The Treaty-Making Power, 2 Northwestern Law Review 3 (1894)
In Great Britain the treaty-making power is lodged in the Crown, and a treaty made by the sovereign is valid without the authority or sanction of Parliament. But when a treaty involves either a charge on the people, or a change in the law of the land, while it can be made by the Crown alone it cannot be carried into effect without the sanction of Parliament. It is usual to make such treaties subject to the approval of Parliament, and to submit them for its approval before ratification, or to ratify them conditionally. The doctrine has been recently advanced that in England the sovereign has no power in time of peace to cede territory by treaty to a foreign power without the approval of Parliament. In 1890 when the Queen was about to conclude a treaty with the Emperor of Germany for the cession of Heligoland, she was advised by her ministers to make the cession conditional upon the approval of Parliament, the theory being that the sovereign could not make such a treaty without the sanction of Parliament. The theory was much criticized in debate. Mr. Gladstone, at that time out of power, did not consider the authority of Parliament at all essential. "It is hardly possible," he said, "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." Anson, writing on the Law and Custom of the Constitution, in commenting on this matter seems to be of the opinion that to make the ratification depend on the good will of Parliament is an abnegation on, the part of the executive of a responsibility which the ministers ought to be ready to assume on behalf of the Crown. The fact that the English sovereign in conducting negotiations with foreign powers is exempt from the direct control or supervision of Parliament, gives the monarch an opportunity for exercising great influence on the conduct of affairs.
Date of Authorship for this Version
Rogers, Henry Wade, "The Treaty-Making Power" (1894). Faculty Scholarship Series. Paper 4083.