CO129-191 - Public Offices & Others - 1880 — Page 189

execution on a judgment."

the 'Charkich.")

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(The Magdalen Steam Navigation Company v. Martin, cited in

"A distinction.' says Mr. Justice Story, 'has been often taken by writers on public law as to the exemption of certain things from all private claims, as, for example, things devoted to sacred, religious, and public purposes; things extra commercium et quorum non est commerciura. That distinction might be applied to property like public ships of war held by the Sovereign jure Coronce, and not be applicable to the common property of the Sovereign of a commercial character, or engaged in the special business of commerce. In theSantissima Trinidad,' Judge Story said:-

"The commission, therefore, of a public ship, when duly authenticated, so far, at least, as foreign Courts are concerned, imports absolute verity, and the title is not objec- tionable. The property--that was a prize case-must be taken to be duly acquired, and cannot be controverted,'

"This has been the general practice between nations, and it is a rule founded in public convenience and policy, and cannot be broken in upon without endangering the peace and repose as well of neutrals as of belligerent Sovereigns. The commission in the present case is not expressed in most unequivocal terms; but it is what it purports, and must be deemed to apply to a public ship of the Government.

Looking to the character of the suit, and to other passages in the judgment, it seems to me clear that by the expression public ship of the Government,' meant a ship of war, is not any vessel employed by the Government. But even if the term could be treated as more comprehensive, and as including public ships, such as I have referred to, sent by the Government on exploring expeditions, it would not include vessels engaged in commerce, and whose character is (to use the expression of Bynkershoek De Leg Marcatore) 'Streune neveatorem ageus. Upon the whole, I am of opinion that neither upon principle, precedent, or analogy of general international law, should I be warranted in considering the Parlement Beige' as belonging to that category of public vessels which are exempt from the process of law and all private claims.

"I now approach the consideration of the second question, namely, whether the Con- vention between Her Majesty and the King of the Belgians of the 14th March, 1876, ratified by Parliament, did, so far as this country was concerned, place the 'Parlement Belge,' while in British ports, in the category of a public ship of war, and exempt it from the process of an English Court. I may observe in passing that the very fact that this packet is, in terms, given by the Convention the privilege of a ship of war in British ports does only tend to show that she had not such privileges by general international law, and that a Convention was deemed necessary to convey them. It is admitted that this Convention has not been confirmed by any Statute. It has been contended on the part of the Crown, both that it was competent to Her Majesty to make this Convention, and also to put its provisions into operation without the confirmation of them by Parliament. The plaintiffs admit the former, but deny the latter of these propositions. The power of the Crown to make Treaties with foreign States is indisputable. Passing by other authorities, I will cite the language of Blackstone, who was not disinclined to maintain the prerogative of the Crown. 'It is,' he says, 'also the King's prerogative to make Treaties, leagues, and appliances with foreign States and Princes; for it is by the law of nations essential to the goodness of the league that it be made by the Sovereign power, and that it is binding upon the whole community, and in England the Sovereign power quoad hoc is vested in the person of the King. What- ever contracts, therefore, he engages in, no other Power can delay, resist or annul; and yet, lest its plentitude of authority should be abused to the detriment of the public, the Consti tution (as was hinted before) hath here interposed a check by the means of Parliamentary impeachment for the punishment of such matters is, from criminal motives, advice, advise, or conclude any Treaty which shall afterwards be judged to derogate from the honour and interest of the nation."

"The learned writer was certainly aware that this general proposition must receive some modification and restraint besides that which he has mentioned. Blackstone must have known very well that there were a class of Treaties the provisions of which were inoperative without the confirmation of the Legislature, while there were others which operated without such confirmation. The strongest of the latter instances, perhaps, which could be cited is the Declaration of Paris in 1856, by which the Crown, in the exercise of its prerogative, deprived this country of belligerent rights which very high authority in the State and in the law had considered to be of vital importance to them. But this Declaration did not affect the rights of the subject, and the question before me is whether this Treaty does affect such private rights, and, therefore, required the sanction of the Legislature. The authority of Chancellor Kent was relied on. That learned writer observes that Treaties of Peace, when made by a competent power, are obligatory upon the whole nation. If the Treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an Act of the Legislature, the Treaty is morally obligatory upon the Legis- lature to pass a law, and to refuse it would be a breach of public faith.' And he further observes, There can be no doubt that the Power competent to bind the nation by Treaty

having

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may alienate the public domain of property by the Treaty.' He refers to the case of the United States v. the schooner " Peggy," decided by the 167 American Court. That was a case of a prize capture in which the vessel had been condemned, but subsequently a Treaty had been made between France and the United States by the terms of which the prize, among others, was restored to its original owner. The Court of Appeal, in that case, held the Treaty to be binding upon it, and, indeed, said that where a Treaty is the law of the land it, as auch, affects the rights of parties, and that Treaty as such binds those rights, and is as much to be regarded by the Court as an Act of Congress' But the sentence in this case was founded upon the power of the President, with the consent of the Senate, to make a Treaty affecting the rights of a captor in time of war, and the judgment was given upon that point. The Court said, it is true, that in mere private cases between individuals the Court will, and ought to, struggle hard against a construction which will, by a retrospective opera- tion, affect the rights of parties; but in great national concerns, where individual rights acquired by war arc sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import, and if the nation has given up the vested rights of its citizens, it is not for the Court, but for the Government, to consider whether it be a case proper for compensation. The whole sentence is founded upon the rights of the American Executive with respect to the prize of war. The like question arose in England in the famous case of the Elsebe,' in which Lord Stowell said: Prize is altogether a creature of the Crown. No man has, or can have, any interest but what he takes as a gift of the Crown. Beyond the extent of that gift he has nothing. This is a principle of law on the subject founded on the wisest reasons. The right of making war and peace is exclusively in the Crown, the acquisitions of war belong to the Crown, and the disposal of these acquisitions may be of the utmost importance for the purposes of both war and peace. Lord Chancellor Brougham, in the case of the booty captured by the army of the Deccan, referred to the 'Elsebe,' as undoubted law, observing that it was therein deter- mined that, when the Crown saw fit to restore the capture, the captors who have run the risk and suffered the loss-who have, moreover, borne the charge of bringing the prize into port, and the further cost of proceeding in the act to adjudication, and had even undergone additional expenses in contesting their claim to appeal--were altogether without a remedy.' Lord Brougham goes on to say: The title of a party claiming prize must needs in all cases be an act of the Crown, by which the Royal pleasure to grant the prize shall have been signified to the subject; whether, where the act has since been completed, and it distinctly appears that the Crown was minded to part with the property finally and irrevocably- whether, even in that case, the same paramount and transcendent power of the Crown might not endure to the effect of preserving to Her Majesty the right of modifying or altogether revoking the grant-is a question which has never yet arisen, and which, when it does erise, will be found never to have been determined in the negative. But this, at all events, is clear: that when the Crown, by an act of peace and bounty, parts for certain purposes, and subject to certain modifications, with the property in prize, it by that act personally signifies the intention that the prize shall continue subject to the power of the Crown, as it was before the act was done.' The judgment in the case of the schooner Peggy' does not establish the proposition that the Crown can dispose of the rights of a subject without the sanction of Parliament. A Treaty may contain provisions which are ultra vires, and in part valid and operative, and in part invalid and inoperative. A Treaty is, indeed, not void necessarily by reason of the infraction of some of its conditions, though it may be voidable, and the validity of it cannot be challenged, speaking generally, by any private person; but a Court of justice, when called upon to execute the provisions of the Treaty, may, at the instance of a subject who is affected by them, examine whether those provisions are such as to be capable of legal enforcement, just as they may inquire into the validity of Letters Patent granted by the Crown, and also into the validity of au Order in Council duly passed and gazetted.

"There have been (not to go further back) during the reign of Her present Majesty various Treaties confirmed by Parliament; and, by Statute, power has been given to the Crown by Order in Council to do certain things which it must be presumed, without hurrying it, could not have been done. For instance, the 25th and 26th Vict., cap. - (1862), empowers the Queen by Order in Council to make rules and regulations respecting collisions and Salvage services relating to the ships of foreign States. The 31st and 32nd Vict, cap. 45 (1868), relating to a Convention between France and England, is to so be applied; and, reciting that doubts had arisen whether part of the Convention relating to exemption from dues had been confirmed by Parliament, proceeded to give such confirmation; and the 35th and 36th Vict., cap. 5 (1872), confirms the Treaty of Washington between the United States and England; and, as will presently be seen, that very Treaty, of which this Belgian Treaty is a sequel, was confirmed by the Statute. Some of the Treaties confirmed relate to the payment of, and exemption from, dues in harbours. One more, and not an insignificant one, will presently be noticed. I mention these merely as illustrations of the position that certain Treaties do require Parliamentary confirmation.

"I now turn to the provisions of the Treaty which have been relied upon in this case.

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