp. 97-134.
550 IMPERIAL UNITY AND THE DOMINIONS
been effectively in touch for any considerable period with
the Imperial Government, though in 1912 both Colonel
Allen of New Zealand and General Smuts of the Union
were at home, and in touch with the Committee of Imperial
Defence.
Everything at present indeed tends to show that the
Committee of Imperial Defence will develop as a mode
for the time being of assisting the appreciation of foreign
affairs by the Dominions ; apart from the question of the
presence of a resident minister, the Dominions all heartily
agree in the desirability of the use of the Committee, though
Australia's position is less clear than that of the other
Dominions. The Committee has, of course, no legal con-
stitution or powers : it is a creation of Mr. Balfour's,
devised to study defence problems in close relation to foreign
politics, and the Prime Minister remains the only absolutely
essential member of it, though the Ministers of War, the
Admiralty and Foreign Affairs, with the Chancellor of the
Exchequer are immediately concerned in all its delibera-
tions. The elasticity of its composition is best seen in the
extraordinary varying ways in which its meetings are
composed from time to time as there may be need. Excep-
tion has of late frequently been taken to its apparent
usurpation of the powers of the Imperial Conference, but
this attack is due to an error and misunderstanding of the
position. The position of the Imperial Conference is that
it is a gathering of ministers fully empowered to represent
the Dominions for which they speak, though subject of
course to the control of the Dominion Parliaments, who,
in what they say and undertake, express the views of these
Dominions on subjects which fall under their control,
whether it be a mere question of alteration of law for the
sake of uniformity, or a request to the Imperial Govern-
ment to alter taxation, such as double income tax, affect-
ing the Dominions. In the case of the discussions conducted
at the Committee of Imperial Defence, ministers are not
in a position to advise : they are present to receive informa-
tion, and to make, if need be, suggestions for the considera-
IMPERIAL PARTNERSHIP 551
tion of the Imperial Government in the interest of the
Dominions which they represent. The decision and the
action taken rest on the responsibility of the Imperial
Government : the essential condition of secrecy renders it
impossible for ministers of the Dominions to take responsi-
bility to the Dominions even for their advice, and of course,
as they do not control, they cannot ever take responsibility
for the action determined upon. In those cases in regard
to foreign affairs, where the Dominions can give advice
and take responsibility for that advice, the proceedings
take place at the Imperial Conference, as in 1907 in the
case of the question of the New Hebrides and Newfound-
land, and in 1911 in the case of the Declaration of London.
In effect the distinction of treatment corresponds to a vital
distinction of fact, and it is to be noted that, while the
details of the naval and admiralty questions raised at the
Conference of 1911 were thrashed out in conferences with
the War Office and the Admiralty, the results of these
conferences were formally submitted to the Imperial Con-
ference, and adopted by it as its own,1 thus placing them
on the responsibility of the ministers of Canada and Australia
in respect to the arrangements regarding these Dominions
as to naval defence, and on these and the other Dominions
as regards military defence. The distinction between the
Conference and the Committee further appears in the fact
that at the Committee, which is merely advisory, officers
of the Army and Navy may be present, including officers
of the Dominions, while the Imperial Conference is a con-
ference strictly confined to persons of ministerial rank and
responsibility, the structure of the Conference reflecting its
special importance.
The nature of the Imperial Conference is now determined
by the resolution passed in the Conference of 1907 2 to the
effect that, ' it will be to the advantage of the Empire if
a conference, to be called the Imperial Conference, is held
every four years, at which questions of common interest
may be discussed and considered as between His Majesty's
1 Parl Pap., Cd. 5745, p. 432. 2 Parl Pap., Cd. 3523, p. 5.
552 IMPERIAL UNITY AND THE DOMINIONS
Government and the governments of the self-governing
Dominions beyond the seas. The Prime Minister of the
United Kingdom will be ex officio president, and the Prime
Ministers of the self-governing Dominions ex officio ministers
of the Conference. The Secretary of State for the Colonies
will be an ex officio member of the Conference, and will
take the chair in the absence of the President. He will
arrange for such Imperial Conferences after communication
with the Prime Ministers of the respective Dominions.'
The Conference of 1897 was confined to Prime Ministers
only, advantage being taken of the Jubilee celebrations of
Queen Victoria's reign to consult with them, but other
ministers appeared informally at the Conference of 1902,
held together with the coronation, and the demand for the
recognition of these ministers as full members raised by
Canada in 1905 l was conceded in 1907, it being agreed that,
' such other ministers as the respective governments may
appoint will also be members of the conference, it being
understood that, except by special permission of the con-
ference, each discussion will be conducted by not more
than two representatives from each government, and that
each government will have only one vote.' In point of
fact in 1911 each Dominion sent three representatives,
except Newfoundland and New Zealand, which had two.
The delegates and their families and staffs were the guests
of the Imperial Government, and the ministers brought
with them some specially important officers from their
civil service.
The most obvious omission in the construction of the
conference is that of India, and it is clear that the omission
is undesirable. The fact that India can be represented
occasionally by the Secretary of State for India, in the
case of 1911, rendered the absence of an Indian repre-
sentative unobjectionable, since Lord Crewe had but recently
left the Colonial for the India Office, but the accidental fact
that he was then the best representative India could have
had does not alter the fact that India has established by
* Part. Pap., Cd. 3340, pp. 3, 4, 10, 12.
IMPERIAL PARTNERSHIP 553
her service in the war a claim to be included in any Imperial
conference, and that her omission was never justified.
The demand of the Legislative Council of India * that this
claim should be conceded has been promised the earnest
consideration of the Imperial Government, and, though it
doubtless lies on the Conference to alter its own constitution,
it is clear that the Dominion Governments should be pressed
if necessary to agree to this step before the next formal and
full conference is summoned. It is quite impossible to
accept the validity of the argument of Lord Elgin in 1906 2
that the constitution of the conference cannot be changed
save by a resolution of the conference. It can, it is clear,
be changed by agreement between the Imperial and the
Dominion Governments, and such agreement should be
secured forthwith.
The functions attributed to the conference have hitherto
been rather inadequately considered. It is clear that it
is desirable that the subjects dealt with should be limited
to those which can effectively be considered and disposed
of by a conference of ministers. The tendency to bring
before the conference trifling and ludicrous points, is one
which can hardly be regarded as conducing to the dignity
of the conference or the swift and satisfactory conduct of
business. Nor is there any useful purpose served by bring-
ing before the conference matters which depend on detail
for their importance, for these questions are far better
suited to form the subject of separate discussions, as is
recognized in the resolution of 1907, which expressly says
that ' upon matters of importance requiring consultation
between two or more governments which cannot con-
veniently be postponed until the next conference or involv-
ing subjects of a minor character or such as call for detailed
consideration subsidiary conferences should be held between
representatives of the governments concerned, especially
chosen for the purpose.' Of conferences of this type there
have been three, the naval and military of 1909, which was
1 Times, Sept. 24, 1915; Bound Table, 1915-16, pp. 88-119.
2 Parl. Pap., Cd. 3340, p. 13, a singularly unconvincing dispatch.
554 IMPERIAL UNITY AND THE DOMINIONS
a matter of urgency, and required technical investigation,1
the Copyright of 1910,2 and the Surveyors' of 191 1,3 both
purely technical conferences.
Another salutary rule in regard to the conferences
should be that nothing should be referred to a conference
which can better be effected by writing, and that every
effort should be made to present for discussion only such
questions as admit of a clear decision being arrived at by
ministers, or in the alternative questions of such impor-
tance that discussion at a public conference is likely to aid
in some result, nor on the whole does it seem worth while
to summon a conference of Prime Ministers and others for
the mere sake of passing resolutions which are purely
platitudinous.
Judged by these not very exacting standards, the resolu-
tions and discussions of 1911 must be held to have con-
tained a good deal of waste matter. The Imperial Govern-
ment cannot be considered exempt from blame : they
proposed to discuss in this formal manner the subject of
a uniform design of stamps for the Empire, a proposal
which was so outrageously absurd that it fortunately does
not appear to have been pressed, the arrangements for the
expulsion of undesirable aliens, and labour exchanges in
their relation to the Dominions. The question of expulsion
of undesirable aliens was briefly treated ; it is obvious that
it was merely one for departmental correspondence. The
question of labour exchanges and the Dominions was dis-
cussed, but the discussion, though interesting from the
point of view of statistics of emigration work, was rendered
futile by the obvious fact that the emigration to the Australian
States is conducted by the Governments of the States which
have been denied, despite their protests, a place in the
Imperial Conference. This exclusion, which was probably
accidental rather than intentional in 1902, was deliberately
carried out in 1907 4 against the protests of the States
but with the desire of the Commonwealth Government.
1 Parl. Pap., Cd. 4948. * Parl. Pap., Cd. 5272.
» Parl. Pap., Cd. 5776. « Parl. Pap., Cd. 3340; 3523, pp. 92-4.
IMPERIAL PARTNERSHIP 555
The discussion is of importance in its bearing on the relative
positions of the Commonwealth and the States, the Com-
monwealth being described by one of the States as merely
an agent of the States for certain defined purposes, while
the Commonwealth insisted that apart from her specific
powers she alone should properly represent Australia.
The decision had, of course, to be in favour of the Common-
wealth, but the exclusion of the States is an additional
reason for deprecating the insertion of resolutions or attempts
at resolutions which the Commonwealth had no power to
effect, and the same line of reasoning applied in several
cases to Canada.
Other resolutions offended against other canons. One in
favour of Imperial postal orders being introduced in Australia
and fully adopted in Canada, was in the first place improper
as referring to two Dominions only ; in the second place
it was clearly a matter for departmental treatment ; and
in the third place the attempt to bring pressure to bear
by having a conference resolution passed was resented,
and the provisional assents of the representatives of Australia
and Canada resulted in no action. Not in themselves open to
criticism, but idle as merely general, were the recommendations
of cheaper cable rates, a state-owned Atlantic cable, if rates
were not soon lowered, and an Imperial wireless telegraphy
chain, which was fated to lead the Imperial Government
into serious troubles and to be unfinished when war broke
out, and universal penny postage. On the latter resolution
no action could be or was taken ; the Imperial Government
declined to agree to a state-owned Atlantic cable, which
New Zealand and Australia still wanted, and Canada
adopted a radio- telegraphic system of its own, and so
becoming indifferent to the old proposal. On the other
hand, cheaper rates were conceded, but the Imperial post
office hardly needed the aid of the conference to obtain
them, as the companies interested had found their hands
forced by other considerations.
Of the same useless character were the resolutions in
favour of a steamship service between Canada or Newfound-
556 IMPERIAL UNITY AND THE DOMINIONS
land and the United Kingdom, and between Australia and
New Zealand and Canada, and the pious declaration that
concerted action should be taken to improve trade and
postal communications within the Empire and to dis-
courage combines for the control of freight rates, in so far
as these combines injured trade. The first of the two
merely readopted the old theory of an ' All Red Route '
mooted in 1907 and found impracticable at any reasonable
rate ; the second obviously meant nothing, and left South
Africa, which raised the matter, to remove her own troubles
by passing an Act 1 which threatened such severe dis-
crimination of all sorts against lines which gave rebates,
that Messrs. Donald Currie & Co. retired from the manage-
ment of the Union Castle Line of Steamships, and left it to
Sir Owen Philipps, who managed to make a contract with
the Union on more or less satisfactory terms, though he
has been accused of contravention of the Act also. Wisely,
the eternal question of trade relations was referred to
a Dominion Royal Commission to report upon the natural
resources of the different parts of the Empire represented
at the conference, the development attained and attainable,
and the facilities for production, manufacture, and dis-
tribution, the trade of each part with the others and with
the outside world, the food and raw material requirements
of each, and the sources thereof available, to what extent
if any the trade between each of the different parts had
been affected by existing legislation in each, either bene-
ficially or otherwise, and by what methods, consistent with
the existing fiscal policy of each part, the trade of each part
with the others might be improved and extended. The
question of uniformity in the law of alien immigration was
referred by the conference to this Commission, but the
Commissioners have not dealt with it at all, and, as it is
obviously a matter of high politics and not really a com-
mercial question, it is perfectly clear that it should not have
been referred to the Commission, and that its reference
was simply due to the fact that the conference desired to
1 No. 10 of 1911 ; Part. Pap., Cd. 6091, pp. 61, 62.
IMPERIAL PARTNERSHIP 557
avoid touching on any point on which differences of opinion
could arise. It would be idle to censure the conference
for this decision : it is much more useful to discuss matters
upon which something can be agreed than to deal with
problems that are insoluble, and, what is more important,
so different in each case that a general discussion would
not be of any value. In point of fact all that could usefully
be said on the subject would have been the obvious remark
that every consideration must be shown for the feelings of
Japan.
The Commission appointed by the desires of the confer-
ence has taken its duties seriously, has visited Australia
and New Zealand, South Africa, Newfoundland, and a
small part of Canada, but through the war the Australian
Government has recalled its member, and the completion
of its work seems likely to be delayed until its report is
very much out of date as regards the evidence on which
it is based. On the other hand it has recorded much interest-
ing matter about the Dominions it has visited.1 The serious
doubt must arise whether any useful service has been
rendered by these visits and records beyond the undoubted
convenience of saving the governments concerned a repeti-
tion of the long wrangle of 1907, when Mr. Deakin tried to
prove to a government, which had won an enormous majority
on its free trade principles, that it ought to be protectionist,
and while that Government explained to Mr. Deakin that
his economic views were unsound.
The other resolutions on industrial subjects were all of
no real value. Fortunately, the Dominions represented
realized the fact and wasted no time on their discussion.
Accordingly it was agreed at once that uniformity in the
law of trade-marks, copyright, patents, and companies .was
desirable, and also that uniformity of the law of accident
compensation should be aimed at. On two of these topics,
company law and accident compensation law, the Dominion
of Canada and the Commonwealth had but little legislative
1 Parl Pap., Cd. 6515-17, 7170-2, 7173, 7210, 7706, 7707, 7710, 7711,
7898, 7971, 8123.
558 IMPERIAL UNITY AND THE DOMINIONS
authority, and therefore their agreement was negligible.
The Commonwealth, however, improved in 1912 its trade-
mark law and adopted the Imperial Copyright Act of 1911,
as it had arranged to do at the Conference on Copyright of
1910. New Zealand also in 1911 improved its law of patents
and trade-marks, and in 1913 fell into line as to copyright.
Newfoundland, in 1912, accepted the Copyright Act. The
Commonwealth also legislated as to compensation to seamen
in 1911, and in reference to workmen employed by the
Commonwealth in 1912. But the needlessness of a con-
ference for such an end was seen by the fact that the pro-
vinces of Manitoba and Nova Scotia in 1913 consented to
follow the British model in certain respects, and if New
Zealand legislated in 1911 by Act No. 34 on the matter
as a result of the conference, South Australia, Western
Australia, and Victoria were induced to act by mere corre-
spondence, though in the latter case a different system
from the Imperial was preferred by the Upper House.
Ontario, on the other hand, decided to adopt the German
model as better suited to the case of the province where
it was difficult on the English basis to secure that a work-
man would have an effective means of securing payment
of compensation from his employer owing to the shifting
character of the population.
Another resolution which clearly depended on circum-
stances beyond the control of the Dominion or the Common-
wealth was a resolution in favour of the mutual recognition
of judgements and arbitral awards issued by the courts
of the Empire. Necessarily the matter is one for corre-
spondence, with no great prospect of early legislation,
especially as it involves legislation everywhere in the
Empire. It may be doubted if facile endorsements of
general principles without understanding what is involved
serves any useful purpose, and legal questions are singularly
unsuitable for discussion when they deal with mere points
of detail.
The serious resolutions which alone would properly have
been brought before the conference reduce themselves to
IMPERIAL PARTNERSHIP 559
a few only, dealing in the main with constitutional matters.
The Dominions of Canada and New Zealand asked for
wider powers in merchant shipping legislation, but were
refused what they asked : the Union, the Commonwealth,
and Newfoundland held that the powers already existed,
which was absurd, as the Commonwealth had to admit
in 1912, and the Imperial Government held that the powers
should not be conceded as they were desired to exclude
lascars from the shipping trade. A general resolution as
to encouraging British shipping possessed some importance
as suggesting that steps be taken to deal with unfair com-
petition by foreign subsidized vessels, thus giving the Com-
monwealth approval for her determination to close her
coasting trade to such vessels. A resolution in favour of
reduction of the Suez Canal dues was really a request to
the Imperial Government to use its powers with the Suez
Canal Company to reduce its dividends in the interest of
the Dominion shipping, and was accepted by the Imperial
Government in that sense. More important still were the
resolutions regarding the future consultation of the Dominions
as to international treaties such as the Hague Conventions,
and the agreement that the Declaration of London should
be ratified, while it was agreed to continue the efforts of
the Imperial Government begun in 1907 to secure liberty
for the Dominions to cease to be affected by the older
treaties applied to them before the practice of consulting
the Dominions in treaty matters came into force. An
agreement to consider the question of the attitude to be
adopted in regard to international exhibitions led to a dis-
cussion with the Agents-General and High Commissioners
of the Dominions and States as to the attitude to be adopted
in the matter, the outcome of which was that the Dominions
were not represented in any way at the Conference of
Berlin in 1912, though of course the convention contained
the usual provision for their adherence in due course if
they desired.
One important subject was that of the Court of Appeal,
whose alteration in some minor respects was concurred in,
560 IMPERIAL UNITY AND THE DOMINIONS
after an elaborate and inconclusive discussion.1 Naturaliza-
tion was also discussed and progress made with its decision.2
Emigration was touched upon in its general aspects, and
in close connexion with it a resolution arrived at in favour
of provision being made to secure that wife and child
desertion by emigrants and others should be discouraged,
but the discussion of these topics was necessarily per-
functory, as the matters were in the main questions of
State concern in Australia. An imperial aspect, however,
was given by the stress laid by the President of the Local
Government Board on the fact that the process of emigra-
tion was lessening the population of Scotland, and would
use up all the natural English increase unless the death-
rate had improved, a serious fact which at once renders
all schemes for emigration based on the theory of over-
crowding in the United Kingdom open to serious objection.
These resolutions with the unimportant additions of one
urging — quite needlessly — the celebration of the King's
birthday on June 3, the interchange of civil servants,
visits by ministers, and the holding of a conference or
subsidiary conference in an oversea Dominion exhaust
the list of serious business done, apart from the naval and
military questions discussed only pro forma at the con-
ference, and the secret proceedings at the Committee of
Imperial Defence. It is clear that they could have been
dealt with in a good deal less than the twelve days which
the conference lasted, and this is a matter of importance, for
it is not desirable that the length of the conferences should
be so great as to make the attendance of ministers from
distant Dominions burdensome. It is of course true that
ten days is a brief period to give to consideration of the
topics of a conference, but the ministers are naturally
anxious to see as much as they can of the United Kingdom,
which many of them have few chances of visiting, and none
can study under more favourable auspices. The conference
straggled on from June 2-20, and it is clear that it would
have been much better had it been confined within the
1 Part I, chap. jtvi. 2 Part I, chap. jcii.
IMPERIAL PARTNERSHIP 561
limits of some ten days, as could easily have been done
by dealing with the important topics alone.
There is a further unsatisfactory feature regarding the
Conferences, the error of the commingling of Conference and
festivities. It is perfectly natural that the ministers who
come with their wives and families should eagerly take
part in the lavish hospitality provided by all sorts of people,
official and otherwise. Nor is it other than desirable that
they should have this opportunity of seeing the life of
the Empire at first hand. But the rule should clearly be
that during the period of the Conference the ministers
shall restrict themselves strictly to Conference work. It
is neither profitable nor desirable that ministers should
be unable to attend to the obvious business of correcting
the accounts of their speeches which are to be published,
because they are entertaining meetings of female suffrage
supporters or having tea with duchesses. Nor should they
be unable to attend meetings of the Conference at the
proper time, or leave early because they have luncheon
engagements. The custom of making the business of the
Conference subservient to the pleasure of the ministers
leads to the serious doubt whether the ministers regard the
Conference as anything but an excellent opportunity for
a visit to the United Kingdom, approved by the Opposition,
and at the expense, when in the United Kingdom, of the
Imperial Government, so that there can be none of those
unpleasant questions which Opposition members love to
put about the expense of the Prime Minister's ' trip to the
old country '. Mr. Deakin in 1907 called attention to this
anomaly by which entertainment is substituted for work,
and it is to be regretted that neither the Dominion ministers
nor their Parliaments have taken the hint. It is clear that
it is not for the Imperial Government or for private hosts
to refrain from offering their hospitality, and all that is
required is that the Prime Ministers and their companions
should lay it down definitely that for the time of the Con-
ference, which should be reduced to the consideration of
real business, they can accept no social engagements. The
1874
562 IMPERIAL UNITY AND THE DOMINIONS
work of the Conference would then be accomplished more
quickly and with greater effect.
Consideration of the true functions of an Imperial Con-
ference lead inevitably to the condemnation of the various
plans for a permanent commission or secretariat, which
have been mooted from time to time, and which seem to
have a rather seductive effect for some minds. To some
extent the responsibility for the serious consideration of
this idea seems to rest with Sir F. Pollock,1 who, with Mr. G.
Drage, toured Canada in 1905 with a propaganda in favour
of the establishment of an Imperial Council with a permanent
secretariat as a general intelligence department, finding,
as might be expected, scant affection for any Council of
any kind in the most sensitive of Dominions. The plan
appeared in an official form in a proposal made by Mr.
Lyttelton on April 20, 1905, to the Governments of the self-
governing Dominions.2 He then suggested that the Colonial
Conference should be styled the Imperial Council, and be
regarded as having a permanent constitution, the Secretary
of State for the Colonies and the Prime Ministers of the
Colonies being ex officio members, and that, during its periods
of rest from its labours, its decisions should be entrusted
to a body which could examine and report upon questions
referred for such examination and report by the Council.
Moreover, there would also be the advantage that such
a body would be available to carry out investigations and
to report on such questions as the Imperial Government
with one or more Colonial Governments might refer to it
for consideration and report, much as Royal Commissions
and departmental committees considered matters for legisla-
tion by Parliament. The body would be appointed by the
several Governments, who would pay the members, and
would be able to add outside members for special purposes ;
it would be provided by the Imperial Government with
a secretarial staff, and it could often do the work of an
ad hoc conference, which was difficult and slow to convene.
1 See J. S. Ewart, Kingdom Papers, ii. 214.
* Parl. Pap., Cd. 2785.
IMPERIAL PARTNERSHIP 563
The proposal was welcomed by the Governments of the
Cape and of Natal, and also by the Commonwealth of
Australia, but Canada, as usual, prognosticated evil,
suggested that the term ' Council ' might hint at the growth
of an institution which would interfere with the autonomous
legislative and administrative powers of the self-governing
Colonies, and believed that the Commission might interfere
with responsible government. The matter stood over for
the Conference of 1907 ; Lord Elgin in the interim having
intimated1 that he did not share his predecessor's views,
and the discussion at that Conference showed much diver-
gence of opinion. Australia moved that ' it is desirable
to establish an Imperial Council to consist of representatives
of Great Britain and the self-governing Colonies chosen
ex officio from their existing Administrations. That the
objects of such Council shall be to discuss at regular con-
ferences matters of common Imperial interest, and to
establish a system by which members of the Council shall
be kept informed during the periods between the conferences
in regard to matters which have been or may be subjects
for discussion. That there shall be a permanent secretarial
staff charged with the duty of obtaining information for
the use of the Council, of attending to the execution of its
resolutions, and of conducting correspondence on matters
relating to its affairs. That the expenses of such a staff
shall be borne by the countries represented on the Council
in proportion to their populations.' The discussion showed
clearly that Mr. Deakin did not care as to the title, and the
term ' Imperial Conference ' was therefore agreed to. Nor
did he wish, it turned out, to have a Commission of the
type proposed by Mr. Lyttelton, which would apparently
have been analogous to the Committee of Imperial Defence.
But he did wish the secretariat to be created as a separate
body, under the Prime Minister, composed of officials from
the different Dominions, and paid for by the Dominions
and the United Kingdom. But in his views Mr. Deakin
found no sympathy from Sir W. Laurier and General
1 Parl. Pap., Cd. 2975.
N 11 2
564 IMPERIAL UNITY AND THE DOMINIONS
Botha, and the Prime Minister, while agreeing to the
proposal of Sir J. Ward that he should become the President
of the Conference, was unable to agree to control the staff,
which therefore, as Sir W. Laurier insisted on ministerial
control, had to be left to the control of the Secretary of
State for the Colonies.
The actual steps taken by the Secretary of State were
to divide the office over which he presided into two divisions,
the Crown Colony and the Dominions, and to name first
four and later three officers of his staff in that division the
Secretariat of the Imperial Conference. For all practical
purposes the action taken ended at that point, except
that the Secretary of State was moved to make a speech
in the House of Lords explaining his action and eulogizing
the abilities of the Colonial Office.1 Mr. Deakin was of
course wholly displeased at the result, but the other
Dominions apparently thought that all they had wished
had been done. At the Conference of 191 1,2 however, there
was definitely put forward an idea which had been strongly
pressed in England in 1910, and to which Lord Crewe
seemed to have definitely pledged his concurrence, that
the Dominions department, including the secretariat, should
be placed under the Prime Minister, this being proposed
by the Union Government, while Sir J. Ward proposed
that there should be two permanent Under-Secretaries of
State for the Colonies, and that the Dominions department
and the secretariat be amalgamated, and the Secretary of
State change his title to Secretary of State for Imperial
Affairs.
The discussion of these proposals at the Conference 3 was
perfunctory. There was indeed no principle involved in
the suggestions of Sir J. Ward, and his views were not
pressed at all : the far more serious proposal that the
Prime Minister should be the head of the Dominions depart-
ment was dismissed by the assurance of the Prime Minister
that there would be in a year at least 1,000 papers which
1 Parl. Pap., Cd. 3795. * Ibid. 5513. 8 Ibid., 5745.
IMPERIAL PARTNERSHIP 565
he had to see, and that he could not undertake the work.
The change of title was rejected without hesitation, and the
Colonial Office was left unchanged in any respect.
It may be doubted whether the argument used by the
Prime Minister was very seriously intended : it was of course
absurd to say that anything like 1,000 papers a year would
have been seen by him, had he cared to undertake the work
of controlling the secretariat, unless indeed he intended
to take up the position of the permanent head of the depart-
ment, which was hardly contemplated. In all probability
the actual number of papers to be considered might
have reached a tenth of the number mentioned. But
there was a better reason than that adduced for the
decision not to place the Dominions department under the
Prime Minister, namely, that Mr. Harcourt had been the
author of an extensive system of hospitality to the oversea
representatives, which the Prime Minister could neither
find time nor means to imitate. This difficulty, indeed,
might have been surmounted by the device of allowing
the Prime Minister the assistance in his work of the
Chancellor of the Duchy or the Lord President of the
Council, who are normally not overworked ministers and
might be glad to have some occupation, while their high
social rank renders them suitable for the office. For all
practical purposes the result would, no doubt, be the same
as at present, but the status of the Dominions is doubtless
lowered in the eyes of thoughtful people by their being
linked in the same office with the Crown Colonies, and the
system of assuming that the knowledge of Crown Colony
work is sufficient ground for employment on other work
is an obvious absurdity, which explains all the serious
errors made of recent years in dealing with the self-govern-
ing Dominions. Nor, of course, if it were really desired by
the Dominions, would there be the slightest difficulty about
the division of the Colonial Office, nor much extra cost,
but the Imperial Government are clearly entitled to retain
the status quo as long as the Dominions do not really much
desire a change.
566 IMPERIAL UNITY AND THE DOMINIONS
What is more important is to consider whether the
adoption of some plan for a secretariat would have any
better result than the existing system. It is important to
note that it has not been alleged by any Dominion Govern-
ment that the Dominions department of the Colonial Office
has failed to carry out any action required by the Imperial
Conference of 1911 or the Colonial Conference of 1907.1
The action required of a secretariat is clearly that of corre-
spondence, and while after the Conferences of 1897 and
1902, before the creation of the Dominions department, the
duty of correspondence was not very effectively carried
out, there has never been alleged by a Dominion Govern-
ment any failure since the undertaking of the Colonial
Secretary in 1907. Indeed, under the aegis of Sir Charles
Lucas the Dominions department went further, and for
the years 1909-10 to 1913-14 2 produced a report on
the affairs of the Dominions, summarizing the results of the
correspondence of the secretariat, the chief events in the
Dominions, and the legislation of the Dominions, provinces,
and States. It may be doubtful whether much interest
was taken in the Dominions in this venture, though some
use of the material printed was made in the United Kingdom
and occasionally in Australia. The later reports suffered
from the lack of system on which they were edited, due
to injudicious and inconsistent handling of the material.
It is not, therefore, possible to see what more could have
been done by a composite secretariat on the type apparently
desired by Mr. Deakin. It would have presumably worked
less well than one under an effective control. But there
is more to be said if the scheme of Mr. Lyttelton is taken
as the real aim of such a secretariat. Mr. Lyttelton clearly
distinguished between the secretariat and the Commission,
and the former would have been supplied by the Imperial
1 Parl. Pap., Cd. 5273.
1 Ibid., 5135, 5582, 6091, 6863, and 7507. Practically all the material
in the last three and the most of that in the first two, excepting the
accounts of South African affairs and lists of Blue books, was contri-
buted by the author of this work.
IMPERIAL PARTNERSHIP 567
Government, and, since the head of it was also to be secretary
to the proposed Imperial Council, the secretariat of Mr.
Lyttelton's scheme would have corresponded with the
present secretariat of the Colonial Office in its functions.
The real difference is therefore not in the secretariat, but
in the omission of the Commission, and much confusion
seems to have arisen from this fact.
Viewed in the light of its real character, that of a Permanent
Commission, it remains to ask what purpose the scheme
would have served. No easy or obvious answer presents
itself to this question. Apparently it has been contemplated
by some of its supporters 1 as a somewhat large body,
which would afford the means of setting up commissions
to inquire into particular points : it has been suggested
that ex-Governors, ex-Ministers, and ex- Agents- General
might sit on it and lend their skill and knowledge. The
proposal is attractive until it becomes necessary to apply
it to any special case. If the topics which were enumerated
above are considered, it will be seen that in most of them
the Commission would have no scope at all for action : the
question of treaties, for instance, is a question of the sur-
render of the authority of the Imperial Government by the
admission of the Dominions to a share, and this is not
a question which a commission is in the slightest degree
competent to deal with. Still less was the question of the
Imperial Court of Appeal one thus to treat of : the Imperial
Government must advise itself what it will surrender to
the Dominions, and it could not be helped by the advice
of a miscellaneous band.
But, it will be objected, there are other topics which were
eminently suitable for reference to a commission, the ques-
tions of uniformity of legislation in particular. It is really
the crucial example of what a commission might be used
for, and it is precisely in this regard that the uselessness of
a commission becomes most apparent. The question of
uniformity of copyright law arose in an acute form after
1908 : is it to be conceived that the Dominions would have
1 Hon. W. Pember Reeves, Times, May 24, 1909.
568 IMPERIAL UNITY AND THE DOMINIONS
entrusted the consideration of a subject, which in its con-
stitutional aspect formed one of the most serious difficulty
for years, and in its domestic aspect depended entirely on
local conditions, to the judgement of a collection or selec-
tion of miscellaneous people established in London ? The
obvious answer is that they would do no such thing.
Instead Canada sent to the United Kingdom special repre-
sentatives for the purpose of expounding her views, and,
this being a suitable case because of the personality of the
choice, the Commonwealth chose Lord Tennyson to speak
for it, showing that the existence of a commission is not
essential for an ex-Governor-General to be employed if
he has special qualifications for the work. Or again, the
question of uniformity in the condition of admission and
practice regarding surveyors was dealt with in 1911 by an
ad hoc conference, which proved abortive, but the subject
was clearly one which no collection of experts of the ordinary
type could deal with. The lack of assimilation of patents
and trade marks laws is not due to any lack of advice or
understanding of the issues in those cases where the same
rules as in the United Kingdom have not been applied :
it is due to local conditions, which are precisely what such
a body would not fully appreciate : if they were to be
discussed, a conference ad hoc again would be the only
way to reach any real possibility of a result. Or is it seriously
supposed that any conference sitting in London could,
without expert help from the provinces of Canada, decide
what they should do to their workmen's compensation
law ? The differences between the British and the pro-
vincial law can be, and have been, set out in detail by the
Imperial departments concerned; but the question is not
of the differences or the arguments in favour of the British
law, but of the feeling of the province with regard to the
question1. The same thing applies to company law. The
Dominions have recorded for them in a beautifully clear
form by the Board of Trade 2 the points in which their
laws differ from the laws of the United Kingdom, but they
1 e.g. Ontario Act, 1914, c. 25 ; Cd. 7507, pp. 53-5. 2 Parl. Pap., Cd. 5864.
IMPERIAL PARTNERSHIP 569
are not all to be persuaded of the benefits, for local reasons
of which they and no London Commission can judge.
Reciprocal relief for deserted wives and children and mutual
enforcement of judgements and awards of arbitration courts
throughout the Empire are other subjects which might
in theory be referred to such a commission, but which in
fact could only be dealt with by a conference of legal experts
from the provinces and States as well as the Dominions,
and which are therefore best left to be dealt with by corre-
spondence, which, however slow, is a good deal more rapid
than the progress made by experts in reporting, while
after their report their recommendations as a rule remain
recommendations alone, or if carried out, are only so trans-
formed after further correspondence.1
In some cases the correspondence method is the best :
in others the use of conferences ad hoc, especially if the
Dominions will allow their High Commissioners to sit upon
them and so save time and delay. But all efforts to induce
the Dominions thus to deal with the question of naturaliza-
tion were a failure, so that the reception of a proposal to
refer the matter to a permanent commission can be imagined.
The question of wireless telegraphy was referred to the con-
sideration of a committee, on which the High Commissioners
for New Zealand and the Commonwealth sat, but as their
two Governments would not do anything, their presence
was not fruitful of much result. The questions of reduced
cable rates were kept in his own hands successfully by the
Postmaster-General : nor is it easy to see how confidential
negotiations, such as his, could have been managed had
they been put into the hands of a commission. On the
other hand, the general question of the resources of the
Empire were entrusted to a special Royal Commission, and
it is inconceivable that the Dominions or the United King-
dom would have sacrificed to any permanent commission
any control of the business.
The absurdity of the whole matter becomes still more
1 Nothing has been done on the report of the Surveyors' Conference
of 1911.
570 IMPERIAL UNITY AND THE DOMINIONS
plain if it is considered how the commissioners are to be
paid. No Dominion will consent to pay a salary to a man
who does no work and whom it does not control : no
Dominion will entrust any matter to the consideration of
an ex-Governor or minister or official, except for some
special cause in each case. Nor is the Imperial Government
different in essence. The Commission would therefore be
reduced to a panel of names of persons who wished to
be asked to serve on conferences ad hoc, i.e. it would have
no real existence at all. This is clearly the result of Mr.
Lyttelton's express declaration that the functions of the
body would be purely advisory, and would not supersede,
but supplement, those of the Colonial Office.
An alternative plan would seem to have been before
Mr. Deakin's mind, in which the secretariat and the Imperial
Conference would have set themselves up in the United
Kingdom as something superior to the Imperial Govern-
ment, so that the secretariat would, in carrying out the
resolutions of the Conference, have corresponded with all
the Governments, including His Majesty's Government, as
an external body. The possibility of such a body was
denied by Sir W. Laurier, who insisted that it must be
subject to ministerial responsibility, and there the matter
ended, and it must end. Apart from every other objection,
the possibility of harmony in a body representing six
different authorities is impossible, unless they all serve
one head and are organized in a hierarchy. If it could
work at all, such a body would of course have some work
to do, but it is clear that it would simply have the same
work to do as the Dominions department of the Colonial
Office, but with no real standing to enable it to carry it
out. The mere question of how such a body was to com-
municate with the provinces and States would show its
impossibility.
It is more than probable that the conception of the Per-
manent Commission was due to the analogy of tariff com-
missions, such as at times in different countries are given
a quasi-permanent life in order to report on tariff anomalies
IMPERIAL PARTNERSHIP 571
and so forth. It may in 1905 have been thought that the
next Conference would deal with tariff questions and that
it would be desirable to have prepared for it a considered
statement of the tariff position of the Empire, and after
its deliberations were over to have a body to elaborate
tariff proposals. For this purpose such a body might have
been of some use, as tariff questions are habitually in the
Dominions relegated to persons with no expert knowledge,
and, the art of tariff-making for any but revenue purposes
being lost in England, the congregation of a miscellaneous
body of ex-Governors, ministers, officials, &c., might have
been comparatively innocuous. But, seriously speaking, it is
difficult to believe that any of those who have supported the
proposition of a permanent commission have had any under-
standing of what the real meaning of such a proposal is.
The extraordinary confusion of thought prevalent on
these topics was illustrated in a most interesting way in
a memorandum put in before the Dominions Royal Com-
mission on Natural Resources, Trade, and Industry, by the
Empire Trade and Industries Committee of the Royal
Colonial Institute. In that document the Committee sug-
gested the establishment of a joint fund for the general
purpose of Empire development, thus reviving the proposal
of Mr. Deakin at the Conference of 1907, when he pointed
out that it was difficult to carry out the schemes for the
improvement of steamship and telegraph communications,
which in principle had been approved. The main difficulty,
he judged, lay in the absence of a representative body com-
petent after the Conference to reduce such schemes to
practical propositions by working out the technical details,
ascertaining the cost and apportioning it among the Govern-
ments concerned. Mr. Deakin then suggested the voting of
an annual contribution to a joint fund, to be administered
by a joint board of representatives, whose duty it would be
to prepare detailed schemes and estimates of projects sub-
mitted to its consideration by the Governments, who could
then submit the proposals to their Parliaments. At the
Conference of 1907 the objection was taken that it was
572 IMPERIAL UNITY AND THE DOMINIONS
unconstitutional to vote in advance for an unspecified
scheme, but that objection had disappeared in view of the
action of the Government in the United Kingdom respecting
the development grant. It was also objected that the pro-
posed basis of contribution, one per cent, on the value of
foreign imports, was inequitable, making the contribution of
the United Kingdom on the figures of 1910 over £5,000,000,
and that of Australia £155,000, while the population basis
would make Australia's share over half a million. To avoid
this difficulty the Committee suggested that each State
could vote as much or little as it pleased, but if it voted
nothing, the Board would be precluded from taking up any
scheme which could not be adequately carried out without
a contribution from that Parliament.
Suitable subjects for reference to such a board were,
they suggested, the ' All-Red Route ', the reduction of the
Suez Canal dues, or the State-owned Atlantic Cable, or the
question of the New Zealand Bill, aimed at excluding lascars
from the shipping trade in New Zealand, or the Australian
Bill of 1906, which proposed to confine the British preference
to goods imported in ships manned by white labour, or the
Merchant Shipping Bill of Australia, or the rebate question
in South Africa. Further, cable rates, cable landing rights,
and wireless telegraphy might be placed under the control of
the Board, which should act under the direction of the
Governments, work out schemes, carry schemes into effect,
suggest new schemes, and arrange and finance all mail and
telegraph services involving subsidies from two or more
Governments of the Empire, watch over commercial interests
as affected by maritime communications, and report on any
other subjects referred to it. A further memorandum
insisted that posts and telegraphs were suitable subjects
for control by a board, as there was no vital interest of
Dominion autonomy involved, and Crown Colonies and the
Government of India, which were being left out of account
in the Imperial movement, could thus obtain equal footing
with the Governments of the self-governing Dominions.
In reply to the Commission, it was explained that the
IMPERIAL PARTNERSHIP 573
Board should send its schemes out to the various Govern-
ments, and should amend its schemes to meet any criticism
made by the Governments. It would elect its own chairman,
and it would be responsible to the Governments represented,
each controlling its own representative. It would indeed be
in a position somewhat analogous to the permanent bureaus
created under the Brussels Sugar Convention, the Inter-
national Telegraph Convention, and the Radio-telegraphy
Convention, and would send its reports to the Secretary of
the Imperial Conference for distribution to the members of
that Conference.
Mr. Foster, the Canadian member of the Commission,
inquired whether all that was proposed could not be effec-
tively carried out by the secretariat of the Imperial Con-
ference. It was argued in reply that the existing secretariat
had failed to carry out the resolutions of the Conference, and
that, though it might be altered, it would be a very difficult
thing to do. It was admitted, however, on further cross-
examination, that it would probably be better if the pro-
posals were more restricted and the Board reduced to a
standing committee, whose vital force would be the Imperial
Conference, and which would content itself with placing in
a concrete form proposals approved by the Conference.
On behalf of New Zealand, Mr. Sinclair laid great stress
upon the difficulty of asking Governments to divest them-
selves of powers and functions which they at present had,
and to hand them over to a completely new and irresponsible
body. In reply, objection was taken to the description of
the body as irresponsible on the ground that it had no power
to spend money without the approval of Parliament in each
case, and it was admitted that this involved the fact that
there could be no practical result from any recommendation
without the agreement by Governments and Parliaments.
It was, however, argued that it threw the responsibility for
failure directly on the representatives of the people of each
Dominion and so was advantageous. Mr. Sinclair, however,
pressed the view that, if the consent of Parliament were
necessary, it was a waste of time to have recommendations
574 IMPERIAL UNITY AND THE DOMINIONS
made until the Parliaments had first considered the question,
and pointed out that it was not necessarily, as was asserted,
from any defect of organization that schemes had failed to be
carried out, but for reasons which the Government concerned
considered sufficient to preclude it from proceeding with the
schemes, and that the Governments already possessed suffi-
cient means of their own for ascertaining the facts which the
Board would have to gather. He could not accept the view
that such a body could give Governments greater guidance
on important questions than what they could derive from
their own resources ; fundamental questions, such as whether
telegraphic or maritime communications should be regarded
as merely commercial schemes, to be rejected if they could
not show profit, or accepted on political, social, and stra-
tegic grounds, were matters best fitted to be decided by
Governments, nor would their discussion by an outside body
further matters. In the concrete instances adduced by the
Committee the failure to act was clearly due to fundamental
discrepancies of outlook, such as the position of the British
and the South African Governments on rebates, and the
treatment of British Indians in shipping matters. It was
out of the question that an outside body should pass
judgement on the action either of New Zealand or of the
United Kingdom as regards the difficulty of the lascar
competition.
Other objections to the scheme were raised by the Com-
missioners, and it was suggested that no evidence had been
adduced that the existing communications were not adequate,
and still less evidence that the proposed method of dealing
with them would be an improvement on the existing instru-
mentalities. Stress was also laid on the difficulty of any
proposal which assumed that a sum of money, estimated at
six million pounds a year, would be contributed by Govern-
ments for schemes which were later to be developed in detail
and then resubmitted for the approval of the Parliaments.
The only reply which the Committee could offer was that it
would be much easier to have money spent if the money had
been voted, and was therefore in a sense ready for use, and
IMPERIAL PARTNERSHIP 575
that experience showed that certainly it was very difficult
with the existing modes of procedure to attain any effect.
The whole argument is important, as it reveals the hope-
less divergence of view between practical men of affairs and
theorists. The fact that Mr. Deakin had all his life never
mastered practical detail is precisely why his brilliance and
his energy have resulted in nothing but words : men with
far less ability have accomplished what he could never do.
It is, no doubt, easy to see that the ' All-Red Route ' is still in
the air, nor is it difficult to proceed to the conclusion that
some one is to blame, and that the person in question must
be the secretariat. It cannot be too clearly recognized that
the duty of a secretariat is not to carry out the building of
steamships or any other operations of the kind : the secre-
tariat is the instrument by which the necessary communica-
tions are made to the proper authorities as a result of reso-
lutions arrived at by the Conference. It is the duty of the
secretariat to know what the proper authorities are, and to
see that they are supplied with all the material necessary for
them to have before them in dealing with the questions sent
to them for consideration. It is further the duty of the
secretariat to see that the responsible authorities are induced,
if possible, to make up their minds, primarily to carry out the
resolution, but if not, to explain why they will not do so, and
the secretariat is also under obligation to keep the various
members of the Conference fully acquainted with what has
transpired. More than these things it cannot do, and, if
it could do, it would be usurping the Government of the
Empire. In view of the inevitable determination of every
known Government, and perhaps most of all of Dominion
Governments, to put off any decision, the task of getting any
notice taken of resolutions is not an easy one, and it says
something for the efforts of the secretariat that the action
to be taken by the Imperial Government is the action which
is first and most effectively taken, as, for instance, after the
last Conference, in the making of new treaties with the
foreign powers willing to do so, the amendment of the con-
stitution of the Judicial Committee, and the change in the
576 IMPERIAL UNITY AND THE DOMINIONS
law of naturalization, the delay in considering which in the
past fourteen years has practically entirely been due to the
total inability of any Dominion Government * to reply to
a dispatch without prolonged months either of anxious
thought, or more probably of searching for the mislaid
previous papers. So in the case of the ' All-Red Route ' the
fact that it has never come to anything lies in the simple
reason that no proposals for the provisions of such a service
as was desired in 1907 have ever been brought forward
which were from a financial point of view reasonable. It
must be understood that these commercial suggestions of
Imperial Conferences are essentially matters on which
commercial considerations only can prevail : the ideal
advantages of an increased speed in the arrival of letters in
Australia or New Zealand can easily be over-estimated, and
at any rate, if they are held to be of the highest importance
by the Dominions, they will no doubt be prepared to pay
for them the necessary subsidies, without requiring the
Imperial Government to indulge in expenditure which from
an Imperial view cannot be justified. Similarly, not only
have the Suez Canal dues been steadily reduced2 almost every
year, as a result of the pressure of the British Government,
but it is clear that the British Government has done every-
thing it can to secure this policy, at the expense of the
Imperial Exchequer, and the Imperial Government can
hardly be expected to be willing to pay further sums for the
sake of giving rebates of dues, or whatever else may be
contemplated, to British shipping, on the suggestion of any
Board whatever. And why, may it be asked, should the
Postmaster-General be prepared to forgo his control over
postage and cable rates for the sake of the advantage of
being hampered by the advice of a Board which ex hypothesi
would not consist of postal experts, unless those are to be
ranked as experts whose activity consists in agitating for
lower rates, while holding positions of no responsibility
whatever ?
1 This can be seen by a glance at Parl. Pap., Cd. 5273, giving the corre-
spondence for 1907-10. * Parl. Pap., Cd. 6863, p. 7.
IMPERIAL PARTNERSHIP 677
From quite a different standpoint a suggestion of some
interest has been recently made, with a view to promote
legislation on similar terms in matters of common interest
in the Dominions and in the mother country. The occasion
of the coronation of King George V was marked by the visit
to the United Kingdom of a number of members of the
Parliaments of the oversea Dominions, as guests of a Parlia-
mentary Committee in the United Kingdom. The members
were, of course, brought to England wholly in the capacity
of guests, and they were not in any way engaged in official
functions during their stay, which was arranged so as to
give men, who might never else have had the opportunity,
the chance of having experience of the life of the United
Kingdom. It might not, it has been suggested, be impossible
that on the occasion of the next Imperial Conference this
precedent should be followed, but the members be encour-
aged to enter into discussions inter se of the questions
debated at the Conference by ministers, or of similar ques-
tions, with a view to their better appreciation of the issues,
when the Governments should, in due course, bring forward
measures to give legal effect to resolutions of the Conference.
The arrangement would only apply to such topics as were
not party in character, such as measures requiring uniformity
of legislation throughout the Empire. To this proposal the
obvious objection, of course, is that mentioned above to
many of the resolutions dealt with by the Imperial Confer-
ence. They are matters which are not the subjects of the
legislation of either Canada or the Commonwealth, but per-
tain to the States or the provinces. On other questions
such discussion might be possible, but technical matters such
as copyright are very hard for private members of Parlia-
ment to follow, and are in practice left as a rule to the few
who have, mainly from official experience, enough know-
ledge to discuss the questions. Moreover, it may safely be
assumed that the jealousy with which those, who had been
fortunate enough to be chosen to go to England, would
be regarded by those not so fortunate would tend to
make their views suspect and unacceptable. Various
1874
578 IMPERIAL UNITY AND THE DOMINIONS
modifications of the idea, to meet such objections, could
no doubt be devised, but on the whole the proposal seems
hardly to be consistent with the principles of responsible
Government.
The events of the European War, however, have made it
increasingly clear that the immediate need is not so much
arrangements for leisurely consultations on matters of great
magnitude as for some mode of rapid communication in
cases of the highest importance, and some means of keeping
the Imperial Government more closely in touch with the
Governments of the oversea Dominions in the Pacific. The
extraordinary difference between the attitude of the Govern-
ment of Canada towards the war and that of Australia must
be observed by every one, and the consequence was a degree
of private if not of official friction which seems regrettable.
The difficulty in the case of the Commonwealth in 1915
lay in the fact that Mr. Fisher would not consent to depute
a minister to the United Kingdom to discuss matters, but
insisted on the holding of a full Imperial Conference, or,
in the alternative, of the visit of an Imperial minister to the
Dominions.1 There was a certain lack of common sense about
this attitude which betokens the unripeness of the public
opinion of Australia for an intelligent discussion of affairs.
It should be obvious on the slightest consideration that the
sending of an Imperial minister on a tour of visiting the
Australasian Dominions would be utterly impossible in the
case of a minister of any consequence, and the value of
a minister of no rank would be nil, while he would be hope-
lessly out of date in his personal knowledge of the views of
the Government of the United Kingdom. On the other
hand, an Australian minister in London would have the best
possible first-hand information on the subject, and could
freely communicate it to his fellow ministers from day to day
or week to week. The complaint that there has been no
real close co-operation in military matters between the
United Kingdom and the Commonwealth, and that the
Commonwealth and New Zealand have not been told what
1 Times, May 22, 1915; contrast Mr. Hughes' wise action (p. 583).
IMPERIAL PARTNERSHIP 579
they are expected to do in the way of providing troops, is
a compliment to the correctness of the attitude * of the Im-
perial Government, and the difficulty arises precisely from the
present stage of the relations of the self-governing Dominions
and the Empire.
It cannot be too clearly understood that, as these relations
now stand — as a strong party in Canada under the guidance
of Sir W. Laurier thinks that they should stand — the Do-
minions are in the position that, while through their forming
part of the Empire they are liable to be involved in wars
without their consent — as in the case of the present European
War, though they made it clear that they hoped that the
United Kingdom would fight, and though it is recorded that
Australia, with her usual failure to understand the United
Kingdom, feared that the United Kingdom would stand
aloof from the conflict — yet in such a case they are under no
obligation, other than what their own will imposes on them,
to send any assistance to the United Kingdom. As an
immediate consequence of this position, they have not the
right to dictate the Imperial policy of the United Kingdom,
for the simple reason that, if the result of the pursuit of such
policy was war with a foreign power, the United Kingdom
would be without any right other than a moral right to ask
for the whole force of the Empire to be exerted in the war.2
The position of Sir W. Laurier has been always abundantly
clear in its exposition : he declined, in the Conference of
191 1,3 to press for the right of the Dominions to give advice
on treaty matters, because advice meant that the Dominions
should be willing to back up their advice with deeds, and
Canada was not prepared to do so. If the Commonwealth
desires to have the power to give authoritative advice on
1 The intimation that the United Kingdom would take all the men sent
by Australia was not a request, but an answer to a request for information :
it therefore does not violate the rule as suggested in the Round, Table, 1915,
p. 865 ; for Canada see Sir W. Laurier's speech of Jan. 17, 1916.
2 Round Table, 1915, p. 431. This involves, of course, the lack of reliance
by the Imperial Government on the Dominions and lack of co-operation for
joint action.
a Part. Pap., Cd. 5745, p. 117.
O O 2
580 IMPERIAL UNITY AND THE DOMINIONS
matters affecting the Empire, it would be necessary for the
Commonwealth to enter into such a relation with the United
Kingdom that the amount of aid which would be forth-
coming from the Commonwealth could be definitely decided
upon and rendered available without question or doubt,
when the United Kingdom desired it. Such an arrangement,
which assured the Commonwealth the power of giving
authoritative advice, would essentially involve some sort of
federation for purposes of defence and foreign policy at
least : and, while, in such an arrangement, the Common-
wealth could give its advice as a matter of right, it could not,
of course, expect its advice to be taken if the majority of
voices in the federal authority were against it. It is obvious
that with its small population, therefore, any such arrange-
ment would give no security to the Commonwealth that it
would obtain its ends, and therefore it is not at all wonderful
that the idea of federation for defence as proposed by Sir
J. Ward at the last Conference should have received scant
consideration from Mr. Fisher.
The position, therefore, is that in offering advice the
Commonwealth acts as one who is not necessarily prepared
to back up his advice if need be, and, if prepared to do so,
is only prepared to send an indefinite amount of help, which
may be changed from day to day at his own pleasure. The
position is one which need not in the slightest degree be
considered as being discreditable to the Commonwealth :
the alternative would be to merge a portion of her autonomy
with the certainty of having a very faint voice in the decisions
of the federal authority which might be set up. But, on the
other hand, it is equally absurd to expect that the wishes of
a Dominion which stands in this relation to the United
Kingdom can necessarily always be given full effect to.
There is this error running through all the long protests in
violent language of the Commonwealth and Dominion
Governments regarding the attitude of the British Govern-
ment in the case of the New Hebrides and of Samoa. The
position adopted by the Dominions was only justifiable if the
United Kingdom were in the position of an agent of the
IMPERIAL PARTNERSHIP 581
Dominions, whose failure to carry out their wishes was
matter for censure of the most severe kind. It is, of course,
true that the allegiance of the Dominions to the Crown
produces a very definite obligation on the part of the United
Kingdom, namely, to preserve the Dominions from external
aggression with the whole force of the Empire, so long, of
course, as the Dominions do not themselves provoke a war,
in which case the duty of the Imperial Government would
disappear, and its action would fall to be decided by con-
siderations of sentiment or honour or profit, alone or in
combination . But this obligation , which the United Kingdom
has never attempted to limit or repudiate in any way, is
confined to the existing boundaries of the Dominions and to
any changes in these boundaries made with the assent of the
Imperial Government. It is not obligatory on the Imperial
Government to quarrel with France over the New Hebrides,
or, in the alternative, to sacrifice the population of the west
of Africa for the sake of acquiring lands for Australia ; nor is
it the duty of the United Kingdom to annex territory merely
because a Dominion would like it to be British. It is not
out of place to add that the calm demand that territories
should be annexed, while the Dominions alone interested
will not even consent to pay for the cost, is one of those
proposals which can only be understood on the system that
it is never a mistake to ask for anything, since it is always
possible it will be given, and asking does no harm. This
should not be the position of a nation or would-be nation,
and the folly of the Cape Government in refusing to pay for
the administration of the territory which later became
German was unquestionably the cause of the losses of the
Union in its conquest of that country and of the rebellion
which the presence of German troops on the border fomented.
Nor was it until 1887 that the colonies of Australia realized
that the annexation of British New Guinea meant that they
must pay part at least of the cost of administration.
Further, the relation of the United Kingdom to the Do-
minions renders the Imperial Government unable to press
the Dominions in any way for men or other assistance. It
582 IMPERIAL UNITY AND THE DOMINIONS
can only wait for offers of service, and any pressure to the
Dominions to raise definite amounts of men would be uncon-
stitutional and would be open to the most severe censure
from the Dominions. Here is a clear case in which a Do-
minion minister in London could send to his Government the
information required in a proper form : he could say, after
consulting the Imperial Government, that the needs of the
situation were for every man available, and that, put in
a practical form, the Imperial Government thought that
Australia or New Zealand might best contribute such and
such forces. The information would then be available in
the hands of the Dominion Government in the best and most
effective form, conveyed by a minister and colleague of their
own as the result of information of the most authentic
character, and at the same time put as no demand or even
invitation, but an indication of the most effective service
which could be rendered to the Empire. It is surely idle
to argue that a formal Conference must be convened for this
sort of thing, especially when it is known that, when the
proposal for convening such a Conference was pressed,1 New-
foundland was the only other Dominion which could have
been represented, so that if the demand were taken literally
it meant that the Commonwealth wished an excuse to say
that its wishes had been ignored, when it made deliberately
a demand for what could not, through no fault of the United
Kingdom, be conceded, because the other Dominions could
not be represented.
The great response of the Commonwealth to the necessities
of the situation, and its determination to give such aid as it
can in the war, render it obvious that the question of the
final settlement is one in which it will be deeply interested,
especially, of course, in the hope that it will obtain, in case of
victory, the German territories which it has occupied, and
some arrangement by which the New Hebrides can be secured
1 By the Round Table in March 1915 (pp. 325-44) and by Australia
(Times, May 22, 1915). But cf. Round Table, 1915, pp. 670, 700, 867,
where it is pointed out that some of Mr. Fisher's colleagues deprecated
a Conference.
IMPERIAL PARTNERSHIP 583
to the British Crown. These are legitimate desires, and
even if, as a matter of fact, the need of using the Australia
to protect the expeditions from New Zealand to Samoa,1
and from Australia to the German possessions in the north-
east, may have interfered with her activities in more impor-
tant directions, still it was worth while securing the early
success of these expeditions, which gratified naturally in
the fullest degree the national wishes of the two Dominions
and allowed them to see the fruits of war without its hard-
ships, such as their men were shortly to face with such
conspicuous courage in the Dardanelles. But the suggestion
that there is the slightest chance of any final terms of peace
being arranged without the consultation of the Dominions is
one of the most idle imaginings ever invented in order to
cause ill-feeling between the Dominions and the Imperial
Government.2 It seems, however, to be a belief implanted
in the mind of the Australian that the root of all evils is the
fact that communications with the Imperial Government
pass through the Colonial Office, and, unless that sentiment
is removed by the fact that in the Coalition Government
a statesman born in the Dominion par excellence has held
the seals of the Colonial Department, it may be a good reason
for changing the channel of control of such communications
to the hands of the Prime Minister. In the long run it is
merely a question of rearrangement of duties which would
be involved : a Prime Minister must definitely concentrate
his work in certain channels, and must therefore always be
put to the necessity of deciding what sides of business he is
to deal with.
There is, it is fortunate, no sign in Canada or in South
Africa of any uneasiness as to the Imperial action in the
event of peace, nor has there been much indication of dis-
1 Parl Pap., Cd. 7972, 7975.
2 Mr. Hughes, the new Prime Minister of the Commonwealth, announced
on November 4, 1915, that the Imperial Government had promised con-
sultation, if possible, before peace terms are arranged, and visited London
in March, 1916. Sir J. Ward and Mr. Massey and Sir R. Borden will also
come in the course of 1916.
584 IMPERIAL UNITY AND THE DOMINIONS
satisfaction with the Imperial Government in any regard.
The presence of a minister in London and the visits of its
Prime Minister have enabled Canada to keep in touch with
the progress of the war in a way which no other Dominion
has been able to do, and in the case of the Union the confi-
dence reposed by the Union Government in their represen-
tative in London, added to the close touch in which the
Union Government have been able to keep with the Imperial
Government through Viscount Buxton, whose place as
an ex-minister of the Crown renders his help specially
valuable, have prevented the divergence of sentiment which
seems to exist in the case of Australasia.
But the exigencies of the war must raise for the most
serious consideration of all the Dominions the problem
what they are to do to keep in touch with the progress of
foreign politics. It is no doubt true that in an emergency
there is scant time for consultation with the Dominions, but
there would be time for consultation with a Dominion
minister who was resident in London, and, if the minister
were, as he should be, in touch with his Government and
with popular feeling in the Dominion, the views of the
Dominion would have a chance of being expressed effec-,
tively : whether they prevailed or not would depend on all
the circumstances of the case, nor does any Government of
a Dominion seriously suppose that its views can always
prevail. Nor short of a federation of some kind, even if only
for defence and foreign policy, is there any other way what-
ever to keep in touch with foreign affairs.
It is, of course, a question whether the time has yet come
when the Dominion Governments, all or some, desire thus
to keep in touch with foreign affairs. In Canada, from its
proximity to Europe, there is clear proof that the desire does
exist : it is expressed in the one form by Sir Robert Borden
in his desire to have the Dominion in the closest touch with
the heart of the Empire, and it is also expressed by another
and less imperialistic quarter, Mr. Ewart, who avows that he
desires the declaration of the status of Canada as an inde-
pendent kingdom, because it would enable Canada to take
IMPERIAL PARTNERSHIP 585
a part in international politics as a sovereign State. That
is clearly not the wish of Sir Wilfrid Laurier, whose view has
always been to press to its furthest conclusion the doctrine
of the autonomy of the Dominion within the Empire, and
who has never sought, so far as can be seen, to attain for
Canada a position as a unit in international politics, except
for fiscal matters ; these are, of course, only indirectly poli-
tical, for autonomy, real or qualified, in fiscal matters has
been from time to time assigned to semi-sovereign States.
It may be that the ideal of Sir W. Laurier has been indepen-
dence of the Dominion in the fullest sense, but of that he has
said nothing, and perhaps has thought nothing, content with
establishing and extending in every sphere of action the
doctrine that Canada is autonomous. But the position of
Canada in its close proximity to London, is undoubtedly
a fact of the greatest importance in its bearing on her relation
to the United Kingdom, and, on the other hand, the intense
suspicion of one another which seems to be a characteristic
of ministers of Australasia may prevent the ready accept-
ance of the view that a resident minister would be a good
idea. It is clear that the usual objection that such a minister
would rapidly cease to be in touch with the Government at
home has more weight in the case of Australasia than in
that of Canada, but it could easily be arranged that the
minister should vary from time to time.1 The practice of
appointing ministers without portfolios, which is even now
not unknown in the United Kingdom, is a common practice
in the Dominions, and there would, it seems, be no insuper-
able difficulty in allowing the post in London to rotate
among the members of the Ministry. The question of salary
would no doubt be a difficulty for a short time, since Do-
minion ministers receive, save in the Union, salaries of very
small amount, but the position could be dealt with by
frankly pointing out to Parliament that a minister must be
provided with a reasonable sum and a London residence.
1 It is most significant that, despite the appointment of an ex-Prime
Minister as High Commissioner for Australia, to obtain close touch with
foreign affairs, Mr, Hughes himself came home in 1916.
586 IMPERIAL UNITY AND THE DOMINIONS
It might, it may be added, be possible to let the minister
supervise the work of the High Commissioner's office, and to
perform the ornamental duties of that post, leaving the
Government free to fill the post with a really first-class
business man, whether in or out of politics. It is obviously
not reasonable to expect a business man to have other
qualifications for the work, and experience has shown that
the good man of business in the position of Agent-General
or High Commissioner is rarely good at other things. But
these are minor matters, and, though trifles count for much
more in these questions than is often realized, still, if a Do-
minion is really anxious to have first-hand information of
foreign affairs, and thus to be in touch with the progress of
events in Europe and abroad, it will not find it difficult to
adopt this device, as a stage perhaps to some more satis-
factory condition. Constitutionally the offer of the Imperial
Government is undoubtedly correct : it will willingly give
information and weigh advice, but it retains responsibility,
just as the Dominions retain their right to withhold or give
aid in war, and to regulate as they think fit the amount of
aid they will give, if it is accorded at all. On the other hand,
while the Dominions are exposed to being involved by the
United Kingdom in war, they are assured of the full pro-
tection of the United Kingdom in such a war, and they enjoy
in peace the advantages which come from membership of
a great Empire, without incurring any obligation to contri-
bute to the cost of maintaining that Empire.
There is also a further question which must be solved in
any final treatment of the constitutional arrangements of the
Empire. It must always be remembered that the position
of the Empire par excellence, India, can no longer be ignored
in any decisions which are to be taken on such a matter.
It is obvious enough that the long years of British rule are
bearing in India their due fruit, and the folly of revolution-
aries should not conceal the fact that English education is
producing an appreciation of western political ideals which
alters inevitably the relations of the Imperial Government
to the Empire. The Dominions cannot expect to share in
IMPERIAL PARTNERSHIP 587
the position formerly enjoyed without question by the
United Kingdom, as the autocratic, if benevolent, con-
troller of the destinies of the country. The self-conscious-
ness of the people of India, as voiced by the inheritors of
English political aspirations, would decline to accept the
theory that Indian policy could be controlled in any way
by the representatives of the Dominions, and this refusal
would be completely justified, in view of the fact that the
Dominions shut their doors on the admission of Indians, and
accordingly treat Indians as such as inferiors, on ground
of race alone. It is no answer to this fact that Indians, in
their turn, regard Europeans as inferior on racial grounds :
two wrongs do not make a right, and the United Kingdom
fortunately is not impelled by economic considerations and
by fear of a large Indian immigration to defend itself by an
exclusion policy. On the other hand, it is absurd to demand
that the Dominions shall alter their exclusion policy in any
wholesale sense : to put forward this claim would be to ask
the Dominions to commit social suicide, and therefore it is
idle to urge the adoption of such a course of action. But,
on the other hand, the modification of the present system
so as to ensure free and undisputed entry, without humiliat-
ing formalities administered by underbred officials of low
status and worse education, is a duty which is imperative
on the Dominions in the interest of good neighbourship.
Nor is it possible for a moment to defend the differential
treatment on grounds of race of domiciled Indians. The
fact that the influx of Indians must be stopped has nothing
whatever in common with the question of the treatment of
those already settled, and the policy of South Africa in this
respect has been an extraordinary record of meanness. But
on the other hand it is impossible to acquit the British
Government of having missed opportunity after opportunity
of solving the questions raised, though the greatest share of
the blame must rest with Lord Milner, who thought it con-
sistent with British honour to denounce the Transvaal
Government for the wrongs of British Indians, and to pro-
pose to increase these wrongs by the legislation of a Crown
588 IMPERIAL UNITY AND THE DOMINIONS
Colony, a policy which, in justice to Mr. Lyttelton, it should
be noted that he firmly declined to sanction. Even later,
however, the opportunity presented by the remission of the
debt of £30,000,000, owed by the Transvaal to the Imperial
Government, the guaranteeing of the £5,000,000 loan, and
the passing of the Union Act offered chances of intervention
of which the Imperial Government availed themselves with
a regrettable feebleness.
It follows inevitably that the Dominions cannot expect to
be allowed to determine the destinies of the Empire of India,
and from the point of view of the Imperial Government it is
clear that in their general foreign policy they must expect
to have in future to consider the views of India with as much
care as they consider those of the self-governing Dominions.
Their duty in either case is identical, and must be carried out
without favour to either. It is inevitable, therefore, that
India should be allowed a voice in the Imperial Conference
just as any self-governing Dominion is allowed : it is indeed
ludicrous to think that New Zealand, South Africa, and New-
foundland are to be ranked as superior to the Empire of
India : it is right, further, that that voice should be uttered
by a representative of India other than the Secretary of
State for India, and preferably by a member of the Indian
race. If the Dominion Governments recognize frankly and
willingly this position, a great step in the effective consolida-
tion of the Empire in sympathy will have been gained, and
there is no matter in which more easy and obvious progress
towards Imperial unity could be made, and that, too, with-
out any formality or difficulty. The services rendered by
India in the war afford an unparalleled opportunity for such
recognition. Similarly, the definite abandonment of the
foolish attitude of suspicion towards, and dislike of, Japan,
manifested in Canada and Australasia, would be a most
valuable outcome of the great advantage derived by the
Allies from the support of Japan.
CONCLUSION
AT the conclusion of this review of the chief facts affecting
the relations of the Imperial Government and the Govern-
ments of the Dominions, it may be desirable to set out
briefly the proposals which might in my opinion advan-
tageously be carried into effect in the near future. I yield
to no one in admiration of the splendid and legitimate ideal
of bringing about a true union of the Empire, but I have
as little faith in the possibility of its consummation at an
early date as I have in the fruition of schemes of the perma-
nent pacification of Europe or the effective control of foreign
policy by democracy. To such a result there seems to me to
be an insuperable obstacle in the spirit of the self-governing
Dominions, whether it be called the proud self-conscious-
ness of national destiny or a narrow and short-sighted
parochialism, or, as is more just, it be deemed a blend of both.
In 1911 the offer of Mr. Harcourt on behalf of the Imperial
Government to arrange methods of fuller consultation with
the Dominions was answered decisively in the negative by the
representatives of the Dominions other than New Zealand : his
still more decided offer in 1912 to Australia, New Zealand, and
the Union of South Africa to admit them, as Canada was to
be admitted, to a more real share in the direction of the
foreign policy of the Empire received a totally negative
response : Australia preferred the cumbrous and ineffective
machinery of the Imperial Conference, and the Union of
South Africa hinted suspicion of any attempt at closer
relationship. While the party of Sir Robert Borden has
risen to the conception that the highest hope of Canadian
greatness lies in the closest union on terms of equality with
the United Kingdom, Sir Wilfrid Laurier, while lending to
the cause of the United Kingdom in the great war the sup-
port of his unrivalled eloquence, remains as fully devoted
as ever to the doctrine of the isolation of Canada and her
590 IMPERIAL UNITY AND THE DOMINIONS
independence under the Imperial Crown. The great war
will, we may assume, be a potent influence towards the
unification of the Empire, but this influence, it is certain,
will not be catastrophic, but will manifest itself gradually
and through a long space of time.
For the immediate future I suggest for the consideration
of the Governments concerned in the Imperial Conference
the following principles :
1. That the Governors-General and Governors of the
Dominions and the Governors of the Australian States
should be placed as regards legal liability for their official
actions in the same position as that now occupied by the
Lord Lieutenant of Ireland.
2. That the Governors -General and Governors be required
in the conduct of the Executive Government of the Dominions
and States to observe the same principles in all respects,
including the grant of a dissolution of Parliament, as are
observed by the Crown in the United Kingdom.
3. That all personal responsibility on the part of Governors-
General and Governors in respect of the exercise of the
prerogative of mercy should be removed.
4. That, while the supremacy of Imperial over Dominion
legislation should be retained, the power of the Imperial
Government by means of reservation and disallowance to
control Dominion legislation should be formally abandoned.
5. That all legal restrictions on the powers of Dominion
Parliaments to regulate merchant shipping should be
removed ; that the extent to which Dominion legislative
authority should be exercised in respect of British ships not
registered therein should be settled by constitutional agree-
ments ; and that legislation should be passed to secure the
enforcement in the several parts of the Empire of laws of
other parts, affecting ships registered in those parts, in the
same manner as that in which the provisions of the Imperial
Merchant Shipping Acts are enforced in respect of ships
registered in the United Kingdom by all the courts through-
out the British Empire.
6. That means should be provided by which the constitu-
CONCLUSION 591
tions of the Dominions can, in so far as existing provisions
in this regard are not already adequate, be altered by the
authority of the people of the Dominions without reference
to the Imperial Parliament.
7. That, in order to preserve the Judicial Committee of
the Privy Council as a supreme court of final appeal for
the Empire, it is essential that it should be given a real
Imperial character by the inclusion among its membership
of effective and continuous representation of the Dominions,
and by the entrusting to it of the judicial appeals in the
United Kingdom which at present are dealt with by the
House of Lords.
8. That it is an essential condition for the attainment of
Imperial unity that the Governments of the Dominions
should take into their earnest consideration the means by
which, while preserving essential homogeneity of race, free
and unrestricted entry into their territories shall be secured
to all educated British Indian subjects, and that all restric-
tions which are at present, on grounds of race or colour only,
imposed on British Indians who are legitimately resident in
the self-governing Dominions should be rescinded.
9. That, whenever desired by Dominion Governments,
arrangements should be made for their representation at
International Conferences, whether the objects of these
conferences are political or not, by plenipotentiaries, nomin-
ated by the Government concerned and appointed by the
King on the advice of the Imperial Government, constitu-
tional agreements being made as to the mode in which the
votes of such representatives shall be cast in cases where
it is imperative that the action of the Empire shall be
uniform, and the ratification of agreements concluded by
such representatives resting with His Majesty on the advice
of the Imperial Government acting in consultation with the
Dominion Governments.
10. That the Dominion Governments should take advan-
tage of the offers of the Imperial Government to afford
them the fullest information with regard to, and as far as
possible a share in the control of, foreign policy, and that
592 IMPERIAL UNITY AND THE DOMINIONS
for this purpose it is desirable that there should be frequent
visits to the United Kingdom of ministers of the Dominions,
and that if possible each Dominion should be represented
continuously in London by a minister enjoying the full
confidence of his colleagues and of cabinet rank, whose duty
it should be to keep his Government constantly and closely
informed of all matters affecting the foreign relations of the
Empire and to secure that the foreign interests of the Dominion
shall be fully and completely represented to the Imperial
Government.
11. That it is essential, in view of the experience of the
present war, that all defence should be conceived on an
Imperial and not on a local basis, and that the control of
defence which is properly desired by the Dominions should
be attained in the form of a share in the control of the whole
defence forces of the Empire, and not as at present through
the establishment of isolated local units.
These are only simple proposals, but they can claim to
be practicable, as they are merely extensions of principles
already in operation, and they are not therefore exposed to
the grave political and commercial difficulties which will
attend any scheme of federation or commercial union.
TABLE OF ACTS CITED
IMPERIAL
I Will. & Mary, s. 2, c. 2 : 156.
II & 12 Will. Ill: 36.
4 Geo. II. c. 21 : 251.
13 Geo. III. c. 21 : 251.
43 Geo. III. c. 85 : 36.
59 Geo. III. c. 38 : 148, 284.
3 & 4 Will. IV. c. 41 : 498.
5 & 6 Viet. c. 45 : 237.
6 & 7 Viet. c. 22 : 139 n. 1.
7 & 8 Viet. c. 69 : 368.
10 & 11 Viet. c. 83 : 122.
„ „ c. 95 : 237.
12 & 13 Viet. c. 96 : 138 n. 2.
13 & 14 Viet. c. 59 : 261.
15 & 16 Viet. c. 72 : 176, 415.
17 & 18 Viet. c. 104 : 214.
20 & 21 Viet. c. 53 : 415.
22 & 23 Viet. c. 12 : 139 n. 1.
23 & 24 Viet. c. 88 : 138 n. 2.
„ „ c. 122 : 188 n. 2.
24 & 25 Viet. c. 100, s. 9 : 136.
s. 57 : 136.
24 & 25 Viet. c. 114 : 246.
28 & 29 Viet. c. 14 : 311.
„ „ c. 63 : 139, 140, 380.
,, ,, c. 64 : 139.
30 & 31 Viet. c. 3, s. 26 : 392.
s. 91 (2) : 436, 452.
„ (25) : 435.
„ (29) : 444.
s. 92 : 134, 376, 442.
s. 93 : 435.
s. 95 : 442.
s. 132 : 444, 626.
s. 133 : 490.
32 & 33 Viet. c. 11 : 214, 227.
33 & 34 Viet. c. 14 : 122, 244.
,, ,, c. 28 : 395.
„ „ c. 52 : 84, 298, 299.
35 & 36 Viet. c. 19 : 83.
36 & 37 Viet. c. 22 : 264.
37 & 38 Viet. c. 27 : 138 n. 2.
38 & 39 Viet. c. 51 : 88.
41 & 42 Viet, c. 73 : 84, 129.
44 & 45 Viet. c. 58 (as amended)
307-9, 314.
48 & 49 Viet. c. 60 : 217.
,, ,, c. 69 : 84, 136.
49 & 50 Viet. c. 35 : 395.
52 & 53 Viet. c. 63 : 461.
53 & 54 Viet. c. 26 : 41 n. 1.
„ „ c. 27: 186, 145, 234
n. 1, 461 n. 1.
53 & 54 Viet. c. 32 : 283.
„ „ c. 37 : 246.
57 & 58 Viet. c. 30 : 132, 133.
,, „ c. 89: 462.
57 & 58 Viet. c. 60, s. 444 : 215, 230.
s. 474 : 228.
ss. 685-7, 138 n. 2.
s. 735 : 145, 214, 233, 314 n. 1.
s. 786 : 145, 214, 225-7.
58 & 59 Viet. c. 3 : 264.
„ „ c. 44 : 380.
63 & 64 Viet. c. 12, s. 5 : 216, 217, 313.
Const, s. 51 : 313, 352, 443.
s. 51 (xxxv) : 219.
s. 51 (xxxviii) : 466.
s. 52 : 445.
s. 57 : 106.
s. 71 : 356.
s. 73 : 356.
s. 74 : 372.
s. 92 : 355-7, 445, 470.
s. 99 : 446.
s. 100 : 446.
s. 101 : 356, 357.
s. 106 : 445.
s. 107 : 445, 468.
s. 112 : 445.
s. 114 : 445.
s. 115: 445.
s. 116 : 446.
s. 117 : 445, 470.
s. 119 : 439.
s. 120 : 446.
s. 128 : 110, 112, 466.
4 Edw. VII. c. 24 : 230.
„ „ c. 33: 283.
6 Edw. VII. c. 48 : 225.
„ ,, c. 30 : 159.
7 Edw. VII. c. 7 : 397.
„ ,, c. 11 : 880.
„ „ c. 47 : 159.
8 Edw. VII. c. 51 : 381.
9 Edw. VII. c. 9 : 40 n. 1, 187-9, 306,
873, 374, 415, 461, 484.
10 Edw. VII. & 1 Geo. V. c. 28 : 229.
P p
.V.»4
TABLE OF ACTS CITED
1 & 2 Geo. V. c. 13 : 87, 414.
„ „ c. 20 : 288 n. 8, 298.
„ „ c. 46: 241, 288.
„ „ c. 47 : 814.
„ „ c. 67 : 285.
8 & 4 Geo. V. c. 21 : 888.
4 & 5 Geo. V. c. 17 : 249-62, 258.
„ „ c. 60 : 285.
„ „ c. 90: 418.
5 & 6 Geo. V. c. 1 : 288.
„ c. 21 : 285.
,, „ c. 45: 894-6.
„ „ c. 92 : 388.
CANADA
1868, Bill, 151.
1870, c. 8 : 895.
1889, c. 29 : 149.
1891, c. 40: 149, 215.
1905, c. 8 : 895.
„ c. 42: 895.
1906, Revised Statutes, c. 10 : 643 n. 1.
c. 41 : 807.
c. 81 : 169.
c. Ill : 315.
c. 189 : 369, 870.
c. 146, s. 307 : 186.
c. 146, s. 1025 869.
c. 155, ss. 34-9 : 299 n. 1.
1907, c. 50 (see now 1913, c. 27) : 194.
1909, c. 82 : 422.
1910, c. 27 : 254.
„ c. 43 : 813.
„ c. 61 ; 284.
1911, c. 12 : 254.
„ c. 14 : 169.
., c. 28 : 422.
1912, c. 22 : 422.
„ c. 32: 395,492.
(Manitoba 1912, c. 6.)
1912, c. 40: 492.
(Ontario, 1912, c. 8.)
1912, c. 45: 492.
(Quebec. 1912, c. 7.)
1914, c. 51 : 398.
1914, BOSS. 2, c. 2 : 352, 368.
QUEBEC
68 Viet. c. 16 : 877.
Rev. Stat. Art. 1380 : 377.
1910, c. 82 : 435 n. 8.
1914, c. 11 : 377.
NOVA SCOTIA
1913, c. 47 : 668.
MAXITOBA
1913, cc. 4, 11 : 658.
„ c. 19 : 198.
[BRITISH COLUMBIA
1908, c. 28 : 194.
SASKATCHEWAN
1912, c. 17 : 197, 435.
1918, c. 2 : 124.
„ c. 8 : 125.
„ c. 18 : 197, 435.
ALBEBTA
1910, c. 9 : 483, 434.
.. c. 11 : 433, 434.
1918, c. 3 : 125, 126.
NEWFOUNDLAND
1897, c. 28 : 154, 155.
1905, c. 4 : 284, 285.
1912, c. 6 : 242.
1914, c. 19 : 187.
COMMONWEALTH OF
AUSTRALIA
1903, No. 11 : 247.
„ „ 20:313.
1904, „ 14 : 234.
1905, „ 20: 464.
1906, „ 16: 464.
Reserved Bill, 82: 572.
1908, No. 7 : 372.
„ ,,8: 872.
1909, ,, 15: 804.
„ „ 29 : 228.
1910, „ 21 : 469.
„ „ 80: 818.
37 : 304.
1911, , 13 : 558.
15: 306.
16: 313.
1912, , 4: 52 n. 1, 872,466.
5: 806.
19: 558.
20: 242.
21 : 314.
25 : 201 .
26: 201.
29: 558.
31 : 218, 460.
38 : 865-7, 471; 478.
88: 199.
1918, , 4 : 200, 222.
15 : 235 n. 2.
20: 899.
Nrw SOUTH WALKS
42 Viet. c. 19 : 220.
1909, No. 22 : 873.
TABLE OF ACTS CITED
595
1912, No. 6 : 425.
„ „ 27 : 158 n. 1.
„ „ 53: 425.
„ „ 71 : 398.
1913, „ 7 : 425.
1914, „ 27 : 355.
VICTORIA
No. 389 : 312.
„ 417: 312.
„ 2496 : 558.
QUEENSLAND
1867, No. 31 : 389.
1884, „ 27 : 312.
1908, ,, 2: 389.
„ „ 16 : 389.
1911, „ 31 : 428.
1913, „ 4 : 201.
1914, „ 2 : 355.
SOUTH AUSTRALIA
1865-6, No. 2 : 406.
No. 1048 : 179.
1053: 558.
1065 : 41.
1087 : 41.
1089 : 407.
1148: 407, 408.
WESTERN AUSTRALIA.
1904, No. 12: 41 n.l.
1905, „ 14: 179.
1911, „ 4 : 368 n. 1.
» „ 17 : 73.
,, „ 42: 179.
1912, „ 7 : 159 n. 1.
n „ 17: 41.
„ „ 69 : 588.
TASMANIA
1912, No. 18: 73.
1913, „ 12 : 253.
NEW ZEALAND
1867, No. 39 : 162.
1908, „ 178: 225.
1909, „ 15 (cf. 1912, No. 34) : 173-7.
„ „ 28 : 304.
„ „ 36 : 216.
1910, , 21 : 304.
1910, No. 85 : 223.
1911, „ 84: 558.
„ „ 37 : 216, 234.
1912, 4: 73.
20 : 305.
22: 369.
23 : 52 n. 1.
1913, 4 : 242.
86 : 412 n. 2.
45 : 814, 827.
69 : 369.
1914, 59: 415.
UNION OF SOUTH AFRICA
1910, No. 4 : 248.
1911, „ 21 : 40 n. 2.
„ „ 23 : 182.
1912, „ 13: 181.
„ „ 29 (see 1914, No. 39): 52 n.l.
1913, „ 10 : 40 n. 1, 205, 255, 306,
307, 485.
„ No. 27 : 185.
1914, „ 1: 161.
„ „ 22 : 212.
„ sess. 2, No. 1 : 358, 359.
CAPE OF GOOD HOPE.
1887, No. 14 : 181.
1892, „ 9: 181.
1906, „ 30 : 207 n. 4, 210.
1909, „ 10: 487.
NATAL
1895, No. 17 : 204, 211.
1897, „ 1 : 193.
1903, „ 3: 211.
1905, „ 18: 248.
1905 Bill : 204.
1906, No. 50 : 163.
1908 Bills : 205.
TRANSVAAL
Ordinance 38 of 1902 : 163.
1907, No. 2 : 203.
„ „ 15 : 203.
1908, „ 36 : 203 n 1.
ORANOE FREE STATE
Law Book, c. xxxiii : 205.
Ordinance 25 of 1902 : 205.
1908, No. 42 : 185.
P p 2
TABLE OF CASES CITED
Abbott v. City of St. Jo;»n,40S.C.R 697 :
448.
Ah Sheung v. Lindberg, [1906] V.L.R
323 ; 4 C.L.R. 949 : 254 n. 1.
Ah Yin v. Christie, 4 C.L.R. 1428:
254 n. 1.
Alberta and Great Waterways Railway
Case, [1913] A.C. 288 : 134-6.
Attorney-General for British Columbia v.
Attorney-General for Canada, [1912]
A.C. 153: 455.
Attorney-General of British Columbia v.
Attorney-General of Canada, 14
App. Cas. 295 : 458.
Attorney -General of British Columbia v.
Canadian Pacific Railway Co., [1906]
A.C. 204 : 453.
Attorney-General for Canada v. Attorney-
General for Ontario, [1897] A.C. 199 :
458.
Attorney -General for Canada v. Attorney-
General for Alberta, Times, Feb. 25,
1916 : 454.
Attorney- General of Canada v. Cam and
Gilhula, [1906] A.C. 542 : 181.
Attorney-General for the Commonwealth v.
Colonial Sugar Refining Co., [1914]
A.C. 237 : 466.
Attorney-General for the Dotninion v.
Attorneys-General for the Provinces,
[1898] A. C. 700: 455.
Attorney- General for New South Wales v.
Brewery Employes' Union of New South
Wales, 6 C.L.R. 469 : 464.
Attorney-General of New South Wales v.
Collector of Customs for New South
Wales, 5 C.L R. 818 : 463, 469.
Attorney-General for Ontario v. Attorney -
General for Canada, [1912] A.C. 571 :
123, 459.
Attorney-General for Ontario v. Attorney-
General for the Dominion, [1896]
A.C. 848: 450, 451.
Attorney-General of Ontario v. Attorney-
General of Canada, [1894] A.C. 189:
450.
Attorney-General of Ontario v. Mercer,
8 App. Cos. 767 : 458.
Australian Boot Trade Employe's1 Federa-
tion v. Whybrow <£• Co., 10 C.L.R.
266: 465-
Australian Boot Trade Employes' Federa-
tion v. Whybrow & Co., 11 C.L.R.
311 : 465.
Bank of Toronto v. Lambe, 12 App.Cas.
575: 451.
Baxter v. Ah Way, 8 C.L.R. 626 : 449.
ex parte Belli, [1914] C.P.D. 742: 859.
Bonanza Creek Gold Mining Co. v. The
King, Times, Feb. 25, 1916 : 454.
Bowles v. The Bank of England, [1918]
1 Ch. 57 (full text published by
Butterworth & Co., 1914), 39 n. 1 ;
see 8 Geo. V. c. 8 ; Union of South
Africa Acts, Nos. 7 and 9 of 1918.
Brook v. Brook, 18 N.S.W.R. Div. 9 :
159 n. 1.
Brophy v. Attorney-General for Manitoba,
[1895] A.C. 202 : 438.
Cameron v. Kyte, 5 App.Cas. 102 : 177.
Canadian Pacific Railway Co. v. Corpora-
tion of Notre-Dame de Bonsecours,
[1899] A.C. 867 : 453.
The Captain and Owners SS. ' Durham '
v. The Collector of Customs, Welling-
ton, 31 N.Z.L.R. 565: 223.
Carey v. Roots, 870.
Chaplin v. Commissioners of Taxes for
South Australia, 12 C.L.R. 875: 448.
Chia Gee v. Martin, 8 C.L.R. 469 :
254 n. 1.
Citizens' Insurance Co. v. Parsons, 7 App.
Cas. 97 : 453.
City of Montreal v. Montreal Street Rail-
way, [1912] A.C. 838 : 454.
City of Toronto v. Bell Telephone Co.,
[1905] A.C. 52: 453.
City of Winnipeg v. Barrett, [1892] A.C.
445 : 438.
Clough v. Bath, 22 W.N. (N.S.W.) 162 :
73 n. 2.
Coal Vend Case, Commonwealth Pati.
Pap. 1914, No. 22 ; Attorney-General
of the Commonwealth of Australia v.
TABLE OF CASES CITED
597
Adelaide SS. Co., [1913] A.C. 781 :
474.
La Compagnie hydraulique de Saint
Francois v. Continental Heat and
Light Co., [1907] A.C. 194 : 453.
Cotton v. Rex, [1914] A.C. 176: 375.
in re County Courts of British Columbia,
21 S.C.R. 446 : 458.
Cunningham v. Tomey Homma, [1903]
A.C. 151 : 435.
Dalrymple and others v.Colonial Treasurer,
[1910] T.P. 272 : 42 n. 1.
Dames and Jones v. State of Western
Australia, 2 C.L.R. 29 : 470.
Deakin v. Webb, 1 C.L.R. 585 : 371,
441, 448.
IfEmden v. Pedder, 1 C.L.R. 91 : 448.
Direct United States Cable Co. v. Anglo-
American Telegraph Co., 2 App. Gas.
394: 129.
Dominion of Canada v. Province of Ontario,
[1910] A.C. 637 : 457.
Dow v. Black, 6 P.C. 272 : 459.
Dyson v. The Attorney-General, [1911]
1 K.B. 410; [1912] 1 Ch. 158:
467-
Flint v. Webb, 4 C.L.R. 1178: 441.
Fox v. Bobbins, 8 C.L.R. 115 : 470.
Hodge v. The Quern, 9 App. Cas. 117:
124, 449.
Huddart Parker & Company Proprietary,
Limited v. Moorehead, 8 C.L.R. 330 :
464.
Hughes v. Munro, 9 C.L.R. 289 : 133.
Imperial Book Co. v. Black, 35 S.C.R.
488 : 141 n. 1.
in re Incorporation of Companies, 48
S.C.R. 331: 436.
Isaacson v. Durant, in re Stepney Election
Petition, 17 Q.B.D. 54 : 515 n. 1.
TJie John Deere Plow Co. v. Wharton,
[1915] A.C. 330 : 436, 452.
ex parte Leahy, 4 S.R. (N.S.W.) 401 :
52 n. 1.
Lee Fay v. Vincent, 7 C.L.R. 389 : 470.
Liquidators of the Maritime Bank of
Canada v. Receicer-General of New
Brunswick, [1892] A.C. 437 : 448.
Lloyd v. Wallach, 21 A.L.R. 353 : 358.
McCulloch v. Maryland, 4 Wheat. 316 :
447.
Macleod v. Attorney-General for New
South Wales, [1891] A.C. 455 : 136.
Madden v. Nelson and Fort Sheppard
Railway, [1899] A.C. 626 : 453.
in re Marriage Legislation in Canada,
[1912] A.C. 880: 375, 456.
Merchant Service Guild of Australasia v.
Archibald Currie & Co. Proprietary, Ltd.,
5 C.L.R. 787 : 220.
Merchant Service Guild of Australasia v.
The Commonwealth Steamship Owners'
Association, 16 C.L.R. 664 : 217.
Municipal Council of Sydney v. The
Commonwealth, 1 C.L.R. 208: 463.
Musgrave v. Pulido, 3 Knapp, 332 :
177.
in re Nakane and Okasake, 13 B.C. 370:
194.
National Bolivian Navigation Co.v.Wilson,
5 App. Cas. 176: 135.
New Zealand Shipping Co. v. Tyree, 31
N.Z.L.R. 825 : 216 n. 2.
Nireaha Tamakiv. Baker, [1901] A.C.
561: 174.
Osborne v. The Commonwealth, 12 C.L.R.
322 : 469.
Peninsular and Oriental Steam Navigation
Co. v. Kingston, [1903] A.C. 471 :
137.
Petersu-ald v. Bartley, 1 C.L.R. 497 :
463.
Phillips v. Eyre, 4 Q.B. 225 ; 6 Q.B. 1 :
37.
Porter v. Freudenberg, Kreglinger v.
S. Samuel & Rosenfeld, in re Merten's
Patents, [1915] 1 K.B. 857 : 359.
Potter v. Minahan, 7 C.L.R. 277 :
254 n. 1.
Quirt v. The Queen, 19 S.C.R. 510 : 451.
Railway Servants' Case, 4 C.L.R. 488 :
463.
in re References by the Governor -General in
Council, 43 S.C.R. 536 : 459.
Riel v. Reg., 10 App. Cas. 675 : 869.
Robtelmes v. Brenan, 4 C.L.R. 395 :
131.
Royal Bank of Canada v. The King,
[1913] A.C. 283 : 134-6.
Russell v. The Queen, 2 App. Cas. 829 :
450.
The King v. Barger, 6 C.L.R. 41 : 464.
R. v. Crem, ex parte Sekgome, [1910]
2 K.B. 576 : 244.
The King v. Governor-General of South
Australia, 4 C.L.R. 1497 : 462.
R. v. Keyn, 2 Ex.D. 68 : 129.
Reg. v. Lesley, Bell C.C. 220 : 131.
598
TABLE OF CASES CITED
R. v. Lovitt, [1912] A.C. 212: 188,
186.
The King v. Smithers, ex parie Benson,
16 C.L.R. 99 : 470.
The King v. Button, 5 C.L.R. 789:
468.
Keg. v. Syinonds, 176.
ex parte Savage and others, [1914]
C.P.D. 827 : 859.
SS. 'Kalibia' v. Wilson, 11 C.L.R.
689 : 228.
The Ship ' North' v. The King, 37 S.C.R.
885 : 188, 815.
Smiles v. Belford, 28 Or. 590 ; 1 O.A.R.
486 : 141, 449.
St. Catherine's Milling and Lumber Co. v.
"Die Queen, 14 App. Cas. 46: 170,
457.
State of New South Wales v. The Common-
tcealth, 7 C.L.R. 179: 462.
Tamihani Korokai v. The Solicitor -General,
82 N.Z.L.R. 321 : 173-9.
Tennantv. Union Bank of Canada, [1894]
A.C. 81 : 450.
Union Colliery Co. v. Bryden, [1899]
A.C. 580 : 485.
Valin v. Langlois, 5 App. Cas. 1 15 :
458.
WdUacWs Case. Argus, Aug. 8 and 10,
1915 : 857, 858.
Webb v. Outtrim, [1907] A.C. 81 : 871,
447.
Whitehouse v. Whitehouset 21 N.S.W.
L.R. Div. 16 : 159 n. 1.
Wi Parata v. The Bishop of Wellington,
3 N.Z.J.R. (N.S.1 A.C. 72 : 174.
Williams and Adendorff v. Johannesburg
Municipality, [1915] T.P.D. 106:
487.
Woodruff v. Attorney-General for Ontario,
[1908] A.C. 608: 138.
Woodworkers' Case, 8 C.L.R. 405 :
465.
INDEX
a Beckett, Hon. Sir Thomas, Justice
of Victoria Supreme Court, view
on power of Common wealth Govern-
ment under War Precautions Act, 358.
Aberdeen, Earl of, Governor-General
of Canada (1893-8), dispute with
Sir Charles Tupper in 1896, 114.
Abolition of suspending clauses in
Merchant Shipping legislation,
arguments for, 234.
Aborigines in Australia, position and
prospects of, 179, 180 ; in South
Africa, 181-7 ; see also Maoris and
North American Indians.
Accident compensation law, uni-
formity in, 557, 558, 568.
Act of Indemnity in Dominion,
effect of in England, 38, 39, 44, 45.
Act of State not available as defence
to suit by British subject, 35.
Adelaide, Labour dispute at, 118.
Admiralty control of naval defence,
310-12 ; suggested scheme for
unity of control put forward in
1914, 330-4.
Admiralty jurisdiction, defined in
part by Territorial Waters Jurisdiction
Act, 1878, 129.
Advisory judgements by Supreme
Court in Canada, validity of, 459,
460.
Agent-General of Natal, intimates to
Lord Elgin resignation of Natal
government in 1906, 77.
Agents - General for Australian
States, position of, 536-8 ; take
part in discussion of attitude of
Dominions to international exhi-
bition conference, 559.
Agriculture, poweis of Canadian
legislatures as to, 443.
Aikins, Sir J., K.C., views on need-
less diversity of Canadian legisla-
tion, 457.
Alaska Boundary Arbitration, un-
fortunate action of Lord Alverstone
in connexion with, 523.
Albert, war vessel of State of Victoria,
312.
Alberta : initiative and referendum
(legislature raised to 56 members
by Act, 1913, c. 2), 125, 126 ; re-
distribution, 393 ; land question,
437, 458; see Alberta and Great
Waterways Railway case.
Alberta and Great Waterways Rail-
way case, 164, 433, 434.
Alexander of Teck, H.S.H., Prince,
Governor - General designate of
Canada, 83.
Alien enemy, status of in Dominions,
359; power of Dominion legisla-
tures to deal with, 122.
Aliens, Dominion power of legisla-
tion as to, 435 ; power to expel,
218, 219 ; responsibility for pardons
in case of, 69 ; rights of under
British Nationality and Status of Aliens
Act, 1914, 251-3 ; position of in
Dominions superior to that of
British Indians, 258, 259.
'All-Red Route ', 556, 575, 576.
Allen, Hon. Col. A., Minister of
Defence of New Zealand (1912- ),
confers with Imperial Government
as to defence in 1913, 326.
Alteration of Constitution of Domi-
nions, restrictions as to, 889-417 ;
of constitution of Imperial Con-
ference, erroneous doctrine of Lord
Elgin regarding, 553.
Alverstone, Lord, grave errors in
Alaska Boundary case, 523.
Ambassador, British at Washington,
action on behalf of British and
Canadian governments, 519.
American element in Canadian popu-
lation, 245, 276.
Ampthill, Lord, views on British
Indian grievances, 259.
Andersen, case of in South Australia
(Parl. Pap., 1901, No. 54), 69.
Anglo- Dutch treaty of 1856, alleged
infraction of in South Australia,
423.
Anglo-French treaty of 1882, ignores
colonies, 263.
Annexation of territory, inability of
Colonial Government to effect, 54,
581.
600
INDEX
Anti-rebate policy of Union of South
Africa, 556.
Appeals to the Privy Council, 867-
88 ; from Canada and Australia,
441.
Appropriation without parliamen-
tary sanction, in Provinces of
South Africa, 488 ; in Western
Australia, 410,411 ; legal responsi-
bility of Governor in connexion
with, 40-8.
Arbitral awards, proposed enforce-
ment of throughout the empire,
558.
Arbitration treaty of 1908 with
United States, recognition of posi-
tion of Dominions in, 287.
Arbitration treaties, consultation of
Dominion governments before
renewal of with various countries,
288.
Arbuckle, Sir W., Agent-General for
Natal (1904-9), intimates resigna-
tion of the Colonial Government to
Lord Elgin in 1906, 77.
Aristocracy, proposed creation of in
Colonies, 62.
Arms, restrictions in South Africa
on Asiatics as to carrying, 213.
Army Act, application of to Dominion
military forces, 807-9.
Arthur of Connaught, Prince, un-
popularity of suggested appoint-
ment as Governor-General of
Canada, 33.
Asquith, Rt. Hon. H. H., Prime
Minister of the United Kingdom,
(1908- ), President of Imperial
Conference, criticism of federation
scheme of Sir J. Ward, 504, 505 ;
inaccurate views on position of
Dominions, 516 ; declines to accept
control of staff of secretariat of
Imperial Conference, 564, 565 ;
alteration in alleged attitude to-
wards participation of Dominions
in foreign policy, 509.
Audit Acts (e. g. Prince Edward
Island, 1912, c. 7 ; Cd. 6863, pp. 85,
."•'•. position of Dominions under,
40.
Auditor-General of Provincial Ac-
counts in South Africa, 485 ; setting
up of independent Auditor in
Rhodesia, 497.
AufJralia, flagship of Commonwealth
fleet, use of in European War, 336.
Australia, question of honours in,
69, 60 ; precedence in, 63, 64 ; see
also Commonwealth of Australia.
Australian nationality, 253, 254.
Australian Natives Association, 254.
Australian States, Governors of, 26 ;
excluded from participation in
Imperial Conference, 554, 555 ;
relation to Commonwealth as re-
gards external affairs, &c., 421-31 ;
see also Commonwealth of Aus-
tralia.
Austria-Hungary, treaty of 1868 with
(dissolved by war), 267, 268 ; emi-
gration dispute with in 1914, 296.
Balfour, Rt. Hon. A. J., view on
position of Dominions, 7, 516 ;
creates Committee of Imperial
Defence, 550 ; inaccurate view of
control of negotiations of treaties
with France, 274 n. 1 ; unusual
action in resigning in 1905, 87.
Ballance, Hon. J., Prime Minister of
New Zealand (1891-3) ; dispute
with Lord Glasgow in 1892, 81.
Banishment for political crimes, 69.
Bannerman : see Campbell-Banner-
man.
Baronetcies, conferred for Dominion
services, 61.
Barton, Rt. Hon. Sir Edmund,
G.C.M.G., Justice of Common-
wealth High Court (1908- ), judi-
cial opinions on the interpretation
of the Commonwealth constitution,
219, 357, 380, 460, 467, 470 ; Mem-
ber of the Judicial Committee of the
Privy Council under the Act of
1908, 380, 381.
Basutoland, scheme for government
of on merger in Union of South
Africa, 187-9.
Bay of Fundy, opened to United
States fishermen in 1845, 521.
Bayard, Mr., Secretary of State of
the United States, treaty negotia-
tions with Canada, 128, 281.
Bays, territorial character of certain
in North America, 128, 129, 520-2.
Bechuanaland Protectorate, scheme
for government of on merger in
Union of South Africa, 187-9.
Behring Sea seizures, 17, 522.
Belgium, treaty of 1862 with, 264,
266, 537; trade relations with
Canada, 271.
Bent, Hon. Sir Thomas, K.C.M.G.,
Premier of Victoria (1904-9), ob-
tains dissolution of Parliament on
misrepresentations, 42, 92.
Berlin Copyright Convention of 1908,
240.
INDEX
601
Bermuda, garrison for, supplied by
Canada in 1914, 347.
Berne Copyright Convention, acces-
sion of Dominions to, 287.
Berry, Hon. Sir Graham, K.C.M.G.,
view on independence of the Colo-
nies, 23.
Beyers, Commandant - General of
Union forces, turns traitor and is
killed in flight, 348.
Bigamy, when punishable by Im-
perial and Dominion laws, 136.
Bilingualism, in Union of South
Africa, 490.
Birth, precedence based on, in Domi-
nions, 62, 63.
Birth-rate, decline of in Australasia,
192.
Blake, Hon. E., K.C., views on
Canadian independence, 22, 275 ;
alterations made in royal instruc-
tions to Canada at his instance,
119 n. 1.
Blake, Sir Henry, G.C.M.G., pro-
posed appointment as Governor of
Queensland, 28, 29.
Boer reserve, proposed in German
reconstruction of South Africa,
350.
Boer War, 1899-1902, 16; assistance
rendered by Dominions in, 20, 21 ;
attitude of Dominions in respect
of, 341 ; alleged ill-treatment of
British Indians as one of causes
of, 202, 203, 587.
Bonar Law, Rt. Hon. A., use of word
'colonial ', 9; appointment in 1915
as Secretary of State for the Colo-
nies, 583.
Bond, Rt. Hon. Sir Robert, G.C.M.G.,
Prime Minister of Newfoundland
(1900-9), negotiates convention
with Mr. Hay in 1902, 17 ; erro-
neous policy in deadlock of 1909,
95, 116.
Borden, Rt. Hon. Sir Robert,
G.C.M.G., Prime Minister of
Canada (1911- ), views on parti-
cipation of Dominions in imperial
policy, 339 n. 1, 344, 584 ; on
representation of Dominion in
London by a resident minister,
821, 322, 542, 543, 546; on sub-
mission of treaties to Parliamen-
tary ratification, 282 ; objection to
reliance of Canada on Canning
doctrine, 365 n. 3.
Botha, Gen. Rt. Hon. Louis, Prime
Minister of the Transvaal (1907-
10), Prime Minister of the Union
of South Africa (1910- ), close
relations with Lord Gladstone as
Governor-General, 92 ; attitude to
representations regarding his na-
tive land policy, 187 ; views on
imperial control of foreign policy,
343 n. 2 ; crushes rebellion in
South Africa, 848 ; wins election
of 1915, 351 n. 1 ; defeats Germans
in South-west Africa, 361 ; brings
about union in 1909, 481 ; negative
attitude towards proposal of a
secretariat in 1907, 564 ; to pro-
posals of Sir J. Ward in 1911, 505.
Boundary disputes referred to Privy
Council, 879.
Boundary Waters treaty with United
States of 1909, 282 ; Commission
provided for in its terms, 518.
Bryce, Viscount, O.M., ambassador
at Washington, 272-4, 277.
Brisbane, great strike of 1912 at,
439.
British Columbia : anti-Asiatic legis-
lation, 193-7, 434, 435 ; Indian
land claims, 169-72 ; dismissal of
ministries and of Lieutenant-
Governor, 114, 432 ; divorce juris-
diction, 456 ; increase of represen-
tation (duration of legislature ex-
tended to five years by Act, 1913.
c. 11), 393, 395 ; rights over lands
granted to Dominion in respect of
construction of transcontinental
railway, 458 ; dispute with Canada
over railway construction, 437,
499.
British Consular service, use of, by
Dominions, 297.
British Indians, immigration into
and treatment in Canada, 194-8 ;
into Commonwealth, 198-201 ;
New Zealand, 201, 202; South
Africa, 202-13.
British nationality, advantages of, to
Dominions, 255-7, 586.
British Nationality and Stattts of Aliens
Act, 1914, 248-50.
British New Guinea, pecuniary re-
sponsibility for administration of,
accepted by Australian Colonies,
581.
British preference, proposed restric-
tion by Australia to ships manned
by white labour, 267 ; in Canada,
535 ; suggestion of Union govern-
ment to sxibstitute for it payments
on defence, 585.
British South Africa Company, its
government of Rhodesia, 494-8.
INDEX
British subjects, personal rights of,
under treaties, 255-7, 268, 269.
Brodeur, Hon. L. P., Minister of
Marine in Sir W. Laurier's govern-
ment, representation its to inter-
ference with Dominion legislation
on merchant shipping, 229.
Brussels Sugar Convention, perma-
nent bureau of, 678.
Bulgaria, treaty of 1905 (dissolved
by war) with, 268.
Bulletin, influence in Australia di-
rected to danger from Japan, 337.
Burnham, J. H., motion to abolish
titles of honour in Canada, 56.
Burns, Rt. Hon. John, President of
the Local Government Board,
views on oversea emigration in
connexion with population of the
United Kingdom, 560.
Cabinet, Imperial, ultimate respon-
sibility for policy as opposed to
Committee of Imperial Defence,
823 ; presence of Sir R. Borden
and Mr. Hughes at meetings of, 545.
Cable landing rights, proposal to
place under a joint imperial board,
572.
Caldwell, James, M.P., views on
power of Crown to dissolve Parlia-
ment, 88.
Campbell-Bannerman, Rt. Hon. Sir
H., G.C.B., Prime Minister of the
United Kingdom (1905-8), on sta-
tus of Dominions, 516 ; accepts
Presidency of Imperial Conference,
but not control of secretariat, 564.
Canada : prerogative of mercy, 66,
70 ; deputy of Governor-General,
72; royal instructions, 118, 119;
no reservation of bills required,
144 ; North American Indians,
168-72 ; anti-Asiatic measures in,
193-8 ; merchant shipping legisla-
tion, 215, 229, 559 ; commercial
treaties, 262 ; extradition, 299, 800 ;
copyriglit, 237-42 ; military de-
fence, 803, 804, 307 ; naval defence,
315, 320; aid in war, 348; war
measures. 332-4 ; judicial appeals,
370, 871 ; two Houses, 390-6 ;
scheme of federal government, 427-
60; treaty position, 51 7, 518; High
Commissioner, 537; resident minis-
ter, 543, 547, 583, 584.
Canadian citizenship and nationality,
253, 254, 854.
Canadian Pacific Railway, value for
consolidation of Canada, 302.
Canberra, federal Australian capital,
428.
Canning doctrine, foundation of
Monroe policy, 865.
Cape of Good Hope : native question,
181-7; immigration legislation,
193 ; anti-Asiatic measures, 210,
213 ; naval contribution, 816 ; joins
Union, 481 ; languago question,
489 ; views as to Permanent Com-
mission of Imperial Conference,
563.
Cape Town, attitude of City Council
to Indian traders, 213.
Capital, loans of British to Domi-
nions, 19.
Capital cases, responsibilities of
Governor-General of Union of
South Africa and Governor of
Newfoundland as to, 66.
Carmichael, Sir T. Gibson, Bart.,
K.C. M.G.(now Lord, G.C.I. E., &c.),
Governor of Victoria, 42, 92, 98,
429.
Carnarvon, Earl of, Secretary of
State for the Colonies (1874-8),
settlement of transcontinental
railway question in Canada, 437 ;
over-anxiety to bring about union
in South Africa, 14.
Cartier, Hon. Sir George, conferring
of baronetcy upon, 56.
Cartwright, Rt. Hon. Sir R., G.C.M.G.,
views on Canadian Senate, 392.
Celebration of His Majesty's birthday,
560.
Censure or criticism of Governor by
Parliament of Dominion, 100, 113.
Censure of Ministry by Secretary of
State for the Colonies, unconstitu-
tional, 103.
Central legislature, in Interpretation
Act, 1889, position of Common-
wealth Parliament as, 461.
Chamberlain, Rt. Hon. Joseph,
Secretary of State for the Colonies
(1895-1903), negotiator of treaty of
1888 regarding fisheries of North
America, 281 ; insists on adoption
of policy of Natal Act No. 1 of 1897
in exclusive legislation regarding
Asiatics, 192, 193 ; views on posi-
tion of Dominions, 516 ; urges
imperial co-operation in 1897 and
1902, 501 ; views on preferential
trade as link of empire and pre-
liminary to federation, 531, 532,
534 ; reply to Homo Rule address
from Canada, 542 n. 2.
Channel of communication between
INDEX
603
Imperial and Dominion govern-
ments, 535, 544.
Chapman, Hon. F. R., Judge of
Supreme Court of New Zealand,
views on native land question,
178.
Charter, supplemental, of March 13,
1915, granted to British South
Africa Company, providing as to
possible introduction of responsible
government in Rhodesia, 497.
Chartered accountants, Ontario Act
regarding, 436 n. 3.
Cheaper cable rates, 555.
Chelmsford, Lord, G.C.M.G.. Gover-
nor of Queensland (1905-9), now
Governor-General of India, quarrels
with his Premier, Mr. Kidston,
41, 42 ; lack of confidence shown
by Premier in, 92, 93 ; grants Mr.
Philp a dissolution in defiance of
the Assembly, 97 ; narrowly escapes
motion for recall, 113.
Chief Justice, special precedence of,
in Victoria and Tasmania, 64.
Childers, war vessel of Victorian
government, 312.
China, extra-territorial jurisdiction
in, over British subjects, 127.
Chinese, immigration into, and treat-
ment in, Canada, 195; into the
Commonwealth, 198-200.
Chinese labour, party bitterness over
question of, 78.
Churchill, Rt. Hon. Winston S.,
Under-Secretary of State for the
Colonies (1905-8), First Lord of
the Admiralty ^1911-15), views on
Natal question, 77, 80, 150 ; on
naval policy, 320, 334.
Claim against Imperial Government,
procedure in, 158, 159.
Closure, first adopted in Canada in
1913 in order to carry Naval Aid
Bill in Commons, 322.
Coasting trade, regulation of, by
Colonial legislature (in Union by
Act No. 9 of 1913), 214, 219, 223-5,
267 ; of Commonwealth, 559.
Cobalt Lake case in Canada, 164,
433.
Colombia, treaties of commerce with,
267, 268.
Colonial, use of adjective, 24, 25 ;
sanctioned by Mr. Bonar Law, 9.
Colonial Conference of 1887 : dis-
cussion of power of dissolution at,
93, 119 ; assemblage of notables
only, 500 ; no discussion of federal
proposals, 501.
Colonial Conference of 1897 : question
of petition of right against Colonial
governments, 158 ; abandonment
of control of aborigines depart-
ment in Western Australia, 179;
denunciation of treaties of 1862
with Belgium and 1865 with
Germany regarding commerce,
266 ; confined to Prime Ministers,
500, 552 ; no discussion of federal
proposals, 501.
Colonial Conference of 1902 : dis-
cussion of navigation laws, 267 ;
naval agreement with Australasia,
811 ; composition of, 500, 552 ;
omission of States of Australia, 554.
Colonial Conference of 1907 : ques-
tion of naturalization, 247 ; navi-
gation laws, 267 ; naval agreement,
317 ; court of appeal, 381 ; no dis-
cussion of federal proposals, 501 ;
preferential trade, 534, 537 ; com-
position of, 551, 552, 554 ; proposed
imperial fund, 571 ; permanent
Commission and Secretariat, 563,
564.
Colonial Laws Validity Act, 1865, 137,
140.
Colonial Office, influence of perma-
nent officials on development of
responsible government, 14 ; divi-
sion into Dominions and Crown
Colonies divisions as result of
Colonial Conference of 1907, 564 ;
proposed further division negatived
in 1911, 564, 565.
Colonial preference, 531-5.
Colonial Sugar Refining Company,
successful defiance of Common-
wealth government, 466.
Colonies, use of term, 24.
Coloured immigration, into Domi-
nions, 190-213.
Coloured skilled workers, position of,
in Transvaal and Cape of Good
Hope (cf. Act No. 25 of 1914), 181.
Combines for control of freight rates
(see Union Act No. 10 of 1911), 556.
Commission, of Governors, 27.
Committee of Imperial Defence, pro-
posed representation of Dominions
upon, 823-6, 542, 548, 550 ; secret
discussion of imperial foreign
policy and defence at Conference
of 1911, 545, 548.
Commonwealth Constitution Act,
216, 217.
Common law, of Dominions, 45.
Common law, English, largely re-
pealed in Dominions, 379.
604
INDEX
Commonwealth of Australia : prero-
gative of mercy, 70; deputy of
Governor-General, 72 ; royal in-
structions, 118 ; reservation of bills,
144 ; anti-Asiatic measures, 191,
192, 198-201 : merchant shipping
legislation, 215, 217-22, 228, 229,
232, 659 ; customs, 261, 262 ; copy-
right, 242 ; military defence, 808,
304, 806, 307 ; naval defence, 815-
20 ; attitude towards Committee
of Imperial Defence, 825, 826, 328,
829, 384 ; attitude towards war,
347 ; war legislation, 854-8 ; views
on settlement, 362 ; appellate juris-
diction, 371, 879, 382; alteration
of constitution, 896, 397; relation
to states, 421-81 ; interpretation of
constitution, 461-80 ; High Com-
missioner, 538 ; attitude to pro-
posal of resident minister, 543,
647.
Commonwealth Parliament, exclu-
sive powers of, 444, 445.
Commonwealth Savings Bank (Act
No. 14 of 1911), dispute as to acti-
vities of, 478.
Company law, uniformity of. 557,
558, 569.
Company legislation, Dominion and
Provincial powers of, 452-4 ; Com-
monwealth and State powers of,
464, 465.
Comparison of federal systems of
Canada and Australia, 421, 422.
Compensation for accidents to work-
ers, uniformity of law regarding
(Union Act No. 25 of 1914), 558.
Compulsory training of defence
forces in Dominions other than
Canada and Newfoundland, 804-7.
Conception Bay, territorial status of,
129.
Conditions of grant of dissolution,
may be impo.sed by Governor, 96,
97 ; conditions as to actions of new
ministry must not be so imposed
on an unwilling Premier, 98-104.
Confederate States, partial British
sympathy for, in War of Secession,
16.
Conference regarding submarine
cables, Sir C. Tupper votes against
other British delegates at, 292.
Conferences of State Premiers in
Australia, 473, 477, 478.
Connaught, Duke of, K.G., K.T.,
K.P., &c., precedence in Union of
South Africa in 1910, 63 ; Governor-
General of Canada (1911- ), 83.
Consuls, quasi-diplomatic position of,
in Canada, 64, 294; position of, in
Australia with regard to Common-
wealth and States, 426, 427 ; privi-
leges of, AS secured by treaty, 256 ;
cannot be appointed by Dominion
governments, 297.
Consuls-General, negotiations of
Canadian government with, objec-
tions to practice of, 294.
Convention regarding safety of life
at sea in 1913-14, 231.
Cook, Rt. Hon. J., Prime Minister of
Australia (1913-14), receives grant
of double dissolution of Parliament
from Governor-General in 1914,
106, 112; requests a naval con-
ference, 828 ; friendly relations
with governments of States, 477.
Cooper, Hon. T., Judge of Supreme
Court of New Zealand, view on
native land rights, 177.
Copyright, 237-48 ; dispute with
Canada over, does not lead to resig-
nation of Canadian government,
82.
Corn, repeal of duty on imported, by
Mr. (afterwards Lord) Ritchie,
583.
Coronation of George V, visit of
members of Dominion Parliaments
on occasion of, in 1911, 577.
Correspondence, advantages of, for
conduct of public affairs, 569.
Correspondence between Imperial
Government and Australian States,
428, 429.
Costa Rica, treaty of 1913 with, 268.
Courtney, Lord, bill for proportional
voting, 412.
Crewe, Marquess of, K.G., Secretary
of State for the Colonies (1908-
10) : efforts to induce Dominions
to evince more interest in imperial
politics, 324 n. 1 ; as Secretary of
State for India (1910-15) repre-
sents India successfully at Imperial
Conference of 1911,552; expression
of opinion in favour of division of
Colonial Office, 664 ; withholds
royal assent from Orange River
Colony Act of 1908, 185.
Crick, Mr., misfeasance as Minister
of Lands in New South Wales,
155.
Criminals, duty of responsible
governments to decide questions
concerning, 68.
Criminal assaults of white on black,
and rice vtrsa, in South Africa, 188.
INDEX
605
Criminal cases, Judicial Committee
does not normally allow appeals
in, 369, 370.
Criminal law, controlled by Dominion
in Canada but not by Common-
wealth in Australia, 70, 71.
Crowe, Sir Joseph, assists Sir C.
Tupper in treaty negotiations at
Paris in 1893, 263.
Crown, interest in foreign affairs,
90, 91.
Crown, service under as qualification
for naturalization, 247.
Crown Colonies, definition of, 9 ;
position of, 8, 506 n. 1, 572.
Cullen, Hon. Sir W. P., K.C.M.G.,
Lieutenant-Governor and Chief
Justice of New South Wales, de-
clines advice of ministers as to
prorogation of Parliament, 94.
Currency, reservation of bills affect-
ing in Australian States and New-
foundland, 144.
Currie, Messrs. Donald & Co., retire
from management of Union Castle
Steamship Co. in view of policy of
Union government, 556.
Curzon, Lord, erroneous view on
status of Dominions, 516.
Cussen, Hon. L. F. B., Judge of
Supreme Court of Victoria, 358.
Customs and excise, exclusive control
of by Commonwealth Parliament,
445.
Customs Union, in South Africa, 481.
Dardanelles, Australasian force at,
347.
Deadlock provision in the Common-
wealth, 106.
Deakin, Rt. Hon. Alfred, Prime
Minister of Commonwealth of
Australia (1903-4 ; 1905-8 ; 1909-
10) : remains in office despite re-
servation of assent to Bill of 1906
regarding preference to goods im-
ported in certain ships, 82 ; pro-
posal of independent Australian
navy, 317, 318, 338 ; brings forward
imperial preference at conference
of 1907, 534, 557 ; deprecates ex-
cessive festivities at Colonial Con-
ference, 561 ; proposal for Con-
ference Secretariat, 563, 564, 566,
570 ; proposal for development of
empire fund, 571 ; lack of practical
ability, 575.
Dealers' licences, grievances affecting
issue of in South Africa, 204, 205,
218.
Deceased wife's sister, marriage with,
159.
Declaration of London, 283, 288, 289,
549, 551, 559.
Defence, obligation of colonies re-
garding, 15, 16 ; absolute obliga-
tion to defend the whole Empire
accepted by Imperial Government,
830, 520, 686.
Delagoa Bay, commercial importance
of for South Africa, 481.
de la Rey, J. H., Assistant Com-
mandant-General of the forces of
the South African Republic in the
Boer War, meditated treason of
in 1914, 349.
Delegate, Colonial Parliament is not
a delegate of Imperial Parliament,
124, 449.
Delegation of authority by Colonial
Governor, validity of, 71-8.
Delegatus non potest delegare, 124, 449.
Denham, Hon. D., Premier of Queens-
land (1911-15), 401.
Dependency, limitations of legislative
power of, 121-4; summary of re-
strictions upon Dominions as
dependencies, 530.
Deportation of certain persons from
South Africa, 160-7.
Deputy of Governor, position of,
71-3.
Deserted wife, domicile not affected
by husband's action in certain
cases, 159.
Development grant, in United King-
dom, 572.
De Villiers, Lord, P.C., K.C.M.G.,
Chief Justice of the Union of South
Africa and member of the Judicial
Committee of the Privy Council
(1910-14), 385, 387.
de Wet, C. R., treachery and amnesty
of, 348, 361 ; indignation at being
fined for assault on native, 183.
Dicey, Prof. A. V., K.C., D.C.L.,
view as to imperial federation, 7.
Differential duties, repeal of restric-
tion on, 261, 263 ; bills imposing
still subject to reservation in New-
foundland under royal instruc-
tions, 144.
Differential treatment of black and
white in the Union of South
Africa, 183, 485.
Dilatoriness of Dominion and Im-
perial governments, 575.
Dilke, Rt. Hon. Sir Charles W., Bart.,
M.P., view as to discretionary
power of crown, 87 n. 1.
606
INDEX
Dinizulu, chief of Zululand, 81, 82.
Diplomatic position claimed for Con-
suls in Canada, 64, 294.
Diplomatic service, value of to
Dominions, 19, 20.
Direct taxation, restriction of Pro-
vincial powers as to, 132, 876, 456,
457.
Disallowance, power of exercised by
Imperial Government, 148, 145 ;
by Dominion Government in re-
spect of provincial acts of Canada,
432-6.
Discrimination between residents of
States, forbidden in Common-
wealth, 445, 470.
Discretion of Governor in matter of
action other than a dissolution of
Parliament, 95, 96.
Disloyalty and dishonestyof a section
of Dutch population in South
Africa, 350, 351.
Dismissal of Ministry by the Crown
in United Kingdom, 86-91 ; by
Governor in Dominions, 112-19.
Disputes between Dominion govern-
ments and Imperial Government,
mode of solution for cases of legal
character suggested, 165, 166, 388.
Disraeli, Right Hon. B., views on
colonies as millstones, 15.
Dissenting views of members of
Judicial Committee, not recorded,
382.
Dissolution of Parliament, position
of Governor with regard to, 29,
85-112 ; proclamation of cannot be
recalled, 112 n. 1.
Divorce legislation, 159 ; in Canada,
456 ; bills for divorce subject to
reservation in Australian States
and Newfoundland, 144.
Doherty, Hon. C. J., Minister of
Justice of Canada, removal of H.
Thaw from Canada, 300 ; views on
imperial relations, 844.
Domicile, general basis of divorce
jurisdiction, 159 ; basis of distinc-
tion of kinds of British subjects,
257 ; in Canada, 254, 854 ; in Aus-
tralia, 462.
Dominions, definition of (including
Papua and Norfolk Island with
Commonwealth, 4 and 6 Geo. V,
c. 17, sched. I ; 4 and 6 Geo. V,
c. 60 ; 6 and 6 Geo. V, c. 21), 9.
Dominions Department of the Colo-
nial Office, 564 ; reports on affairs
in and legislation of Dominions
for period 1909-14 (an unpopular
innovation apparently discon-
tinued ; for use made see Journ.
Soc. Comp.Leg., Review of Leg. 1918,
pp. 22 sq., 78 sq., 112 sq., &c.), 126
n. 1, 666.
Dominion Royal Commission, 566,
657, 671-6.
Double dissolution in Commonwealth
in 1914, 106-9.
Double taxation in Canadian pro-
vinces, 457.
Drage, G., visits Canada with Sir F.
Pollock, 562.
Dufferin, Marquess of, Governor-
General of Canada (1872-8), pro-
posed dismissal of Sir John Mac-
donald in 1873, 113, 114.
Duffy, Hon. Sir C. Gavan, views on
independence of colonies, 23, 510.
Duffy, Hon. E. Gavan, Justice of
Commonwealth High Court, 221,
857.
Dukhobors, objectionable character
of as immigrants, 191, 192.
Duration of Parliament (Responsible
Government, i. 502, 503 ; now five
years in British Columbia, Act
1918, c. 11), 93.
Durham, Lord, advice as to respon-
sible government, 13.
Dutch language, use of in South
Africa, 489, 490.
Dutch Reformed Church, union of,
racial discrimination observed, 182.
Earle, Hon. John, leader of Labour
party in Tasmania, and Premier
(1914- ), brief ministry (Oct. 20-
27, 1907), 94 ; dispute with Sir W.
Ellison-Macartney in 1914,99-103.
Ecclesiastic precedence, 64.
Education of British Indians in
South Africa, 205 ; question of use
of language in South Africa, 489,
490.
Edwards, Hon. W. B., Judge of
Supreme Court of New Zealand,
view on native land rights, 177.
Egypt, treaty of 1907 with, 268.
Elgin and Kincardine, Earl of, Secre-
tary of State for the Colonies
(1905-8), hasty action in giving
instructions to governor in Natal
case, due to inexperience, 75-81 ;
abortive proposal to use Secretariat
and High Commissioners as
channel of communication, 546
n. 1 ; erroneous doctrine of condi-
tion of alteration of the constitu-
tion of the Imperial Conference,
INDEX
607
553 ; repudiates Mr. Lyttelton's
proposal of a Permanent Commis-
sion of Imperial Conference, 568 ;
subdivides Colonial Office profarma,
564.
Ellison-Macartney, Rt. Hon. Sir W.,
K.C.M.O., Governor of Tasmania,
(1913- ), error in attaching condi-
tion to appointment of ministry,
99-104 ; protest against appoint-
ment, 27,
Elmslie, Hon. G. A., first Labour
Premier of Victoria, 94.
Emigration from United Kingdom to
Dominions, 19, 560.
Emigration, indentured to Natal
forbidden in 1911, 206.
Eminent domain, doctrine applicable
to native land in New Zealand,
176.
Emmott, Lord, on British Naturali-
zation, 245 n. 1.
Empire, signification of. 526.
Empire Parliamentary Committee,
invites representatives of Domi-
nion Parliaments to Coronation
of George V, 577.
Empire Trade and Industries Com-
mittee of the Royal Colonial In-
stitute, proposal of joint develop-
ment fund, 571-5.
England, effect of oversea congestion
on population of, 560.
Escheats, ownership of Provinces,
458.
Esquimalt, imperial garrison of, 302.
Ethiopianism in South Africa, 182.
European land tenure in South
Africa, 185, 186.
European War of 1914, assistance
rendered by Dominions in, 20, 21,
346-66.
Ewart, J. S., examination of his
theory of Canadian independence,
509-29.
Ewing, Hon. N. K., intrigues in
Tasmania, 94.
Exclusive powers of Dominion Par-
liament and Provincial Legisla-
tures in Canada, 442, 443 ; of
Commonwealth and State Parlia-
ments, 444-6.
Execution of natives in Natal in
1906, 77-9.
Execution of treaties, Dominion
responsibility for, 281, 282.
Executive Committees in Provinces
of South Africa, 484, 485, 488.
Exemption of religious objectors only
from compulsory service in New
Zealand, not in Australia, 305,
306.
Exequatur, issued at once to a consul
de carrtere, 427.
Exile, restriction as to in case of
pardon, 69, 70.
Experts, delays of in arriving at
conclusions, 569.
Expulsion of undesirable aliens,
arrangements regarding, 554.
External affairs, relations of Com-
monwealth and States concerning,
423-7.
External Affairs Departments in
Canada and Commonwealth, 422,
423.
Extradition treaties, consultation of
Dominions as to, 297, 298 ; treaty
with United States of 1889, 299
n. 1.
Extradition without treaty, 299, 300.
Extra-territorial effect of Common-
wealth legislation, 444 ; as to
merchant shipping, 216, 217 ; as
to navy, 317.
Extra-territorial privileges of British
subjects, 19 ; not stricto iure enjoyed
by persons naturalized merely in
colonies, 246.
Factory Acts, differentiation against
Chinese in Australia, 200.
Fear of Japan, prominent feature of
Australian sentiment, 191, 337,
588.
Federal Constitutions, essential fea-
tures of, 418, 419.
Federation, power to create vested
in Imperial Parliament alone, 123.
Festivities, intempestive in connexion
with Imperial Conference, 561.
Fielding, Hon. W., Minister of
Finance of Canada (1896-1911),
trade negotiations in Paris and
Canada, 270-2, 274, 295.
Fiji, alleged influx of Indians from,
into New Zealand, 201.
Financial relations of Commonwealth
and States of Australia, regulated
by Act No. 8 of 1910, 477.
Finger prints, question of taking in
South Africa, 207.
Fiscal autonomy of Dominions, con-
ceded by 1859, 261.
Fisher, Right Hon. Andrew, Prime
Minister of Commonwealth (1910-
18 ; 1914-15) ; High Commissioner
for the Commonwealth (1916- ) ;
proposes referenda in 1911 and
608
INDEX
1913, 104 ; refused dissolution of
Parliament In 1909, 108 n. 1 ;
naval policy, 818 ; desire to obtain
information by conferences regard-
ing imperial policy, 846, 547, 578,
582 ; indiscreet attitude towards
strikers at Brisbane, 440 ; criticism
of federal proposals of Sir J. Ward,
508, 580 ; appointment as High
Commissioner, 578 ; suggests that
Secretary of State for Foreign
Affairs should deal with the affairs
of self-governing dominions, 547,
548.
Fisheries, in Canada, Dominion con-
trol of, 455.
Fishery protection vessels in Domi-
nion, legal position of, 315.
Fishery questions under treaty in
Canada, 16, 520-2; in Newfound-
land, 16, 69, 168, 284, 285.
Fitzpatrick, Rt. Hon. Sir C..G.C.M.G.,
Chief Justice of Canada, 380.
Forces supplied by Dominions for
the war (in Canada up to Feb. 14,
1916, Ontario had given 12 per
cent, of her available men, Quebec
under 5, the Western Provinces
about 19 per cent. No Dominion
up to that date had enacted com-
pulsory service for the war ; Canada
had decided never to do so, and
similarly Australia), 847.
Foreign a Hah-, exposition of to
Governments of Dominions in
1911, 645, 548 ; offer of Mr. Har-
court to afford full information as
to, 822-4 ; inexperience of Domi-
nions regarding, 549.
Foreign governments, position to-
wards Imperial Government in
regard to action of Dominion
Governments, 78, 168, 423.
Foreign Office, suggestion to transfer
control of affairs of Dominions to,
made by Mr. Fisher in 1911, 647,
548.
Foreign subsidized vessels, competi-
tion of with British, 559.
Foster, Hon. Sir George Eulns,
K.C.M.G., views on titles of
honour, 56, 57 ; Canadian repre-
sentative on Dominions Royal
Commission, 578.
Fox, Rt. Hon. Charles, and Lord
North, dismissal of in 1784, by
George III, 89.
France : probability of closer com-
mercial relations with as result
of war, 536 ; negotiations with
regarding Canadian trade in 1893,
268; in 1907, 269; in 1907, 270,
274; protocol of July 6, 1912,
regarding position of Dominions
under treaty of 1826 (Part. Pop.,
Cd. 6269), 268 ; different treatment
in of persons of imperial and colo-
nial naturalization, 245 n. 2.
Franchise, restriction upon In case of
South African natives, 181, 182,
183, 184 ; British Indians in Natal
deprived of, 204.
Freedom of Dominions from obliga-
tion to take part in wars of im-
perial policy, 841-4, 678-88.
Free Trade v. Protection, 581-8.
French Canadians' attitude to Em-
pire (unsatisfactory response in
1915-16 to recruiting appeal), 491,
492.
French language, use of in Canada,
490-2.
Frere, Rt. Hon. Sir Bartle, Governor
of the Cape of Good Hope, dispute
with Mr. Molteno, 60.
Fund for empire development, sug-
gestion of Mr. Deakin in 1907 to
create, 671,572.
Fundy, Bay of, opened to United
States fishermen in 1845, 521.
Fur seal convention of July, 1911,
277.
Galician immigrants into Canada,
191 ; in many respects less desir-
able than the British immigrants
to whom they were — on grounds
of cheapness and docility — pre-
ferred, 258, 492, 528.
Gait, Hon. Sir A., High Commis-
sioner for Canada, negotiates with
Spanish Government for commer-
cial treaty, 268, 264.
Gandhi, Mr., leader of British In-
dians in South Africa, 207, 208,
210.
Gardiner, case of the convict, in New
South Wales, objection to release
on condition of banishment, 70.
Gavan Duffy, Hon. E., 857.
Gayundah, placed at disposal of
Admiralty in 1885, 312.
General Court Martial, warrant to
convene, incorrect use of by Gover-
nor-General of the Union, 167.
Geneva, Convention of 1906, regard-
ing treatment of wounded, 293.
George I and Hanover, 513.
German communities in Canada,
disloyalty of certain, 259.
INDEX
609
German empire, lack of responsible
government in, 86 ; hostile attitude
in Boer War, 362.
German language, use of, in schools
in Ontario, 491.
German New Guinea, capture by
Australian forces, 54, 347 ; desire
of Australia to retain, 362, 582.
German South-west Africa, capture
of, by Union forces, and desire of
Union to retain, 348, 349, 581.
German trade relations with Canada,
270, 271, 518, 532.
Gladstone, Viscount, P.O., G.C.M.G.,
Governor- General of Union of
South Africa (1910-14), action in
case of Johannesburg riots, 47, 48,
92, 167.
Gladstone, Rt. Hon. W. E., M.P.,
Secretaiy of State for the Colonies
and War (1845-6), views on im-
perial and local interests, 152.
Glasgow, Earl of, G.C.M.G., Governor
of New Zealand (1892-7), dispute
with Mr. Ballance's government,
81.
Gokhale, Hon. Mr., visit to Union of
South Africa to adjust questions
with Union government, 207.
Gold law of Transvaal, 213 n. 1.
Goldwin Smith, Prof., belief in
annexation to United States as
destiny of Canada, 511.
Government House, Sydney, restora-
tion to Governor, 429-31.
Governor, meaning of term, 27 ;
appointment of, 26-8 ; subject to
concurrence of Dominion govern-
ment, 28-32; member of royal
family as, 32-4 ; powers of, 35 ;
legal liability of, 36-8 ; as to ex-
penditure of public funds, 38-43 ;
as to martial law, 43-51 ; limited
delegation of prerogatives (a) as to
war and peace, 62-4 ; (6) of honour,
54-65 ; (c) of mercy, 65-71 ; doubt
as to validity of prerogative power
to appoint Deputies, 71-3 ; con-
trolled in executive acts by Im-
perial government, 74-84 ; power
to dissolve Parliament, 85-112;
to dismiss ministers, 112-19 ; bills
for grants to, must be reserved in
Australian States and Newfound-
land, 144 ; essential character of
functions, 540.
Governor-in-Council, formerly Court
of Appeal, 368.
Governors-General, mode of appoint-
ment, 26 ; omission of power to
1874 Q
pardon in certain cases through
oversight in case of Canada and
Union of South Africa, 70, 71 ;
power to issue licences to trade
with enemy conferred by Pro-
clamation of Oct. 8, 1914, 352 n. 1.
Grain-growers of Canada, objection
to titles of honour, 56 n. 2 ; devo-
tion to imperial preference, 534
n. 1.
Great War of 1914, 16, 839-66.
Greece, type of responsible govern-
ment in, 86 ; treaties with, of Nov.
10, 1904, and May 4, 1905, 267.
Grey, Rt. Hon. Sir Edward, Secretary
of State for Foreign Affairs (1905-
), views on Dominion treaty
negotiations, 269, 270 ; defends
Declaration of London at Imperial
Conference of 1911, 549.
Grey, Earl, Secretary of State for the
Colonies and War (1846-52), 14.
Grey, Earl, G.C.M.G., Governor.
General of Canada (1904-11), 33,
92.
Griffith, Rt. Hon. Sir Samuel W.,
G.C.M.G., Chief Justice of the
Commonwealth (1903- ), judicial
opinions on Commonwealth con-
stitution, 856, 357, 436, 460, 467,
470 ; member of Judicial Com-
mittee of Privy Council, 380.
Hague arbitral tribunal, 282.
Hague Conference, position of Do-
minions with reference to, 289-94,
325.
Haldane, Lord, inconsistent action
as to strengthening of Judicial
Committee, 384 ; proposals for
new constitution of Privy Council,
384-6.
Halifax, imperial garrison of, 302.
Hanover and United Kingdom, rela-
tion of, 53, 512, 513.
Harcourt, Rt. Hon. Lewis, Secretary
of State for the Colonies (1910-15 },
on Imperial naturalization, 245
n. 1 ; proposals for participation of
Dominions in the executive control
of foreign affairs, &c., 322-6, 541,
542, 589 ; hospitality to Dominion
representatives, 565.
Harcourt, Rt. Hon. Sir William,
M.P., views on Canadian shipping
legislation, 141.
Harter Act ^cf. Canada, Act 1910, c.
61) as to carriage of goods at sea,
in United States, 234.
610
INDEX
Hawaii, exodus of Japanese from,
into Canada, 193.
Hay, Hon. J., Secretary of State
of the United States, negotiates
treaty with Sir !>'. Bond (on basis
of Bond-Blaine convention of 1890),
17, 284.
Headlands doctrine, 128, 521.
Henderson, Admiral Sir R., advice
to Commonwealth regarding naval
construction, 320, 358.
Hereros, partial extermination by
Germans, 363.
Hertzog, Hon. J. B. M., Minister of
Justice in Union of South Africa
(1910-12), proposals for bilingual
teaching in South Africa, 490 ;
disloyal attitude of, 348 ; reaction
in Rhodesia caused by his anti-
British propaganda, 496.
Higgins, Hon. II. B., Justice of Com-
monwealth High Court (1906- ),
judicial opinions on interpretation
of constitutional powers of the
Commonwealth and Stnte parlia-
ments, 221, 460, 465, 467, 470.
High Commissioners, status and
position of, 534-40 ; erroneous
claim of ambassadorial rank, 540,
541 ; refusal of Dominion govern-
ments to use as a channel of com-
munication, 546 n. 1 ; discuss
question of international exhibi-
tions, 559 ; but not that of naturali-
zation, 569.
High Commissioner for South Africa,
anomalous position, 50.
High Court of Commonwealth, diffi-
cult position of. 460, 461.
Hobart, Labour Conference at, reso-
lution as to employment of troops
in labour disputes, 440.1
Holman, Hon. W. A., Attorney-
General (1910-13) and Premier of
New South Wales (1913- ), pro-
posals for federal constitutional
change, 472, 473; disputes with
Upper House, 898-400 ; asks Lieu-
tenant-Governor lor prorogation
in 1911, 96.
Home Rule addresses from Dominion
of Canada, replies of imperial
government to, 542 n. 2.
Honduras, treaty of 1900 with, 267 ;
treaty of 1910 with, 268 n. 2.
Honours, royal prerogative as to, 54-
62, 74, 75.
Hopkinson,Mr., murder of, by Indian
revolutionaries in Canada in 1914,
196.
Hospitality, interference with serious
businessof Imperial Conference, 561.
Hot pursuit, doctrine of, applied to
Canadian Government vessel, 188.
Howe, Hon. Joseph, opposes union of
Canada, 420.
Hughes, Hon. Sir Sam, K.C.M.G.,
Minister of Militia in Canada
(1911- ), reorganization of Cana-
dian forces, 307 ; quarrel in Boer
War with Lord Roberts and Cana-
dian Minister of Militia, 843.
Hughes, Rt. Hon. W. M., Attorney.
General (1910-18, 1914-15), and
Prime Minister of Commonwealth
(1915- ), view on grant of double
dissolution by Sir R. Munro-Fergu-
son in 1914, 108 ; protagonist of
movement for compulsory service
in Australia, 346 ; proposes that
Commonwealth Parliament of 1914
should be kept alive, 447 n. 1 ;
decides, despiteappointmentof Mr.
Fisher as High Commissioner, to
visit London in 1916 to obtain full
information as to foreign affairs,
583 n. 2 ; attends cabinet meetings
in Canada and London, 545.
Hudson Bay, mare clausum as part of
territorial waters of Canada, 129.
Hudson Bay Company, charter of
1673, 172 ; territory secured for
Canada, 420.
Identification certificates, issue to
British Indians on leaving South
Africa, 205, 210.
Immaturity of responsible govern-
ment in the Dominions, 104.
Immigration, meaning of, in Austra-
lian Constitution, 254.
Immunity of instrumentalities, legal
doctrine of, in Canada and Austra-
lia, 447, 448, 451.
Imperial as opposed to local interests,
impossible to attempt to define,
Io2, 153.
Imperial Acts, powers of Governor
under, to be exercised normally on
ministerial advice, 88, 84.
Imperial Cabinet, ultimate responsi-
bility for policy, 828 ; Sir R. Bor-
den's presence at meeting 6f, 545.
Imperial Conference of 1911 : ques-
tion of commercial treaties binding
Dominions, 268 ; consultation of
Dominions regarding political
treaties, 288; naval policy discus-
sion, 309 ; Court of Imperial Ap-
peal, 381, 382; discussion of Im-
INDEX
611
perial federation, 501-6 ; proposed
discussion of preferential trade,
535 ; suggestion to use High Com-
missioners as channels of com-
munication, 538, 543 ; Mr. Fisher's
suggestion regarding placing of
affairs of Dominions under Foreign
Secretary, 547, 548 ; summary and
criticism of subjects discussed and
procedure adopted, 554-64.
Imperial Conference, movement to
call a meeting in 1915, 860-4.
Imperial Copyright Conference of
1910, 240-3.
Imperial Council, Mr. Lyttelton's
proposed creation of an, 562, 563.
Imperial Council of State, Sir J.
Ward's abortive proposal for,
altered at conference of 1911,
501.
Imperial Court of Appeal, proposed
for creation of a real, 884-8.
Imperial expenditure on Canadian
defence, 321.
Imperial Federation, proposals for
and possibilities of, 498-509.
Imperial forces, use of, in 1906 in
Natal, 75, 76; in New Zealand
(1861-70), 301 ; bills affecting
discipline of, to be reserved in
Newfoundland, 144.
Imperial garrisons in colonies, 301-3.
Imperial Government, alleged obliga-
tion to yield always to Dominion
wishes, 80 3, 147, 801 ; responsi-
bility for defence of Empire, 301,
302, 578-88 ; unfair criticism of,
for party purposes in Dominions,
10, 328, 329 ; in case of Samoa, 362;
of New Hebrides, 286, 287, 580.
Imperial interests, with reference to
cases of pardon, 68, 69.
Imperial Intervention in Executive
Acts of Governors, instances of
and principles regulating, 74-84.
Imperial Naturalization under British
Nationality and Status of Aliens Act,
1914 (Canada, 1914, c. 44 and sess. 2,
c. 7), 248-50.
Imperial Navigation Conference of
1907, 215, 216.
Imperial Parliament, characteristics
of sovereign powers of, 120, 121.
Imperial Parliament of Defence, pro-
posal for, by Sir J. Ward at Impe-
rial Conference of 1911, 501-9.
Imperial Postal Order scheme, futile
effort to secure extension to Aus-
tralia and Canada at Imperial
Conference of 1911, 555.
Imperial Preference, 530, 581 ; pro-
posal of Union Government to
substitute in its place payments
for purposes of defence, 535.
Imperial responsibility for naval
defence, 301, 802, 315-17. 330.
Imperial squadron of British navy,
based on Gibraltar, proposed
creation of, 330-4, 388.
Imperial troops, inconsistency of
presence in self-governing Domi-
nion, 46-8 ; gradual withdrawal
from, 801-3.
Imperial Wireless Telegraphy
scheme, 555.
Importation, duties on, claim of
State governments in Australia
for exemption from, in respect of
goods imported by them, 469.
Incompetence of Dominion ministers
to advise on foreign affairs, 549.
Indemnity Act, of 1867, not allowed
in New Zealand, 162.
Indemnity Acts, responsibility of
Imperial government regarding,
76; disadvantages of this position,
149, 150.
Indemnity Bill of Union in 1914,
amended at request of Imperial
Government, 163, 517.
Independence of the Dominions,
progress of, 15 ; possibility of, 21 ;
examination of Mr. J. S. Ewart's
proposal for, 510-29.
India and the Imperial Conference,
191, 192, 260, 552, 563, 587, 588;
relation of, to self-governing Domi-
nions, 527, 528.
India, government of, forbids in 191 1
emigration of indentured labour
to Natal, 206.
Indians, North American, legal posi-
tion of, 457, 458 ; in territory
added to Provinces in 1912 (cf.
Quebec Acts, 1912, cc. 7 and 18),
492.
Industrial questions, uselessness of
discussion of, at Imperial Con-
ferences of 1907 and 1911, 557.
Initiative and Referendum in
Canada (Round Table, 1915-16, pp.
148-50), 124-6.
Inspection of Dominion Militia by
imperial officers, 309, 310.
Instruction of Dominion officers in
the United Kingdom, 309.
Instructions, should not be given to
Dominion Government by Secre-
tary of State, 79, 80.
Instructions to Governors on matters
612
INDEX
of imperial interest, propriety of,
146; cf. 76-80.
Interchange of Civil Servants, reso-
lution regarding at Imperial Con-
ference of. 1911, a dead letter, 560.
Interchange of officers between Im-
perial and Dominion military
forces, 809, 310.
Intercolonial railway in Canada,
437.
Intercolonial Conference of 1881 in
Australia, resolution as to naval
defence, 315.
International Conference on safety
of life at sea, of London in 1913-14,
279.
International Convention respecting
industrial property, held at Wash-
ington in 1911, 278.
International Convention and Radio-
telegraphic Conference in London
of 1912, 278.
International Exhibitions, question
of participation of Dominions in
conference on, 559.
International Joint Commission, be-
tween Canada and United States,
real character of, 518, 519.
International Opium Conference of
1911,277.
International position of Dominions,
276-80.
International Postal Union, position
of Dominions in, 278, 279.
Interstate Commission Act, 1912, of
Commonwealth, declared in part
invalid by High Court of the
Commonwealth, 355-7, 471.
Interstate Commission in Australia
not a judicial body, 471, 478.
Ionian Islands, international status
of, 512.
Irish Catholics, in Canada, 492.
Isaacs, Hon. I. A., Justice of Com-
monwealth High Court (1906- ),
judicial opinions on the interpreta-
tion of the Commonwealth consti-
tution, 219, 460, 467, 470.
Islington, lit. Hon. Lord, P.C.,
G.C.M.G., D.S.O., Governor of
New Zealand (1910-12), refrains
from any pressure on ministers to
resign in deadlock of 1912, 117.
Italy : type of responsible govern-
ment in, 86 ; treaty of 1883 with,
267, 268 ; Queensland Act altered
to correspond with, 425 ; commer-
cial relations of Canada with, 271,
518 ; probable future relations of
empire with, 536 ; Dominions con-
sulted before renewal of arbitration
treaty with, 288.
Japan, agreements of 1911 and 1913
with, respecting Canadian trade
(adopted by Canadian Acts 1911,
c. 7, and 1918, c. 27), 270 ; adheres
to agreement of United Kingdom,
France, Russia (and later Italy)
not to conclude peace separately,
336 n. 1 ; agrees to accept language
test for immigration, 193.
Japanese Alliance (Par/. Pap., Cd.
6735), importance of both to the
United Kingdom and Japan, 331,
335, 336, 847, 588; attitude of
New Zealand towards, 528 n. 1.
Japanese immigration into Canada,
193, 194 ; into Commonwealth,
201.
Johannesburg, riots in 1913 and 1914
at, 47, 48, 160-5.
Johnstone, Mr., Premier of Nova
Scotia, dismissal of by Lieutenant-
Governor, 102.
Joint High Commission, with United
States, of 1898-9, 286.
Judgements, proposals for enforce-
ment of throughout the empire,
558.
Judgeships, needless delegation to
Governors of power of appointment
to, 52.
Judicial Committee, interpretation
of Canadian and Commonwealth
Constitutions, 446 seq.
Jurisdiction in territorial waters of
Dominions, 129, 130.
Kallenbach, Mr., a leader of Indians,
imprisonment of, in South Africa,
208.
Kidston, Hon. W., Premier of
Queensland (1906-7, 1908-11), 41,
42, 400.
Kimberley, Earl of, K.G., Secretary
of State for the Colonies (1880-2),
reply to Home Rule address from
Dominion of Canada, 542 n. 2.
King, H.M. the, consultation of, as
regards Colonial Governors, 27,
28 ; power to bestow honours on
his own initiative, 56, 58 ; relation
to ministers as regards dissolution
of Parliament and dismissal, 85-
90 ; opinion of Sir C. Tupper on
right of dismissal, 114; conduct
of may not be called in question
in debate, 98.
King's ships of war, sense of phra.se
INDEX
613
in Commonwealth of Australia Con-
stitution Act, 1900, 313.
Kingdom, title not used in case of
Canada in deference to American
sentiment, 420.
Kitchener, Field-Marshal the Earl,
visits to Australia and New Zea-
land, 304 ; advice in favour of
completion of intercolonial railway
in Australia, 440.
Komagata Maru, voyage to Canada in
1914, 196.
Kulsan Bibi, case of, in South Africa,
207, 208.
Labouchere, Rt. Hon. H., Secretary
of State for the Colonies (1855-8).
pledge of Imperial Government to
Newfoundland in 1857, 286.
Labouchere, H., M.P., refusal of
Queen Victoria to accept as Minis-
ter, 90.
Labour exchanges, use of, by Domi-
nion governments, 554.
Labour party in Transvaal, 48 ;
attempts to control executive
government of province, 488, 489.
Lake Eotorua, legal ownership of
bed of, 1 73-7.
Land in Rhodesia, ownership of, 495.
Land, power of Governor to deal
with, 52, 175, 178.
Land taxation of Commonwealth
Parliament, futile petition for dis-
allowance of, 156.
Land tenure by natives in Union of
South Africa, 185-7.
Land titles in New Zealand, validity
of native, 173-7.
Langevin, Hon. Sir H., enforced
retirement from Dominion politics
on grounds of corruption, 32.
Language question in Canada, 490-2 ;
Union of South Africa, 489, 490.
Language test, use of, to exclude
Asiatics in Australia, 199, 200 ; in
New Zealand, 201, 202 ; in South
Africa, 207.
Lascars, efforts to exclude from Aus-
tralasian trade by New Zealand
and Commonwealth legislation, 82,
200-2, 572, 574.
Laurier, Rt. Hon. Sir Wilfrid,
G.C.M.G., Prime Minister of Canada
(1896-1911): theory of independent
position of Dominion, 7, 323 n. 1,
337, 343, 344, 529, 585 ; dissolves
Parliament without passing supply,
41 n. 1 ; view on titles of honour,
57, 58 ; on nationality and natura-
Q
li/ation, 245, 247 ; negotiates
treaty with France, 269 ; view on
quasi-diplomatic position of Con-
suls-General, 294 ; unwilling to
advise on issues affecting war and
peace, 289, 818, 529, 585; naval
policy, 817, 821, 322, 506 ; not pre-
pared to rely on United States for
defence, 365 n. 8 ; opposed in 1911
to change in position of Judicial
Committee, 381 ; never appoints a
Conservative as Senator, 891 ; rela-
tion with Lord Strathcona, 540 ;
opposed to Permanent Commission
of Imperial Conference or Secre-
tariat, 563, 570 ; opposed to any
scheme of imperial federation, 505.
Leacock, Prof. S., view of colonial
status as degrading to Canada, 528.
Leasehold <-. Freehold in land tenure
of Dominions, &c., 410.
Legal tender, reduction of State
powers as to, in Commonwealth,
445.
Legislative Council of Rhodesia,
reform of, 495-7 ; of New South
Wales, 398-400 ; of Queensland,
400, 401 ; of Victoria, 401, 402; of
South Australia, 402-8 ; of Tas-
mania, 408, 409 ; of Western Aus-
tralia, 409-11; of New Zealand,
411-15; ofNewfoundland,416,417;
of Nova Scotia and Quebec, 417.
Legislative Council of India, desire
for representation at the Imperial
Conference, 563, 588.
Legislative subordination of Domi-
nion Parliaments, 120-53.
Lemieux, Hon. Rodolphe, negotiates
arrangement at Tokio regarding
Japanese immigration, 193, 295.
Letellier, Hon. Luc de St. Just,
Lieutenant-Governor of Quebec
(1876-9), dismissal of, 114, 431.
Lewis, Hon. Sir N. Elliott, K.C.M.G.,
Premier of Tasmania (1909-12),
resigns in 1909 as a manoeuvre to
consolidate his position, 94 ; re-
signs in 1912 in view of defective
support of his party, 98 ; dissents
from disagreement with action of
the Governor in 1914, 100.
Liberia, freedom of Dominions se-
cured by treaty of 1908 with, 267,
268.
Licence fee on British Indians in
Natal, 204,211.
Lieutenant-Governor in Canadian
Province, office not subject to prp-
vincial control, 416, 443 ; political
q3
614
INDEX
and other duties of, 32, 114, 115,
431, 432.
Limitation of prerogative delegated
to Governor, 52-78: (a) prerogatives
relating to war and sovereignty,
52-4 ; (6) honours, 54-65 ; (c)
mercy, 65-71 ; (d) appointment of
deputy, 71-3.
Liquor licence acts of Canada, 451.
Lithuanian migration into Canada,
191.
Loans to Dominions for war purposes
from Imperial Government, 354
n. 1.
Load lines, legislative powers of
Dominion parliaments as to, in
Canada and Australia, 215, 228, 229.
Lobengula, grants of land to British
South Africa Company, 495.
Local government, importance of in
South Africa, 483.
London Naval Conference, 288.
Long, Rt. Hon. Walter, views on
action of Imperial Government as
to martial law in Natal, 78.
Lord-Lieutenant of Ireland, no legal
liability of, 86.
Lord-President of the Council, sug-
gestion that he should act as
deputy head of Imperial Confer-
ence Secretariat, 565.
Lome, Marquess of, K.G., G.C.M.G.,
Governor-General of Canada (1878-
83), 34.
Lotbiniere, Hon. Sir Henri Gustave
Joly de, Lieutenant-Governor of
British Columbia (1900-6), forces
resignation of Col. Prior's govern-
ment, and starts regime by Sir
Richard McBride, K.C.M.G. (1903-
15), 114.
Lucas, Sir C. P., K.C.B., K.C.M.G.,
head of the Dominions Department
of the Colonial Office, 566.
Lyne, Hon. Sir W., K.C.M.G., views
on importers as nuisances, 534.
Lyttelton, Rt. Hon. Alfred, Secretary
of State for the Colonies (1903-5),
562, 670, 688; refuses to accept
Lord Milncr's erroneous policy as
to British Indians, 203, 588 ; in-
accurately expressed view of posi-
tion of Dominions, 7, 516.
Macartney, Rt. Hon. Sir W. Ellison,
objection to appointment as Gover-
nor of Tasmania, 27 ; dispute with
Ministers, 98-104.
McCallum, Col. Sir H. E., G.C.M.G.,
Governor of Natal (1901-7), 80.
Macdonald, Rt. Hon. Sir John,
G.C.M.G., Prime Minister of
Canada(1867-78; 1878-91): honour
conferred on, 66 ; seeks to control
his colleagues' expenditure, 91 ;
circumstances regarding fall of his
government in 1873, 113, 114;
tariff policy in 1878, 262 ; supports
British connexion, 275 ; takes
part in negotiation of treaty of
Washington 1871, 286, 292; atti-
tude towards Senate of Canada,
891, 392 ; desires title of Kingdom
for Canada, 420 ; restrictive inter-
pretation of powers of provinces,
482.
Macdonald, Baroness, 61.
Macdonald, Mr. Ramsay, M.P., motion
regarding martial law in Natal in
1906, 77.
Macgregor, Sir W., M.D., G.C.M.G.,
C.B., I.I..I". Governor of New-
foundland, criticized for exercise
of prerogative of mercy by opposi-
tion, 67 ; management of crisis in
deadlock of 1909, 116.
Mclnnes, Hon. T. R., Lieutenant-
Governor of British Columbia
(1897-1900), dismissed by Liberal
government for irregular proce-
dure, 114, 432.
Mackenzie, Hon. Sir Thomas,
K.C.M.G., Prime Minister of New
Zealand (1912),High Commissioner
for New Zealand (1912- ), 117,
326.
Mackenzie, Hon. W., Prime Minister
of Canada (1873-8), 113, 392.
McNeill, John Gordon Swift, K.C.,
M. P., views on power of Crown to
dissolve Parliament, 88.
Madden, Hon. Sir John, G.C.M.G.,
Lieutenant-Governor and Chief
Justice of Victoria, declines Mr.
Elmslie a dissolution of Parlia-
ment in 1913, 94.
Mail service, under contract with
Commonwealth, exclusion of lascar
labour from, 200.
Muntlamus does not lie to a Governor
of an Australian State, 462.
Manitoba : dismissal of ministry in
1915 by Lieutenant-Governor, 116 ;
anti-Asiatic act, 198 ; redistribu-
tion, 898; lands question, 437,
458 ; senators, 395 ; education
question, 240, 438; boundary dis-
pute with Ontario, 379 ; increase
of area, 492.
Maoris in New Zealand (by Act No.
INDEX
615
34 of 1912 a Maori may be declared
a European for land-holding pur-
poses), 173-7 ; service in European
War, 181.
Maritime Provinces, loyalty of, to
British connexion, 276.
Maritz, rebellion of, in Union in 1914,
848.
Marriage, proposal in Western Aus-
tralia to forbid, with Asiatic, 199 ;
Dominion legislative powers as to,
in Canada, 456.
Married women, national status of,
251.
Marshall Islands, transferred by
Japan to Australia, 347 n. 1.
Martial law, 43-51 ; misused in Natal,
75-80.
Massey, Rt. Hon. W. F., Prime
Minister of New Zealand (1914- ),
540, 583 n. 2.
Mayo, Lord, reduction of salary of
Governor-General results in his
proposed appointment to Canada
falling through, 151.
Melbourne, Lord, alleged dismissal
of, by William IV, 89, 90.
Merchant shipping, 213-36.
Merchant Shipping Act, 1894, 214,
225-7.
Merchant Shipping (Convention} Act,
1914, 231.
Merchant Shipping Legislation, re-
fusal of wider powers as to, in
1911, 559.
Mercy, prerogative of, 65-71.
Merivale, Hermann, C.B., Under
Secretary of State for the Colonies
(1847-59), views on independence
of the Colonies, 15 n. 1.
Merriman, Rt. Hon. .T. X., views on
deportation of labour leaders from
South Africa, 161.
Metal industry, Commonwealth
efforts to rescue from German
control, 366.
Military defence, 301-10.
Mill, John Stuart, definition of direct
taxation adopted by Privy Council
in interpretation of Constitution
of Canada, 376.
Millen, Hon. E. D., Senator, Minister
of Defence in Commonwealth
(1913-14), reply to Mr. Churchill's
criticisms of Australian naval
policy, 334, 387.
Milner, Lord, errors and failure of
policy in regard to position of
British Indians in Transvaal, 203,
526, 587 ; erroneous objections
(apparently now modified) to use
of term Empire, 526.
Minister, instance of dismissal of
one by Governor without change
of ministry in Newfoundland,
116, 117.
Ministerial responsibility, distinction
of practice between United King-
dom and Dominions, 85-91 ; does
not exist in case of grant of honours
in every case, 57, 68.
Miscellaneous powers of Privy Coun-
cil as a judicial body, 884.
Modus vivendi with France over New-
foundland fisheries, 283, 284 ; with
the United States, 285.
Mohammedan prisoners, refusal of
religious concessions to, in Trans-
vaal prisons, 203, 204.
Molteno, Hon. Sir J., K.C.M.G.,
Prime Minister of Cape of Good
Hope (1872-8), dispute with Sir
Bartle Frere, 50.
Money Bill, Canadian Senate may
not amend, 392 ; arrangements in
South Australia under act of 1913,
405, 406 ; treatment of, by Legisla-
tive Council in Victoria, 401 ; in
Tasmania, 409 ; in New Zealand,
418, 415.
Monogamous marriage, dispute as to
Indian marriages in South Africa,
208, 212.
Monroe doctrine, based on views of
Canning, 365.
Montenegro, treaty with, of Jan. 21,
1882, 263 ; treaty of 1910, 268.
Montreal, fortification of, partly at
expense of United Kingdom, 802.
Morine, Hon. A. B., dismissal of, by
Governor of Newfoundland, 117.
Morocco, treaty of commerce with , 267.
Morris, Rt. Hon. Sir Edward P.,
K.C.M.G., Prime Minister of New-
foundland (1909- ), action in
deadlock of 1909, 95, 116 ; obtains
increase of number of members of
Legislative Council, 417.
Mountstephen, Lord, 61 ; view on
imperial federation scheme of Sir J.
Ward in 1911,505.
Mowat, Hon. Sir Oliver, G.C.M.G.,
Lieutenant-Governor of Ontario
(1897-1903), 432.
Mozambique, treaty of 1909 with,
54 ; close relations with Transvaal,
481.
Mulgrave, Lord, Lieutenant-Governor
of Nova Scotia, 102-4.
Municipal franchise, proposal to
616
INDEX
withdraw, from British Indians in
Natel, 204.
Municipal taxation, power of, in
Canada, 459.
Munro-Ferguson,Rt. Hon. Sir Ronald,
G.C.M.G., Governor-General of the
Commonwealth (1914- ), 106-12.
Murray, Rt. Hon. Sir George, G.C.B.,
report on Canadian methods of
conducting public business, 91.
Murray, Sir Herbert, K.C.B., as
Governor of Newfoundland (1896-
8) dismisses Mr. A. B. Morine in
1898, 117.
Murray River, conference regarding
waters of. in March, 1914,478.
Musgrave, Sir A..G.C.M.G., Governor
of Queensland (1886-8), views on
prerogative of mercy, 28, 65.
Natal : martial law, 44-6 ; dispute
with Imperial Government, 76-8,
130-2 ; anti-Asiatic legislation,
208,211 ; joins Union, 481 ; special
subsidy, 486 ; special payment,
488 ; language question, 489 ; naval
contribution, 316; views on Per-
manent Commission of Imperial
Conference, 568.
Natal Act (No. 1 of 1897), model of
immigration restriction legislation,
193.
Natal Native Affairs Commission,
46.
Nathan, Col. Sir M., R.E., G.C.M.G.,
action as Governor of Natal in
1907, 44, 45.
Nationalist party in Union of South
Africa (successfully prevent pay-
ment of equal amounts to South
African expeditionary force in
Europe and to force in East Africa,
on racial grounds, Times, Feb. 17,
1916), defeat at election of 1915,
18; dangerous attitude of, 351 n. 1 ;
512 n. 1.
Nationality, 244-60.
Native Affairs Commission of South
Africa, 1908-5, 184, 483.
Native affairs, mismanagement of, in
Natal, 46.
Native Land Act, 1909 (amended by
No. 84 of 1912 ; Cd. 6868, p. 94),
of New Zealand, 178-7.
Native Land Court, in New Zealand,
powers of, 178-7.
Native land titles in United States,
175.
Native question in South Africa,
180-9.
Native races, treatment of, 168-89.
Naturalization, 244-60.
Naval Agreement of 1887 with Aus-
tralasian Colonies, 816 ; renewed
in 1897, 316; modified in 1902,
816, 317.
Naval Defence, 810-39.
Naval Defence, conference proposed
to be held in 1913 or 1914, 325,
326.
Naval Discipline (Dominion Naval Forces')
Act, 1911, 814.
Naval strategy, principles of, 830-6.
Navigation Billof the Commonwealth
(now Act No. 4 of 1918), 215, 228,
229.
Navigation Conference of 1907, 215,
216.
Negotiation of treaties for Dominions,
262-70.
Ne temere decree, effect in Canada,
455.
Netherlands, trade with Canada,
concessions as to, 271 ; consulta-
tion of Dominions before renewal
of arbitration treaty with, 288;
representation in case of Vondel in
South Australia, 423.
Neutrality of Dominions, proposed
by Royal Commission in Victoria
in 1870, 23, 294, 840 ; no power to
declare, in Dominion Parliament,
122.
New Brunswick, redistribution
(Legislature now of 48 members ;
Act 1912, c. 5), 398 ; divorce juris-
diction, 456.
Newfoundland : financial irregulari-
ties, 48 ; prerogative of mercy,
66, 69; royal instructions, 118;
reservation of bills, 144 ; dis-
appearance of Boethucs, 168 ; copy-
right, 242 ; naval contribution,
317 ; aid in war, 347 ; relations to
Canada, 394, 396, 492, 493 ; altera-
tion of constitution, 416, 417;
disputes with Imperial Govern-
ment on fishery questions with
France and United States, 81, 128,
147, 150, 288, 284; deadlock in
1908-9, 116; commercial conces-
sions obtained for, in Portuguese
treaty, 296 n. 1.
New Guinea, proposal of Queensland
to annex, 54.
New Hebrides, British policy regard-
ing, 286, 287, 580, 681.
New South Wales : prerogative of
mercy, 67, 68 ; deputy governor,
78 ; royal instructions, 1 18 ; reser-
INDEX
617
vation of bills, 144 ; aborigines,
179; naval force, 312, 318; im-
migration restriction, 193 ; two
Houses, 398-400 ; free trade lean-
ings, 535.
New Zealand, retention of, in British
waters, 326.
New Zealand : disturbances in 1913,
51 n. 1 ; prerogative of mercy, 35,
66 ; Deputy Governor, 71-3 ; royal
instructions, 118; reservation of
bills, 144 ; indemnity act of 1867
disallowed, 162 ; immigration bill
not allowed, 193 ; anti- Asiatic
measures, 201, 202 ; merchant
shipping legislation, 82, 215, 222-8,
232, 559 ; copyright, 242 ; customs,
261, 262; military defence, 304,
305 ; naval defence, 315, 319 ;
attitude to Committee of Imperial
Defence, 326 ; services in war, 337,
347 ; wishes in settlement, 362 ;
judicial appeals, 375, 382 ; relation
of two Houses, 411-15 ; High Com-
missioners, 538 ; question of Resi-
dent Minister, 543, 547; uniformity
of patents, trademarks, and copy-
right law, 558.
Nolle prosequi available to prevent
criminal proceedings against a
Governor, 37.
North American fisheries, dispute
with United States over, 17.
North American Indians, treatment
of, 169-72.
North- West, rebellion of 1885, 302.
Northern territory, aborigines in,
179, 180.
Norway, treaty of 1913 with, 268.
Nova Scotia, redistribution, 393 ;
two Houses, 417 ; joins Union,
420 ; divorce jurisdiction, 456 ;
workmen's compensation legisla-
tion, 558.
Nicaragua, treaty of 1905 with, 268.
Nicholson, Prof. J. Shield, A Project
of Empire, 536.
Niobe, purchased by Canadian Govern-
ment, 320, 338.
Norfolk Island (administered by
Commonwealth under Act No. 15
of 1913), included in Common-
wealth for purposes of certain
Acts (4 & 5 Geo. V, cc. 17, 50 ;
5 & 6 Geo. V, c. 21), 235 n. 2.
O'Connor, Hon. R., Justice of Com-
monwealth High Court (1903-12),
357, 460.
Occupation — not annexation — of
German territory by Dominion
forces, 54, 361, 362.
Ojibeway Indians, surrender of lands
in Canada, 457.
Old Age Pension Acts, exclusion of
certain Asiatics from benefit of,
199.
Onslow, Earl of, G.C.M.G., Governor
of New Zealand, Under Secretary
of State for the Colonies (1901-3),
suggests in 1891 change in royal
instructions regarding duties of
Governors as to pardons, 65 ;
relation to Cabinet when in charge
of Colonial Office, 545.
Ontario, boundary dispute with
Quebec and Manitoba, 379 ; redis-
tribution of seats, 393 ; language
question, 491 ; increase of area in
1912, 492 ; workmen's compensa-
tion, 558; re-enactment of measure
affecting chartered accountants
after disallowance, 436 n. 3.
Orange Free State : native question,
181-7 ; British Indians excluded
from, 205, 209, 213 ; joins Union,
481 ; language question, 489 ; edu-
cation controversy, 490 ; special
subsidy, 486.
Order of Saint Michael and Saint
George, 55, 60.
Order in Council of 1907, overriding
law of Newfoundland, 69, 148, 284,
285.
Orders in Council, procedure by, in
Dominions, 91, 92.
Orders in Council under Colonial Naval
Defence Act 1865 now obsolete, 312,
313.
Ottawa Conference of 1894, 264, 531.
Otter, Maj. Gen. Sir William Dillon,
K.C.B., C.V.O., report on defence
forces of Canada, 307 n. 1.
Ottoman Dominions, extra-territorial
jurisdiction in, over British sub-
jects (abrogated pro tempore by war),
127.
Ownership of land by British Indians,
restriction on, in South Africa, 205.
Paardeberg, Canadian valour at, 343.
Pacific, relation of Commonwealth
with, 444.
Pacific cable, 537.
Papineau, revolt in Lower Canada
under, 13.
Papua, included with Norfolk Island
in Commonwealth for certain pur-
618
INDEX
poses (4 & 6 Ceo. V, cc. 17, 60; 5&
6 Geo. V, c. 21), 236 n. 2.
Paraguay, Dominions freed from
obligations if desired under exist-
ing treaty by treaty of 1908 with,
268.
Pardon, action of Sir A. Musgrave in
1888 as to, 28 ; delegation of pre-
rogative to Governor, 65-71.
Parker, Sir Gilbert, Bart., views on
question of interference of Imperial
Government as to martial law in
Natal, 78.
Parkin, Dr. G. R., views on Colonial
status, 628.
Pass laws, affecting natives in South
Africa, 188.
Passport, form of. issued to natura-
lized British subjects, 246.
Patents, uniformity of legislation as
to (cf. Queensland Act No. 26 of
1912 ; Cd. 6868. p. 71), 557, 658.
Paterson, Hon. W., joint negotiator
of arrangement as to trade with
United States in 1911, 272.
Payment of members of Parliament
in Dominions (Responsible Govern-
ment, i. 503, 504 : now in New
South Wales £500 with £250 extra
for Leader of Opposition, by Act
No. 19 of 1912; in Tasmania £200
with £100 extra for Leader of
Opposition, by Act No. 49 of 1913 ;
$1.600 in British Columbia by Act
1913, c. 13), effect on duration of
Parliament, 93.
Peace Commission Treaty of 1914
with United States, position of
Dominions under, 287.
Peace Conference, position of Domi-
nions at any, 365. 366.
Peake, Hon. A. H., defeat of his
ministry (1912-15) in South Aus-
tralia, 479.
Pearce. Senator Hon. G. F., Ministerof
Defence in Commonwealth (1910-
13 ; 1 914- ), efforts to secure satis-
factory scheme of defence for the
Commonwealth, 846.
Pearl fishery of Australia, proposed
exclusion of Japanese from, 201.
Pecuniary Claims Convention with
United States of 1910 (Part. Pap.,
Cd. 6201), 287.
Peel, Rt. Hon. Sir Robert, accepts
responsibility for dismissal of Lord
Melbourne's Government, 89.
Peerages conferred for Colonial ser-
vices (that of Sir T. Shaughnessy
was rendered possible by the pro-
vision of 4 and 5 Geo. V, c. 17,
(adopted by Canada, Acts 1914
sess. 1, c. 44 and sess.2, c. 7) provid-
ing for imperial naturalization, 61.
Pelagic sealing discussion and treaty
of 1911, 622, 528.
Perley, Hon. Sir G., K.C.M.G., Hono-
rary Minister in Dominion Cabinet,
represents Canadian Government
in United Kingdom, 246 n. 1, 345,
643.
Permanent Commission of Imperial
Conference suggested by Mr. Lyttel-
ton, 562-71.
Permanent officials of Colonial Office,
influence on policy of, 14.
Persia, extra-territorial jurisdiction
over British subjects in, 127.
Personal responsibility of Governor
in certain criminal cases, objec-
tions to, 68, 69.
Personal union of Scotland and
England, 512, 513.
Petitions of Right, against Colonial
Governments, 157-9.
Petitions to the Crown from subjects
in Dominions, 156-8.
Philip, Hon. R., Premier of Queens-
land (1907-8), 42.
Philipps, Sir Owen, K.C.M.G., M.F.,
undertakes management of Union
Castle Steamship Co. on retirement
of Messrs. Donald Currie & Co. in
view of anti-rebate policy of Union
Government, 556.
Philomel, taken over in 1914 by New
Zealand Government and placed
at disposal of Admiralty under Act
No. 45 of 1918, 327.
Piddington, A. B., K.C. (now Chair-
man of Interstate Commission),
withdraws from appointment as
Justice of the Commonwealth High
Court, 357, 461.
Plenipotentiaries, representation of
Dominions by, at certain con-
ferences, 278-80 ; suggested repre-
sentation thus at Hague Con-
ferences, 289-94.
Political treaties, position of Domi-
nions under, 281-300.
Pollak, Mr., one of leaders of Indians
in South Africa, imprisonment of,
208.
Pollock, Rt. Hon. Sir F., Bart., on
status of the Dominions, 506 ;
views on Imperial Council, 662.
Pope, Sir Joseph, K.C.M.G., I.S.O.,
mission to Japan regarding Japa-
nese immigration into Canada, 198.
INDEX
619
Portuguese territory, expulsion of
Indians from Transvaal into, 204 ;
employment of natives from, in
Transvaal, 54.
Portuguese treaty of commerce, ad-
vantages secured for Newfound-
land, 296 ; necessary legislation to
enable its execution carried before
ratification, 283.
Postal voting in the Commonwealth
(abolished by Act No. 17 of 1911),
abortive proposal to restore in 1914,
106, 107.
Powers, Hon. C., appointed in 1912
a Justice of Commonwealth High
Court, 857.
Powers of Canadian Parliaments and
Provincial Legislatures inter se,
442, 443.
Powers of Provincial Councils in
South Africa, 484, 486, 487, 488.
Precedence, in self-governing Domi-
nions and States, 52-6.
Precious Minerals, ownership by
Canadian Provinces of, 458.
Preference to unionists, dispute as to
in Commonwealth, 107.
Prerogative, Newfoundland's consti-
tution given under, 141.
Preston, W. R. T., formerly Trade
Commissioner of Canada in Hol-
land, 297 n. 1.
Price, Hon. T., Premier of South
Australia (1905-9), views on local
appointment of Governors, 30, 31.
Prime Minister, position in regard
to honours, 58, 59 ; access of Domi-
nion ministers to, 322, 323, 542 ;
consultation of, as to appointments
of Governors of Dominions, 27 ;
ex-officio President of Imperial
Conference, 552.
Prime Ministers of Dominions, ex-
officio members of the Imperial
Conference, 552.
Prince Edward Island : land ques-
tion, 154 ; divorce jurisdiction not
exercised, 458 ; redistribution, 393,
395 ; fails to enter Union in 1867,
420.
Privy Council, possible use in decid-
ing disputes between Imperial
and Dominion Governments, 165,
166 ; reference of question of land
ownership in Rhodesia to, 498.
Privy Councillorship, may be be-
stowed on Dominion statesmen,
59 ; Dominion Privy Councillor
admitted to meeting of Imperial
Cabinet, 545 ; Dominion judges as
Privy Councillors and members of
the Judicial Committee, 880, 381.
Proportional voting in Tasmania,
bad results of, 408.
Proposed union of Newfoundland
with Canada, 492, 493 ; of Austra-
lia and New Zealand, 493, 494 ; of
Rhodesia and the Union, 494, 495.
Protector, placed by government of
South Australia at disposal of
Admiralty in 1900 for service in
China, 812.
Province of Canada, legislative
powers of, 442, 443.
Provincial Acts in Canada, no power
of Governor-General or Lieutenant-
Governor to pardon offences against,
except in second case by statute,
71 ; Dominion power to disallow,
432-6 ; disuse of power of reserva-
tion, 153.
Provincial Councils, position of, in
South Africa, 483-9.
Provincial Ordinances, no power of
Governor-General to pardon in
respect of offences against, in South
Africa, 71.
Prussia, no responsible government
in, 86.
Public money, position of Governor
with regard to, 39.
Public works, control by Upper
Houses of proposals for, in New
South Wales, 399, 400; in Com-
monwealth, 899 n. 1 ; in South
Australia, 403, 407 n. 1.
Quebec, city of, imperial expenditure
on defence of, 302.
Quebec, dispute with Privy Council,
375-8 ; two Houses (lower House
of 82 members by Act 1912, c. 9,
franchise, c. 10), 417 ; language
question, 490-2 ; redistribution,
393 ; dismissal of Lieutenant-
Governor, 114, 432 ; addition of
territory (Ungava), 492; boundary
question with Ontario, 379.
Queensland : prerogative of mercy,
66: royal instructions, 118; reser-
vation of bills, 144 ; aborigines,
179, 180 ; naval force, 312 ; two
Houses, 41, 400, 401 ; proposal to
annex New Guinea, 54.
Racial questions in Dominions, 191,
192.
Railway belt lands in British Colum-
bia, legal position of, 455, 458.
Railway contract in Newfoundland,
620
INDEX
request for Imperial interference
in, 155.
Railway gauge of Commonwealth,
necessity of uniformity for mili-
tary purposes, 44.
Railways, government ownership of,
in Dominions, 482.
Rainliotr, purchased by Canadian
government, and placed at disposal
of Admiralty in 1914, 320.
Ratification of treaties, necessity of
retaining control of, in hands of
the Imperial ministry, 290, 293;
asserted in 1895 by Lord Ripon,
255.
Rebellion in South Africa in 1914,
348-51, 512; in Canada in 1870
and 1885, 302 ; of Papineau, 13.
Reciprocity, proposed conclusion of
arrangement with United States by
Canada in 1911, 272-6.
Reciprocity treaty of 1854 with
United States, 16, 281, 315, 520.
Recruiting for Imperial forces in
oversea Dominions, 309.
Red River, rebellion of 1870, suppres-
sion of, by Imperial forces, 302.
Redistribution of seats in House of
Commons of Canada, 393 ; four
seats retained by Prince Edward
Island, 395.
Referenda in Commonwealth in 1910
and 1913, 104-6 ; proposed in 1915
(despite failure of State Parlia-
ments to carry compromise of 1915
into effect Mr. Hughes declines to
proceed with, during war), 471,
472 ; Governor-General declines to
submit to people in 1914, 110-12.
Referendum as mode of legislation
adopted in Canadian provinces,
124-6.
Reform of Privy Council as a judicial
body, suggestions for, 379-88.
Registered vessels, powers of Colonial
legislature to legislate for, 214,
233.
Reid, Rt. Hon. Sir George H., M.P.,
High Commissioner for the Com-
monwealth of Australia (1909-15),
estimate of political capacity, 540.
Reid, Sir R. G., railway contract in
Newfoundland, 155.
Religion, no power in Common-
wealth to legislate as to, 446 ;
question of in Canada, 456, 492.
Republicanism in South Africa, 348,
612.
Repugnancy of Dominion legislation,
138-42.
Reservation of Dominion Bills, 148-
5 ; of Provincial legislation in
Canada, 153.
Reserved powers of the States, Aus-
tralian doctrine of, 449, 463 seq.
Resident Minister, of Dominion to
United Kingdom, 322, 823, 542-4,
678, 579.
Residual power, limits of exercise of
in Canada, 452.
Resignation of crown office depen-
dent on permission, 146, 147.
Responsible government, origin of,
18 ; prematurely granted to Natal,
46 ; essential conditions of exis-
tence of, 88.
Retaliation policy of Canada, 266.
Revolutionary movement among
British Indians in North America,
196.
Rhodesia, constitution and future of,
493-8.
Rich, Hon. G. E., Justice of Com-
monwealth High Court (1912- ),
857 ; views on interpretation of
Commonwealth constitution, 221.
Rioting in Natal in October, 1913,
208; in Vancouver in 1907, 193;
in Johannesburg in 1913 and 1914,
47-9; in New Zealand in 1918,
51 n. 1.
Ripon, Marquess of, K.G., sets out
policy of Imperial Government
regarding treaty relations of
Dominions, 264—6.
Roblin, Hon. Sir R., K.C.M.G.,
Premier of Manitoba, forced to
resign in 1915 by Lieutenant-
Governor, 114, 115.
Rogers, Hon. R., Minister of Interior
of Canada, 197.
Rogers, Sir Frederick, Bart.,
G.C.M.G. (afterwards Lord Blach-
ford), Under Secretary of State for
the Colonies (1859-71), views on
independence of the Colonies, 15
n. 1.
Roman Catholic education question
in Manitoba, 438, 439 ; marriage
question concerning, 455 ; differ-
ence between Irish and French
Canadian, 492.
Roman Catholics in Canada, 492.
Roman Dutch law, lack of familiarity
of Privy Council with, 874.
Ross, Hon. Sir George, K.C.M.G..
leader of Liberal party in Canadian
Senate, erroneous policy in ques-
tion of Naval Aid Bill, 322.
Round Voyage, power of Common-
INDEX
wealth Parliament to legislate for,
218.
Royal Commissions Act, 1914, of Com-
monwealth declared invalid by
Judicial Committee (criticism by
S. Jethro Brown, Law Quarterly
Review, xxx. 301-11), 468, 469.
Royal family, members of, as Gover-
nors, 33 ; precedence of, in Domi-
nions, 63.
Royal Instructions to Governors, 26,
27 ; amendment proposed, 118, 119.
Royal Naval Reserve, branches of, in
Dominions, 316, 317.
Royal Proclamation of 1763 regarding
lands in Canada, 170, 457.
Rumania, treaty of 1905 with, 268.
Rupert's Land, incorporation in
Canada, 18, 420.
Russia, treaty of 1859 with, 267,
268 ; alteration of State acts to
secure compliance with terms of,
425 ; commercial relations with,
536.
Russo-Japanese war, effect on opinion
in Australasia, 337.
Safety of life at sea, Convention of
1914 regarding, 231.
Salisbury, Marquess of, K.G., action
in Behring sea dispute in 1890,
17, 522 ; on imperial federation
requests (July 19, 1891) a definite
scheme (United Empire, 1915, p. 269),
501.
Solus reipublicae supremo, lex, 160.
Salvador, freedom of Dominions ob-
tained by treaty of commerce with,
267, 268.
Samoa, capture and occupation by
New Zealand forces, 54, 347 ; Bri-
tish policy regarding, 362, 580.
Saskatchewan : initiative and re-
ferendum (legislature raised to 56
members by Acts 1912, cc. 2-4),
124, 125 ; lands question, 458 ; re-
distribution, 393 ; senators, 395 ;
claim for grant of control of lands,
437.
Scaddon, Hon. John, Premier of
Western Australia (1911- ), sug-
gests selection of an Australian
citizen as State Governor, 30 ; sup-
ports Mr. Holman's proposals for
reform of feder.nl constitution, 473
n. 1.
Schreiner, Hon.W. P., Prime Minister
of the Cape of Good Hope (1898-
1900), proposed neutrality of Cape
in Boer War, 342.
Scotland, serious decline in popula-
tion of, by emigration, 560.
Secession of Dominions, possibility
of, 148.
Second Ballot, repealed in 1913 in
New Zealand, 412 n. 2.
Secretariat of Imperial Conference,
question of duties and personnel,
563-71 ; reluctance of Dominions
to encourage communications
through, 546 n. 1.
Secretary of State for the Colonies,
ex-officio member of Imperial Con-
ference, 552 ; provision for his
acting as arbiter in disagreement
between British Columbia and
Canadian Government over land of
Indians, 171.
Secretary of State for Foreign Affairs,
offer by Mr. Harcourt in 1912 of
full and free access of Dominion
Ministers to, 322, 823, 542, 584 ;
proposal to put Dominions under
charge of, 547, 548.
Seely, Col. Rt. Hon. J. E. B., D.S.O.,
Under-Secretary of State for the
Colonies (1908-11), views on
martial law in Natal, 78.
Seisin of land in New Zealand
vested in Crown by prerogative,
173, 174.
Selborne, Earl of, P.C., K.G.,
G.C.M.G.. memorandum on South
Africa written as Governor of the
Transvaal (1905-10), 482 ; as First
Lord of the Admiralty U9W-5),
memorandum on naval policy,
316.
Self-governingDominions, definition
of, 9.
Senate of Canada, alteration of con-
stitution of, by Imperial act, 394,
395 ; constitutional relation to
the House of Commons, 391-4.
Senate of Commonwealth, constitu-
tional relation to lower House,
106-9, 110-12.
Senate of United States, constitu-
tional position in treaty matters,
287, 288.
Senators, election of, in Common-
wealth, 475, 476.
Senators, in Union of South Africa,
qualifications of certain, 186, 187.
Serbia, commercial treaty of 1907
with, 268.
Shipping and Seamen Act, 1908 (New
Zealand), 225-7.
Siani, extra-territorial jurisdiction
over British subjects in, 127.
622
INDEX
Sikhs, grievances of, in British
Columbia, 197.
Sinclair, Hon. J. 11.. New Zealand
member of Dominions Royal Com-
mission, views on proposal of an
empire development fund, 573.
Situs of assets of deceased testators,
182, 183.
Six Hatters, refusal of Common-
wealth emigration authorities to
allow landing of, 533.
Smartt, Hon. Sir Thomas W.,
K.C.M.G., Commissioner of Public
Works in Cape of Good Hope
(1900-2 ; 1904-8), proposals as to
naval defence at Colonial Confer-
ence of 1907, 317.
Smuggling of Chinese immigrants
into Australia, 199.
Smuts, General (appointed to com-
mand British forces— including
large body of volunteers from
South Africa — in East Africa, Feb.
1916), action in Johannesburg
riots, 47, 48.
Solomon, Hon. A. E., Premier of
Tasmania (1912-14), 98, 99.
Solomon, Hon. Sir Richard, High
Commissioner for the Union of
South Africa, commercial position
of, insisted on by Mr. Malan at
Imperial Conference of 1911, 537.
Solomon Islands, cession of German
portion of, to United Kingdom,
362.
Songhees Indian reserve (Canada
Act, 1911, c. 24), case of, 169.
South Australia : Deputy Governor,
72, 73 ; royal instructions, 118 ;
reservation of bills, 144 ; abori-
gines, 179 ; naval force, 312 ; two
Houses, 39, 41, 402-8 ; workmen's
compensation, 558 ; boundary dis-
pute with Victoria, 879.
South-West Africa, occupation of, by
South African Union forces, 54,
348, 349.
Sovereign, powers in United King-
dom contrasted with those of a
Governor, 86-91.
Sovereign legislation, characteristics
of, 120, 121.
Spain, Sir A. Gait's commercial
negotiations for treaty with, 268 ;
consultation of Dominions before
renewal of arbitration treaty with,
288.
Squatting on lands by natives in
Orange Free State, 185, 186.
Staff Colleges at Camberley and
Quetta, attendance of Dominion
officers at, 810.
State Parliaments in Australia,
powers of, 444-6.
State-owned Atlantic cable, abortive
proposal for, 555.
Steamship services, proposed im-
provement of, 555, 556.
Stephen, Rt. Hon. Sir James, K.C.B.,
Under Secretary of State for the
Colonies (1836-47), view in favour
of independence of colonies, 15
n. 1.
Steyn, ex-President, inaction in con-
nexion with rebellion of 1914,
848.
Stout, Rt. Hon. Sir Robert, Chief
Justice of New Zealand, views on
native land rights. 175-7 ; objec-
tion to Judicial Committee of
Privy Council, 875 ; represents
Dominion on, 383 ; dislike of Im-
perial Government, 512.
Strathcona and Mount Royal, Lord,
G.C.M.G., High Commissioner of
Canada (1896-1914), 61, 540.
Strickland, Sir Gerald, Count delta
Catena, G.C.M.G., Governor of
Tasmania (1904-9). Western Aus-
tralia (1909-13), and New South
Wales (1913- ), views on prero-
gative of mercy in capital cases,
67 ; successful administration of,
92 ; Government House, Sydney,
restored to, as token of appreciation
of services, 431.
Sudan expedition of 1884-5, assis-
tance rendered by Canada and
New South Wales, 500.
Suez Canal dues, reduction of, 559,
576.
Sugar industry in Commonwealth,
exclusion of coloured labour from,
on payment of compensation to
those with vested rights, 201.
Sunday observance, Provincial power
as to, 458.
Supply, should be obtained before
dissolution, 96, 97 ; exceptional
cases, 41 n. 1.
Supreme Chief, Governor of Natal's
position as, 1 82.
Surrender by Imperial Government
of power of requiring reservation
of Dominion bills and of disallow-
ance of acts, suggested, 149-51.
Surveyors' Conference of 1911, abor-
tive, 548, 554.
Suspending clauses required by cer-
tain Acts (67-68 Viet. c. 60, ss. 785,
INDEX
623
736 ; 53 and 54 Viet. c. 27, s. 4),
145.
Swaziland, scheme of government of,
on merger in Union of Suuth
Africa, 187-9.
Sweated labour, danger of, in Canada,
258, 259.
Sweden, freedom of withdrawal of
Dominions from old treaties of
commerce secured by treaty of 1911
with, 268.
Switzerland, commercial treaty with,
regarding position of Dominions,
257 ; consultation of Dominions
before renewal of arbitration
treaty with, 288.
Taft, ex-President W., indiscretion
of, as regards commercial arrange-
ment between Canada and United
States, 275.
Tariff Commissions, 570, 571 ; pro-
posals of Sir R. Borden's govern-
ment for setting up a Tariff Com-
mission in Canada, 392.
Tariff questions, mode of considering,
571.
Tarte, Hon. I., forces resignation of
Sir Hector Langevin from Domi-
nion Government, 32.
Taschereau, Rt. Hon. Sir H. E., Chief
Justice of Canada, formerly mem-
ber of Judicial Committee, 380.
Tasmania: prerogative of mercy, 66,
67 ; deputy governor, 73 ; royal
instructions, 118 ; reservation of
bills, 144 ; aborigines, 179 ; immi-
gration bill, 199, 201 ; two Houses,
408, 409 ; constitutional dispute
between Governor and ministry
in 1914, 98-104.
Taxation of land values, proposed
adoption of, as sole basis of taxation
in Transvaal, 489.
Taxation of salaries of federal officers,
legality of, 447, 448.
Tennyson, Lord, G.C.M.G., Governor-
General of the Commonwealth
(1902-4), represents Common-
wealth at Copyright Conference of
1910, 568.
Territorial limitation of Dominion
legislation, 127-38.
Thaw, Harry, criminal lunatic, ex-
pulsion of, from Canada, 300.
Thompson, Rt. Hon. Sir John,
G. C.M.G., Prime Ministerof Canada
(1891-4), dispute with Imperial
government as to copyright, 142,
239, 240.
Tin plate manufacturers, protest
against proposed arrangement be-
tween United States and Canada,
275.
Titanic disaster, summoning of inter-
national convention on safety of
life at sea as outcome of, 231.
Tonga, acquisition by United King-
dom of all German claims in re-
spect of, in 1899, 862.
Torts, position of Governor as regards
liability for, 86, 37.
Township Amendment Act, of Trans-
vaal, 213.
Trade agents, of Canada and Aus-
tralia, in foreign countries, 296, 297.
Trade and commerce power of Domi-
nion in Canada, 436.
Trade and commercial treaties, 261-
80.
Trade Commissioner of New South
Wales in Far East, views on Aus-
tralian trade with Japan, 194.
Trade Marks, uniformity of legisla-
tion as to, 557, 558.
Trade Marks Act, 1905, of Common-
wealth, invalidity of part vii of,
464.
Trading Licences, grant to British
Indians in South Africa, 204, 213.
Trading with the enemy, Dominion
Government authorized to license,
352.
Transcontinental railway in Canada,
437 ; in Australia (Commonwealth
Act No. 7 of 1911), 440.
Transvaal, evasion of law by govern-
ment of, in 1910, 42, 43; use of
imperial forces against rioters in,
47, 48 ; native question, 181-7 ;
British Indians, 202-13; joins
Union, 481 ; language question, 489.
Transvaal Republic, treatment of
British Indians by, 203, 587, 588.
Treaties, application to Canada, 421,
422 ; to Australia, 425, 426 ; obli-
gation of, as affecting legislation,
120, 121, 425; certain treaties
must be observed by colonial legis-
latures with regard to coasting
trade legislation, 214 ; bills con-
trary to, must be reserved in Aus-
tralian States and Newfoundland,
144.
Treaty of 1783 with United States,
520.
Treaty of 1814 with United States,
520.
Treaty of 1818 with United States,
148.
624
INDEX
Treaty of 1842 with United States,
520.
Treaty of 1854 with United States,
16, 281, 815, 520.
Treaty of 1871 with United States,
16, 128, 281, 315, 520.
Treaty of 1888 with United States,
128, 281, 286, 620, 587.
Treaty of 1862 with Belgium, 264,
266, 587.
Treaty of 1865 with Germany, 264,
266, 587.
Treaty of 1893 with France, 263,
587.
Treaty of 1911 with Japan, 255, 256.
Treaty of 1918 with Japan, 270, 274.
Treaty of Waitangi in 1840, 178, 174,
177.
Treaty power, suggested concession
of, to Dominions, 270-6.
Trusts and Monopolies, Common-
wealth referendum ns to, 105, 106.
Tryon, Rear- Admiral, negotiates
naval agreement with Australasian
colonies, 316.
Tupper, Right Hon. Sir Charles,
Bart., G.C.M.G., Privy Councillor-
ship conferred on, 59 ; negotiates
treaty of 1888 with United States,
281, 521, 537 ; tries to avert fall of
Sir H. Langevin, 82 ; protests
against Lord Dufferin's proposal
to dismiss Sir J. Macdonald, 113,
114 ; quarrels with Lord Aberdeen,
114, 115; secures withholding of
assent to Canadian bill reducing
salary of Governor-General, 151 ;
Prime Minister of Canada in 1896,
240, 337 ; negotiates treaty with
France, 263, 537 ; votes against
colleagues at a conference on sub-
marine cables in 1893, 292 ; view-
on development of Canada, 804 ;
supports sending of aid in Boer
war, 343 ; secures building of
transcontinental railway to British
Columbia, 437 ; views on imperial
federation by means of trade, 531 ;
insists on representation by
minister at London, 547 ; political
assistance to his government, 537.
Under Secretary of State for the
Colonies, proposed creation of two
posts of, 564.
Unfair criticism of Imperial Govern-
ment for party purposes in Domi-
nions, 10, 79, 328, 829; in the
matter of Samoa, 362.
Uniform design of stamps for empire,
554.
Uniformity in law of workmen's
compensation (cf. New Brunswick
Act, 1914, c. 34 ; Manitoba, 1913,
cc. 4, 11 ; Nova Scotia, 1918, c. 47 ;
South Australia No. 1058 ; Western
Australia, No. 69 of 1912; Victoria,
No. 2496 ; New Zealand, No. 70 of
1913; Commonwealth, No. 29 of
1912 ; Union, No. 25 of 1914,
Ontario, 1914, c. 25), 558.
Union of South Africa : prerogative
of mercy, 69, 70 ; deputy of
Governor-General, 72 ; royal in-
structions, 118 ; reservation of
bills, 145 ; native races, 180-9 ;
anti-Asiatic measures, 202-213 ;
military defence, 806, 807 ; aid in
war, 848-51 ; war measures, 868-
60 ; views on settlement, 362, 363 ;
judicial appeals, 878, 874, 382;
alteration of constitution, 415, 416 ;
form of union, 480-98 ; tariff pre-
ference, 535, 536 ; view as to
resident minister, 825, 543, 547 ;
deportation of labour leaders, 181,
132.
Union Castle Steamship Company,
alteration of management and of
rebate system as result of policy
of Union government, 556.
United States : designs against Cana-
dian independence, 13, 15, 16 ;
claims dominion over Behring
sea and seals, 17 ; trade relations
with Canada, 271, 272 ; blackmail
in copyright matters, 238 ; protest
in case of criminal Gardiner, 70;
alteration of fiscal policy, 535 ;
feeling in New Zealand against,
owing to failure to protest against
invasion of Belgium 322 n. 1 ;
constitution of Canada and Aus-
tralia in relation to, 441.
United States Barter Act, regulation
of carriage of goods at sea, 234.
Universal Penny Postage, 655.
Unskilled labour, restrictions on
immigration into Canada, 195.
Upper Houses, relations to lower
Houses in respect of finance, 39-
41 ; relations in Canada, 391-5 ;
in Commonwealth, 896 : in New
South Wales, 398-400 ; in Queens-
land, 400, 401 ; in Victoria, 401,
402 ; South Australia, 402-8 ; Tas-
mania, 408, 409 ; Western Aus-
tralia, 409-11 ; New Zealand, 411-
16 ; the Union of South Africa,
INDEX
625
415, 416 ; Newfoundland, 416, 417 ;
Nova Scotia and Quebec, 417.
Uruguay, treaty of commerce with,
267 ; wrongs of Canadian sailors in
redressed by Imperial action, 19.
Van Rensburg, effect of his vaticina-
tions on de la Rey, 849.
Veto, i. e. negative voice of Governor,
148.
Venezuela boundary question, 16.
Vice- Admirals, Governors of States in
Australia are, 461, 462.
Victoria, war vessel of Victorian
government, 812.
Victoria: Deputy-Governor, 78; royal
instructions, 118; reservation of
bills, 144 ; aborigines, 179 ; naval
defence, 310, 311, 318 ; two Houses,
401 ; workmen's compensation,
558; boundary dispute with South
Australia, 879 ; policy in favour of
tariff preference and protection,
535 ; re-election of ministers (abo-
lished by Act No. 2578), 94.
Victorian Royal Commission on
federation, 23, 284, 340.
Visits by Dominion Ministers, 560.
Vogel, Hon. Sir Julius, K.C.M.G.,
Colonial Treasurer of New Zealand,
views on Imperial federation, 537.
Vondel, case of in South Australia
raises constitutional issue of States
v. Commonwealth, 423, 424.
Wallach, case of in Australia (cf.
decision as to detention of natura-
lized British subject under regula-
tions made under the Defence of the
Realm (Consolidation) Act, 1914, s. 1
(1), the validity of detention being
upheld by the Divisional Court in
R. v. Halliday, ex parte Zadig, Times,
Jan. 21, and by the Court of Appeal,
ibid., Feb. 10, 1916), 357, 358.
War and peace, limits of Governor's
power to declare, 53 ; general prin-
ciples regarding, 339-66.
War legislation in Canada, 352-4 ;
in Queensland, 353 ; in New South
Wales, 353-7 ; in the Common-
wealth, 357-8 ; in the Union, 358-
60.
War of 1812 with United States, 16.
War of Secession, in United States,
British attitude in, 16.
War Precautions Act, 1914, of Common-
wealth, 357, 358.
War, relation of Dominions to United
Kingdom as to, 58, 54, 389-66,
501-6, 581-3.
Ward, Rt. Hon. Sir Joseph, Prime
Minister of New Zealand (1906-12),
unpopularity of baronetcy con-
ferred on, in 1911, 56; resigns
office in 1912, 117, 546 ; naval
policy, 327, 888 n. 1, 502, 503;
secures appointment of a New
Zealand judge to the Privy Coun-
cil, 381, 382, 385; views on rela-
tions of two Houses in the Domi-
nions, 412 ; proposal of imperial
federation in 1911 at Imperial
Conference, 501-4, 580 ; views on
reconstitution of Colonial Office,
564.
Warlike operations carried out by
Dominion governments, 53, 54,
347, 348.
Warrants for expenditure of money
without legislative authority, sign-
ing by Governor of, 40.
Watson, Hon. J. C., Prime Minister
of Commonwealth in 1904, now
controller of Labour party in
Commonwealth, 108 n. 1, 346, 476.
Watt, Hon. W. A., Premier of Vic-
toria (1912-14), clever manoeuvre
in 1913, 94.
Way, Rt. Hon. Sir Samuel, Chief
Justice of South Australia (1896-
1915), views on position of Deputy
of Governor, 73 ; appointed to
Privy Council in 1897, 380.
Western Australia : proposals of
government in favour of local ap-
pointment of Governors, 30, 31 ;
relation of two Houses, 39, 41,
409-11 ; prerogative of mercy, 67 ;
deputy Governor, 73 ; royal in-
structions, 118 ; initiative and
referendum, 120, 410 ; reservation
of bills, 144; aborigines, 179; im-
migration bill, 199 ; intercolonial
railway, 440, 441 ; workmen's com-
pensation, 558.
Western Canada, set-back in, 195.
White Australia, ideal of, 191, 587.
White superior to black in South
Africa, a formal precept of the
Boer Republics and Church, 182.
Whiteway,Rt.Hon.SirW.,K.C.M.G.,
Premier of Newfoundland (1878-
84 ; 1889-94 ; 1895-7), 154, 155.
Widow, national status of, 251.
Wife and child desertion by emi-
grants, 560.
Williams, Rt. Hon. Sir Joshua, Jus-
tice of Supreme Court of New
INDEX
Zealand, views on native land
question, 177 ; first representative
(1914-15) of Dominion on Privy
Council, 885.
Williams, Sir Ralph, K.C.M.G.,
Governor of Newfoundland, de-
clines to dismiss his Minister of
Justice, 110; expected to use dis-
cretion as to prerogative of mercy,
67 n. 1.
Wireless Telegraphy Act, 1904, 230.
Wireless Telegraphy Conference, 569.
Wireless telegraphy, regulation of
use at sea, 230, 281.
Witwatersrand Disturbances (1918)
Commission, 48.
Workmen's compensation law, uni-
formity in, 558.
Yiddish, a European language in
South African legislation, 202, 207
n. 4.
Yiddish-speaking immigrants, 258,
283.
Young, Mr., Premier of Nova Scotia,
accepts office on conditions laid
down by Lieutenant-Governor,
102.
Zululand, declaration in 1907 of
martial law in, 44-6 ; surrender
of government of, to Natal, 81.
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