Alpheus Todd.

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

. (page 35 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 35 of 85)
Font size
QR-code for this ebook

and by the law of nations it is essential to the validity making
of a treaty that it be made by the sovereign power, for treaties -
then it binds the whole community. In the British
empire this sovereign power is vested exclusively in
the crown, acting under the advice of its responsible

The question of conferring upon the colonies a right to make
treaties in certain cases, e.g., the extradition of offenders and reci-
procal tariff arrangements, has been recently discussed between the
imperial and colonial authorities. d

Whatever engagements or contracts the sovereign
-enters into, no other power within the kingdom can
legally delay, resist, or annul ; although the king's mi-
nisters are responsible to Parliament for their participa-
tion in the conclusion of any treaty derogatory to the
honour and interests of the nation. 6

A treaty is a promise or engagement entered into
by the highest authorities in the states concerned to do
certain things. But it is an obligation of honour and
good faith. No penalty is provided for its violation ;

b Tasmania Leg. Coun. Vote, Sept. e Bowyer, Const. Law, p. 160. 1

29, 1881. Blackstone, c. vii. Ld. Palmerston,

c Ib. July 12, 1882. Hans. D. v. 174, p. 787. Ld. Stanley,

d See Sess. Pap, of Victoria, 1871. Ib. v. 187, p. 1916. See debate in

Despatches to and from the Governor H. of Lords on the interpretation of

of New Zealand in 1872, in New Zea- the ' collective guarantee ' in the

land Pap. See also Am. Law Mag. treaty of Luxemburg, Hans. D. v.

v. 7, p. 186. 188, p. 966.



and there is no existing tribunal, or external authority,
which can enforce the obligations of a treaty/

But it was decided by the judge of the Admiralty
Court, on March 15, 1879, that where a right of a British
subject has been recognised by Parliament, the crown
cannot cede or extinguish that right by a public treaty
without the sanction of the legislature ; and it is not
competent to the crown, without the authority of
Parliament, to clothe a foreign mail packet with the
immunity of a foreign ship of war, so as to deprive a
British subject of the right to proceed against her. g
But on February 27, 1880, this decision was reversed
by the Court of Appeal, on the ground that the immu-
nity of this ship from civil process was incident to her
public character and ownership. 11

The constitutional power appertaining to Parliament
m respect to treaties is limited. It does not require
respect to their formal sanction or ratification by Parliament, as a
condition of their validity. 1 The proper jurisdiction of
Parliament in such matters may be thus defined : First,
it has the right to give or withhold its sanction to those
parts of a treaty that require a legislative enactment to
give it force and effect ; as, for example, when it pro-
vides for an alteration in the criminal or municipal law,
or for the extradition of criminals, or proposes to
change existing tariffs or commercial regulations^ Se-
condly, either House has the right to express to the
crown, by means of an address, its opinion in regard to
any treaty, or part of a treaty, that has been laid before

Power of

1 Earl Derby, Hans. D. v. 230, p.
1462. Ld. Hammond, Ib. p. 1803.
H. Richard, M.P., on the Obligation
of Treaties in Law Mag. 4th S. v. 3,
p. 91. And a paper on Treaties of
Guarantee, Ib. v. 6, p. 215.

Case of ' Le Parlement Beige,' 4
L. R. Prob. Div. p. 129. Law Mag.
4th S. v. 4, p. 257.

" 42 L. T. Rep. N.S. p. 273.

' Hans. D. v. 156, p. 1361. Ib. v.
201, p. 174. Earl Derby's evid. before
Com 6 . onjDiplom. Service, Com. Pap.
1870, v. 7, p. 468.

J See cases in Hertslet's Treaties,
v. 9, p. 1064, &c. And see Forsyth,
Const. Law, p. 369.


Parliament. 11 Thirdly, it is in the power of either
House, if it disapproves of a convention or treaty, to
visit the ministers of the crown who are responsible
for the same with censure or impeachment, as the case
may be. 1

If a treaty requires legislative action, in order to
carry it out, it should be subjected to the fullest discus-
sion in Parliament, and especially in the House of Com-
mons, with a view to enable the government to promote
effectually the important interests at stake, in their pro-
posed alterations in the foreign policy of the nation.
But while Parliament may refuse to agree to measures
submitted to them for the purpose of giving effect to
any treaty, they have no power to change or modify, in
any way, a treaty itself. n

Until of late years, it was not usual to lay before
Parliament treaties prior to their ratification by the
governments concerned. A contrary practice has re-
cently prevailed in several instances.

In 1865, the government submitted to the House of Commons a
' Sugar Duties and Drawback Bill,' the object of which was, ' to give
effect to a treaty which had not yet been ratified, and therefore could
not be presented to the House in the usual form, by command of
her Majesty ; but for the information of the House, as the treaty
required legislation, a copy had been presented as a return from the
Treasury.' P

In 1870, a treaty of neutrality with Belgium was for special

k Mr. Pitt's dictum, Smith's Parl. and Ld. John Russell's observations

Bememb. 1860, p. 33. Ld. Aber- thereupon. Hans. D. v. 159, p. 188G.

deen's motion in H. of Lords, Jan. ' Mr. Gladstone, in Hans. D. v.

26, 1832, for an address to the king, 166, p. 1380. Ld. H. Petty'a motion

to cause certain alterations to be made of censure in regard to the Convention

in the project of a treaty respecting of Cintra. Parl. D. Feb. 21, 1809.

Holland, which had been made public, For older cases, see Cox, List. Eng.

with a view to the honour of Great Govt. p. 599. And ante, p. 106.

Britain and the just claims of Hoi- m Hans. D. v. 156, pp. 1256, 1326.

land. (Mir. of Parl. 1831-2, pp. 310, n Mr. Gladstone, Hans. D. v. 71,

2823.) Mr. B. Cochrane's motion, in p. 548.

House of Commons, on July 13, 1860, Hans. D. v. 206, p. 1 103.

in regard to an article in the treaty p Chan, of the Excheq. Hans. D. v.

with China, respecting the residence 180, p. 280.
of a British Plenipotentiary at Pekin ;



Right of
ment to
i nf orma-

reasons informally communicated to both Houses of Parliament on
the day of prorogation, although its formal ratification had not been
completed.^ The same course was taken with regard to the treaty of
Washington in 1871, r and in the case of the French Commercial
Treaty in 1873. 3

Nevertheless, the prerogative of the crown in this
particular has not been abandoned, and it is still in the
discretion of government to refrain from communicating
any treaty, especially a treaty of peace, to either House
of Parliament until after it has been ratified.*

Treaties between foreign powers, to which Great
Britain is not a party, are not communicated to Parlia-
ment ; although copies thereof may be in the possession
of the British Government."

On March 3, 1873, Lord Campbell moved that the House of
Lords should address her Majesty, praying that all treaties or con-
ventions by which disputed questions between Great Britain and a
foreign power are referred to arbitration may be laid upon the table
of both Houses six weeks before they are definitively ratified. But
the leaders of the government and of the Opposition objected to this
motion ; it was negatived without a division. On the following day,
a motion in the House of Commons, that all treaties with foreign
powers ought to be made conditionally on the approval of Parlia-
ment, was negatived without a division.

After the treaty of Washington of 1871 had been signed, but
before its ratification, the government was induced to communicate
it to Parliament. Whereupon, on June 12, Earl Russell moved, in
the House of Lords, an address to her Majesty praying that a certain
novel principle in the said treaty for the settlement of the Alabama
claims might not be sanctioned. Ministers, while anxious for discus-
sion in Parliament upon the treaty, deprecated the adoption of the
proposed motion. The Earl of Derby (a leading Opposition peer)
was of the same opinion. He pointed out that the agreement of the
House of Lords to the resolution would not lead to the breaking off
of the treaty, unless concurred in -by the House of Commons. And that
such a question, being vital to the existence of a ministry, would be
treated as one of confidence by the House of Commons, and not

i Chan, of the Excheq. Hans. D.
v. 203, pp. 1759, 1790.
' Ib. v. 206, p. 1108.
Ib. v. 214, p. 173.

* Mr. Gladstone. Hans. D. v. 214,
p. 470.

u Mir. of Parl. 1834, p. 2868.


determined upon the merits of the case. Accordingly, after full
debate, the motion was negatived without a division.'

On June 29 Lord Oranmore moved an address to the Queen con-
veying the deep regret felt by the House of Lords at her Majesty's
having been advised to sign a treaty with the United States which
was unbecoming the honour and dignity of this country. But the
motion was negatived without a division. w

It is unnecessary and inexpedient for the House of Alleged
Commons to interfere in any way, or declare its opinion, oftreaties
on any matter of alleged violation of treaty, or which
concerns the foreign relations of Great Britain with other
countries ; unless at the instigation of the executive
government, and with a view to powers or opinions
sought for by the executive ; as matters affecting our
relations with foreign countries are prerogative. 1 But
questions may be put to the administration in Parliament,
in reference to alleged infractions of treaties by foreign
powers, and for the purpose of directing the attention of
government thereto/

Moreover, ' it is neither regular to ask, nor is it con- Treaties

, . . still pend-

venient to answer, questions relative to treaties which ing.
are yet pending.' z The initiation of a foreign policy
-and the conducting of negotiations with foreign powers
appertains exclusively to the executive government, who
are responsible for the course and issue of the same ;
and should not be interfered with by Parliament, who
necessarily can only possess imperfect information upon
the subject, either by advice or by vote. a So long as

' Hans. D. v. 206, pp. 1623-1901. War, were ' at variance with the

* Ib. v. 207, p. 729. principles of international law.'

* Lord John Russell, Hans. D. (3) r See Ib. v. 157, pp. 749, 757 ; v.
v. 90, pp. 890, 891. See the discus- 158, pp. 1109, 1120.

B ion, in the H. of Commons, on June E Mir. of Parl. 1841, p. 1032.

28, 1861, on an abstract resolution British guarantee in the Luxem-

proposed in reference to the Garibaldi burg case, Hans. D. v. 187, p. 259.

fund, for the liberation of Italy. And Treaty of Tien-tsin, Ib. v. 191, p.

on the motion in the House, on April 1147. Mr. Bagehot, in his Eng.

28, 1864, to resolve that certain in- Const, ed. 1872, urges the expediency

structions issued to a colonial go- of some parliamentary control over

vernor, in regard to the observance the making of treaties, as by requir-

of neutrality in the American Civil ing that they be laid upon the table





not to


Parliament is satisfied with the general principles upon
which negotiations are being conducted, and approves
of the general policy of the government, it should ab-
stain from all interference with pending negotiations. 1 *

So strictly is this rule observed, that, in 1839, a Bill introduced
by government for the Suppression of the Portuguese Slave Trade
was rejected by the House of Lords, at the instigation of the Duke
of Wellington, Lord Lyndhurst, and other eminent statesmen, ex-
itters p ress iy on the ground that Parliament ought not to be called upon
* act i n a matter which should properly be effected by negotiation
and by the action of the executive government on their sole respon-
sibility. After the rejection of the Bill, an address to the crown
was adopted by the House of Lords, urging negotiations with foreign
powers to suppress the traffic in slaves, and the adoption of other
measures by government to that end, especially as regards the
Portuguese slave trade, and giving assurances of the readiness of
the House to concur with the Commons in whatever measure might
be necessary to bring about such a desirable result. To this address
a suitable reply was given by the crown. At the same time, the
ministry introduced another Bill on the subject, which was free from
the principal objections pointed out in the former measure. The
Duke of Wellington, however, was still dissatisfied, and adhered to
his opinion that the objects intended ought to be effected by order
in council, without the intervention of Parliament. In its progress
through the Lords, the Bill underwent some important alterations,
rendering it more comformable to constitutional law and usage ; and
it was finally agreed to by both Houses.

On June 4, 1872, Earl Russell moved that the House of Lords
do address her Majesty, praying that proceedings may be stayed
before the arbitrators at Geneva, under the Treaty of Washington,
until the indirect claims, included in the American case, shall have
been withdrawn ; inasmuch as it is understood by her Majesty's
government that these claims do not come within the province of

of both Houses certain days before
they become valid, pp. xlv.-xlix. But
see 'Mr. Gladstone thereon, Hans. D.
v. 210, p. 325.

b See the speeches of Mr. Disraeli
and of Ld. Palmerston, in Hans. D.
v. 175, pp. 1279, 1286. And of Earls
Derby and Russell, Ib. pp. 1924,
1928. Papers regarding pending ne-
gotiations with foreign powers are
only communicated to Parliament at
the discretion of the Crown, and so

far as they can be produced without
public injury or inconvenience ; see
Mir. of Parl. 1630, p. 671 ; 1840, pp.
2047, 2049; 1841, p. 1507. Hans.
D. v. 187, p. 1492. Confidential com-
munications from foreign powers are
never laid before Parliament without
previous communication with the
powers concerned. Disraeli, Ib. v.
230, p. 885. And see ante, p. 357.

See Parl. D. 1839, passim. Ann.
Keg. 1 839, pp. 242-255.


the arbitrators. Earl Granville (foreign secretary) declared that such
an address would be considered as a vote of censure. On June 6,
upon receiving certain satisfactory assurances from government,
Earl Russell withdrew his motion. On June 11, Lord Oranmore
moved a similar address, which was put and negatived without
debate or division.

After the conclusion of important negotiations with Result of
the representatives of any foreign state or states, it is S^to"
usual for the government to communicate the result to , be made

_.,. , , , 1-1 t t known to

Parliament, and to declare what is the course which Pariia-
the government propose to take in regard to the ques- '
tions involved therein. 4 If either House should be of
opinion that the government has failed in its duty in
any respect, it is competent for them to take any line
of conduct they may think proper, in order to make
known to the crown their opinions upon the subject. 6
For, while the initiation of a foreign policy is the
prerogative of the crown, to be exercised under the
responsibility of constitutional ministers, it is the duty
of Parliament, when the result of the negotiations con-
ducted by ministers has been communicated to them,
to criticise, support, or condemn that policy, as they
may deem the interests of the nation shall require/

Thus, on July 4, 1864, after the protocols of the conference held Invasion
in London, in the summer of 1864, between the representatives of f Den-
European powers, to consider of the dissensions between Denmark ?^f, '
and Germany, had been laid before Parliament, Mr. Disraeli moved
in the House of Commons a vote of censure upon ministers, in the
shape of an address to the Queen, to represent that the course pur-
sued by the government had failed to maintain their avowed policy
of upholding the integrity and independence of Denmark, had
lowered the just influence of this country in the counsels of Europe,
and thereby diminished the securities for peace. An amendment, to
declare that the independence of Denmark and the security of its
possessions in Schleswig-Holstein ought to be guaranteed, was
negatived without a division. Another amendment, approving of
the conduct of government in abstaining from armed interference

d Mr. Gladstone, Hans. D. v. 199, Earl Russell, Ib. v. 176, p. 323.
p. 3-25. ' Mr, Disraeli, Ib. p. 749.

B B 2



the crown
may dis-
itself of
assent of

in the war, for the defence of Denmark, was put, and agreed to. On
July 8, a similar vote of censure was proposed in the House of
Lords ; an amendment, to modify the terms thereof, was put, and
negatived, and the main question was agreed to. It is noteworthy
that this vote was carried by means of proxies, for, of the peers
present, there were 123 non-contents to 119 contents ; but, by the
aid of proxies, this decision was reversed, and the total majority in
favour of the vote of censure was 9, there being 177 in favour and
168 against it.s

On March 30, 1871, the course taken by govern-
ment in accepting a proposal for the assembling of a
conference in London to revise the obligations imposed
by the Treaty of Paris, of 1856, was made the subject
of a motion of censure in the House of Commons,
which motion, after a long debate, was negatived,
without a division. The question whether the crown
has power by its prerogative to cede British territory
to a foreign state, except under a treaty of peace, or
to dispossess itself of its sovereignty over any portion
of its dominions, without the assent of Parliament, has
been frequently discussed, and still remains doubtful. 11
This question, so far as regards the right of the crown
to surrender to a foreign state a part of its territory,
was supposed to have been settled in the affirmative,
on the authority of Lord Chancellor Thurlow, but Lord
Campbell disputed the correctness of the dictum of his
predecessor. 1 The point again arose in 1863 upon the
cession of the Ionian Islands to Greece, when it was
argued by Earl Grey, in favour of the crown ; j also by

* Han8. D. v. 176, p. 1190.

h See a digest of cases and opinions
on the subject in Forsyth, Const.
Law, pp. 182-186. And the debate
in H. of Commons, in 1854, in rela-
tion to the issue of a royal procla-
mation abandoning the sovereignty
of the crown over the Orange River
territory, Hans. D. v. 133, pp. 53-
87. And see Amos, Fifty Years Eng.
Const, p. 413. Also observations in

bothHouses in regard to the pro-
posed transfer of the Gambia Settle-
ment to France. Hans. D. v. 201,
p. 1843 ; v. 203, pp. 339, 351 ; v. 206,
p. 153 ; v. 226, pp. 444 ; v. 227, p.
374 ; v. 228, p. 264.

1 Campbell's Chanc-^v. 6, pp. 555,
rib. "

556 n. Smith's Parl. Rememl
pp. 13, 141.

J Hans. D. v. 169, p. 57.



Lord Palmerston, and Sir R. Palmer (Solicitor- General),
to a similar effect, with an exception in the case of
newly-discovered territories which had been settled by
British subjects, when the laws of England having
been introduced therein, it was contended that the
cession could not take place without the consent of
Parliament. Or, in the case of conquered or ceded
countries, if Parliament had legislated concerning them,
Sir Eoundell Palmer considered that the concurrence
of Parliament might be necessary to their relinquish-
ment : k an opinion which was considered by the Privy
Council, without being fully decided, in 1876. 1

The consent of Parliament is not necessary to the Consent of
acquisition, by the crown, of additional territory, from mTntTnot
foreign powers ; provided the same is not obtained by necessary

J for acqui-

purchase. m sition of


On June 25, 1872, it was moved in the House of Commons that
an address be presented to her Majesty that she would be pleased to
consider the propriety of establishing a protectorate at Fiji, or of
annexing those islands, with the consent of the inhabitants. Being
opposed by ministers, the motion was negatived on division. The
question was again mooted in the House, with a similar result, on
June 13, 1873. On August 4, 1874, whilst negotiations were pend-
ing for the annexation of the Fiji Islands to the British Empire, a
private member of the House of Commons moved a resolution to
express approval of the same. But it was objected to, as tending
to diminish the responsibility of the government, and to assume an
unjustifiable responsibility on the part of the House of Commons,
and the motion was negatived.

(4). Interference in the Internal Concerns of Foreign

The crown, acting through the secretary of state inter-
for foreign affairs, is sometimes called upon to express J^J^

of foreign

k Hans. D. v. 169, pp. 230, 1807 ; p. 657; v. 211, p. 287. Diamond nations -

and see Ib. v. 174, p. 378. Fields in S. Africa, Ib. v. 207, p. 1631.

1 Damodhar Gordhan v. Deoram Acquisition of Fiji, Ib. v. 226,p. 571.

Kangi. 1 L. R. App. Cases, p. 33^ ; And see Amos, Fifty Years of Eng.

and Law Rev. v. 4, 4th S. p. 277. Const, p. 403.

m Dutch Guinea, Hans. D. v. 205.



interven- its opinions in regard to the conduct of other powers,

tion in - . , . mi

in matters oi internal or domestic concern. I he inter-



ests of British subjects resident in foreign parts, or
engaged in commercial transactions with foreign citi-
zens, may require the interposition of the crown on
their behalf; or a particular line of policy adopted by
a foreign state towards its own subjects, or towards
a neighbouring state, may be viewed by the British
government as contrary to recognised principles of
humanity, or of natural right, or as being likely to
occasion a disturbance of the peace of nations. Under
such circumstances, the crown is warranted by inter-
national usage in offering friendly advice or remon-
strance to a foreign government. 11 But great delicacy
is necessary in all such acts of intervention, lest they
should fail of their intended effect, and irritate instead
of conciliating ; thereby weakening the moral strength
of the crown in its foreign relations, or necessitating a
resort to arms.

' All public writers have declared that a nation has the right to
settle its own form of government, provided it does not injure other
nations in its mode of doing so, just as every householder may
regulate his own house, provided he does not cause a nuisance to
the neighbourhood ; but if one nation attacks another, all nations
are at liberty to judge whether their interests and the general inde-
pendence are affected thereby. Thus the first kind of intervention
should, as a rule, be forbidden and avoided.' Of late years, the
leading powers of Europe have abstained, as a general principle,
from such intervention. ' But the case would be quite different if,
when a great power attacks a small independent state, with a view
to conquest, other powers were as a rule to remain quiescent/ ' It
does not follow, however, that in every case of invasion with a view

" See a number of instances, cited
by Ld. Palmerston, wherein the Brit.
Government ' have interfered with
great success in the affairs of other
countries, and with great benefit to
the countries concerned,' Hans. D. v.
175, p. 532. Ib. v. 235, p. 402.

Ld. Palmerston, when foreign
secretary, gave frequent offence to

foreign governments, and even to his
own government. Thus, in 1848, an
irritating and ill-judged despatch,
which greatly irritated the Spanish
Government, and gave rise to much
debate in both Houses of Parliament.
Martin's Pr. Consort, v. 2, p. 65.
And see Ib. pp. 278, 301.


to interference in the internal concerns of a state, neutral powers
are bound to resist the invader.?

It is obvious that, if any diplomatic interventions
are called for, they can only be exercised through the
recognised official channels of international communi-
cation. Direct interference by either House of Parlia- whenPar-

. J . , t ' ' liament

ment in the domestic or municipal concerns 01 a loreign may inter-
country would be highly irregular and unconstitu- ^IrsTof

Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 35 of 85)