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Jean-Yves Gilg

Editor, Solicitors Journal

The War | August 8, 1914

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The War | August 8, 1914

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Since we wrote last week on "War and Peace" the catastrophe has fallen. Europe in its madness has determined on general war, and Great Britain, owing to one compelling fact, has become involved.

We are not concerned to argue the question of the balance of power or the policy of preventing the loss by France of her colonies. On neither ground could the Government have looked to this country for whole-hearted support in their intervention in the war.

No doubt in some quarters, not without influence, there was a call for interference before the question of Belgian neutrality had been defined. But it would have been futile. The public opinion of this country, and all the forces that make for peace, would have forbidden participation in the war.

The one compelling circumstance which determined the Government, and gave them the right to look to the nation for support, was the violation of the neutrality of Belgium and the disregard of her rights. With the technical aspect of that neutrality we deal elsewhere. But we must be quite clear as to the substantial justification of our present course.

Last week we spoke strongly in favour of the absolute prohibition of the appeal to force, but we added the reservation "save by united action across some recalcitrant State." This, so far as existing circumstances permit, is the case which has arisen. Making all allowance for German fears on the side of Russia and of France, the threatened violation of Belgian neutrality was not for any reasonable purpose to which the other guarantors should assent. It was solely to enable Germany to strike a quicker and more effective blow at France.

Before the events of the last fortnight we had no alliance with France, and public opinion would not have permitted interference on her behalf as against Germany in any ordinary dispute. We were the friends of both countries alike. The Entente was accepted in this country on that footing only. But the whole aspect of matters has been changed by German violation of treaty rights and obligations, and the special gravity of her conduct is that it undermines the foundations on which alone the future peace of the world can be built.

We have looked forward, and still look forward, to the august work of the Hague Tribunal. But if a treaty sanctioned by time and usage is to be violated for the purpose of one State's aggrandisement, what is the use of establishing a Peace Tribunal at all? Its decrees would have no more value than the paper they were written on. The one justification for Great Britain's intervention in the war is that it will make the maintenance of public law possible in the future.

The Constitution in a Great War

For the first time under the new dispensation of democracy has our Constitution been put to the test of a great European war. It is interesting to note how the Constitution has adapted itself to the necessities of the new situation - dangers and difficulties of a novel kind, or at any rate far greater than existed even in the Titanic conflict with Napoleon.

In the first place the Government has had to provide against a dislocation of credit. In the second place it has had to arrange for the insurance of marine risks during the continuance of the war. In the third place it has to solve the problem of conserving and distributing our food supply. These three problems, be it noted, are undertaken by the Government for the first time - unless Pitt's laws suspending cash payments by the Bank of England can be regarded as a means of preventing dislocation of credit.

Fourthly, it has been found necessary to provide for the "defence of the Realm," and the requisition of supplies, the calling up of reserves, and the mobilization of our Army, are the result. Under what constitutional powers has the Government acted in arranging all these matters?

The Elasticity of the Constitution

The answer is supplied by a legal maxim and by the ever illuminating commentary of Professor Dicey. Of course Salus reipublicae suprema lex, and in an emergency all minor laws give way to the necessity of preserving the safety of the Commonwealth. But there is a constitutional way of achieving this end, by combining the Rule of Law with the Sovereignty of Parliament, the two principles which Professor Dicey regards as the leading features of our Constitution.

Hence, although the ordinary rules of law are partially suspended in the face of national danger, they are suspended by virtue of the law itself - namely an Act of Parliament. Not the decree of a despot, but a statute passed by Parliament in a single day, is the device adopted to save our credit system. The requisition of supplies and the other military measures have likewise been effected by legislative authority - namely, by Proclamations made by the Secretary of State under subordinate legislative powers so to do conferred upon him by various sections of the Army Act.

The State insurance of marine risks, and the regulation of food prices, will require statutory authority; but doubtless this will be forthcoming. The moral is that a Parliamentary Constitution in a democratic country, notwithstanding all the supposed defects which theorists find in such constitutions when tested by the emergencies of national danger, has apparently proved itself quite as capable of meeting the situation as have the more absolute systems of Germany, Austria and Russia.

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