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Published online by Cambridge University Press: 07 November 2014
According to the Balfour formula, enunciated by the Imperial Conference of 1926, the position of the United Kingdom and the dominions was that of “autonomous communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.” Equality of status as a declared principle was one thing: its application in constitutional procedure was another.
For equality of status did not necessarily mean equality of function. There was a deliberate ambiguity in the 1926 declaration. The United Kingdom and some of the dominions were satisfied with the principle of equality, for an attempt to define its meaning in institutional terms would reveal the disagreement which had been so carefully glossed over. The United Kingdom did not like to think of the dominions as functionally autonomous, for if they were, the sacred shibboleth of the diplomatic unity of the Empire would be undermined, and there were not many in the dominions who were prepared to bear the full burden of the bureaucratic, diplomatic, and military structure which real independence would bring. So, on the whole, ambiguity was preferred. Today, this ambiguity has been resolved. In fact, the Commonwealth in 1926 meant something rather different than it has now come to mean, though both meanings can be covered by the Balfour formula.
1 Friedrich, C. J., Constitutional Government and Polities (New York, 1937), 202.Google Scholar
2 Keith, A. Berriedale, The Dominions as Sovereign States (London, 1938), 24.Google Scholar
3 Nicholson, Harold, King George V (London, 1952), 479.Google Scholar
4 “I believe this matter has caused some searching of heart. For instance, I have been asked, does it really mean that in future the government of the Empire is to fall into the hands of the King's private secretary? Put picturesquely, are Lord Stamfordham and his successors to ‘run’ the British Empire? I cannot conceive a rational foundation for such a suggestion. Who then is to advise upon the appointment of a Governor-General, say, of Canada, Australia, or New Zealand? The answer—(I may be wrong)—seems as a matter of principle to me to be reasonably plain, namely, that, just as the King in matters affecting the United Kingdom takes the advice of the Prime Minister in London, so, in matters affecting Canada, he will take the advice of his Prime Minister in the Dominion, and in the case of Australia that of his Prime Minister in the Commonwealth of Australia, and so forth. And I see no difficulty in applying the principle in that way.” Jenks, Edward, “The Imperial Conference and the Constitution,” Cambridge Law Journal, III, 13.Google Scholar
5 Nicolson, , King George V, 481.Google Scholar
6 495 H.C. Deb. 5 s., col. 193, Jan. 30, 1952.
7 See Stewart, R. B., Treaty Relations of the British Commonwealth of Nations (New York, 1939), chap. VIII.Google Scholar
8 “It must be observed that in ratification of treaties the Queen's signature is only required where the instrument is concluded in head of state form—a rare phenomenon in modem diplomacy. Most of Canada's diplomatic undertakings are in the form of agreements, conventions and exchanges of diplomatic notes which are inter-departmental and inter-governmental, rather than between heads of state. These are concluded under the authority of full powers signed by the Governor General, and ratified by instruments similarly authorized.” Franck, Thomas, “The Governor General and the Head of State Functions,” Canadian Bar Review, 12, 1954, pp. 1087–8.Google Scholar
9 The appointment of Canadian diplomatic representatives abroad was the earliest example of attempts to adapt instruments to the spirit of the new constitutional procedures. The first Canadian minister to a foreign state, Mr. Vincent Massey, was appointed on December 7, 1926. He bore a commission signed by the King, countersigned by the Secretary of State for External Affairs, and sealed by the seal of the same minister. The commission of September 24, 1928, appointing Mr. Pierre Roy Minister to France, appears on the other hand to have been an ordinary sign manual warrant drafted to show that the appointment was on Canadian advice. The only Canadian head of mission to be appointed in 1939 was Mr. Loring Christie, Minister to Washington. His appointment was made after the King had left Canada, and his commission bore the royal sign manual and the signet of a secretary of state. The first occasion on which full powers were issued under the Great Seal of Canada was in June, 1945, when instruments were issued to enable Mr. Mackenzie King and Mr. St. Laurent to sign the United Nations Charter and the Statute of the International Court of Justice. Since then the Great Seal of Canada has continued to be used for this purpose. The change affected the form of the procedure but not, of course, its substance, since Canadian instruments passing under United Kingdom seals bore the signature of the prime minister of Canada as submitting officer.
10 See Wheare, K. C., The Statute of Westminster and Dominion Status (London, 1952), 216h, 227.Google Scholar
11 Commonwealth Survey, 09 11, 1953.Google Scholar
12 It is true that the initiative in these matters had passed to the governments of the dominions, but constitutional responsibility remained, strictly speaking, on United Kingdom ministers.
13 This practice had been in any case discontinued in 1942. Canada, House of Commons Debates, 04 5, 1943, p. 1829.Google Scholar
14 “So far as the Dominions are concerned it will be for each Dominion Government to decide whether any legislation is necessary. So far as we are aware, the introduction of such legislation in any Dominion would not in any case be contemplated unless the necessity for a Regent should hereafter arise. The reason I make that assertion is this: When the Dominion Prime Ministers were here in London in the month of May, 1935, at the time of the Silver Jubilee of King George V, the opportunity was taken of discussing informally with them the introduction of legislation to make provision for a regency, if it should be required. … We outlined to the Dominion representatives the general form which we thought our Bill should take, and we have kept the Dominion Governments informed of the proposals now before the House. The provisions as explained to the Dominion Prime Ministers were found to be generally acceptable, but it was, of course, made clear that it was entirely a matter for each Dominion to decide whether any legislation of its own may be necessary now or hereafter, to make provision for the performance by a Regent or by Counsellors of State of Royal functions in relation to that Dominion.
“The house will, therefore, see that on this occasion we are deliberately following different lines from those that we followed in the Abdication Act of last December. We are doing so deliberately … and after consultation with the Dominions it is agreed that it would be better and simpler to take the course of legislating here and now in the United Kingdom Parliament in the terms of the Bill now before the House, and of recognizing that the Dominions would prefer to take no positive action unless and until the occasion arises which seems to make it necessary.” SirSimon, John (Home Secretary) 319 H.C. Deb. 5 s., cols. 1452–3, 02 2, 1937.Google Scholar
15 Wheare, The Statute of Westminster and Dominion Status, 251.
16 The press release of October 1, 1947, stated that “this does not limit the King's prerogatives. Nor does it necessitate any change in the present practice under which certain matters are submitted by the Canadian Government to the King personally. However, when the new Letters Patent come into force, it will be legally possible for the Governor General, on the advice of Canadian Ministers, to exercise any of the powers and authorities of the Crown in respect of Canada, without the necessity of a submission being made to His Majesty. There will be no legal necessity to alter existing practices. However, the Government of Canada will be in a position to determine, in any prerogative matter affecting Canada, whether the submission should go to His Majesty or to the Governor General.”
17 Australia, Parliamentary Debates, 12 2, 1953.Google Scholar
18 Page 309.
19 Ibid., 309–10.