of their Lordships, observed: "Whether the power contended for does exist in the case of treaties of peace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, or whether in both or either of these cases interference with private rights can be authorized otherwise than by the legislature, are grave questions upon which their Lordships do not find it necessary to express an opinion."54

§124. Treaties for Cession of Territory.—In view of the principle that the Crown cannot by treaty annul a law or abridge private 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,55 can be ceded by the Crown without the sanction of Parliament. Territory acquired by conquest or cession falls immediately under the legislative powers of the Crown in Council, while that acquired by settlement does not so fall unless by virtue of an act of Parliament.56

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 are to be found in which territory has by express stipulation been exchanged.58

54 Walker v. Baird, App. Cas. (1892), 491, 497. The act of June 14, 1819 was passed to carry into effect the fisheries article of the convention with the United States of October 20, 1818. 59 Geo. 3 c. 38. See for acts of the Imperial and local parliaments to give effect to treaty stipulations relating to the fisheries, Hertslet's Commercial Treaties, General Index volume under the heading of "Fisheries."

55 Advocate-General of Bengal v. Ranee Surnomoye Dossee (1863), 2 Moore P. C. 22.

56 Anson, Law and Custom of the Constitution, II, pt. II, 76. The British settlements act of 1887 places under the legislative power of the Crown in Council all possessions acquired by settlement, in contradistinction to those acquired by conquest or cession, not for the time being within the jurisdiction of the legislature of any British possession. 50 & 51 Vict. c. 54, sec. 6.

57 Hall, Int. Law (6 ed.), 97.

58 A notable case is the exchange of territory on the Gold Coast expressly stipulated for in Article I of the treaty with the Netherlands of

The question as to 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 3 c. 5, which prohibited trade, and the act of 17 George 3 c. 7, which authorized hostilities. In arranging terms of peace, 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 recognition of the independence of the colonies, and to the conclusion of a treaty of peace with them. Accordingly, an act was passed to authorize the King to conclude a peace and to annul and make void any inconsistent act.59 There appears from the debates in Parliament to have been some uncertainty as to the necessity of this measure. Earl Shelburne, on December 13, 1782, in reply to a question respecting the provisional articles of peace said: "That agreement with the Americans had been made in consequence of an act of the last session, empowering His Majesty to conclude the differences 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.61

Various opinions as to the power of the Crown in this respect 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. 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,

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, applicable to this territory. 6 & 7 Vict. c. 13.

59 22 George 3 c. 46. The act, as to the exercise of these powers, was to continue in force until July 1, 1783. The definitive treaty of peace was not concluded until September 3, 1783, although the provisional articles were signed November 30, 1782.

60 Parl. Hist., XXIII, 307.

61 McIlvaine v. Coxe's Lessee, 4 Cranch 209, 212; Harcourt v. Gaillard, 12 Wheat. 523, 527.

overcome and compelled to acknowledge British sovereignty over this territory. Accordingly, the territory was, 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 and cession, 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.62 On February 10, 1863, Lord Palmerston, in the debate on the relinquishment of the protectorate influence over the Ionian Islands, after pointing out the radical difference between such a relinquishment and an actual cession of territory, 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 newlydiscovered 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 those countries, then I apprehend the concurrence of Parliament might be necessary.' "63а In 1870 it was reported 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 apportioned to Great Britain by Article X of the treaty with France of September 3, 1783. Mr. Gladstone, on being asked in the House of Commons

64

62 Hansard's Debates, CXXXIII, 81, 82.

63 Id., CLXIX, 230.

63a Id., CLXIX, 1808.

64 Chalmers, Collection of Treaties, I, 500.

whether it was possible for the Crown to transfer the Settlement and the great arterial communication of Africa to France without the consent of Parliament, replied, June 10, 1870, that it was his impression that such an agreement could not be carried out without the consent of Parliament. He added that there never had been the slightest intention of taking any proceedings of the kind without such consent.65 To the observation made by the Duke of Manchester in the House of Lords, that the transaction appeared to involve an undue exercise of the prerogative of the Crown, Earl Granville replied that it had been distinctly stated at the beginning of the negotiations, that "nothing could be completed without the consent of Parliament."""

The question was fully argued before the Judicial Committee of the Privy Council in 1876, on an appeal from India. The lower court had based its decision on the principle that it was beyond the power of the British Crown, in time of peace, to cede to a foreign power, without the concurrence of the Imperial Parliament, territory within the jurisdiction of any of the British courts in India. Their Lordships dismissed the appeal, but for reasons not involving the principle on which the decision of the lower court was based. They found as a matter of fact that there had been no cession of territory, but merely an attempted rearrangement of jurisdictional limits within British territory. As to the ground on which the High Court of Bombay rested its decision, Lord Selborne (Sir Roundell Palmer), for their Lordships, 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 decision on that ground." It may be noted 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 an in

65 Hansard's Debates, CCI, 1843.

66 Id., CCIII, 339, 341.

67 Gordhan v. Kanji, 1 App. Cas. 332, 373, 382. Mr. Fitzjames Stephen, who appeared for the appellant, cited many instances of cessions in India which appear to have been made without legislative sanction. Id., 357.

stance in which the assent of Parliament had been given to a cession of territory.

68

In the treaty concluded with Germany July 1, 1890, it was expressly stipulated that the cession of the sovereignty over the island of Helgoland and its dependencies was made by Her Britannic Majesty "subject to the assent of the British Parliament."69 The island had been seized from Denmark in 1807; and the conquest had been formally recognized by that country in the treaty concluded at Kiel, January 14, 1814.70 It remained under the legislative powers of the Crown in Council, and was peopled chiefly 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 for its support at most only the dicta of legal authorities, as against the uniform practice of the government." The Conservatives defended the procedure as being expedient and desirable, rather than as being compulsory. Mr. Goshen, Chancellor of the Exchequer, in the course of the debate, observed: "We do not for a moment base our argument on the assumption that the assent of Parliament was indispensable to the cession." Mr. Balfour observed that the constitutional law and practice in question was in a nebulous and very uncertain condition. It seemed to him to be 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 it would establish a binding precedent, Mr. Balfour said: "I do

68 Id., 367.

69 Art. XII. Brit. and For. State Papers, LXXXII, 46.

70 Art. III. Hertslet's Map of Europe by Treaty, I, 27.

72

71 Attorney General Sir R. Webster, Hansard's Debates, CCCXLVII. 830.

72 Id., CCCXLVII, 760, 764, 773.

73 Id., 771.