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presided at the trial of the particular case in the district of Pennsylvania, were clearly of opinion that conduct which Great Britain might justly resent as a breach of the peace towards her was an infraction of the common law. And it must be noted that the fact of infraction depended on the duties of neutrals, a part of international law which has been the subject of great development, probably not even yet complete, so that the international responsibility of a government for the breach of neutral duties by its subjects would not be covered by the judgments of its courts if they did not take account of the law of neutrality in its latest form.
The third class of cases, mentioned above as presenting a situation existing between states in which private parties are concerned, was that in which a state holds rights for the benefit of its subjects, and therefore has the duty of protecting them in the enjoyment of those rights.
An example is furnished by a right of fishery in territorial waters conceded by treaty to a foreign power. Often rights so conceded cannot be enjoyed without divesting or modifying private rights previously existing, and then the general rule of the British constitution already noticed, that only an act of parliament can give that effect to a treaty, will apply. Thus in Walker v. Baird (1892] A. C. 491, the Attorney-General, as counsel for the appellants, admitted that the Crown cannot sanction an invasion of the rights of private persons by its officers whenever (the italics are mine) it is necessary in order to compel obedience to a treaty, and the Judicial Committee did not think that the occasion arose for considering the exceptions proposed, namely treaties of peace or treaties terminating such international differences as to be in the nature of treaties of peace. When the general constitutional rule applies the king's courts cannot act on the treaty till Parliament intervenes in support of it, and the king will usually have limited his liability under the treaty to doing his best to obtain such intervention. When it may not apply, either by virtue of an exception or because those in trust for whom a right is held by a foreign state can enjoy it without infringing any previous right, the king's courts are certainly bound to cover his responsibility by deciding that what such parties are entitled to under international law they are equally entitled to under the law of England.
The class of cases now under consideration may include rights held by a state for the benefit of its subjects under a rule of international law as well as those so held under a treaty; and here we come to close quarters with the question whether the Crown, as successor to the South African Republic, is under an obligation,
enforceable by petition of right, to fulfil the liability of that republic for the value of gold commandeered by it. When it is asked with reference to that question whether international law is part of the law of England, it is assumed that the international obligation exists; in other words, that a foreign state can claim from the British Crown the repayment of any part of the gold which may have belonged to one of its subjects. Assuming then, for the present, that this is so, it seems reasonable that British subjects, seeking the fulfilment of that obligation by petition of right, should not be worse off than aliens having a state to undertake
The answer made is that a petition of right will not lie, because the annexation by which it is contended that the Crown became successor to the conquered government was an act of state, and acts of state cannot be inquired into either by judicial or quasi-judicial proceedings. That answer does not preclude the Crown from examining the alleged succession by the light of other advisers than the judges, and it may be presumed that if such an examination led to the conclusion that the international obligation existed, the Crown would feel itself bound in conscience to do the same justice to British subjects which in that event it would have to do to a foreigner who claimed it. The answer, however, is irrelevant to the question whether international law is a part of the law of England. It merely sets up a constitutional rule by which the law of the land, whether including international law or not, is excluded, even in the mild form of a petition of right, from having a voice with regard to certain matters described as acts of state. Here then we might leave this branch of our subject, so far as the question which stands at the head of this article is concerned; but the importance of it may warrant some remarks on acts of state.
It is one thing to question the validity of an act of state, and another thing to admit its validity and draw its consequences. An annexation is an act of state, and if it be unattended by any further manifestation of the will of the Crown it will remain open, barring such a constitutional rule as has been asserted, to consider whether, and within what limits, the Crown is made by force of it the successor to the obligations as well as to the rights of the displaced government. Such consideration will not call the annexation in question. But the Crown may manifest its will, either by declaration or in some other unmistakable manner, that it will not recognize any or some of the obligations of the displaced government; and this will be a second, although perhaps contemporaneous, act of state, distinct from the annexation. If it does so, the Crown must face any international consequences of its
action; but as far as the English judges are concerned, even when sitting only on a petition of right, no constitutional lawyer can doubt that they will be bound by it. · The Crown is the supreme organ for international affairs, and the judges can no more question its action in them than they can question the action of Parliament in matters of legislation 1. But the reported cases on the respect due to acts of state have not always taken note of the distinctions wbich may be drawn on them. In Nabob of the Carnatic v. East India Company, i Ves. Jun. 371 (Thurlow L. C.) and 2 Ves. Jun. 56 (Lord Commissioner Eyre), the bill was for an account of transactions which took place under agreements between an Indian sovereign and the East India Company, the latter in its political character as was ultimately held. The final agreement of the Nabob, the Lord Commissioner said, 'was entered into with them (the company], not as subjects, but as a neighbouring independent state, and is the same as if it was a treaty between two sovereigns, and consequently is not a subject of private municipal jurisdiction.' That, as between the two sovereigns, is beyond controyersy. To deny it would.involve the consequence that if a treaty of peace stipulated the payment of a sum of money by one sovereign to another, the latter might sue the former for the amount in a court of justice-quod est absurdum. In Secretary of State v. Kamachee, 13 Moo. P. C. 22, the facts were that the company, acting as a sovereign power, had seized the raj of Tanjore and the property of the deceased rajah, as an escheat ; and the action was brought by one who claimed that a part of what was so seized was private property of the deceased and ought to descend to his private heirs. But by a series of public acts the competent British executive authority had manifested in the clearest manner its determination to reserve the decision on that point to itself. There were thus what must be distinguished as two acts of state, one the simple
1 This is the doctrine laid down by Lord Mansfield in Campbell v. Hall, 1 Cowp. 204, at p. 209, in language quoted by their lordships in West Rand Central Gold Mining Company v. Rex, at p. 406. “It is left by the constitution to the king's authority to grant or refuse a capitulation. . If he receives the inhabitants under his protection and grants them their property, he has a power to fix such terms and con: ditions as he thinks proper. He is entrusted with making the treaty of peace; he may yield up the conquest or retain it on what terms he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the king might change part or the whole of the law or political form of government of a conquered dominion. But their lordships were scarcely correct when they said that that language was inconsistent with the opinions of Huber and some other writers on the international law of conquest, for Lord Mansfield limited himself to the constitutional question, expressing on the international one no opinion, and therefore none inconsistent with any opinion of any one. The dispute was whether the laws of a conquered country could be altered by the king without the concurrence of parliament. Mansfield decided that they could, and said, in words governing the interpretation of the passage quoted, 'when I say “ the king,” I always mean " the king without the concurrence of parliament."
annexation of the raj, the other the dealing with the question of property; and the Judicial Committee, in their judgment dismissing the action, which was delivered by Lord Kingsdown, based themselves on the latter. 'If the company, they said, 'in the exercise of their sovereign power, have thought fit to seize the whole property of the late rajah, private as well as public, does that circumstance give any jurisdiction over their acts to the court at Madras ?' Thus the case gave an instance of obeying the constitutional rule that a British act of state cannot be questioned by a British court, but no instance of refusing, as between the government and a private party, to draw from an act of state the consequences left open by it. Dos: v. Secretary of State, L. R. 19 Eq. 509, was a bill claiming a charge on the revenue of the territory of Oude, which had been annexed by the East India Company, for the amount of the debts due from the dethroned king of Oude to the plaintiffs. It came before Malins V.C., and it will probably be thought that the grounds which he gave for sustaining the demurrer, other than the one which concerns us here, were sufficient. He did, however, treat the reply of 'act of state as being fatal to the bill, and since it does not appear that there had been any act of state in the case other than the simple annexation, we here meet for the first time with a refusal by a court to draw the consequences of an act of state. As regards the international point, Lord Derby, then Lord Stanley and President of the Board of Control, stated in the House of Commons on July 5, 1858, that the transfer of the revenues of the kingdom of Oude to Great Britain did carry with it a liability for such debts of the former government as were fairly and justly contracted': quoted by Malins V.C., L. R. 19 Eq., p. 531. The law laid down by Vice-Chancellor Malins was applied by the Judicial Committee, their judgment being delivered by Lord Chancellor Halsbury, in Cook v. Sprigg  A.C. 572. There it was sought to enforce concessions granted by Sigcau, described as paramount chief of Pondoland, before the annexation of that country; but the doctrine in question was again far from being a necessary basis for the refusal, since, besides that it would be a joke to apply principles of international law to the concessions which white men wheedle or extort from uncivilized chiefs, it must be remarked that some of the rights said to have been conceded were of that public nature which an annexing state is always held free to deal with on its own and not on its predecessor's principles of policy. And now we have the judges in West Rand Central Gold Mining Company v. Rex holding 'that matters which fall properly to be determined by the Crown by treaty or as an act of state are not subject to the jurisdiction of the municipal courts, and that rights supposed to be acquired thereunder cannot be enforced by such courts 1.' This being treated by them as a sufficient ground for allowing the demurrer, when nothing beyond the simple annexation of the Transvaal appeared as having been done on the part of the Crown, the law of England must be admitted, in the present state of the authorities, to deny the right of the judges, even on a petition of right, to draw out against the Crown the consequences of an act of state.
It needs scarcely be said that in the United States no such difficulty as that which we have been considering occurs. The constitutional position of the Supreme Court, and the very purpose for which it exists, on the one hand prevent it from questioning any act of state performed by the executive within its lawful powers, and on the other hand require it to draw out the consequences of any such act of state and apply them to the cases before it. When therefore a conquest made by the United States or a cession made to them is presented to the consideration of that court, it is free to apply any rule of international law which it finds relating to the situation, and it applies such rule not only between private parties but also between a private party and the republic, so far as the republic has not decided the matter by the constitutional action of its executive. In United States v. Percheman, 7 Peters 51, one of a series of cases arising out of the acquisition of Florida' and Louisiana by cession, Chief Justice Marshall said (p. 86)
• It is very unusual even in cases of conquest for the conqueror to do more than to displace the sovereign and assume dominion over the country. · The modern usage of nations which has become law would be violated, that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled.
Particular attention must be drawn to the last words, because the Court in West Rand Central Gold Mining Co.v. Rex, adverting to the fact that in the series of cases mentioned the rules of international law
1 This ( 2 K. B. 409) is the language in which their lordships sum up the previous authorities, and they clearly adopt it. One of the cases which they quote is that of Rustomjee v. Reg. i Q. B. D. 487 and 2 Q. B. D. 69, where the British government had received from the Chinese government a sum of money in respect of claims made on the latter by certain persons, of whom one presented a petition of right in order to enforce payment of his claim out of the sum so received. Lord Coleridge said that “as in making the treaty, so in performing the treaty, the Queen is beyond the control of municipal law. It must be observed that the circumstances of a treaty may contain in themselves suffieient proof that the sovereign intended to reserve his own discretion in executing it. For instance, if every such claimant as the petitioner in Rustom jee v. Reg. could succeed separately, the total awarded might possibly exceed the amount received by the Crown. Justice would require an administration of the fund, for which the law as to petitions of right makes no provision.