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." Parliament gave its assent to the cession in the act of August 4, 1890.75 From subsequent practice it may be concluded that the precedent does not apply to the adjustment, by mutual exchanges of territory, of boundaries of colonial possessions, or to the relinquishment of 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.

The agreement concluded with France, April 8, 1904, concerning fisheries and territories, was signed "subject to the approval" of the parliaments of the respective countries. The agreement provided on the part of Great Britain not only for a cession of territory, but also for the eventual payment of a pecuniary indemnity to be awarded to French citizens who might suffer by the relinquishment by France of fishery privileges in Newfoundland. In return for the cancellation of these fishery privileges, and in addition to the pecuniary indemnity, Great Britain agreed to a change in the frontier between Senegambia and the English Colony of the Gambia, by which France acquired Yarbutenda with its landing places; to a readjustment of the boundaries between British and French Nigeria, by which France gained some 14,000 square miles; and to a cession to France of the group of islands known as Iles de Los, which had originally been ceded to Great Britain by the king of the Bago country in 1818.76 In reply

74 Id., 787, 788.

75 53 & 54 Vict. c. 32.

76 See speech of Earl Percy, Under Secretary of State for Foreign Affairs, June 1, 1904, Parl. Debates, CXXXV, 499.

to a question in the House of Commons, April 14, 1904, Mr. Balfour, Prime Minister, said: "I understand that, according to the French constitutional usage, the agreement between Great Britain and France must be submitted to their Chamber before final ratification. As the honorable gentleman is aware, that is not the constitutional practice in this country. But I think it is most desirable that there should be a discussion in this House on the subject. In any case a bill will have to be brought in dealing with portions of the agreement, because, as no doubt honorable members are aware, there can be no cession of any territory of His Majesty without the consent of Parliament.""" He added: "There are portions of the treaty relating to the cession of territory which require the assent of Parliament, and there are also provisions in the treaty which require the voting of money by Parliament. Parliament must be consulted on both those points. But on other parts of the treaty Parliament need not be consulted, though I think it is desirable that the House should have an opportunity of discussing so great an international instrument."78 By the act of August 15, 1904, the approval of Parliament was given to the convention. The act further provided that it should be lawful for His Majesty to do everything necessary or proper for carrying the convention into effect, and that any sums payable by way of indemnity under the convention, and any expense incurred in carrying it into effect, should be defrayed out of moneys provided by Parliament."9

$125. Submission of Treaties to Parliament Before Ratification.-Efforts have been made to require the submission of treaties to Parliament before their final ratification. Three resolutions to this effect were proposed 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 with 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

77 Parl. Debates, CXXXIII, 207.

78 Id., 210. See also answer of the Marquess of Lansdowne, Secretary of State for Foreign Affairs, in the House of Lords, April 19, 1904. Id.,

79 4 Edw. 7 c. 33.

4, declaring that all treaties ought to be made subject to the approval of Parliament, as in the case of the commercial treaty with France of 1860.80 A resolution declaring that, in the opinion of the House of Commons, it was neither just nor expedient to embark in war, contract engagements involving grave responsibilities, or to add territories to the Empire, without the knowledge and consent of Parliament, was rejected, March 19, 1886, by a vote of 112 to 108.81 The policy of obtaining the approval of treaties by Parliament in advance of their definitive ratification has on the other hand been opposed on the ground that the efficacy of parliamentary responsibility would thereby be impaired. Lord Palmerston on being asked, April 11, 1864, in reference to the proposed conference on affairs in Denmark, whether the engagements which might be formed would be submitted for the consent of Parliament before the ratification 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."82 Again, Earl Grey, in the House of Lords, May 22, 1871, in reference to the treaty concluded with the United States, May 8, 1871, said: "Ever since I have been in Parliament I have invariably heard the rule of our Constitution and of Parliament stated by the highest authorities to be this-that treaties were never to be laid before Parliament until they had been ratified; that the responsibility of ratifying or refusing ratification rested with the ministers; that when a treaty had been ratified it was quite competent for Parliament to censure the conduct of ministers, and that the Crown had never been in the habit of abdicating responsibility and presenting treaties before they were signed."88 Mr. Asquith, Prime Minister, on November 26, 1908, in reply to the question in the House of Commons, whether he would consider the advisability of making provision in some form by which the assent of Parliament to treaties before their final ratification should be required, said: “I am not prepared to give any positive assurance that no treaty concluded by His Majesty's Government will be ratified until

80 Hansard's Debates, CCXIV, 448, 1166, 1178, 1309, 1319. 81 Id., CCCIII, 1386, 1421.

82 Id., CLXXIV, 788.

83 Id., CCVI, 1106. See also, Id., CCIII, 1776, 1790.

Parliament has been consulted and its approval obtained. Such a course would involve a material change in the constitutional usage hitherto followed in this country, and could obviously only be adopted in pursuance of a formal debate and after mature consideration. Nor does it appear to me that any such alteration of procedure is really required, as it will usually happen that an opportunity for debate will be found in the considerable interval that generally takes place between the signature of a treaty and its ratification, and no diplomatic document would be ratified against the declared wishes of this House." Later, December 1, 1908, to the question, whether there was any rule governing the cases in which the assent of the House should be given to treaties before final ratification, especially with reference to treaties dealing with the acquisition or cession of territory, those affecting the personal privileges, status, or property of British subjects, or those involving a change of statute law, Mr. Asquith replied that, if a treaty involved any alteration of statute law, the assent of Parliament was needed, and that, if a treaty required funds to carry it into effect, it would be proper to have the required sum submitted to the House before the treaty was ratified. He added that there was no rule which required that the other matters referred to in the question should be brought before the House, nor had it been the practice to do so.85 Sir Edward Grey, Secretary of State for Foreign Affairs, in the House of Commons, March 13, 1911, in adverting to a suggestion made by the President of the United States as to the negotiation of a convention by which the parties would be bound to submit to arbitration all questions that might arise between them, without reservation as to national honor and vital interests, said: "We should be delighted to have such a proposal, but I should feel it was something so momentous and so far-reaching in its possible consequences that it would require not only the signature of both Governments, but the deliberate and deciding sanction of Parliament."86 A convention of the character suggested was signed, but failed of final ratification because of amendments engrafted by the Senate of the United States.87

84 197 Parl. Debates 701.

85 197 Parl. Debates 1238.

86 Parl. Debates, (1911), XXII, 1990.

87 In reply to a question, August 8, 1911, after the convention had been signed, Sir Edward Grey stated that it would be laid before Parliament as soon as possible, but that the time at which it should be debated was a matter for the Prime Minister to decide. Id., XXIX, 943.

CHAPTER XIX.

FRANCE.

I. Prior to 1875.

§126. The States-General and Parlement of Paris.-Early instances of the repudiation of treaties by the parlement of Paris and the states-general are to be found. The terms of peace agreed to by King John after his defeat and capture at the battle of Poitiers in 1356 were, regardless of the captive king's wish, declared not to be binding by the states-general assembled for that purpose by the Dauphin, and the war continued until the peace of Bretigny in 1360. So also the treaty signed under protest by the captive King, Francis I, at Madrid, in January, 1526, after the defeat of Pavia, was repudiated by the parlement of Paris in accordance with the request of the released King, although hostages had been pledged.1 The important treaty of Troyes, signed May 21, 1420, by which France and England were ultimately to be joined under one king, was, after important stipulations had been executed, submitted to the states-general for confirmation. To Henry V of England, such a confirmation seemed to afford additional security for the faithful performance of the treaty. At an early date, the states-general protested against the alienation of the royal domain. The parlement of Paris, as also the provincial parlements, besides judicial functions, exercised at times certain duties in the registration and promulgation of laws. They were also called upon at various times to register treaties. For instance, Louis XI caused a treaty concluded with Spain in October, 1478, and a treaty concluded with Maximilian in December, 1482, to be registered in the parlement of Paris. Several treaties were so registered during the reigns of Charles VIII and Louis XII.5 In the treaty of the Pyrenees, of November 7, 1659, it was ex

I Saint Girons, Manuel de Droit Constitutionnel, 465; Martin, Histoire de France, VIII, 104; Kitchin, History of France (3 ed.), I, 460; II, 209, 210.

2 Stubbs, Constitutional History of England, III, 89; Picot, Histoire des Etats-Généraux, I, 298-300.

3 See Picot, I, 210, 283; Martin, IX, 460; Kitchin, II, 373-4.

4 Aubert, Histoire du Parlement de Paris, I, 352.