$121. Colonies have no treaty-making power except through the Crown. The principle, however, that the

Court of Appeal, but on a different ground, namely, that the Parlement Belge was a public ship, although not a ship of war, being used for a national purpose, the transmission of mails. The Court carefully abstained from expressing any opinion on the point on which Sir Robert Phillimore mainly rested his judgement.

"The same question was raised, and evaded, in Walker vs. Baird. The working of a lobster factory on the coast of Newfoundland was stopped by an officer intrusted with the enforcement of an agreement made between the Queen and the Government of France. The owner of the factory brought an action, and it was held to be no defence to allege that the conduct of the officer was an act of state.' Whether or no it could be justified by the treaty-making power of the Crown was discussed but not settled, inasmuch as the statement of defense assumed that the mere allegation that the acts were done in pursuance of a treaty took the matter out of the cognizance of the Court. This was not the view of the Judicial Committee.

"It was admitted that the Crown could not sanction an invasion by its officers of the rights of private individuals whenever it was necessary in order to compel obedience to the terms of a treaty.'

"Whether the power contended for does exist in the case of treaties of peace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, or whether in both or either of these cases interference with private rights can be authorized otherwise than by the legislature, are grave questions upon which their Lordships do not find it necessary to express an opinion.'

"The extent of the royal prerogative as regards the cession of territory has been discussed with vehemence of late, and left unsettled. Various limitations have been alleged. It is said that the Queen may cede territories acquired by conquest, or Crown colonies, but not other territory, that she may not cede territory in respect of which Parliament has legislated, that her powers of cession at the end of a war are different from and larger than her powers in time of peace. But this much is clear, that there is no authority beyond dicta of lawyers, expressed in Parliamentary debate or otherwise, for any such limitation on the powers of the Crown as has been alleged.

"In 1876 a case came before the Judicial Committee of the Privy Council in which the High Court of Bombay had held, for the purposes of its judgment, that territory had been ceded and that the Crown had no power to make such cession in time of peace without consent of Parliament. The Judicial Committee reversed the judgment of the Indian Court, holding that what had taken place did not amount to a cession, but their Lordships expressly stated that they entertained grave doubts 'as to the soundness of the general abstract doctrine laid down.'

"In 1890 the Queen in concluding a treaty with the Emperor of Germany, which provided among other things for the cession of Heligoland to the Emperor, was advised by her Ministers to make the cession con

treaty-making power is vested in the Crown, and does not reside in any other department of Government, executive or ditional on the approval of Parliament. This invitation to Parliament to share in the exercise of the prerogative rights of the Crown, and therewith to assume the responsibilities of the Executive, was much criticised in debate. The state of the question was most fully and clearly put by Mr. Gladstone:

"There is one thing which I think is still higher than the dicta of legal authorities, in this important question, and it is our long, uniform and unbroken course of practice. It is one thing to stand upon the opinion of an ingenious or even a learned man: it is another thing to cite the authority of an entire State, signified in practical conclusions, after debate and discussion in every possible form, all bearing in one direction, and stamped with one and the same character. It is hardly possible, I believe, to conceive any kind of territory-colonies acquired by conquest, colonies acquired by settlement, with representative institutions or without representative institutions-it is not possible to point out any class of territory where you cannot show cases of cession by the Crown without the authority of Parliament.'

"The precedent is an unfortunate one. Either House of Parliament can always signify its disapprobation of a treaty, and a ministry can always, if strong enough, procure a vote expressive of approval. But to make the ratification of a treaty depend upon the goodwill of a popular assembly seems to be an abnegation on the part of the Executive of a responsibility which Ministers ought to be ready to assume on behalf of the Crown.

"Sec. 4. Foreign Jurisdiction.

"The Queen has power by treaty, capitulation, grant, usage, sufferance, and other lawful means,' to exercise jurisdiction within divers foreign countries.

"The history of foreign jurisdiction of this nature begins with the Levant Company, which obtained a charter in 1581, renewed in 1606 and 1662, conferring power to appoint consuls who should administer justice between merchants 'in all places in the dominion of the Grand Seignior, and in other places in the Levant Seas.' By capitulations made with the Ottoman Porte suits between subjects of the Crown were, throughout the territories specified in the charter, to be decided by the judges therein described, and not by the local Courts.

"Usage appears to have extended this jurisdiction from cases in which both parties were British subjects, to cases in which the defendant only was a British subject, and to cases of crimes committed by British subjects.

"When the Levant Company ceased to exist it became necessary to provide for the exercise of this jurisdiction otherwise than by the Company's charter, and perhaps also some doubts had arisen as to the power of the Crown to create such jurisdiction by mere exercise of the prerogative. In 1843 began the series of Foreign Jurisdiction Acts, which are now consolidated in the Act of 1890 (53 & 54 Vict. c. 37). The pur

legislative, central or colonial, continues to-day as a recognized rule in the government of Great Britain and its colonies. Notwithstanding the apparent independence of the port of these Acts has been to give to the Crown full power to provide by Order in Council for the exercise of such jurisdictions, wherever 'by treaty, capitulation, grant, usage, sufferance, and other lawful means,' they have been acquired or have come into existence.

"Foreign jurisdictions exercised in consular courts exist at the present time (1) in civilized independent states by virtue of express treaty, as in Turkey, Persia, China and Japan; (2) in protected states with a settled form of government, as in the protected African communities, where the relation of suzerain and dependent state involves such a jurisdiction; (3) in countries with no settled form of government, as in the African spheres of influence, or in the Pacific islands.

"Where such a jurisdiction takes its origin from treaty, its extent and the persons over whom it may be exercised must be the matter of express agreement. In the other cases, the exercise of jurisdiction over others than the Queen's subjects must be a question of international law, which I do not propose to discuss.

"It is enough here to call attention to these foreign, or consular jurisdictions, and to point out the three stages by which they come into being:

"(1) The treaty or rule of international law which renders their existence possible;

"(2) The Statute which gives and defines the power by which the Queen creates them;

"(3) The Order in Council by which they are in fact created, and their extent prescribed as to the law to be administered and the persons who are to be subject to it." Anson's Law of the Constitution, Part II, The Crown, 2d Edition, London, 1896, pp. 296 to 302.

$121.

1" Sec. 4. As a colony, a possession, or a dependency constitutes only a part of the State, it cannot in itself be regarded, in international law, as a distinct political organization. Hence, any public or private corporation, created by, and deriving its authority from, a State cannot of itself constitute a separate and independent sovereignty. Thus, the East India Company, although exercising the sovereign powers of peace and war, with respect to the native princes and people, acted in subordination to the supreme power of the British Empire, and was represented by the British Government in all its relations with foreign sovereigns and States.

"Sec. 5. The mere fact of dependence, however, does not prevent a State from being regarded in international law as a separate and distinct sovereignty, capable of enjoying the rights and incurring the obligations incident to that condition. Much more importance is attached to the nature and character of its connection with other States, and the degree and extent of its dependence. Thus, many States, regarded as sovereign, do not exercise the right of self-government entirely in

self-governing colonies of Great Britain, not one of them possesses any treaty-making power. The only difference between that power as it has existed for centuries, and was exercised in regard to the American Colonies prior to the Revolution, and as it is exercised to-day, is that the Crown recognizes the necessity of acceding to the wishes and expressed desires of the colonies, and, therefore, does not attempt to force treaties upon them without the prior assurance that the stipulations entered into with foreign governments will be acceptable to the colonies affected thereby. The adop tion of this policy however, cannot be construed as an admission on the part of the Crown that the treaty-making power has been in any way diminished, or that the Crown does not possess the power and the right to exercise it in every possible manner and to its full extent. At the present time all treaties between Great Britain and other powers which affect any of the colonies, even though they may relate exclusively to a single colony, are negotiated through the Foreign Office in London, by the British Ambassador to the other contracting government, or by commissioners specially appointed for the purpose by the Crown, and whose instructions emanate from the Foreign Office; while as a matter of form, practice and policy, due regard is generally, as it always should be, paid to the wishes of the colonies, there is no instance of a treaty being independently negotiated or concluded by any one of them with any sovereign power.

$122. Status of Dominion of Canada as to treaty-making power. There is no treaty-making power in the executives, or in the Parliaments, of the Dominion of Canada or of any of the Provinces composing that Dominion; no matter how exclusively the subject of any treaty stipulation may affect Canada and Canadian interests, the treaty in order to have any legal effect whatever must be concluded between the dependent of other States, but have their sovereignty limited and qualified in various degrees, either by the character of their internal constitution, by stipulations of unequal treaties of alliance, or by treaties of protection or of guarantee made by a third Power." Halleck's International Law, Baker's 3d English edition, London, 1893, vol. 1, pp. 67-68.

See instances referred to in footnotes to § 122, post.

other contracting sovereign power and His Britannic Majesty. This is because the Dominion of Canada is not a fully sovereign State. A treaty negotiated by the Secretary of State of the United States and the British Ambassador relating to Canadian matters might be ratified by the Senate and by the Foreign Office in London; if it were unacceptable to the Canadian Parliament the necessary legislation, or appropriations, to carry it into effect might not be passed; in that manner the final effect of an unsatisfactory treaty might be defeated and, therefore, as a matter of practice and policy, the treaty-making power is not now, as a general rule, exercised by the British Crown except through the agency of Commissioners representing the colonies whose interests are to be affected; the final exchange of ratifications of negotiated treaties is also generally withheld until the Parliaments of the colonies affected have expressed their approval. Notwithstanding this practice, however, the principle remains unaffected, that the treaty is concluded by the highest sovereign power, and not through the colonial government. The negotiating commissioners always hold their powers from the Crown, and not from any colonial authority; in fact if negotiations in regard to a treaty affecting only colonial interests were commenced by any nation with persons claiming to represent any colony of Great Britain, the first step would be the examination of the powers of the plenipotentiaries, and only such commissions, or as they are called in diplomatic terms, full powers, as emanated from the Foreign Office at London with the Royal approval, and so certified by the Secretary of Foreign Affairs of the Imperial Government, would be accepted as authority for the continuance of the negotiations.2

§ 122.

1 After the treaties of Washington of 1871, legislation of the Dominion of Canada and of the Provinces was necessary to carry out the provisions therein as to fisheries and the reciprocal custom provisions as to free entry of fish products. See U.S. Foreign Relations under Great Britain for years 1871, 1872 and

1873. After the Bayard-Chamberlain treaty of 1888 had been concluded in Washington, it was discussed in the Dominion Parliament at great length before the consent of the Dominion was transmitted to the Imperial Government.

2 There have been several instances in which treaties affecting Canadian interests have been concluded be