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restrain the power of the Admiralty Court, the provisions of the Statute Law are couched in prohibitive terms, and are not of the same affirmative character as those of the “Admiralty Court Emancipation Act.”
With regard to the imperative character of prohibitory words, where they are used in Acts of Parliament, there can be no dispute; on the other hand, as regards affirmative Statutes, it is sometimes open to the doubt whether their provisions are simply directory, or must be interpreted as mandatory.* There is, however, an established rule of construction, which applies to affirmative Statutes, when the words are general, namely, that general words and phrases, however wide and comprehensive in their literal sense, must be construed as bearing only on the immediate object of the Act, and not as altering the general policy of the law, unless, of course, no reasonable sense can be applied to them consistently with the intention of preserving that policy untouched. The construction of the 3 & 4 Vict., c. 65, appears to us to fall within this principle, when it authorises, in affirmative language, the Admiralty Court to exercise its jurisdiction in any case of collision or of salvage happening within the limits of an English county equally as on the high seas, and the learned Judge of the Admiralty Court seems to have been of opinion that, in the case of a salvage claim, he could not be called upon by a British subject to allow the process of the Admiralty Court to issue against a foreign vessel, where the exemption of such vessel from arrest and detention was in accordance with the general policy of the Law of Nations. We allude to the case of the United States frigate, The Constitution.t In that case a number of British subjects, having succeeded in rescuing The Constitution from a situation of some peril
* Sir John Romilly, in Minet v. Leaman, 20 Beavan, 278, cited in Sir Peter Benson Maxwell's Work on "The Interpretation of Statutes," 1875.
+ The case of the Constitution is reported in Mitchell's“Maritime Register" of January 29th, 1879.
off Ballard's point, on the coast of Dorsetshire, where she had taken the ground on a dangerous shoal, applied to the Admiralty Court for a warrant to arrest the ship of war in a suit for salvage services successfully rendered to her. The learned Judge, however, declined after argument to allow the process of his Court to issue against the ship in this case, it being, as he said, an established principle of the jurisprudence, both of the United States and of Great Britain, that the Admiralty process should not be allowed to issue against a ship of war belonging to a nation with which Great Britain is at peace.
The decision of the learned Judge on this occasion is in perfect accordance with the principle of construction above alluded to as applicable to affirmative Statutes. We should have been disposed to think, had not the learned Judge decided otherwise, that the same principle under which his Court felt itself bound to conform its decision in the case of The Constitution to the general policy of the Law of Nations, would have justified it in refusing to allow its process to issue against the Belgian mail-packet, as that vessel is entitled, under the express words of a Public Treaty, duly ratified between the British and Belgian Crowns, to the privilege of a vessel of war within British ports. We even now presume to think that the Court, sitting in this case as an International Court, would have so decided, if it had considered the Belgian Postal Treaty to be fully operative under the circumstances of the case without the sanction of an Act of Parliament. The learned Judge, however, has felt a doubt as regards the constitutional power of the British Crown to make a Treaty, which shall take away from a British subject a right which has been recognized by Act of Parliament, so as to require a Court of Justice to put its provisions into operation without the confirmation of them by the Legislature.
The general power of the British Crown to conclude treaties with foreign States is indisputable, but the learned
Judge, in discussing the unqualified language of Blackstone on this subject, has observed that Blackstone must ave known that there was a class of treaties, the provisions of which were inoperative without the confirmation of them by the Legislature, whilst there were others which operate without such confirmation. The language of the Report of his judgment seems to indicate an opinion, on the part of the learned Judge, that wherever a Treaty affects the private rights of British subjects, it requires the sanction of the Legislature. This would be a highly restrictive view of the Treaty-making power of the British Crown, and such as would be hardly reconcilable with the recognized practice of every day. We are disposed, therefore, to think that the Report of the Judge's argument does not do him full justice, and that the learned Judge has in fact rested his decision on the principle, that where a right of a British subject has been recognized by Parliament, the Crown cannot cede or extinguish that right by a Public Treaty without the sanction of the Legislature. This is a very delicate question as regards the constitutional powers of the British Crown, and one which Ulpian would have rejoiced to discuss, whether the Treaty-making power in such cases still appertains to the merum imperium of the Crown, or is vested in the plenum imperium of the Crown and Parliament.
An analogous question has recently undergone a very full discussion before the Judicial Committee of the Privy Council, in an appeal from a decree of the High Court of Bombay,* touching the constitutional power of the British Crown to cede territory without the sanction of Parliament. Unfortunately, however, for the purpose of serving as a precedent, which might govern the case of Le Parlement Belge, this case is not judicially available, inasmuch as the Court of Appeal found itself in a condition to decide the
* Damodhar Ghordan v. Deoram Kangi, Vol. I., Appeal Cases in Law Reports, 1875-76.
dispute upon a preliminary point, and so avoided a decision upon the great principle, upon which the parties were desirous to have its decision. But the case is valuable on account of the mastery of the subject, which the learned Counsel on either side displayed, and the bearings, which some of the many instances (cited by the Counsel for the appellants) of treaties made by the sole authority of the Crown, have upon the general question, whether the power of the Crown to cede territory by a Treaty without the sanction of Parliament is barred by the circumstance, that the territory in question has been the subject of Parliamentary legislation. In the course of the argument on behalf of the appellants numerous instances of the Crown's having ceded territory by Treaty, without the confirmation of Parliament, were cited, and amongst them four special cases were brought to the notice of the Court, in which the ceded territory had been the subject of Parliamentary legislation previously to its cession. Bencoolen, for instance, in the island of Sumatra, one of the oldest possessions of the British Crown in the East, and originally a Presidency, and named in several Acts of Parliament (13 Geo. III., ch. 63; 42 Geo. III., ch. 29), was ceded to the Dutch in the exercise of the Royal Prerogative alone. St. Pierre and Miquelon, in Newfoundland, which had been the subject of Parliamentary legislation, were given up by treaties in 1763 and 1789 without the authority of Parliament. Again, under the Treaty of 1783, a large part of Canada, which had been legislated for by 14 Geo. III., ch. 83, was given up without the sanction of Parliament, and very recently (1867) territory on the Gold Coast of Africa, which had been dealt with by Act of Parliament (6 & 7 Vict., ch. 13) was ceded to the Netherlands by a Treaty, which has been put into operation without any confirmation by Parliament. The proposition that the Treaty-making power of the Crown to cede territory becomes limited in all cases, where the territory has been the subject of Parliamentary legislation,
would thus appear not to be borne out in practice, and it may be justly said that in all constitutional questions, where the fundamental laws of the State are silent, practice is the best interpreter; in other words, Optimus interpres
An appeal is stated to have been asserted on behalf of the Crown in the case of Le Parlement Belge, and the question, whether the Crown has exceeded its constitutional powers in granting to the Belgian mail-packets within British ports the privilege of vessels of war, will undergo further consideration. The question of the limitation imposed on the Treaty-making power of the British Crown in the matter of a Postal Convention, which is for the common benefit of all Her Majesty's subjects, is inter apices juris, which may well deserve to be carried up by appeal to the House of Lords. The learned Judge of the Admiralty Court has, under any circumstances, delivered a wellconsidered judgment, which will require careful attention on the part of the Appellate Court, to determine whether he has unduly extenuated the Prerogative of the Crown. He was right, in our opinion, to decide in favour of the subject, if he had doubts as to the constitutional power of the Crown to grant to the Belgian mail-packets, by Treaty, an immunity from the civil process of the Admiralty Court. But he was not constrained to adopt that conclusion in the case of Le Parlement Belge, by the conviction that otherwise an intolerable wrong would be worked against British subjects, any more than in the case of the United States frigate The Constitution. The question involved in the two cases as regards ships of war and vessels entitled by Treaty to the privileges of ships of war is not, whether the States to which they respectively belong shall be altogether exempt from making compensation for salvage services rendered to their ships or for damage done by them to private vessels, but whether their ships shall be liable on such occasions to be arrested and detained by process issued from any