Gambar halaman
PDF
ePub

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 it up. 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

1 Parl. Hist., vol. xxiii, p. 307.

"Hansard's Debates, vol. cxxxiii, pp. 81, 82.

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, 1783,3 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

'Hansard's Debates, vol. clxix, p. 230. 'Ibid., vol. clxix, p. 1808. 'Chalmer's Treaties, vol. i, p. 500.

without the consent of Parliament; and added that there never had been the slightest intention of taking any proceedings of the kind without such consent.' To the observation made by the Duke of Manchester in the House of Lords, that the transaction appeared "to involve the undue exercise of the prerogative of the Crown," Earl Granville replied that at the beginning of the negotiations it had been distinctly stated that "nothing could be completed without the consent of Parliament."

The Privy Council found occasion to express an opinion on this subject in a decision rendered through Lord Selborne (Sir Roundell Palmer) March 28, 1876. The case came before the council on an appeal from the High Court of Bombay. This court had based its decision on the principle "that it was beyond the power of the British Crown, without the concurrence of the Imperial Parliament, to make any cession of territory within the jurisdiction of any of the British courts in India in time of peace to a foreign power." The council supported the decision of the lower court, but not on the same ground. It found in point of fact that there had been no cession of territory in the case, nothing more than an attempted rearrangement of jurisdiction within British territory. As to the ground on which the High Court of Bombay rested its decision, the council said, "But having arrived at the conclusion that the present appeal ought to fail, without reference to that question, they think it sufficient to state that they entertain such grave doubts (to say no more) of the soundness of the general and abstract doctrine laid down by the High Court of Bombay as to be unable to advise Her Majesty to rest her

'Hansard's Debates, vol. cci, p. 1843. 'Ibid., vol. cciii, pp. 339, 341.

decision on that ground." It is worthy of note that the eminent jurist Mr. Forsyth, who has contended for a limitation on the Crown in this respect, and who appeared for the respondents in this case, was unable to cite to the satisfaction of the court any instance in which the assent of Parliament had been given to a cession of territory."

3

By the treaty signed on July 1, 1890, however, it is expressly stipulated that, "Subject to the assent of the British Parliament the sovereignty over the island of Heligoland together with its dependencies is ceded by Her Britannic Majesty to His Majesty the Emperor of Germany." The island had been seized from Denmark in 1807, and the conquest was formally recognized by that country in the treaty signed at Kiel, January 14, 1814.* It remained under the legislative powers of the Crown in Council and was peopled principally by the native Germanic stock. The course of the Conservatives in inserting in the treaty a clause requiring the assent of Parliament to the cession was opposed by the Liberals, especially by Mr. Gladstone and Sir W. Vernon Harcourt. The former declared with some emphasis that in the whole course of its existence the House of Commons had never before been asked to vote a cession of territory, whatever its nature, and that such a procedure had at the most only dicta of legal authorities for its support, while the uniform practice of the government

'Gordhan vs. Kanji, 1 Law Reports House of Lords and Privy Council Appeal, 332, 373, 382.

Ibid., p. 367.

'Art. XII. Brit. and For. State Papers, vol. lxxxii, p. 46.

Art. III. Hertslet's Map of Europe by Treaty, vol. i, p. 27. 'Attorney-General Sir. R. Webster, Hansard's Debates, vol. cccxlvii,

p. 830.

stood opposed.' The Conservatives defended their action on the ground of expediency and desirability rather than of necessity. Mr. Goshen, Chancellor of the Exchequer, remarked in debate, "We do not for a moment base our argument on the assumption that the assent of Parliament was indispensable to the cession."" Mr. Balfour considered the constitutional law and practice in question in a nebulous and very uncertain condition. It seemed to him an absurd doctrine of constitutional law that any treaty which involved even a sixpence of expenditure should require the assent of Parliament, but that one which might involve the cession of places of vital interest to the safety of the British Empire could be consummated by a ministry, which might be called to account but could not be prevented from carrying out its policy. In reply to Sir W. Vernon Harcourt's objection, that the present procedure would establish a binding precedent, Mr. Balfour said: "I do not object to its being a binding precedent if you do not exceed the precedent. The precedent is this—that in a time of profound peace, when no great public emergency threatens the state, when no other and ulterior considerations were involved, when no difficulties of negotiation would be produced, then, and then only, a cession of British territory and the transfer of British subjects to a foreign dominion, should not be undertaken until the assent of both Houses of Parliament had been declared. That is the precedent we have set. *** It is a precedent which we think ought to be followed."3 Parliament gave its assent to the cession by the act of August 4, 1890. From subsequent practice it may be concluded that the precedent in the case of

'Hansard's Debates, vol. cccxlvii, pp. 760, 764, 773. 2 Ibid., p. 771. 3 Ibid., pp. 787, 788. 53 & 54 Vict. c. 32.

« SebelumnyaLanjutkan »