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Phillimore in the Admiralty division in March, 1879. It was admitted that the convention had never been confirmed by statute. On the part of the Crown it was contended, “both that it was competent to Her Majesty to make this convention, and also to put its provisions into operation without the confirmation of them by Parliament." The plaintiffs admitted the former proposition but denied the latter. The only question before the court, was, as Sir Robert Phillimore held, did the treaty of itself exempt the vessel from the proceedings? i. e., could a right of a British subject recognized by Parliament be ceded or extinguished by the Crown without the sanction of the legislature? Upon this he decided in the negative, observing: “If the Crown had power without the authority of Parliament by this treaty to order that the “ Parlement Belge” should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrongdoer on account of the collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished. This is a use of the treatymaking prerogative of the Crown which I believe to be without precedent and in principle contrary to the laws of the constitution."; On appeal the decision was reversed, but on the ground that the “ Parlement Belge" as a public ship, belonging to the King of the Belgians, was according to international law (which was thus recognized as a part of the law of the land) exempt from proceedings in rem independently of the immunities that might arise under the treaty. The principle on which the decision of the lower court was based has been main
'The Parlement Belge, 4 Law Reports, Probate Division, 149, 154. 's Law Reports, Probate Division, 197.
tained in debates and in diplomatic correspondence. Mr. Gladstone, in opposing the course of Conservatives in 1890, in requiring the assent of Parliament to the cession of the island of Heligoland, observed, “I believe it to be also a principle—and I speak subject to correctionthat where personal rights and liberties are involved they cannot be, at any rate, directly affected by the prerogative of the Crown, but the assent of Parliament, the popular, elected body to a representative chamber is necessary to constitute a valid treaty in regard to them.”: The same principle was involved in the declaration made by the Marquis of Salisbury in the Bering Sea correspondence with the United States in 1890, that the British government could not, without legislative sanction, exclude for an hour British or Canadian vessels from any portion of the high seas.
On the principle that the Crown cannot annul a law by treaty or destroy legal rights of British subjects, the question has often been raised by British statesmen, whether territory for which special laws have been passed by Parliament, or territory acquired by settlement, to which according to English jurisprudence a British subject is considered to have carried in some degree the rights and privileges of British subjects and the laws of his country, can be ceded by the Crown without the sanction of Parliament. Territory acquired by conquest falls immediately under the legislative power of the Crown in Council, while that acquired by settlement does not so fall unless by virtue of an act of Parliament.3
Hansard's Debates, vol. cccxlvii, p. 761. · For. Rel, of the U, S. 1890, p. 433.
* Anson, Law and Custom of the Constitution, vol. ii, p. 258. The British settlement act of 1887 places under the legislative power of the Crown in Council all possessions acquired by settlement, in contradis
The right of the Crown to establish by treaty a boundary, whatever may have been the manner in which the territory affected was acquired or has been governed, seems to be well established and supported by precedents. While a treaty simply to determine a boundary line operates as an acknowledgment of title rather than as a treaty of cession,' precedents may be found in which territory has by express stipulation been exchanged."
The question of the power of the Crown to cede territory was considered in concluding the first peace with the United States. Special acts had been passed, applying to the American colonies. Among these were the act of 16 George III, c. 5, which prohibited trade, and the act of 17 George III, c. 7, which authorized hostilities. In arranging for the treaty, it seemed to some to be necessary, in order to annul these and other laws applying to the colonies, that Parliament should give its assent to the conclusion of a treaty. Accordingly, an act was passed authorizing the king to conclude a treaty and annul and make void any inconsistent act. Uncertainty as to the necessity of this measure was expressed in the debates. Earl Shelburne on December 13, 1782, in reply to a question respecting the provisional treaty said : “That agreement had been made in consequence of an
tinction to those acquired by conquest and cession, not for the time being within the jurisdiction of the legislature of any British possession. 50 & 51 Vict. c. 54, sec. 6.
'Hall, International Law (4th ed.), p. 102.
* A notable case is the exchange of territory on the Gold Coast expressly stipulated for in Art. I of the treaty with the Netherlands of March 5, 1867. The act of Parliament of April 11, 1843, placing British settlements on or adjacent to the coast of Africa, under the legislative power of the Crown in Council was, it would seem, applicabie to this territory. 6 & 7 Vict. c. 13.
* 22 George III, c. 46.
act of the last session, empowering His Majesty to conclude the difference between this country and America, so anxious had Parliament been that there should be no obscurity in the matter.”: The peace as signed was in the nature of a treaty of recognition and partition, and may in this respect be distinguished from a treaty of cession.
Various opinions as to the power of the Crown have been expressed in Parliament. On May 9, 1854, Sir Alexander Cockburn, Attorney-General, stated his views relative to the relinquishment by order in council of British sovereignty over the Orange River territory. According to his opinion, when the Cape of Good Hope was acquired, the Boers, in order to avoid the jurisdiction of the English, left the country and established themselves in the territory of the Orange River. They were pursued by the British troops, overcome and compelled to acknowledge British sovereignty over this territory. It was then, said Sir Alexander Cockburn, acquired by conquest, and “the Crown acting under the advice of the Privy Council had a perfect right” to give
In the course of his argument he observed that colonies might be divided into two classes, “such as were acquired by occupancy, and such as were acquired by conquest and by cession.
While there was no question as to the right of the Crown to cede those acquired by conquest, he was aware that there existed considerable difference of opinion as to whether those acquired by occupancy could be alienated otherwise than by an act of the legislature. On February 10, 1863, Lord Palmerston, in the debate on the relinquishment of the pro
i Parl. Hist., vol. xxiii, p. 307.
tectorate influence over the Ionian Islands, after pointing out the radical distinction between such a relinquishment and an actual cession, added : “But with regard to cases of territory acquired by conquest during war, and not ceded by treaty, and which are not therefore British freehold, and all possessions that have been ceded by treaty and held as possessions of the British Crown, there is no question that the Crown by its prerogative may make a treaty alienating such possessions without the consent of the House of Commons.' In direct answer to a question on the prerogative of the Crown in this respect, Sir Roundell Palmer, Solicitor-General, on March 24, 1863, said: “When British subjects have settled in newly discovered territories, not countries acquired by conquest or cession, they carry with them the laws of this country. In that case cession could not take place without the consent of Parliament. In the case of conquered or ceded countries, if Parliament had legislated concerning these countries, then I apprehend the concurrence of Parliament might be necessary.". It being suspected in Parliament that negotiations were taking place for the cession to France of the Gambia Settlement, a region explored and occupied in the early part of the seventeenth century by English, French and Portuguese traders, and expressly assigned to Great Britain by Article X of the treaty with France of September 3, 1783, Mr. Gladstone was asked on June 10, 1870, whether it was possible that the Settlement and the great arterial communication of Africa could be conveyed to France without the consent of Parliament. He replied, that his impression was that such an agreement could not be carried out
Ibid., vol. clxix, p. 1808.
' Hansard's Debates, vol. clxix, p. 230. Chalmer's Treaties, vol. i, p. 500.