LETTERS TO THE EDITOR.
THE CONVENTION OF LONDON.
[TO THE EDITOR OF THE "SPECTATOR:']
STR,—I think you will agree that the question, what rights England has in or against the South African Republic, by reason of the right of entry and residence stipulated for British subjects and other foreigners by the Convention of London, deserves a thorough inquiry. Does that stipulation in this case carry as a corollary rights of interference which it does not carry when occurring in a treaty between Euro- pean Powers ? I understand you to answer in the affirmative because, whether by their terms or in practice, commercial treaties between European Powers are less permanent than the Convention of London must be considered to be. To this I reply that the daration of a stipulation does not affect its interpretation or force so long as it endures. That principle would clearly hold in private law, and international law is so far from requiring any looser principle that, on the contrary, if where there is no Judge the strictest maxims of interpretation were not adhered to, international agreements would mean anything or nothing at the will of the stronger party. But it cannot be admitted that the right of entry and residence stipulated in commercial treaties between European Powers is not a permanent one. If such a treaty expired or was denounced a new one would have to be concluded, and can any one imagine that a right which we have enforced on China at the point of the sword would ever be abandoned in the intercourse of Europe ? At the same time, when differing from a paper like yours which always commands our respect, and in general our adherence, one has to ask oneself how the difference can have arisen. In the present instance the cause is probably to be found in a tendency which may be remarked in our national methods of dealing with foreign affairs. Neither in domestic nor in international matters are legal agreements everything. In domestic matters Parlia- ment sets them aside on sufficient cause shown ; and inter- nationally, since there is no Parliament, States mast for themselves sometimes appeal to higher principles. When such a case arises the English love of legality is apt to lead us into justifying the course taken by straining some Co n- vention into what it never meant, nor can fairly be made to mean. It is the international application of the same spirit which in our Civil War of the seventeenth century caused both parties to overstrain constitutional principles and precedents. Hence, perhaps, some of that reputation for pharisaism which clings to us abroad. The habit has a bad reaction in ordinary times, when there is no occasion for denouncing our Conventions, hat every occasion for observing them, even to our hurt, till a state of things arises which is not merely disagreeable, but in the strictest sense intolerable. Our relations with the South African Republic illustrate what has been said. There is no reasonable question but that the Republic has tried all along to wriggle out of the Convention of London, but we on our side have tried to impose on that Convention readings which every impartial authority has pro- nourced to be quite untenable. Notably has this been the case in the instances of the Aliens Law and the dynamite monopoly, and now cornea the argument that we can demand
the franchise for the Outlanders, not for overmastering reasons of State, as the only solution of a grave crisis, but as a legal right involved in Article 14. This, on the one hand, makes the Boers doubt our good faith in professing not to wish to abrogate the Convention, and, on the other hand, helps us to slide into war by blinding our eyes to the fact that, while we talk only of the Convention, we are in truth already invoking reasons of State, to employ which is the first step towards war. I should like to add a few words on arbitration, as applicable between England and the Republic. That there cannot be arbitration between a paramount State and a subordinate one has been asserted, but, so far as I have seen, without any reason given, nor can I see any reason for the assertion. The two points to be considered are the composition of the Court and the questions to be submitted to it. I think that in England we shall all agree that the Court ought to be composed of jurists chosen by the parties, and of an umpire to be named by those jurists, and not of any foreign Power or of persons chosen by any foreign Power. Before such a Court I would send any par- ticular question, but not, as there is too much reason to think is desired at Pretoria, the general interpretation of the Con- vention. A general interpretation given by arbitrators would, in effect, be a new Convention, which, if needed at all, is a matter only for diplomacy.—I am, Sir, &c.,
[Professor Westlake is unintentionally not quite fair to as. We were most careful not to base our right to demand the grant of the franchise on Article 14. We merely urged that the Boers could not take up the attitude,—` We did not want the Outlanders here, and never asked them to come, and if they will intrude themselves into our country it must be at their peril,' and to use the consequent arguments ; because they are bound absolutely by the Convention to admit all white immigrants. Professor Westlake in the Pall Mall Gazette also urged that the Convention gave no better right of entry than does any ordinary commercial treaty. We contended that it did (and this contention he does not meet in his letter), because commercial treaties between equals can be denounced by either side, whereas the Boers cannot denounce the Convention, which is the essential basis of their existence as an autonomous State. This, in our opinion, makes the whole difference, and does give the Outlanders a different and better status than that of foreigners in a country like France or Germany, which can always denounce the com- mercial treaties by which they agree to admit foreigners.— En, Spectator.]
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