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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
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, i Law Reports House of Lords and Privy Council Appeal, 332, 373, 382. : Ibid., p. 367. * Art. XII. Brit. and For. State Papers, vol. Ixxxii, 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, 1890.4 From subsequent practice it may be concluded that the precedent in the case of
"Hansard's Debates, vol. cccxlvii, pp. 760, 764, 773.
* Ibid., p. 771. Ibid., pp. 787, 788.
* 53 54 Vict, c. 32.
Heligoland does not affect the power of the Crown to adjust by mutual exchange of territory boundaries of colonial possessions, or to relinquish such rights of sovereignty as were yielded to Germany and the United States in the Samoan treaties of November 14 and December 2, 1899. Even by those who seek to place a limitation on the prerogative of the Crown, it is usually conceded that in concluding peace, and especially in the event of a calamitous war, an unusual power may be exercised.
Efforts have been made to provide for the compulsory submission of treaties to Parliament before their ratification. Three resolutions to this effect were introduced in Parliament in 1873–February 14, declaring that all treaties with foreign powers ought to be laid before both Houses before being ratified; March 3, embodying an address to the Crown praying that all treaties, by which disputed questions between Great Britain and a foreign power were to be referred to arbitration, might be laid before both Houses of Parliament six weeks before they were definitely ratified; and on March 4, declaring that all treaties ought to be made subject to the approval of Parliament, as in the case of the commercial treaty of 1860 with France.' On the other hand, the suggestion that treaties should be approved by Parliament in advance of their definitive conclusion has been objected to on the ground that the efficacy of parliamentary responsibility would thereby be impaired. Lord Palmerston being asked, April 11, 1864, in reference to the coming conference on the affairs of Denmark, whether the engagements that might be formed would be submitted for the consent of Parliament before the ratifica
1 Hansard's Debates, vol. ccxiv, pp. 448, 1166, 1178, 1309, 1319.
tion by the Crown was advised, replied: “It is not the practice, nor is it in accordance with the principles of the Constitution, that the Crown should ask the advice of its Parliament with respect to engagements which it may be advised are proper to be contracted.”
1. PRIOR TO 1875 The registering, or the repudiating, of a few exceptional treaties by the parlement of Paris or by the statesgeneral, at the will of the king, or, in his absence, of the regent, does not warrant any qualification of the statement that prior to the Revolution the treaty-making power in France resided exclusively in the king. The two treaties most frequently adduced in contentions to the contrary--the terms of peace agreed to by King John after the battle of Poitiers in 1356, and the treaty of Madrid, signed by Francis I, January 14, 1526, after the defeat of Pavia—were signed by captive kings, and in the latter case the signature was given under a secret protest. The first treaty was, regardless of the captive king's wish, declared not binding by the states-general assembled for that purpose by the dauphin, and the war continued until the peace of Bretigny in 1360; the second, although valuable hostages had been pledged, was repudiated in accordance with the request of the released king by the parlement of Paris. It is also true that the important treaty of Troyes signed May 21, 1420, by
"Hansard's Debates, vol. clxxiv, p. 788. See also vol. ccvi, p. 1106; vol. cciii, pp. 1776, 1790.
?A. Saint Girons, Manuel de Droit Constitutionnel, p. 465. Martin, Histoire de France, vol. viii, p. 104. Kitchen, History of France (3rd ed.), vol. i, p. 460; vol. ii, pp. 209, 210.