This doctrine, obviously, has the effect of preventing English Courts from acting on principles which the English Government or Courts have not hitherto had any opportunity of expressing an opinion upon, and it probably goes much further than the legal theory of any other important state. The Lord Chief Justice, in the case cited above, would seem to consider that no law could be properly called international which had not received the assent of this country, but that seems a hard saying, and it seems legitimate to regard as International Law whatever has received the assent of the greater part of civilised nations, unless, indeed, there exists strong dissent on the part of a minority and the minority is a weighty one. It seems, therefore, to be best to take it that there may be Inter✓ national Law which is not part of the law of the Kingdom.

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Indeed, it is only thus that we can avoid the absurdity of holding that no part of the law of state succession is International Law, for the law of England does not permit such questions to be tried in municipal courts. The Crown cannot be sued in England, whether in contract or tort, and the only remedy is in cases of contract or quasi-contract a petition of right, except where statutory provision to the contrary exists. It is true that a fiat will be granted whenever a primâ facie case of contract is made out, but the granting of the fiat does not enable the Crown to be sued for an act of state. It is established by a long series of cases that matters connected with the annexation of territories are entirely matters of state, and not justiciable by municipal courts. The first case is that of the Nabob of the Carnatic v. The East India Co. (1 Vesey Junior, 371; 2 Vesey Junior, 59). the rest* the most important are Elphinstone v. Bedreechund (2 State Trials, N.S. 379); Rajah of Coorg v. East India Co. (29 Bevan, 300); Doss v. Secretary of State for India (L.R., 19 Equity, 509); Singh v. Secretary of State for India (L.R. 2 Indian Appeals, 38); Rustumjee v. The Queen (2 Q.B.D. 69); Secretary of State for India v. Kamachee Boye Sahiba (13 Moore, P.C. 22). All these cases decide in effect that treaties of cession or otherwise, and annexations made by the Crown and their results are not within the cognizance of municipal courts. It is important, however, to notice the limits of this doctrine. It is not meant to cover such a case as, for example, that discussed in Walker v. Baird (1892, A.C. 491), where it was sought to prevent a court inquiring into an alleged trespass by an English Naval Commander on the Newfoundland station, on the ground that the act had been done in carrying out a treaty with France, and was, therefore, an act of state, into the validity of which no municipal court could inquire. The Privy Council declined to accept this view, and left undecided the question how far a treaty could override rights of common law--a point which has never yet been the subject of a final judicial decision. It is probable that there is no instance in which an act of state can be pleaded against a British subject, unless the act is one done against a foreign state, or prince, or subject by the English Government as an act of state, in which case it has been definitely laid down (Buron v. Denman, 2 Ex. 167) that English Courts will not interfere. The principle has recently been applied in the case of Cook v. Sprigg (1899, A.C. 572), in which it was expressly laid down that

"It is no answer to say that, by the ordinary principles of International Law, private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory. All that can be properly meant by such a proposition is that, according to the well understood rules of International Law, a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has authority to enforce such an obligation."

So in the case of the West Rand Central Gold Mining Co., where the Transvaal Government had taken from the plaintiffs certain gold in October, 1899, just

* Cf. Ilbert, Government of India, pp. 174–177; Campbell, Leading Cases, i., 821-827.

before the war, and where the case was argued on the basis that the Transvaal Government was bound by contract to return the gold, it was laid down that no action lay against the Crown, as the only ground of the action would be the annexation of the Transvaal, which was an act of State. The question arises whether the view taken by the English Courts is to be regarded based merely on the technical doctrine of an act of state, or whether it at the same time represents the views of those courts as to the nature of International Law. We have recognised above that there may be a rule of International Law which English Municipal Courts would not enforce, and it may be noted that in the passage cited from the Lord Chancellor's judgment, in the case of Cook v. Sprigg, he recognises the possibility of the existence of such a rule. But from the case of the West Rand Mining Company it appears clearly that, in the case of contracts, at least, the English Courts hold that International Law does not recognise that obligations pass to the successor, and this corresponds exactly to the theory set out above.

The attitude of the Privy Council has, of course, been decisive for the attitude of the Colonial Courts, for its judgment in terms refers to all Municipal Courts, and, therefore, is independent of the system of law administered in any Municipal Court. This fact is fully recognised, both by Innes, C.J., and Mason, J., in their judgments in the case of Van Deventer v. Hancke and Mossop (1903, Transvaal Supreme Court Reports, at pp. 410 and 419), where they admit that they cannot question the legality of the annexation, though it might be open in other courts to criticism on the ground of its premature character.

The matter has recently been formally discussed in a series of cases in the Transvaal, viz., Postmaster-General v. Taute; Treasurer-General v. Van Vuren; Postmaster-General v. Parsons; and Master of Supreme Court v. Roth (1905, Supreme Court Reports, 582-594). In the case of Taute, an application was made by the Postmaster-General for provisional sentence on a mortgage bond passed by the defendant in favour of the Postmaster-General of the South African Republic. The defence put in merely alleged a debt by the Government of the Republic due to the defendant in respect of stock and supplies requisitioned for the use of the state during the war, which debt he endeavoured to set off against the claim of the Postmaster-General. Sir J. Rose-Innes said: "When, at the conclusion of a war, one of the combatant states is absorbed by the other, the conqueror becomes, by right of conquest, the successor to all the public property, corporeal and incorporeal, of the vanquished. That result follows so soon as a conquest is complete. In the present instance the conquest has been perfected by annexation, and the principle to which I have referred is one which certainly cannot be questioned in the courts of the annexing state. The debt sued upon was due to the late Government; it has become the property of the present one, and the Postmaster-General is the appropriate officer to represent the Crown in any steps taken to enforce it.

"But the conquering state cannot be sued in its own courts in respect of contractual obligations alleged to have been incurred by its adversary, because the annexation is an act of state carried out by the supreme authority of the conquering country, and neither the act itself, nor its legal consequences, can be called in question in the courts of that country. Those courts have no power to adjudicate upon it, and they are bound to recognise it. It is, therefore, impossible for them to declare that, as a result of annexation, any contractual obligations have been transferred from the one Government to the other. No doubt it is just and right that, in many cases, such obligations should be recognised; and if a conquering state were recklessly to repudiate all the liabilities of the country which it had absorbed, such conduct might lead to international complications, and would certainly be reprobated by civilised public opinion. Hence, wholesale repudiation is never likely to occur, and conquering Governments will, in practice, largely hold

themselves bound by the commitments of their predecessors. But though such an attitude may be adopted for reasons of policy, or from a sense of moral obligation, no country can be compelled to adopt it by a decree of its own courts. Even if the recognition of contractual obligations formed the subject of treaty agreement between the belligerents, the conqueror could not be sued upon his promises in his own courts. Honour and policy would induce him to observe his engagements, but municipal law would have no voice in the matter. As the conscience of mankind improves, the tendency will doubtless be to take an ever-widening view of the obligations which the conquering state ought to recognise. But liabilities incurred by a vanquished nation to its own subjects, in the prosecution of warlike operations against the conqueror, will probably be among the last to commend themselves to the latter as entitled to recognition."

This judgment asserts clearly the doctrine that an act of state does not give rise to a right to sue the Government. Further, it appears to leave to the moral sense, and the sense of expediency of the conqueror, the decision of the question to what extent he will recognise the contractual obligations of the Government to which he has succeeded; that is, the Chief Justice admits that, as a matter of International Law, there is no obligation on a successor to recognise all the commitments of his predecessor.

On this view, the results of English and Colonial Municipal Law do not differ from the results of a correct view of International Law, except perhaps in one case, which will be discussed below (p. 83). As the cases last cited show, the Courts accept jurisdiction when the state claims as a successor to the rights of the predecessor.

CHAPTER IV.

STATE SUCCESSION AS REGARDS TREATIES.

THE most important question in the matter of state succession is that of the extent to which a cessionary or conquering state is bound by the treaties of the ceding or conquered state. Together with this may be considered the question how far the treaties of the conquerer or cessionary extend themselves over the conquered or ceded territory. The positions which I shall endeavour to establish are, that (i.) no treaties are inherited by the conqueror or cessionary, but (ii.) all his treaties pass over. Supporters of the universal succession theory must contend that theoretically all treaties pass over, and discover reasons to explain the notorious fact that many treaties do not pass over. Huber's attempt is the most satisfactory. He lays it down (p. 63), "Treaties, in doubtful cases, pass to the person who obtains the state territory so far as they concern his acquisition. Treaties which constitute personal rights of the ceding state come to an end ipso jure for the cessionary." The meaning of jura personalia he thus explains: Treaties are not in the ordinary sense of the words jura personalia, in that there are two persons and a third comes in, either in place of the one (a conquest), or beside him (a cession). The right from treaties is not an abstract right concentrated in the person of the state, but a regulation of relations of power, right and duties with regard to a territory. The personal element consists in the fact that the exercise of the power in the territory belongs to a certain state. This is shown by the fact that a power, which has given provinces to another to administer, cannot bind them by its treaties. This characteristic of being personal to the state explains why (i.) treaties of cession not yet fulfilled, (ii.) capitulations in territories ceded to other European states by Turkey-i.e., the Russian conquests, Algiers and Greece-do not remain in force. Of other treaties, he points out that many of them have their effect at once, and are not, therefore, subjects of succession. They produce real rights, and, therefore, are not any longer contracts. There remain, therefore, as objects of succession, treaties for regulating boundary relations, streams, river navigation, railway conventions and, perhaps, such treaties as concern classes of person-e.g., free exercise of religion, use of schools, hospitals, etc., which are mainly local in character.

Similarly, in the case of a state formed by separation from an old one, Huber (pp. 136, 137) holds that all treaties pass over, even in the case of commercial treaties and capitulations, but not alliances and guarantees. Even in cases of

conquest treaties pass over (pp. 151, 154) in theory. In practice the operation of the principle is hampered by the fact that (i.) some treaties essentially presuppose the continued existence of the same state, e.g., alliance, subsidies, commercial treaties; (ii.) the new state's treaties extend to the conquered territory, and so, especially in the case of commercial treaties, supersede the old ones.

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Compared with Huber's accuracy, few of the other writers discuss the matter satisfactorily, Rivier (i., 216) holds that in cession the so-called "traités d'association do not pass over, this term including treaties of alliance and guarantee, consular treaties, extradition, legal aid arrangements, commercial, shipping, settlement, post, customs, telegraph, and other administrative treaties.

This view is shared by Fiore (i., 221). Bluntschli (para. 47) thinks that on cession there pass to the cessionary treaties regarding regulation of frontiers, river navigation and rights to churches, hospitals, etc., granted to special classes of persons. In these views he is exactly followed by Pradier-Fodéré (i., 274). In the case of conquest, Bluntschli (para. 50) holds that, as the people and territory continue to be the same, all obligations pass over so far as may be reconciled with the new order of affairs. But, in the case of a state becoming free from its parent state, he (para. 48) holds that, normally, no treaties pass over. Martens (i., 279), in the case of conquest, holds that commercial treaties do not pass over, and in the case of cession, that treaties such as treaties for river navigation pass over. Rivier (i., 72; ii., 141) and Fiore (i., 220) both hold that in conquest treaties, save treaties regarding river navigation, etc., do not pass. Calvo (para. 98) is inclined to hold that the circumstances of each class of treaty must be taken into account. Hartmann (para. 13), Holtzendorff (Encyclopädie, p. 1289), and Pradier-Fodéré (i., 275), all deny a succession in cases of a state becoming independent. Hartmann (para. 14), Pradier-Fodéré (ii., 930), Gabba (p. 376), Appleton (p. 62), and Wheaton (p. 46), deny succession in case of conquest. Hall's view (pp. 92, 93, 98, 99) is that in all the cases of cession, of separation, and of conquest, treaties of alliance, guarantees, or of commerce, do not pass, but treaties such as those of river navigation, etc., pass over. Westlake (i., 66, 67) holds that, in the case of cession or conquest, the population of the transferred or annexed area will lose both the benefit and the burden of the treaties of the transferor or extinguished state, excepting only the benefit of transitory treaties and servitudes; Kiatibian (pp. 35, 60, 67 and 103) holds that, in the case of cession, separation, and conquest treaties usually fall to the ground, but he excepts (i.) treaties such as treaties of river navigation (pp. 31 seq.), (ii.) treaties of guarantee of foreign loans (pp. 23 seq.). On the other hand, political treaties, such as treaties of alliance, subvention, or neutrality, disappear, and also commercial treaties (p. 16). These, he holds, are concluded in view of the economic conditions of the annexed state, and require a continuation of these conditions inconsistent with the right of the conqueror. So (p. 19) treaties like treaties of copyright or extradition cannot subsist. If they did, they might lead to the absurdity that extradition would depend on what precise part of a state a man was in, and nationals in one part of a state, might be worse off than foreigners. All treaties (p. 20) which depend on membership of a union cannot pass over. A state could only join the Latin Monetary Union, or the Sugar Convention of 1888, with the consent of all the other members of the Union. Nor (p. 21) does a successor succeed to the place of a predecessor as a contracting party in great European treaties.

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All agree, however, that in the case of cession the ceding state retains its rights and obligations, whether they descend or not in any degree to the successor. course the loss of territory will render some of these, e.g., treaties for river navigation or boundary regulation, no longer applicable. Fiore (i., 225) says: "The state does not lose its juristic existence, nor its identity, despite the partial diminution of its territory." Hall (p. 92) says: "As the old state continues its life uninterruptedly, it possesses everything belonging to it as a person which it has not expressly lost." So also Rivier (i., 217), Martens (i.), Calvo (i., 235), Westlake (i., 59, 60), Bluntschli (paras. 28, 46, 47), Halleck (i., 76), Wheaton (p. 46), Kiatibian (p. 35), and Huber (p. 61), who says: "The ceding state and cessionary both remain unaltered in their international personalities." Appleton (pp. 109 seq.) holds that the cession of territory alters, to some extent, the state personality, which is, as it were, broken up into two personalities, to both of which some of the rights and duties of the previous personality attach. But this view is not admis

sible in the case of a mere cession. The personality of the state, as Bluntschli (para. 46) points out, is not essentially dependent on its boundaries.