Lords Sitting of 17 February 1880

MINUTES.
PUBLIC BILL—First Reading—Companies Acts Amendment*(9).

PARLIAMENTARY REPORTING—THE HOUSE OF LORDS.—QUESTION.
LORD SUDELEYasked the First Lord of the Treasury, When he proposes, in accordance with his promise of last Session, to move for the appointment of a Committee to consider what are the best steps to secure an accurate and efficient report of the proceedings of this House?
THE EARL OF BEACONSFIELD: I am of the same opinion as I expressed last Session on this subject. I think it desirable that a Committee should be appointed for the purpose, and I will move its appointment on an early day.

THE TRIPARTITE TREATY OF 1856.

  OBSERVATIONS. QUESTION.
  EARL GRANVILLE: The Question of which I have given Notice belongs to a class which it is better that Members of the Opposition should be cautious in asking, and which Her Majesty's Government ought, if they answer at all, to answer with great consideration. But in this case the responsibility does not lie with the Opposition. The initiative was taken by a very able Member of the Government—Lord George Hamilton—who stated in the North, while arguing the Eastern Question, that the Tripartite Treaty of 1856 was at an end—that it was no longer in force; and that a better substitute had been found for it in the Anglo-Turkish Convention, whose obligations were only contingent upon Turkish reforms. With regard to the latter proposition, some questions might be raised whether the substitute was an improvement—one Treaty containing no engagement to Turkey, and securing the aid of two great military Powers, one of whom was also a great maritime Power, in case of action being required; the other binding us to Turkey, to defend her without assistance from others. It is also open to discussion whether our obligations under the Anglo-Turkish Convention depend, as Lord George Hamilton says, upon reforms by the
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  Porte; and whether, if our obligations are so limited, they are of much practical importance? It might also be asked how far this statement tallies with certain statements made by the noble Marquess (the Marquess of Salisbury) at Manchester, and questions asked by Viscount Sandon at Liverpool? But these are not matters which I wish to raise today. I wish merely to ascertain, as matter of fact, whether the Tripartite Treaty of 1856, with which your Lordships are well acquainted, is or is not now in force? Lord George Hamilton says it is not; and I should have thought he was undoubtedly right, if I were not awed by the fact that the highest political and legal authorities in the House of Commons do not seem to be altogether of that opinion. The Attorney General is reported to have made an apology for Lord George Hamilton, saying that he was not speaking accurately as in a Court of Justice, but, practically, as a member of a Conservative Association, which seems to be quite another thing. The Attorney General said that the Treaty was still legally binding, and that is a point on which the Attorney General's authority is, of course, of importance; but he added that it was thrown into the shade by the Treaty of Berlin. The Chancellor of the Exchequer, in agreeing with the Attorney General as to the legal effect of the Treaty, said that, practically and politically, Lord George Hamilton was right. They consider the Tripartite Treaty still to be in existence, not having been formally abrogated by any subsequent Treaty, but only thrown into the shade by the Berlin Treaty. But by the first Article of the Tripartite Treaty the three contracting Powers guarantee among themselves—the Porte not being a party to the Treaty—the independence and integrity of the Ottoman Empire, as provided by the general Treaty of 1856. There is no general guarantee of the Ottoman Empire irrespective of limits, but merely a specific guarantee of the integrity of that Empire within the limits as they existed at the conclusion of the general Treaty. A new state of things was created by the Treaty of Berlin. There may be a difference of opinion as to how much independence and integrity may have been retained for the Ottoman Empire; but everyone will admit that the independence and in-

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  tegrity of Turkey since that Treaty is of a different sort to what it was in 1856. The Tripartite Treaty was not before the Congress of Berlin. But, although no specific reference was made to it, yet the three Powers consented to an arrangement to which it was no longer applicable, and they virtually abrogated the Treaty. In doing so by common agreement among themselves, they did not depart from the principle of the Black Sea Conference, which laid down—
  "That it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty or modify the stipulations thereof unless with the consent of the contracting Powers by means of an amicable arrangement."
  The Protocol does not require that such an amicable arrangement shall be in the form of a Treaty. So far from requiring a formal Treaty to get rid of an obligation to guarantee a state of things to which they had amicably agreed among themselves and with the rest of Europe to put an end, if they had wished to renew the joint guarantee it would have required a new document to give it force. It appears to me that it is not desirable, or of good example, that this country should announce to Europe that certain Treaties are legally, but not politically, binding; and it will be satisfactory, as the question has been raised, if the Prime Minister is able to concur with me in declaring that Lord George Hamilton was accurate in the statement he made as to the Tripartite Treaty being no longer in force. I therefore beg to ask the First Lord of the Treasury, "Whether the Tripartite Treaty of 1856, by which Great Britain, Austria, and France guaranteed jointly and separately the integrity and independence of the Ottoman Empire, is still in force?
  THE EARL OF BEACONSFIELD: My Lords, it certainly is somewhat difficult to maintain that a Treaty which has not been cancelled or abrogated is extinct. On the other hand, there is no doubt that various changes have taken place in the state of things which are referred to in the provisions of the Tripartite Treaty, and that no one of the co-operating Powers has signified its intentions to the co-signatories to take notice of those changes. No doubt, also, as has been suggested by the noble Earl, and as has been suggested also by
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  others, the guarantee as to the specific integrity and. independence of the Turkish Empire contemplated in the Tripartite Treaty cannot now be secured in the face of the circumstances which have occurred; and the question might arise whether a Treaty can exist, the purport of which it is impossible to realize, or whether, on the other hand, an equitable interpretation may not be placed upon it which might lead to consequences of a contrary character. The fact is, though the analogy is not complete, Treaties of this kind are something like Peerages in abeyance. They are not visible, and yet live; they are in a state of suspended animation; but yet no one would for a moment pretend that the Peerage does not exist. I read the speech of my noble Friend (Lord George Hamilton) with much satisfaction; and it appears to me that the noble Earl, though it may not represent his feelings and views as correctly as it does my own, looks also with some degree of pleasure at that address. I should say myself that if we view the question in a practical manner—the only way, I think, in which those who are responsible for public affairs would be justified in viewing it—the position would be this: I am not prepared myself to pronounce that the Tripartite Treaty has ceased to exist; but if this country were appealed to by the cosignatories of that Treaty to act under its provisions, I should take into consideration two circumstances—first of all, the changes that have taken place in the Empire which was the principal object of the Tripartite Treaty; and, secondly, the nature of the facts which Her Majesty's Government would have to consider and to deal with.
  THE EARL OF KIMBERLEYasked their Lordships to consider what inconvenience might arise if the Tripartite Treaty wore to be regarded as in any way existing. That Treaty did not guarantee the independence and integrity of the Ottoman Empire absolutely, but of that Empire as settled by the Treaty of 1856. The Ottoman Empire was, no doubt, still independent; but it was not now that Empire which was guaranteed by the Tripartite Treaty. It seemed to him that there remained no obligation of any sort or kind upon us in connection with that Treaty. He spoke in the presence of those who had

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  more technical knowledge on legal points than he possessed; but, looking at the Tripartite Treaty in a political aspect, he thought that, viewed as a political instrument, that Treaty was absolutely and entirely dead. He hoped that was the general view taken of that Treaty; because he could not conceive anything more dangerous to the peace of Europe, or more unsatisfactory for this country, than that Treaties of the importance of that under discussion should remain, so to say on the Statute Book, to be acted on or not, just as it might suit the convenience of the Government of the day; for that was what the speech of the noble Earl (the Earl of Beaconsfield) had come to. He was quite aware that in the case even of Treaties of guarantee, whose binding character was not disputed, time and circumstances had to be considered when there was a question of carrying them into effect; but it was very desirable that when a Treaty of guarantee had fallen into such a condition that it could not be acted upon it should be regarded as politically and absolutely dead.
  LORD CAMPBELL: My Lords, as my attention has been very often directed to the Treaty for the last five years, I feel bound to make an observation, which, however, will be much compressed, since it was only a few hours back I learnt that the House would be led to this discussion. According to reports generally faithful, in the other House, the Government have explained that the Treaty is still valid, whether or not its exercise is probable. In this House they could not use a different language. The whole subject is elucidated by Vattel in Book 2, Chapter 13, section 205, where he points out that Treaties of the kind can be dissolved, but only by the contracting parties. The contracting parties have not dissolved the Treaty; and it is, therefore, in existence. One circumstance which always favours the survival of a Treaty is the survival of the object contemplated by its framers. The object of the Treaty was to guard Constantinople and the Bosphorus against encroachment which might be perilous to Europe. That object is still cherished by the majority of nations. Another circumstance which favours the survival of a Treaty is the survival of the peril which created it. It cannot be denied that, since the war of 1877, Constantinople and the Bosphorus are held upon
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  a tenure more precarious than they were before it. A further circumstance which favours the survival of a Treaty is the augmented power of the contracting parties to uphold it. Now Austria —if only from the occupation of Herzegovina and Bosnia—is better placed to defend Constantinople than she was after the Crimean War; France has reached a height of military organization superior to that which she possessed at the same moment. Great Britain is not, perhaps, more capable; but she is not less capable of acting than she was in 1856. These circumstances tend to the survival of the Treaty; but at least it is desirable to guard until you have the power to replace it. I should not have added another word had I not just listened to the noble Earl (the Earl of Kimberley) who has addressed us. The noble Earl has pointed out, with truth, that the Ottoman Empire is more circumscribed than it was when France, Austria, and Great Britain resolved to guarantee it. The guarantee cannot now belong to so large a territory as it formerly protected or surrounded. But his conclusion—namely, that the residue should be deprived of its support—appears to me ill-founded. If a proprietor of millions by some event had been reduced into the proprietor of thousands, the guarantee of the thousands which remained would be still more essential than that of the millions which had vanished. We must not forget that policy is the foundation of the Treaty; and it is easy to observe that its policy has been enhanced instead of being diminished by what has subsequently happened. If the Crimean War, instead of ending as it did, had overthrown the quadrilateral of fortresses in European Turkey, and formed another vassal Principality, Austria, France, and Great Britain would have been much more impelled to such a union as they entered into than after Russia had been driven back by various reverses. The noble Earl the Prime Minister has illustrated the position in a manner well adapted to come home to the apprehension of the House, when he referred to Peerages which, after a long abeyance, can be effectively revived. Even if the interpretation of the Treaty is a doubtful one, it is not doubtful that the public interest is more consulted by upholding than effacing it at present.
  LORD SELBORNEsaid, it was far from the true method of considering the question of the existence of the Tripartite Treaty to introduce ideas which were foreign to that question. To talk of that Treaty as being "legally binding" and not "practically binding" was, to his mind, absolutely without meaning. The Treaty was a political contract binding on the good faith of the nations which were parties to it; but there was nothing about it in common with our notion of "law," as that word was technically and properly applied. The word "equitable" had also been used by the Prime Minister; but that also was inapplicable. There was no distinction between the obligation of the Treaty under one circumstance and another. The real question was, whether the Tripartite Treaty was capable of fulfilment—whether the whole subject-matter of that Treaty had not been changed by the joint and concurrent action of all the signatories to it? and if that were the case there was no necessity to say anything about it. Austria, one of the signatories, was in possession of a portion of the Turkish Empire with the consent of the others; England, by arrangement with Turkey herself, was in possession of another portion; and Russia of other portions—leaving the Ottoman Empire in a position to which the word "integrity" was wholly inapplicable. Thus, as a matter of fact, all the parties concerned had concurred in removing every possible application of the Treaty to the new state of things, and it was now as completely and entirely inoperative as if it had been abrogated in the most solemn and formal manner.

  PRIVATE BILLS.
  All petitions relating to Standing Orders which shall he presented during the present Session referred to the Standing Orders Committee, unless otherwise ordered.
  House adjourned at a quarter before Six o'clock, to Thursday next, half past Ton o'clock.