New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-02-26

only TO acts which affect foreigners, and which
are done by the orders or with the ratification OF
the sovereign, as between the sovereign ana his
subject there can be no such thing as an act OF
State" Pollok on Torts, pages ~ and 80. ana
Fraser on Torts, page 10, wee cited as alhrMih8
the same view.
Continuing. Sir James said: Every member
Of the State had his functions and powers, and
the Queen herself was only part of the State Inc
act Of the Queen toward a subject must he viewed
in o constitutional light, and the question 10 ne
determined in cases of this kind was: 'Dld she
act within her power in giving the order| and
if she had no power to give the order the sub
sequent ratification Of it was of no avail
Passing on to the plea as orc of justification, SIT
James contended that il was bad, because the
plaintiff was in lawful possession OF his properly
and business. and the defendant in interfering
with these rights acted in excess OF his power ana
authority. a naval officer having no power or
Jurisdiction over British subjects in this colony
| either in relation TO the fisheries or any other
nronertv mr. business. The sovereign had no right
or prerorative TO confer any such power or an-
| thoritv upon a naval officer. The sovcrelgns pre-
r~opative is subject to limitations, and one of these
| limitations is the right Of the sublect 10 LIS
| propcrty. the Crown having no prerogatlve 10 take
away. abridge or alter such right. Tins noduS
| yivendi," he said, " in so far as 1t assumed 10 aIier
or affect the rights of the plaintiff to his properly
or the exercise of his trade or business, was ultra
wires of the sovereign, and her instructions 70 her
officer TO enforce it. against her own suDleclS'
were unlawful. 49,,
In support of these contentious, Sir James cited
| LARGELY from Comyn's Digest, Bacon's Abridgmen''
Broom's Constitutional Law and several leading
cases.
The last point, it appeared to him, was the
only one upon which defendant could raise "
doubt. and the question appeared TO De whether
an agreement or treaty such as this, when made
by the Crown with a foreign Power was Vi
itself a law and binding upon the SUBJECT aS
| between the subject and the sovereign
Iypon this point Sir James contended that
| there was an absolute concurrence OF authority
among all the leading writers and sustained by
the decisions of the courts in England, to the
eAect, that the Crown had no power to make
such a treaty, and to bring it into force os against
her own subjects, without an enactment OF the
Legislature. There were, Sir James allowed,
many matters in regard to which the Crown had
absolute authority but there were other classes
and kinds of treaties in which it was clear tlat
the sovereign could not, by the mere exercise oil
prerogative, give them the force and eject oil
law as against her own subjects. these re-
uuired the confirmation OF Parliament ana uc
enactment of appropriate laws when a treaty
proposed to alter the laws OF a country an"
especially whenever the private rights and privl-
lppes Of subjects were TO be taken away, limited
altered or in any way affected.
The right of property of the subject was one
of the fundamental principles OF BRUSH law y
treaty made by the Crown III time OF peace III"
NOT authorize an officer to do an act which, apart
from the treaty, would be a tort. Ihe treaty
making mower of the Crown was not an absolute
one. 1t was subject TO the limitation of the right
Of the subject to his property, a right secured TO
him nv MAGMA Charta. against which no prerogatlve
| can be claimed. If the treaty had become part
~ tho law of the land it. should have been
carried out by the municipal authorities of the
land. and not by naval officers. But IL was
| not law and could not be, as IL had none oil the
! essentials of law. 4 treaty was not III itself
a law. G., a municipal law. 1t was merely n COM
pact between two nations. Treaties were not
binding as municipal law, except they were 50
under the constitution of the country which makes
them.
In England the power Of making treaties was
limited and restricted. as between the sovereign
and the subject. According 10 the law OF Eng
land, if n treaty infringed the rights OF private
citizens legislation was necessary to give 1t effect
There was no DluuInS poMtl III 'N 49,
sufficient TO make it the law of the land. Lhe
t~reaty-making power was well known to be under
limitation. One limitation was the limitation OF
the mower of the sovereign where private nights
were affected. The sovereign cannot Of herself
alter the internal arrangements and jurisdiction
of the country without the consent Of Parliament.
In the debate last year in the British House oil
Commons on the cession of Ileligoland, Mr. GIad-
stone had laid it down as a principle OF consti-
tutional law that where personal rights ana
privileges are involved, tney cannot be at any
rate directly affected by the ,preroSatlVes oil INC
Crown: but the assent of Parliament is necessary
to constitute a treaty in regard to thcin.
In support of these contentious Sr James cited
numerous authorities such as IoRos arr Gdm.
mentarles on American Law, Cooley on Inc Con-
s"titution of the United States, etc.
In confirmation Of these views. SIT James thtn
read extracts from the recent correspondence DC,
tween the representatives of the British ana
American Governments in connection WIN thc
Behring Sea difficulty. The correspondence re-
fcrrcd particularly to proposal on the part OF the
United States, that as a part Of a modgs vivendil.
or temporary arrangement, British sealing vessels
should be excluded from Bebring sea during the
seal fishing season. Sir Julian Paunceiote lad
been ordered by Lord Salisbury TO reply III enect
that he could not comply with this proposal, be-
cause, apart from other considerations, there
would be no legal power 10 enforce its observance
on British subjects and British vessels. such an
arrangement would always require legislative sane
ton, so that the measures thereby determined may
be enforced" ,
In concluding his argument. Sir James referred
to the uniform and lnvariarle practice
adopted by the Imperial Government and
Legislature in connection with all the
treaties between Great Britain and other
powers in relation TO the fisheries and other mat
tiers. In every case, without exception, there
had been legislation, either by the Imperial or
Colonial Legislature, to confirm these treaties and
to confer upon the officers appointed to enforce
them, and upon the courts, the necessary legal
mower and authority TO carry the prONlSlOlS OF
the treaties into effect.
Mr.. Greene, G. c., followed on the same side in
a very able and lucid address. IN which he cltcd
an immense array Of authorities and cases IN
support Of Sir James Winters various contentious.
He concluded as follows: Surprising that The
modus vivendi was law, it may be asked where
was the municipal machinery for carrying il out.
lie would reply that there was no such machinery
that the laws never contemplated such a treaty