Lords Sitting of 17 March 1884

MINUTES.
PUBLIC BILLS—First Reading—National Debt* (30); Valuation (Metropolis) Amendment* (31).
Committee— Trustee Churches (Ireland)* (11–32). Committee—Report—Brokers (City of London) * (24).

SOUTH AFRICA—THE TRANSVAAL CONVENTION OF 1881, ARTICLE 20.

  QUESTION. OBSERVATIONS.
  EARL CADOGAN, in calling their Lordships' attention to Article 20 of the Convention between Her Majesty the Queen and the South African Republic, signed in London on the 27th February, 1884, and in asking why an analogous provision in favour of this country had not been inserted in that
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  Convention? said, it would not be necessary to enter into any details of the various Articles contained in that Instrument; but, in order to justify the importance which he attached to Article 20 in the Convention, it was requisite that he should say a few words in regard to the circumstances in which the Convention had been carried out and signed. At the close of the unfortunate warlike operations against the Boers of the Transvaal, which terminated in great disaster to our arms at Majuba Hill, Her Majesty's Government came to the conclusion that they would yield to force that which they had previously declined to concede to argument, that they would retract the annexation which had been carried out by their Predecessors, and that they would give back to the Transvaal Boers the Constitution they had previously enjoyed. Her Majesty's Government, in 1881, concluded a Convention with the Transvaal Boers, of which he could only say that if they had not

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  assured Parliament that they intended to enforce the provisions it contained, neither Parliament nor the nation would have agreed to the somewhat humiliating peace which the Government then concluded. That Convention having been signed three years ago, they had all seen how completely its provisions had been ignored by the authorities of the Transvaal Government. Sir Hercules Robinson himself had described it within the last few days as mainly inoperative; and the Under Secretary for the Colonies, in "another place," on Saturday, said that although the Transvaal authorities had not fulfilled the conditions of that Convention, their sins had been chiefly sins of omission, not of commission. In fact, the Convention had been practically inoperative ever since it was concluded. That was the state of things until last year a deputation of Delegates from the Transvaal visited this country, whether at the invitation of the noble Earl opposite (the Earl of Derby) or not he had been unable to ascertain; and it consisted of Mr. Krüger (the President of the Transvaal Republic), the Minister of Education in the Transvaal, and a Member of the Volksraad, or Assembly of that Republic. They had watched the proceedings of the negotiations of the noble Earl with considerable anxiety. They had known that from day to day concessions were being extorted from the noble Earl; and it was with some relief that they heard last month that those concessions had been so far brought to an end that a new Convention had been signed between the Representative of Her Majesty and the Delegates of the Transvaal. He mentioned those facts to show that that Convention was no ordinary Instrument. It was not a Convention or Treaty signed between two parties acting on equal terms; it was a Convention purposely intended to carry out the concessions that had been extorted from the noble Earl by the Delegation which had spent the last few months in this country. He did not state that on his own authority; there was no doubt about the fact; the Government had not concealed it. The Preamble of the Convention began as follows:—
  "Whereas the Government of the Transvaal State through its Delegates have represented that the Convention signed at Pretoria on the 3rd day of August, 1881, and ratified by the
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  Volksraad of the said Stain on the 25th of October, 1881, contains certain provisions which are inconvenient and imposes burdens and obligations from which the said State is desirous to be relieved. … Her Majesty has been pleased to direct, and it is hereby declared, that the following Articles of a new Convention signed on In-half of Her Majesty by Her Majesty's High Commissioner in South Africa … shall when ratified by the Volksraad of the South African Republic be substituted for the Articles embodied in the Convention of the 3rd of August, 1881."
  There was no question of the fact that the Natives who had been loyal to us during the late war were not adequately protected; there were no conditions in. The Preamble of the Convention favourable to the views of this country; but it said that the new Convention was carried out entirely at the instigation and on the representation of the Delegates of the Transvaal Republic. Sir Hercules Robinson, who had signed the Convention on behalf of Her Majesty, had lately described the Instrument, saying that it could not but be considered as most liberal to the Transvaal State; that it gave to that State as much of Bechuanalaud as could be handed over to it without abandoning our Native allies, or sacrificing the trade route; that it gave the Transvaal as complete; internal independence as was enjoyed by the Orange Free State; and that, in regard to its relations with Foreign Powers, a veto only was reserved to Her Majesty's Government. In fact, as he understood the matter, the Suzerainty of the Queen was practically abolished. The Convention permitted the change; of name from the Transvaal State to the more high sounding title of the South African Republic. He must also bring-forward the Under Secretary for the Colonies as a witness to the character he had given the Convention. On Saturday Mr. Evelyn Ashley said that he did not think there was the slightest reason for distrusting the Transvaal Government; that, taking the whole of the Convention together, he thought we had got something very substantial; that, at all events. Her Majesty's Government had done their best. That was so far borne out by what what was reported to have fallen from the noble Earl the Secretary of State for the Colonies at the banquet given to Sir Hercules Robinson a fortnight ago. The noble Earl was reported to have said that he thought what we had to do was to arrange the affairs of

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  the present time to the best of our ability, and leave the rest to Providence.
  THE EARL OF DERBY: Where was that said?
  EARL CADOGAN: In the report of the proceedings at a dinner given to Sir Hercules Robinson. That, then, was the Instrument to one of the Articles of which he wished to call attention. That Article (Article 20) ran thus—
  "This Convention will be ratified by a Volksraad of the South African Republic within the period of six months after its execution, and in default of such ratification this Convention shall be null and void."
  That, he thought, was a very unusual provision to be inserted in any Convention or Treaty. They might be told that it was rendered necessary by the Constitution of the Transvaal. No doubt, the law of Great Britain was that the carrying out of Treaties and the making of war were vested in the Sovereign, and did not require ratification by Parliament. The Prime Minister, in various speeches, had dealt with that question; and although he had expressed the opinion that all Treaties made by Her Majesty with the advice or assistance of Her Ministers should be laid on the Table of either House of Parliament, yet he did not think the right hon. Gentleman had ever held the doctrine that the power did not lie entirely in the hands of the Sovereign. He was quite aware that in a Republic such as the Transvaal was, probably any Convention or Treaty signed between Her Majesty, through Her Representative, and the Representatives of the Republic, would require ratification by the Volksraad of that State. But Her Majesty had power to sign and conclude a Treaty which had also been signed by the three Representatives of the Transvaal who had no such power, and whose signature apparently had no effect until the Convention was ratified by the Volksraad. He did not know whether the noble Earl would justify that by suggesting that that Article merely contained a provision for the exchange of ratification; but the actual wording placed this country in a position of considerable difficulty. A Convention consisted entirely of concessions extorted from the noble Earl had been signed by Her Majesty's Representative. It was referred back for a period of six months for the ratification of the Volksraad. He had not found,
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  from a perusal of a very large number of Treaties and Conventions, that any actual precedent existed for the course which had been taken; but he did the noble Earl the justice to say that one comparatively close precedent was to be found in the action taken by the noble Earl who sat near him (the Earl of Kimberley) in 1881, because in the original Convention there was the same Article with a slight variation. Article 31 of that Convention provided that the Convention should be ratified by the newly-elected Volksraad within three months after its execution, in default of which ratification the Convention should be null and void. But in that Convention that Article was followed by another to the effect that the Representatives of the Transvaal State promised and undertook that the Convention should be ratified by a newly-elected Volksraad within three months. He felt that the position was one in which they were entitled to ask an explanation of the noble Earl. The Boors at present were in the possession of a Convention which they were to be left to ratify or not as they pleased. This country, on the contrary, had committed itself by the signature of Her Majesty's Representatives to a number of concessions contained in it. But supposing the Volksraad declined, at the end of six months, to ratify this Convention, what would our position be then? It was provided, as their Lordships were aware, that the old Convention would remain in force; but what was the use of the old Convention remaining in force, when they had extorted from the noble Earl opposite a certain concession in this Convention? He thought it would have been better if the noble Earl had not signed. The Convention until the Delegates had I obtained from the Volksraad an expression of opinion upon the Articles of: the Convention to be signed. In either case, he trusted the noble Earl would give them two assurances—in the first place, that if this now Convention was ratified by the Volksraad he would give an undertaking on the part of the Government that they would insist upon the compliance with its provisions; or, in the event of their declining to ratify, that he would take steps to have the provisions of the former Convention carried out, which, at the present moment, I was a dead letter.
  THE EARL OF DERBY: My Lords, I think that the noble Earl's speech was a comment upon the Convention generally, whereas the Question he has put applies to one Article only of that Convention. Now, my Lords, I do not suppose it is the wish of your Lordships that We should go into the general question of the arrangements which have been concluded. It does not seem to me very material to inquire whether the Delegates originally came over hove, or whether they came over on my invitation or their own. The fact is, (hat very soon after I came to hold the Office which I have now the honour to hold, an intimation was given by the Government of the Transvaal that they would be glad to have a revision of the Convention. When the Convention was originally concluded, I cannot say whether any promise was given; but, undoubtedly, hopes were held out that if the original Convention was found not to work smoothly, steps would be taken for the purpose of revising it when sufficient time had passed in order to enable us to judge of the effects of its working. A communication to that effect was made to me, and in the first instance I proposed to send a Commissioner to the Transvaal to obtain on the spot information as to what the objections of the Transvaal Government really were, and to discuss the matter with them. They, however, expressed an opinion in favour of sending a delegation over here, and I acquiesced in the idea, and that was the origin of the communications which went on in the course of the winter. Then the noble Earl said that the object of the Convention had been to abolish the Suzerainty of the British Crown. The word "Suzerainty" is a very vague word, and I do not think it is capable of any precise legal definition. Whatever we may understand by it, I think it is not very easy to define. But I apprehend, whether you call it a Protectorate, or a Suzerainty, or the recognition of England as a paramount Power, the fact is that a certain controlling power is retained when the State which exercises this Suzerainty has a right to veto any negotiations into which the dependent State may enter with Foreign Powers. "Whatever Suzerainty meant in the Convention of Pretoria, the condition of things which it implied still remains; although the word is not actually em-
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  ployed, we have kept the substance. We have abstained from using the word because it was not capable of legal definition, and because it seemed to be a word which was likely to lead to misconception and misunderstanding. Then the noble Karl went on to call attention to a speech in which it was said I had made use of the phrase to the effect that all we had to do was "to arrange the affairs at the present time to the best of our ability and leave the rest to Providence." As a matter of fact, I do not believe there was any regular reporter present on the occasion on which the speeches referred to were delivered, and I very greatly doubt the verbal accuracy of the phrase ascribed to me. Whatever I did say in that sense, or with that tendency, applied to a totally different matter. It referred to an after-dinner suggestion that had been made with respect to the Imperial Federation of the Colonies—a matter as to which I do not profess to see my way clearly. At any rate, my remarks had nothing to do with the question of South Africa. The noble Earl then came to the Question of which he has given Notice. He asks why this ratification was required on the part of the Transvaal? Well, the noble Earl partly answered his own Question, because he himself called attention to the fact that the clause is transferred almost word for word from the original Convention.
  EARL CADOGAN: The original Convention had a provision that the Delegates will insure ratification by the Volksraad.
  THE EARL OF DERBY: Although that Convention contained many things that were objected to by noble Lords in this House and in the other House of Parliament, I do not recollect that that particular point was taken notice of by anyone. It passed, I believe, absolutely without comment. But when the question is nut—"Why do you make the conclusion of the Convention dependent upon the ratification of the Volksraad? "the answer is plain. The engagement entered into had to be submitted for ratification in order to make it legal and binding, because, according to the Constitution of the Transvaal, the Executive alone has not the power of making a Treaty which shall be legally binding. That requires the ratification of the Volksraad. That condition of

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  things, I may be allowed to point out, is not peculiar to the Transvaal. The same course is followed, I believe, in the united States. Therefore, when it is asked—"Why do you require the ratification of the Volksraad?" I have only to reply, because in he other manner could the Convention be made legal or binding. The noble Earl again says—"Why is there no corresponding' provision affecting this country?" I have to say, in answer to that question, that it has never been the practice to require Parliamentary ratification of Treaties concluded by the Executive. It is a fair matter of discussion, no doubt, whether our system is a good one or not; but it has always been the invariable rule in this country that arrangements of this character should be concluded upon the responsibility of the Executive. That is a part of the Constitution under which we live. The noble Earl then said what a difficulty this country would be in if it happened that the Volksraad refused to ratify the Convention; but that is not a case likely to arise. In my belief the Transvaal Government are quite ready to accept the engagements entered into on their behalf. They sent their Delegation over here for the express purpose of negotiating this new Convention; and, that being so, it seems to me a misapprehension to suppose that they will not carry into effect an undertaking which they themselves have shown so much anxiety to enter into. If, however, matters should not turn out as anticipated, we can simply fall back upon the original Convention of Pretoria, which the people of the Transvaal have been so anxious to modify. Considering the large concessions winch have been made on our part, can there be anything more utterly illogical than that those who have succeeded in obtaining those concessions should turn round and refuse to ratify the Convention? I do not think there is any prospect of this occurring. If the Convention is not ratified, we shall be simply where we were before, and the Boers will have to fall back on the Convention of 1881—the Convention to which the have professed, and I have no doubt sincerely professed, to have so much objection. The noble Earl asks whether, in the event of the Convention being ratified, we will insist on its being fulfilled? Of course, when two parties cuter into a
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  Treaty it is not intended that that Treaty shall be waste paper. As to what Her Majesty's Government would do in the event of the Convention not being ratified, that is an event so utterly improbable that it is unnecessary to discuss the question of what we shall do if it happens.
  THE MARQUESS OF SALISBURY: My Lords, the noble Earl is right in his contention that, according to the Constitution of this country, the consent of Parliament is not required to the Treaty-making power of the Crown. Yet it is not true to say that the consent of Parliament might not be one of the conditions of the Treaty, for it would be perfectly legitimate to make provision for such consent, and there are plenty of precedents for it. The complaint of my noble Friend is, that in a case where the noble Earl was compelled by the Constitution of the Transvaal to give to the Transvaal Legislature powers to revise or veto this Treaty he did not reserve any similar power to the Parliament at Westminster. I think there is considerable reason in the complaint of my noble Friend, because this is a Treaty of an unusual character, a Treaty to which we are not accustomed, a Treaty of concession, by which we are to go back—and back apparently under considerable pressure—from stipulations which we have previously obtained. I do not intend to discuss the Treaty at large, but merely with reference to this point—whether, in view of the condition of public opinion at home, it ought not to have been reserved for the assent of the two Houses of Parliament? There are two very important results of this Treaty; one is, that every kind of security for the proper treatment of the Natives within the Transvaal Republic has been abandoned. This Treaty is spoken of as if it were a Treaty of emancipation and enfranchisement—as if it were a Treaty in the interests of liberty; while it is really in the interest of slavery, in the interest of servitude, handing over more than 400,000 Coloured people to some 40,000 White people to do exactly as they like with them. Without ex-pressing any opinion as to the policy involved, no one can deny that, in view of the feelings of the people of this country on the subject, that is a matter of great importance. Again, I thought

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  the noble Earl treated with some contempt the fact that the Transvaal State is to be called the South African Republic; but it is a very shallow philosophy which treats names as a matter of small importance. The fact that they call themselves the South African Republic, we may depend upon it, will be constantly dinned into the ears of the people of the same blood and race out-side the borders of the Republic, and inferences will be drawn not favourable to our Imperial interests. The noble Earl treats with ridicule the suggestion that the Transvaal Government may decline to sanction this Treaty which is so favourable to them; but that, I think, shows an inadequate view of the tendency of human nature. When, with very great ease, they have induced a Great Power to tear up a Treaty to which it professed to attach great importance only four years ago, it is very possible that they may think that if they had made greater demands they would have obtained them also. It is very possible that when the Transvaal Commissioners got back their Government will say to them.—"You see the kind of people you have to deal with; you might have got anything you liked. Why did you not ask for more than this?" It is exceedingly possible, I think, that they will turn round upon Her Majesty's Government and desire to obtain more. I believe that the noble Earl (the Earl of Derby) is perfectly justified in what he has done, and that he has not gone beyond any Constitutional right or precedent; but, considering the vast importance of the subjects he is dealing with, and the great interest attached to them by public opinion, he has, I think, not paid sufficient regard to the opinions of the Imperial Parliament or the views of the people of this country.
  THE EARL OF KIMBERLEY: My Lords, I do not think this is a suitable opportunity for discussing the Convention which my noble Friend has concluded. The noble Marquess has said that he would express no opinion on the Convention, and yet proceeded to characterize one of the most important of its provisions as one leading to slavery and servitude. But, as I have said, I do not consider this a suitable opportunity for discussing the Treaty. What I wish to say is this, that if the Trans-
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  vaal Government have succeeded in extorting from us so many concessions it would be a strange thing if we were to allow them also to compel us to alter our Constitutional practice which, much to my surprise, the noble Marquess seems to desire. It has been the invariable Constitutional practice that the Queen concludes and ratifies Treaties, unless there was some point to which the power of the Queen does not extend—touching a Vote of money—in which case the House of Commons has to be consulted, and where no doubt the assent of Parliament is always reserved. That being the established Constitutional doctrine, the noble Marquess seems to desire that because a small foreign State happens to have in its Constitution a provision for the ratification of Treaties by an Assembly of that State, we should make a corresponding change in our Constitutional practice and introduce an entire novelty. That seems to mo an extraordinary proposition. The fact of the matter is that a Treaty when concluded must be ratified by the Sovereign Power. Now, the Sovereign Power is not in the President of the Transvaal, but in the Volksraad itself, and the Treaty must, therefore, be ratified by the Volksraad there and the Queen here. The noble Earl (Earl Cadogan; also referred to another point—namely, that in 1881 the Delegates who concluded the Convention on the part of the Transvaal solemnly engaged to see that the Convention of that year should be ratified. The noble Earl will see that there is a considerable difference in the two cases. There was then no established Government in the Transvaal. The persons with whom we negotiated were Delegates of the Boers, and that was a wholly different case from the present, when there is an established and legitimate Government and the Delegates are acting under the ordinary authority given them by the State. I do not think this is a point of great importance; but, as there appears to be some doubt about it, I have thought it well to give this explanation.

FRANCHISE (IRELAND)—POPULATION —INHABITED HOUSES, &c. RETURN'S.

  QUESTION. OBSERVATIONS.
  THE EARL OF LIMERICKasked the Lord President of the Council, Whether

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  any Return laid before Parliament contained the present numbers of in habited houses in the various counties and boroughs in Ireland returning Members to Parliament, classified according to their various rateable values; whether the Return respecting the franchise in Ireland, ordered by the House on the 7th of February, would contain such information; whether it was a fact that the Return so ordered by the House could not be commenced until next month; and, if so, why; and, further, if such was the case, whether it was in accordance with the statement made in the House on the 7th of March, that every effort was being made for its production at as early a date as possible; and whether the Government had given any instructions for the immediate preparation of the Return, in compliance with the Order of the House? He felt that some apology was due to the Lord President for the fact that a Question on this subject was again put to him. The answer which he received on the last occasion was very full, and so far as he understood it was quite satisfactory. The Lord President stated that every effort would be made for the production of these Returns as soon as possible. He had since learnt, however, from an answer given to a Question in the House of Commons, that the work of preparing these Returns would not be commenced until after the 1st of April, and would not be proceeded with until the House of Commons should vote the necessary funds. He understood that the course pursued in this case had been somewhat unusual; the- ordinary practice being to prepare such a document directly it was ordered by either House, even in cases where a little expense was entailed. It was a one-sided affair to say that a Return could not be prepared, whoever ordered by, until the House of Commons had voted money for it. If a Return were ordered by the House of Commons, their Lordships would never think of questioning it. As regarded Ireland, it was very desirable to know what the conditions of the constituencies might be in order that it might appear what was the number of inhabited houses which existed throughout Ireland when this Return was moved for and agreed to. He was informed there was no Return now before Parliament that conveyed the information he
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  asked for; if there had boon he would certainly not have pressed for this Return.
  LORD CARLINGFORD (LORD PRESIDENT of the COUNCIL.)said, that it would have been more convenient if the noble Karl had put the Question to the noble Lord representing the Treasury in their Lordships' House. The noble Earl was certainly right in supposing that there was no Return at present before Parliament which gave the number of inhabited houses in the various counties and boroughs in Ireland returning Members to Parliament classified according to their various rateable values; but the Return which the noble Earl had already moved for, and which had been ordered by the House, would give those details. The state of the case with respect to the Return was this. The noble Earl and the House would remember that there was an unavoidable difficulty in the way of the Valuation Office completing this Return within a short period with its ordinary staff and under its ordinary Vote, nearly the whole of its staff being engaged upon work of a statutory kind—on the revision of the valuations, which it was necessary should be completed by a certain day. He understood, however, that the Return had been put in hand, and was being carried on so far as the means of the Valuation Office at present permitted. But it would be impossible to complete it or get it ready within such a time as would suit the noble Earl's object without supplementing the Vote. The Treasury had consented to propose a Vote in the House of Commons, and that Vote would be moved as soon as it could be managed. As soon as the necessary money was obtained, the Return would be pressed on with all possible speed.
  House adjourned at half past Five o'clock, till To-morrow, a quarter past Ten o'clock.