Memorandum of interview between Patrick McGilligan and General Hertzog

The Minister's Interview with General Hertzog

The Minister for External Affairs, accompanied by the Secretary of the Department, lunched with General Hertzog at the Metropole¹ on Friday, the 29th August. During lunch and for two hours after the lunch the conversation was entirely on Imperial Conference Questions. The following is a summary of the conversation:

'Inter Se'

General Hertzog agreed with the Minister's view that the inter se statement in the 1926 Report, if it expressed something inherent in the constitution of the Commonwealth and inalienably associated with it by virtue of the common Kingship, must be altered because it presupposed a unitary crown and a single international unit. Neither the General nor the Minister thought that there would be anything derogatory to the status of the Members of the Commonwealth if they agreed that they should make a formal declaration toties quoties of non-applicability inter se in treaties the terms of which would not serve the best interests of the Commonwealth if applied as between the Members. General Hertzog was inclined to regard the Statement as a kind of Agreement only requiring slight modifications, and there was, therefore, in his view no obstacle in the way of revision. The Minister pressed his point that the 1926 Report merely stated that if the treaty were made in the name of the King the inter se non-applicability should be presumed. It was, therefore, a statement of doctrine and in no sense an agreement. The view that it was a statement of principle and that this principle had the worst possible implications was strengthened by the reference to the discussion at the Arms Traffic Conference of 1925 in the next sentence of the same paragraph of the Report.

The question at issue at the Arms Traffic Conference was the definition of 'International Trade', and the Dutch delegate proposed that the despatch of arms, munitions, etc., from and to territories forming part of or placed under the protection of the same Sovereign State should not be regarded as International Trade, and should not accordingly come within the terms of the Convention. The delegate added that 'International Trade' in arms should be understood as the transfer of arms from the possession of one political unit to that of another. That reference clearly indicated that the making of multilateral Treaties in the name of the King was intended by the British to convey to the world that the Members of the Commonwealth of Nations constituted a single sovereign state. In other words, the Report of 1926 said: According to a principle laid down by the Arms Traffic Convention, relations between two parts of the same sovereign state are not international and cannot be regulated by international conventions. Now the relations between the Members of the British Commonwealth of Nations come under the principle formulated by the Arms Traffic Convention. Therefore, these relations are not international, and the Members of the Commonwealth form a single sovereign state. The making of Treaties in the name of the King is to be the method of indicating to foreign Governments that internationally the Dominions and Great Britain act as a single state.

During the discussion the Minister for External Affairs also referred to the statement made by Sir Cecil Hurst at the meeting of the Committee of Jurists in 1929. At that meeting 'Mr. Raestad asked whether the constitution of the British Empire prevented a dispute between Great Britain and a Dominion or between two Dominions from being brought before the Court. Sir Cecil Hurst replied that the matter had been discussed in London, where the view was that no question arising between Great Britain and a Dominion could be brought before the Permanent Court owing to the provisions of Article XIV of the Covenant, which laid down that the Court possessed jurisdiction only in regard to international disputes. This provision excluded the submission to the Court of disputes between two of the units composing the British Empire, because the relations between them were different from the relations between two foreign states, and for this reason the relations between them were not international. Although the Dominions were autonomous, a dispute between two of them or between a Dominion and Great Britain was not an international matter and could not be brought before the Court.' (The whole passage between quotation marks is taken from the official League of Nations Report C 166, M.66. 1929 V.) The Minister pointed out that this reply of Sir Cecil Hurst, who was the framer of the 1926 inter se Statement, showed clearly that that Statement was intended to be a doctrinaire assertion of a supposedly inherent principle which left no freedom for agreement, and was, therefore, contrary to the other principle of freedom of co- operation upon which the Commonwealth is so frequently declared, in the same Report, to have its real basis. Mr. Henderson's declaration about the international position of the Dominions as individual states did not, the Minister thought, effect any change in the position created by the inter se Statement. It is not certain to what extent General Hertzog is convinced of the seriousness of the inter se Statement. Further discussions will be necessary.

The King and the Governments of the Dominions

The Minister told General Hertzog that it was his intention to raise formally the question of the right of direct access to the King. Before the Minister could explain what his procedure was to be, General Hertzog exclaimed: 'That is the key to the whole situation. Direct access will make the personal union a reality'. The Minister went on to outline his suggested procedure. Either the Governor-General should become the substitute for the King in the totality of his functions, and that would be the simplest, though, no doubt, to the English, the least acceptable solution, or the High Commissioner in London should advise the King as the Minister's substitute, it being always understood that the Minister himself could approach the King any time he wished to do so. The High Commissioner would present the document to be signed to the King, who might affix a purely personal seal, but the only State seal to be used would be that of the Member of the Commonwealth concerned. It could still be argued that the King acted on the effective advice of his British Ministers in all the major acts (Full Powers, Exequaturs, Commissions, Ratifications) through which a Dominion had relations with foreign States. This system raised the strongest presumption in favour of a Unitary State and, taken together with the inter se doctrine, it provided all the text writers with a cogent argument against the external sovereignty of the Dominions. The Minister further indicated that a species of Buckingham Palace Secretariat might be suggested by the British as the next best method of exercising control over the advice tendered to the King. Each Member of the Commonwealth would be represented thereon, and the document to be signed would be presented by the representative of the Member-State concerned. Such a secretariat would have many obvious disadvantages, chief amongst which would be its tendency to become an Imperial political clearing house, no matter how minor the officials might be. On the other hand, from the purely constitutional point of view, it would be infinitely better than the present system. General Hertzog said that he would not mind telling the Prime Minister of Great Britain in each case before advice was tendered by him. In this connection he recalled with disapproval a secret memorandum presented by General Smuts² to the 1921 Conference advising the setting up of an Imperial Committee presided over by the British Prime Minister through which all Imperial matters (apparently whether having relation to the King or otherwise) should pass. The Minister, referring to General Hertzog's remark that the Prime Minister of Great Britain might be given notice on each occasion when advice was being tendered to the King, urged that the result of following that course would be to leave the real control in the hands of the British Cabinet. Moreover, the principle of co-equality would require that all the Prime Ministers should receive notice. In any case, as the Commonwealth was founded on mutual trust and co-operation, the British would have to take it for granted that no Member of the Commonwealth would advise the King contrary to the general interest. The General finally appeared to agree with the Minister's point of view, and added that if the British refused to implement the principle of co-equality in these matters he would have to tell them that co-operation would not be forthcoming. General Hertzog appeared to desire to raise formally the whole question of the personal union as the only possible solution of existing difficulties. The Minister preferred, by eliminating the incidents of the unitary crown and creating countervailing facts, to reach the same goal without making it a formal issue.

Communications with Foreign Countries

The Minister further informed General Hertzog of his desire to change the present system of communicating with foreign countries in cases where there was no direct diplomatic channel. It was our experience that communications transmitted through the Foreign Office were held up for weeks, sometimes for months. That was true of communications both ways. Apart from the delay, there was the more important factor of the impression created abroad as to the position and status of the Dominions. The Foreign Office is regarded by most foreign States as the central Foreign Office of the whole Commonwealth. Very frequently communications intended for the Dominions took the form of a request at the end of a letter or note verbale to the British Government that the Dominions were also to be informed, invited, etc. Sometimes the Dominion Governments were referred to as local authorities, at all times the implication of subordination of some sort to the Foreign Office was present. The only proper method, in the Minister's view, was to send the communication direct to the British Minister on the spot. He in turn should send the reply to the Government of the Commonwealth concerned. General Hertzog suggested that there should be no objection to sending a copy of the communication to the British Prime Minister on each occasion. The Minister agreed that, the Minister Plenipotentiary concerned being an agent of the British Government, there could be no serious objection to sending the communication to the British Government but not to the Prime Minister. The Minister emphasized the point that the new system of communication would be in accord with the usual international practice. General Hertzog appeared to realize the difficulties, but the degree to which he would accept the proposed changes was not quite clear. He had himself on some occasions used the channel suggested, but he was asked not to continue doing so.

Intra-Commonwealth Tribunal

The proposed Tribunal was discussed shortly. General Hertzog held the same view as the Minister as to the ad-hoc character of the Court, but he seemed to envisage disputes other than inter-government disputes coming before it, for instance disputes between citizens of two different Members of the Commonwealth. The Minister urged the necessity of eliminating every form of non-inter-State dispute. Otherwise the Court might become part of the mechanism of the organic unity which we were trying so hard to avoid. For him the disappearance of the Privy Council in relation to the Saorstát was a condition precedent to the acceptance of any tribunal. The panel for each particular dispute might be selected there and then, or the members of the Tribunal might be taken from some previously agreed general panel. The selection of the Court panel would have to be a matter solely for the disputant States. The body of law and conventions forming the basis for the judgments of the International Court would serve likewise for the Tribunal. General Hertzog did not seem to have given much thought to the Tribunal, but he agreed generally with the Minister's proposals. The Minister reserved further reference to the Court for another chat.

Nationality

The Minister explained to General Hertzog his general line of approach to the solution of the Nationality difficulty, his main purpose being to secure that all the incidents of the nationality of each Member of the Commonwealth should derive from the legislation of that Member following a general agreement as to the elements of common status acceptable to all. In other words a South African was in future to be a South African only, but that description should henceforth connote all the incidents previously proper to a British subject as such, as well as those belonging to the description South African. The Saorstát would have a draft Nationality Bill³ ready at the time of the Conference. The Minister will also have further discussion with General Hertzog on this matter.

Secession

General Hertzog seems to be taking a declaration of the right to secede as a matter of course offering no difficulty whatever. The Minister did not wish to ask General Hertzog what impressions he received from Mr. MacDonald in this connection, but the General's easy optimism warranted the conclusion that all was well. He was obviously delighted that General Smuts had given him the opportunity of winning such an easy party victory. He declared that General Smuts' lieutenants were disgusted with their leader for his bad tactics. The Minister had little opportunity of developing his ideas on the Secession question, or of getting more definite information from General Hertzog, as the time for leaving had almost come. In any case, he felt it would be unwise to divert the General from his idea so long as there was no risk of losing the fruits of the 1929 Conference by insistence on getting a further declaration from the British. The 'Times' leading article of the 23rd August on the right to secede is an indication that the demand for a declaration would not cause any revulsion of feeling in Great Britain. The Minister further felt that a declaration of the right to secede would be a further strengthening of the Government's constantly reiterated view that the Treaty contained in it all the principles of the most complete freedom. The right to secede once admitted, anti-State politicians would have very little to talk about except humdrum economics. Here, as in South Africa, any party which supported the exercise of the right to secede would find itself up against the instinct of economic self-preservation of the majority of the people. In connection with the Treaty position, General Hertzog remarked to Professor Smiddy a few days ago⁴ that, in his view, any restrictions imposed by the Treaty were overridden by the principle of co-equality. General Hertzog, like Mr. Beyers, refuses to consider the legal past of the Dominions. For him the basis of Dominion evolution is entirely political and must be divorced from existing law. He brushes aside any reference to the Acts by which the Dominions were established, and concentrates on the principle of co-equality alone.

Legislation by the British Parliament for the Dominions

The Minister asked General Hertzog what he thought of the right of the British Parliament to legislate for the Dominions which was expressed in paragraphs 54 and 55 of 1929 Report, that right being independent of constitutional exigencies. The General thought the request and consent qualification saved the Dominions' face and left their sovereignty intact. When the Minister suggested that the Dominions should feel their sovereignty infringed by asking France or Holland to legislate for them, the General replied that he understood that the right was restricted to the constitutional requirements of certain Dominions. After further arguments he agreed that, if paragraphs 54 and 55 had reference to anything other than the constitutional requirements of Australia, Canada and New Zealand, the wording of these paragraphs should be changed so as to restrict the right to those particular cases.

Conclusion

General Hertzog promised the Minister that he would come to Dublin on his return from Geneva about the 17th September. The Minister will then discuss all the points over again with him, and he will endeavour to secure General Hertzog's co-operation in detail. It is already secured in principle.