The Law and the Constitution-1905




No policy of Imperial consolidation can afford to disregard the formal aspect of such a union, which is embodied in questions of constitution and law. For one thing, this law and constitution are for the moment the only overt links of Empire, and as such are the first things which a wider development must reckon with. For another, the forms which accompany growth have an organic relation to that growth. If the banks are too narrow, the stream will overflow; and if they are unduly wide, it will be lost among sands and lagoons. If the Empire is destined to grow into self-conscious unity, it is important to see that our theory is adequate to the facts, and that a false constitutional doctrine embodied in too rigid forms does not set a Procrustean barrier to expansion. The pivot of the Empire is the Crown, and the peculiar interpretation of prerogative which is enshrined in our constitutional law. Our constitution, with its elasticity and generous recognition of local freedom, has alone made the Empire possible. To-day, in the absence of other supports, it is still a stalwart bulwark against disintegration. Our law, again, has either been bodily taken over by the daughter nations, or, through the medium of the ultimate appeal court, embodies and interprets not only the constitutional charters of the Colonies, but several alien legal systems which survive within their borders. Whatever the defects of these controlling agencies, it is impossible to deny that they are profoundly vital to the present facts of union and to its future ideals.

If the Crown is the pivot in theory, in practice its functions are delegated to the British Cabinet, and indirectly to the British Parliament. The last has two separate aspects: it is a local parliament for the British isles, and an Imperial body acting as trustee for the Empire, This doctrine of trusteeship is historically correct, and it has the merit of exactly covering the existing practice. But obviously the dualism has its drawbacks, since only the first duty is seriously recognised in the election of Parliament, and the growing mass and complexity of the work are apt to give a perfunctory character to the execution of one duty, or the other, or both. An Australian or Canadian attending a debate in the Parliament which ultimately controls his destinies may spend days listening to the discussion of local questions before one Imperial consideration emerges; he may hear men without a suspicion of accurate knowledge pronounce glibly on matters of vast Imperial moment; he may see the Government which defends his shores and dictates to him on many essential questions turned out of office over some matter of English education or Irish land. And who will blame him if he reflects that this is a very negligent and ill-equipped trustee, and that when they are so cumbrously directed? If, again, an appeal to the Judicial Committee of the Privy Council brings him to town, the majesty of the Imperial law will seem poorly recognised in the shabby room up a stair in Downing Street. And the ordinary Englishman, on the other hand, may complain with equal logic that matters of great importance to himself are hurriedly discussed, because the men who were elected to look after them have to give their attention to Indian frontier defence or South African labour. The home reformer and the overseas Imperialist will tend to be equally dissatisfied with a constitutional doctrine which imposes upon certain old-fashioned machinery a task apparently too complex for its performance.

“The glories of our blood and state
Are shadows, not substantial things,”

From these obvious anomalies has sprung the dream of federation—an old dream as Imperial politics go, but still rather a dream than a policy. If it were possible, it would afford the most satisfactory solution for an Empire with strong divergent local interests, and no less insistent common problems; for all schemes of federation provide for complete local autonomy—home rule in its truest sense—and a common legislature and common executive for Imperial affairs. If we may borrow the usual metaphor of writers on federation, there are many centripetal forces at work. The old sentiment of kinship has been revivified by partnership in war, and the course of foreign affairs and the rise of other empires is increasing the sense of mutual dependence. Our people travel further, have wider interests, know more of the life of their relations oversea. Most significant of all, the vision of a united Empire is ceasing to be the perquisite of a few theorists, and is slowly penetrating local politics, so that in some form or other it is becoming, like the monarchy, a presupposition of all parties in the Colonies and at home. But though the leaven is at work, the time for actual union is still far distant. It may be doubted, to begin with, whether the federal ideal is the most suitable for an Empire which contains self-governing Colonies on the one hand, and on the other lands where autonomy is eternally impossible—dependencies which must always be directly administered by the Crown. The problem of our tropical possessions will always raise difficulties in the way of a type of union which in essence belongs to white men and the temperate zones. Again, federation means the creation of a new representative body, either out of the British Parliament, by adding to it colonial representatives, or independent of it, but on analogous lines. And the main political fact of recent years has been the growing unimportance of representative assemblies, constructed on the old lines, and a tendency to delegate power to the executive, without requiring a constant oversight by an elected body. The tendency has dangers as well as merits, but it is impossible to deny its reality; and in such circumstances it would scarcely be wise to add to existing anomalies by the creation of another impotent legislature. But even granting the value of the federal ideal, we are faced with two potent centrifugal forces—distance in space and disparity in development. Before federation or anything like it is possible, certain conditions must be present. There must be a comparatively uniform development throughout the Empire, the different parts which make the federal units showing a certain level of civic well-being. One State may be richer than another, or may base its wealth on different grounds; but all must have attained to a certain height of self-conscious national life, otherwise they will enter the federation on different terms, and instead of harmony will find abiding discontent. Some speedy means of transit, again, is necessary between the units of so vast an Empire, otherwise the federal machinery will break down from sheer exhaustion. To be compelled to come at the present rate of travel from Vancouver, or Wellington, or Johannesburg, to attend a common council, would strain the loyalty of any statesman. More vital still, the population of the Empire, and notably of Britain, must become more mobile and elastic, shaping their daily interests to accord with the wider conception of patriotism. Till a man sends his son as readily to a post at Melbourne or Ottawa as at Sheffield, till we see a continual coming and going between English and colonial society, till the rich man has his country house or shooting-box as naturally in the Selkirks or on the East African plateau as in Scotland, we shall not see those common interests which are necessary for a common administration. The impulse to federation exists, but it must be a thousandfold stronger before we can talk about the fact. Unity, in a word, must precede union. For the Empire is an organic growth, and any form we impose upon it must be adequate to its living movement, otherwise, instead of chain-mail, we shall have a strait waistcoat. Supineness is bad, but in this connection it is infinitely less dangerous than haste. The South African Federation Act of 1877 fell stillborn, because South Africa was not ripe for any such development. The incident has a moral in connection with any scheme for the federation of the Empire. A rigid system applied prematurely will either be inoperative, and so bring the ideal into discredit, or it will curb and choke the life, and produce monstrosity instead of growth.

But the movement towards unity is there all the same, and conditions are beginning to adapt themselves. Distances grow less yearly, and the insularity of both England and the Colonies becomes daily weaker. The centrifugal forces are slackening, and the centripetal are increasing. It is important to provide channels for the new current to flow in, for though, if it be a real current, it will sooner or later make a course for itself, yet the breaking down of barriers means delay, and involves a waste of energy which might have been better expended. It is an encouraging sign of the times that some of our foremost constitutional lawyers, such as Mr. Haldane and Sir Frederick Pollock, should have devoted much thought to devising methods of constitutional union. We have also taken certain tentative steps in practice. The Defence Committee has power to call colonial members to its deliberations; and, moreover, by cutting into the old autonomy of the Cabinet, it has paved the way for a further reform. More important still is the Conference of Colonial Premiers, which a resolution, passed at the last Conference in 1902, decreed should assemble at least every four years. Colonial contributions to Imperial defence, and the practice of communicating certain treaties to the Colonial Governments before signature, are instances of the new principle in our administration. All such developments are just and wise, because they proceed naturally from our present practice, and involve no crude departure. As I have said, if we are to retain the merits of an elastic constitution, we must introduce formal changes only when the reality has become adequate to the forms. The time may come for a clear break with the past, but it is not yet; all we need for the present is a development to correspond with new requirements, and capable in itself of a further extension; ‘The vice of the phrase “Imperial Federation,”‘ in Mr. Haldane’s words, ‘is that it ignores and contradicts the working hypothesis of the Imperial constitution. It is not to some new kind of written constitution, with a new description of common Parliament, that we have to look, but to gradual and cautious changes in the modes in which the Sovereign takes advice.’

It is tolerably clear, then, what any experiment towards constitutional unity must not do. It must involve no break with the past, no new constitutional doctrine, but must adapt the existing theory, which is more than adequate, if properly applied, to cover all the material we are likely to get for a generation. A brand-new Imperial constitution, disregarding the long-descended and delicate organism which we already possess, would be like a harsh chemical suddenly introduced into the system, and would prove a most potent means of dissolution. Nor must we disregard the elements of union we have ready to our hand. Because federation implies home rule, we must not begin by decreeing autonomy to localities which do not need it. To disjoin in order to unite may be metaphysically justifiable, but it is apt to be politically ruinous. It is also fairly clear what we must aim at. Our practice must be squared with our constitutional creed, and the Crown, which is the Imperial Executive, must be given such advisory assistance and such an extension of the area of its delegation as will increase its practical efficiency. The ‘trustee’ doctrine of the British Parliament may well be allowed to stand for the present, till facts compel a change. In effect, the self-governing Colonies are even now independent in their legislative powers, and there is no desire in the British Parliament to tamper with their freedom. It is only on the executive side, in the administration of services common to the whole Empire, that the ‘trustee’ doctrine might break down from sheer inadequacy of knowledge. This danger seems to demand some kind of advisory council as its remedy; but a mere consultative body of colonial statesmen, summoned to act as assessors to the Cabinet on certain questions, is scarcely the true solution. For it is essential that any council should have within itself the capacity for extending its functions when occasion arises; it should contain in its constitution the nucleus of wider powers. It must, therefore, have a share in executive control—a small share, necessarily, for the man who pays the piper calls the tune, and in most Imperial questions Britain, as financially responsible, will have the determining voice. But this state of affairs may change; it is even now in process of change; and any Imperial council should provide for the colonial members the rudiments of a share in the actual executive, which could be increased as the Colonies accepted a larger share in Imperial burdens. Further, it is important, if such a council is ever to grow into a real Parliament of the Empire, to see that the colonial members shall really represent their Colonies. If they are nominated by the Crown, they may be a most competent and valuable element, but they will not be representative. They will be unable to claim any mandate from the people. The advice we take, the share in the executive power we grant, will not be the advice or executive acts of the Colonies, but of a few independent colonial statesmen, whom their countrymen are not unlikely to regard, in Mr. Reeves’s phrase, as ‘fussy absentees.’

Advisory and executive functions, and a quasi-representation, seem to be three essentials in any experiment Till the principle has been generally accepted, detailed schemes are simply a waste of time, but it is worth while to get our minds quite clear on the necessary elements of any plan. From the discussions on the subject in recent years three separate proposals have emerged. The first is for the creation of a permanent Imperial Committee, a Committee of the Privy Council, to which the Crown, in the exercise of its prerogative right, could add such new Privy Councillors from the Colonies as it thought fit. This body would be purely advisory, and would at the same time have under it a permanent Bureau of Imperial Intelligence, which could amass and codify the kind of information in which we are all too deficient. The second is for an enlarged Cabinet, a kind of second Cabinet, for Imperial questions. The Crown can summon whom it will to its Cabinet, and in the old days it used its prerogative in the choice of its advisers. The same power could now be put into force, on the advice of Ministers, to enlarge the Cabinet by the addition of colonial statesmen. Such a body would have both advisory and direct executive powers, and would have the merit of possessing an infinite capacity for development should an altered relationship between the Mother Country and the Colonies make it desirable to separate the two Cabinets. But it would have no representative character, and no chance of acquiring one. This defect is remedied in a third scheme, the periodical Conference of Colonial Premiers. Its drawback is found in the fat that it has no permanent organization, no executive powers, and that it is quite unconnected with our constitutional machinery, a sporadic institution whose effectiveness depends mainly upon accident.

All three schemes are imperfect, but in combination they seem to supplement each other. The most promising, nucleus is the Conference of Premiers. For this is, in a true sense, ‘representative’—it is the Colonies in person, and of their own initiative, coming to our councils. Let us assume that such a conference took place every second year. The Premier of a Colony would attend it as representing the party in power for the moment; the Imperial questions which he would be called upon to discuss would already have been submitted, in some form or other, to his people—would possibly have been at issue in the last election, or the subject of debate in his last Parliament Instead of a ‘fussy absentee,’ we would have an authoritative exponent of colonial feeling. His ‘terms of reference’ would be wide enough to permit him to assent on behalf of his people to any Imperial scheme. The conference, on its assembling, would be merged in the Cabinet, who would, for the occasion, hold an Imperial session. As things stand, few Imperial questions are so urgent that they could not be postponed till such a session. The work done would include the devising of schemes of Imperial defence, possibly experiments in commercial federation, and the adjustment of the whole host of minor matters—shipping, copyright, naturalization, marriage laws, admission of aliens, postal arrangements, reciprocity in legal privileges—for which at present there is no workable machinery. At first it would probably have only such executive powers as the British Cabinet could confer upon it, but it would contain within itself the capacity of becoming an executive on a wide basis. Imperial Defence would mean, in time, increased colonial contributions, followed by a voice in the disposition of moneys, and followed, no doubt, in time by the appointment of colonial officials as Imperial executive heads. We cannot reasonably expect such contributions unless the contributors are sure that their own representatives will have a share in the management of them. At first the Imperial Cabinet would be only the British Cabinet with colonial members added for a special purpose; but, as the Empire developed and the centre of gravity changed, the two things would be able to separate, if necessary—the Imperial Cabinet remaining the right hand of the Crown for the administration of the Empire, and its parent, the old Cabinet, narrowing its functions to the government of these islands.[1]

Such a scheme would provide a kind of Imperial Executive, unambitious at first, but capable of infinite development But more is wanted. A background is needed to the episodic Cabinet, and this might be afforded by a permanent Imperial Committee of the Privy Council. It could consist of ex-members of the Imperial Cabinet, and such other Privy Councillors as it might be desirable to add. The body would be wholly consultative, discussing from time to time, between the meetings of the Imperial Cabinet, the same class of questions as would be dealt with there, and giving assistance to the British Cabinet on any matters which might require summary treatment As a staff to assist the Council in its deliberations. Sir Frederick Pollock’s suggestion of a continuous Imperial Commission is most valuable. A permanent Intelligence Department is one of the crying needs of the Empire. Such a body need not be composed only of officials. All who have any expert knowledge, and the desire to use it for Imperial ends, could contribute to the work. It would coordinate itself with other similar agencies, and its secretary would be a sort of permanent head of a new Imperial department.

Our machinery is, therefore, (1) an Imperial Cabinet, consisting, to begin with, of the British Cabinet enlarged by colonial Premiers, and meeting at stated times in an Imperial session; (2) an Imperial Committee of the Privy Council, advisory in its functions, and sitting more or less continuously. This, in turn, would be fed by (3) an Imperial Commission, or Intelligence Department, organized on a broad basis, and directed by a permanent secretary. The proposal is closely akin to one existing organization—the War Office and Admiralty, the Defence Committee, and the Secretary’s Department—which promises to work harmoniously enough, though it is that most difficult structure, an old institution shaped into conformity with a new theory.

No scheme, to be sire, is of any value at present, save as a basis for argument; but, if the underlying principle is accepted, it is not beyond the ingenuity of man to work out the details. And the cardinal point is that any constitutional union must proceed on the executive side, and not on the legislative. We must begin humbly with small emendations, waiting to see what new conditions the centripetal forces will create. Provided we have the rudiments from which unity can spring, we may well be content to move slowly, since ‘the counsels to which Time hath not been called, Time will not ratify.’ The ‘trustee’ doctrine is sufficient for our present needs, and by the time it is too narrow we shall have got enough material wherewith to fashion a new one. But it is also worth remembering that it is a very hard-worked doctrine, and that it will not always be equal to the strain. It is the part of wisdom, therefore, to lay down in good time the keel of the vessel into which we mean to change; for state-building, like shipbuilding, is a slow matter, and the man who waits without preparation till the end comes is apt to find himself in the water.

‘The Crown,’ said Coke in Calvin’s Case, ‘is the hieroglyphic of the laws.’ If that hieroglyphic is the constitutional foundation-stone of our Empire, those laws which expound it are an integral part of the basis. We in England, accustomed to regard English law as an amorphous historical growth applying only to England and Ireland, are slow to realize the way in which our insular system has spread its roots into the remote places of the globe. Our Colonies took it with them, and in most cases it is their domestic law, amplified by their own legislation; while in lands such as Canada and South Africa, where other codes were already established, it has absorbed such codes and moulded them by its own principles and canons of interpretation. It has spread its shadow over the old systems of India, and over the customary law of native tribes, until it is possible to-day to say that we have one great Imperial law, though many codes are included within its borders. The secret of this solidarity is the fact that there is in the last resort one appellate court for all. The House of Lords, indeed, is the final court for the British Isles, but for the Empire beyond the Judicial Committee of the Privy Council is the ultimate appeal The value of this legal uniformity is beyond estimate. It is open to our self-governing Colonies to relinquish their right of appeal, but they do not want to. For, however English statesmanship may be discounted by them, they have never shown a trace of contempt for English law. Indeed, on more occasions than one, it is the Appeal Court rather than the Cabinet which has been held in respect. Much is due to a succession of judges who showed in their work a breadth of outlook and a grasp of essentials which is not always associated with the legal profession. Men like Lord Cairns and Lord Watson were Imperial statesmen in the truest sense, and though there have been mistakes, no suspicion has ever entered the mind of our Colonies and dependencies as to the unswerving fairness and the complete efficiency of the tribunal. The legality of an order of the King in Council and the title of some Bengali native to land are submitted to the same impartial scrutiny. ‘Servatur ubique jus Romanum non ratione imperii, sed rationis imperio.’

The only drawbacks to the tribunal are that it is not complete and that it is externally unimpressive. We have no real Judicial Council of the King, since the House of Lords clings to certain appellate functions usurped far back in English history. Moreover, the House of Lords sits in an historic chamber with all the pomp and circumstance of a great court, whereas the other tribunal holds its session in the dingiest surroundings that ever belonged to a judicial body. Moreover, since the members of both courts are largely the same, the second is constantly depleted to make up the quorum in the first, and appeals of great importance to India and the Colonies are heard by a weak tribunal More judges are needed, and some amalgamation of functions. As it stands, the Judicial Committee has the broadest basis of any court in the world. During Mr. Chamberlain’s tenure of the Colonial Office the three great colonial units—Canada, South Africa, and Australasia—accepted our offer to send to the Council three representative judges, who sit at the hearing of such cases as specially concern their Colonies. But this is only the beginning. The court is still understaffed, and might profitably be reinforced by further Indian or colonial appointments. Indeed, there is no reason why a colonial lawyer should not regard a seat in the Council as the ultimate object of his ambition, just as the career of a Scottish lawyer culminates naturally in a law peerage. Such a carrière ouverte aux talents, combined with the revising powers of a strong court, would keep the colonial and Indian benches at a high level. At the same time, the Judicial Committee should be merged in the House of Lords, and the whole Appellate Court given the prestige of name and environment which at present pertains only to a part. Such an Imperial tribunal need not always sit in full session, for special work might reasonably be delegated to special Committees. But all sittings should be in the House of Lords, and all members of the court have the same status.

How vital a matter is this enlargement and perfection of our great Appeal Court one can only realize by reflecting what the law means to the Empire. Here we have one strong and unquestioned ground of union. We have the rudiments of a common council, and the ability to complete the system without any of the difficulties which attend legislative federation. Moreover, it is the courts which have the power of smoothing over the little roughnesses, and healing the breaches in the fabric of empire. The Scottish feudal tenure and method of construction of wills were harmonized and brought up to date without need of legislation by a long series of decisions in the House of Lords from Mansfield downwards, and certain disruptive elements in the Canadian constitution were counteracted by judgments of the Judicial Committee. To have the power of construing colonial laws and customs is to have the power to guide and restrain—to have, in effect, control of development. New constitutional experiments become safe and normal when interpreted in the last resort by a strong central court Mistakes can be corrected or ignored, antiquated débris cleared away, laws extended to correspond with changed conditions. And it is all done without noise or advertisement, and therefore without the popular clamour which attends self-conscious change. Such a task is surely worthy to be entrusted to the most splendid and representative court we can create, the more because such splendour and comprehensiveness are factors on which depends its success.

These few notes have been set down not as a new contribution to the question, but as an indication of the kind of solution of the problem to which the country seems to be feeling its way. Happily there are many able workers in the field, and in a little we may look to find English political thought impregnated with similar conceptions, for in our politics an idea must first become a truism before it can hope to be given effect to. It is necessary to steer a delicate course between the two dangers of undue haste and undue apathy. I have said enough, I trust, to show the reality of the first peril But the second is equally worth remembering. We are changing rapidly both as a nation and as an Empire, and while our present forms do well enough for the moment, because of their traditional elasticity, they will not last for ever, and the time will come when we must look for others. It is surely the part of wisdom to keep this in mind, and endeavour, while we have yet ample time, to prepare the way for a gradual revision. It is difficult to create armies and navies in the hour of need, and it is no easier to improvise a constitution.

Such an Imperial Cabinet would, of course, account to the British Parliament, though indirectly, by means of its colonial representatives, it would account also to the colonial legislatures. If legislative federation ever came into being, it would be responsible to the federal legislature.


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