DIVISIONAL COURT

 

WEST RAND CENTRAL GOLD MINING COMPANY, LIMITED v. THE KING.

 

[1905] 2 K.B. 391

 

 

COUNSEL: Sir R. Finlay, A.-G., and Sir E. Carson, S.-G. (H. Suttonwith them), for the Crown.

Lord R. Cecil, K.C., and J. A. Hamilton, K.C. (Theobald Mathew and A. M. Talbot with them), for the suppliants.

 

SOLICITORS: For suppliants: Waltons, Johnson, Bubb & Whatton.

For the Crown: Solicitor to the Treasury.

 

JUDGES: Lord Alverstone C.J., Wills and Kennedy JJ.

 

DATES: 1905 May 3, 4; June 1.

 

 

Petition of Right – International Law – Annexation – Liabilities of Conquered State – Creditor’s Rights against Conqueror – Act of State – Jurisdiction of Municipal Courts.

 

A petition of right alleged that, before the outbreak of war between the late South African Republic and Great Britain, gold, the produce of a mine in the Republic owned by the suppliants, had been taken from the suppliants by officials acting on behalf of the Government of the Republic; that the Government by the laws of the Republic was liable to return the gold or its value to the suppliants; and that by reason of the conquest and annexation of the territorities of the Republic by Her late Majesty the obligation of the Government of the Republic towards the suppliants in respect of the gold was now binding upon His Majesty the King.

 

Held, on demurrer, that the petition disclosed no right on the part of the suppliants which could be enforced against His Majesty in any municipal Court.

 

There is no principle of international law by which, after annexation of conquered territory, the conquering State becomes liable, in the absence of express stipulation to the contrary, to discharge financial liabilities of the conquered State incurred before the outbreak of war.

 

PETITION OF RIGHT by the West Rand Central Gold Mining Company, Limited.

 

1. The suppliants are a company registered in England under the Companies Acts and owning and working a gold mine in His Majesty’s Transvaal Colony.

 

2. On October 2, 1899, 283.90 ounces of gold of the value of 1104l., the property of the suppliants, while in transit by train from Johannesburg to Cape Town, were taken possession of at Vereeniging by an official of the late South African Republic, namely, one Hugo, the resident magistrate of the district; the said Hugo was acting upon the instructions of the State Attorney of the said Republic, who ordered him to take the said gold into safe keeping.

 

3. The said Hugo gave for the said gold (together with other gold taken at the same time) a receipt of which the following is a translation:–

 

“Vereeniging Station.

 

“Seized this day by order of the Attorney-General S. A. R. (117) one hundred and seventeen cases containing gold and [*392] valuables sealed as usual and conveyed by the mail train from Johannesburg.

 

“(Signed) J. S. N. Hugo,

“Res. J. P.”

 

“2 October, 1899.”

 

4. Further, two bars of gold weighing 767.20 ounces of the value of 2700l., the property of the suppliants, and being then in the custody of the African Banking Corporation of Johannesburg, were on October 9, 1899, taken possession of upon the premises of the said bank by two officials of the Government of the said Republic, namely, one Wagner and one Krause.

 

5. The said two officials gave for the said gold (together with other gold taken at the same time) a sealed receipt of which the following is a translation:–

 

Received eight bars of raw gold weighing 2617.23 ounces, value 8996l., namely:–

 

1.   M. K. C.     49      730.75 ozs.

2.      M.       124      395.85 ,,   }       African Banking

3.   O. T. S.             125.10 ,,   }         Corporation

4.                         39.35 ,,   }            4411.

5.                         19.00 ,,   }

 

                                      {      o/a Worcester Expn

6.               215      539.03 ,,   {      & G. M. Co. 1885.

 

7.                        149.55 ,,   {    o/a West Rand Central

8.                        617.65 ,,   {       G. M. Co. 2700.

                         -------

                         2617.23 ,,

     From

             African Banking Corporation, Limited,

                                           Johannesburg.

                           (Sd) M. Wagner Mijn Inspecteur.

                           (Sd) F. E. T. Krause.

             Government Commission of Peace and Order

    ----   upon instructions of State Secretary.

   |Seal|    On behalf of the Government Commission, Witwatersrand,

    ----   10 October, 1899, S. A. R. Division of

           Peace and Order.

                        (Sd) Martin Mulder,

                        (Sd) Joseph Van Gelder, Secretaries.”

 

[*393]

 

6. The said gold was in each case taken possession of by and on behalf of and for the purposes of the then existing Government of the said Republic, and the said Government by the laws of the said Republic was under a liability to return the said gold or its value to your suppliants. None of the said gold has been returned to the suppliants, nor did the Government make any payment in respect thereof.

 

7. A state of war between Her late Majesty Queen Victoria and the said Republic commenced at 5 P.M. on October 11, 1899.

 

8. Her late Majesty’s forces conquered the said Republic, and by a Proclamation in the name of Her late Majesty dated September 1, 1900, the whole of the territories of the said Republic were annexed to and became part of Her dominions, and the late Government of the said Republic thereby ceased to exist.

 

9. By reason of the said conquest and annexation Her late Majesty succeeded to the Sovereignty of the said Government with all its rights and duties and became entitled to the whole property of the said Government, and the obligation which vested in the said Government in respect of the said gold is now as binding upon His Majesty as though the acts and things which gave rise to such obligation had been done or suffered by Her late Majesty.

 

The suppliants therefore humbly pray the return of the said gold, or payment to them of the said sum of 3804£.

 

Demurrer: “His Majesty’s Attorney-General on behalf of our Lord the King gives the Court here to understand and be informed that the petition of right is bad in substance and in law, in that it does not disclose a sufficient or lawful or any obligation on His Majesty towards the suppliants, or any legal or equitable right of the suppliants against His Majesty cognizable by the Courts of this country or enforceable therein and on other grounds sufficient in law to sustain this demurrer.”

 

Joinder: “The petition herein is good in substance and in law.” (1)

 

Sir R. Finlay, A.-G., and Sir E. Carson, S.-G. (H. Suttonwith them), for the Crown. The facts alleged in the petition

 

(1) There was a trial at bar for the hearing of the demurrer. [*394]

 

of right disclose no obligation on the part of His Majesty towards the suppliants, nor any right enforceable in this Court. Where the Sovereign annexes a foreign country the terms on which he does so are settled by him, and no Court of law has any power to interpret or enforce those terms. Cook v. Sprigg (1) is the latest of a long series of authorities which shew that annexation is an act of State, and that the municipal Courts have no authority to enforce obligations assumed by the conquering State under the treaty of annexation.

 

[They referred to Nabob of the Carnatic v. East India Co. (2); Elphinstone v. Bedreechund (3); Secretary of State in Council of India v. Kamachee Boye Sahaba (4); Ex Rajah of Coorg v. East India Co. (5); Sirdar Bhagwan Singh v. Secretary of State for India (6); Doss v. Secretary of State for India (7); Rustomjee v. Reg. (8); The Commonwealth v. Sparhawk (9); United States v. Pacific Railroad. (10)]

 

To take an extreme case, if a conquering State confiscated all private property in the conquered State, the owners of the property could not obtain redress by means of litigation in the municipal Courts of the conquering State. So, in the present case, His Majesty’s Government having declined to recognise the suppliants’ claim, this Court has no power to adjudicate upon it. The claim is in fact absolutely without foundation. Assuming that the Transvaal Government were under some contractual obligation to indemnify the suppliants, that obligation does not as a result of the annexation fall upon His Majesty. There is no principle of international law by which a conquering State becomes ipso facto liable to discharge all the contractual obligations of the conquered State.

 

Lord R. Cecil, K.C., and J. A. Hamilton, K.C. (Theobald Mathew and A. M. Talbot with them), for the suppliants. For the purpose of this demurrer the facts must be taken to be as

 

(1) [1899] A. C. 572.

 

(2) (1791) 1 Ves. Jr. 371; 2 Ves. Jr. 56.

 

(3) (1830) 1 Knapp P. C. 316; 2 St. Tr. (N.S.) 379.

 

(4) (1859) 13 Moo. P. C. 22; 7 Moore’s Ind. Ap. Ca. 476.

 

(5) (1860) 29 Beav. 300.

 

(6) (1874) L. R. 2 Ind. Ap. 38.

 

(7) (1875) L. R. 19 Eq. 509.

 

(8) (1876) 1 Q. B. D. 487; 2 Q. B. D. 69.

 

(9) (1788) 1 Dallas, 383.

 

(10) (1886) 13 Davis, 227. [*395]

 

stated in the petition, and the case may therefore be argued on the basis that the gold was taken by the Transvaal Government under its constitutional powers, that the seizure was not made for the purpose of hostilities, and that at the moment of annexation the Transvaal Government was under an enforceable obligation to return the gold or its value. The case for the suppliants may be put in the form of three propositions, the first of which is that by international law, where one civilized State after conquest annexes another civilized State, the conquering State, in the absence of stipulations to the contrary, takes over and becomes bound by all the contractual obligations of the conquered State, except liabilities incurred for the purpose of or in the course of the particular war. The writings of jurists on international law and stipulations in treaties are evidence of what is international law, and the proposition in question is supported by the following authorities: Hall’s International Law, 5th ed. p. 99; Wheaton’s International Law, 4th ed. p. 46; Halleck’s International Law (Baker’s 1878 ed.), vol. ii. p. 504; Calvo’s Droit International, 4th ed. vol. i. p. 248; vol. iv. p. 404; Heffter’s Droit International de l’Europe, 4th ed. pp. 63, 64; Huber’s Die Staatensuccession, s. 217. Secondly, international law is part of the law of England. This question has been much considered in cases relating to the rights and privileges of ambassadors: see Barbuit’s Case (1); Triquet v. Bath (2); Heathfield v. Chilton (3); Viveash v. Becker (4); cases dealing with the seizure of debts: see Dolder v. Huntingfield (5); Wolff v. Oxholm (6); and cases turning on the law as to territorial waters: see Reg. v. Keyn. (7) All these cases have been dealt with by the English Courts on the footing that the principles of international law relating to them form part of the common law of England. Thirdly, the English Courts have recognised and adopted the particular principle of international law enunciated above as the

 

(1) (1737) Cas. t. Tal. 281.

 

(2) (1764) 3 Burr. 1478.

 

(3) (1767) 4 Burr. 2016.

 

(4) (1814) 3 M. & S. 284; 15 R. R. 488.

 

(5) (1805) 11 Ves. Jr. 283; 8 R. R. 159.

 

(6) (1817) 6 M. & S. 92; 18 R. R. 313.

 

(7) (1876) 2 Ex. D. 63. [*396]

 

first proposition: Calvin’s Case (1); Blankard v. Galdy (2); Campbell v. Hall. (3) The Sovereign has, it is admitted, power when annexing a conquered State to impose what terms and conditions he pleases as to the taking over of the obligations of the conquered State; but if nothing is said about a particular obligation then it must be deemed to have been taken over, and it can be enforced in the municipal Courts of the conquering State. As soon as the annexation is complete the Sovereign’s absolute power to impose terms and conditions is at an end, and the rights of the inhabitants of the conquered State must be recognised and dealt with in the same way as those of the other subjects of the Sovereign: Advocate-General of Bombay v. Amerchund (4); Mayor of Lyons v. East India Co. (5); King of the Two Sicilies v. Willcox (6); United States of America v. Prioleau (7); United States v. McRae (8); Republic of Peru v. Peruvian Guano Co. (9); Republic of Peru v. Dreyfus (10); Frith v. Reg. (11) The American authorities support the contention of the suppliants. In United States v. Percheman (12) Marshall C.J. said: “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.”

 

[They also referred to Mitchel v. United States (13); Smith v. United States (14); Strother v. Lucas. (15)]

 

With regard to Cook v. Sprigg (16), the facts there were so very different from those of the present case that it cannot

 

(1) (1609) 4 Coke, 1.

 

(2) (1693) 2 Salk. 411.

 

(3) (1774) 1 Cowp. 204.

 

(4) (1829) 1 Knapp P. C. 329, n.

 

(5) (1836) 1 Moo. P. C. 175; 43 R. R. 27.

 

(6) (1851) 1 Sim. (N.S.) 301.

 

(7) (1865) 2 H. & M. 559.

 

(8) (1869) L. R. 8 Eq. 69.

 

(9) (1887) 36 Ch. D. 489.

 

(10) (1888) 38 Ch. D. 348.

 

(11) (1872) L. R. 7 Ex. 365.

 

(12) (1833) 7 Peters, 51, at p. 86.

 

(13) (1835) 9 Peters, 711.

 

(14) (1836) 10 Peters, 326.

 

(15) (1838) 12 Peters, 410.

 

(16) [1899] A. C. 572. [*397]

 

be regarded as an authority. Moreover, in so far as Cook v. Sprigg (1) laid down the general propositions that conquest destroys all private rights, and that the repudiation of liability by a Government is an act of State which the Courts cannot inquire into, it is contrary to the authorities and to the principles of international law: see Pollock on Torts, 7th ed. pp. 108, 109; Law Quarterly Review, vol. xvi. pp. 1, 2.

 

The other cases relied on by the Crown are also not in point. They are cases where attempts were being made to enforce rights which had been the subject of treaties or agreements between two Sovereign Powers, or to recover property which had been seized by the armed forces of the Crown. The present case does not fall within either category. The suppliants are not seeking to set aside or interfere with the annexation, but they contend that one of the effects of the annexation has been to transfer from the Transvaal Government to the Crown the liability to indemnify the suppliants for the loss of their gold, and that the liability is one which can be enforced in this Court.

 

[In addition to the cases mentioned above, they also referred to Walker v. Baird (2) and Raleigh v. Goschen. (3)]

 

Sir R. B. Finlay, A.-G., in reply. Text-writers on international law are not authoritative. The passages from their writings which have been quoted do not really support the first proposition put forward on behalf of the suppliants; they are mere general expressions of opinion, and not subject to the qualification, which the suppliants concede, that the proposition must be limited to liabilities incurred before war and not for the purpose of war. This concession is fatal to the authority of the passages relied on. The proposition is further qualified by the admission that a conquering State may by the terms of the annexation stipulate that certain liabilities will not be taken over, but it is said that all liabilities not expressly excepted are taken over. It cannot be seriously contended that the absence from Lord Roberts’ proclamation of a schedule of excluded debts saddles the British Government with liabiity

 

(1) [1899] A. C. 572.

 

(2) [1892] A. C. 491.

 

(3) [1898] 1 Ch. 73. [*398]

 

for all the debts of the Transvaal Government, and no authority has been or can be produced to support this contention. Moreover, there are passages in Huber’s Staatensuccession, at pp. 65, 66, 114, 115, which shew that his views on this point would have been very much qualified if his mind had really been addressed to the question as it arises in this case. The proposition of the suppliants further involves an unlimited liability on the part of the conquering State – a liability “without benefit of inventory.” The passages cited from Hall, Halleck and Heffter do not support this view, but on the contrary rather go to shew that in the opinion of these writers the liability of the conquering State does not extend beyond the amount of the assets taken over; but the text-books are not in agreement on this point: see Westlake’s International Law, Part. I. p. 76. The cases cited for the Crown establish beyond all doubt that international law is not part of the common law of England, and that the claims of the suppliants cannot be enforced by petition of right. Decisions as to ambassadors and territorial waters are beside the question; they are ex necessitate cases, for neither ambassadors’ privileges nor territorial waters could be said to exist if they were not recognised and enforced in Courts of law.

 

Cur. adv. vult.

 

June 1. The judgment of the Court (Lord Alverstone C.J., Wills and Kennedy JJ.) was read by

 

LORD ALVERSTONE C.J. In this case the Attorney-General, on behalf of the Crown, demurred to a petition of right presented in the month of June, 1904, by the West Rand Central Gold Mining Company, Limited. The petition of right alleged that two parcels of gold, amounting in all to the value of 3804l., had been seized by officials of the South African Republic – 1104l. on October 2 in course of transit from Johannesburg to Cape Town, and 2700l. on October 9, taken from the bank premises of the petitioners. No further statement was made in the petition of the circumstances under which, or the right by which, the Government of the Transvaal [*399]

 

Republic claimed to seize the gold; but it was stated in paragraph 6, “That the gold was in each case taken possession of by, and on behalf of, and for the purposes of, the then existing Government of the said Republic, and that the said Government, by the laws of the said Republic, was under a liability to return the said gold, or its value, to your suppliants. None of the said gold has been returned to your suppliants, nor did the said Government make any payment in respect thereof.” The petition then alleged that a state of war commenced at 5 P.M. on October 11, 1899, that the forces of the late Queen conquered the Republic, and that by a Proclamation of September 1, 1900, the whole of the territories of the Republic were annexed to, and became part of, Her Majesty’s dominions, and that the Government of the Republic ceased to exist. The petition then averred that by reason of the conquest and annexation Her Majesty succeeded to the sovereignty of the Transvaal Republic, and became entitled to its property; and that the obligation which vested in the Government was binding upon His present Majesty the King.

 

Before dealing with the questions of law which were argued before us, we think it right to say that we must not be taken as acceding to the view that the allegations in the petition disclosed a sufficient ground for relief. The petition appears to us demurrable for the reason that it shews no obligation of a contractual nature on the part of the Transvaal Government. For all that appears in the petition the seizure might have been an act of lawless violence. The allegations that A. seized property belonging to B., and that thereupon by law an obligation arose on the part of A. to return to B. his property, or pay its value, might be truly made in respect of any wrongful seizure of A.’s property. We do not assent to the proposition of Lord Robert Cecil that it is sufficient to allege what may be a ground of action if something else be added which is not stated. Upon all sound principles of pleading it is necessary to allege what must, and not what may, be a cause of action, and unless the obligation alleged in the present instance arose out of contract it is clear that no petition of right could be maintained. A passage in the judgment of Willes J. in the [*400] case of Gautret v. Egerton (1) states this view so clearly that we think it well to quote it. Willes J. says: “The argument urged on behalf of the plaintiffs, when analyzed, amounts to this, that we ought to construe the general words of the declaration as describing whatever sort of negligence the plaintiffs can prove at the trial. The authorities, however, and reason and good sense, are the other way. The plaintiff must, in his declaration, give the defendant notice of what his complaint is. He must recover secundum allegata et probata. What is it that a declaration of this sort should state in order to fulfil those conditions? It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged.” I need scarcely add that in dealing with a petition of right, which must be based upon contract, that observation would of course have its full force and effect. The discussion, however, is academical, as the Attorney-General for the Crown, as well as Lord Robert Cecil for the suppliants, desired that we should deal with the case as if any necessary amendment had been made, and decide the question whether all the contractual obligations of a State annexed by Great Britain upon conquest are imposed as a matter of course, and in default of express reservations, upon Great Britain, and can be enforced by British municipal law against the Crown in the only way known to British municipal law, that is by a petition of right. We have no hesitation in answering this question in the negative, but, inasmuch as it is one of great importance, and we have had the advantage of hearing very able argument upon both sides, we think it right to give our reasons in some detail.

 

Lord Robert Cecil argued that all contractual obligations incurred by a conquered State, before war actually breaks out, pass upon annexation to the conqueror, no matter what was their nature, character, origin, or history. He could not indeed do otherwise, for it is clear that if any distinction is to be made it must be made upon grounds which, without depriving the original liability of its character of a legal obligation against the vanquished State, make it inexpedient for

 

(1) (1867) L. R. 2 C. P. 371. [*401]

 

the conquering State to adopt that liability as against itself; in other words, upon ethical grounds, into which enter considerations of propriety, magnanimity, wisdom, public duty, in short, of policy, in the broadest and widest sense of the word. It is equally clear that these are matters with which municipal Courts have nothing to do. They exist for the purpose of determining and enforcing legal obligations, not for the purpose of dividing them into classes, and saying that some of them, although legally binding, ought not to be enforced. The broad proposition which thus formed the basis of Lord Robert Cecil’s argument almost answers itself, for there must have been, in all times, contracts made by States before conquest such as no conqueror would ever think of carrying out. Some illustrations will occur in the course of our subsequent remarks. For the moment we will pursue Lord Robert’s argument into further detail. His main proposition was divided into three heads. First, that, by international law, the Sovereign of a conquering State is liable for the obligations of the conquered; secondly, that international law forms part of the law of England; and, thirdly, that rights and obligations, which were binding upon the conquered State, must be protected and can be enforced by the municipal Courts of the conquering State.

 

In support of his first proposition Lord Robert Cecil cited passages from various writers on international law. In regard to this class of authority it is important to remember certain necessary limitations to its value. There is an essential difference, as to certainty and definiteness, between municipal law and a system or body of rules in regard to international conduct, which, so far as it exists at all (and its existence is assumed by the phrase “international law”), rests upon a consensus of civilized States, not expressed in any code or pact, nor possessing, in case of dispute, any authorized or authoritative interpreter; and capable, indeed, of proof, in the absence of some express international agreement, only by evidence of usage to be obtained from the action of nations in similar cases in the course of their history. It is obvious that, in respect of many questions that may arise, there will be room for difference of opinion as to whether such a consensus could [*402] be shewn to exist. Perhaps it is in regard to the extra-territorial privileges of ambassadors, and in regard to the system of limits as to territorial waters, that it is least open to doubt or question. The views expressed by learned writers on international law have done in the past, and will do in the future, valuable service in helping to create the opinion by which the range of the consensus of civilized nations is enlarged. But in many instances their pronouncements must be regarded rather as the embodiments of their views as to what ought to be, from an ethical standpoint, the conduct of nations inter se, than the enunciation of a rule or practice so universally approved or assented to as to be fairly termed, even in the qualified sense in which that word can be understood in reference to the relations between independent political communities, “law.” The reference which these writers not infrequently make to stipulations in particular treaties as acceptable evidence of international law is as little convincing as the attempt, not unknown to our Courts, to establish a trade custom which is binding without being stated, by adducing evidence of express stipulations to be found in a number of particular contracts.

 

Before, however, dealing with the specific passages in the writings of jurists upon which the suppliants rely, we desire to consider the proposition, that by international law the conquering country is bound to fulfil the obligations of the conquered, upon principle; and upon principle we think it cannot be sustained. When making peace the conquering Sovereign can make any conditions he thinks fit respecting the financial obligations of the conquered country, and it is entirely at his option to what extent he will adopt them. It is a case in which the only law is that of military force. This, indeed, was not disputed by counsel for the suppliants; but it was suggested that although the Sovereign when making peace may limit the obligations to be taken over, if he does not do so they are all taken over, and no subsequent limitation can be put upon them. What possible reason can be assigned for such a distinction? Much inquiry may be necessary before it can be ascertained under what circumstances the liabilities were incurred, and what debts should in foro [*403] conscienti34 be assumed. There must also be many contractual liabilities of the conquered State of the very existence of which the superior Power can know nothing, and as to which persons having claims upon the nation about to be vanquished would, if the doctrine contended for were correct, have every temptation to concealment – others, again, which no man in his senses would think of taking over. A case was put in argument which very well might occur. A country has issued obligations to such an amount as wholly to destroy the national credit, and the war, which ends in annexation of the country by another Power, may have been brought about by the very state of insolvency to which the conquered country has been reduced by its own misconduct. Can any valid reason be suggested why the country which has made war and succeeded should take upon itself the liability to pay out of its own resources the debts of the insolvent State, and what difference can it make that in the instrument of annexation or cessation of hostilities matters of this kind are not provided for? We can well understand that, if by public proclamation or by convention the conquering country has promised something that is inconsistent with the repudiation of particular liabilities, good faith should prevent such repudiation. We can see no reason at all why silence should be supposed to be equivalent to a promise of universal novation of existing contracts with the Government of the conquered State. It was suggested that a distinction might be drawn between obligations incurred for the purpose of waging war with the conquering country and those incurred for general State expenditure. What municipal tribunal could determine, according to the laws of evidence to be observed by that tribunal, how particular sums had been expended, whether borrowed before or during the war? It was this and cognate difficulties which compelled Lord Robert Cecil ultimately to concede that he must contend that the obligation was absolute to take over all debts and contractual obligations incurred before war had been actually declared.

 

Turning now to the text-writers, we may observe that the proposition we have put forward that the conqueror may impose what terms he thinks fit in respect of the obligations [*404] of the conquered territory, and that he alone must be the judge in such a matter, is clearly recognised by Grotius: see “War and Peace,” book iii. chap. 8, s. 4, and the Notes to Barbeyrac’s edition of 1724, vol. ii. p. 632. For the assertion that a line is to be drawn at the moment of annexation, and that the conquering Sovereign has no right at any later stage to say what obligations he will or will not assume, we venture to think that there is no authority whatever. A doctrine was at one time urged by some of the older writers that to the extent of the assets taken over by the conqueror he ought to satisfy the debts of the conquered State. It is, in our opinion, a mere expression of the ethical views of the writers; but the proposition now contended for is a vast extension even of that doctrine. It has been urged that in numerous cases, both of peace and of cession of territories, special provision has been made for the discharge of obligations by the country accepting the cession or getting the upper hand in war; but, as we have already pointed out, conditions the result of express mutual consent between two nations afford no support to the argument that obligations not expressly provided for are to follow the course, by no means uniform, taken by such treaties. See as to this, s. 27 of the 4th edition of Hall’s International Law, and the opinion of Lord Clarendon there cited. Lord Robert Cecil cited a passage from Mr. Hall’s book, 4th ed. p. 105, in which he states that the annexing Power is liable for the whole of the debts of the State annexed. It cannot, however, be intended as an exhaustive or unqualified statement of the practice of nations, whatever may have been the opinion of the writer as to what should be done in such cases. It is not, in our opinion, directed to the particular subject now under discussion. The earlier parts of the same chapter contain passages inconsistent with any such view. We would call attention particularly to s. 27 on pp. 98 and 99 of the 4th edition, where the question as to the extent to which obligations do not pass is discussed, and the passage on pp. 101 and 102, referring to the discussion between England and the United States in 1854, in which Lord Clarendon’s contention that Mexico did not inherit the obligations or rights of Spain [*405] is approved of by Mr. Hall. In the same way the passage from Halleck, s. 25 of chap. 34 (Sir Sherston Baker’s edition of 1878), cited by Lord Robert Cecil, cannot be construed as meaning to lay down any such general proposition. It is cited from a chapter in which other sections contain passages inconsistent with the view that the legal obligation to fulfil all contracts passed to the conquering State. The particular section is in fact directed to the obligations of the conquering or annexing State upon the rights of private property of the individual – the point which formed the subject of discussion in the American cases upon which the suppliants relied and with which we shall deal later on. The passage from Wheaton (Atlay’s ed. p. 46, s. 30) shews that the writer was only expressing an opinion respecting the duty of a succeeding State with regard to public debts, and, as the note to the passage shews, it is really based upon the fact that many treaties have dealt with such obligations in different ways. We have already pointed out how little value particular stipulations in treaties possess as evidence of that which may be called international common law. We have not had the opportunity of referring to the edition of Calvo, cited by Lord Robert Cecil, but the sections of the 8th book of the edition published in 1872 contain a discussion as to the circumstances under which certain obligations should be undertaken by the conquering State. The distinction between the obligations of the successor with regard to the private property of individuals on the one hand, and the debts of the conquered State on the other, is clearly pointed out, and paragraphs 1005 and 1010 are quite inconsistent with any recognition by the author of the proposition contended for by the suppliants. The same observations apply to Heffter, another work upon which reliance was placed. As regards Max Huber’s work on State Succession, published in 1898, there is no doubt, as appears from Mr. Westlake’s recent book on international law, published last year, and from other criticisms, that Huber does attempt to press the duty of a succeeding or conquering State to recognise the obligations of its predecessor to a greater extent than previous writers on international law, but the extracts cited by the Attorney-General [*406]

 

in his reply and other passages in Huber’s book shew that even his opinion falls far short of the proposition for which the suppliants contend. But whatever may be the view taken of the opinions of these writers, they are, in our judgment, inconsistent with the law as recognised for many years in the English Courts; and it is sufficient for us to cite the language of Lord Mansfield in Campbell v. Hall (1) in a passage the authority of which has, so far as we know, never been called in question: “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 conditions as he thinks proper. He is entrusted with making the treaty of peace; he may yield up the conquest or retain it upon 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.” And so, much earlier, in the year 1722 (2nd Peere Williams, p. 75), it is said by the Master of the Rolls to have been determined by the Lords of the Privy Council that “where the King of England conquers a country it is a different consideration, for there the conqueror by saving the lives of the people conquered gains a right and property in such people, in consequence of which he may impose upon them what laws he pleases.” References were made to many cases of cession of territory not produced by conquest, and the frequent assumption in such cases of the liabilities of the territory ceded by the State accepting the cession was referred to. They may be dismissed in a sentence. The considerations which applied to peaceable cession raise such different questions from those which apply to conquest that it would answer no useful purpose to discuss them in detail.

 

The second proposition urged by Lord Robert Cecil, that international law forms part of the law of England, requires a word of explanation and comment. It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to

 

(1) 1 Cowp. 204, at p. 209. [*407]

 

which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations. We adopt the language used by Lord Russell of Killowen in his address at Saratoga in 1896 on the subject of international law and arbitration: “What, then, is international law? I know no better definition of it than that it is the sum of the rules or usages which civilized States have agreed shall be binding upon them in their dealings with one another.” In our judgment, the second proposition for which Lord Robert Cecil contended in his argument before us ought to be treated as correct only if the term “international law” is understood in the sense, and subject to the limitations of application, which we have explained. The authorities which he cited in support of the proposition are entirely in accord with and, indeed, well illustrate our judgment upon this branch of the arguments advanced on behalf of the suppliants; for instance, Barbuit’s Case (1), Triquet v. Bath (2), and Heathfield v. Chilton (3) are cases in which the Courts of law have recognised and have given effect to the privilege of ambassadors as established by international law. But the expressions used by Lord Mansfield when

 

(1) Cas. t. Tal. 281.

 

(2) 3 Burr. 1478.

 

(3) 4 Burr. 2016. [*408]

 

dealing with the particular and recognised rule of international law on this subject, that the law of nations forms part of the law of England, ought not to be construed so as to include as part of the law of England opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her Courts. The cases of Wolff v. Oxholm (1) and Rex v. Keyn (2) are only illustrations of the same rule – namely, that questions of international law may arise, and may have to be considered in connection with the administration of municipal law.

 

We pass now to consider the third proposition upon which the success of the suppliants in this case must depend – namely, that the claims of the suppliants based upon the alleged principle that the conquering State is bound by the obligations of the conquered can be enforced by petition of right. It is the consideration of this part of the case which brings out in the strongest relief the difficulties which exist in the way of the suppliants. It is not denied on the suppliants’ behalf that the conquering State can make whatever bargain it pleases with the vanquished; and a further concession was made that there may be classes of obligations that it could not be reasonably contended that the conquering State would by annexation take upon itself, as, for instance, obligations to repay money used for the purposes of the war. We asked more than once during the course of the argument by what rule, either of law or equity, which could be applied in municipal Courts could those Courts decide as to the obligations which ought or ought not to be discharged by the conquering State. To refer again to the instance given in the commencement of this judgment – the obligation incurred by the conquered State by which their credit has been ruined may have been contracted for insufficient consideration or under circumstances which would make it perfectly right from every point of view for the conquering State to repudiate it in whole or in part. No answer was, or could be, given. Upon this part of the case there is a series of authorities from the year 1793 down

 

(1) 6 M. & S. 92; 18 R. R. 313.

 

(2) 2 Ex. D. 63. [*409]

 

to the present time 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. It is quite unnecessary to refer in detail to them all. They extend from Nabob of the Carnatic v. East India Co. (1) down to Cook v. Sprigg. (2) As a great deal of argument was addressed to us upon the latter case, we think it right to say that, although it was contended that the actual decision was not in harmony with the views of the American Courts upon analogous matters, no authority was cited, or, as far as we know, exists, which throws any doubt upon that part of the judgment which is in the following words: “The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State and treating Sigcau as an independent Sovereign, which the appellants are compelled to do in deriving title from him. It is a well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal Courts administer. 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.” We do not repeat the citations of Secretary of State for India v. Kamachee (3) and Doss v. Secretary of State for India (4), referred to in the judgment in Cook v. Sprigg. (2) They form part of the chain of authorities to which we have referred, and we observe in passing that we are not to be considered as throwing any doubt upon the correctness of the decision itself in Cook v. Sprigg. (2) The case of Rustomjee v.

 

(1) 1 Ves. Jr. 371; 2 Ves. Jr. 56.

 

(2) [1899] A. C. 572.

 

(3) 13 Moo. P. C. 22.

 

(4) L. R. 19 Eq. 509. [*410]

 

Reg. (1), affirmed in the Court of Appeal, deserves, however, one word of comment. There the British Government had received from the Chinese Government a sum of money in respect of certain claims made upon that Government by persons, of whom the petitioner was one. A petition of right was brought in order to enforce payment by our Government of those claims out of the sum so received by the British Government. From some points of view that case may be considered much stronger in favour of the suppliant than the present, the money having been received by the Crown under a treaty specifically on account of the debts due to British subjects. In delivering the judgment of the Court of Appeal, Lord Coleridge used language which has a strong bearing on the present case. He said (2): “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 was contended by Lord Robert Cecil that the view we are taking was inconsistent with certain American decisions and with certain decisions of our own Court of Chancery, to which we think it right to refer. A careful examination of these cases satisfies us that rightly understood no such inconsistency exists. The American cases were a series of decisions of the Supreme Court of the United States respecting the rights of the owners to landed property in territories formerly forming part of independent countries which had been ceded to or annexed by the United States. The particular cases cited were United States v. Percheman (3), Mitchell v. United States (4), Smith v. United States (5), and Strother v. Lucas. (6) These cases arose respecting the rights of landed property in Florida, Louisiana, and Missouri. They

 

(1) 1 Q. B. D. 487; 2 Q. B. D. 69.

 

(2) 2 Q. B. D. at p. 73.

 

(3) 7 Peters, 51.

 

(4) 9 Peters, 711.

 

(5) 10 Peters, 326.

 

(6) 12 Peters, 410. [*411]

 

were all cases of cession, and in all of them the treaties of cession and subsequent legislation of the United States protected the rights of owners of private property as they existed at the time of cession, and the sole question was whether, under the circumstances of each individual case, private rights of property existed and could be enforced as against the United States. No question of duty of the country, to whom the territory passed, of fulfilling the obligations of the original country in any other respect arose; and the language of Marshall C.J. (1) and of Baldwin J.(2), all of which is to the same effect, must be construed solely with reference to the rights of private property in individuals, such property being locally situated in a country annexed by another country. We asked Lord Robert Cecil and Mr. Hamilton whether they had been able to find any case in which a similar principle had been applied to personal contracts or obligations of a contractual character entered into between a ceding or conquered State and private individuals. They informed us that they had not been able to do so, nor do we know of any such case. It must not be forgotten that the obligations of conquering States with regard to private property of private individuals, particularly land as to which the title had already been perfected before the conquest or annexation, are altogether different from the obligations which arise in respect of personal rights by contract. As is said in more cases than one, cession of territory does not mean the confiscation of the property of individuals in that territory. If a particular piece of property has been conveyed to a private owner or has been pledged, or a lien has been created upon it, considerations arise which are different from those which have to be considered when the question is whether the contractual obligation of the conquered State towards individuals is to be undertaken by the conquering State. The English cases on which reliance was placed were United States v. Prioleau (3), in which a claim was made by the United States Government to cotton which had been the property of the Confederated States; United

 

(1) 7 Peters, at p. 86.

 

(2) 9 Peters, at p. 733; 10 Peters, at p. 329.

 

(3) 2 H. & M. 559. [*412]

 

States v. Macrae (1), which recognised the right of the Government suppressing rebellion to all moneys, goods, and treasures which were public property at the time of the outbreak: Republic of Peru v. Peruvian Guano Co. (2) and Republic of Peru v. Dreyfus. (3) The only principle, however, which can be deduced from these cases is that a Government claiming rights of property and rights under a contract cannot enforce those rights in our Courts without fulfilling the terms of the contract as a whole. They have, in our judgment, no bearing upon the propositions which we have been discussing. We are aware that we have not commented upon all the cases which were cited before us – we have not failed to consider them; and any arguments which could be founded upon them seem to us to be covered by the observations already made. We are of opinion, for the reasons given, that no right on the part of the suppliants is disclosed by the petition which can be enforced as against His Majesty in this or in any municipal Court; and we therefore allow the demurrer, with costs.

 

Judgment for the Crown.

 

(1) L. R. 8 Eq. 69.

 

(2) 36 Ch. D. 489.

 

(3) 38 Ch. D. 348.