THE CONSTITUTION OF CANADA. BY PROF. W. P. M. KENNEDY. New York: Oxford University Press.

THE IMPERIAL CONFERENCE OF 1923. Summary of Proceedings and Appendices. British White Papers Cmd. 1987 and 1988.

LAUSANNE CONFERENCE AND TREATY. Correspondence between the British and Canadian Governments. Sessional Paper No. 232 of the Canadian Parliament, and British White Papers Cmd. 2,146.

ABUNDANT evidence is now available that in the evolution of that unique political entity, the British Commonwealth, foreign affairs have supplanted domestic as the instruments of change in its structure and internal machinery. The end of the nineteenth century found the Dominions completely victorious in their long but peaceful struggle for emancipation from the tutelage of Downing Street in the domestic sphere, and possessed of complete autonomy in the management of their internal social, economic, and political affairs, though still content to entrust to the British Government the supervision and control of their relations with other countries. There exists, however, a very dim borderland between domestic and foreign affairs, and the acquisition of separate treaty-making powers in the commercial and social sphere, such as Canada utilized for the conclusion of the Taft-Fielding reciprocity pact of 1911, represented a partial inroad by the Dominions into the field of international relations. But of that particular branch of statecraft on which hang the issues of peace and war, the British Government retained undivided control and as late as the Conference of 1911 Premier Asquith bluntly declared that the responsibility for the direction of foreign policy could not be shared with the Dominions, although their advice would always be welcomed. Sir Wilfrid Laurier, who had toyed at one time with the doctrine of colonial neutrality under certain circumstances, accepted this dictum without protest and reinforced it with the declaration that when Britain was at war Canada was at war. Up to this point the Dominions were subordinate communities possessed of no status in the international field.

The reasons for this tacit acquiescence in British control over what most communities regard as the first, last, and most vital of all interests, are not hard to seek. In the struggle for local autonomy Canada, at once the oldest, nearest, and most populous of the British Dominions, had invariably been the pioneer and her sister communities had merely followed along the trails which she had blazed. But in the people of Canada, as of the United States, a strong and justifiable sense of geographical security had bred a confirmed indifference to foreign contacts. The Canadian mind could not contemplate anything worse than temporary friction with its only territorial neighbor, the United States; commercial relations with other foreign countries were meagre; and it seemed like the simplest and cheapest solution, as long as the right to negotiate by Canadian agents a certain class of treaties dealing with social and economic problems was conceded, to leave the wider sphere of foreign policy to the management of the British Government which possessed complete machinery for the task and with rare exceptions had shown an intelligent sense of trusteeship for Dominion interests. As a corollary, the Dominions, while charged with the protection of their own shores, were absolved from all obligations to make any but voluntary contributions, which were forthcoming on a modest scale, for the general defense of the Empire. It was a happy arrangement, for it left the Dominions free to devote all save a fraction of their revenues to internal development and as long as Europe was the chief breeding ground of international trouble British Ministers were best fitted to cope with its recurring effervescences.

But when the German menace loomed up, and Britain began to feel the acute need of assistance from the Dominions to maintain her naval supremacy, the situation changed. In 1912 the Premiers of the Dominions were for the first time given access to the arcana of the Foreign Office, invited to express their views, and promised a share of control in the direction of foreign policy in return for help in the fierce competition of armaments then prevailing. The Great War followed, and among other results it brought to an end the old fabric of the British Empire which had grown up in the nineteenth century. In its place there has since been slowly rising a new structure built out of the same materials but fashioned on a completely different plan.

The termination of the war found all the British Dominions deeply involved in the complex problems of the international melée and vitally interested in their equitable solution on a permanent basis. The part played by the Dominions in the ultimate victory precluded any denial of their claim to a definite share in the making of the peace settlement, but the late Mr. Arthur Sifton once confided to the House of Commons at Ottawa the fact that the separate representation of the Dominions on the British delegation at Paris was only secured in face of the keen opposition of some of the more conservative elements in London. However, it was won, and the right of the Dominions to a determining voice in British foreign policy was firmly established. To promote the continuous utilization of that right there was established an arrangement whereby regular information about both the general trend of British foreign policy and the course of particular negotiations was conveyed to the Dominion Governments. But it was freely recognized that there existed no adequate machinery for the effective exercise of any cooperative control over British policy by the Dominions and plans were laid for a special constitutional conference to deal both with this particular problem and the general political relations of the units of the Empire. It was expected that the Conference of 1921 would undertake this task, but when it met most of the statesmen present, and especially Mr. Lloyd George and Mr. Hughes of Australia, had become appalled at the seeming difficulties of the enterprise and combined to smother quietly the projected investigation. At the regular meeting of that Conference some minor adjustments were made but a policy of drift was adopted. The British Foreign Office continued to reach decisions about the foreign policy of the Empire and on the strength of the regular informatory despatches which it sent to Ottawa, Cape Town, and elsewhere and which rarely evoked any comment, critical or otherwise, regarded all the Dominions as committed by implication to the support of the policies which it had evolved. In vain the Round Table uttered warnings that the Dominions were being blithely committed to undertakings and settlements to whose possible fruits their Cabinets had given no adequate consideration, and that future requests to honor the obligations thus entered upon so lightly might easily confront them with the alternative of embarking upon unpalatable military adventures or withdrawing from the Commonwealth.

The first warnings of serious flaws in the existing system came in connection with the Near Eastern crisis in September, 1922, when the Turkish Nationalist army, flushed with victory over the Greeks, was threatening to wrest control of the Dardanelles from the British army of occupation, and war seemed imminent. There was general agreement about the indiscreet character of the special summons to arms which Mr. Winston Churchill, largely on his own responsibility, sent to the Dominions, but the right of the British Government to call upon the Dominions to honor obligations to which they were undubitably committed by their own representatives could not be gainsaid. But, plainly, both the peoples and parliaments of the Dominions had been denied any but the most cursory knowledge of the nature of these obligations, and in Canada at least there was profound dismay at the sudden prospect of immersion in another European war. This disaster was happily averted, but the episode provided an illuminating revelation of the farcical character of the arrangements whereby the Dominions were supposed to exercise a decisive vote in the shaping of the British foreign policy.

When the Imperial Conference met in 1923 there inevitably took place some post-mortems over different episodes which had occurred since the last gathering in 1921, and there was a prolonged discussion about the treaty-making powers of the Dominions. Naturally the general question of the machinery whereby the units of the British Commonwealth were supposed to achieve a common foreign policy came up for examination and there was general agreement among the overseas delegates that experience had revealed a number of very serious flaws in it and that the methods of communication were particularly unsatisfactory. The Conference agreed to give its sanction to certain changes, of which Canada had been the chief innovator, and ultimately its conclusions upon the subject of the internal diplomatic machinery of the Commonwealth were embodied in a resolution.

This resolution recommended that the governments of the Empire should not negotiate any treaty "without due consideration of its possible effect on other parts of the Empire, or, if circumstances so demand, on the Empire as a whole," and that in negotiating any treaty they should take steps "to ensure that any of the other governments of the Empire likely to be interested are informed, so that if any such government considers that its interests would be affected, it may have an opportunity of expressing its views . . ."

Superficially these arrangements bore every promise of offering a good working basis for cooperation in the field of foreign affairs, but in the year since the conclusion of the Conference which endorsed them, there has been a steady accumulation of evidence that in practice the system is far from satisfactory and must be subjected to radical alterations unless misunderstandings and friction between partner units of the Commonwealth are to become chronic and eventually lead to some serious quarrel. It is true that so far Canada has been solely responsible for each case of friction and dissension, and there is ground for suspicion that domestic political motives may have played some part in the attitude of her Government, but there is no reason why the South African or Australian Governments might not be responsible for the next disagreement.

The first serious trouble arose in connection with the ratification of the Treaty of Lausanne, though its source dated back to the autumn of 1922 when plans were afoot to end the Near Eastern imbroglio by a peace. The precedents of Versailles and Washington would have ordained that British interests be entrusted to a Commonwealth delegation to which the Dominions would contribute members, but Lord Curzon found himself confronted by a revival of a French demand (made on at least one previous occasion but foiled by Mr. Lloyd George) that France's North African colonies should be accorded Dominion status and given separate representation at the Lausanne Conference. Apparently affrighted at the prospect of dealing with Franco-Moslem delegates and of awkward repercussions in India and Egypt, Lord Curzon grasped hurriedly at the simplest solution, the exclusion of the British Dominions from the invitation list to Lausanne; and he invited acquiescence from the Dominion Governments, to whom he communicated confidentially the text of the French demand. He obviously believed that he had secured this acquiescence and although Mr. Mackenzie King, the Canadian Premier, now denies that he gave him any mandate to represent Canada, the sentence "Our Government has no exception to take to the course pursued by His Majesty's Government" in a despatch dated October, 1923, which he avers was framed with a desire to assist the British Government in a serious difficulty, might easily be construed as assent. There were also added in this despatch some formal reservations about the rights of the Canadian Parliament to review the terms and obligations of any treaty which might be concluded at Lausanne, a healthy practice which had been inaugurated by Sir Robert Borden.

Now the Treaty of Lausanne was clearly within the category of pacts in the negotiation of which the British Dominions were entitled to a voice. Lord Curzon has very properly been assailed in the British Parliament and press for folly in yielding to the demands of the French, but in Canada even more severe criticism has been directed against Mr. Mackenzie King, who is also Minister for External Affairs, for condoning his weakness and not replying that the establishment of peace with Turkey was a direct interest of Canada, that the principle of according the British Dominions an active share in the settlement of foreign policies and the framing of treaties had been firmly established, and that the reversal of the precedents of Versailles and Washington could not be tolerated even for the sake of soothing M. Poincaré. In that event, a Canadian member would have been added to the British delegation and the procedure followed with success at previous conferences would have been continued.

However, Lord Curzon went ahead on the complacent assumption that he spoke for all the realms owning allegiance to George V. The negotiations proceeded, adequate and regular information about their progress was conveyed to the Dominion Governments, and the Treaty of Lausanne emerged. Its merits were explained by Lord Curzon to the Imperial Conference in October, 1923, and while Mr. King asserts that he hinted at difficulties about concurrence on the part of Canada, the report of the proceedings contains no record of any dissentient protest. Accordingly, when the British Colonial Office invited concurrence by Canada in the act of ratification, there was considerable surprise and apprehension in London when Mr. King intimated inability to concur. The terms of the despatch sent from Ottawa on March 24 were quite definite:

"The Government of Canada not having been invited to send a representative to the Lausanne Conference and not having participated in the proceedings of the Conference either directly or indirectly, and not being for this reason a signatory to the Treaty on behalf of Canada . . . my Ministers do not feel that they are in a position to recommend to Parliament the approval of the peace treaty with Turkey and the Conventions thereto. Without the approval of Parliament they feel they are not warranted in signifying concurrence in ratification of the Treaty and Conventions. With respect to ratification, however, they will not take exception to such course as His Majesty's Government may deem it advisable to recommend."

Further, Mr. King, bestirred by a debate at Westminster and some veiled strictures upon his conduct by Mr. Ramsay MacDonald, reinforced the foregoing despatch by a statement to the Canadian Parliament on April 2nd in which he reiterated the sentiments of the despatch and declared that "the Treaty does not impose obligations upon Canada."

Now if the words of Mr. King's despatch and speech mean anything, the Canadian Government had at this time decided to contract Canada completely out of the Treaty of Lausanne and lay down the principle of limited liability in the management of the foreign policy of the Commonwealth. For this adventure some motive was probably derived from the domestic political situation in Canada. In order to appease the Progressive Party the Government had committed itself in the Speech from the Throne to tariff reductions highly unpalatable to the strongly protectionist element among the Quebec Liberals, and Lord Curzon's weakness had presented a unique opportunity for a nationalist gesture which would please French-Canada, always suspicious of European commitments, by raising the whole question of Commonwealth relations, and divert attention from the fiscal issue.

However, the British Government seems to have taken grave alarm at this threatened breach in the political solidarity of the Commonwealth, and extensive correspondence followed between Ottawa and Downing Street. Its terms have not been revealed but it is not improbable that Mr. Ramsay MacDonald, apprehending charges by British Tories that the appearance of a Labor Government at Westminster had driven Canada out of the Commonwealth, and scenting in the Canadian attitude an encouragement to American advocates of nationalist isolation, pressed Mr. King very firmly for an exact definition of his principles of "limited liability." If Canada was to have no responsibilities about the Dardanelles, was she to have none at all in Europe, none in Asia, none in the Pacific Ocean, but merely to relapse into the complacent isolation which Senator Hiram Johnson prescribes for the United States?

If Mr. MacDonald took this line he raised graver issues than Mr. Mackenzie King, whose political position is at the best delicate, cared to contemplate. At any rate, the British Foreign Office soon afterwards issued a semi-official communique to the effect that Canada had agreed to accept the Treaty, and in a full-dress debate Mr. King admitted its validity in these words: "Legally and technically Canada will be bound by the ratification of the Treaty; in other words, speaking internationally, the whole British Empire in relation to the rest of the world will stand as one when this treaty is ratified."

For the mollification of his nationalist supporters who deplored his retreat from his earlier position, the Canadian Premier indulged in some obiter dicta about the inferior quality of legal as compared with moral obligations, which, he argued, were in the case of the Lausanne pact lesser in degree than those derived from the treaties of Versailles and Washington. In this debate, Mr. Meighen, speaking for the Conservative opposition, attacked Mr. King for abandoning the ground gained by the Dominions since 1914 and reducing Canada to her old colonial status. He criticised the terms of the Lausanne Treaty and complained that Canada was now bound to dangerous and unsound commitments which the presence of her own representative at Lausanne might have obviated by insisting on a modification of their terms. He also descanted upon the danger of excessive European commitments for Canada and warned British statesmen never to forget that the Commonwealth was a world rather than a European power, and that it would always be difficult to secure the enthusiastic cooperation of the overseas Dominions in further European adventures.

Here Mr. Meighen put his finger upon the practical elements of the situation. Successive Canadian Governments have tried to secure a modification of Article X of the Covenant of the League of Nations, acting in deference to a genuine popular distrust of heavy commitments in European politics. They have found procedure and forms, as in the case of the Lausanne episode, a very convenient weapon for their purposes; but the real objection is to the actual obligations involved. This coolness on the part of the Dominions toward commitments in Europe is gradually being realized in Britain, and there is developing there a school of political opinion which agrees with Mr. Meighen in insisting that the British Commonwealth's real interest lies outside Europe and that the proper policy is a speedy divorcement from the European melee and concentration upon the better political and economic organization of the Commonwealth. The MacDonald Government, however, is internationalist rather than Imperialist in its sympathies, and while there is some basis for the pleas of the anti-European school, the economic interests of Britain, if nothing else, prevent contemptuous indifference to the state of affairs in Europe.

With Canada's concurrence, the Lausanne episode ended. But it left a feeling of disquietude in London, and during one of the debates at Westminster Mr. Ramsay MacDonald intimated his intention of setting up a special committee to explore the problem of Commonwealth relations and in effect to perform the duties which had been assigned to the abandoned special constitutional conference.

But before any steps could be taken to organize this body further trouble developed in connection with the Interallied Conference on Reparations. Once more there arose difficulties about the composition of the British delegation and there is a suspicion that it was with the object of soothing French susceptibilities once more that Mr. Ramsay MacDonald invited the Dominions to be content with the presence of representatives in an advisory capacity. Objections were at once raised by Canada and other Dominions which were all interested in the reparation problem, and a preliminary conference was held in London between British Ministers and the Dominion High Commissioners to settle the personnel of the British delegation. But it failed to reach a satisfactory solution, probably because the British feared that the intellectual quality and diplomatic experience of the nominees of the Dominions available on the spot would be inadequate for the very delicate and complicated negotiations of the Conference.

There were further exchanges with Ottawa and the other capitals, but Mr. King had evidently learned his lesson and determined to expose himself to no more charges that he had forfeited the ground won at Versailles and dragged his country back to a colonial status. Eventually, after considerable discussion and controversy, an agreement was reached to adopt the panel system first initiated at Versailles. On the panel are representatives of Britain and all the Dominions, but only three of its members can simultaneously sit at the conference table. Of these, one is always a Dominion representative and the result is that Senator N. A. Belcourt, the Canadian plenipotentiary, while he is consulted about every step in the negotiations, can only take his turn at the conference table with the other Dominion delegates. Mr. King represented his acceptance of this plan as a great concession, and obviously it is only a temporary makeshift, for the Dominions will not permanently agree to the principle that in the active part of a Commonwealth delegation the mother country should always have two delegates to their one.

This latest controversy has reëmphasized the need for a clarification of the internal problem of Commonwealth relations and Mr. J. H. Thomas, speaking for the MacDonald Government in a debate on July 29, proclaimed its resolute determination to conduct a thorough exploration of the whole situation and to seek by agreement a satisfactory solution which would obviate a recurrence of the recent disagreements and confusions. Mr. MacDonald had suggested a special committee, but Mr. Thomas spoke of a conference, and it is believed that the correspondence now passing between the various governments on the subject proposes a round table gathering of representatives not merely of governments but of all political parties, with the aim of giving permanence to any arrangements agreed upon.

It is natural that problems of such importance to all British subjects should have produced a voluminous literature of comment and interpretation by writers both in England and in the Dominions. Prof. Berriedale Keith, whose tenure of the Chair of Sanskrit at Edinburgh University has not diminished an interest acquired at the British Colonial Office in the constitutional problems of the Commonwealth, is known as the author of the two great standard textbooks on this subject--"Responsible Government in the Dominions" and "Imperial Unity and the Dominions." In his latest work "The Constitution, Administration and Laws of the Empire" he summarises the main conclusions of his earlier books and brings his survey of the problem down to the end of the Imperial Conference of 1923.

Prof. Keith is a convinced protagonist of the principle of Dominion autonomy, but he holds that the Commonwealth "offers as matters stand the most effective means of the development of autonomy without the burdens of complete independence and the loss of prestige involved." He believes that the immediate outlook for the Commonwealth is development along the present lines of autonomy, with the utilization of the League of Nations as the instrument through which the individuality of the Dominions and India can best attain expression without the inconveniences resulting from a break-up of the Commonwealth, and he argues that the existence of the League of Nations, which many British Imperialists dislike as tending to weaken the ties of the Commonwealth, indirectly supplies a motive which may be of great importance in promoting unity. In his view the resolution of the Imperial Conference of 1923 leaves untouched the control of the British Government over the conclusion and ratification of treaties, but there should never be any occasion for the exercise of the right of veto if the principles asserted in the resolution are respected by all parts of the Commonwealth in their negotiations. In common with his Canadian disciples (such as Prof. Kennedy) Prof. Keith rejects the idea both of Imperial Federation and an Imperial Council and believes that under present conditions no more effective machinery to secure cooperation in foreign affairs appears possible than the periodical meeting in conference of the Premiers of the Empire, supplemented by telegraphic communication and the regular supply of full confidential reports on foreign affairs by the British Government, which enable Dominion Governments to form their own opinions and in turn present their own views, besides guiding opinion in the Dominion Parliaments.

But recent events suggest the serious inadequacy of the present system of inter-communication, and the Round Table argues that its faults are due to its inherent inferiority to the plan of intercommunication now in operation between foreign governments. It points out that the strength of the international diplomatic system lies in its reinforcement of cable and mail correspondence with the personal contacts of diplomatic representatives, and it advocates the establishment of a special system of diplomatic relations between the partner units of the Commonwealth. Under such a plan the Dominions would each keep in London two High Commissioners, one performing the social and publicity duties now entrusted to the present High Commissioners, and the other selected for his diplomatic and political abilities. Each of the Dominions also would send to its other partners in the Empire a competent diplomatic representative who would perform much the same duties as do accredited envoys at foreign capitals. Prof. Keith offers no comment upon these proposals but suggests the desirability of making provision for the arbitration of disputes arising between the different British units, as there would be objections to referring domestic differences to the Court of International Justice.

Prof. Kennedy devotes the greater part of his book to a very comprehensive history of the development of Canadian autonomy, and only in the last chapter--headed "The Imperial Tie" --does he examine the problem of Commonwealth relations. He is a vigorous exponent of a theory which has found support among influential Canadian politicians like Mr. N. W. Rowell, to the effect that the theory of "constitutional right" which has been usefully employed to limit the prerogatives of the British Crown can be successfully applied to the wider field of Commonwealth relationships. He finds that insistence on what he regards as the antiquated doctrine of sovereignty, one, exclusive and indivisible, is the main obstacle to the evolution of the greater unities which political exigencies, as distinct from political dogma, require today; and he urges a general recognition that constitutional developments have gradually overlaid the old legal provisions defining Canadian inferiority with new conventions establishing the nationhood of Canada and her equality with Great Britain under the Crown. To him the former is the shadow, the latter the substance. The dead hand of the Austinian principle of sovereignty should not, he thinks, be allowed to interfere with the procedure built up by a succession of liberal changes.

But, unfortunately, French and American statesmen, who have a notorious partiality for the written word in such matters, would still be justified by an examination of the constitutional documents available in classifying the Dominions as subordinate political communities, no more entitled to full national status at international conferences than Algeria or Porto Rico. They simply cannot understand the peculiar ménage of the British Commonwealth nor rid themselves of the suspicion that it is maintained for the purpose of increasing the numerical strength of British delegations at international conferences. The cold truth is that Britain and the Dominions have dodged the responsibility of regularizing their new system in the eyes of the outer world and that the recent controversies are in essence the result of a thoroughly illogical attitude taken up by the component members of the British Commonwealth vis-à-vis the other nations of the world. The Imperial Conference now projected by the British Government will fail to reach any definite or adequate solution of its problems unless as part of the task it faces the duty of regularizing in the eyes of the rest of the world the new British Commonwealth which has arisen since the war.

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  • J. A. STEVENSON, Canadian correspondent of the Manchester Guardian and Parliamentary correspondent of the Toronto Star
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