FEDERATION THROUGH THE PRIVY COUNCIL TF we may legitimately derive
consolation from the tragedy of this war, we shall find it in the thought of what the war has done for the British Empire. Never was the Empire so closely united as it is now ; never were its myriad peoples conjoined in a common purpose as they are to-day. The 1.,rces making for unity were very potent before the war, but they have been immensely stimulated by the struggle. In the days of peace that now seem so remote comparatively f_.w people paid much attention to the problems of Empire. Now Imperial studies are rapidly gaining favour, and a large body of instructed opinion is genuinely interested in the fature development of the British Commonwealth of nations. We have an instance of the quickened pace at which Imperial rfiairs are moving in Professor J. H. Morgan's highly inter-, e.;ting Rhodes Lecture on "The War and the Empire," of this war, we shall find it in the thought of what the war has done for the British Empire. Never was the Empire so closely united as it is now ; never were its myriad peoples conjoined in a common purpose as they are to-day. The 1.,rces making for unity were very potent before the war, but they have been immensely stimulated by the struggle. In the days of peace that now seem so remote comparatively f_.w people paid much attention to the problems of Empire. Now Imperial studies are rapidly gaining favour, and a large body of instructed opinion is genuinely interested in the fature development of the British Commonwealth of nations. We have an instance of the quickened pace at which Imperial rfiairs are moving in Professor J. H. Morgan's highly inter-, e.;ting Rhodes Lecture on "The War and the Empire," which was delivered in the University of London in November, 1915, but was not printed till recently hi the Law Quarterly Review. In the interval of two years the formation of Mr. Lloyd George's select War Cabinet, and the temporary addition to it of the Dominion Premiers forming an Imperial War Cabinet while the Imperial War Conference was sitting in London, have gone far to meet some of the lecturer's suggestions, visionary as they may have seemed when the lecture was first given. It is worth while to consider those proposals in some detail. Professor Morgan maintains that we must draw the bonds of Empire closer, not so much because this is intrinsically desirable, but rather because it can only be postponed at our peril. International law, he thinks, is now an illusion ; the Germans have deprived it of all reality by their monstrous cruelties and sophistries. He is inclined to agree with the French author of The Wars of Hell that "in future wars there will be no real neutrals." At any rate, he says, "we can be sure of one thing—the future will witness the development of great States, more powerful, more self- contained, more 'national,' more highly integrated politically. And among those great political commonwealths the British Empire will be the foremost." Professor Morgan reminds us how the Dominions began to establish their navies and their land forces when our warships were withdrawn from oversea stations and concentrated-in the North Sea as the German menace became more and more threatening. In the Dominions as at home this was no militarist movement, but was purely defensive in character. There, as here, each Navy and Army were dependent upon and controlled by a democratic Parliament. The Dominions were not bound to assist us with a single ship or a single battalion, and in India, the greatest reservoir of man-power, recruiting was and still is voluntary. The outbreak of war showed in an instant that we had been right in trusting to the loyalty of the kindred nations within the Empire. They came forward with offers of all that they could give, in men and money and supplies, for the defence of the Empire. They had not taken part in the deliberations preceding the declaration of war, but they accepted their share of the responsibility as cheerfully as if they had been consulted beforehand. All the world knows how splendidly they have co-operated with us in the West, in South-West and East Africa, at Gallipoli, in Egypt, and in the Pacific. But they as well as we are fully conscious that their co-operation in any future war must not be tendered or sought after the war has begun. The British Government cannot continue to bear the whole and sole responsibility for peace or war. "We must share that. responsibility with the rest of the Empire," said Sir Robert Borden three weeks before this war began, "or we must in the end assume it for ourselves."
A change in the relations of the Dominions to the United Kingdom is foreshadowed. Every one admits it. But there is as yet no agreement as to the precise form which the change will take. Men have talked and written much about Federation, vaguely in past years but more definitely of late. Yet the obstacles -are great, and do not diminish as we examine them. Professor Morgan hints that Federation in the Dominions has destroyed the possibilities of Imperial Federation, as exemplified in a Federal Parliament, because the Dominions are now too powerful to dream of devolving any. of their rights on an Imperial Legislature. He recalls the project which, on the basis of one member for every two hundred thousand white inhabitants, would have given the United Kingdom two hundred and twenty representatives in a Federal Par- liament, as against thirty-seven from Canada, twenty-five from Australia, and seven from South Africa. Nothing came of that. If India were to be included, what representation could she have, and how would it be given ? The Pro- tectorates, vast territories whose inhabitants are "British protected persons without being British subjects," present another almost insoluble problem, whether they are included in a Federal scheme or left outside it. The relations of the British Ministers far India and for the Crown Colonies and Protectorates to a Federal Parliament would be hard to define. Professor Morgan prefers to try an easier way :— " I think the true solution of the problem will be found, not in a Federal Parliament, but in a Federal Council. We must find our Imperial pdlity, not in a development on the legislative side, but in a development on the executive side. We must find it, if you will not think it treasonable of me to use a German term (our own political vocabulary is so exiguous), in an Imperial Bundearath, and not in an Imperial Reichatag. In such a body no questions of the relative numerical weight of the Dominions need exacerbate it, no problems of Indian electorates need perplex it. We already have material to hand in the Imperial Conference and the Committee of Imperial Defence. It is in these councils that India is asking to be heard." Since he wrote we have taken a step towards the British Runde-avail& or Federal Council in the shape of the Imperial War Cabinet which met last spring. The Dominion Premiers, with the exeeption of Mr. Hughes of A.ustralia, who was detained by a General Election, and General Botha, who sent his chief lieutenant General Smuts, joined the War Cabinet for several weeks and took part in its deliberations on equal terms. It must not be forgotten that the Dominions were at first somewhat uncertain how to regard this Imperial War Cabinet, and that they may not wholly approve of their Ministers becoming parties to executive decisions of which the public in the Dominions has no foreknowledge. In the Round Table for September last a critical view of the enlarged Cabinet was manifested in the letters from Australia and New Zealand. Still, the experiment may be continued on the present lines, with yearly meetings, and it is well under- stood that when peace negotiations are set on foot the Dominion representatives will, if it is at all possible, be invited to London to take part in a settlement which must affect for good or ill every portion of the Empire for many years to come. There can be no doubt that the Imperial War Cabinet is just as democratic a method of government for the Empire as a Federal Parliament would be, provided always that it is ordered and. endorsed by the Imperial democracies here and in the Dominions.
We have always felt instinctively, with Professor Morgan, that the best way of approaching the question is to work from existing, institutions. The Home and Dominions Governments have devised a method of co-operation, and therefore it seems well to develop that method as far as possible, instead of trying to build up something entirely new in the shape of a Federal Parliament which has never existed. We may point out that there is another very important link of Empire which has developed quietly and soberly into a most valuable institution, and that is the Judicial Committee of the Privy Council. More than thirty years ago we drew attention to the possibilities inherent in this Imperial Court—for that is what it really is, despite its cumbrous name. We may be permitted to quote from the Spectator of July 24th, 1886 :— "Enthusiasts for Imperial Federation, when they tell us that the only bonds whioh unite the Colonies and the Mother Country are bonds of sentiment, are somewhat too apt to overlook the Judicial Committee of the Privy Council. They forget that this, the latest offshoot from that fountain of justice which remains in the Royal Prerogative, is not only a significant and impressive symbol of Imperial unity, but a practical and actual bond, un- observed and uncommented on, only because it binds without friction and links without strain. In a Court, where three hundred million subjects of the Queen may be suitors, the Lords of the Council review decisions from every quarter of the globe. To the Orders that embody their reports, lands and cities as diverse as Victoria and Hong Kong, as Delhi and Quebec, submit without a sense of subjection and without a complaint. The codes and the customs they administer are as numerous and as dissimilar as the races that demand their justice. The customs of an Asian village community, or the doctrines of the Koran, may be within their purview in one suit • in the next, they may be considering judicially the Roman Law Which South Africa inherited from the Dutch. The customary law of ancient France, though discarded in the land that gave it birth, must still be applied by them to Canada and the Mauritius ; while from the Colonies of the Southern Hemi- sphere may come cases that cell for a knowledge of demurrers, and of those intricate forms of special pleading, that have ceased to be living law in England. No Court in the world, not even the Supreme Court of the United States of America, has a jurisdiction so vast and so many-sided. The great tribunal of the New World may claim to be more English, since in it the principles of the Common Law are always paramount ; but as a Court of Law, measured by the extent of its review, the Judicial Committee of the Privy Council has no rival in the world."
And, going on to show that the Judicial Committee could decide not merely upon the facts and merits of a case, but whether a law, passed by the Parliament at Melbourne or Brisbane or any other overseas capital, was valid or not, we added :— "There are students of our law and Constitution who, eager for a closer union with the Colonies, deem that it is by a strengthening of this already important link that the Federation movement might best gain its only practicable ends. The Privy Council IS that part of the Constitution which is already closely in touch with our fellow-subjects beyond sea. Why not, then, inerease the union at this paint of junction ? The Privy Conned, again, is that part of the Constitution which is most easily capable of development—the part where changes can be made without revolu- tion. Why not, then, take advantage of this power of development ? "
We recalled the fad that Lord Brougham, or the draftsman of the Act 3 and 4 William IV., cap. 41, establishing the Judicial Committee, provided that "it should be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any suoh other matters whatsoever as His MaiestY should think fit." By virtue of this comprehensive clause, the Committee had just acted as arbitrators in one of the ever-recurring disputes between the Legislative Council and the Legislative Assembly of Queensland, and had decided once for all that the Assembly's rights in regard to Money Bills were as exclusive and absolute as those of the British House of Commons. We concluded by saying that if English- men "care to reflect on this new and silent development of their Con- stitution, they will not only notioe that no great and healthy administrative or judicial body ever stops growing, hut they will be able to consider whether it is not possible that the Senatorial body which every one wants to get for the purpose of drawing the Colonies closer to the Mother Country, but nobody knows where to find without uprooting or revolutionizing 'the capital institu. tiona of the country,' may not, after all, exist among the Lords of the Council."
Let us add that while the Judicial Committee has been enlarged and glorified since then, the only practical steps taken towards closer union have been made through the Privy Council, of which the Imperial War Cabinet is, constitu- tionally, a part, since the Dominion Premiers sit there as Privy Councillors. The experience of a generation strengthens the case for Federation from the top.
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