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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
    1. Rustomjee v The Queen (1876) 2 QB D 69 (CA)
    2. Maclaine Wason and Co Ltd v Department of Trade and Industry [1990] 2 AC 418
    3. R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198, [1993] 4 All ER 539, [1993] 3 WLR 1125 (CA)
    4. R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER 385, [1997] 1 WLR 27529 HLR 129 (CA)
    5. M v Home Office and another [1994] 1 AC 377; [1993] 3 All ER 537
    6. Derbyshire CC v Times Newspapers Ltd [1993] 1 ALL ER 1011 (HL)
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Rustomjee v The Queen (1876) 2 QB D 69 (CA)


LORD COLERIDGE CJ: ...This was a petition of right founded upon a claim which, if it ever had any foundation at all, arose thirty-six or thirty-seven years ago, and is of a kind which it was admitted in argument before us had never before been put forward. Something like it was indeed attempted in Baron de Bode's Case (8 QB 208) , but the claim received no countenance from the Courts, and that case itself was decided upon a ground which left the question before us unaffected, at least directly, by the decision.

The suppliant asserts, and for the purpose of this judgment it may be assumed asserts correctly, that a firm of Chinese merchants owed him in the year 1838 a considerable sum of money. While the correctness of the claim was under investigation, and before, according to Chinese practice, any result was arrived at, or the amount of it was ascertained or admitted between the suppliant and the parties from whom he claimed, the Chinese war broke out, and the suppliant, with other British subjects, was expelled from China. The suppliant states that Captain Elliot, the superintendent of trade, and Sir Henry Pottinger, who succeeded Captain Elliot as British Plenipotentiary, and who negotiated us such Plenipotentiary the treaty of peace with China at the end of the war, both recognised the justice of the suppliant's claim against the Chinese merchants. He states that Captain Elliot promised that Her Majesty would compel the Chinese government to pay it; and that Sir Henry Pottinger promised that the claim, amongst a number of others, should be insisted on against the Chinese government, and that the amount of the claims should be paid to the claimants when received from the Chinese government. He goes on to say, that in August, 1842, a treaty of peace was entered into between Her Majesty and the Emperor of China, that one of the articles of the treaty was that the Emperor should pay to Her Majesty 3,000,000 dollars as and for the amount of debts due to British subjects, of whom the suppliant was one, by Chinese merchants; that the sum of 3,000,000 dollars was computed on the basis of claims sent in by British merchants to Captain Elliot, of which claims the suppliant's was one; and that the sum of 3,000,000 dollars was paid by the Emperor of China to the Plenipotentiaries of Her Majesty for the purpose of paying the said claims, and amongst them the suppliant's; and that the claim has not been paid....

[T]he treaty of 1842, between Her Majesty and the Emperor of China, being an act of state, was referred to, both in the Court below and before us, to ascertain the exact words upon which the supposed obligation had arisen. The fifth article of that treaty, after providing for a certain amount of freedom of trade on the part of British merchants residing in China, proceeds as follows:

"And His Imperial Majesty further agrees to pay to the British government the sum of three millions of dollars on account of debts due to British subjects by some of the said Hong merchants, or Cohong, who have become insolvent, and who owe very large sums of money to subjects of Her Britannic Majesty."

The sum is paid in gross, or in the rough, not as the ascertained total amount, but "on account of" debts due to British subjects by chinese merchants, who are said to owe, not "three millions of dollars," nor "the said sum," but "very large sums of money," to British subjects. The money was paid to the British government, not for British subjects, but "on account of debts due to British subjects." It was paid as a lump sum in round figures. No specific sum was ever ascertained, either between the two governments, or between the British government and the suppliant, as the amount of the suppliant's claim, and it is plain that no such specific sum was ever considered between the Plenipotentiaries who negotiated the treaty. It is not, therefore, correct to say, as the suppliant does in his petition, that this money was ever paid to the Plenipotentiaries of the Queen "for the purpose of paying his claim;" it was never received for such a purpose; and upon the true construction of the language of the treaty, quite apart from higher and wider considerations, we think that the case of the suppliant must fail.

Secondly, upon these higher and wider considerations, as to which, in a case of this kind, we ought not to abstain from expressing an opinion, we think he fails also. We assent, upon full consideration, to the reasoning of the judges in the Court below. The making of peace and the making of war, as they are the undoubted, so they are, perhaps, the highest, acts of the prerogative of the Crown. The terms on which peace is made are in the absolute discretion of the Sovereign. If Captain Elliot did (to use the words of the petition) promise that the Queen would compel the Chinese government to pay these claims when terms of peace were arranged; if Sir Henry Pottinger did promise that these claims should be insisted on, and should be paid, they both exceeded their authority, and promised what they had no power to perform, or to pledge the Queen to perform. The Queen might or not, as she thought fit, have made peace at all; she might or not, as she thought fit, have insisted on this money being paid her. She acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own Courts. It is a treaty between herself as sovereign, and the Emperor of China as sovereign, and though he might complain of the infraction, if infraction there were, of its provisions, her subjects cannot. We do not say that under no circumstances can the Crown be a trustee; we do not even say that under no circumstances can the Crown be an agent; but it seems clear to us that in all that relates to the making and performance of a treaty with another sovereign the Crown is not, and cannot be, either a trustee or an agent for any subject whatever.

We do not, indeed, doubt that, on the payment of the money by the Emperor of china, there was a duty on the part of the English Sovereign to administer the money so received according to the stipulations of the treaty. But it was a duty to do justice to her subjects according to the advice of her responsible ministers; not the duty of an agent to a principal, or of a trustee to a cestui que trust. If there has been a failure to perform that duty, which we only suggest for the sake of argument, it is one which Parliament can and will correct: not one with which the Courts of Law can deal. It is indeed in the highest degree unlikely that there has been, or ever will be, such a failure. In this country, five-and-thirty years would not have run their course without the attention of Parliament being called to the unjust withholding of money by the English government from an English subject entitled to it. But, whether this is so or not, it is to Parliament alone that the suppliant can have recourse.