Responsible government in the Dominions: Responsible government in the Dominions

Responsible government in the Dominions (Vol. 3)

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Multivolume work

Identifikator:: 1896933912

Document type:: Multivolume work

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Place of publication:: Oxford

Publisher:: Clarendon Press

Year of publication:: 1912-

Collection:: Economics Books

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Volume

Identifikator:: 1896935311

URN:: urn:nbn:de:zbw-retromon-237672

Document type:: Volume

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Volume count:: Vol. 3

Place of publication:: Oxford

Publisher:: Clarendon Pr.

Year of publication:: 1912

Scope:: XII Seiten, Seiten 1102-1670

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Multivolume work

Structure type:: Chapter

Title:: Part V. Imperial control over Dominion administration and legislation

Collection:: Economics Books

CHAP. V] TREATY RELATIONS 1103 Quite apart from this obligation, which exists whether legislation is passed or not, is the question whether the mere making of a treaty can alter the rights and obligations of British subjects. It appears clear in theory that the Crown can cede territory, and thus change the allegiance and the legal rights of its subjects ; 1 but if it.does not take this step it appears equally clear that the mere making of a treaty is inadequate to create any new legal rights or duties under municipal law. There is no precisely definite case appearing on the matter, but for all practical purposes the action of the Government in connexion with the case of Baird v. Walker * may be regarded as deciding the matter. In that case Sir Baldwin Walker, under the authority of a modus vivendi with the French Republic,concluded by Her Majesty’s Government, took steps which involved interference with the property of Mr. Baird on the Treaty Shore of Newfound- land. Mr. Baird brought an action in the Newfoundland Court against Sir Baldwin Walker, whose defence was that his act was an act of state into which the Colonial Court had no power of inquiry. The Colonial Court? declined to accept this defence as adequate, and the matter then went on appeal to the Privy Council. The Judicial Committee decided that the decision of the Colonial Court was correct. They expressly disclaimed any intention of passing judge- ment as to whether the treaty was or was not sufficient justification for the action of Sir Baldwin Walker. What they did decide was, that if the treaty was set up as the justification for his action, it was formally to be pleaded in defence, and that it was no answer to Mr. Baird’s claim to say that the act complained of, which was prima facie a breach of Mr. Baird’s legal rights, was an act of state. It * See Forsyth, Cases and Opinions on Constitutional Law, pp. 182-6; the Heligoland debate, 1890, Hansard, ccexlvii, 764; 1 App. Cas. 352. * [1892] A. C. 491. Cf. Damodhar Gordhan v. Deoram Kanji, 1 App. Cas. 352; Parlement Belge, 4 P. D. 129; 5 P. D. 197. Cases like in re Californian Fig Syrup Company's Trade Mark, 40 Ch. D, 620, show that a treaty cannot overrule a statute, but leaves the position as regards the common law unaffected. Cf, in re Carter Medicine Company's Trade Mark, W. N. [1892] 106. 2 1897 Newfoundland Decisions, 490. no

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