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The Sovereignty of the British Dominions1: Law Overtakes Practice

Published online by Cambridge University Press:  01 August 2014

W. Y. Elliott
W. Y. Elliott*
Affiliation:
Harvard University
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Extract

It is interesting that this work by Professor Keith, who is acknowledged everywhere to be the most authoritative of the commentators on the constitutional system of the British Empire, should have appeared at the very moment when the Conference on Dominion Legislation and Merchant Shipping Laws began its sittings in London in October, 1929. If it was intended to guide their deliberations, the publication of the Report of the Conference in February, 1930, shows how widely a conservative statement of the existing law and practice will differ from the new structure of Dominion autonomy, once the Report is accepted by the Imperial Conference, by the Parliament in Great Britain, and by the legislatures of the Dominions. For where Professor Keith saw in the “equal status” of the now classic Balfour Report of 1926 only “exaggerated language,” “careless phraseology,” and “rhetoric,” the Conference took this “root-principle” seriously and applied it throughout. As the Conference contained all the most important legal advisers and civil servants of the governments concerned, besides four Dominion ministers, its report will almost certainly be accepted by the Imperial Conference.

The experts recognized only one general principle from Professor Keith's work: that any changes which are to be made in the legal status quo in relation to certain subjects would have to be accomplished by acts of the British Parliament. These subjects are: (1) disallowance and reservation, (2) the extraterritorial operation of Dominion legislation, (3) the over-riding powers of British legislation laid down by the Colonial Laws Validity Act of 1865, (4) the right of Great Britain alone to legislate on royal titles and the succession to the throne, and (5) the making of basic changes in Merchant Shipping and Colonial Courts of Admiralty Acts.

Type
Foreign Governments and Politics
Information
American Political Science Review , Volume 24 , Issue 4 , November 1930 , pp. 971 - 989
Copyright
Copyright © American Political Science Association 1930

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Footnotes

1

The Sovereignty of the British Dominions, by Arthur Berriedale Keith. The Macmillan Company, 1929.

References

2 Cmd. 3479 (1930).

3 Cmd. 3479, p. 23, par. 66. Part v, par. 66, further denies that this proposed act is meant to authorize federal intrusion upon the right of the states or provinces in Australia or Canada. The status quo in this respect is to be maintained until a change is requested by the “proper authorities” in the Dominions. In a note accompanying the 1905 act for Canada, Great Britain indicated that these authorities must include the provinces. Quebec has so far blocked any sweeping changes.

4 Though he does not single out Australia, it is clear that Australia has sinned most. In the spring of 1930 it became clear that the city of London would not float further loans until Australia set its financial house in order. Sir Otto Niemeyer, of the Bank of England, and Professor T. E. Gregory were accordingly invited to come and prescribe remedies. Radical sections of the Australian Labor party talked repudiation, after the terms of the resulting recommendations were published, declaring that adoption of them by Australia would mean riveting on the chains of British capitalism. Even in official circles there was talk of “scaling down the war-debt” of Australia to the United Kingdom.

5 Op. cit., Introduction.

6 The appointment of the governor-general is an interesting example of the mixed nature of the “Crown.” Everywhere except in the Irish Free State, which suggests and practically controls the appointment of an Irishman for its governor-general, the practice is for the Dominion Office or the prime minister of the United Kingdom to submit several names to the Dominion concerned, usually with at least one peer. The king's personal influence is often felt in the list, and the Dominions almost invariably choose a peer. Canada is said to have indicated a desire to have Lord Willingdon's name suggested, though it was not on the original list. Mr. Scullin, Labor premier in Australia, recently broke all precedents by announcing that he had advised His Majesty to appoint Sir Isaac Isaacs, the Chief Justice of Australia, to be the next governor-general. So far, no appointment has been made.

7 First on the appeal in Lynham v. Butler in 1923 (the case was never heard), and lately in the case of Performing Rights Society v. Bray Urban District Council (1930). See Times Law Reports, April 19, 1930. No costs have yet been awarded.

8 Cmd. 3479, part VII, par. 125, p. 41.

9 See Cmd. 2768 (1927).

10 Op. cit., p. 64.

11 See the Report (Cmd. 3479), part V, par. 76-79, p. 25.

12 Ibid., part V, par. 81, p. 26. Newfoundland is proud of being “the oldest colony.”

13 Ibid., part V., par. 59-60, p. 21. On his return in May, 1930, to South Africa, General Smuts had the bad judgment to try to force on General Hertzog an interpretation of this agreement on unanimous action for laws on the royal succession, etc., to the effect that it precluded any Dominion from seceding without getting unanimous consent from the others. This aroused General Hertzog to approve an amendment to the Report asserting the right of secession. London Times, May 22, 1930.

14 He is even prepared to see in the fact that the Dominions have ratified the Kellogg Pact without reservations a possibility, taken in conjunction with their legal status in the League (where he allows them the full international personality otherwise denied), of asserting legal neutrality should Great Britain herself ever go to war in defense of the British “Monroe Doctrine” asserted by Sir Austen Chamberlain. Op. cit., pp. 469-470.

15 Cmd. 3352 (1929). See the author's “Riddle of the British Commonwealth,” Foreign Affairs (American), April, 1930Google Scholar.

16 A.C. 1927, p. 674. The British Government agreed with the Irish Free State that the Treasury Minute had been wrongly construed by the Judicial Committee. The Irish Free State technically accepted the decision by paying the civil servants the increased compensation in question, but the British Treasury footed the bills.

17 A.C. 1930, Henrietta M. Edwards et al. v. Atty. Gen. of Canada, raised by an advisory opinion of the Canadian Supreme Court under Section 24 of the British North America Act of 1867.

18 A.C. 1926, p. 486. This decision, declaring a Canadian statute ultra vires as an infringement of the prerogative right of appeal, raised a storm.

19 This arrangement has now been terminated by the appointment of Mr. Thomas to hold the single office of Secretary of State for Dominion Affairs.

20 I do not profess to understand a mysterious deference to the function of “the British High Commissioner in the United States” as the future agency for establishing personal contact between the Dominion and Imperial governments (pp. 485-486).

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