DOMINION STATUS.

Otago Daily Times, Issue 20708, 4 May 1929, Page 25

DOMINION STATUS.

MYSTERIES OF THE EMPIRE. THE RHODES LECTURE. FALLACIES AND ANOMALIES. (Fbou Our Own Correspondent.) LONDON, March 19. In a speech after the Rhodes lecture had been delivered the Lord Chancellor (Lord Eailsham) said that it behoved them all to think of the problems to which the question of dominion status necessarily gave rise, but he did not think it at all followed that they should be in a hurry to determine, the logical conclusions to which it gave rise. ' Most people will agree with the Lord Chancellor. That is why a lawyer seems to be the last person to interpret the illusive thing one may call the British Constitution. Mr J. H. Morgan, K.G., professor of constitutional law in the University of London, and reader in that subject to the Inns of. Court, gave ibis year's Rhodes lecture. He approached his subject boldly, but having a perfectly clear legal mind, his discourse was chiefly concerned with the anomalies of the constitution. The lecture was delivered at the Univeriaty College. Besides a large number of students from all parts of the Empire there were present the Austrian Minister, the Hungarian Minister, Lord Danesfort, Sir James Parr, and a number of other dominions representatives. Professor Morgan took as his text the declaration of the Imperial Conference of 1926 that Great Britain and the dominions are “ autonomous communities within the British' Empire, equal in status, in no way subordinate one to another in any respect 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” Those words had given rise to much discussion and conflict of views throughout the dominions. But in none of the debates throughout the dominions did any responsible politicians dispute the common allegiance to the King. “And there is more than loyalty in that,” said Professor Morgan, “there is law. Once grasp, as some of these dominion orators have not quite grasped, the significance of the maxim, so often laid down and so often applied by the Judicial Committee of the Privy Council, that the Crown is ‘ one and indivisible throughout the Empire,’ and a great deal of the current use and misuse of. the term of ‘ eoverignty * of the dominions will, in losing half its meaning, lose all its danger. Once admit the truth of that other legal maxim, as important to the autonomy of the Dominion courts as it is to the territorial sovereignty _ of their Legislatures, that ' the King is everywhere present in his dominions,’ and . you will discover the source of the dominion prerogatives themselves. And with what The Times, in a happy phrase, has called 'the regalisation’ of the office of Governor-General, as the King’s representative—as the result of the Imperial Conference’s report—we may yet. discover that here, and riot elsewhere in the report, is the new status of the dominions.” A PROPHECY, NOT LAW. , It would be well, to remember that the declaration of 1026 was not an end but a beginning. It might be prophecy, but it certainly was not law. It was a political not a legal act, or at most a convention,_ using convention to mean a purely political understanding the force of which is exactly correlative with the extent to which it is observed. Dominion status had never been defined by the Privy Council, and though it had been referred to in a number of judgments, their Lordships had never'said that the Crown acts exclusively, in dominion matters on the, advice of dominion Ministers. “ The great change definitely effected by the report of the. Imperial Conference_ is that in future the Crown, or rather its representative, is bound to do so.” The Dominions Office can now no longer advise the King whether dominion legislation shall receive his assent. The whole object of reservation, his Majesty’s power to withhold his assert, is to preserve some external control over legislation affecting “ external ’’ or Imperial interests, and would be defeated if a Dominion Government alone advised -on its own legislation. What .alternative was there except the exercis'e of personal power by .the King? The Governor-General’s instructions would present a question for the nest Imperial Conference, for the British Government which used to send .out Governors as its representatives had abdicated. NEUTRALITY OF A DOMINION. But the phrase about “ external affairs ” had raised more controversy. Matters might be external to particular dominions without being foreign to the whole Empire, and the ambiguity in the word external had raised the-assumption in two, possibly three! dominions that they have now acquired an' independent voice iu foreign policy. If they considered the question of dominion representation in foreign capitals the first thing to note was the fact, of considerable Constitutional importance, that such representatives are appointed on the direct nomination of a dominion Government. ' But the real Constitutional point was this, Who accords the recognition which makes a foreign State a sovereign body to whom a Minister can be sent? “The courts,” ,to quote Lord Justice Scrutton. “must' be guided in questions whether a particular person or institution is a sovereign only by the statement of the sovereign. on whose behalf they exercise jurisdiction.” ■ That sovereign in every, dominion was the King, and it lay with the King, advised by the British Secretary of State for Foreign Affairs, and by him alone, to declare whether a foreign State is recognised as a sovereign State or not. Canada can only have a Minister in Tokio because the British Government recognises Japan as a sovereign- State. The dominions were not legally independent . sovereign States, because they have not an independent right of making war. If war was declared by the King on the advice of his Ministers in Downing Street, nothing short of a Declaration of Independence could achieve the neutrality of a dominion. LEAGUE AND EMPIRE. The League of Nations offered no legal resemblance to the British Empire, and there was no consensus of opinion among jurists what the League was in law “ The British Empire is a legal person of full stature represented by the Crown;, what the League of Nations is, no one knows.” It was a complete fallacy to imagine that international status had been established for the dominions by some authority external to Great Britain, for their admission to the League was governed by the Covenant and signed by the British Empire as one principal. “The so-called recognition of dominion status by the League is a recognition accorded to the dominions at the request of his Majesty’s Government.” It was equally a mistake to try to talk of the dominions as kingdoms and to develop a theory which would link the Empire by a purely personal link, such as once bound England and Hanover. In such personal unions international law says that either kingdom may remain neutral when the other is at war. The King is not the King of Canada, but the King in Canada. There might well prove to be serious , trouble inherent in the Locarno Agreement whereby Great Britain was pledged to immediate action against the aggressor. “If we stop to consult the dominions, we may lose the war. If we don’t stop we may lose them.” Under the present arrangement; continued Professor Morgan, the dominions are “ advised ” or “ informed ” of what the British Foreign Office does. There was a certain danger in that, for the Foreign Office "sometimes wisely, sometimes not so wisely, is secret to the point of secretiveness in the face of the House of Commons, But dominion Parliaments are not accustomed to that sort of thing, and will not tolerate it.” An attempt was made in practice to draw a distinction between treaties that were political, and by which the dominions were bound, and treaties that were commercial, by which they were not. Locarno was an example of the first; the Anglo-German Commercial Treaty an example of tile second. But there was no clear line, and the only certain test was whether a treaty involved legislation. EXTRATERRITORIAL LEGISLATION. “The rights conferred on Japanese in the Anglo-Japanesa Treaty of 1911 were m direct conflict with the legislation

affecting Orientals in British Columbia, and it was obvious that to attempt to bind Canada by it would have been quite inconsistent with her dominion status in ‘ domestic ’ affairs. The assent of Canada was therefore reserved and, when she gave it, she embodied the treaty In a statute which was promtly challenged, though _ unsuccessfully, by British Columbia as an invasion of her own exclusive rights of legisation in the matter of property and civil rights in a famous case known as A.G. of British Columbia v. A.G. of Canada (1924) A.C. (203). _ You will see, therefore, that the exemption of the dominions from certain kinds of treaties has been the inevitable result of the principle of the internal sovereignty of the dominions. On the other hand, where the enforcement of a treaty requires extraterritorial legislation, the power of the dominions to make such a' treaty does not exist, for they are powerless to pass such legislation and thereby to make the treaty effective.” He said the rule limiting dominion legislation to dominion territories—territorial waters^— would almost certainly call for alteration, but power to legislate extraterritorially would probably need to be confined to acts committed abroad by their own citizens. By the Lausanne Convention Turkey gives privileges to British subjects in return for similar privileges, but two dominions have contracted out of these conventions. Those dominions canpot have it both ways and expect the privileges of British subjects in Turkey while refusing to extend privileges to Turks, v SOVEREIGNTY OF THE DOMINIONS. In his conclusion. Professor Morgan said; There is a sovereignty of the dominions, just as, although in a much more restricted sense, there is a sovereignty of each of the States of the-great American Republic—the Supreme Court at Washington has said so, but you must not, you cannot as the Under-Secretary for Foreign Affairs did in the House of Commons the other day and many a Senator did at , Washington in 1919—regard the sovereignty of the dominions as meaning the same thing as the sovereignty of the American States. It is much more. Nor can you treat it as _ meaning the same ■thing as the sovereignty of an international State. It is much less. If you want a fairly safe working definition of Qreat_ Britain, and the, dominions, 1 will give it you in words I take from an American source and used, it is true, in another connection. Here it is: We anil they are £ an indestructible union of indestructible States.'”