"treaty, then a foreign power has the right jure gentium to hold "the ceded territory, however improperly it may have been "granted. A treaty concluded with a foreign State by the "President of the United States alone, without the consent of "the Senate, would not, according to the Constitution, be binding "on the nation, and the foreign State would derive no rights "under it; and, in like manner, it may be contended that a "foreign State derives no title to British territory ceded by the "Crown as a free gift in time of peace, without reference to "treaty.

"There is no doubt that it is part of the prerogative of the Crown "to make treaties with foreign powers; and Blackstone lays down "the law correctly when he says that in doing so, 'whatever con"tracts he (the Sovereign) engages in, no other power in the king"dom can legally delay, resist or annul.' Wheaton indeed, says '(Internat. Law, s. 542), that in Great Britain the treaty power "is 'practically limited by the general controlling authority of "Parliament, whose approbation is necessary to carry into effect "a treaty by which the existing territorial arrangemente of the "empire are altered.' But in the case of treaties of peace fol"lowing a state of war, there is no doubt that the consent of "Parliament is not necessary to enable the Crown to alienate part "of British territory to a foreign contracting power. Kent, in "his Commentaries (vol. 1, p. 175, 10th ed.), says that 'the "power competent to bind the nation by treaty may alienate the "public domain and property by treaty.' The reason of this is, "that if the nation has conferred upon its supreme executive with"out reserve the right of making treaties, the alienation is valid, “because made by the reputed will of the nation.

6

"In Conway v. Gray, 10 East. 536, the Court said: In all "questions arising between the subjects of different states, each "is a party to the public authoritative acts of his own Govern"ment; and, on that account, a foreign subject is as much in

666

capacitated from making the consequences of an act of his own "state the foundation of a claim to indemnity upon a British 'subject in a British court of justice, as he would be if such "act had been done immediately and individually by such for. "eign subject himself.' But the authority of this case was "shaken by Flindt v. Scott (in Error), 5 Taunt, 677, as ex"plained by Thomson, C. B., in Bazett v. Meyer, Ibid. 829; and "it was overruled by Aubert v. Gray (in Error), 32 L. J. (Q.

VOL. I.

R

No. 2.

"B.) 50, where the Court said: 'The assertion that the act of "the Government is the act of each subject of the Government

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is never really true. In representative governments it may "have a partial semblance of truth, but in despotic govern"ments it is without that semblance.'

"Whether the Crown has the power to alienate British terri"tory by treaty, not following the close of a war-as, for instance, "by a commercial treaty-does, I confess, seem to me to be ex"tremely questionable. I should doubt much whether the Crown "without the authority of Parliament, would have the legal "power to cede, by treaty, the Channel Islands to France, there "having been no war, and the cession not being made as part of "the adjustment of a quarrel between the two countries. And "to show how cautiously British statesmen have acted where there was a case of novelty with regard to the exercise of the prerog"ative of the Crown, even as regards peace and war, I may men"tion that when it was resolved, in 1782, to recognize the inde"pendence of the North American Colonies, an Act of Parlia"ment (22 Geo. 3, c. 46) was passed, authorizing the Crown to "make peace with the colonies, and to repeal and make void acts "of Parliament relating to them. I may mention also, that "although, by the Constitutional charter of 1830, the King of "France had the power expressly given to him to make treaties "of peace; the opinions of French jurists have been that he had "not the power of alienating French territory.

"But where there is no treaty, the opinion of jurists seems to "be strongly against the supposition of such a power residing in "the sovereign, except ineeed in a purely despotic form of gov

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ernment; see Grotius de Jure Belli et Pacis, lib. ii, c. 6, ss. 3, "4, 7, 8; Puffendorf, lib. viii, e. 12; Vattel, lib. i, c. 20, s. 224; "c. 21, s. 260; Liv. 4, c. 2, s. 11; Phillimore, part iii, c. 14, "ss. 261, 262.

"In the debate in the House of Lords on the preliminary "articles of peace, January, 1783, (Parl. Hist. vol. xxii, pp. "430-1), Lord Loughborough said, with reference to the cession "of East Florida to Spain, that no prerogative existed in the "Crown to cede without the authority of Parliament any part of "the dominions of the Crown in the possession of subjects under "the allegiance and at the peace of the King. He was answered "by Lord Thurlow, then Lord Chancellor, who said that if this "doctrine were true, he should consider himself strangely ignor

"ant of the Constitution of his country, for till the present day "of novelty and miracle, he had never heard that such a doctrine "existed. The learned Lord, Lord Loughborough, resorted to "the lucubrations and fancies of foreign writers, and gravely "referred their lordships to Swiss authors for an explanation of "the prerogative of the British Crown. He, Lord Thurlow, "for his own part, rejected all foreign books on the point before "them. However full of ingenuity or speculation Mr. Vattel "and Mr. Puffendorf might be on the law of nations, and other points which neither were nor could be fixed by any solid and "permanent rule, he denied their authority, he exploded their "evidence, when they were brought to explain to him what was, "and what was not. the prerogative of the British Crown. But " we must remember that Great Britain had been at war with Spain, and the cession of Florida was under a treaty of peace;

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"so that the declamatory rhetoric of Lord Thurlow proves

"nothing for the point we are considering, which is whether by

we may

ask

a mere grant, not under a treaty of peace, the crown can by its "prerogative cede part of its dominions to a foreign power. "If such a power resides in the British Crown, "for proofs of its existence by acts done. The only precedent I "know of (with the exception of the Orange River Territory, to "be noticed hereafter), is the sale of Dunkirk by Charles II, for "which Lord Clarendon was impeached, and which can hardly "be considered a constitntional precedent now. It would be easy "to show that the Crown before the Revolution claimed to exercise, and did in fact exercise, prerogatives which were not con'stitutional, and which, independently of prohibitory statutes, "would now be disallowed; for instance the claim of the Crown "to levy ship-money, the legality of which was, on the authority "of precedents, maintained by Attorney-General Noy, and up"held by the judges, but which by the statute 16 Chas. I, c. 14,

6

was declared and enacted to be contrary to law.

So the claim

"of the Crown to suspend or dispense with penal statutes by a

6

non obstante, as to which Mr. Broom says, in his 'Constitu"tional Law' p. 507: The current of authority serves to show "that the prerogative of dispensing by non obstante with acts of "Parliament was, subject to certain restrictions, recognized in "former times as vested in the Crown.' But by the Bill of "Rights, it was 'declared' that 'the pretended power of dispens"ing with laws by regal authority is illegal.' So also the grants

"by the Crown of the right of exclusive trading, as in the case "of the East India Company and the Hudson's Bay Company. "In East India Company v. Sandys, 10 State Trials, 371, 554, "the grant of sole trading was held to be good; but it is difficult "to believe that, even independently of the Statute of Monopolies, “such a grant would be held to be good now.

"In a debate in the House of Commons, February, 1863, on "the question of the relinquishment by the British Crown of the “protectorate of the Ionian Islands, it was contended that they “were a posseesion of the British Crown, and Lord Palmerston "was asked whether it was competent, according to the Constitu"tion, for the Crown to alienate them without the consent of "Parliament. His Lordship answered that the Republic of the "Seven Islands was, by the treaty of 1815, placed under the "protectorate of the British Crown, and not given as a possession "to the British Crown. He said that the distinction was manifest ́ ́ ́ and radical,' and added: 'But with regard to cases of territory "acquired by conquest during war, and not ceded by treaty, and

6

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 may make “‘a treaty alienating such possessions without the consent of the "House of Commons.' He then instanced the cases of Senegal, "Minorca, Florida, and the island of Banca, all of them for a greater or less period of time possessions of the British Crown, and they were all ceded by treaty to some foreign power, “therefore there cannot be a question as to the competency of "the Crown to make such cessions.'* But all these were cases "of cession made by treaty of peace at the close of a war, as to “which there never was really any doubt that the Crown could "do so by virtue of its prerogative. They do not touch the "question of whether the Crown has the power where there has "been no war, and consequently no treaty of peace.

"It has, I believe, been supposed that a distinction exists be"tween territory acquired by the Crown by conquest or cession which has not been the subject of Parliamentary legislation, and territory to which acts of Parliament have been applied, and it has been thought that the Crown may, by its prerogative, cede the former but not the latter to a foreign power.

Hansard, Parl. Deb. vol. clxiix, p. 230-1.

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“In 1853, a question arose as to the abandonment by the "Crown of its sovereignty over the Orange River Territory, which "had been assumed by proclamation of the Governor, and under "the public seal of the colony of the Cape of Good Hope, in "1848. By letters patent, under the great seal, dated March, 1851, Her Majesty ordained and appointed that the said territory should become and be constituted a distinct government to be administered by the Governor of the Cape, and that it should "thenceforth be known by the name of the Orange River Terri"tory. In 1854, the Duke of Newcastle, who was then Secretary "for the Colonies, wrote to Sir George Clerk, the Governor of "the Cape, and informed him that Her Majesty's Government "had come to the conclusion, that the abandonment of the Orange "River sovereignty could be legally and most conveniently effected "by an Order in Council and proclamation. The letters patent "of March, 1851, were accordingly revoked by other letters pa"tent, and the Queen, by Order in Council, dated January 30, "1854, approved of a proclamation, whereby Her Majesty did “‘declare and make known the abandonment and renunciation of "our dominion and sovereignty over the said territory and the inhabitants thereof.'*

“There are two instances of cession (independently of treaty at “the conclusion of a war) by the East India Company to a foreign "State previously to the Indian mutiny:

"1. In 1817, a cession by treaty, in full sovereignty,' to the "Sikhimputtee Rajah of a part of territory formerly possessed by "the Rajah of Nepaul, but taken by the East India Company, " and ceded to them by a treaty of peace.

"2. In 1833, a cession by treaty, to Rajah Voorunder Singh, " of a portion of Assam, lying on the south of the Burrampooter "River, by which the Rajah bound himself, in the administra#tion of justice in the country now made over to him, to abstain from the practices of the former rajahs of Assam, as to cutting

460

off ears and noses, extracting eyes, or otherwise mutilating or

tormenting.'

"This is not a very satisfactory precedent, and it shows the "kind of risks to which British subjects might be liable in being

*See Correspondence

on the State of the Orange River Territory,

presented to Parliament, April 10, 1854.

Treaties, Engagements and Sunnuds, vol. 1, p. 132.