PRACTICAL CHANGE IN THE AREA OF PARLIAMENTARY SOVEREIGNTY (RELATION
OF THE IMPERIAL PARLIAMENT TO THE DOMINIONS21)
The term "Dominions" means and includes the Dominion of Canada, Newfoundland, and Commonwealth of Australia, New
wisely forborne. Its repose may be the preservation of its existence; and its existence may be the means of saving the constitution itself, on an occasion worthy of bringing it forth." — Burke, Letter to the Sheriffs of Bristol, vol. iii., ed. 1808, pp. 180, 181; ed. 1872, vol. ii. p. 28. Experience has confirmed the soundness of Burke's doctrine. The existence of this "negative" has greatly facilitated the development of the present happy relation between England and her self-governing colonies. It has enabled English and colonial statesmanship to create that combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire.
21 For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914, 4 & 5 Geo. V. c. 17, ist Schedule. Compare especially as to British colonies with representative and responsible government pp. 47 to 61, post.
The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in 1884. But this statement does
Zealand, and the Union of South Africa. Each of the Dominions is a self-governing colony, i.e. a colony possessed both of a colonial Parliament, or representative legislature, and a responsible government, or in other words, of a government responsible to such legislature. Our subject raises two questions:
First Question
What is the difference between the relation of the Imperial Parliament to a self-governing colony, such, e.g., as New Zealand, in 1884, and the relation of the same Parliament to the Dominion, e.g. of New Zealand, in 1914?
Before attempting a direct answer to this inquiry it is well to point out that in two respects of considerable importance the relation of the Imperial Parliament22 to the self-governing colonies, whether called Dominions or not, has in no respect changed since 1884.
In the first place, the Imperial Parliament still claims in 1914, as it claimed in 1884, the possession of absolute sovereignty throughout every part of the British Empire; and this claim, which certainly extends to every Dominion, would be admitted as sound legal doctrine by any court throughout the Empire which purported to act under
not apply with perfect accuracy to every one of the Dominions. Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till 1890, and Natal, now a state of the Union of South Africa, did not obtain such government till 1893. The Union of South Africa itself consists to a great extent of states which in 1884, though subject to the suzerainty of the King, were (under the government of the Boers) all but independent countries.
Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative but not responsible government, or (iii.) British India. This Introduction, in short, in so far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial Parliament and the five Dominions. 22 This term means what an English writer on our constitution would generally call simply "Parliament," that is the Parliament of the United Kingdom. The term "Imperial Parliament" is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term "Imperial Parliament" is used in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia, No. 2 of 1901.
the authority of the King. The constitution indeed of a Dominion in general originates in and depends upon an Act, or Acts, of the Imperial Parliament; and these constitutional statutes are assuredly liable to be changed by the Imperial Parliament.
Parliament, in the second place, had long before 1884 practically admitted the truth of the doctrine in vain pressed upon his contemporaries by Burke,23 when insisting upon the folly of the attempt made by the Parliament of England to exert as much absolute power in Massachusetts as in Middlesex, that a real limit to the exercise of sovereignty is imposed not by the laws of man but by the nature of things, and that it was vain for a parliamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire. The completeness of this admission is shown by one noteworthy fact: the Imperial Parliament in 1884, and long before 1884, had ceased to impose of its own authority and for the benefit of England any tax upon any British colony.24 The omnipotence, in
23 "Who are you," to quote his words, "that should fret and rage, and bite the chains of nature? Nothing worse happens to you, than does to all nations who have extensive empire; and it happens in all the forms into which empire can be thrown. In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well obeyed as you are in yours. She complies too; she submits; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire." — Burke, Conciliation with America, vol. iii. (ed. 1808),
PP- 56, 57-
24 This renunciation by the Imperial Parliament of the right to impose taxes upon a colony, whether a self-governing colony or not, has passed through two stages. Since 1783 taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony. But until the repeal of the Navigation Laws in 1849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed. Since 1849 no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parliament to contribute anything in the way of taxation towards the cost of the government of the United Kingdom or towards the defence of the British Empire.
The Imperial Parliament does still impose customs duties upon the Isle of Man. See 3 & 4 Geo. V. c. 18.
short, of Parliament, though theoretically admitted, has been applied in its full effect only to the United Kingdom.
A student may ask what is the good of insisting upon the absolute sovereignty of Parliament in relation to the Dominions when it is admitted that Parliament never gives, outside the United Kingdom, and probably never will give, full effect to this asserted and more or less fictitious omnipotence. The answer to this suggestion is that students who do not bear in mind the claim of Parliament to absolute sovereignty throughout the whole of the British Empire, will never understand the extent to which this sovereign power is on some occasions actually exerted outside the limits of the United Kingdom, nor, though this statement sounds paradoxical, will they understand the limits which, with the full assent, no less of English than of colonial statesmen, are in fact, as regards at any rate the Dominions, imposed upon the actual exercise of the theoretically limitless authority of Parliament. It will be found further that even to the Dominions themselves there is at times some advantage in the admitted authority of the Imperial Parliament to legislate for the whole Empire. In the eyes, at any rate, of thinkers who share the moral convictions prevalent in most civilised states, it must seem a gain that the Imperial Parliament should have been able in 1834 to prohibit the existence of slavery in any country subject to the British Crown, and should be able to-day to forbid throughout the whole Empire the revival of the Slave Trade, or of judicial torture.
Let us now turn to the points wherein the relation of the Imperial Parliament to the self-governing colonies in 1884 differed from the existing relation of the Imperial Parliament to the Dominions in 1914.
The relation of the Imperial Parliament in 1884 to a self-governing colony, e.g. New Zealand.
The Imperial Parliament, under the guidance of English statesmen, certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to be allowed in local matters to legislate for itself. Parliament did, however, occasionally legislate for New Zealand or any other self-governing colony. Thus the existing English Bankruptcy Act, 1883, as a matter of fact transferred, as it still transfers, to the trustee in bankruptcy the bankrupt's property, and
even his immovable property situate in any part of the British Empire,2S and a discharge under the English Bankruptcy Act, 1883, was, and still is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,26 e.g. in New Zealand or in the Commonwealth of Australia. So again the veto of the Crown was, in one form or another27 in 1884, and even later, used occasionally to prevent colonial legislation which, though approved of by the people of the colony and by the legislature thereof, might be opposed to the moral feeling or convictions of Englishmen. Thus colonial Bills for legalising the marriages between a man and his deceased wife's sister, or between a woman and her deceased husband's brother, were sometimes vetoed by the Crown, or in effect on the advice of ministers supported by the Imperial Parliament. No doubt as time went on the unwillingness of English statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-governing colony, increased. But such interference was not unknown. There was further, in 1884, an appeal in every colony from the judgments of the Supreme Court thereof to the English Privy Council. And a British Government would in 1884 have felt itself at liberty to interfere with the executive action of a colonial Cabinet when such action was inconsistent with English ideas of justice. It was also in 1884 a dear principle of English administration that English colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers. Nor had either England or the self-governing colonies, thirty years ago, realised the general advantage of those conferences now becoming a regular part of English public life, at which English ministers and colonial ministers could confer upon questions of colonial policy, and could thus practically acknowledge the interest of the colonies in everything which concerned the welfare of the whole Empire. Neither certainly did English statesmen in 1884 contemplate the pos-
25 See Dicey, Conflict of Laws (and ed.), pp. 329-333-
26 Ibid., p. 441, and Ellis v. McHenry (1871), L. R. 6, C. P. 228, 234-236; but contrast New Zealand Loan, etc, Co. v. Morrison [1898], A. C. 349, died Conflict of Laws, p. 342.
27 See pp. 56-61, post.
sibility of a colony standing neutral during a war between England
and a foreign power.
The relation of the Imperial Parliament in 1914 to a Dominion.28 This relation may now, it is submitted, be roughly summed up in
the following rules:
Rulei
In regard to any matter which directly affects Imperial interests the Imperial Parliament will (though with constantly increasing caution) pass laws which apply to a Dominion and otherwise exercise sovereign power in such a Dominion.
But this rule applies almost exclusively to matters which directly and indubitably affect Imperial interests.29
Rule 2
Parliament does not concede to any Dominion or to the legislature thereof the right —
a. to repeal [except by virtue of an Act of the Imperial Parliament] any Act of the Imperial Parliament applying to a Dominion;
b. to make of its own authority a treaty with any foreign power;
c. to stand neutral in the event of a war between the King and any foreign power, or, in general, to receive any benefit from a foreign power which is not offered by such power to the whole of the British Empire.30
It must be noted that under these two rules the Imperial Parliament does retain, and sometimes exerts the right to legislate in regard to matters which may greatly concern the prosperity of a Dominion, and also does in some respects seriously curtail both the legislative power of a Dominion Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things continues, the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament.
28 See as to meaning of Dominion, pp. xlii-xliii, note 21, ante.
29 See Keith, Responsible Government in the Dominions, p. 1316.
30 Ibid. pp. 1119-1122.
Rule}
The Imperial Parliament now admits and acts upon the admission, that any one of the Dominions has acquired a moral right to as much independence, at any rate in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire.
Take the following illustration of the extent of such internal independence:
Parliament does not (except at the wish of a Dominion) legislate with respect to matters which merely concern the internal interests of such Dominion, e.g. New Zealand.31
The legislature of any Dominion has within the territorial limits of such Dominion power to legislate in regard to any matter which solely concerns the internal interest of such Dominion.
The power of the Crown, i.e. of the British ministry, to veto or disallow in any way32 any Bill passed by the legislature of a Dominion, e.g. New Zealand, is now most sparingly exercised, and will hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a British ministry, will now not veto or disallow any Bill passed by the legislature of a Dominion on the ground that such Bill is indirectly opposed to the interests of the United Kingdom, or contradicts legal principles generally upheld in England, e.g. the principle of free trade.
The British Government will not interfere with the executive action of the Government (e.g. of New Zealand) in the giving or the withholding of pardon for crime, in regard to transactions taking place wholly within the territory of New Zealand.33
Any Dominion has now a full and admitted right to raise military or naval forces for its own defence. And the policy of England is in the main to withdraw the English Army from the Dominions and to encourage any Dominion to provide for its own defence and to raise
31 See Keith, Responsible Government in the Dominions, pp. 1316-1328.
32 See pp. 56-57, post.
33 See Keith, Responsible Government in the Dominions, p. 1583.
for itself a Navy, and thereby contribute to the defensive power of the British Empire.
The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council.34
The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law the constitution thereof though created under an Act of the Imperial Parliament.35
Rule 4
The habit has now grown up that conferences should be held from time to time in England, at which shall be present the Premier of England and the Premier of each Dominion, for consultation and discussion on all matters concerning the interest and the policy of the Empire, and that such conferences should be from time to time held may now, it is submitted, be considered a moral right of each Dominion.
These conferences, which were quite unthought of thirty years ago, and which did not receive their present form until the year 1907, mark in a very striking manner a gradual and therefore the more important change in the relations between England and the self-governing colonies.
The answer then to the question before us36 as to the difference between the relation of England (or in strictness of the Imperial Parliament) to the self-governing colonies37 in 1884 and her relation to the Dominions in 1914 can thus be summed up: At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But English statesmen at that
34 See Commonwealth of Australia Constitution, s. 74; South Africa Act, 1909, s. 106.
35 See especially South Africa Act, 1909, s. 106.
36 See first question, p. xliii, ante.
37 The difference between the expression "self-governing colonies" and "Dominions" is worth noticing. The first is appropriate to 1884, the second is appropriate to 1914-
date did intend to retain for the Imperial Parliament, and the Imperial Government as representing such Parliament, a real and effective control over the action of the ministry and the legislature of each self-governing colony in so far as that control was not palpably inconsistent with independence as regards the management of strictly local affairs. In 1914 the colonial policy of England is to grant to every Dominion absolute, unfettered, complete local autonomy,38 in so far as such perfect self-government by a Dominion does not dearly interfere with loyalty of the Dominion to the Empire. The two relations of England to the self-governing colonies — now called Dominions — are, it may be objected, simply one and the same relation described in somewhat different language. The objection is plausible, but not sound. My effort has been to describe two different ways of looking at one and the same relation, and the results of this difference of view are of practical consequence. In 1884 it was admitted, as it is to-day, that the self-governing colonies must have rights of self-government. But in 1884 the exercise of self-government on the part of any colony was regarded as subordinate to real control by the English Parliament and Crown of colonial legislation which might be opposed to English interests or to English ideals of political prudence. In 1914 the self-government, e.g., of New Zealand means absolute, unfettered, complete autonomy, without consulting English ideas of expediency or even of moral duty. The one limit to this complete independence in regard to local government is that it is confined to really local matters and does not trench upon loyalty to the Empire. The independence of the Dominion, in short, means nowadays as much of independence as is compatible with each Dominion remaining part of the Empire.
Second Question
What are the changes of opinion which have led up to the altered relation between England and the Dominions?39
In the early Victorian era [and even in the mid-Victorian era] there were two rough-and-ready solutions for what was regarded, with some impa-
38 See Minutes of Proceedings of Imperial Conference, 1911 [Cd. 5745], p. 22.
39 See Law and Opinion, pp. 450-457.
tience, by the British statesmen of that day as the "Colonial problem." The one was centralisation — the government, that is, except in relatively trivial matters, of all the outlying parts of the Empire from an office in Downing Street. The other was disintegration — the acquiescence in, perhaps the encouragement of, a process of successive "hivings off" by which, without the hazards or embitterments of coercion, each community, as it grew to political manhood, would follow the example of the American Colonies, and start an independent and sovereign existence of its own. After 70 years' experience of Imperial evolution, it may be said with confidence that neither of these theories commands the faintest support to-day, either at home or in any part of our self-governing Empire. We were saved from their adoption — some people would say by the favour of Providence — or (to adopt a more flattering hypothesis) by the political instinct of our race. And just in proportion as centralisation was seen to be increasingly absurd, so has disintegration been felt to be increasingly impossible. Whether in the United Kingdom, or in any one of the great communities which you represent, we each of us are, and we each of us intend to remain, master in our own household. This is, here at home and throughout the Dominions, the life-blood of our polity. It is the articulus stantis aut cadentis Imperil.40
These words are a true statement of patent facts, but it will on examination be found that the change during recent years in English opinion, and also in colonial opinion, with regard to the relation between England and the Dominions presents rather more comlexity than at first sight may be apparent41 to a casual reader of Mr. As-quith's address. Up to the last quarter of the nineteenth century, and even as late as 1884, many Englishmen, including a considerable number of our older statemen, held that the solution of the colonial problem was to be found wholly in the willingness of England to permit and even to promote the separation from the Empire of any self-governing colony which desired independence, provided that this separation should take place without engendering any bad feeling between England and her so-called dependencies. No doubt there existed, at any rate till the middle of the nineteenth century, a limited body of experienced officials who held that our colonial system, as long as it was maintained, implied the active control by
40 Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745]. Opening address of the President (Mr. Asquith), p. 22. Compare "Message of King to Governments and Peoples of the Self-governing Dominions," Times, Sept. 10, 1914.
41 Compare Dicey, Law and Opinion, pp. 450 — 457.
England of colonial affairs. But such men in many cases doubted whether the maintenance of the Colonial Empire was of real benefit to England, and thought that on the whole, with respect at any rate to any self-governing colony, the course of prudence was to leave things alone until it should have become manifest to every one that the hour for friendly separation had struck. The self-governing colonies, on the other hand, up at any rate till 1884, just because they were more and more left alone and free to manage their own affairs, though they occasionally resented the interference of the English Government with colonial legislation, were on the whole contented with things as they stood. They certainly did not display any marked desire to secede from the Empire. Still less, however, did they show any active wish to take part in controlling the policy of the Empire, or to share the cost of Imperial defence. Honest belief in the principle of laissez faire produced its natural and, as far as it went, beneficial result. It removed causes of discontent; it prevented the rise of ill-will between England and her self-governing colonies. But it did not of itself produce any kind of Imperial patriotism. The change which a student has to note is an alteration of feeling, which did not become very obvious till near the dose of the nineteenth century. This was the growth (to use a current expression) of Imperialism. But this term, like all popular phrases, is from its very vagueness certain to mislead those who use it, unless its meaning be defined with some care. In regard to the British Empire it ought to be used as a term neither of praise nor of blame, but as the name for an idea which, in so far as it is true, is of considerable importance. This idea is that the British Empire is an institution well worth maintaining, and this not on mere grounds of sentiment but for definite and assignable reasons. Upon England and upon every country subject to the King of England the British Empire confers at least two benefits: It secures permanent peace among the inhabitants of the largest of existing states; it again secures, or ought to secure, to the whole of this vast community absolute protection against foreign attack. The resources of the Empire are, it is felt, practically inexhaustible; the creation of a fleet supported by revenues and also by armies drawn from every country subject to the King of England should, provided England herself
stands properly armed, render invasion of the British Empire by any of the great military powers of Europe an impossibility. But then the hugeness of the Empire and the strength of the Empire, if it remains united, are enough to show that the different countries which are parts of the Imperial system would, if they each stood alone, be easily assailable by any state or combination of states which had the command of large military and naval armaments. Neither England, in short, nor any of her self-governing Dominions can fail to see that the dissolution of the Empire might take from both the mother country and the most powerful of the Dominions the means necessary for maintaining liberty and independence. Loyalty to the Empire, typified by loyalty to the King, is in short a sentiment developed by the whole course of recent history. It is a feeling or conviction which places the relation of England and the Dominions in a new light. It amply accounts for the extraordinary difference between the colonial policy accepted both by England and by the self-governing colonies in 1850, and even (to a great extent) in 1884, and the colonial policy acceptable both to England and to her all but independent Dominions in 1914. English statesmen on the one hand now proffer to, and almost force upon, each Dominion every liberty compatible with the maintenance of the Empire; but then English statesmen no longer regard with philosophic calm the dawn of the day when any one of the Dominions may desire to secede from the Empire. The Dominions, on the other hand, have no longer any reason to fear and do not desire any interference with colonial affairs either by the legislation of the Imperial Parliament or by the administrative action of officials at Downing Street who are the servants of the Imperial Parliament. But then statesmen of the Dominions show a willingness to share the cost of the defence of the Empire, and at the same time express at each of the great Conferences, with more and more plainness, the desire that the Dominions should take a more active part in the determination of Imperial policy. It is not my object, at any rate at this part of this Introduction, to consider how far it may be possible to give satisfaction to the desires of rational Imperialists, and still less ought any man of sense to express any confident opinion as to how far the sentiment of Imperialism may in the course of time increase in force
or suffer diminution. My immediate aim is to show that this new Imperialism is the natural result of historical circumstances. It is well, however, to bear in mind several considerations which Englishmen of to-day are apt to overlook. The friendly Imperialism which finds expression in the Imperial Conferences is itself the admirable fruit of the old policy of laissez faire. The system of leaving the self-governing colonies alone first appeased discontent, and next allowed the growth of friendliness which has made it possible for the English inhabitants, and even in some cases the foreign inhabitants, of the Dominions to recognise the benefits which the Empire confers upon the Dominions, and for Englishmen at home to see that the Dominions may contribute to the safety of England and to the prosperity of the whole Empire.42 But we must at the same time recognise that the policy of friendly indifference to secession from the Empire, which nominally, at any rate, was favoured by many English statesmen during the nineteenth century, has come to an end. The war in South Africa was in reality a war waged not only by England but also by the Dominions to prevent secession; the concession further to the South African Union of the full rights of a Dominion is no more inconsistent with resistance to secession than was the restoration to the Southern States of the American Commonwealth of their full right to existence as States of the United States. It must, lastly, be noted, that while the inhabitants of England and of the Dominions express at each Conference their honest pleasure in Imperial unity, the growth of Imperialism already causes to many patriotic men one disappointment. Events suggest that it may turn out difficult, or even impossible, to establish throughout the Empire that equal citizenship of all British subjects which exists in the United Kingdom and which Englishmen in the middle of the nineteenth century hoped to see established throughout the length and breadth of the Empire.43
42 As they now [1914] are contributing.
43 The kind of equality among British subjects which Englishmen, whether wisely or not, hoped to establish throughout the whole Empire is best seen by considering the sort of equality which actually exists and has for many years existed in England. Speaking broadly, every British subject has in England at the present day the same political rights as every natural-born Englishman, e.g. an Englishman born in England and the son of English
THE RULE OF LAW44
The rule of law, as described in this treatise, remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man's legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that consitution is founded.
The principles laid down in this treatise with regard to the rule of law and to the nature of droit administratif need little change. My object in this Introduction is first to note a singular decline among modern Englishmen in their respect or reverence for the rule of law, and secondly, to call attention to certain changes in the droit administratif of France.45
DECLINE IN REVERENCE FOR RULE OF LAW
The ancient veneration for the rule of law has in England suffered during the last thirty years a marked decline. The truth of this assertion is proved by actual legislation, by the existence among some classes of a certain distrust both of the law and of the judges, and by a marked tendency towards the use of lawless methods for the attainment of social or political ends.
parents settled in England. Thus a British subject, whatever be the place of his birth, or the race to which he belongs, or I may now add the religion which he professes, has, with the rarest possible exceptions, the same right to settle or to trade in England which is possessed by a natural-born Englishman. He has further exactly the same political rights. He can, if he satisfies the requirements of the English electoral law, vote for a member of Parliament; he can, if he commends himself to an English constituency, take his seat as a member of Parliament. There is no law which forbids any British subject, wherever he be born, or to whatever race he belongs, to become a member of the English Cabinet or a Prime Minister. Of course it will be said that it is extremely improbable that the offices I have mentioned will, in fact, be filled by men who are not in reality Englishmen by race. This remark to a certain extent is true, though it is not wholly true. But the possession of theoretically equal political rights does certainly give in England, or rather to be strictly accurate in the United Kingdom, to every British subject an equality which some British subjects do not possess in some of the Dominions.
44 See Part II., and especially Chap. IV., post.
45 See Chap. XII. post.
Legislation
Recent Acts have given judicial or quasi-judicial authority to officials46 who stand more or less in connection with, and therefore may be influenced by, the government of the day, and hence have in some cases excluded, and in others indirectly diminished, the authority of the law Courts. This tendency to diminish the sphere of the rule of law is shown, for instance, in the judicial powers conferred upon the Education Commissioners by the Education Act, 1902,47 on various officials by the National Insurance Acts, 1911 and 1913,48 and on the Commissioners of Inland Revenue and other officials by the Finance Act, 1910.49 It is also shown by the Parliament Act, 1911, s. 3, which enacts that "any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes and shall not be questioned in any Court of law." This enactment, if strictly construed, would protect any Speaker who, either from partisanship or to promote some personal interest of his own, signed a certificate which was notoriously false from being liable to punishment by any Court of law whatever.50 No doubt the House of Commons has been historically jealous of any judicial interference with persons acting under the authority of the House, and has on more than one occasion claimed in a sense to be above the law of the land. All that can be said is that such claims have rarely been of advantage or credit to the House, and that the present time is hardly the proper season for the curtailment by the House of legitimate judicial power. It must, however, in fairness be noted that the invasion of the rule of law by imposing judicial functions upon officials is due, in part, to the whole current of legislative opinion in favour of extending the sphere of the State's authority. The inevitable result of thus immensely increasing
46 See generally on this point Muir, Peers and Bureaucrats, especially pp. 1-94.
47 See sect. 7, andR. v. Board of Education (Swansea Case) [1910], 2 K.B. 167; Board of Education v. Rice [1911], A. C. 179.
48 See National Insurance Act, 1911, ss. 66, 67, 88 (i), and generally Law and Opinion (2nd ed.), pp. 41-43.
49 See especially sect. 2, sub-s. 3, ss. 33 and 96.
50 Would this enactment protect the Speaker against an impeachment for giving a certificate which he knew to be false?
the duties of the Government is that State officials must more and more undertake to manage a mass of public business, e.g., to give one example only, the public education of the majority of the citizens. But Courts are from the nature of things unsuited for the transaction of business. The primary duty of a judge is to act in accordance with the strict rules of law. He must shun, above all things, any injustice to individuals. The well-worn and often absurdly misapplied adage that "it is better that ten criminals should escape conviction than that one innocent man should without cause be found guilty of crime" does after all remind us that the first duty of a judge is not to punish crime but to punish it without doing injustice. A man of business, whether employed by a private firm or working in a public office, must make it his main object to see that the business in which he is concerned is efficiently carried out. He could not do this if tied down by the rules which rightly check the action of a judge. The official must act on evidence which, though strong, may not be at all conclusive. The official must often act with severity towards subordinates whose stupidity, and not their voluntary wrong-doing, gives cause for dismissal. A judge, on the other hand, is far more concerned with seeing that the law is strictly carried out than in showing consideration to individuals. "That hard cases make bad law" is proverbial; the transaction of business, in short, is a very different thing from the giving of judgments: The more multifarious therefore become the affairs handed over to the management of civil servants the greater will be always the temptation, and often the necessity, extending to the discretionary powers given to officials, and thus preventing law Courts from intervening in matters not suited for legal decision.
Distrust of Judges and of Courts
If the House of Commons deliberately excludes the intervention of any law Court in matters which the House may deem (with very dubious truth) to concern the House alone, we can scarcely wonder that artisans should have no love for judicial decisions. In plain truth, while every man of at all respectable instincts desires what he considers justice for himself and for the class to which he belongs, almost all men desire something more than, and different from, justice for
themselves and against their neighbours. This is inevitably the case with persons such as the members of trade unions, who are trying, with a good deal of success, to enforce trade rules which often arouse the censure of the public, and sometimes come into absolute conflict with the law of the land. The blackleg may be, and one may suspect often is, a mean fellow who, to put money into his own pocket, breaks rules which his fellow-workers hold to be just and beneficial to the trade generally. He, for example, has no objection, if properly paid for it, to work with men who are not members of any union. The blackleg, however, all but invariably keeps within the law of the land, and proposes to do nothing which violates any principle established by common law or any enactment to be found in the Statute Book. The trade unionists whom he offends know perfectly well that the blackleg is in the eye of the law no wrong-doer; they therefore feel that the Courts are his protectors, and that, somehow or other, trade unions must be protected against the intervention of judges. Hence the invention of that self-contradictory idea of "peaceful picketing," which is no more capable of real existence than would be "peaceful war" or "unoppressive oppression"; hence, too, that triumph of legalised wrong-doing sanctioned by the fourth section of the Trade Disputes Act,511906. It is however by no means to be supposed that artisans are the only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed to the moral convictions of a particular part of the community.
The term "Dominions" means and includes the Dominion of Canada, Newfoundland, and Commonwealth of Australia, New
wisely forborne. Its repose may be the preservation of its existence; and its existence may be the means of saving the constitution itself, on an occasion worthy of bringing it forth." — Burke, Letter to the Sheriffs of Bristol, vol. iii., ed. 1808, pp. 180, 181; ed. 1872, vol. ii. p. 28. Experience has confirmed the soundness of Burke's doctrine. The existence of this "negative" has greatly facilitated the development of the present happy relation between England and her self-governing colonies. It has enabled English and colonial statesmanship to create that combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire.
21 For this use of the term Dominions see British Nationality & Status of Aliens Act, 1914, 4 & 5 Geo. V. c. 17, ist Schedule. Compare especially as to British colonies with representative and responsible government pp. 47 to 61, post.
The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in 1884. But this statement does
Zealand, and the Union of South Africa. Each of the Dominions is a self-governing colony, i.e. a colony possessed both of a colonial Parliament, or representative legislature, and a responsible government, or in other words, of a government responsible to such legislature. Our subject raises two questions:
First Question
What is the difference between the relation of the Imperial Parliament to a self-governing colony, such, e.g., as New Zealand, in 1884, and the relation of the same Parliament to the Dominion, e.g. of New Zealand, in 1914?
Before attempting a direct answer to this inquiry it is well to point out that in two respects of considerable importance the relation of the Imperial Parliament22 to the self-governing colonies, whether called Dominions or not, has in no respect changed since 1884.
In the first place, the Imperial Parliament still claims in 1914, as it claimed in 1884, the possession of absolute sovereignty throughout every part of the British Empire; and this claim, which certainly extends to every Dominion, would be admitted as sound legal doctrine by any court throughout the Empire which purported to act under
not apply with perfect accuracy to every one of the Dominions. Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till 1890, and Natal, now a state of the Union of South Africa, did not obtain such government till 1893. The Union of South Africa itself consists to a great extent of states which in 1884, though subject to the suzerainty of the King, were (under the government of the Boers) all but independent countries.
Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of (i.) the Crown colonies, or (ii.) the three colonies, viz. the Bahamas, Barbadoes, and Bermuda, which possess representative but not responsible government, or (iii.) British India. This Introduction, in short, in so far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial Parliament and the five Dominions. 22 This term means what an English writer on our constitution would generally call simply "Parliament," that is the Parliament of the United Kingdom. The term "Imperial Parliament" is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term "Imperial Parliament" is used in colonial statutes, e.g., in the Interpretation Act of the Commonwealth of Australia, No. 2 of 1901.
the authority of the King. The constitution indeed of a Dominion in general originates in and depends upon an Act, or Acts, of the Imperial Parliament; and these constitutional statutes are assuredly liable to be changed by the Imperial Parliament.
Parliament, in the second place, had long before 1884 practically admitted the truth of the doctrine in vain pressed upon his contemporaries by Burke,23 when insisting upon the folly of the attempt made by the Parliament of England to exert as much absolute power in Massachusetts as in Middlesex, that a real limit to the exercise of sovereignty is imposed not by the laws of man but by the nature of things, and that it was vain for a parliamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire. The completeness of this admission is shown by one noteworthy fact: the Imperial Parliament in 1884, and long before 1884, had ceased to impose of its own authority and for the benefit of England any tax upon any British colony.24 The omnipotence, in
23 "Who are you," to quote his words, "that should fret and rage, and bite the chains of nature? Nothing worse happens to you, than does to all nations who have extensive empire; and it happens in all the forms into which empire can be thrown. In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna. Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well obeyed as you are in yours. She complies too; she submits; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire." — Burke, Conciliation with America, vol. iii. (ed. 1808),
PP- 56, 57-
24 This renunciation by the Imperial Parliament of the right to impose taxes upon a colony, whether a self-governing colony or not, has passed through two stages. Since 1783 taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony. But until the repeal of the Navigation Laws in 1849 Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed. Since 1849 no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parliament to contribute anything in the way of taxation towards the cost of the government of the United Kingdom or towards the defence of the British Empire.
The Imperial Parliament does still impose customs duties upon the Isle of Man. See 3 & 4 Geo. V. c. 18.
short, of Parliament, though theoretically admitted, has been applied in its full effect only to the United Kingdom.
A student may ask what is the good of insisting upon the absolute sovereignty of Parliament in relation to the Dominions when it is admitted that Parliament never gives, outside the United Kingdom, and probably never will give, full effect to this asserted and more or less fictitious omnipotence. The answer to this suggestion is that students who do not bear in mind the claim of Parliament to absolute sovereignty throughout the whole of the British Empire, will never understand the extent to which this sovereign power is on some occasions actually exerted outside the limits of the United Kingdom, nor, though this statement sounds paradoxical, will they understand the limits which, with the full assent, no less of English than of colonial statesmen, are in fact, as regards at any rate the Dominions, imposed upon the actual exercise of the theoretically limitless authority of Parliament. It will be found further that even to the Dominions themselves there is at times some advantage in the admitted authority of the Imperial Parliament to legislate for the whole Empire. In the eyes, at any rate, of thinkers who share the moral convictions prevalent in most civilised states, it must seem a gain that the Imperial Parliament should have been able in 1834 to prohibit the existence of slavery in any country subject to the British Crown, and should be able to-day to forbid throughout the whole Empire the revival of the Slave Trade, or of judicial torture.
Let us now turn to the points wherein the relation of the Imperial Parliament to the self-governing colonies in 1884 differed from the existing relation of the Imperial Parliament to the Dominions in 1914.
The relation of the Imperial Parliament in 1884 to a self-governing colony, e.g. New Zealand.
The Imperial Parliament, under the guidance of English statesmen, certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to be allowed in local matters to legislate for itself. Parliament did, however, occasionally legislate for New Zealand or any other self-governing colony. Thus the existing English Bankruptcy Act, 1883, as a matter of fact transferred, as it still transfers, to the trustee in bankruptcy the bankrupt's property, and
even his immovable property situate in any part of the British Empire,2S and a discharge under the English Bankruptcy Act, 1883, was, and still is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,26 e.g. in New Zealand or in the Commonwealth of Australia. So again the veto of the Crown was, in one form or another27 in 1884, and even later, used occasionally to prevent colonial legislation which, though approved of by the people of the colony and by the legislature thereof, might be opposed to the moral feeling or convictions of Englishmen. Thus colonial Bills for legalising the marriages between a man and his deceased wife's sister, or between a woman and her deceased husband's brother, were sometimes vetoed by the Crown, or in effect on the advice of ministers supported by the Imperial Parliament. No doubt as time went on the unwillingness of English statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-governing colony, increased. But such interference was not unknown. There was further, in 1884, an appeal in every colony from the judgments of the Supreme Court thereof to the English Privy Council. And a British Government would in 1884 have felt itself at liberty to interfere with the executive action of a colonial Cabinet when such action was inconsistent with English ideas of justice. It was also in 1884 a dear principle of English administration that English colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers. Nor had either England or the self-governing colonies, thirty years ago, realised the general advantage of those conferences now becoming a regular part of English public life, at which English ministers and colonial ministers could confer upon questions of colonial policy, and could thus practically acknowledge the interest of the colonies in everything which concerned the welfare of the whole Empire. Neither certainly did English statesmen in 1884 contemplate the pos-
25 See Dicey, Conflict of Laws (and ed.), pp. 329-333-
26 Ibid., p. 441, and Ellis v. McHenry (1871), L. R. 6, C. P. 228, 234-236; but contrast New Zealand Loan, etc, Co. v. Morrison [1898], A. C. 349, died Conflict of Laws, p. 342.
27 See pp. 56-61, post.
sibility of a colony standing neutral during a war between England
and a foreign power.
The relation of the Imperial Parliament in 1914 to a Dominion.28 This relation may now, it is submitted, be roughly summed up in
the following rules:
Rulei
In regard to any matter which directly affects Imperial interests the Imperial Parliament will (though with constantly increasing caution) pass laws which apply to a Dominion and otherwise exercise sovereign power in such a Dominion.
But this rule applies almost exclusively to matters which directly and indubitably affect Imperial interests.29
Rule 2
Parliament does not concede to any Dominion or to the legislature thereof the right —
a. to repeal [except by virtue of an Act of the Imperial Parliament] any Act of the Imperial Parliament applying to a Dominion;
b. to make of its own authority a treaty with any foreign power;
c. to stand neutral in the event of a war between the King and any foreign power, or, in general, to receive any benefit from a foreign power which is not offered by such power to the whole of the British Empire.30
It must be noted that under these two rules the Imperial Parliament does retain, and sometimes exerts the right to legislate in regard to matters which may greatly concern the prosperity of a Dominion, and also does in some respects seriously curtail both the legislative power of a Dominion Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things continues, the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament.
28 See as to meaning of Dominion, pp. xlii-xliii, note 21, ante.
29 See Keith, Responsible Government in the Dominions, p. 1316.
30 Ibid. pp. 1119-1122.
Rule}
The Imperial Parliament now admits and acts upon the admission, that any one of the Dominions has acquired a moral right to as much independence, at any rate in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire.
Take the following illustration of the extent of such internal independence:
Parliament does not (except at the wish of a Dominion) legislate with respect to matters which merely concern the internal interests of such Dominion, e.g. New Zealand.31
The legislature of any Dominion has within the territorial limits of such Dominion power to legislate in regard to any matter which solely concerns the internal interest of such Dominion.
The power of the Crown, i.e. of the British ministry, to veto or disallow in any way32 any Bill passed by the legislature of a Dominion, e.g. New Zealand, is now most sparingly exercised, and will hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a British ministry, will now not veto or disallow any Bill passed by the legislature of a Dominion on the ground that such Bill is indirectly opposed to the interests of the United Kingdom, or contradicts legal principles generally upheld in England, e.g. the principle of free trade.
The British Government will not interfere with the executive action of the Government (e.g. of New Zealand) in the giving or the withholding of pardon for crime, in regard to transactions taking place wholly within the territory of New Zealand.33
Any Dominion has now a full and admitted right to raise military or naval forces for its own defence. And the policy of England is in the main to withdraw the English Army from the Dominions and to encourage any Dominion to provide for its own defence and to raise
31 See Keith, Responsible Government in the Dominions, pp. 1316-1328.
32 See pp. 56-57, post.
33 See Keith, Responsible Government in the Dominions, p. 1583.
for itself a Navy, and thereby contribute to the defensive power of the British Empire.
The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council.34
The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law the constitution thereof though created under an Act of the Imperial Parliament.35
Rule 4
The habit has now grown up that conferences should be held from time to time in England, at which shall be present the Premier of England and the Premier of each Dominion, for consultation and discussion on all matters concerning the interest and the policy of the Empire, and that such conferences should be from time to time held may now, it is submitted, be considered a moral right of each Dominion.
These conferences, which were quite unthought of thirty years ago, and which did not receive their present form until the year 1907, mark in a very striking manner a gradual and therefore the more important change in the relations between England and the self-governing colonies.
The answer then to the question before us36 as to the difference between the relation of England (or in strictness of the Imperial Parliament) to the self-governing colonies37 in 1884 and her relation to the Dominions in 1914 can thus be summed up: At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But English statesmen at that
34 See Commonwealth of Australia Constitution, s. 74; South Africa Act, 1909, s. 106.
35 See especially South Africa Act, 1909, s. 106.
36 See first question, p. xliii, ante.
37 The difference between the expression "self-governing colonies" and "Dominions" is worth noticing. The first is appropriate to 1884, the second is appropriate to 1914-
date did intend to retain for the Imperial Parliament, and the Imperial Government as representing such Parliament, a real and effective control over the action of the ministry and the legislature of each self-governing colony in so far as that control was not palpably inconsistent with independence as regards the management of strictly local affairs. In 1914 the colonial policy of England is to grant to every Dominion absolute, unfettered, complete local autonomy,38 in so far as such perfect self-government by a Dominion does not dearly interfere with loyalty of the Dominion to the Empire. The two relations of England to the self-governing colonies — now called Dominions — are, it may be objected, simply one and the same relation described in somewhat different language. The objection is plausible, but not sound. My effort has been to describe two different ways of looking at one and the same relation, and the results of this difference of view are of practical consequence. In 1884 it was admitted, as it is to-day, that the self-governing colonies must have rights of self-government. But in 1884 the exercise of self-government on the part of any colony was regarded as subordinate to real control by the English Parliament and Crown of colonial legislation which might be opposed to English interests or to English ideals of political prudence. In 1914 the self-government, e.g., of New Zealand means absolute, unfettered, complete autonomy, without consulting English ideas of expediency or even of moral duty. The one limit to this complete independence in regard to local government is that it is confined to really local matters and does not trench upon loyalty to the Empire. The independence of the Dominion, in short, means nowadays as much of independence as is compatible with each Dominion remaining part of the Empire.
Second Question
What are the changes of opinion which have led up to the altered relation between England and the Dominions?39
In the early Victorian era [and even in the mid-Victorian era] there were two rough-and-ready solutions for what was regarded, with some impa-
38 See Minutes of Proceedings of Imperial Conference, 1911 [Cd. 5745], p. 22.
39 See Law and Opinion, pp. 450-457.
tience, by the British statesmen of that day as the "Colonial problem." The one was centralisation — the government, that is, except in relatively trivial matters, of all the outlying parts of the Empire from an office in Downing Street. The other was disintegration — the acquiescence in, perhaps the encouragement of, a process of successive "hivings off" by which, without the hazards or embitterments of coercion, each community, as it grew to political manhood, would follow the example of the American Colonies, and start an independent and sovereign existence of its own. After 70 years' experience of Imperial evolution, it may be said with confidence that neither of these theories commands the faintest support to-day, either at home or in any part of our self-governing Empire. We were saved from their adoption — some people would say by the favour of Providence — or (to adopt a more flattering hypothesis) by the political instinct of our race. And just in proportion as centralisation was seen to be increasingly absurd, so has disintegration been felt to be increasingly impossible. Whether in the United Kingdom, or in any one of the great communities which you represent, we each of us are, and we each of us intend to remain, master in our own household. This is, here at home and throughout the Dominions, the life-blood of our polity. It is the articulus stantis aut cadentis Imperil.40
These words are a true statement of patent facts, but it will on examination be found that the change during recent years in English opinion, and also in colonial opinion, with regard to the relation between England and the Dominions presents rather more comlexity than at first sight may be apparent41 to a casual reader of Mr. As-quith's address. Up to the last quarter of the nineteenth century, and even as late as 1884, many Englishmen, including a considerable number of our older statemen, held that the solution of the colonial problem was to be found wholly in the willingness of England to permit and even to promote the separation from the Empire of any self-governing colony which desired independence, provided that this separation should take place without engendering any bad feeling between England and her so-called dependencies. No doubt there existed, at any rate till the middle of the nineteenth century, a limited body of experienced officials who held that our colonial system, as long as it was maintained, implied the active control by
40 Minutes of Proceedings of the Imperial Conference, 1911 [Cd. 5745]. Opening address of the President (Mr. Asquith), p. 22. Compare "Message of King to Governments and Peoples of the Self-governing Dominions," Times, Sept. 10, 1914.
41 Compare Dicey, Law and Opinion, pp. 450 — 457.
England of colonial affairs. But such men in many cases doubted whether the maintenance of the Colonial Empire was of real benefit to England, and thought that on the whole, with respect at any rate to any self-governing colony, the course of prudence was to leave things alone until it should have become manifest to every one that the hour for friendly separation had struck. The self-governing colonies, on the other hand, up at any rate till 1884, just because they were more and more left alone and free to manage their own affairs, though they occasionally resented the interference of the English Government with colonial legislation, were on the whole contented with things as they stood. They certainly did not display any marked desire to secede from the Empire. Still less, however, did they show any active wish to take part in controlling the policy of the Empire, or to share the cost of Imperial defence. Honest belief in the principle of laissez faire produced its natural and, as far as it went, beneficial result. It removed causes of discontent; it prevented the rise of ill-will between England and her self-governing colonies. But it did not of itself produce any kind of Imperial patriotism. The change which a student has to note is an alteration of feeling, which did not become very obvious till near the dose of the nineteenth century. This was the growth (to use a current expression) of Imperialism. But this term, like all popular phrases, is from its very vagueness certain to mislead those who use it, unless its meaning be defined with some care. In regard to the British Empire it ought to be used as a term neither of praise nor of blame, but as the name for an idea which, in so far as it is true, is of considerable importance. This idea is that the British Empire is an institution well worth maintaining, and this not on mere grounds of sentiment but for definite and assignable reasons. Upon England and upon every country subject to the King of England the British Empire confers at least two benefits: It secures permanent peace among the inhabitants of the largest of existing states; it again secures, or ought to secure, to the whole of this vast community absolute protection against foreign attack. The resources of the Empire are, it is felt, practically inexhaustible; the creation of a fleet supported by revenues and also by armies drawn from every country subject to the King of England should, provided England herself
stands properly armed, render invasion of the British Empire by any of the great military powers of Europe an impossibility. But then the hugeness of the Empire and the strength of the Empire, if it remains united, are enough to show that the different countries which are parts of the Imperial system would, if they each stood alone, be easily assailable by any state or combination of states which had the command of large military and naval armaments. Neither England, in short, nor any of her self-governing Dominions can fail to see that the dissolution of the Empire might take from both the mother country and the most powerful of the Dominions the means necessary for maintaining liberty and independence. Loyalty to the Empire, typified by loyalty to the King, is in short a sentiment developed by the whole course of recent history. It is a feeling or conviction which places the relation of England and the Dominions in a new light. It amply accounts for the extraordinary difference between the colonial policy accepted both by England and by the self-governing colonies in 1850, and even (to a great extent) in 1884, and the colonial policy acceptable both to England and to her all but independent Dominions in 1914. English statesmen on the one hand now proffer to, and almost force upon, each Dominion every liberty compatible with the maintenance of the Empire; but then English statesmen no longer regard with philosophic calm the dawn of the day when any one of the Dominions may desire to secede from the Empire. The Dominions, on the other hand, have no longer any reason to fear and do not desire any interference with colonial affairs either by the legislation of the Imperial Parliament or by the administrative action of officials at Downing Street who are the servants of the Imperial Parliament. But then statesmen of the Dominions show a willingness to share the cost of the defence of the Empire, and at the same time express at each of the great Conferences, with more and more plainness, the desire that the Dominions should take a more active part in the determination of Imperial policy. It is not my object, at any rate at this part of this Introduction, to consider how far it may be possible to give satisfaction to the desires of rational Imperialists, and still less ought any man of sense to express any confident opinion as to how far the sentiment of Imperialism may in the course of time increase in force
or suffer diminution. My immediate aim is to show that this new Imperialism is the natural result of historical circumstances. It is well, however, to bear in mind several considerations which Englishmen of to-day are apt to overlook. The friendly Imperialism which finds expression in the Imperial Conferences is itself the admirable fruit of the old policy of laissez faire. The system of leaving the self-governing colonies alone first appeased discontent, and next allowed the growth of friendliness which has made it possible for the English inhabitants, and even in some cases the foreign inhabitants, of the Dominions to recognise the benefits which the Empire confers upon the Dominions, and for Englishmen at home to see that the Dominions may contribute to the safety of England and to the prosperity of the whole Empire.42 But we must at the same time recognise that the policy of friendly indifference to secession from the Empire, which nominally, at any rate, was favoured by many English statesmen during the nineteenth century, has come to an end. The war in South Africa was in reality a war waged not only by England but also by the Dominions to prevent secession; the concession further to the South African Union of the full rights of a Dominion is no more inconsistent with resistance to secession than was the restoration to the Southern States of the American Commonwealth of their full right to existence as States of the United States. It must, lastly, be noted, that while the inhabitants of England and of the Dominions express at each Conference their honest pleasure in Imperial unity, the growth of Imperialism already causes to many patriotic men one disappointment. Events suggest that it may turn out difficult, or even impossible, to establish throughout the Empire that equal citizenship of all British subjects which exists in the United Kingdom and which Englishmen in the middle of the nineteenth century hoped to see established throughout the length and breadth of the Empire.43
42 As they now [1914] are contributing.
43 The kind of equality among British subjects which Englishmen, whether wisely or not, hoped to establish throughout the whole Empire is best seen by considering the sort of equality which actually exists and has for many years existed in England. Speaking broadly, every British subject has in England at the present day the same political rights as every natural-born Englishman, e.g. an Englishman born in England and the son of English
THE RULE OF LAW44
The rule of law, as described in this treatise, remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man's legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man's individual rights are far less the result of our constitution than the basis on which that consitution is founded.
The principles laid down in this treatise with regard to the rule of law and to the nature of droit administratif need little change. My object in this Introduction is first to note a singular decline among modern Englishmen in their respect or reverence for the rule of law, and secondly, to call attention to certain changes in the droit administratif of France.45
DECLINE IN REVERENCE FOR RULE OF LAW
The ancient veneration for the rule of law has in England suffered during the last thirty years a marked decline. The truth of this assertion is proved by actual legislation, by the existence among some classes of a certain distrust both of the law and of the judges, and by a marked tendency towards the use of lawless methods for the attainment of social or political ends.
parents settled in England. Thus a British subject, whatever be the place of his birth, or the race to which he belongs, or I may now add the religion which he professes, has, with the rarest possible exceptions, the same right to settle or to trade in England which is possessed by a natural-born Englishman. He has further exactly the same political rights. He can, if he satisfies the requirements of the English electoral law, vote for a member of Parliament; he can, if he commends himself to an English constituency, take his seat as a member of Parliament. There is no law which forbids any British subject, wherever he be born, or to whatever race he belongs, to become a member of the English Cabinet or a Prime Minister. Of course it will be said that it is extremely improbable that the offices I have mentioned will, in fact, be filled by men who are not in reality Englishmen by race. This remark to a certain extent is true, though it is not wholly true. But the possession of theoretically equal political rights does certainly give in England, or rather to be strictly accurate in the United Kingdom, to every British subject an equality which some British subjects do not possess in some of the Dominions.
44 See Part II., and especially Chap. IV., post.
45 See Chap. XII. post.
Legislation
Recent Acts have given judicial or quasi-judicial authority to officials46 who stand more or less in connection with, and therefore may be influenced by, the government of the day, and hence have in some cases excluded, and in others indirectly diminished, the authority of the law Courts. This tendency to diminish the sphere of the rule of law is shown, for instance, in the judicial powers conferred upon the Education Commissioners by the Education Act, 1902,47 on various officials by the National Insurance Acts, 1911 and 1913,48 and on the Commissioners of Inland Revenue and other officials by the Finance Act, 1910.49 It is also shown by the Parliament Act, 1911, s. 3, which enacts that "any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes and shall not be questioned in any Court of law." This enactment, if strictly construed, would protect any Speaker who, either from partisanship or to promote some personal interest of his own, signed a certificate which was notoriously false from being liable to punishment by any Court of law whatever.50 No doubt the House of Commons has been historically jealous of any judicial interference with persons acting under the authority of the House, and has on more than one occasion claimed in a sense to be above the law of the land. All that can be said is that such claims have rarely been of advantage or credit to the House, and that the present time is hardly the proper season for the curtailment by the House of legitimate judicial power. It must, however, in fairness be noted that the invasion of the rule of law by imposing judicial functions upon officials is due, in part, to the whole current of legislative opinion in favour of extending the sphere of the State's authority. The inevitable result of thus immensely increasing
46 See generally on this point Muir, Peers and Bureaucrats, especially pp. 1-94.
47 See sect. 7, andR. v. Board of Education (Swansea Case) [1910], 2 K.B. 167; Board of Education v. Rice [1911], A. C. 179.
48 See National Insurance Act, 1911, ss. 66, 67, 88 (i), and generally Law and Opinion (2nd ed.), pp. 41-43.
49 See especially sect. 2, sub-s. 3, ss. 33 and 96.
50 Would this enactment protect the Speaker against an impeachment for giving a certificate which he knew to be false?
the duties of the Government is that State officials must more and more undertake to manage a mass of public business, e.g., to give one example only, the public education of the majority of the citizens. But Courts are from the nature of things unsuited for the transaction of business. The primary duty of a judge is to act in accordance with the strict rules of law. He must shun, above all things, any injustice to individuals. The well-worn and often absurdly misapplied adage that "it is better that ten criminals should escape conviction than that one innocent man should without cause be found guilty of crime" does after all remind us that the first duty of a judge is not to punish crime but to punish it without doing injustice. A man of business, whether employed by a private firm or working in a public office, must make it his main object to see that the business in which he is concerned is efficiently carried out. He could not do this if tied down by the rules which rightly check the action of a judge. The official must act on evidence which, though strong, may not be at all conclusive. The official must often act with severity towards subordinates whose stupidity, and not their voluntary wrong-doing, gives cause for dismissal. A judge, on the other hand, is far more concerned with seeing that the law is strictly carried out than in showing consideration to individuals. "That hard cases make bad law" is proverbial; the transaction of business, in short, is a very different thing from the giving of judgments: The more multifarious therefore become the affairs handed over to the management of civil servants the greater will be always the temptation, and often the necessity, extending to the discretionary powers given to officials, and thus preventing law Courts from intervening in matters not suited for legal decision.
Distrust of Judges and of Courts
If the House of Commons deliberately excludes the intervention of any law Court in matters which the House may deem (with very dubious truth) to concern the House alone, we can scarcely wonder that artisans should have no love for judicial decisions. In plain truth, while every man of at all respectable instincts desires what he considers justice for himself and for the class to which he belongs, almost all men desire something more than, and different from, justice for
themselves and against their neighbours. This is inevitably the case with persons such as the members of trade unions, who are trying, with a good deal of success, to enforce trade rules which often arouse the censure of the public, and sometimes come into absolute conflict with the law of the land. The blackleg may be, and one may suspect often is, a mean fellow who, to put money into his own pocket, breaks rules which his fellow-workers hold to be just and beneficial to the trade generally. He, for example, has no objection, if properly paid for it, to work with men who are not members of any union. The blackleg, however, all but invariably keeps within the law of the land, and proposes to do nothing which violates any principle established by common law or any enactment to be found in the Statute Book. The trade unionists whom he offends know perfectly well that the blackleg is in the eye of the law no wrong-doer; they therefore feel that the Courts are his protectors, and that, somehow or other, trade unions must be protected against the intervention of judges. Hence the invention of that self-contradictory idea of "peaceful picketing," which is no more capable of real existence than would be "peaceful war" or "unoppressive oppression"; hence, too, that triumph of legalised wrong-doing sanctioned by the fourth section of the Trade Disputes Act,511906. It is however by no means to be supposed that artisans are the only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed to the moral convictions of a particular part of the community.
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