Introduction to the Study of the Law of the Constitution. A. V. Dicey

certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to be allowed in local matters to legislate for itself. Parliament did, however, occasionally legislate for New Zealand or any other self-governing colony. Thus the existing English Bankruptcy Act, 1883, as a matter of fact transferred, as it still transfers, to the trustee in bankruptcy the bankrupt’s property, and

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      even his immovable property situate in any part of the British Empire,²⁵ and a discharge under the English Bankruptcy Act, 1883, was, and still is, a discharge as regards the debts of the bankrupt contracted in any part of the British Empire,²⁶ e.g. in New Zealand or in the Commonwealth of Australia. So again the veto of the Crown was, in one form or another²⁷ in 1884, and even later, used occasionally to prevent colonial legislation which, though approved of by the people of the colony and by the legislature thereof, might be opposed to the moral feeling or convictions of Englishmen. Thus colonial Bills for legalising the marriages between a man and his deceased wife’s sister, or between a woman and her deceased husband’s brother, were sometimes vetoed by the Crown, or in effect on the advice of ministers supported by the Imperial Parliament. No doubt as time went on the unwillingness of English statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-governing colony, increased. But such interference was not unknown. There was further, in 1884, an appeal in every colony from the judgments of the Supreme Court thereof to the English Privy Council. And a British Government would in 1884 have felt itself at liberty to interfere with the executive action of a colonial Cabinet when such action was inconsistent with English ideas of justice. It was also in 1884 a clear principle of English administration that English colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers. Nor had either England or the self-governing colonies, thirty years ago, realised the general advantage of those conferences now becoming a regular part of English public life, at which English ministers and colonial ministers could confer upon questions of colonial policy, and could thus practically acknowledge the interest of the colonies in everything which concerned the welfare of the whole Empire. Neither certainly did English statesmen in 1884 contemplate the possibility

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      of a colony standing neutral during a war between England and a foreign power.

      The relation of the Imperial Parliament in 1914 to a Dominion.²⁸

      This relation may now, it is submitted, be roughly summed up in the following rules:

       Rule 1

      In regard to any matter which directly affects Imperial interests the Imperial Parliament will (though with constantly increasing caution) pass laws which apply to a Dominion and otherwise exercise sovereign power in such a Dominion.

      But this rule applies almost exclusively to matters which directly and indubitably affect Imperial interests.²⁹

       Rule 2

      Parliament does not concede to any Dominion or to the legislature thereof the right—

      a. to repeal [except by virtue of an Act of the Imperial Parliament] any Act of the Imperial Parliament applying to a Dominion;

      b. to make of its own authority a treaty with any foreign power;

      c. to stand neutral in the event of a war between the King and any foreign power, or, in general, to receive any benefit from a foreign power which is not offered by such power to the whole of the British Empire.³⁰

      It must be noted that under these two rules the Imperial Parliament does retain, and sometimes exerts the right to legislate in regard to matters which may greatly concern the prosperity of a Dominion, and also does in some respects seriously curtail both the legislative power of a Dominion Parliament and the executive power of a Dominion Cabinet. As long, in short, as the present state of things continues, the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament.

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       Rule 3

      The Imperial Parliament now admits and acts upon the admission, that any one of the Dominions has acquired a moral right to as much independence, at any rate in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire.

      Take the following illustration of the extent of such internal independence:

      Parliament does not (except at the wish of a Dominion) legislate with respect to matters which merely concern the internal interests of such Dominion, e.g. New Zealand.³¹

      The legislature of any Dominion has within the territorial limits of such Dominion power to legislate in regard to any matter which solely concerns the internal interest of such Dominion.

      The power of the Crown, i.e. of the British ministry, to veto or disallow in any way³² any Bill passed by the legislature of a Dominion, e.g. New Zealand, is now most sparingly exercised, and will hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a British ministry, will now not veto or disallow any Bill passed by the legislature of a Dominion on the ground that such Bill is indirectly opposed to the interests of the United Kingdom, or contradicts legal principles generally upheld in England, e.g. the principle of free trade.

      The British Government will not interfere with the executive action of the Government (e.g. of New Zealand) in the giving or the withholding of pardon for crime, in regard to transactions taking place wholly within the territory of New Zealand.³³

      Any Dominion has now a full and admitted right to raise military or naval forces for its own defence. And the policy of England is in the main to withdraw the English Army from the Dominions and to encourage any Dominion to provide for its own defence and to raise

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      for itself a Navy, and thereby contribute to the defensive power of the British Empire.

      The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council.³⁴

      The Imperial Government also is now ready at the wish of a Dominion to grant to such Dominion the power to amend by law the constitution thereof though created under an Act of the Imperial Parliament.³⁵

       Rule 4

      The habit has now grown up that conferences should be held from time to time in England, at which shall be present the Premier of England and the Premier of each Dominion, for consultation and discussion on all matters concerning the interest and the policy of the Empire, and that such conferences should be from time to time held may now, it is submitted, be considered a moral right of each Dominion.

      These conferences, which were quite unthought of thirty years ago, and which did not receive their present form until the year 1907, mark in a very striking manner a gradual and therefore the more important change in the relations between England and the self-governing colonies.

      The answer then to the question before us³⁶ as to the difference between the relation of England (or in strictness of the Imperial Parliament) to the self-governing colonies³⁷ in 1884 and her relation to the Dominions in 1914 can thus be summed up: At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But English statesmen at that

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      date did intend to retain for the Imperial Parliament, and the Imperial Government as representing such Parliament, a real and effective control