Pending Developments in the Constitution of the British Empire

Political institutions develop from a conflict of ideas; and, for many years, two divergent tendencies have been manifest in the direction and control of our relations with foreign states, until now the governments of the D& minions participate in the direction of foreign policy. Gradually, in the negotiations of commercial conventions and treaties with foreign states, we have developed an almost complete autonomy. The commercial agreement with France in 1907 assured the right of this Dominion, which had been asserted by Sir Charles Tupper in 1884, to negotiate its own commercial conventions and treaties, a right which was fully recognized in 1922 and 1923. The implications of this tendency toward independent action on the part of the Dominions, in the matter of foreign relations, were suggested in Lord Ripon's despatch of 1895, when he was Secretary of State for the Colonies, from which I extract the following statement:

"A foreign power can only be approached through Her Majesty's representative, and any agreement entered into with it, affecting any part of Her Majesty's Dominions, is an agreement between Her Majesty and the Sovereign of the foreign state; and it is to Her Majesty's Government that the foreign state would apply, in case of any question arising under it.

"To give to the Colonies the power of negotiating Treaties for themselves without reference to Her Majesty's Government, 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." (Parl. Papers 1895 XX. p. 16. c. 7824.)

Lord Ripon failed to realize that the time was even then approaching when His Majesty's prerogative right, to negotiate and to conclude treaties or conventions with foreign states, might be exercised on the advice of His Majesty's government in any Dominion in respect of matters which solely and exclusively appertain to the interests of that Dominion. Again and again, particularly at the Imperial Conference of 1907 and 1911, the view was emphatically expressed that the Empire must be one from the point of view of its political treaty relations with all foreign states. We all remember Mr. Balfour's dictum in 1911 that Great Britain could not share with the Dominions the direction and control of foreign policy. But since 1911, the Great War has served to modify many previous political pronouncements. Throughout that war the direction and control of foreign policy and foreign relations was vested in the British Foreign Office as the direction and control of the British forces in the several arenas of actual conflict was vested in the British War Office. Nevertheless the Governments of the several Dominions were necessarily taken more frequently into consultation by the Government of the United Kingdom, with the result that the constitutional resolution of the Imperial War Conference of 1917 approved such re-adjustment of inter-Imperial relations as -

"Should recognize the right of the Dominions and India to an adequate voice in foreign policy and in foreign relations, and should provide effective arrangements for continuous consultation in all important matters of common Imperial concern, and for such necessary concerted action, founded on consultation, as the several governments may determine."

Upon the termination of hostilities in the Great War, the Government of Canada insisted upon the constitutional right of the Dominions to representation in the peace negotiations at Paris, to participation in the execution of the Treaty of Versailles, and to have an independent representation in the assembly of the League of Nations, which was created by that treaty. The claim of the Dominions to the right of independent action in foreign affairs was pushed to an extreme, the implications of which were not then fully realized by the Canadian public. For example, Article 10 of the Covenant of the League of Nations, even as more recently modified, provides that Canada as a member of the League, undertakes to preserve against external aggression the territorial integrity and political independence of each and every other member of the League, whether it be France, or Italy, or Japan, or Bolivia, or Ecuador, or Guatemala, or Panama; and this rather formidable covenant is still binding upon our honour and good faith.

As members of the League of Nations the Dominions have undertaken duties and responsibility of far-reaching import and of bewildering complexity; and unfortunately no means have been contrived to procure the effective co-operation of the United Kingdom and of the several Dominions for securing, through the concerted action of their combined representation at Geneva, the conservation of their common interests. These very serious and grave responsibilities were undertaken by Canada as a member of the League of Nations with the formal approval of the Parliament of Canada, and each successive Government of Canada has acquiesced in Canada's assumption of such responsibilities by sending its members as delegates to the Assembly of the League, participating in all its conferences and discussions, and by one of the members of the present Government, with its approval, accepting the office of President of the Assembly, and by accepting, more recently, a place on the Council of the League. It may be that the separate membership of each Dominion in the League of Nations was not conceived of as an abandonment of the unity of the Empire, but later developments have certainly tended toward that end. Step by step, more and more, Canada has been exercising the attributes inherent in independent sovereignty.

The matter of the negotiation by the Dominion Governments of treaties with foreign states was considered by the Imperial Conference of 1923, and it was then agreed that the Government of each Dominion was at liberty, independently and separately, to negotiate treaties respecting any subject matter with any foreign state; and the Government of the Dominion, in conducting such-independent negotiations, was left free to decide of itself whether the United Kingdom or any other Dominion was interested therein. In June, 1925, the Parliament of Canada prescribed by resolution that, before the Government of Canada should advise the ratification of any treaty, convention or agreement involving military or economic sanctions, the approval of the Parliament of Canada should first be obtained.

In the Imperial Conference of 1926 certain amending and restricting rules were adopted to provide that each Dominion, when negotiating a treaty, should first notify the Government of the United Kingdom and the Governments of the other Dominions of the purpose and scope of the proposed treaty; and that, upon receipt of such notification, each of the other Governments should express its dissent with reasonable promptness. If no dissent is expressed, then the negotiating government may proceed to the conclusion of any treaty that does not impose active obligations upon any of the other Governments which are represented at the Imperial Conference; but if the proposed treaty would impose active obligations upon the United Kingdom or upon any of the Dominions, the assent of the Government of the United Kingdom or the Dominion so affected must first be obtained. Moreover, the Imperial Conference of 1926 no longer left the Government of each Dominion free to decide of itself whether its proposed treaty affected the interest of any other part of the Empire, but in express terms specifically provided that "any question as to whether the nature of a treaty is such that its ratification should be concurred in by all parts of the Empire, is a matter for discussion and agreement between the Governments." The Imperial Conference of 1926 also laid down the guiding principle that: In the case of a treaty "applying to only one part of the Empire it should be stated to be made by the King on behalf of that part;" and moreover declared that

"The plenipotentiaries for the various British units should have full powers issued in each case by the King on the advice of the government concerned, indicating and corresponding to the part of the Empire for which they are to sign."

In 1924, two years after the creation of the Irish Free State, its government appointed an Irish Minister, to represent it at Washington. In 1926, the Canadian Government appointed a Canadian Minister at Washington, and in 1928 a Canadian Minister at Paris, to be followed by the appointment of a Canadian Minister at Tokyo. The conditions under which these appointments are made are set forth in the letter of the British Ambassador at Washington to the Secretary of State of the United States, dated June 24th, 1924, the reply thereto dated June 28th, 1924, and the statement of Mr. Amery, in the House of Commons at Westminster on February 28th, 1927, which may be summarized as follows

1. The Dominion Minister is accredited to the foreign state to deal with matters which exclusively relate to the Dominion which he represents; and he takes complete charge of affairs which relate only to such Dominion.
2. In matters falling within 'his sphere the Dominion Minister is not subject to the control of the British Ambassador, nor is the British Ambassador responsible for the Dominion Minister's action.
3. In case any question should arise as to whether any matter comes within the category of those to be handled by the Dominion Minister, it is to be settled by consultation between the British Ambassador and the Dominion Minister.
4. The Government of the foreign state accepts the Dominion Minister on this footing.

The Imperial Conference Committee of 1926 reported: "We felt that the most fruitful results could be anticipated from the co-operation of His Majesty's representatives in the United States of America already initiated and now further to be developed."

It is fervently to be hoped that this rather optimistic anticipation may be fully realized in a sphere in which such divergencies of opinion will undoubtedly arise as tray only be overcome by cultivating a spirit of tolerance and self-restraint; and by the exercise, under all circumstances, of consummate tact and cordial good-will.

The Imperial Conference of 1926 also endorsed the proposition for the appointment at Dominion Capitals of British Commissioners

"to represent with authority the views of Mis Majesty's

Government in Great Britain", [in view of] "the desir

ability of developing a system of personal contact both in

London and in the Dominion Capitals, to supplement the

present system of inter-communication and the reci

procal supply of information on affairs requiring joint

consideration. "

There has been, for many years, a constant development in the direction of more direct and extended consultation between Great Britain and the Dominions, in respect of all matters of common concern. In the days before the American Revolution, Edmund Burke, at London, for some time represented New York in dealings with the British Government. Pennsylvania, on more than one occasion, sent Benjamin Franklin to London as its political representative; and other of the American Colonies were, from time to time, represented there by their special delegates.

In 1880, Canada sent her first High Commissioner to London; and since then successive High Commissioners have given Canada a measure of representation at the British Capital, and provided an additional source of information to the British Government; though residence in London may sometimes preclude close association with domestic interests and domestic ideals.

In 1918, there was also established the procedure of direct communication between Prime Ministers of the British Government and the Prime Ministers of the respective Dominion Governments.

During the past year, 1928, a British Commissioner has been appointed to reside at the Capital of this Dominion, who will participate in negotiations between the Government of the United Kingdom and the Government of this Dominion.

We have now, therefore, a complicated machinery for ensuring concerted action between the British Government and the Canadian Government in respect of matters of common concern; the presence at London of a Canadian High Commissioner representing the Government of Canada, and the presence at Ottawa of a British Commissioner representing the Government of the United Kingdom; British Ambassadors at Washington, Paris and Tokyo, representing the special interests of the United Kingdom and the general interests of the British Empire, and Canadian Ministers at the same foreign capitals representing the special interests of Canada; the recurrent quadrennial meetings of the Imperial Conference; direct communications between Prime Ministers; occasional visits to London of Members of the Canadian Government; and the annual meetings of the League of Nations, at which five of the Dominion Governments are represented.

Some of us may be persuaded that we are proceeding too rapidly in thus providing too many points of contact which may possibly serve to engender dissentions; but, in progress of constitutional development there are few recessions. Those who desire the survival of the British Empire must constantly insist that this existing political machinery shall be employed to develop common political ideals, and to ensure the cordial co-operation of the Government of the United Kingdom and the governments of the several Dominions in carrying these common ideals into full effect. The official representatives of Canada are not our permanent masters; they must respond to the demands of enlightened public opinion. The British Empire will survive so long as the citizens of its constituent dominions, colonies and possessions are persuaded that their political well-being is best conserved by remaining within that Empire, and so long should the majority in each dominion strive intelligently and effectively to ensure its continuity.

These constitutional changes which are now taking place, by dividing among and delegating to several domininon governments the authority to advise in respect of the exercise of the King's prerogatives, have so far left intact the legislative supremacy of the Imperial Parliament. That supremacy is now directly challenged.

The Imperial Parliament, which is the Parliament of the United Kingdom, has legislative jurisdiction coextensive within the territorial limits of the Empire, over British citizens and British shipping wherever they may be in foreign parts or upon the high seas, outside British territorial waters.

The Imperial Parliament has exclusive jurisdiction to regulate the succession to the Throne, the titles of the Crown, the royal declarations on accession, and the Regency in certain cases, as shown by the Demise of the Crown Act 1901, the Regency Act of 1910, the Royal and Parliamentary Titles Act 1927, which concern the whole Empire.

The Imperial Parliament may amend, at will, its own constitution as shown, for example, by the Parliament Act of 1911.

The Imperial Parliament can lawfully extend or restrict the application to the Dominions of its own enactments, as shown, for example, in the Colonial Laws Validity Act 1865.

Uniform British naturalization throughout the Empire is provided for by such Imperial Statutes as the British Nationality and Status of Aliens Acts of 1914, 1918 and 1922; all of which indicate that the Parliament of the United Kingdom can alone decide who shall be deemed to be natural born British subjects, who may be admitted, by naturalization, to exercise the rights and privileges of such subjects. Dominion legislation, on the other hand, can confer no rights or privileges outside of the confines of the Dominion.

The Army Act and the Naval Discipline Act of the Imperial Parliament extend to the whole Empire. All Dominion forces, serving outside of the Dominions, are subject to the provisions of the Army Act, and the regulations issued there under.

The Foreign Enlistment Act 1870, extends to all the Dominions and regulates the conduct of all His Majesty's subjects during the existence of hostilities between foreign states with which His Majesty is at peace.

The Imperial Parliament provides for extradition of accused persons from one part of the Empire to another for trial, as, for instance, in the Fugitive Offenders Act 1881, which provides for the arrest in any Dominion of any person who is accused of the commission of an offense in any other of the Dominions.

The Admiralty Offences (Colonial) Act 1849, confers on Dominion or Colonial Courts the power to deal with crimes committed in the territorial waters of the dominion or colony.

The Territorial Waters Jurisdiction Act of 1878, makes provision with respect to offences committed by foreigners on foreign ships within the territorial waters of any dominion.

The Naval Prize Act 1864, and the Prize Court Act 1894, also provide for the constitution of Prize Courts in British Dominions, colonies and possessions.

The Slave Trade Act 1873, for the suppression of the slave trade, extends to the whole Empire, and confers jurisdiction upon the Vice-Admiralty Courts of the Dominions.

The Colonial Courts of Admiralty Act 1890, provides for the organization of the Admiralty Courts in the British Dominions and for the reservation for His Majesty's assent of Dominion laws relating thereto.

The Merchants Shipping Act, 1894, is an expression of the paramount legal right of the Parliament of the United Kingdom to legislate with respect to the registration, equipment, safety, operation and management of British owned shipping, and for the constitution of Dominion Courts to deal with offenses committed on any British ship anywhere, and on any foreign ships, to which the offender does not belong, and by any alien on a British ship while on the high seas; and this same Imperial Act confers jurisdiction upon the Admiralty Courts of the Dominions over offenses committed by any of the officers or crew of a British ship, whether ashore or afloat.

There are also Imperial acts dealing with special international relations of the Empire, such as the International Copyright Act 1886, the Mailship Act 1891, the Anglo-French Convention Act 1904, the Geneva Convention Act 1911, the more recent Treaty of Peace (Turkey) Act, all of which indicate the permanent legal legislative authority of the Parliament of the United Kingdom.

These Imperial enactments, which clearly disclose that the paramount legislative supremacy of the Imperial Parliament is not only founded upon legal right, but that such supremacy is in accord with existing constitutional practice, are recognized and enforced by all Canadian Courts. But the Imperial Conference of 1926 has affirmed that

"They (Great Britain and the Dominions) are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any

aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations . . . . Every self-governing member of the Empire

is now master of its destinies . . . Equality of status, so far as Britain and the Dominions are concerned, is thus the root-principle governing our inter-imperial relations."

The Report continues: "Existing administrative, legislative and judicial forms are admittedly not wholly in accord with the position" as above described, and it therefore proposes that these forms should be examined with a view to adopting existing practice to the principle of equality above ennunciated. And it was thereupon resolved that expert committees should be set up to enquire

into and report upon and make recommendations for the repeal, amendment and modification of existing Imperial Statutes, so as to give legal effect to the principle of equality which the conference committee had asserted. The British members of that committee of experts have, I understand, been provisionally appointed, and have entered upon this most important enquiry, the ramifications of which extend to the very roots of our political relations with Great Britain and with all other parts of the British Empire.

And not only will the adaptation of existing practices to the principle of equal status involve the repeal, amendment and modification of that long series of Imperial enactments, such as I have cited, which now express the paramount legislative supremacy of the Parliament of the United Kingdom, but other appropriate measures must be adopted by the Parliament of Canada to provide for the exercise of that wider legislative and administrative jurisdiction which it is proposed to vest in the Dominion parliaments and Dominion governments, in order to give the Parliament of Canada legal legislative jurisdiction, co-equal if not co-extensive with that of the Parliament of the United Kingdom. A brief comparison will indicate the far-reaching extent of the reforms which are now contemplated.

Though the Dominion of Canada may now be deemed, in a restricted sense, to be a nation, it is not a sovereign state.

The Canadian Parliament now has legislative jurisdiction to enact measures for the peace, order and good government of Canada limited to its own territory and within the three mile limit on its sea boards. It has no extra territorial jurisdiction.

The Canadian Parliament has now no legislative jurisdiction over Canadian citizens, when they are beyond the confines of Canada. It cannot make laws to punish Canadian citizens for crimes committed abroad. It cannot provide legislative safeguards respecting the conduct of its shipping and sailors, its naval or mercantile marine, while on the high seas.

This limited Canadian jurisdiction is now to be extended so as hereafter to be co-equal with that of the Parliament of the United Kingdom, whose present legislative jurisdiction is not restricted to the territorial limits of Great Britain, but extends to the uttermost limits of a far-flung Empire, to British subjects wherever they are throughout the wide-world, to British shipping, including Dominion registered shipping, sailing the seven seas, to British property, assets and interests wherever located.

The Parliament of Canada cannot make a Canadian citizen a British subject throughout the British Dominions. It may not declare war; it cannot make peace; it may not, when Great Britain engages in war, declare the neutrality of Canada, except by asserting its political separation from Great Britain.

Under the existing conditions, the Parliament of Canada must continue to be a Parliament of Canada; it cannot legislate its own extinction, nor set up any other form of government, nor amend nor modify the existing right of accession to the Throne.

Canada cannot federate with any other state.

Canadian statutes are now void for repugnancy to the extent of such repugnancy, when they conflict with the provisions of any act of the Parliament of the United Kingdom which extends to Canada.

The mere repeal of the Colonial Laws Validity Act will not abrogate the legal legislative supremacy of the Parliament of Great Britain; but any future Imperial Act, expressed to extend to this Dominion, must still be regarded by our Dominion Courts as valid and as overriding acts of the Dominion Legislature, if any, which are not consistent therewith. What means are to be contrived and formulated whereby the Parliament of Great Britain may effectively fetter its own future legislative action with respect to all or any portion of the Empire?

The ultimate solution of the problems, which the Imperial Conference proposes to solve by the investigation and report of its expert committees, will affect every phase of our political commercial and social life. Every man and woman, who is entitled to Canadian citizenship, whether by birth or naturalization, is interested in ascertaining what hereafter will be his rights, privileges, obligations and duties, when he passes beyond the frontiers of Canada. Every Canadian ship-owner is concerned to know what will be the status of his ship, its officers and crew, on the high seas or in British and foreign ports, when they are no longer subject to the Merchants Shipping Acts of the United Kingdom. Every Canadian merchant, engaged in the foreign trade of Canada, is directly interested in the ultimate preservation of the manifold rights and privileges which appertain to British subjects in their commercial intercourse with foreign countries, under the terms of existing treaties between the Government of the United Kingdom and the governments of foreign states. In fact, existing Imperial acts and treaties, applicable to Canada and to Canadians, at home or abroad, affect our material interests in innumerable ways. If these are to be wiped out, their abrogation will involve the immense constructive work, on the part of the Dominions, of devising a whole series of constitutional conventions and inter-imperial and international agreements and treaties which will clearly determine the relations of the Dominions among themselves, as well as with foreign countries, if the Empire shall hereafter remain a subsisting political entity and not merely a free association of independent sovereign states.

Some time ago Mr. Ramsey MacDonald said: "If the Empire is broken up, the fatal act will be done when nobody is aware that anything very revolutionary is taking place"; and my present purpose will be served if I bring home to your hearts and minds the vital significance of our existing status as British citizens, and the conviction that, under existing conditions, the political unity of the Empire will only be conserved to the extent that the Government of Canada is ready, with the utmost goodwill, to counsel, advise and cooperate with the Governments of the United Kingdom and the Governments of the other five Dominions, in order to procure concerted action in all matters of common interest and concern. The problems of the Empire are not to be solved by the mere acceptance as orthodox of verbal declarations of constitutional rights; the maintenance of the political unity of the Empire will ultimately depend upon the spirit in which such rights are exercised by the Governments of the Dominions. For myself, I am fully convinced that any breach of our continuous community of political relations and of political ideals would not only make for serious domestic dissentions, and perhaps induce even civil strife in Canada, but would seriously diminish the growing influence of this country upon world affairs; for no Dominion is strong enough, even if it so desired, to afford the luxury of a completely independent political policy. (Applause.) But whatever our individual political predilections may be, it is certainly the paramount duty of each and every Canadian citizen to scrutinize carefully the constitutional developments which are now in progress, and to exert, each in his own sphere, however restricted it may be, all the intellectual, moral and political influence at his command, so that these constitutional developments may be directed toward the ends, which he conceives to be most consistent with the future well-being of our beloved country, Canada. (Loud applause.)

The President expressed the Club's appreciation of the wonderful address, which he said would make a very valuable contribution to the printed records of the Club, and be a great source of information to the students of the days to come. (Applause.)