Lords Sitting of 22 May 1871

MINUTES.
Sat First in Parliament—The Lord Clanbrassill, after the death of his grandfather.
PUBLIC BILLS—First Reading—Locomotives * (130).
Second Reading—Committee Negatived—Third Reading—Consolidated Fund (£7,000,000) *; Customs and Income Tax *, and passed.
Second Reading—Lunatics (Scotland) * (117); Postage * (118).
Committee—Report—Leeward Islands * (105).
Report—Ewelme Rectory * (82).
Third Reading—Judgments (Ireland) * (59), and passed.

UNITED STATES—JOINT HIGH COMMISSION—THE TREATY.—QUESTION.

  RULES OF THE HOUSE—NOTICE OF QUESTIONS.
  THE MARQUESS OF SALISBURY: I now ask the Question of which I gave Notice on Friday, on account of the noble Earl the Secretary of State for Foreign Affairs being unable to answer it at once—namely, Whether Her Majesty's Government intend to proceed with the ratification of the Treaty with America until after the Motion of which Notice has been given for the 12th of June. There being some difference of opinion, when the Notice was given, as to the nature of the answer given by the Prime Minister in the House of Commons to an analogous Question, I have referred to the words which he is said to have used. They are these—
  "When the Treaty does arrive, however, it will be immediately presented to Parliament, without waiting for its ratification."
  That, of course, does not amount to an actual pledge that the decision of Parliament will be waited for before ratification, but it amounts to a constructive pledge to that effect; for to present a Treaty to Parliament and give Parliament no time to discuss it would be simply laughing at the Legislature, and making the promise entirely nugatory. I shall be glad, however, to elicit a more distinct statement of the intentions of the Government. Since I gave the Notice the necessity of the Question has been pressed upon me still more cogently by the rumours—and something more than rumours—which I hear of the deep dissatisfaction with which the news of the Treaty has been received in our North American Provinces.
  THE EARL OF LAUDERDALEfelt bound to call attention to a telegram which appeared in the morning papers, dated Washington, May 20, stating that Mr. Sumner had delivered a speech in the American Senate, objecting to the English apology as inadequate, and deeming an apology for England's fault in recognizing the belligerent States requisite. Mr. Sumner had also maintained that England's claims were not well-founded, and that the Treaty was only acceptable as a measure of peace. Now, the reason he (the Earl of Lauderdale) did not lose a moment in bringing
  1102
  this before their Lordships was, that he was not aware that this Government were ever to make an apology to the Americans. He thought it was very likely we should have to pay the claims; but this was the first time he had heard that our Government would make an apology. Mr. Sumner stated that the Treaty had been entered into for the sake of peace. It was not a question of peace or war at all. It was a question of how much money they could get out of us. He hoped the noble Earl would be able to assure the House that we were not to make an apology.
  EARL GRANVILLE: I hope the noble and gallant Earl (the Earl of Lauderdale) will not think it a want of respect if, after having repeatedly refused to enter into the question of the Treaty, I utterly decline to say anything on the subject. Your Lordships are all, I believe, of opinion that it would be premature to discuss the Treaty at this moment. I can take as little notice of Mr. Sumner's statement on the one side as of the noble and gallant Earl's on the other. With regard to the noble Marquess's (the Marquess of Salisbury's) observations, I am surprised that he should have been dissatisfied with me for not departing from the Order of the House, and not answering a Question put without Notice; but, without going into the question whether it is desirable or not to observe the standing rule of the House on that subject, I must say that what passed on Friday was rather in favour of the rule—though I avow I was not, when it was moved, one of the strongest partizans for it. The noble Marquess put a Question without Notice. It did not appear to me to be right that I should answer it without Notice having been given. Whereupon the noble Marquess pressed me to answer it, and told me that Mr. Gladstone had answered the Question in "another place." I thought it odd that I should have missed reading the report of an important Question on Foreign Affairs, or that Mr. Gladstone should have abstained from telling me of an important Answer given by himself. I accordingly referred to the report in The Times, which does not in the slightest degree bear out the noble Marquess's description either of the Question or the Answer. I sent the report to Mr. Gladstone, and requested him to correct it. The Question, put to Mr. Gladstone was this—

  1103
  "I think it will be satisfactory to the country if the right hon. Gentleman will tell us when he expects the Treaty to arrive here."
  Mr. Gladstone informs me that he replied—
  "I am not able to name the particular day of the arrival of the Treaty, of which we have not received a final copy. When it does arrive, however, it will be immediately presented to Parliament. We shall, in this instance, depart from the general rule, and present the Treaty to Parliament without waiting for its ratification, on account of special circumstances. Among these I may mention that the Treaty has been prematurely made known in America—by prematurely I mean contrary to the intentions of the Executive Government. We expect its arrival in a very few days."
  Now, obviously that Answer to that Question did not justify the noble Marquess in stating, as a reason why I should reply to a Question put without Notice, that Mr. Gladstone had answered it.
  THE MARQUESS OF SALISBURY: It was not till the noble Earl (Earl Russell) had agreed to postpone his Motion, which took me by surprise, that the putting of the Question suggested itself to me.
  EARL GRANVILLE: That proves my argument the more strongly, for I was assuming that he had come down prepared with all his facts to ask the Question; but assuming him taken by surprise equally with myself, the noble Marquess brings on a Question which might have induced me to make a rash answer. I remembered the old saying that a question cannot be indiscreet, it is only the answer which can be so; and I did not answer it at once, though I should have done so very nearly in the same terms. Mr. Gladstone, in his reply, accurately stated the usual course, one which, both on international and constitutional grounds, has its advantages—namely, that a Treaty, which in point of fact does not become a Treaty till it has been ratified, is only presented to Parliament after ratification. The reason why the rule should be departed from in this instance is that this Treaty has been published in the United States; and I see—although I have no official knowledge on the subject—that there has been a debate in the Senate as to the surreptitious means by which a copy of it was obtained. The Treaty having been published in America, it was thought desirable that Parliament should be also acquainted with it. When the Senate will come to a decision on the
  1104
  Treaty it is impossible for me to say, or in what sense that decision will be; and it is therefore impossible for me to say when the signed Treaty will arrive in this country. What I believe is that even if we were to adopt any precipitate haste in the matter it would be physically impossible that it should be ratified before the 12th of June. In making that statement, however, on a matter of fact, I utterly decline to answer the Question in the shape of a pledge that Her Majesty's Government will not advise Her Majesty to ratify it in consequence of a man, however eminent and of whatever weight, having given Notice of raising a discussion upon it in this House. The eminent men who formed the Constitution of the United States gave the Senate, together with the Executive Government, the power of making treaties. That has sometimes been inconvenient to the United States themselves, and sometimes inconvenient to other nations; but I have not a word to say against the arrangement which the United States have adopted—it is not a question to be discussed in this country. I remember an ingenious political friend of mine discussing the question of giving this House the same power with regard to treaties as is possessed by the Senate of the United States. I am far from wishing to reject all improvements in our Constitution; but I certainly decline, by the sidewind of answering a Question put with or without Notice, to make an innovation, and—to use a phrase more common on the opposite than on this side of the House—to "Americanize" our institutions. The House of Lords has an undoubted right, in common with the other House, of tendering advice to Her Majesty in the exercise of her prerogative, to condemn any act whatever, whether a treaty or not, and to discuss the action of the Government; but it is not right by a sidewind to make it the duty of the Government to submit a treaty to the House of Lords before it is ratified by the Queen on the advice of her responsible advisers.
  THE EARL OF CARNARVON: I did not understand my noble Friend (the Marquess of Salisbury) to suggest that it was the duty of Her Majesty's Government to submit this Treaty to the House of Lords before it is ratified. He simply asked whether it was the intention of the Government to give the

  1105
  House an opportunity of discussing the Treaty before it was ratified. I wish to say one word on the question of Order. The noble Earl stated it to be a rule of this House that every Question must be preceded by Notice. With great deference to the noble Earl, I deny that it is the rule of the House that Questions should not be asked without Notice. All that exists is the recommendation of a Select Committee—of which the noble Earl and I were members—that, except in cases of urgency, it should not be the practice of independent Members of the House to ask questions which were calculated to raise a debate. It is not binding on any noble Lord; it is simply a matter of courtesy and practice, and I utterly deny that it is in any sense a rule of the House. The noble Earl is so very decided upon this point that I will not now ask him a Question without Notice; but I will venture to make a request that when the text of the Treaty is printed certain other Papers of great importance should be presented with it. It has been repeatedly stated that Her Majesty's Government consented that the Treaty, before it received the sanction of the Crown, should be submitted for the concurrence, in some shape, of the Canadian Parliament. I have seen that stated in print, and I imagine it is time. I hope, therefore, that the noble Earl, when laying the Treaty on the Table, will consent to produce such communications as have passed between the Imperial and Canadian Governments with reference to this important question. As to the Treaty, I suspend my judgment on it till I see the text, for as yet we have only seen fragments in newspapers. I agree, however, with my noble Friend (the Marquess of Salisbury) in feeling great anxiety as to how far Canadian interests are protected in the Treaty. The interests of Canada and of this country are one, and anything which would be viewed by Canada with doubtful or mixed satisfaction would certainly not be a subject of great pleasure to this country.
  EARL RUSSELL: I do not think that any practical conflict will arise, for after what my noble Friend the Secretary of State has stated, there seems to be hardly a possibility that the Ministers of the Crown should have the Treaty before them for the purpose of ratification before the 12th of June, on which day I
  1106
  shall propose my Motion. I cannot, however, agree with the constitutional doctrine of my noble Friend. I have always thought that Parliament is the Great Council of the nation, the chief adviser of the Crown, and that this House has a right to give advice to the Crown at any period in the exercise of any part of the prerogative. But even though it may not be a matter of right to give advice to the Crown before the Treaty is ratified, yet, as a matter of courtesy, I think that if a Treaty had arrived, and if Notice of a Motion had been given by anyone upon it, the Ministers of the Crown would show great disrespect to this House if they proceeded to ratify it without giving us the opportunity of expressing an opinion.
  EARL GREY: I am sorry to differ from so high an authority, but on this point I must entirely differ from the noble Earl (Earl Russell). 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. There are strong reasons for adhering to this ancient principle of our Constitution. Diplomacy cannot be properly carried on in large legislative assemblies. When questions are at issue between this and any other nation, it is far better that the responsibility of dealing with them should rest with the Ministry than that Parliament should step in and pronounce a decision before the Crown had had an opportunity of doing so. Such a mode of conducting diplomacy would not, I think, conduce to a good understanding with other nations. I agree with my noble Friend the Secretary of State for Foreign Affairs that some countenance would be given to the new and, as I think, the erroneous principle, if the Government had undertaken to withhold ratification until there had been a discussion here. Parliament has never claimed such a right; and the result of adopting such

  1107
  a course would be that the Ministers would get rid of their responsibility. Therefore, though it may be convenient that this Treaty should be discussed before it is ratified, I am persuaded that the Government are right in declining to give any pledge of the kind, and in adhering to constitutional practice.
  LORD CAIRNS: I do not propose to continue the discussion: but with regard to the rule of giving Notice, I think my noble Friend (the Marquess of Salisbury) was perfectly justified in putting the Question he did on Friday night; and I must also say that the noble Earl opposite (Earl Granville) was perfectly justified in refusing to answer it if he was not prepared to do so at the time. There must sometimes be cases of urgency, when Questions must be put without Notice, and it is then for the Minister to say whether, in his discretion, there is good reason for refusing to answer them at once. With regard to constitutional practice, I entirely agree with what has been said by the noble Earls. The essence of the Constitution is that the responsibility of concluding treaties should rest with the Crown, and it would be shifting that responsibility from the Executive to Parliament were the Government to invite or court the opinion of Parliament on a treaty before the assent of the Crown had been given to it. I did not, however, understand my noble Friend (the Marquess of Salisbury) to intend to throw any doubt upon that practice. I believe he desired, as matter of information, to know whether the Treaty would be ratified before the House met again and had an opportunity of discussing it. Nor did I understand the noble Earl (Earl Russell) to differ from the noble Earl (Earl Grey), or to say more than this—that, as it is the right of the Crown, and the duty of the Executive Government, to conclude treaties upon their own responsibility, so it is also the correlative right of Parliament, at any time before it is too late, to step in and tender respectful advice to the Crown on the subject. Turning to a more practical point, I understand that the Government are not in expectation of receiving this Treaty ratified on the part of the American Executive for some little time longer; but I understand that the text of the Treaty has been published in the United States. Now, inasmuch as the text
  1108
  either has arrived, or will arrive immediately, and inasmuch as it is to be published prior to ratification, I do not see what harm can arise if it is communicated to Parliament at the earliest opportunity.
  EARL GRANVILLE: We received the first formal copy of the Treaty yesterday afternoon. It is now in the printers' hands, and I hope to present it to-morrow. As to the additional Papers, it is obvious that there are Papers which it would be quite right to present after the ratification of the Treaty by the United States, but which it would not be convenient to present until we know a little more what the prospect of the ratification is. With regard to the giving Notice of Questions, I find in the Standing Orders, under date the 2nd of April, 1868, this Resolution—
  "That it is desirable where it is intended to make a statement or raise a discussion in putting a Question that notice of it should be given in the Orders of the Day."
  I think the noble Earl (the Earl of Carnarvon) was wiser when he stated that he would not discuss the Treaty before the text of it appeared than when he went on to question one of the most important portions of the Treaty, and one of a very delicate nature—that connected with Canadian questions.
  THE EARL OF CARNARVONsaid, he adhered to his construction of the Standing Orders, and was ready, if the noble Earl wished, to discuss the matter at a future time.
  EARL STANHOPE, as one of the framers of the rule, differed from the noble Earl (the Earl of Carnarvon). The Resolution of the House was that Questions should not be put without Notice, except in cases of urgency.
  THE MARQUESS OF SALISBURYpointed out that the Resolution referred to cases where it was intended to make a statement or raise a discussion. Now, in putting the Question on Friday night he neither intended to make a statement or raise a discussion.
  EARL GRANVILLEremarked that, whatever the noble Marquess's intention had been on Friday, it had been proved to-night that his Question was calculated to raise a discussion.

  LOCOMOTIVES BILL [H.L.]
  A Bill to consolidate and amend the Law regulating the use of Locomotives on Roads—Was presented by The Lord DUNMORE; read 1a. (No. 130.)
  House adjourned at Six o'clock, till To-morrow, half past Ten o'clock.