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Salus Populi Suprema Lex: the Development of National Security Jurisprudence Prior to the Rst World

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Salus Populi Suprema Lex: the Development of National Security Jurisprudence Prior to the Rst World Durham E-Theses Salus populi suprema lex: The Development of national security jurisprudence prior to the rst world war Murray, Colin How to cite: Murray, Colin (2006) Salus populi suprema lex: The Development of national security jurisprudence prior to the rst world war, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/2700/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 SALUS POPULI SUPREMA LEX The Development ofNational Security Jurisprudence Prior to the First World War COLIN MURRAY Master of Jurisprudence Thesis Department ofLaw, Durham University 2006 The copyright of this thesis rests with the author or the university to which It was submitted. No quotation from It, or Information derived from It may be published without the prior written coneent of the author or university, and any Information derived 2 9 NOV 2006 from It should be acknowledged. Cover Illustration Vessels No. 294 and 295 (the "Laird rams"), built by Laird's shipyard, Birkenhead, lie in the Mersey under the watching brief of HMS Majestic (centre). Intended to break the Federal blockade of Confederate ports during the American Civil War, their construction threatened Britain's neutrality in the war, and their seizure was the subject of intense legal debate. Copyright Notice The copyright of this thesis rests with the author, C. R. G. Murray. No quotation from it should be published in any format, including electronic and the internet, without the author's prior written consent. All information derived from this thesis must be acknowledged appropriately. Abstract This study assesses the changing judicial approach to national security concerns in the half century preceding the First World War. This era of jurisprudence has been largely neglected by legal historians, most studies assuming that the modem judicial approach to national security developed only after the first rumbles of the guns of August 1914. However, pre-war jurisprudence demonstrates the judiciary's increasing familiarity with national-security concerns, through their exposure to what may be described as 'modem' national-security legislation, from the mid-Victorian era onwards. This study therefore considers the judicial approach to such ill-considered statutes as the Foreign Enlistment Act 1819 and its successor the Foreign Enlistment Act 1870, and the Defence Acts 1842-73 (and related enactments). This thesis also examines the judicial response to the application of aspects of nineteenth-century commercial, contract and customs law to protect security concerns. Through detailed examination of each of these areas of law, this study will ascertain the degree of influence that national-security concerns exerted upon judicial interpretation in the years 1860-1914. It is contended that the cumulative weight of this jurisprudence indicates that the First World War was not the turning point in judicial attitude that it has been widely proclaimed to be, and that the supine approach to national-security concerns characteristic of the twentieth-century jurisprudence can be traced into the Victorian era. Superficial variations in jurisprudence, including shifts from positivist to normative "packaging" of security concerns should not disguise the judiciary's adoption, long prior to the First World War, of a functionalist interpretative approach to national-security arguments. Acknowledgements Throughout the writing of this thesis it has been my privilege to be supervised by Professor Ian Leigh, to whom I owe a great debt. I thank him for the free rein that he gave me over my study and for helping to give direction to my thoughts when that freedom led to the limits of my abilities. Without his unfailing advice and guidance I would remain lost in the blind alleys down which I eagerly bounded. A further word of thanks must go to my friend and colleague Ian Clements, upon whom I have foisted the likely unwelcome task of proof-reading my draft thesis. Nevertheless, Ian shouldered this imposition without resentment and this study is immeasurably improved as a result of his diligence. The staff of both the Department of Law and Durham University Library have, over the course of my studies in Durham, remained helpful and pleasant, even in the face of my many impositions upon their time. I must extend the same gratitude to my long-suffering friends, who must all hope that my range of conversation broadens in the wake of the submission of this thesis. Most importantly of all, my studies would amount to nothing without the constant support and encouragement of my family. It is only through them that any of my achievements have become possible, and there is little that I can say that will repay them. Lastly, I should mention my old English teacher, Mr. Shaw, for patiently helping to develop my writing skills in the first place, spelling and grammar notwithstanding. Durham, March 2006 Contents [1] Have the Judiciary Ever Known their Place? The Executive, the Judiciary and the Security of the State 1 The Age of Treason 3 The Age of the Emergency Code 5 An Age of Transition? 8 [2] Pre-War National Security Law in Context Introduction 13 The Development of Modem National Security Law 14 The Emergence of the term "National Security" 17 The Structure of this Study 21 [3] Neutrality in Judicial Hands: The Foreign Enlistment Act 1819 Introduction 27 Use of the Foreign Enlistment Act Prior to the American Civil War 28 Early Civil-War Foreign Enlistment Act Cases 31 The Developing Foreign Enlistment Act Jurisprudence 50 After the American Civil War 57 Conclusion 61 11 [41 In Hot Haste: The Foreign Enlistment Act 1870 A New Foreign Enlistment Act ... 64 ... An Old Problem 70 Freebooters and Empire-Builders under the Foreign Enlistment Act 78 Conclusion 83 [5] Executive Expropriations of Land under the Defence Acts Introduction 86 The Origins of the Defence Acts 88 Actions for Nuisance against Works under the Defence Acts 92 Compensation for Expropriations under the Defence Acts 100 The Relationship between the Defence Acts and the Royal Prerogative 109 Conclusion 110 [6] Troubles with Guns and Balloons Introduction 113 A Tale of Arms and A Man 116 A Tale of Arms and Two Man 123 Acceptable Restrictions on the Arms Trade? 127 Speed Limits and National Security 135 Conclusion 136 111 [7] The Greatest Service a Judge can Provide is to lay down the Law for his Country Bringing Order out of Chaos 138 A Golden Age or an Eldorado? 140 The Secret Identities of Salus Populi 147 The Pre-War Jurisprudence and the Wartime Decisions 152 lV [1] Have the Judiciary Ever Known their Place? 'By the Constitution the defence of the realm is entrusted to the Crown, ... the law has entrusted the person of His Majesty with the care ofthis defence, [and] in this business of defence the "suprema potestas" is inherent in His Majesty as part of his Crown and kingly dignity. ' Mr Justice Avory ( 1915) The Executive, the Judiciary and the Security of the State Judicial deference to the executive with regard to matters of national security enjoys a distinguished heritage. From Hyde CJ's assertion that 'we trust [the Crown] in great matters,' 1 through Lord Atkinson's conclusion that providing for the defence and security of the realm had ever amounted to 'the special trust and duty of the King'2 and into the modern day with Lord Diplock's ruling that where action undertaken subject to the 'national security prerogative' conflicts with the procedural impropriety head of judicial review, public law 'must give way,'3 judges have seemingly ensured that the executive has been only loosely fettered by the law in providing for the security of the state. This consistent interpretive approach overarches the evolution of national security law through the centuries, as recognition of the limitations upon Crown's war prerogative 1 _ Darnel's Case (The Case ofthe Five Knights) [1627] 3 Howell's State Trials, I 2 Attorney-General v. De Keyser's Royal Hotel [1920] AC 508, 538 3 Council ofCivil Service Unions v. Minister ofState for the Civil Service [1985] AC 374, 412 1 and in its ability to impose martial law obliged governments to seek statutory interventions to complement these national security powers.4 Prerogative and statutory powers therefore long co-existed in the national security sphere, with the executive careful to safeguard its capacity to employ the prerogative in response to threats when drafting "emergency" legislation. 5 Such efforts were intended to shield activities undertaken in the interests of national security from judicial review, by making it possible for the executive to claim that it was exercising power under recognised prerogatives.6 But national security statutes have proven to be a particularly pervasive plant in the United Kingdom's constitutional garden. As early as the Victorian era, when Dicey presaged Avory J's appraisal that both the common law and the prerogative furnish the executive with powers that allow it to provide for defence, 7 he saw fit to caveat that in this field 'the rigidity of the [common] law necessitates the intervention of Parliament.' 8 Today, the prerogative lies buried underneath successive accretions of 'necessary' national security legislation; not simply supplemented, but supplanted.
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