The constitution, administration and laws of the Empire

Front matter

\S ANN

THE UNIVERSITY

OF ILLINOIS

Introduction To The Series

A woRD is necessary as to the origin and object of this series. The Management of the British Empire Exhibition (1924), in the early days of its organisation, approached the Imperial Studies Committee of the Royal Colonial Institute for advice and assistance in connection with the educational aspect of the Exhibition’s work. The Editor of this series, who is a member of that Committee, happened during a period of enforced leisure to be spending a good deal of his time at the Institute, chiefly in its delightful Library. On its shelves he found entrancing reminiscences or records of men who went forth from these islands as Pioneers to brave the perils of uncharted seas and the dangers of unknown lands, inspired more by the spirit of adventure inherent in the race than by any calculated design for personal gain or lust for the acquisition of new territories. From these volumes could be traced the beginnings and gradual growth of remote colonies, through the early stages of awakening public interest, followed perchance by apathy or neglect until the advent of some world movement brought them into the fierce light of economic and international importance.

Though there lay upon the shelves an immense mass of valuable literature on almost every phase of Imperial work, it became apparent to the Editor that there was no series of volumes which gave a complete survey of the history, resources, and activities of the Empire looked at as a whole. He felt haa there was need for a iv Introduction to the Series series which would provide the ordinary reader with a bird’s-eye view, so to speak, of these manifold activities. |

The time seemed appropriate for such a survey. The Empire had emerged victorious from the greatest of wars. The Dominions which had contributed so magnificently to the victory had sprung, as it were, at a bound not only into the consciousness and acknowledged status of full and equal nationhood with the Mother Country, but also into definite recognition by Foreign Powers as great and growing World-Forces.

The decision to hold in London an Exhibition in which the vast material resources and industries of the Empire would be brought vividly before the public seemed also to demand that there should be a record and survey of the growth and development of this far flung congeries of countries and peoples that are called the British Commonwealth of Nations.

The Editor accordingly consulted some of his friends, and was fortunate in securing their assistance and advice. The Management of the British Empire Exhibition welcomed the scheme as supplementing from the intellectual side what the Exhibition was doing from the material aspect. He has also been fortunate in obtaining the co-operation, as authors, of distinguished men, many of whom have played a foremost part in the public life or administration of the territories concerned, and all of whom have had wide personal knowledge and experience of the subjects which they treat. The Editor’s thanks are especially due to these authors. They have undertaken the work from a sense of duty and from a desire to provide, at an important stage in our history, authoritative information regarding the great heritage that has been bequeathed to us, not only unscathed

Introduction to the Series Vv but strengthened by the stern struggle through which it has passed.

Each volume is self-contained and deals with a special aspect of the Empire treated as a whole. The volumes are, however, co-ordinated as far as possible, and give, it is hoped, a comprehensive survey of the Empire.

The writers have had complete freedom as regards the statement of their views and it is to be understood that neither the Editor nor his advisers are responsible for such individual expressions of opinion.

The late Sir George Parkin was deeply interested in the scheme, and, but for his lamented death, would have contributed a volume to the series.

The Editor, in conclusion, desires to express his thanks to Lord Morris, and to Sir Charles Lucas, especially the latter, for the benefit of their advice and ripe experience.

HUGH GUNN, General Editor.

Lonbon, April, 1924.

General Editor :

HUGH GUNN, M.A.

Late Director of Education and Member of the Legislative Council of the Orange River Colony; Organiser of Grey University College, South Africa, and of the University of Western Australia ; etc.

Advisory Commiuttee :

Late Head of the Dominions Department, Colonial Office, Author of An Historical Geography of the British Colonies, History of Canada, The Empire at War, etc.

THE RicHT HONOURABLE LORD Morris, K.C.M.G., LL.D.

Late Prime Minister of Newfoundland ; Member of the Imperial War Cabinet, etc.

Late Colonial Secretary and Acting Lieutenant- Governor of the Orange River Colony; late Secretary of the Royal Colonial Institute, etc.

ARTHUR PERCIVAL NEWTON, M.A., D.Litt., B.Sc., F.S.A.

Rhodes Professor of Imperial History in the University of London, etc.

THE LATE SIR GEORGE R. PARKIN, K.C.M.G., LL.D.

Late Secretary of the Rhodes Trust, who gave valuable assistance until his death.

vi oe

Volumes in the Series vil

I. THE DOMINIONS AND DEPENDENCIES OF THE EMPIRE.

VII.

XII.

Foreword H.R.H. the Duke of Connaught. 1. Newfoundland Rt. Hon. Lord Morris. 2. Canada Rt. Hon. Sir George Foster. 3. Australia Rt. Hon. Sir Joseph Cook. 4. New Zealand Sir James Allen. 5. South Africa Sir Edgar Walton. 6. India The Rt. Hon. Lord Meston. 7. Rhodesia Sir Lawrence Wallace and Lt.-Col. E. Marshall Hole. 8. Tropical Africa Rt. Hon Sir Frederick Lugard and J. C. Maxwell. 9. West Indies The Rt. Hon. Lord Olivier. 1o. Ceylon and Mauritius Sir Montagu Burrows. 11. Malaya Sir Ernest Birch. 12. Pacific Possessions Sir Everard im Thurn.

13. Sea Power and Outposts of the Empire

Commander H. T. Dorling, With Foreword by the Rt. Hon. L. S. Amery.

. THE STORY OF THE EMPIRE Sir Charles Lucas. . THE CONSTITUTION, ADMINISTRATION, AND LAWS

OF THE EMPIRE Prof. A. Berriedale Keith.

. THE RESOURCES OF THE EMPIRE AND THEIR

DEVELOPMENT Evans Lewin.

HEALTH PROBLEMS OF THE EMPIRE— PAST, PRESENT, AND FUTURE Dr. Andrew Balfour and Dr. H. H. Scott.

. THE PRESS AND COMMUNICATIONS OF THE EMPIRE

J. Saxon Mills.

THE TRADE, COMMERCE, AND SHIPPING OF THE EMPIRE Sir Charles McLeod and Prof. A. W. Kirkaldy.

. MAKERS OF THE EMPIRE Hugh Gunn.

THE NATIVE RACES OF THE EMPIRE Sir Godfrey Lagden.

. THE UNIVERSITIES AND EDUCATIONAL SYSTEMS

OF THE EmpPIRE Prof. Arthur Percival Newton.

. THE LITERATURE AND ART OF THE EMPIRE

Edward Salmon and Major A. A. Longden.

MIGRATION WITHIN THE EMPIRE Major E. A. Belcher.

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THE CONSTITUTION ADMINISTRATION anp LAWS OF THE EMPIRE

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THE CONSTITUTION ADMINISTRATION

LAWS OF THE EMPIRE oe Bi A. BERRIEDALE KEITH ee ads ios tel ister-at-Law, and of the Scottish Ba Regius Professor of Sanskrit a Ny eee tive Philology at the Univer sity of Edi nburgh Formerly of the Colonial Office Author of “ Responsible ceed the Dominions,” etc.

Ww, S w LONDON: 48 PALL MALL

W. COLLINS SONS & CO. LTD.

GLASGOW MELBOURNE AUCKLAND

Copyright, 1924.

Manufactured in Great Britain.

A

Preface

SINCE this brief account of the constitutions of the Empire was written, the result of the British general election of December 6, 1923, has raised important issues of constitutional law and practice. The election resulted in the return of 259 Unionist members, 192 supporters of Labour, 158 Liberals, and 6 Independents. As no party possessed a clear majority of the House of Commons, the Unionist administration, in accordance with constitutional usage, remained in office and met the House of Commons on January 10. The Liberal party having decided to withhold support from the government, it was defeated, on an amendment to the address in reply to the speech from the throne, on January 21. The Prime Minister resigned, and, it is understood, advised the King to entrust the leader of the Labour party with the formation of an administration. The duty was undertaken by Mr. Ramsay MacDonald, who had assurances of a certain measure of Liberal support. As the number of seats obtained by the three great parties was not seriously disproportionate to the number of votes cast for each in the electoral contests taken as a whole, although a very large number of seats fell to candidates without absolute majorities, it is not improbable that Great Britain may for some time to come have to contend with the difficulty of party government when there are more than two parties and no one has a clear majority. The constitutional issue, therefore, has again been raised as to the position of the Crown in regard to the dissolution of Parliament. It has been suggested that the practice in the Dominions, which empowers the representative of the Crown to decline to grant a dissolution to a Premier, provided that he is able to find a politician willing to carry on the government and to accept responsibility for the refusal, should be regarded as applicable to Great Britain. The question presents considerable difficulties, when treated in the abstract ; it is, for instance, obvious that the Crown could not constitutionally grant a Prime Minister, who had obtained one dissolution and had been defeated, a second dissolution of Parliament if x11

XIV Preface any other means of carrying on the government could be found. In practice, however, it is hardly conceivable that a case would arise in Great Britain in which the Crown could properly decline to grant a dissolution on the request of a Prime Minister, A dissolution is essentially an appeal to the judgment of the electorate, which is the final depository of authority, and it would be an invidious act to decline to sanction an appeal to the people. Even in the Dominions the exercise of the power is not always unattended with popular resentment against the action of the representative of the Crown, and his action, if unwise, may involve his recall by the Crown. If the Dominion practice were adopted in Great Britain, the action of the Crown, whether in granting or refusing a dissolution, would inevitably become a matter of public comment and criticism, and a serious inroad would be made on the doctrine of the dissociation of the Crown from all connection with political parties, and its freedom from responsibility for any political acts, which is exemplified in the maxim that the Crown can do no wrong.

The fundamental importance of maintaining the freedom of the Crown from political responsibility is strikingly illustrated in the decision of Mr. Ramsay MacDonald’s government, immediately after taking office, and without obtaining the approval of the House of Commons, to accord recognition de jure to the government of Russia. The incident is a reminder of the extraordinary wide character of the royal prerogative in matters of foreign affairs, and its freedom, even under a Labour administration, from the direct and effective control of the representatives of the electorate. Moreover, it illustrates in a very forcible manner the fact that in foreign affairs the control which the governments and peoples of the Dominions can exercise is often shadowy or illusory. It is clear that none of the governments of the Empire, other than the British, had any effective say in determining the action taken in this instance, though it may be assumed that the British government felt reasonable assurance that its action would not be questioned seriously in the Dominions. The episode, however, seems to indicate that there is no more probability of a Labour government surrendering voluntarily any of its authority in foreign affairs to the House of Commons than of similar action by a Unionist or Liberal government, and that the question of the effective participation of the

Preface XV

Dominions in the control of foreign affairs is still far from settlement.

A further issue of considerable importance and interest to the Dominions has arisen. The defeat of the Unionist government, which had represented Great Britain at the Imperial Conferences of 1923, inevitably raised in a precise form the question of the effect of Conference resolutions, concurred in by the Imperial Government, in the event of that government ceasing to command a majority in the House of Commons, before action could be taken on the resolutions. Were such resolutions in effect in the nature of contractual obligations, which must be honoured by any subsequent government and parliament ? Or was it open to the new House of Commons to consider freely on their merits such matters as the grant of further preferences to the Dominions and the naval base at Singapore? It was obvious that, if the former view prevailed, the whole basis of the system of Imperial Conferences would be overthrown, and it was, therefore, natural that at the opening of the session of 1924 the leaders of the three great parties in the House of Commons should have been united in asserting that the resolutions imposed no obligations on the House of Commons or the new government, which undertook to present them to Parliament for its decision, with an indication of its own views on the proposals. There appears to be no difference of opinion in the Dominions as to the constitutional position, though stress has naturally been laid on the importance of giving effect to steps of policy once agreed upon. The voting at the general election, however, makes it clear that preferences as a basis of imperial unity have not yet won the effective support of the great majority of the British people, and that greater promise of progress lies in other forms of co-operation, including Imperial grants in aid of public works in the Dominions and of emigration.

The question of Indian constitutional reforms has been rendered more complex by the return at the elections for the central and provincia] legislatures of a considerable number of members who are not prepared to co-operate in the conduct of the administration, unless steps are taken at an early date to extend widely the reform scheme, so as to concede full responsible government in the provinces, and responsible government as regards matters under the charge of the government of

XV1 Preface

India, other than defence, foreign relations, and relations with the Native States. Both in the Central Provinces and in Bengal this section of opinion has declined to accept ministerial office, despite its dominant position in the legislature, while in the Indian Legislature by combination with members of more moderate opinions a group has been formed with a majority in the Lower House, which holds that further concessions are immediately required. The Government of India has insisted that the responsibility for Indian affairs cannot be handed over to the Indian Legislature until proper arrangements have been arrived at regarding the Native States, defence, communal differences, social backwardness, and the interests of minorities. A further complication in the way of Indian progress has been created by the growing lack of co-operation between Hindus and Mahomedans, since the interests of the latter in the revision of the Treaty of Sévres have been satisfied by the Treaty of Lausanne. There is, however, agreement between the Legislature and the Government of India in resentment of the failure of the Union of South Africa to accept the principle of full civil rights for Indians domiciled in the Union, and of the action of the Imperial Government in declining to accord to Indians in Kenya an equal status with Europeans, and in sanctioning the principle of immigration restrictions aimed at the exclusion of Indians.

The recent developments within the Empire have given rise to difficult questions of terminology, which Parliament has not attempted to solve. The term “ United Kingdom,” prior to the coming into being of the Irish Free State, denoted the United Kingdom of Great Britain and Ireland; it now describes the same area less the Irish Free State, save when expressly otherwise provided in virtue of Imperial legislation ; needless to say, the view that the United Kingdom has ceased to exist since the creation of the Irish Free State has no foundation in fact; the term refers primarily to the union of England and Scotland, effected in 1707, and would remain applicable, even if Northern Ireland also ceased to be under the immediate control of the Imperial Parliament. The term “ British Islands,’’ which formerly included the United Kingdom, the Channel Islands, and the Isle of Man, has suffered a similar diminution of extension by the creation of the Free States. The list of “‘ self-governing Dominions,” or more shortly “‘Dominions,’’ now comprises the Dominion of Canada, the

Preface XVIi

Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, and Newfoundland, together with the Irish Free State, although this addition has not yet been formally adopted. At the same time the self-governing Dominions are in law still colonies, for the Interpretation Act, 1889, provides that “‘ the expression ‘ colony’ shall mean any part of Her Majesty’s dominions exclusive of the British Islands, and of British India, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one colony.” The other colonies were formerly distinguished in official use as ‘‘ Crown Colonies,’ a term which indicated that the control of the executive government remained in the hands of the Crown acting through the Imperial Government, and, although this convenient and reasonable practice has of late been abandoned, the use has been adhered to in this work, in lieu of adopting the cumbrous phrase, ‘‘ Colonies not possessing responsible government.’’ The recent changes in the constitutions of Malta and Rhodesia have created a class of ‘‘ Colonies possessing responsible government,’’ which are _ not ‘““ Dominions.”

“ British India” denotes all territories within His Majesty’s dominions, which are administered under the control of the Governor-General of India, while “ India” is the designation of “‘ British India ’’ and the territories of native princes or chiefs under the suzerainty of His Majesty, exercised through the Governor-General or some officer subordinate to him. The colonies of all kinds, the Channel Islands, the Isle of Man, and British India make up the category of ‘‘ British Possessions,’ while the whole of the British possessions, together with the United Kingdom, fall under the description of “‘ His Majesty’s dominions ;”’ this term thus includes every portion of territory which is technically British. The “ British Empire,” however, does not consist merely of British territory ; in addition to the Indian States, it includes large areas of territory designated as “‘ Protectorates,’’ over which the Crown exercises full control, while attached to it in various degrees of relationship are ‘‘ Protected States’ and ‘ Mandated Territories.’ The term, however, still awaits formal legislative definition, but it has been definitely established as the official name of His Majesty’s territories by its

L.E. B

XVIli Preface employment in the peace treaties of Ig1g, including the Covenant of the League of Nations.

Considerations of space have rendered it necessary to omit detailed proofs of the statements made in this work ; full discussions will be found in my earlier treatises, Responsible Government in the Dominions, Imperial Unity and the Dominions, and The War Government of the Dominions, and in a series of ‘‘ Notes on Imperial Constitutional Law,” in The Journal of Comparative Legislation and International Law, vols. I.-VI. For information regarding matters affecting the Dominions, I am obliged to the High Commissioners in London, and to Mr. Hugh Gunn for valuable suggestions as to the scope and treatment of the subject, while I owe much to my wife for criticism and advice. To the publishers I am indebted for the interest they have shown and the pains taken in the production of the work.

A. BERRIEDALE KEITH.

THE UNIVERSITY OF EDINBURGH,

16TH February, 1924.

Contents

PARTE

THE FRAMEWORK OF THE IMPERIAL

CHAP

I. Zs 3%

The Unity of the Empire in International Law

The Empire and the League of Nations

The Forms and Agencies of International

_ Intercourse

4. British Nationality and Alienage xix

PAGE

COW

18 21

43 48

53 57 xx Contents

CHAP, IV. IMPERIAL CO-OPERATION IN FOREIGN AFFAIRS

AND DEFENCE

. Co-operation in Commercial Negotiations . Co-operation in Political Affairs

. Imperial Co-operation during the War

. Imperial Co-operation since IgI9g

+ OG N H

V. IMPERIAL CO-OPERATION IN DOMESTIC AFFAIRS

1. The Imperial Conference 2. The Dominions and India

VI. THE GOVERNMENT OF NATIVE RACES

1. Imperial Control of Native Races 2. Dominion Control of Native Races

VII. THE RuLE oF LAW AND THE RIGHTS OF THE SUBJECT

. The Rule of Law

. Martial Law

— Co N H

VIII. CHuRcH AND STATE t. The Churches of the British Islands 2. The Church overseas

PART II THE GOVERNMENTS OF THE EMPIRE I. THE UNITED KINGDOM . The Crown

. The Privy Council and the Cabinet . The Departments of State

NH

Se)

CHAP,

N DO

Contents

. The House of Commons

. The House of Lords

. The Crown in Parliament

. The Functions and Procedure of Parliament

9g. The Judicature and the Laws

Il. NORTHERN IRELAND, THE CHANNEL ISLANDS, AND THE ISLE oF MAN t. Northern Ireland 2. 3. The Isle of Man

The Channel Islands

III. THE IrisH FREE STATE

IV. DOMINIONS AND COLONIES POSSESSING RESPON- SIBLE GOVERNMENT

‘al

Nun & tS

. The Development of Responsible Government The Governor The Cabinet and the Public Departments The Lower Houses of Parliament

. The Upper Houses . The Functions and Procedure of the

Parliaments

. The Federations and the Union

(2) The Dominion of Canada (0) The Commonwealth of Australia (c) The Union of South Africa

. Defence . The Judicature and the Laws . Colonies possessing Responsible Government (a) Malta (0) Southern Rhodesia xxii Contents

CHAP, V. BriTIsH INDIA AND THE NATIVE STATES 1. The Origin of the Constitution of 1919 2. The Relations of the Central and Provincial Governments

. The Provincial Governments

. The Central Government

. The Native States

. Imperial Control of Indian Government

. The Judicature and the Laws

COI ANB W

VI. THE CROowN COLONIES AND PROTECTORATES 1. Colony and Protectorate 2. The Sources of Colonial and Protectorate Constitutions . The Different Classes of Governments . Constitutional Development in Ceylon . The Leeward Islands Federation and West Indian Constitutional Reform . The Governor and the Executive . Defence . The Judicature and the Laws

VII. THE PROTECTED STATES AND EGYPT I. The Protected States 2. Egypt and the Sudan 3. Zanzibar

VIII. THE MANDATED TERRITORIES I. The Pacific and African Mandates 2. The Mandates for Palestine and Iraq

IX. FOREIGN JURISDICTION

Conclusion

SCHEME OF THE POLITICAL ORGANISATION OF THE EMPIRE

265 265

267 270 274 276 281

283 284

287 287 290 293 294

294 301

319 324 335

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Chapter I The Nature And Sources Of The Constitutional Law Of The Empire

1. The Nature of Constitutional Law

CONSTITUTIONAL law, as understood in the British Empire, includes all those rules which prescribe the distribution, or regulate the exercise, of the sovereign authority in the State, define the obligations of the subject towards the State, and lay down the rights which the State permits its subjects to assert even against itself. The theory of sovereignty is largely a matter of indifference from this point of view ; the sovereign power for the constitutional lawyer is composed of those varied authorities by whom rights, that is, the capacity of one man to control the actions of another with the assent of the State, are created, and the acts or forbearances necessary for their maintenance enforced. Nor is the constitutional lawyer concerned with the problems of the limits of State interference and the theory of legislation which properly appertain to the political philosopher. But he is directly concerned with the constitution of the executive government, the powers of the Crown, of ministers, and the civil service; the composition and authority of the legislature; the position of the judiciary ; and the inter-relation of these great branches of the administration of the State. All these authorities have rights against one another and against the general mass cf the people, and the people in their turn have rights against the State. His task is not primarily historical, but he has constant need of history to explain the actual developments which he attempts to describe. Moreover, he must trespass in some measure into the realms of international law, for, though the rights of States among themselves are not within his sphere of interest, a vital element of the constitution of a State depends on its necessity of having an organisation to deal with other States. 3

4 The Nature of the Constitutional

Complex as constitutional law always is, its complication is greatest by far in the case of the Empire, which has grown rather by hazard than by conscious purpose, developing in the process protean shapes of constitutional relations. The process has been rendered possible by the British willingness to compromise and reluctance to insist on strictly logical results. Lord John Russell, in 1839, proved conclusively that responsible government was impossible for any Colony, but proceeded in effect to concede all that the Colonies could then desire or assimilate. The Dominions have grown until in a very real sense they are sister nations to whose help the Prime Minister appeals earnestly when European allies falter and retire before the menace of Turkish attack, although in strict constitutional law they are still dependencies. When established categories fail to provide a due place for Indian progress, new ideas are evolved and made in some measure effective. If Malta is too vital an element in naval defence for full control of the islands to be entrusted to the Maltese, a clever compromise affords just satisfaction to Imperial and local needs. If Dominion status does not precisely suit Ireland, a new form of relationship can be devised. The same political skill manifested itself at an earlier date in the sphere of the constitution of England itself, and its inheritance in the Dominions is attested in the creation of institutions so disparate, yet each so effective in its own way, as the federations of Canada and the Commonwealth of Australia and the semi-federal constitution of the Union of South Africa. Less ingenuity has perhaps been shown in the realm of municipal and local government, a topic which, though it falls essentially within the sphere of constitutional law, is yet of relatively minor importance, and hence will not receive treatment in this work.

The possibility of the development of so flexible and ingenious a network of relations has been in large measure due to the avoidance of undue legalism. The English constitution, which lies at the root of all the constitutionalism in the Empire, was a creature of gradual development, and it happily escaped formal definition in any form of fundamental legislation which could not easily be altered ; what was enacted in one session of Parliament might be repealed in the next, or by any subsequent Parliament -~by

Law of the Empire 5 a simple act, so that no Parliament could fetter the actions of its successor. The Courts were thus exempted from the harassing duty of endeavouring to apply legal principles to the growth of the political organism, a process inimical to progress and tending to weaken the respect felt for the judiciary, which is inevitably in some measure thus involved in political conflicts. The principle of ministerial responsibility is one which could hardly be enacted in set terms without creating attempts to bring to bear on ministers the legal weapons of injunction and mandamus, and it would have been equally dangerous if any effort had been made at the outset of responsible government in the Colonies to lay down in precise terms the nature of the freedom conceded. The omission, which excites the petulant complaints of continental jurists, accustomed to written constitutions and precise definitions, was not accidental. So able a statesman as Mr. Gladstone, in his early connection with colonial affairs, would have been glad to see defined in precise form the subjects on which the Australian Colonies might legislate, unfettered by the imperial power of intervention, but with a profound statesmanship the unwisdom of the task was finally admitted.

In the result, therefore, the constitutional law of the Empire falls into two different categories, rules of law, which are legally binding and which in many cases can be enforced by the law courts, and conventions which in themselves are without legal force, and of which the law courts can take no notice. These conventions cover the most important of constitutional relations and utterly transform the practical meaning of legal enactments. The power of the King on advice of the Imperial Government to disallow any Dominion act is legally intact; constitutional custom has made it obsolete, or nearly so; similarly the right of the King to withhold assent from any Imperial: act is unquestioned, though to exercise it would be revolutionary, and the Governor in a Dominion stands in a like position towards any Dominion bill enacted by the Parliament. Rules that are conventional in the United Kingdom are sometimes formally included in the laws on which Dominion constitutions rest. The annual holding of a session of Parliament rests on usage in the former case, on law in the Dominions. That ministers of cabinet rank must be