The Right Honourable Sir Francis H. D. Bell, P.C., G.C.M.G., K.C.,: His Life and Times
Chapter XXI. — Bell Visits London, 1922
Bell Visits London, 1922.
British citizenship—Civis Britannicus sum—New Zealand out of step—Final change of policy—Bell is honoured by Prince of Wales—The Longueval Memorial.
Early in 1922 Bell left for England on what purported to be a holiday, but it was not in his nature to be idle, and before he left he had already thought out various schemes of work in London. Before leaving he was appointed to represent New Zealand at the third assembly of the League of Nations as well as various conferences at Genoa and the Hague,
"As you are aware," he wrote to Massey, "my principle object, so far as the Government is concerned, is to endeavour to arrive at a conclusion with the Imperial authorities on the subject of naturalization throughout the Empire. We have refused to adopt the Imperial Act in New Zealand, because we cannot accept, as citizens entitled to vote, aliens qualified merely by letters of naturalization granted without our having the opportunity of judging for ourselves. I will, of course, not purport to commit you or the New Zealand Government, but merely endeavour to arrive at a basis of agreement subject to your approval and ratification by Parliament."
On the same subject Bell wrote to me in Australia where I was negotiating a new Trade Treaty.
Bell to Downie Stewart, March 4, 1922:
"With regard to the naturalization discussions I wish I was as sure of my success in London as I am confident of yours in Sydney and Melbourne. I am glad you see the difficulty of adopting the English proposal in the same light as myself and as I have led Massey to see it. Yet the appeal to agree that a person who is British in part A of the Empire shall be able to say Civis Britannicus sum in every other part may prove so tempting to other Dominions as to leave us isolated. I think we must remain so until the Attorney-Generalship is held by another."
This problem had been present in Bell's mind for some years. The strong views he held on the danger of allowing naturalization of aliens in one part of the Empire to operate as conferring British citizenship in all parts of the Empire arose during the War.
In his view, naturalization by England of thousands of aliens could hardly be a menace to that country, as in her vast population these naturalized aliens would only be a drop in the ocean. But if by virtue of that naturalization they migrated to New Zealand and claimed citizenship here while holding views of society utterly alien to our own, their presence might give rise to grave conflict in our small community. He recognized that larger Dominions like Canada did not require to select their immigrants with such care as a small community like New Zealand. But he was emphatic that New Zealand should be itself the judge of the qualifications page 202of a foreigner to share with us in the franchise and government of the country.
This problem had been discussed as far back as the Imperial Conferences of 1907 and 1911, and later on there had been correspondence between the Imperial and the Dominion Governments.
The final outcome was the passing of the British Nationality and Status of Aliens Act, 1914, one object of which was to establish an Imperial naturalization. At the time the Act was passed the Dominions, including New Zealand, agreed to adopt Part II, which deals with Imperial naturalization, but as the War progressed and conditions altered, on the advice of Sir Francis Bell the adoption of the English legislation was postponed till after the War.
Bell finally arrived at the opinion that New Zealand's separate interests were such that they outweighed the arguments in favour of uniformity. He accordingly recommended that New Zealand should not adopt Part II of the Act. In 1919 he prepared a lengthy and learned memorandum, which was printed as a Parliamentary paper, in which the whole subject was reviewed. In this he said that uniformity throughout the Empire in the matter of naturalization of aliens was so manifestly desirable that he had hesitated long before arriving at the contrary conclusion.
"Before the War," he said, "I think there was no difference of opinion in any part of the Empire; at all events we in New Zealand were then willing to accept the Imperial Act of 1914 in substance and page 203in letter. But the conditions created by the War and circumstances which have arisen in consequence of the War have made it essential that each Dominion of the Empire should consider with the utmost care the subject of naturalization of aliens in relation to its possible effect upon that individual Dominion, and consequently the attainment of the ideal of uniformity of legislation must, in my opinion, be postponed.
"New Zealand is a country capable of carrying a far larger population than its present numbers. It is still a country to which immigrants flock and are welcomed, and it is probable that in the future, as in the past, our newcomers will be, many of them by birth, aliens. We have no desire to bar our shores to foreigners, but there should be the strongest possible objection to the granting of the political and other rights of a British subject in New Zealand to a foreigner unless and until he has first been subject, during a term of residence in New Zealand, to such tests of qualification for admission to the franchise as the New Zealand Parliament finds it from time to time desirable to impose. And further it is at the present time obvious that it will be necessary in New Zealand to discriminate between classes of foreign nations in determining the tests of qualification for admission to the rights of a British subject in New Zealand. It appears to me that it is possible that a foreigner in England, for example, may by his conduct satisfy the Secretary of State that he is entitled in England to naturalization as a British subject, while he may still be a person whom the New Zea-page 204land Government might probably desire to be subject to a further period of residence in New Zealand and further tests of qualification before he should be admitted to the rights of a British subject in New Zealand."
In reply to the argument that it was quite possible for a Dominion to adopt the British legislation and yet to treat differently different classes of British subjects, Bell stated that it appeared to him inconsistent to adopt first the principle that the grant of naturalization in any one part of the Empire should create the status of a British subject in any part; and simultaneously to legislate declaring that the grant of naturalization in Part A of the Empire should not alone be effectual to confer in Part B the full rights of a British subject. In short his view was that New Zealand should not surrender to the discretion of the authorities in any other part of the Empire her right to determine for herself what foreigners should have the status and rights of British subjects naturalized in New Zealand.
In arriving at this conclusion Bell found himself in disagreement with the Solicitor-General, Sir John Salmond.
Bell to Salmond, August 4, 1916.
"I need hardly say to you that your view has very great weight with me, and that therefore I should, have adopted it if I could. There is another reason for adoption of your view—namely, that upon such matters as we are now discussing, it is more than probable that in England as well as in New Zealand page 205your opinion carries more force than mine. And yet I do not agree, and being such as I am must adhere to my memorandum practically in the form from which you dissent."
When Bell arrived in London early in 1922 he expounded his views at a conference with the legal advisers of the Colonial Offoce and of the Home Office. He also discussed the matter with Mr. Winston Churchill, who was at that time Secretary of State for the Colonies, and found him sympathetic.
But the Law Officers of the Crown were alarmed at the fact that if New Zealand adopted Bell's view she would be isolated and out of step with the rest of the Empire. It appears that at first South Africa had taken the same view as Bell, but at a later date gave way.
In pursuance of Bell's advice New Zealand in 1923 decided not to adopt Part II of the Imperial Act. But at the same time the New Zealand Parliament declared those Parts of the Act which define who is a British subject apart from naturalization to be part of the law of New Zealand.
In presenting the Bill to Parliament, Bell gave a masterly survey of the whole history of the subject from the foundation of the Dominion. The strange result of the New Zealand legislation was that the granting of the status of a British subject by any other part of the Empire applied everywhere except in New Zealand, and, on the other hand, the granting by New Zealand of naturalization conferred no right outside the New Zealand boundaries. This certainly created an anoma-page 206lous situation, but was no doubt justifiable so long as Bell's reasoning as to the clanger of the alternative held good.
So matters remained until 1928, when, on Bell's advice, the Government and Parliament fell into line with the rest of the Empire and adopted Part II of the Imperial Act. What was the justification for this change in policy? Bell's explanation seems reasonable enough. He stated that, after he had written his elaborate memorandum in 1919, the New Zealand Parliament had passed the Immigration Restriction Act of 1920. That Act afforded the security which had previously been lacking, for it prohibited the entry into New Zealand without a permit of persons who were not of British birth and parentage, and expressly provided that a person should not be deemed to be of British birth and parentage by reason only of the fact that he or his parents or either of them were naturalized British subjects. In other words, a person naturalized in any part of the Empire, though thereby a British subject, is not any more than a foreigner entitled as of right to settle in New Zealand. Bell said that when he had recommended the legislation of 1923, the Immigration Restriction Act of 1920 had not been sufficiently long in force to see whether it provided adequate safeguards. In the course of a few years, however, he had satisfied himself that the position was fully protected, and accordingly, in 1928, New Zealand fell into line with the rest of the Empire. And so in the debates on the Bill of 1928 Bell expressly stated that the reversal of policy was due to the satisfactory experience of the working of the Immigration Restriction Act.page 207
New Zealand's final decision to come into line with the rest of the Empire gave great satisfaction in official quarters in England. "I hope," wrote one member of the Dominions Office. "that I may be allowed to say how glad I am that you have wheeled New Zealand into line with the rest of the Empire in this matter."
The whole incident affords a striking instance of Bell's steady determination to view New Zealand problems from the New Zealand standpoint, and his refusal to acquiesce in Imperial legislation until he was satisfied that New Zealand was adequately safeguarded.
It will be convenient to add here an interesting statement by Bell on the question of whether Imperial legislation can be considered as applicable to the Dominions by implication, or whether Imperial legislation must expressly state that it does apply.
Bell to James Christie, Chief Law Draftsman,April 27, 1929:
"I think your reference to the difference between Sir John Salmond and myself is not sufficiently clearly expressed. I never at any time doubted that the Imperial Parliament at Westminster was the only legislative authority which could define 'a natural born British subject.' Nor did I doubt that Parliament alone could determine under what circumstances a person became a British subject. In other words, I never contended that a Dominion Parliament was empowered to define a British subject—that is, a natural born British subject—though it has long been conceded that a Dominion could grant within its page 208own boundary both the qualification and the privilege of a subject of His Majesty.
"What I doubted (herein differing from Sir John Salmond) was whether it was competent for the Imperial Parliament to create a status for the Empire by implication of application to the Empire. I thought and still think, that since the Repugnancy Act it is essential that when the Imperial Parliament intends to legislate for the Empire it must expressly so enact. The contrary view, which Dr. Keith apparently favours, involves a regular examination by lawyers and Judges of the Imperial statutes of each year to ascertain and determine which, if any, of such statutes apply to the Empire. For that reason I insisted always that a New Zealand statute on the subject of naturalization since the Imperial Act of 1914 must not assume the law to be as declared by the Imperial Act, but must expressly declare that law to be the law of New Zealand.
"There has been confusion of the real point at issue, which is a point wholly apart from the particular question concerning British nationality. It is a far wider and more important constitutional question which is involved, and which must ultimately arise wholly apart from the particular instance. And Sir John Salmond did not ignore the gravity of the wider question, though he insisted that the particular instance was of such manifest character that the general principle need not in that instance be considered. My own view was, and is, that in no instance should it be admitted that the Imperial Parliament can legislate for the Empire by any statute page 209which does not itself expressly declare that the legislation shall apply to the Empire. And again it is clear and manifest to me that to admit in any instance that legislation at Westminster applies to New Zealand by mere implication is to leave the door open for lawyers to contend, and Judges to decide, what is the law of the Dominion not by the terms of express statutory enactment, but by their view of what is implied even in a statute such as the present instance.
"I have throughout my political life so earnestly upheld the power and right of the Parliament at Westminster to legislate exclusively for the Empire in matters of Imperial concern that I am distressed by the bare suggestion that such legislation can be effective without express words of extension in the statute. Perhaps I am more distressed by finding that the danger to the whole structure of the Empire involved in the contrary view is not appreciated by some who, like myself, have had the grave responsibility of officially dealing with the constitutional principle."
What the English papers described as a unique tribute to a Dominion statesman was paid by His Royal Highness, the Prince of Wales, to Bell during his stay in London. At a brilliant reception given by the High Commissioner, Sir James Allen, in the Imperial Institute, the Prince of Wales made a presentation to Sir Francis Bell. This presentation was made on behalf of the Legislative Council of New Zealand, and consisted of a handsome silver casket, containing an address. In the course of his remarks the Prince said:page 210
"This gathering, like many other incidents during the past two years, recalls to me not only with affection but with gratitude the very fine days I spent in New Zealand in 1920—the very happy days that I can never forget. I am very glad that the purpose of our meeting to-night should be to honour Sir Francis Bell. I first made his acquaintance at Wellington, and I have a special reason for being grateful to him because he organized that splendid month that I was in your Dominion.
"The details of Sir Francis's splendid career are so familiar to you that I need refer only to the outstanding signal services he has rendered to New Zealand. He has been leader of the legal profession in New Zealand; the Acting Prime Minister during Mr. Massey's absence in 1921; and has been Leader of the Legislative Council for an unbroken period of ten years. I think that is a wonderful record."
During the same visit Bell went to France to unveil the memorial to the New Zealand Division at Longueval on the Somme Front. Many high French military officers were present, as well as Sir James Allen, General Godley, and the Premier of Newfoundland, Sir R. A. Squires.
Unveiling Memorial at Longueval, France.
"From the uttermost ends of the earth the New Zealand Division, after reaching this position as its objective, launched from this point its attack against Flers on September 15, 1916, which was crowned with success."
Bell unveiled the memorial and in the course of his speech said:
"This monument stands by the choice of our soldiers on the side of the switch trench, the main objective of the New Zealand Division in the attack commenced on September 15, 1916. The trench was carried, and from that time onwards for twenty-three consecutive days the New Zealand Division advanced, carrying every objective; 1,000 German prisoners were captured; 60 officers and 1,500 men of the Division were killed in these actions, and the total casualties of the twenty-three days were 7,000. This monument stands as a token that New Zealand will never forget the deeds of the soldiers in France."