HC Deb 13 February 1880 vol 250 cc638-51
SIR WILLIAM HARCOURT,

in rising to call attention to the present state of the European Guarantees under the Treaties of 1856 and 1871, said, that he was sorry the pressure of the division which had just taken place should have deprived them of the assistance of his hon. and learned Friend the Attorney General. As, however, the question which he had to ask the Government was not a legal one, they might console themselves for the loss. He wished to ask the Government for some explanation on a matter which he regarded as of the greatest importance. He was sure everyone would feel that it was a matter of great consequence to this country, and to Europe, to know exactly how we stood with reference to our guarantees to foreign States? He himself had always had considerable doubt as to what was our present exact situation in regard to the guarantees to Turkey under the Treaties of 1856 and 1871. He had made more than one attempt to obtain the views of Her Majesty's Government on the subject, but not with any very great success or any definite advantage. But he observed that a few weeks ago a noble Lord, a Member of the Government, though not a Member of the Cabinet, whose ability they all recognized (Lord George Hamilton), came forward with a very definite statement upon the subject. The statement was made evidently after careful consideration, and in carefully selected language, and he would ask leave to read it to the House. That we have increased our liabilities by the Anglo-Turkish Convention is equally absurd. When we came into office the Treaty of Paris had been renewed by Mr. Gladstone three years before, and by that Treaty and its sequel—the Tripartite Treaty—we gave an unconditional and unlimited guarantee to maintain the integrity and independence of the Turkish Empire. At any moment France or Austria might have called upon us to maintain by force of arms that pledge. By the Treaty of Berlin a different arrangement was devised for European Turkey. As regards the remainder of Turkey, we substituted a limited and conditional Treaty—limited to Asiatic Turkey, and conditional upon reforms being carried out. So long, therefore, as the whole is greater than the part, so long will a conditional and limited Treaty, such as the Anglo-Turkish Convention, be a contraction and not an expansion of an unconditional and unlimited liability, such as was contained in the Treaty of 1856. It was perfectly plain what the noble Lord meant by that statement. It either distinctly asserted or implied three propositions. It asserted, first, what was perfectly true, that before the Treat}' of Berlin there was an unlimited and unconditional guarantee under the Tripartite Treaty; second, it asserted that the unlimited and unconditional guarantee no longer existed, and that in place of it had been substituted the Anglo-Turkish Convention; and, third, as that was not unlimited and not unconditional, and as a part was necessarily less than the whole, therefore our liabilities were less than they were before. He (Sir William Harcourt) wished to know from the Chancellor of the Exchequer, whether this opinion, expressed by a Minister not in the Cabinet, was the view of that Cabinet? He wished the right hon. Gentleman clearly to understand that his object was not to invite him to contradict that statement; on the contrary, he hoped he would confirm it. He did not desire that the Tripartite Treaty should exist. He desired to see every guarantee of the Turkish Empire disappear, and the more they disappeared the better he would be pleased. He wanted, however, to know, on a little higher authority than that of the noble Lord the Vice President of the Council, whether that was the true view of the situation? If the noble Lord's view of the situation was correct, then at Berlin was achieved a destruction of the Turkish Empire far more complete than anyone believed, because, according to the noble Lord, at Berlin was swept away at once and for ever the whole of the guarantees which had been created in 1856. If that were the true view of the case, then the Treaty of Berlin struck a fatal blow at the maintenance and integrity of the Turkish Empire, because it swept away the whole of the fabric which was created in 1856. He hoped the noble Lord was right, for it would relieve England and Europe of a great embarrassment, and from what, if acted upon, would prove a great disgrace. The Treaties of 1856 had never been operative. Whenever acasus fæderisarose these Treaties had broken down. In the years 1870–71, when the question of the Black Sea Clauses arose, the Treaty did not work. England, in common with France and Austria, had engaged to resist by force of arms any attempt to alter the terms of that Treaty; but neither she nor any of the other Powers did resist such an attempt. Prance could not resist; Austria did not; Germany was a party to the demand to alter it; and England declined to resist alone. England might, no doubt, have acted alone and interfered; he had heard hon. Gentlemen opposite reproach the Government of that day for not doing so; but if England had acted alone she would not have acted with the force of the Treaty of 1856. The Government of 1871 did not act alone, for exactly the same reasons as the Government which succeeded them declined to act alone in 1878–9. In a well-known despatch accompanying the Treaty of Berlin Lord Salisbury stated that, having denounced the retrocession of Bessarabia and the cession of Batoum, which were, of course, a violation of the integrity of the Ottoman Empire, they yielded these points because they found that the Powers of Europe would not support them in resisting them. That was exactly the ground upon which Lord Granville acted in 1870 in the case of the Black Sea Clauses of the Treaty of 1856. Hon. Gentlemen opposite blamed him for not acting alone then; why did they not themselves act alone in the case of Bessarabia and Batoum? Why, because all England would have condemned them, just as all England would have condemned the late Government in the case of the Black Sea Clauses. He referred to these matters incidentally, only to support the proposition that whenever acasus fæderishad arisen the shield of the Treaty of 1856 had utterly broken down. Not one of the Powers to those Treaties had ever called upon the other parties to carry them out; and for a good reason, probably because they knew they would call in vain. When, in 1877, the Government received notice that Russia was going to war—that she was going to attack the independence and integrity of the Ottoman Empire—they did not call upon any one of the parties to the Treaty of 1856 to act upon it. It seemed idle, therefore, to attempt to revive the operation of the Treaty of 1856 when two successive Governments had not, when the occasion arose, called upon any of the parties to this Treaty to act upon it; and when none of the other Powers called upon England, they might look upon it as a dead letter. He wanted to know whether we could regard them as documents which had no force in Europe? If, however, the Tripartite Treaty still existed, then everything the noble Lord the Vice President of the Council had said was wrong, because, in that case, their liabilities were not diminished; on the contrary, they remained, and the Anglo-Turkish Convention was superadded. He wanted, therefore, to know if the noble Lord was right in saying that all these guarantees had been replaced by the Anglo-Turkish Convention? If all the guarantees given by the other Powers were gone, there was no guarantee by any Power in Europe of Turkey in Europe, and there was no guarantee by any Power in Europe of Turkey in Asia, except England under the Anglo-Turkish Convention, which, Her Majesty's Government would admit, had not yet been fulfilled. If Armenia, or any part of the Turkish Empire, were attacked to-morrow, there would be no Power in Europe that was under any obligation to defend Turkey, because he did not think the reforms of the Turkish Government were such as would enable it to call upon England to fulfil the Anglo-Turkish Convention. Of course, there was all the difference in the world between a Treaty of guarantee and a Treaty not of guarantee. The Treaty of Vienna, for instance, was a Treaty of settlement; but it was not a guarantee. The Government might make a settlement which they did not bind themselves to support by engagement. Whether the Treaty of 1856 was a Treaty of guarantee or not had been very much in dispute. In the 7th clause there were the words— Their Majesties engage each on his part to respect the territorial independence and integrity of the Ottoman Empire guarantee in common the strict observance of this engagement; and will regard its violation as a question of general interest. There were no words of that kind in the Treaty of Berlin. But the Tripartite Treaty was far more express. It was in every sense a Treaty of guarantee— The High Contracting Parties guarantee jointly and severally the independence and integrity of the Turkish Empire in accordance with the Treaty of Paris. In the Second Article it was stated— Any infraction of the stipulations of the said Treaty will he considered by the Powers as acasus belli, and so on. That was a guarantee. He would like, therefore, to ask how the obligations under that Treaty were terminated? The noble Lord used language of a not very accurate description. He said—"We substituted for those engagements the Anglo-Turkish Convention." "We" could not do anything of the kind. Everybody knew that the Tripartite Treaty did not leave it to one Power to go and alter it without the consent of the others. The first question, therefore, he (Sir William Harcourt) would ask was, Did the Tripartite Treaty still exist since the Treaty of Berlin? Was it an obligation upon the parties? Could we call upon Austria and Prance to fulfil it? And could Austria and Prance call upon us to fulfil its obligations? The noble Lord the Vice President of the Council said we could not. He (Sir William Harcourt) wished to have the assurance of the right hon. Gentleman the Chancellor of the Exchequer that the noble Lord was right. If that was so, he would like to know at what period, and in what documents, those obligations were cancelled? Nothing was said about the Tripartite Treaty in the Treaty of Berlin. The document referred to in the Third Article of the Treaty of Berlin was the general Treaty. If that were the case, he would like to ask the Chancellor of the Exchequer whether it would be taken generally that the effect of the Treaty of Berlin was to dissolve the obligations of the Treaty of 1856, and to substitute in their place, as the noble Lord the Vice President of the Council said, the Anglo-Turkish Convention? If, again, that were so, he would like an explanation of what was the particular view taken in the 63rd Article of the Treaty of Berlin, by which it was thought desirable to recite the Treaties of 1856 and 1871—that was to say, the general Treaty of 1856 and the Treaty of 1871—and to say that except so far as they were modified by that Treaty they would still apply. Of course, those words were susceptible of one construction, and that was the construction denied by the noble Lord. A lawyer would understand them to mean that they were a saving clause of the Treaty of 1871. The noble Lord knew better than that. He (Sir William Harcourt) had supposed that, though the Turkish Empire had been diminished, still it was intended that the old guarantees should be revived and applied to what remained. He need not say that a view of that kind would be entirely inconsistent with the statement of the noble Lord the Vice President of the Council. This was a question of most serious importance; it was a question of peace or war, and affected the well-being of this country in relation to other States, and it was therefore necessary that they should know whether the Treaty of 1856 and the Tripartite Treaty were in force or not. If the Chancellor of the Exchequer would tell them that the Government accepted the statement of the noble Lord, he, for one, would be satisfied; because then, at last, they would get rid of those European guarantees in which they had been embarrassed with reference to Turkey in Europe, with reference to our engage- ments in regard to Asiatic Turkey and the Anglo-Turkish Convention. He (Sir William Harcourt) had never been anxious about the last, because the conditions had never arisen under which we should be compelled to it. He took this opportunity of enabling the Chancellor of the Exchequer to deal with the matter, because he thought it of too great importance for a simple question and answer. He did not appeal to his hon. and learned Friend the Attorney General, or, in other words, from one Member of the Government not in the Cabinet to another Member of the Government not in the Cabinet. He wished to know whether or not the Cabinet accepted the noble Lord's view of the Treaty? That was a question of the highest politics. It was a question of where England stood as respected her liabilities under these Treaties, and how Europe was affected by them. He therefore trusted that he might have an answer which could be accepted as the view of the Government.

THE ATTORNEY GENERAL (Sir JOHN HOLKER)

said, he could assure his hon. and learned Friend (Sir William Harcourt) he was not particularly desirous of taking the responsibility from the Chancellor of the Exchequer; but, as it appeared to his right hon. Friend that this was essentially a legal question, and depended upon the construction of legal documents, the Chancellor of the Exchequer had done him the honour to ask him to answer the question. And, first, he must express his regret if his absence from the House had occasioned his hon. and learned Friend the slightest inconvenience, as it was not intended in any discourteous sense. Now, whatever they might think of this question—whether it was useful and opportune at that moment to raise it or not—they must be filled with admiration at the great industry and diligence of his hon. and learned Friend, who, among his multifarious avocations, could find time to read all the speeches of Members of the Government, whether Members of the Cabinet or not, delivered in or out of Parliament. He could only come to the conclusion that his hon. and learned Friend did that because he was sincerely and honestly desirous of obtaining considerable information. He dared say, also, that his hon. and learned Friend had a lurking idea that from some of those speeches he might extract not only information, but matter which would enable him to achieve a triumph, if only a temporary triumph, either over the person who had delivered the speech, or Her Majesty's Government. He (the Attorney General) could quite imagine the delight which filled the heart of his hon. and learned Friend when, having got from the speech all the information he could, and it was abundant, he hit upon the idea that, perhaps, there was something in it not precisely accurate, upon which he would be able to found the basis of a discussion in Parliament. What did his noble Friend the Vice President of the Council say? His noble Friend was not speaking as though he was arguing in a Court of Law; he was addressing a Conservative association, and, no doubt, intended to speak in a practical manner. There were certainly Treaties made with reference to Turkey, and guarantees were given of the integrity of the Turkish Empire. One of these Treaties was very difficult of construction—the Treaty of Paris of March, 1856—and there was another Treaty of 1856, to which the "Three Powers" were parties, called the Tripartite Treaty. Afterwards, in 1871, when circumstances altered somewhat, all the Powers thought it right to annul portions of the Treaty of Paris, and, by mutual consent, to allow portions of that Treaty to be disregarded altogether. Now, let the House consider what had been the opinion of the great Liberal Party with respect to those Treaties; because when people made speeches before Conservative associations or audiences, they had a right to bear in mind not only the arguments of the Government, or Members of the Government, but also what had been said on the other side. He had observed that his hon. and learned Friend, for whose knowledge of the law generally, and especially of the law relating to our relations with foreign Powers, he had the greatest respect, had studiously avoided expressing any opinion of his own on the subject, and had contented himself with attacking the noble Lord the Vice President of the Council. He would have been delighted to hear his hon. and learned Friend on that question. He had commented on the views of the Government; but so far from expressing his own opinion on the subject—and no man was more competent to form an opinion—he had been wholly silent. However, the other Members of the Liberal Party had not all of them been equally reticent. They had declared, over and over again, that the Treaty of Paris and the Tripartite Treaty had gone long ago; that circumstances had altered; and that the alteration of circumstances had dissipated the Treaties. When Russia thought proper, in the year 1876, to make war on Turkey, there were several considerable discussions—most interesting and animated discussions—in the House. Some hon. Members had, indeed, ventured to suggest that there were Treaties in existence; but the reply of the other side was that the circumstances of 1876 differed from those of 1856, and that the operation of circumstances had obliterated the Treaty. That was the argument put forward by hon. and right hon. Gentlemen of great experience and knowledge—in fact, by the Liberal lawyers—and listened to by his hon. and learned Friend with the utmost complacency. Dealing with the question as a lawyer, he (the Attorney General) should have thought that such doctrines, coming even from his associates, would have made the hair of his hon. and learned Friend stand on end. But it had been asserted broadly, by Member after Member of the Liberal Party, that, owing to the operation of circumstances, the Treaty of Paris and the Tripartite Treaty, and the Treaty of London into the bargain, were all entirely done away with, and that view had not been dissented from by the hon. and learned Gentleman, nor did they hear even the faintest groan of discontent from him. That was the view taken in Scotland as well as in England and the House, and represented to the world as the correct one. If that was so, could they find much fault with an hon. Member who, not being a lawyer, took not the strictly legal, but the practical view of the case, which had been assented to by the Liberal Party? It seemed to him that the noble Lord the Vice President of the Council, when he delivered his speech to the Conservative Association of the University of Edinburgh, took the view that, practically, the Tripartite Treaty was thrown into the shade, and that, for practical purposes, the Convention between Great Britain and Turkey had taken its place. No doubt, there had been alterations in circumstances; and if there had been such alterations before the war of 1876 as would abrogate a Treaty—if such a doctrine could prevail—there had been plenty of such changes since. He (the Attorney General) did not say or think, however, that that was a correct view of the case, but in dealing with such a subject he was bound to treat it in a lawyer-like manner; and, treating it so, the position of things was exceedingly plain. No Power having entered into a Treaty could abrogate it, except with the consent of all the other Powers. That was the doctrine recognized in 1871, when, as some people thought, very unfortunately for us, the Treaty of Paris was altered or abrogated, and it was regarded as a sound doctrine in law that without the consent of all the contracting Powers a Treaty could not be altered. So with regard to the Tripartite Treaty, which existed with the consent of Austria, France, and England. It might be, perhaps, not probable that either of the contracting Powers would be called upon to fulfil its provisions; but, as far as the law was concerned, he said, without fear of contradiction, that that Treaty was still in force—was still in existence. As far as the Treaty of Paris was concerned, the matter seemed even more abundantly clear; because, when the Great Powers who were parties to it in 1856 came to make the Treaty of Berlin, they studiously preserved by the 63rd Article the Treaty of Paris in all its provisions, except only those which had been abrogated or altered expressly by the terms of the Treaty of Berlin. Practically, then, the noble Lord was not very far wrong when he came to the conclusion that the Tripartite Treaty had been thrown into the shade, although, as a matter of law, it was evident that it still existed; and he, for one, repudiated the doctrine that Treaties could be altered, when entered into by the Great Powers, simply by circumstances, and without the consent of the high contracting parties.

MR. CHILDERS

said, that, in his opinion, the reply of the hon. and learned Gentleman the Attorney General was scarcely satisfactory. There were one or two apologies contained in it to which the attention of the House might very well be directed. In the first place, it should be observed that according to the Attorney General a Minister, however careful, usually need not be accurate in addressing a Conservative Association. In the second place, he told us that a statement affecting a most important Treaty, on which the affairs of Europe in the East hinged, might be legally incorrect, but practically correct. He wished, therefore, to learn from the Chancellor of the Exchequer—the view of the noble Lord the Vice President of the Council having been pronounced by the hon. and learned Gentleman to be practically correct, though legally incorrect—whether it was politically correct or not—that was to say, whether the Tripartite Treaty was or was not looked upon as binding by the Government? That was the important point; and, putting aside the nice distinctions between the practical and the legal, he wished to be informed what the actual political obligations of the country were held to be by the Cabinet.

THE CHANCELLOR OF THE EXCHEQUER

said, he must apologize to the hon. and learned Member for Oxford (Sir William Harcourt) for not having responded to his very pointed challenge to him to answer the questions which he had put to him. It seemed to him (the Chancellor of the Exchequer), however, without any disrespect to the hon. and learned Gentleman, that those questions really turned on the legal construction of important documents; and that it was, therefore, desirable that they should, considering the nature and importance of the subject, and the Assembly in which the question was put, receive an answer from one who was much better qualified than he could pretend to speak with authority on legal matters. His hon. and learned Friend the Attorney General had accordingly given what must be accepted as the legal view as to the present position of those important instruments, and done so, he thought, in a manner more advantageous to the House than if he himself had replied to the questions of the hon. and learned Gentleman. With regard to the questions put to him by the right hon. Gentleman opposite (Mr. Childers), he wished to say, in the first place, it was a little hard upon them that an observation should be made as though his hon. and learned Friend had said it was competent for the Ministry to make statements which were practically correct, though legally incorrect. He might, however, observe that his noble Friend the Vice President of the Council was, in the speech to which attention had been called, commenting on the practical effects of certain doctrines, with regard to recent proceedings as to the Treaty of which he was speaking, laid down by high authorities, Members of the Party opposite, who had expressed the opinion that the results of those proceedings had been practically to supersede the Treaties made in 1856, and to put other arrangements in their place, by which the country was involved in greater responsibilities than before. His noble Friend, taking as a basis the statements so made—as was certainly within the scope of his argument—went on in his speech to show that, assuming that to be the case, our responsibilities as a nation were not increased, but in reality diminished. His noble Friend did not pretend to give a legal interpretation—and it was very important that should be borne in mind—because questions of the kind, when they arose, could not be settled by theipse dixitof a subordinate Member of the Government, or by that of any Member of the Government, but by the true and proper construction of the instruments relied on—a construction which must be discussed by all those who were parties to the Treaty, and who might have a word to say and their own construction to put on the instrument. There was no doubt that there had been no formal abrogation of the Tripartite Treaty of 1856; neither, on the other hand, had there been a renewal of it. The Treaty of Berlin, to a very great extent, modified the Treaty of Paris of 1856, and the Tripartite Treaty was a sort of adjunct to the Treaty of Paris. It bound the three Powers who were parties to it to maintain the independence and integrity of the Ottoman Empire, and that was recorded at the time in the Treaty of 1856. The Berlin Treaty of 1878, after having largely modified the provisions of the Treaty of Paris, renewed and expressly maintained those portions of that Treaty which had been modified by the stipulations of the Treaty of Berlin. What was the effect, then, of the modification and the confirmation of the Treaty of Paris on the Tripartite Treaty? The Tripartite Treaty was not expressly mentioned in the Treaty of Berlin. He did not know that it could be. It was not expressly abrogated, nor yet was it expressly renewed, in view of the altered circumstances of Europe, and the Turkish Empire in particular, after the settlement of Berlin. Nothing had, in fact, passed on the subject between the three Powers; and the question what was the precise position of the Tripartite Treaty was one which must be determined by legal interpretations, upon which he should be sorry to pronounceex cathedra.But the right hon. Gentleman the Member for Pontefract asked him whether the Government, apart from the legal or practical effect of the existing state of things, held the doctrine which was maintained by his noble Friend the Vice President of the Council to be politically correct—that was, he presumed, whether the Government considered that the general effect and upshot of the arrangements of the Treaty of Berlin had been such as to place the real and virtual responsibility of England on the footing which the noble Lord had described. His answer was that the Government accepted practically that view. They considered that the Tripartite Treaty had been, as his hon. and learned Friend the Attorney General had just said, thrown into the shade by the arrangements which had been made at Berlin. It was, he thought, highly improbable that that Treaty could be appealed to in support of the new arrangements that were made at Berlin; but he was far from saying that it might not be under other circumstances. Much, however, must depend on circumstances which might occur; and he should be sorry, indeed, to say what would be the effect of a Treaty which had not been abrogated in circumstances which it was extremely difficult to foresee. It was, he thought, wrong to call upon an English Minister to make a statement of the kind beforehand. His noble Friend was, in his opinion, however, perfectly right in arguing that the effect of what had been done had been in reality to diminish the liability of England. Instead of an indefinite engagement by which they might have been called upon by other Powers to defend the Turkish Empire in any part, the Government had undertaken a definite engagement, not an unconditional one, but one conditional upon the execution of certain reforms. They had undertaken it with reference to a particular portion of the Turkish Empire, and with the stipulation or condition that it should be in a case in which Turkey should be called upon to defend herself. These conditions did not exist in the Tripartite Treaty. Upon the whole, he maintained that the view expressed by his noble Friend in his speech at Edinburgh was practically and politically correct.

Motion, by leave,withdrawn.

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