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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."
I. 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.
2A. 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.
which France and England were to be joined ultimately under one king, was, after important stipulations had been executed, submitted to the states-general for confirmation. To Henry V, of England, this confirmation seemed to furnish additional security for the full execution of the treaty. As early as 1321 the states-general protested against the selling of the royal domain. The advice of the estates assembled at Blois in 1576 having been asked by Henry III upon a proposal to sell territory in order to obtain means to carry on a war, the nobles and clergy consented, but the tiers état objected, and the sale does not appear to have been made.' An internal disposition of the royal domain was, however, a different thing from a cession by international treaty, and the admission of a restraint in the former case did not necessarily imply a check on the royal prerogative in the latter. The parlement of Paris was called upon at various times to register treaties-in 1480, to register the treaty of October 9, 1478, with Spain; in 1483, the treaty with Maximilian signed at Arras, December 25, 1482.3 It is recorded that in the latter case the court deliberated upon the different clauses. Several treaties were registered during the reigns of Charles VIII and Louis XII. It was expressly stipulated in the treaty of the Pyrenees of November 7, 1659, that for greater security, it should be published, ratified and registered in the court of the parlement of Paris, and in all other parlements of France, as also in the
'Stubbs, Constitutional History of England, vol. iii, p. 89. Picot, Histoire des Etats Généraux, vol. i, pp. 284-6.
'Picot, vol. i, pp. 29, 339-41; Martin, vol. ix, p. 460; Kitchen, vol. ii, pp. 373-4.
'Aubert, Histoire du Parlement de Paris, vol. i, p. 352.
4 Ibid., p. 353.
chamber of accounts. Similar articles are found in the important treaties signed at Aix la Chapelle, May 2, 1668, with Spain; at Nimeguen, September 17, 1678, with Spain; and at Ryswick, September 20, 1697, with the United Provinces and with Spain. The action of the compliant parlement in this particular, however, could hardly insure it any recognition as a distinct organ in treaty-making.
The principal discussions as to treaty-making, in the Constituent Assembly that framed the constitution of 1791, occurred, May 16-23, 1790, on the question whether the nation ought to delegate to the king the exercise of the power of peace and of war.5 The lamentable treaties of Louis XV, by which France had been stripped of her colonial possessions, were quite naturally associated by some with the unrestrained power of the king in treatymaking. Numerous measures differing much in their nature were introduced. On May 16 a project was submitted by le curé Jallet providing that the king should not enter into negotiations for peace or alliances without the consent of the assembly. A project submitted the following day by M. de Villeneuve assigned to the king the power of proposing conditions of peace and projects of treaties, but always subject to the modification and approval of the legislative body. It was contended in the course of debate that the king should be given the power to conclude treaties of peace-by le comte Sérent, without restriction;9 by le comte 3 Art. XXXI.
1 Art. CXXIV.
2 Art. IX.
Articles XXII and XLV of the treaties with the United Provinces, and Art. XXXVII of treaty with Spain. Collection of Treatys, vol. i. pp. 97, 160, 232, 316, 331, 345.
Le Moniteur, p. 554 et seq.
1 Ibid., p. 555, col. 2.
Ibid., p. 557, col. 2.
Galissonnière, on the authority of a responsible minister; by various others, with the qualification that treaties providing for the furnishing of subsidies or for the cession of the territory or property of the nation should require legislative sanction. With the treaty clause as with many other sections of the constitution of 1791, it was Mirabeau's project that was finally adopted as the basis of the constitutional provision. According to his project, as introduced May 20, and later adopted by the Assembly, it appertained to the executive to arrange and sign with foreign powers all conventions which he should judge necessary for the welfare of the state, but treaties of peace, of alliance, and of commerce, were not to be executed until ratified by the legislative body." On May 24, subsequently to the adoption of this project, the wording was, at the suggestion of Mirabeau and with the unanimous consent of the Assembly, so changed as to require legislative approval for all treaties.3 By the constitution of 1793 treaties were to be negotiated by the Executive Council, composed of twenty-four members chosen by the national legislature from the candidates nominated by department electoral assemblies, and were to be ratified by the national legislature. The constitution of 1795 committed to the Directory the negotiating and signing of treaties, but all treaties before they could become valid were to be examined and ratified by the legislative body. Secret articles might be arranged, and might receive a provisional execution independent of the legislature, but such articles must
'Le Moniteur, p. 570, col. 1.
Ibid., p. 572, col. 3.
'Ibid., p. 589, col. 2. Title III, ch. 4, sec. 3, Art. III, and title III, ch. 3, sec. 1, Arts. II and III of the constitution. See for text, Dalloz's Répertoire de Jurisprudence, vol. xviii, pp. 291, 293.
Arts. LXX and LV. Text, ibid., p. 299.