Salus populi suprema lex: The Development of national security jurisprudence prior to the first world war

Abstract

This study assesses the changing judicial approach to national security concerns in the half сеntuгу 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 rambles 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 jurispradence, 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.