LORD CAMPBELL,in moving an Address to Her Majesty, said, the House will easily divine the object of this Motion. It is to place on record the opinion of your Lordships that a certain class of Treaties, with which late experience has made us painfully familiar, ought to be more effectually brought under the judgment of the Legislature. An Address from this House may not, indeed, suffice to bind the action of the Executive; but it would raise a standard around and under which the force of popular opinion would be able to control or modify that action. The deep impression which the loss of San Juan, the consequent exposure of Vancouver Island, the discussion on the Indirect Claims, the proceedings at Geneva, have produced in every circle of society, cannot be enhanced by anything which falls from Members of either House of Parliament. Argument and language would be miserably wasted on this part of the subject. So strong has been the general disquietude, as to lead to an opinion that all Treaties ought at first to be submitted to the Legislature as they are in Portugal, and possibly in other countries in which Monarchy subsists. In favour of that system strong considerations may suggest themselves which it is not my business to advance. I am willing to defer to the opinion of those who think that certain Treaties could not be subjected with advantage to preliminary argument. The Triple Alliance, so long associated with the name of Sir William Temple, aimed at immediate and decisive action on the counsels of Louis XIV. To retard its operation would not have been consistent with its purpose. The Quadruple Alliance which immortalized another member of the same gifted race—the late Lord Palmerston—had a double function. It was designed partly as a counter-weight to the great despotic powers, and partly as an in- 1160 strument of finishing the civil wars in Spain and Portugal as rapidly as possible. Its latter function might, perhaps, have suffered by delay. Some Treaties of precaution, more or less disparaging to the good faith of Powers with which no war exists—such as that of April 15, 1856, by which France, Austria, and Great Britain united to defend Turkey against every possible attack—might not be convenient topics, at least, in every case of Parliamentary discussion. But I am ready to admit that, according to strict principle, some categories beyond that which refers to arbitration, ought to be included in the notice. Treaties by which cession of territory is brought about like that which lately separated the Ionian islands from Great Britain; Treaties which adjust long controverted boundaries like that of Lord Ashburton; Treaties of Commerce which affect our great industrial centres, might well be brought under the previous sanction of the Legislature. If the Address I ask your Lordships to adopt has passed them by, it is because in Parliamentary proceedings we are bound to take the course which gives the greatest chance of reaching unanimity, and noble Lords who are not yet convinced of the necessity of bringing all the categories I have mentioned before Parliament, would still be ready to admit, enlightened by the lessons of the moment, that such control is indispensable, for those which lead to arbitration. Besides, to address the Crown, although on the part of this House a constitutional and regular, is still so far a delicate proceeding that it ought not, perhaps, to go beyond the limits of the exigency which suggests it. Half the errors which disfigure statesmanship—if I may hazard an opinion upon anything so general—would be avoided, by only meeting the exact difficulty from which counsel has arisen. What the public absolutely wants is to guard itself against the errors and miscarriages of which the late negotiation with America was fertile. That such Treaties should be laid on the Table of the two Houses, a sufficient time before ratification to admit of their being examined and debated, may be an inadequate security. But can any better be devised? The question must, of course, turn at least to some extent on the late Treaty. But it is unnecessary to fatigue the House with an exact analysis 1161 of what has been so frequently submitted to it, and what no man whose mind has been employed upon these subjects can view without the feelings which it merits. It would not be easy to surpass, in moderation, justice, or lucidity, the arraignment which it drew from a noble Earl who once presided at the Foreign Office, on the first night of the Session. Still less would it be prudent to repeat, what so many of the House familiarly retain. The authors and the sponsors of the Treaty no longer venture to uphold it—take as an example the First Lord of the Treasury—except upon the ground that no better Treaty was attainable; as if at that time negotiation was essential; as if to break it off was absolutely fatal; as if some great calamity impended on the country to be averted by concessions the most shameless; as if the situation of the country had been that of France after the German War, or Prussia on the morrow of Jena. But the Treaty has been given up by other modes adopted to defend it. It has been defended on the plea that arbitrations were a novelty to be inaugurated now for the first time; on a second, equally fictitious, that war was the alternative of this humiliating instrument. It would not be respectful to the House to refute these childish allegations; but what inference do they suggest, except that the immediate authors of the Treaty are fully conscious of its weakness when to extenuate it they are forced to throw a veil over the history of the world, in which arbitrations have been frequent, and to invent a danger of which the correspondence between Lord Russell, Lord Clarendon, and Mr. Adams had long ago elicited the baselessness. To bring the errors of the Treaty fully into view, it would be necessary to advert to the composition of the Tribunal at Geneva; to the San Juan reference; to the manner in which defeat was actually ensured by the new Rules, and to the blow which public law received in the transaction. The last of these topics is the only one on which I desire to touch even for a moment. It is so important that with the permission of the House I shall read a few lines from a letter I published in the autumn on the subject, partly because it will thus be seen that my impressions have not been found to meet the exigency of debate; and partly because the terms may be less inexact 1162 than those which I should now deliver to your Lordships. The House will recollect that the characterising essence of the Treaty, that by which the arbitration was distinguished from any former arbitration, resided in the fact that the contracting Powers invented Rules to supersede the law of nations which would otherwise have governed the Tribunal. Since then it has been vauntingly announced that international proceedings in the future would be governed by the precedent. It therefore follows that—
The Treaty—in proportion to its influence—weakens and disparages the authority of public law, in any war which may arise, by leading the belligerents and neutrals to observe that should they be involved in future controversies springing out of it, another, new, and unforeseen canon will determine the conclusion. This consequence is brought home by easy illustration. From 1861 to 1865 the British Foreign Office was engaged in scrutinising public law with vigilance, in order to adhere to it with rigour. Their conduct as regards the rams, and as regards the Alexandra, is a sufficient proof of the assertion. Their respect for a blockade, of which the well-known consul, Mr. Bunch, had often proved the imperfection, may be suggested as another. Had it been foreseen that after the Civil War the questions which arose between Great Britain and the United States would be disposed of by another law—as yet unborn and incalculable—there would not have been a motive for examining Vattel and Wheaton, the authorities of Europe and America, unless to see from what departure was essential—and gain a sort of negative assistance in the sphere of illegality. So, likewise, in the recent war of Germany and France, if doomed to plead under now law against the charges the belligerents presented, the neutrals might as well have burnt their books as kept them open. But a belligerent may also be required to appear before a court of arbitration for his conduct to a neutral. The destruction of neutral property at the mouth of the Seine, or any other river, might raise a question for decision by this method. When the belligerent is in the dark as to the rules by which he will he judged, what rules will he adhere to, what gain will he forego, what passion will he sacrifice? Why should he not exult in that atmosphere of lawlessness with which the Treaty has surrounded him? The existing restraints of war may all have been transformed before his case is drawn up for the Tribunal. In future ages, therefore, if the Treaty is to govern them, belligerents and neutrals are both encouraged in a recklessness they could not previously have hazarded when the breach of public law involved a risk, and its observance, a security which now are seen to disappear.My Lords, the blow to public law the Treaty has involved would seem to be the gravest of its errors, because it is a blow to all communities and ages, while other features only influence our country and our time. Without antici- 1163 pating every possible objection to the course which I propose, I will proceed to answer some of the misgivings which may occur to those who have not yet considered it with accuracy. The first of these will very likely turn upon its efficacy. It may be urged that to lay Treaties on the Table is but a decent ceremonial; that in the recent Treaty the faith of the Crown was irrevocably pledged before ratification; that a noble and learned Lord explained that doctrine when the House was on the verge of a proceeding to control the Treaty; that the doctrine was accepted, and the proceeding stifled or relinquished by your Lordships. These facts, which occurred in the Session before last upon the Motion of Lord Russell, have not at all escaped me. The only answer is, that when Parliament had made up its mind to exercise a certain power over Treaties, sharp practice of the kind—and sharp practice it would be in that event— could hardly be resorted to by Governments. The objection that the Executive may still find a method of overruling Parliament and of defrauding the community, is one I cannot expect to hear to-night from those who form it at this moment. The misgiving some may have to the effect that Prerogative would suffer by bringing Treaties before Parliament with greater regularity, which, as it is, are brought before it stealthily and hastily, does not bear examination. The Prerogative, as vested in the Crown, of negotiating, of signing, and of ratifying Treaties, would be perfectly inviolate. Parliament would not be competent to give rise to any Treaty whatsoever. The noble Earl the Secretary of State must, at some time, have been familiar with the debate between Mirabeau and Barnave, in the French Assembly, soon after 1789, as to where the power of making Treaties should be vested. Mirabeau, on that point, the advocate of monarchy, contended that the power should be vested in the Sovereign. Barnave—the organ of the more popular idea—that it should be consigned to the Assembly. Mirabeauau prevailed; the power resided in the Crown; but the veto of the legislative body was universally admitted—the initiative of the Crown and the veto of the legislative body were seen at once to be compatible. The Prerogative would only suffer if Treaties were allowed to emanate from any other 1164 origin. But it is just to go beyond that statement. When questions are irrevocably settled by negotiators at a blow, Sovereigns can have no voice in their conclusion. So long as they are forced to wait for Parliamentary adhesion, a salutary influence may often be exerted by a Sovereign, informed on foreign policy, and anxious for the honour of the country. By what goes on at present, Courts and Parliaments are simultaneously mocked. The last fear or scruple, it may be, perhaps, essential to remove, is connected with a view that flagrant innovation is demanded. Innovation as to detail there might be; but there would not, in point of fact, be any as to principle. The principle was long ago conceded. There is no class of Treaties which it is more critical and delicate to expose to Parliamentary discussion than those by which a war is ended. They give rise to passions the most various, and debates the most entangled. It may become necessary, with a view to justify the terms, to explain the decline of credit, the dissipation of resources, the misconduct of allies, the rottenness of vessels, and bring forward many other topics which prudence would avoid, and dignity, in some degree, recoil from. Much stronger argument may be advanced against Parliamentary revision of Treaties, which lead to peace, than of those which pave the way for arbitration. But on Treaties which conclude a war, since 1688, what has been the method usually adopted? As regards the first, that of Ryswick, the records are too scanty to determine. On that of Utrecht, which succeeds, materials are only too abundant. Lord Bolingbroke, its celebrated author, has left undying pages on the subject. Preliminary articles were brought before both Houses, and so important was it deemed to gain the concurrence of this House, that a dozen Peers were called into existence to secure it—this part of history can scarcely have escaped Her Majesty's Government. The Peace of 1748 does not appear to have been conducted in this manner. Complaints were made in Parliament about it. It was allowed to be the ignominious end of an unnecessary contest. The peace which followed the Seven Years' War, in 1761–2, was brought with every possible solemnity before the Houses of that period. Lord Chatham, at that time Mr. Pitt, who had resigned, 1165 left a sick bed on purpose to oppose it. He took that course, it may be well supposed, not to execute a medical injunction, or to raise his credit as an orator, but, in the midst of pain and risk, to induce the House of Commons, if he could, to reject the preliminary articles. The Peace of 1783, which closed the struggle with America, was no less formally submitted to the Legislature. Not only did debates occur—not only were they followed by divisions, but the Government of Lord Shelburne was outvoted, and another set of public men required to negotiate. The beginning of the century was marked by the Peace of Amiens. Preliminary articles were brought before the Houses, against which Mr. Windham took the opportunity of delivering a speech, with which his fame is, in a great degree, identified. The same process was repeated in 1814 and 1815. I am forced to hurry over it, that I may not exhaust the patience of the House. But the abilities of such men as Sir James Mackintosh and Mr. Horner were brought to bear on criticism of the Treaties before, not after they were sanctioned. In 1856, after the Crimean War, I readily admit that Parliament was not consulted in that method, but that circumstance can hardly be accepted as an argument against the present Motion. It merely indicates a tendency to overlook and to encroach on the authority which Parliament enjoyed down to 1815, and which your Lordships are invited to restore as regards the class of Treaties most in want of vigilant solicitude at present. My Lords, these statements are derived from the authentic record of our Parliamentary proceedings, and also from the lighter and more lucid page of a noble Earl upon the other side (Earl Stanhope) whose attachment to the muse of history has been a constant and productive one. But as so long a chain must have fatigued the House, it will be better for me to release them. There is one remark which ought, perhaps, to have been made sooner. I did, indeed, maintain that no Prerogative was called in question by this Motion, and that the influence of the Sovereign on foreign policy could not be curtailed by it. Such a view may be correct, but it is certainly inadequate. It ought to be impressed upon your Lordships that to make the title of the Sovereign a bar to the restraining in- 1166 fluence of the Legislature upon Treaties is fraught with consequences if not perilous—for that would be too strong a word—at least injurious to Monarchy. Such an argument is an unmerited, impolitic, and blundering avowal, that Monarchy is under disadvantages from which in fact it is exempt. These are not the days to load that institution with reproaches which are alien to it and burdens which are not its own. This is not the moment to offer to Republican opinion a weapon very different from the superannuated tools it is accustomed to exhume, a weapon it would eagerly appropriate and actively employ, in the campaigns it is preparing. In France and Spain, together for the first time since the Middle Ages, monarchy is under an eclipse. The situation may be transitory, but so long as it endures adjacent thrones ought not to be gratuitously weakened. Above all, they ought not to be gratuitously weakened by those whom every tie of decency engages from the places which they fill not only to a loyal, but to a wise, a vigilant, and circumspect allegiance. Such a topic it is useless to develop. It may induce the noble Earl the Secretary of State to pause before he tells the masses out-of-doors that they must change their institutions if they wish to gain an adequate control over their honour. It would be better far if he allowed them to recover that which they desire by going back to the traditionary and ancient system which they ought to have inherited.Moved, "That an humble Address be presented to Her Majesty, praying that all Treaties or Conventions by which disputed questions between Great Britain and a foreign power are referred to Arbitration, may be laid upon the Table of both Houses of Parliament six weeks before they are definitively ratified."—(The Lord Campbell.)
§ EARL GRANVILLEMy Lords, I feel some embarrassment in answering my noble Friend, in consequence of the line he has taken in the observations he has made. The noble Lord has told your Lordships that his Motion does not represent his own views on the subject, inasmuch as it ought to have stated what has been the constitutional practice in this country in regard to the control of Parliament in the case of Treaties and Conventions. The noble Lord has next made an eloquent attack on the Wash- 1167 ington Treaty, and has stated that the attack made on it by Lord Derby has never been answered. Well, that is a matter of opinion; but I endeavoured to answer it myself, and I think it has been fully replied to by my noble and learned Friend on the Woolsack. Then, the noble Lord referred to a document which, I confess, is one of the utmost authority—because it is a letter which he himself wrote to the Press last year; and he referred to a speech made by my right hon. Friend the First Minister in the other House of Parliament, to show that in Mr. Gladstone's opinion the Treaty of Washington was concluded under the pressure of dire necessity. It appears to me, my Lords, that in Mr. Gladstone's speech there is no foundation for the statement of my noble Friend. As I understood him, Mr. Gladstone did not make any such admission as that the Treaty was concluded under the pressure of dire necessity. What Mr. Gladstone said was, that if one party had it all their own way they could make a different Treaty from the one they might have to make with the assistance of another party; because in the latter case they must make concessions and meet the other party half-way. My noble Friend tells us that what he proposes would not in any degree interfere with the acknowledged Prerogative of the Crown; but, if your Lordships desired it, I could readily quote authorities in refutation of this argument. Blackstone, Kent, Wheatstone, De Lolme, all concur in stating that this making of Treaties is one of the Prerogatives of the Crown. From the manner in which the Constitution has grown up, the Prerogative of the Crown and the authority of the Legislature are so nearly balanced that often it is almost impossible to draw a definite line between them; but in the case of Treaties, the line is clear, and I am sure your Lordships will agree that it is most important that a well-defined line should exist between the powers of the Executive and the Legislature, however the Executive may be controlled by the Legislature. In questions of war the greatest inconvenience might result if the negotiations were delayed pending the veto of Parliament on the terms of Treaties of Arbitration, where delay might not only lead to the break out of war which might otherwise have been timely stopped, or 1168 to a prolongation of suffering, and, perhaps to the loss of opportunities of settling the quarrel. I see no reason why wars should not be stopped by referring the matter in dispute to arbitration of a judicial character; but I think there can be no doubt that if all negotiations for Treaties had to be submitted to Parliament, the difficulties in these cases would be immeasurably increased. It so happens, however, that this Treaty, which has been so much condemned, was laid before both Houses of Parliament before it was ratified; and I doubt if anyone reflecting on the subject, will say that the criticisms made in Parliament on that Treaty did not act as an encouragement to the unfortunate setting up of those Indirect Claims which in the end we fortunately got rid of. I should like to know from my noble and learned Friend on the Woolsack whether those criticisms which emanated from some very eminent persons in Parliament, did not enable the Arbitrators to hold that the Rules were susceptible of a more elastic construction than the terms in which they were laid down would have seemed to imply? If the opinion of the noble Lord should be followed, and if both Houses of Parliament are to be parties to the provisions of every Treaty, the amount of work they would take upon themselves would be almost infinite; they must follow the negotiations and go into all the details. This must be done, I presume, by Committees of the respective Houses; and, as the two Committees might come to different conclusions, greater difficulties may arise from this system than any the noble Lord may foresee. The case of the United States has been frequently referred to, because there the Senate has absolute power over Treaties. But that is different. The Congress has no power of the sort; but the President, being irresponsible to any authority during his term of office, the Constitution has provided by means of the Senate a sort of secret Privy Council to control this irresponsible Executive. Still, my Lords, if I may venture to criticize the constitution of another country, I doubt if that is a very satisfactory arrangement. It would be much less so, I think, in European States, which by reason of their more intimate intercourse are more frequently obliged to enter into negotiations with one another. It is my belief that many 1169 of the best Treaties to which we are parties never would have been concluded if Parliament had interfered at every stage of the negotiations, instead of exercising that general control over the Executive with which it is now intrusted. Believing it would be impossible for Parliament to enter into all the details necessary for bringing to a successful conclusion the negotiations which must precede a Treaty, I feel it to be my duty to oppose the Motion of my noble Friend.
§ THE MARQUESS OF SALISBURYMy Lords, I rise to express a hope that my noble Friend (Lord Campbell) will not think it necessary to press his Motion to a Division. Though I agree with much that has been said by my noble Friend, yet, as this is a Motion which, if it does not propose that the Crown should part with its entire Prerogative in respect of Treaties, does propose a considerable modification of its exercise, the subject is one which should engage a considerable amount of attention, and if this House speaks on the question it should speak with no feeble and undecided voice. For this reason I hope my noble Friend will be of opinion that he has gained sufficient for the present in having elicited the expression of the noble Earl's opinion and in giving an impulse to discussion. I cannot admit, with the noble Earl, that there is no case for a change of practice. I do not understand my noble Friend to propose an alteration in the law. I do not understand him to propose an Act of Parliament to limit the Prerogatives of the Crown. What he proposes is that in respect of Treaties of a certain kind, it would be right that Ministers should give Parliament an informal opportunity of expressing its opinion on them before their ratification. The noble Earl (Earl Granville) told us that such an opportunity was given to both Houses in the case of the Washington Treaty. But what happened in that case? Why, when the Treaty came before this House we found that the Queen's honour was already pledged by the opening clause of the Treaty. That stood as a blank wall in from of us. I venture to say that if the Queen's honour had not been so pledged to the ratification of the Treaty, Earl Russell's Motion would have been carried. My Lords, I think the Washington Treaty has thrown much additional light on the difficulty in which Parliament is placed in respect to 1170 the Executive on such questions in consequence of the extraordinary negligence the Government showed in omitting to take the best advice it was in their power to obtain. It is an old proverb that the man who is his own lawyer has a fool for his client; and though one would not apply such a proverb to a Government, certainly our Government were in the position of having a client who was not over wise; they allowed the insertion of matters affecting our municipal laws without taking the opinion of their own Law Officers; and the consequence is that the Treaty from beginning to end is drawn up in "less accurate language." I think the noble Lord in bringing this matter forward has given expression to the feelings of all persons who pay attention to the foreign policy of this country. The people of this country have found themselves suddenly and unexpectedly in a state of helplessness. They are fined heavily because their own municipal laws did not contain certain provisions which it had never been thought wise by Parliament to enact. What is that but the exercise of a control over the Parliament, which makes the laws of this country? If we could believe that these decisions would not influence future action we might bear the prospect before us with more philosophy. The thing has passed; the money has to be paid; and we might banish the whole matter to the realms of history. But it is impossible to feel in that way about it. The Chancellor of the Exchequer in the other House, and my noble and learned Friend upon the Woolsack in this, have both distinctly stated that they do not consider any new obligation of International law would be imposed on us for the future by these decisions; and the Chancellor of the Exchequer relied strongly upon the opinion that Arbitrators could give decisions but could not make law, which was for Judges alone. With that opinion fresh in my mind, it was with regret that I heard the noble Earl opposite (Earl Granville) speak of these matters being decided by "a judicial arbitration." That is the last word I think he should have used, as it appears to give to Arbitrators the power which all Judges possess of tracing out for their successors the path which they shall pursue. Their decisions would have the force of Judge-made laws, and no one who has read the Papers can have any doubt that 1171 the legislation of this country must be materially modified, and our whole political system seriously changed, if the doctrines of these Arbitrators are to hold good. The noble and learned Lord upon the Woolsack said the other night that nothing should draw from him a word disrespectful to the Arbitrators in the Geneva Tribunal; neither would I. No doubt it is very unwise for the beaten party to speak disrespectfully of those who give the award; it looks as if the observations were the result of the decision; but, on the other hand, it is difficult to consider these questions without considering the character of the Arbitrators before whom they have to come. If Arbitrators are to have the power of laying down doctrines of law and of punishing those who appear before them, the Legislature ought to know what those powers are, and how far they are to extend, before they submit to them any questions touching the interests of the nation. In this case the power to select the Arbitrators was handed over to Governments which were without any particular obligation to select them in a manner to suit our system of municipal law; and they seem to have been chosen without any particular qualifications, except that they were absolutely unacquainted with the spirit of English law, and their one idea was that every nation should be punished whose system of law did not assimilate itself to the law of the countries to which they themselves belonged. The effect of their decision will not be lost on future Arbitrators. I remember pointing this out to a distinguished friend of mine; but he said—"You need not be afraid of arbitration. For years it will stink in the nostrils of the English people." I wish I could believe it; but I am afraid that, like competitive examinations and sewage irrigation, it is one of the favourite nostrums of the age. Like them, it will have its day, and will pass away, and future ages will look with pity and contempt on those who could have believed in such an expedient for bridling the ferocity of human passions. In the meantime it is a matter of great importance that Parliament should be informed who the Arbitrators are to be, before powers are entrusted to them which practically give them a jurisdiction over our municipal law, and enable them to toll us that unless we modify 1172 it we shall suffer in future whenever we have any controversy with any foreign Power. For these reasons I cannot think my noble Friend has done wrong in bringing this subject forward; on the contrary, he was quite right in doing so; but under the circumstances it would not, I think, be useful for him to press his Motion to a division.
THE LORD CHANCELLORMy Lords, perhaps it is hardly necessary for me to say much on this occasion, as my noble Friend who has just sat down is not in favour of taking any Vote on the subject. But, inasmuch as he has apparently expressed an opinion in favour of the principle of the Motion, as one which he might at another opportunity be disposed to support, it may not be altogether useless for me to offer some reason why, if that opportunity should hereafter occur, your Lordships should decline to assent to such a proposition as that of the noble Lord (Lord Campbell). The noble Lord's proposition seems to be a general one, that in all cases of arbitration, Her Majesty should be asked by a vote of this House—of one branch of the Legislature—to limit her Prerogative, and impose on herself a rule never to ratify any Treaty of arbitration until for a definite time it has been laid before both Houses of Parliament. But if any particular negotiation were pending—and we know pretty well what is going on, for some time before it is settled—and it might appear to your Lordships important to receive information as to its nature and progress which the Government did not afford, your Lordships would always have the opportunity of addressing the Crown for that information, and would be able to exercise your judgment with regard to the circumstances of the particular case. For any practical purpose, therefore, it cannot be necessary, even if it were right, for your Lordships to ask the Crown by an Address to limit its Prerogative with respect to one particular class of Treaties. And I venture to think that if there be any particular description of Treaty more than another which it would be inexpedient to single out from the rest and subject to such a rule, it is the particular class of Treaties to which the noble Lord's Motion refers. I myself have never been one of the enthusiastic advocates of arbitration; and it was not until after the event, if I may so speak, that I was in 1173 favour of this particular Arbitration. As is well known, Lord Derby, with the general assent of the country, took a course which conceded the principle that there should be an arbitration in this case. The Ministers who succeeded him had merely to follow, according to their lights and their opportunities, a course which had then become in some shape or other inevitable. What are the objections to laying down such a rule as that now proposed as to every case of arbitration? One of those objections has been very clearly stated by my noble Friend the Secretary of State—namely, that inasmuch as you do not propose arbitration, except for reasons which make it convenient to run some risk, and perhaps to make some sacrifice, such a rule would throw difficulties in the way of the negotiations. Unless that consideration can be given to the views of both sides which is the effect and the object of negotiations conducted in the ordinary manner, no agreement can ever be arrived at. In a one-sided discussion in the Legislature of either country, it is pretty certain that every possible objection will be raised; and in many cases it may easily be supposed that that would frustrate the object of the whole negotiation. But assuming that such a discussion does not stop the Treaty, and that the negotiation still goes on, it is pretty sure to do one of two things. First of all, it may serve to put arguments into the mouth of your adversary, as was actually done by the discussions which occurred here on the very subject of this Arbitration. Arguments which had been used here were most eagerly laid hold of, and very ingeniously amplified, and may not improbably have been accepted, by the Arbitrators on the credit of the great names of those with whom they originated. That is one effect of such discussions. In this case who ever thought of objecting that the Arbitrators were persons to whom it would not be fit that the Arbitration should go? There may have been individual objections, but nothing more; and nothing came from that. As regards the San Juan case, nobody appeared to know much about it till the whole thing was over. As to the Alabama Claims, several things were not foreseen, though others were, which may have been suggested by the discussion to our adversary, such as the Indirect Claims, which might not have 1174 been brought forward if they had not been so suggested. I must say I was a little astonished and somewhat mystified by what my noble Friend who has just sat down (the Marquess of Salisbury) said as to this House not having had the desired opportunity of expressing its opinion on the subject of the Washington Treaty before its ratification. Both Houses had an opportunity of expressing their opinion. This House debated the question, and actually had a Motion brought before it in time to prevent the ratification. But, says the noble Marquess—repeating something very like what had once been said by a noble and learned Lord not now in his place—we were tied hand and foot in consequence of the introductory terms used in the Treaty, by which he said the Queen's honour was pledged. But those terms are in every Treaty, and form no peculiarity of this one. The Government had indeed sent out Commissioners to negotiate, and the Government who sent them out, and who had been informed of and approved their proceedings, could not consistently with their honour and credit have advised Her Majesty not to ratify the Treaty. But Parliament is able, if it disapproves what has been done, and if it withdraws its confidence from the Government, to address Her Majesty in such a manner that, when both Houses concur, the particular Administration which negotiated a treaty not yet ratified may be changed; and the honour of the country and the Crown is not pledged under those circumstances to ratify the Treaty. It is a doctrine altogether untenable to say that, because the word "Plenipotentiary" is used, and because a Treaty is negotiated under such circumstances and in such terms as that Treaty was, therefore its ratification cannot be refused. And if in any case such a doctrine would be untenable, it is especially so in the case of a Treaty with the United States, where, without the concurrence of the Senate, no Treaty can be concluded. This House, then, had as ample and complete an opportunity of expressing its opinion on that particular Treaty as ever it could have, in the case of any other Treaty, if the Motion of the noble Lord now before the House were adopted. I would point out the difficulty in which the country might be involved if any fixed rule were laid down that a Treaty 1175 could not be ratified without the concurrence of Parliament. It would be making Parliament a portion of the Treaty-making power; and that might happen which actually did happen last year, and for want of the concurrence, in due time, of Parliament, the whole Treaty might have been defeated. Your Lordships will recollect that the first attempt to get rid of the Indirect Claims took the form of a proposed Supplementary Article to the Treaty. That Supplementary Article could not become law between the two countries without the concurrence of the Senate of the United States. When the Supplementary Article went before the American Senate, they could not agree to our form of the Article, and we could not agree to it in the form to which the Senate altered it. It therefore fell altogether to the ground; and but for the conrse which unexpectedly to many was taken at Geneva, the whole of that Treaty would have fallen to the ground. Some may think the country would not in that case have suffered. I will not now enter into that question; but you cannot suppose that obstacles of this kind to the conclusion of Treaties affecting the peace and goodwill of two nations, might not sometimes create serious difficulty and produce much mischief. As it is, there is the double security that important Treaties cannot and will not be negotiated without sufficient information being from time to time in the possession of Parliament to enable it, if it thinks fit, in each particular case to intervene, and that, if at any time the Government should conclude treaties which Parliament disapproves, it can visit them with the condign punishment merited by a Government which betrays the interests and honour of the country. For these reasons I hope your Lordships will neither on this nor on any future occasion agree to the proposal of the noble Lord.
§ THE EARL OF MALMESBURYMy Lords, I concur generally in the remarks that have just been made by the noble and learned Lord on the Woolsack, and I cannot support the Motion of the noble Lord. No one more than myself objects to any invasion of the Royal Prerogative, which would certainly be invaded by the noble Lord's Motion in the sense in which I understood him to propose it. It is impossible, however, to shut our eyes to the effect of recent events on the feelings of 1176 the people. If the Prerogative of the Crown is to be maintained, it can only be done in its present form by its not being abused; and the general discontent and dissatisfaction in the country have arisen from the abuse of the Prerogative by Ministers in this case. What are the facts? Not only did no Member of either House guess in the slightest degree what Her Majesty's Ministers were about to do when they sent over their Commissioners to America, but I do not think anyone in society or out of Parliament had the slightest notion of what the consequence of the Treaty as it was finally drawn by the Commissioners would be. I am convinced that, had the country been aware of the terms of the Treaty and of the intention of the Government to give up the position originally held by us, Parliament would have done all in its power to prevent the Executive from making any further advance in that direction. That is the cause of the Motion and of the discontent which has arisen; and if the Prerogative of the Crown is ever interfered with, it will be because it was abused in this case, and because Her Majesty's Government took upon themselves more than any prudent Government would have done. I am sure that if the Government could have perceived the issue of the negotiations, not one of their Members would have crossed the Atlantic. I rose chiefly to remark on the statement of the noble and learned Lord on the Woolsack, that the Queen's honour was not pledged when this Treaty was made. My noble Friend (the Marquess of Salisbury) thinks it was pledged, and I agree with him. When I twice had the honour of holding the seals of the Foreign Office, I always held that on these occasions the honour of the Crown was pledged; and if the contrary doctrine is held, see how careless it may make a Minister in carrying on negotiations. I cannot, indeed, conceive a more dangerous doctrine. Notwithstanding what has passed, I do not concur in the desire to infringe on the Prerogative of the Crown in these matters; but, inasmuch as Her Majesty's Government were bold even to audacity in embarking on such a sea of troubles without giving Parliament the slightest hint of what they were about, we want every security possible to be increased and not diminished for in- 1177 ducing Ministers to be careful, and more than careful, in such matters.
§ EARL GRANVILLEwished to remind the noble Earl opposite, who had charged the Government with abusing the Prerogative in giving nobody in or out of Parliament an idea of what was going on at Washington until it was too late, that the Instructions to the Commissioners were presented to both Houses at a very early date, and that, notwithstanding the strong pressure of the American Government, he took on himself the responsibility of deferring the ratification of the Treaty, in order to give their Lordships an opportunity of discussing it on Lord Russell's Motion.
THE EARL OF LAUDERDALEregretted that the noble and learned Lord was not on the Woolsack during the discussion of Lord Russell's Motion, for the Opposition refrained from supporting it on the ground that the Queen's honour was pledged. Had the noble and learned Lord's view been then put forward, the Motion would have been supported, and the Treaty would never have been carried out. Arbitration should not be agreed to when the Law Officers told the Government they were right; if they said the case was doubtful, let arbitration be resorted to; and if they said England was in the wrong, let us honourably and at once give in. In this case we believed ourselves in the right, and the result had been anything but satisfactory.
THE LORD CHANCELLORsaid, he was anxious not to be misunderstood. He did not say that it would not be a very grave and serious thing, after conducting negotiations up to the point at which a Treaty awaited ratification, to refuse to ratify it. A Treaty, however, was not a Treaty till it was ratified; and he had no doubt whatever of the right and power of the Sovereign, on the advice of Parliament, to refuse ratification—though it would be a very grave and serious step. What would be the good of the proposal to lay Treaties for six weeks on the Table of both Houses before ratification, if before this was done we were already bound to ratify them?
§ THE MARQUESS OF SALISBURYsaid, he would not back his own opinion on such a matter against that of the noble and learned Lord on the Woolsack. But he would remind the House that on the occasion referred to, Lord Cairns dis- 1178 tinctly and strongly held that the words employed, whether hackneyed or not, absolutely precluded the House, if they did not intend to sacrifice the honour of the Crown, from asking the Queen not to ratify the Treaty.
LORD CAMPBELLin reply, said, he did not share the repugnance of his noble Friend the noble Marquess to divisions, and thought if they were more frequent the attendance would be greater; but if there was a general desire to avoid a vote he should not force it. The noble Earl the Secretary of State had made no answer to the proposition that Treaties of peace had been almost invariably submitted to the Legislature, and that the same course applied to Treaties of arbitration could involve no further blow to the Prerogative. He (Lord Campbell) was astonished that the noble and learned Lord upon the Woolsack should lend the sanction of his eminent authority to an argument so frequently refuted, so long worn out, as the remark that a disgraceful Treaty might be visited by punishment of those who had contrated it. Neither the dismissal, nor impeachment, nor execution of its authors could reinstate a country in its territory or its honour if either had been sacrificed. But he was not entitled to detain the House if no division was to happen. He could not withdraw a Motion against which no valid plea had been maintained. If the noble Marquess deemed it right to move the Previous Question he (Lord Campbell) would assent to it.
§ THE MARQUESS OF SALISBURYsaid, the House would be no more pledged to any particular course if that Motion were withdrawn, than it would if the Previous Question were carried.
§ On Question? Resolved in the negative.