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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
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.

(SEAL)

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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 because 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.

S. R. Finlay, A.-G., and Sir E. Carson, S.-G. (H. Sutton with them), for the crown: The facts alleged in the petition 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, (1899) A. C. 572, is the latest of a long series of authorities which show 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., (1791) 1 Ves. Jr. 371; 2 Ves. Jr. 56. Elphinstone v. Bedreechund, (1830) 1 Knapp, P. C. 316; 2 St. Tr. (N. S.) 379. Secretary of State in Council of India v. Kamachee Boye Sahaba, (1859) 13 Moo. P. C. 22; 7 Moore's Ind. Ap. Ca. 476. Ex Rajah of Coorge v. East India Co., (1860) 29 Beav. 300. Sirdar Bhagwan Singh v. Secretary of State for India, (1874) L. R. 2 Ind. Ap. 38. Doss v. Secretary of State for India, (1875) L. R. 19 Eq. 509. Rustomjee v. Reg., (1876) 1 Q. B. D. 487; 2 Q. B. D. 69. The Commonwealth v. Sparhawk (1788), 1 Dallas, 383. United States v. Pacific Railroad, (1886) 13 Davis, 227.]

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 recognize 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 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 enforce-' able 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. 99; Wheaton's International Law, 4th ed., 46; Halleck's International Law (Baker's 1878 ed.), vol. ii, 504; Calvo's Droit International, 4th ed. vol. i, 248; vol. iv. 404; Heffter's Droit International de l'Europe, 4th ed. 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 (1737), Cas. t. Tal. 281; Triquet v. Bath (1764), 3 Burr. 1478; Heathfield v. Chilton (1767), 4 Burr. 2016; Viveash v. Becker (1814),3 M. and S. 284; 15 R. R.488; cases dealing with the seizure of debts: see Dolder v. Huntingfield (1805), 11 Ves. Jr. 283; 8 R. R. 159; Wolff v. Oxholm (1817), 6 M. and S. 92;18 R. R. 313; and cases turning on the law as to territorial waters: see Reg. v. Keyn (1876), 2 Ex. D. 63. 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 recognized and adopted the particular principle of international law enunciated above as the first proposition: Calvin's Case (1609), 4 Coke, 1; Blankard v. Galdy (1693), 2 Salk. 411; Campbell v. Hall (1774), 1 Cowp. 204. 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. 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 recognized and dealt with in the same way as those of the other subjects of the sovereign: Advocate-General of Bombay v. Amerchund (1829), 1 Knapp P. C. 329, n.; Mayor of Lyons v. East India Co. (1836), 1 Moo. P. C. 175; 43 R. R. 27; King of the Two Sicilies v. Willcox (1851), 1 Sim. (N. S.) 301; Cnited States of 'America v. Prioleau (1865), 2 H. & M. 559; United States v. McRae (1869), L. R. 8 Eq. 69; Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch. D. 489; Republic of Peru v. Dreyfus (1888), 38 Ch. D. 348; Frith v. Reg. (1872), L. R. 7 Ex. 365. The American authorities support the contention of the suppliants. In United States v. Percheman (1833), 7 Peters, 51, at p. 86, 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 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 (1836), 9 Peters, 711; Smith v. United States (1838), 10 Peters, 326; Strother v. Lucas (1838), 12 Peters, 410.)

With regard to Cook v. Sprigg (1899), A. C. 572, the facts there were so very different from those of the present case that it cannot be regarded as an authority. Moreover, in so far as Cook v. Sprigg (1899), A. C. 572 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., 108, 109; Law Quarterly Review, vol. xvi, 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

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 (1892), A. C. 491, and Raleigh v. Goschen (1898), 1 Ch. 73.]

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

crown.

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 liability 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 show 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 show 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, 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 recognized 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 £3804, had been seized by officials of the South African Republic-£1104, on October 2 in course of transit from Johannesburg to Cape Town, and £2700 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

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