Copyright
Alpheus Todd.

On parliamentary government in England : its origin, development, and practical operation (Volume 1) online

. (page 34 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 34 of 85)
Font size
QR-code for this ebook


encouraged, * with due regard to time and opportunity,
when it shall seem likely to be attended with advantage.'

(2.) Intercourse with Foreign Powers.

The sovereign is the constitutional representative of inter-
the nation in its intercourse with foreign powers. The
transaction of affairs of state with other nations apper- crown and
tains exclusively to the executive government, which is powers.
always in existence, ready for the discharge of its func-
tions, and constantly assisted by experienced advisers in
the performance of its discretionary powers.

The medium of communication between the sove- secretary
reign of Great Britain and the accredited representatives g f s ^ e
of foreign nations is the secretary of state for foreign medium
affairs.* It is his duty, in official interviews with foreign munica^
ministers, and by means of written despatches, to convey tion -
the views, opinions, and conclusions of the government
upon matters arising out of the relations of the British
Crown with other countries.

It is a necessary rule that the substance of all per-
sonal communications between the representatives of the
British Crown and the ministers of any foreign country,
upon matters of public concern, should be committed to
writing, in order that a fair and complete record of the
transactions between Great Britain and other states may
be preserved in the Foreign Office, and, in due course,
submitted to Parliament." The English constitutional informa-
system requires that Parliament should be informed, oftobe e "
from time to time, of everything which is necessary to ^ ve ? to
explain the conduct and policy of government, whether meat "
at home or abroad/ in order that it may interpose with



1 See ante, p. 267. T Ld. Palmerston, Ib. v. 173,

u See Mr. Disraeli's speech in Hans. 1103. Earl Russell. Ib. v. 203
D. v. 157, p. 1179. 1060.



A A 2



356



THE SOVEREIGN.



Advan-
tage of
commu-
nicating
to Parlia-
ment
informa-
tion on
foreign
policy.



advice, assistance, or remonstrance, as the interests of
the nation may appear to demand.

In 1810 the House of Commons passed a resolution of censure
upon the Earl of Chatham (the Master-General of the Ordnance and
a cabinet minister), who had commanded a military expedition to
the Scheldt, on account of his having presented to the king a secret
report of the expedition, without communicating the same to his
colleagues, or causing it to be considered as a public document.
(See ante, p. 267.) It was justly contended, that if such a proceed-
ing were permitted, it would strike at the root of ministerial respon-
sibility^

It is unquestionably of immense advantage to the
country, that the diplomatic transactions and proceed-
ings of government abroad should be freely communi-
cated to Parliament, for thereby the foreign policy of the
crown ordinarily receives the approbation of Parlia-
ment, and is sustained by the strength of an enlightened
public opinion.* This in itself confers an additional
weight to our policy and opinions abroad. On the
other hand, it is notorious that the English system of
giving publicity to information obtained by government,
in regard to occurrences in foreign countries, is viewed
with great disfavour on the Continent. A knowledge of
the fact that all information procured by our foreign
agents is liable to be made public, militates somewhat
against their usefulness, and tends to place them occa-
sionally in an embarrassing position. It induces towards
them, moreover, a feeling of reserve on the part of the
representatives of other governments ; and necessitates
that our ministers should resort, more than they would
otherwise do, to the practice of private correspondence/
But a certain amount of discretion must always be
allowed to the government in respect to communicating



Parl. D. v. 16, p. 3**.

* See Earl of Clarendon, on the in-
creasing power of public opinion over



Amos, Fifty Years of Eng. Const.
p. 370.

' Rep. of Com. Com 6 , on the Diplo-



the foreign policy of the Government, matic Service, Com. Pap. 1861, v. 6
Hans. D. v. 183, p. 572. And see pp. 75, 130, 844, 392.



INTERCOURSE WITH FOREIGN TOWERS. 357

or withholding documents and official correspondence Discretion
which may be asked for by either House of Parliament, holding



While it is necessary that Parliament should be informed
of all matters which are essential to explain or defend to be
the policy of government, it is equally necessary that a
minister should be able, upon his own responsibility, to
withhold from the public such information as he may
judge could not be afforded without detriment to the
public service. Ministers are sometimes obliged to give 'Extracts'
* extracts ' only from official papers, in certain cases ; but certain
Parliament is bound to receive what is communicated cases -
upon the faith and credit of the administration in whom
their general confidence is reposed, unless they are pre-
pared to question the personal integrity of ministers,. or
to pronounce a verdict of censure upon their public
conduct.

A debate took place in the House of Commons on .
March 19, 1861, on a motion for a committee to con-
sider the discrepancies between the copies of certain
correspondence relating to Afghanistan, which was pre-
sented to Parliament in 1839, and again (in a different
shape) in 1858 ; and to report thereon with a view to
secure that all copies of documents presented to the
House shall give a true representation of the originals.
After explanations on the part of Lord Palmerston,
against whose official conduct the motion was directed,
it was negatived. 2

Thus, it is generally inexpedient, and highly impo- Papers

T ... & . / -or concern-

litic, to communicate to Parliament papers concerning mgpend-
diplomatic negotiations which are still pending ; a and J?g ne e-

. . & . J ' tuitions.

' nothing is more prejudicial to the action and efficiency
of the diplomatic service than the perpetual motions for
the production of papers, which are made by a certain



1 But see Smith's Parl. Rememb. Despatches, noticed in Smith's Parl.

1861, p. 45. And Louis Blanc's Rememb. 1860, p. 35.
Letters on England, 2nd S. v. 1, p. a See post, p. 370.
206. See also the case of the China



358 THE SOVEREIGN.

class of politicians,' who insist upon the fullest infor-
mation on questions of foreign policy, at unseasonable
times. b

Sometimes, however, the government, in the exercise
of their own discretion, have laid before Parliament
papers in regard to disputes with foreign nations, whilst
the negotiations were still pending, expressly in order
that the opinion of Parliament might be declared, so as
to -influence the course of events. But in 1860 a mo-
tion in the House of Commons, for the production of a
copy of a despatch received from abroad (upon a sub-
ject on which negotiations were pending), and before it
had been answered, was successfully opposed by the
foreign secretary (Lord John Eussell), on the ground
tli at ' such a course would not only be contrary to pre-
cedent, but contrary to every principle recognised by
the Constitution : ' it ' would be like inviting the House
to dictate the answer. ' d

Count Wa- I n 1858, a despatch was received from Count Walewski, foreign
lewski's secretary to the French Government, referring to a recent attempt
inTsss U P 011 ^ e ^ e ^ *ke Drench emperor, which had been plotted in
England, and angrily remonstrating against the alleged impunity
of assassins in England. Instead of replying to this despatch, the
government laid it before Parliament, and made it the foundation of
a Bill, which they introduced into the House of Commons, to amend
the law concerning conspiracy to murder. But the Commons, in-
dignant at the imputations contained in this despatch, and at the
conduct of the ministry in relation thereto, rejected the bill upon
its second reading, by the adoption of a resolution, expressing their
regret that the government, ' previously to inviting the House to
amend the law of conspiracy, had not felt it to be their duty to
make some reply ' to Count Walewski's despatch. 6 This resolution
Jed to a change of ministry.

In 1872, as a deviation from the general rule, ministers consented
to lay before Parliament ' the English case ' under the treaty of
Washington, the American case having been widely circulated by



b Rep. Com. Diplomatic Service, 173, p. 863.
Cora. Pap. 1861, v. 6, p. 344. " Hans. 1). v. 157, p. 1 177. And

' Mr. Disraeli, citing- case of Cri- sec ante, p. 441.
mean War, in !*>!. Ilnn?. D. v. * HI. v. 148, j, 1758,



INTERCOURSE WITH FOREIGN POWERS. 359

the American Government. Otherwise, 'our own case would not
be presented to Parliament because it is a document prepared for a
process which has yet to come on, and it is for the consideration of
the arbitrators,' &c. f

It is a common practice, in order to save time, to Drafts
send on a despatch, intended for presentation to a foreign
court, by the British minister abroad, with instructions
to withhold the delivery thereof until all the parties
concerned had agreed upon it. If afterwards the de-
spatch is not agreed to, it is simply cancelled. It then
has no existence ; and government have uniformly re-
fused to communicate to Parliament the original draft
of any such despatch. 8 It is likewise contrary to diplo-
matic usage to communicate to Parliament, or to the
public, the answer to a despatch, until it has been re-
ceived by the power to which it has been addressed. 11

Any attempt to coerce the government into produc- Private

T> V 11 j.1 j.1

ing to Parliament all the papers they may possess upon
a matter of foreign policy, without regard to their being
confidential, or unsuitable for general publication, could
only result in compelling the agents of government to
have recourse to ' private correspondence ' for the com-
munication of everything but mere ordinary information.
This would occasion not only immediate public loss, but
also permanent injury to the state ; for w T hen one admi-
nistration succeeded another, it would be unable to
discover, amongst the official records of the public de-
partments, the real grounds of action, and motives for
decisions, upon great public questions. In communica-
tions between the Imperial Government and its agents
abroad, private and confidential letters are necessarily
frequently made use of. These letters refer to circum-
stances not sufficiently certain, or sufficiently important,
to be placed in the formal shape of a despatch ; or it



f Mr. Gladstone, Ib. v. 209, p. 208. 540. (Layard), Ib. v. 175, p. G62.
Ld. Palmerston, Ib. v. 173, p. h Ib. v/234, p. 319.



,360



THE SOVEKEIGN.



Etiquette
towards
foreign
sove-
reigns.



may be that they communicate circumstances which
have been learnt from conversations, or otherwise ex-
press opinions which it would be impossible to lay before
Parliament without placing the writer in a position that
would exclude him thereafter from all means of infor-
mation which it is essential he should obtain. Such
letters it is the duty of the foreign secretary to receive,
and it is equally his duty not to lay them before the
House. 1

It is contrary to the etiquette observed towards
sovereign princes to communicate to Parliament auto-
graph letters addressed by them to the monarch of
Great Britain. The practice is, for the secretary of state
to refer to the substance of such letters in an official
despatch, acknowledging the receipt thereof, whereby
an official record is preserved of their contents. 3 Nor
is it proper, or consistent with practice, to lay before
Parliament a letter from a foreign monarch to one of his
ministers of state, even though a copy of the same may
have been transmitted to the Foreign Office by our own
ambassador. 1 "

It is also unusual to lay before Parliament any com-
munications between ambassadors and ministers abroad
and the sovereign to whom they are accredited.

An ambassador is understood, in monarchical states, to be on
equal terms with the sovereign to whom he is accredited, and there-
fore at liberty to appeal, by word of mouth, from the administration
of a country to their master. An envoy is presented to the sove-
reign, but transacts his diplomatic business with the minister alone.



' Ld. Palmeraton, Hans. D. v. 157,
p. 1182. And see Walrond's Letters
of Ld. Elgin, p. 79. For discussions
concerning the publication of 'private
and confidential letters ' addressed by
Sir D. Lange to the foreign secre-
tary, see Hans. D. v. 227, pp. 1426-
1436, 1500. As to the use or private
correspondence in communications
between the Home and East Indian
Government?, and especially with the



Indian Frontier States, see Ib. \. 234,
p. 1829. For further particulars in
regard to the practice of private cor-
respondence between the foreign se-
cretary and the diplomatic servants of
the crown, see post, v. 2, on ' Depart-
ments of State ' (the Secretary of
State for Foreign Affairs).

J Mr. Canning, in Parl. D. v. 36,
p. 187.

k Hans. D. v. 184, p. 381.



INTERCOURSE WITH FOREIGN POWERS. 361

A charge* d'affaires has no recognised claim to approach the throne,
except by favour. 1

Such documents are regarded as ' confidential ' for the
obvious reason that their production ' might lead to
serious consequences.' m

The sovereign, considered as the representative of
her people, has the exclusive right of sending ambassa- ambassa-
dors to foreign states, and receiving ambassadors at
home. 11 This prerogative should be regarded as invio-
late, and should not be interfered with by either House
of Parliament, except in cases of manifest corruption
or abuse ; else the responsibility for its faithful exercise
by the minister of state who is properly accountable for
the same would be impaired, if not destroyed.

In 1814, the Right Hon. George Canning was appointed ambas- Not to be
sador extraordinary at the Court of Lisbon, for the purpose of con- controlled
gratulating the Prince of Brazil upon his return to Portugal. The men t.
salary and allowances to Mr. Canning were on the scale ordinarily
allowed to such functionaries ; but a few months previously, it ap-
pears that the foreign secretary had written to the resident minister
at Lisbon, requiring him, as a matter of economy, to reduce the ex-
penses of the mission. The subsequent appointment of Mr. Canning,
at a greatly increased rate of expenditure, led to the imputation that
"he owed his nomination to corrupt influences, and that his appoint-
ment was, in fact, ' a pecuniary and profitable party job.' Accord-
ingly, on May 6, 1817, after Mr. Canning had returned home, Mr.
Lambton moved in the House of Commons a series of resolutions
reciting the particulars of the case, and asserting the appointment
to have been inconsistent with the previous declarations of govern-
ment in regard to this mission, uncalled for, and resulting in an
' unnecessary and unjustifiable waste of the public money.' The
foreign secretary (Lord Castlereagh) defended the conduct of the
government, and afterwards Mr. Canning himself gave full and satis-
factory explanations, which entirely exonerated all parties from cor-
rupt or improper conduct in the matter. Nevertheless, the motion
was pressed to a division, but it was negatived by a large majority.

Upon the accession to office of Sir Robert Peel, in 1835, he



1 Ld. Stratford de Redcliffe, in The n Bowyer, Const. Law, pp. 157,

10th Cen. v. 2, p. 476. 158.

m Ld. John Russell, Hans. D. v. Parl. I), v. 36, pp. 160-234.
131, p. 702.



3C2



THE SOVEREIGN.



Houses of
Par ia-
ment
may not
communi-
cate
directly
with
foreign
powers.



selected the Marquis of Londonderry to be ambassador at St. Peters-
burg. This choice was unpopular in the House of Commons, and
on March 13, 1835, a motion was made for an address 'for a copy
of the appointment, if any, of an ambassador to St. Petersburg, to-
gether with a return of the salary and emoluments attached thereto.'
No vote was taken on this motion, it being stated that the appoint-
ment, although intended, had not yet been made. But the adverse
feeling towards Lord Londonderry on the part of the House of
Commons was so very apparent, that his lordship, without commu-
nicating with any member of the govemment, declared in the House
of Lords that he would not accept the mission.? Both the Duke of
Wellington and Lord John Russell protested against the unconstitu-
tional invasion by the House of Commons of the royal prerogative ; 1
and Sir R. Peel, who had announced his intention of adhering to the
choice he had made, 1 " afterwards stated that he had been no party to
Lord Londonderry's withdrawal, and that had the address passed, he
should have resigned office. 9

It would be a manifest breach of this prerogative
and of international courtesy for either House of Parlia-
ment to communicate directly with any foreign prince
or power. All such communications should be made
officially through the government, and by a responsible
minister of the British Crown. 4

In 1836, the French Government made a valuable present of
books to the libraries of the Houses of Lords and Commons. The
fact was duly reported to each House, by their respective library
committees. In the House of Lords, a resolution, expressing grate-
ful satisfaction for this donation^ was adopted ; but it was admitted
that no precedent existed to warrant the House in transmitting the
same direct to the French Chamber of Peers After a short discus-
sion on the point of form, it was agreed that the resolution should
be forwarded through the secretary of state for foreign affairs,
without any further action on the part of the House." It was de-
cided in the Commons, that, after the session, their Speaker should
make some arrangements for conveying an expression of thanks for
this donation to the French authorities, without the adoption by the
House of any formal vote thereupon. v

And in 1868 a resolution was agreed to by the House of Com-



f Mir. of Parl. 1835, p. 350.

> Ib. pp. .350, 358.

' Ib. p. 335.

1 Ib. 1841, p. 1834. Peel's Mem.



v. 2, p. 88.

1 Hans. 1). v. 20(5, pp. 02, 64.
u Mir. of Parl. I8i, p. 193G.
' Ib. p. 2836.



INTERCOURSE WITH FOREIGN POWERS. 303

mons (July 31) accepting, 'with much gratification,' a certain volume
presented by the Congress of the United States, and directing that
a copy of this resolution be forwarded to the American secretary
of state, with a request that he will communicate the same to Con-
gress.

Upon the occasion of the successes of the allied armies of Eng-
land and France, during the Crimean war, in 1854, the thanks of
Parliament were voted to the French commander and his army,
' for their gallant and successful co-operation ' with our troops, and
the English commander, Lord Raglan, was desired to convey to them
this resolution. But this vote was admitted by Lord John Russell
to be ' unusual, and perhaps unprecedented ; ' and grave doubts were
expressed by Earl Derby, whether such a proceeding on the part of
the House towards the troops of a foreign power was not irregular
and unbecoming. Nevertheless, the unanimity of feeling which
generally prevailed at the time towards our French ally caused the
point of form to be overruled. w

On May 1, 1865, addresses to the Queen were voted in both
Houses of Parliament, to convey to her Majesty the expression of
the deep sorrow and indignation with which the intelligence of the
assassination of Mr. Lincoln, President of the United States, had
been received, and praying her Majesty to communicate the abhor-
rence of the House, and their sympathy with the govemment and
people of the United States, upon this occasion, to the American
Government. These addresses were agreed to, nemine dissentiente ;
although, in the House of Lords, Earl Derby took exception upon
formal grounds, and suggested that the more regular course would
"have been ' simply to move a resolution of this, in conjunction with
the other House of Parliament,' expressing the feelings proposed to
be embodied in the address to the crown. No reply was made by
the mover of the address (Earl Russell, the foreign secretary) to
this point. 1

On June 30, and July 10 and 13, 1863, a singular and unprece- Andonpht
dented occurrence took place in the House of Commons. Two no T com-
members, Messrs. Roebuck and Lindsay, in the course of debate murica-
upon the expediency of recognising the Southern American Confe- tions from
deracy, communicated to the House an opinion of the Emperor of the J^f J ^ n
French upon the subject, which his Imperial Majesty, they stated,
had authorised them to make known to the House of Commons.
This proceeding gave rise to a very lively discussion, and elicited
from Lord Palmerston (the premier) some very pertinent remarks.
' The British Parliament,' he said, ' is in no relation to, has no inter-
course with, no official knowledge of, any sovereign of any foreign



Hans. D. v. 136, pp. 329, 390. * Ib. v. 178, p. 1223.



364



THE SOVEREIGN.



Houses of
Parlia-
ment
can only
communi-
cate with
other
legislative
bodies
through
the im-
perial
executive.



country. Therefore it is no part of our functions to receive commu-
nications from the sovereign or government of any foreign state,
unless such communications are made by the responsible minister of
the crown, in consequence of official communications held by order
of a foreign government with the British Government.' After further
observations on this point, his lordship declared that he thought it
right to place on record, so far as could be done by a statement in
the House, that the proceeding in question was ' utterly irregular,
and ought never to be drawn into precedent.' *

The principle involved in the foregoing cases admits,
moreover, of a more extended application, and forbids
of any formal communications between the Houses of
Lords and Commons and other legislatures in the British
empire, except through the medium of the executive
officers of the Imperial Government ; and likewise of
any official communication between a colonial and a
foreign government, except through the same channel.

Thus, on March 1, 1855, inquiry was made of ministers, in the
House of Lords, whether they intended to propose that the thanks
of Parliament should be given to the several colonial legislatures
who had liberally evinced their sympathy with the mother country
during the Russian war, by large contributions to the Patriotic Fund.
It was replied, that no precedent existed for such a communication,
and that ' it was a matter of grave doubt whether a precedent should
be now set, recognising an intercommunication between the Imperial
Parliament and the legislatures of the colonies in matters pertain-
ing to the crown, which would set the crown altogether aside.' In
this view all the leading statesmen of the House concurred. 2

In 1878, the colonial government of New Zealand, being desirous
of conveying the thanks of the colony to the Government of the
United States of America, for a generous gift of salmon ova to be
distributed to the different rivers in the colony, communicated the
same through the Governor, to her Majesty's secretary of state for
the colonies ' in the hope that her Majesty's Government will permit
a communication to be made to the Government of the United
States ' to this effect.* A similar course was taken by the two Houses



' Hans. D. v. 172, p. 669.

Ib. v. 136, pp. 2073-2084. See
also the course taken by the II. of
Lords, in 1856, upon the occasion of
the gift by the widow of the late Ld.
Chanc. Truro of bis collection of law



books, as a donation to the library.
Ib. v. 141, p. 133. Lords' Jour. 1856,
pp. 74, 95.

a New Zealand Papers, 1878, A. 1,
p. 12.



THE RIGHT OF MAKING TREATIES. 3G5

of the several Australian Parliaments in expressing their sympathy
and condolence upon the death of President Garfield. These resolu-
tions were ordered to be sent by telegraph. b The United States
Government promptly responded by telegram addressed by their
Secretary of State to the United States Minister in London. He
sent the reply to the Foreign Office, which communicated it to the
Colonial Office, and the secretary for the colonies forwarded it to
the several governors in Australia.* 5

(3.) The Right of making Treaties.

It is a peculiar function of sovereignty to make trea- Rights of
ties, leagues, and alliances with foreign states or princes ; th . e s ve '



Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 34 of 85)