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Parliament and Foreign Affairs. 179

Section V.—Foreign Affairs.

In treating of the functions of Parliament as lately developed and undoubtedly extended in many directions, the subject of Foreign Affairs would naturally occupy a prominent place. The main difficulty in treating the subject adequately is that of distributing it between the topic of Parliament as a substantive part of the Constitution and that of the relations of Parliament to the Ministers of the Crown. The division of the subject between these topics must at the best be somewhat arbitrary, and to many may appear capricious; but the task must nevertheless be attempted, if the claims of logic and systematic exposition are not to be set at nought.

Many causes have concurred to render the discussion of Foreign Affairs of far greater prominence in modern Legislative Assemblies than it was in previous centuries, except at such crises as urgently involved the honour of the country, or called for strenuous measures to provide for national defence and military or naval ascendency. Mr. Disraeli, who on all hands is admitted to have largely concerned himself with the actual or possible interests of Great Britain in different parts of the world, when explaining the policy of the Government to the headship of which he had just succeeded in 1868, spoke as follows: 'I now come to the greatest 'department of the State,—one which perhaps is brought 'less prominently before the House than others, but 'which, after all, more than any other affects the pro'sperity of this country. Upon the judicious manage'ment of our foreign affairs depend peace or war, the 'tranquil pursuits of industry, and the amount of tax'ation which must he levied in this country. For 'by a single blunder in the conduct of our foreign 'affairs, the most provident arrangement of finances 'ever planned may in a moment be cancelled and * destroyed.'

The most prominent form in which foreign affairs, as treated in Parliament, come before the public, is that of debates on matters such as current wars, pending treaties, treaties lately signed or ratified, negotiations brought to light by the Parliamentary papers laid on the tables of the Houses, and the supplies of funds to carry out a foreign policy to which the Government has more or less decisively committed the country. But, in all these cases, the practical initiative, either in action or discussion, begins with the Ministers of the Crown, and the functions of Pariiament are rather exercised in controlling, directing, stimulating, or resisting the action of the Crown, than in originating a distinct course of action of its own. An exception to this practical limitation of the functions of Parliament was presented on the occasion of the discussion and vote which took place in 1873 on Mr. Richard's motion with respect to Arbitration. Mr. Richard endeavoured to commit Parliament and the Government to a distinct and novel course of policy, which was repudiated by one of the strongest Governments of modern times, that of Mr. Gladstone, but, as the division showed, repudiated without success. The House of Commons, in fact, affirmed a right, co-ordinate with that of the Crown, to initiate a foreign policy of its own. It was on the 8th of July, 1873, that Mr. Richard moved in the House of International A rbitration. 181

Commons 'that an humble address be presented to Her 'Majesty, praying that she would be graciously pleased 'to direct her principal Secretary of State for Foreign 'Affairs to enter into communication with foreign 'Powers with a view to the further improvement of 'International Law, and the establishment of a general 'and permanent system of International Arbitration.' The motion was opposed mainly on the ground that it was premature; and Mr. Gladstone, who 'saw great 'value in the motion of his honourable friend,' said 'he 'was convinced that this question, for a long time to 'come, would only make practical progress by a steady 'adherence on the part of those Powers who are rightly 'inclined, and convinced, and persuaded on the subject, 'to the principle,—first, of governing themselves by 'justice and moderation, and next, of losing no oppor'tunity of recommending the peaceful settlement of 'disputes between nations.' The motion was carried against the Government by a majority of ten.

It is thus in connection with the Prerogative of the Crown and its exercise that the Parliamentary attitude towards Foreign Affairs will be more properly treated of. But there is a certain kind of action due to the relations of this country with foreign countries, and of Englishmen with foreigners, which, from first to last, can only be carried out by Parliament itself. This action relates to, 1, foreigners in the British dominions, 2, British subjects in foreign dominions, 3, the giving of legal and statutory effect to the dictates of International Law.

1. (1.) It has always been doubted whether there is any right, independently of special Convention, to the extradition of criminals who have fled from the scene of their crime for refuge in a foreign country. The practice in this country for a long time back has been for the Crown to make special Conventions with one State and another for the purpose of extradition, specifying in every such Convention the crimes, according to their designation in each country, for which alone extradition would be granted, and also prescribing in general terms the formalities and safeguards of personal liberty which were to attend the act of extradition in every particular case. An Act of Parliament has then been obtained, on the solicitation of the Ministers of the Crown, for giving effect to the special Convention just concluded. A noticeable change in the policy and practice of extradition was made by a Statute passed in 1870 and amended in 1873.1 This Act was to apply to all future treaties of extradition, which must consequently be made in contemplation of its provisions; and all need for further occasional legislation was superseded. Besides amending and much enlarging the list of offences which had been customarily included in treaties of extradition, the Statute provided some entirely new guarantees against abuses by the Executive, whether brought about by carelessness or by connivance with the despotical agents of a foreign Power. Henceforth, extradition could only be accorded when the evidence was of exactly the same quality and amount as would be needed to procure the issue of a warrant for the apprehension, or the committal for trial, of a person charged with the commission of the same crime in this country. The Police Magistrate, or Secretary of State, might refuse to surrender, if in the view of either of

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them it appeared that the real purpose of the requisition was to punish the fugitive for a political offence. A period of fifteen days was to intervene between the committal of the accused to prison and his surrender, in order to afford him a fair opportunity of having the grounds of his committal judicially investigated on the return to a writ of Habeas Corpus. The Secretary of State was empowered, at any time during the proceedings, to order the prisoner to be discharged from custody. It was also enacted that * a fugitive criminal 'shall not be surrendered to a foreign State unless pro'vision is made by the law of that State, or by arrange'ment, that the fugitive criminal shall not, until he 'has been restored, or had an opportunity of returning, 'to Her Majesty's dominions, be detained or tried in 'that foreign State for any offence committed prior to 'his surrender other than the extradition crime proved 'by the facts on which the surrender is grounded.' A practical difficulty arose in the application of this Act in 1876, when the United States Government sought to obtain the surrender of a criminal (Winslow), to whose extradition they had an undoubted right under a subsisting treaty, named the Ashburton Treaty, which had been made in 1842, and was to continue in force till notice should be given to the contrary; but to whose extradition they would only be entitled, according to the Act of 1870, on the condition of their giving an assurance to the British Government that the prisoner should not be tried for any other offences than the one in respect of which extradition had been accorded. Apart from all treaty considerations, it might have been argued in favour of the United States' claim that by his flight the criminal could not obtain any immu

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