133
13.-
Speaking with diffidence, for I have a great respect
for the ability of the Chief Justice, I am unable to agree with the conclusion at which he arrives, and the Judgment of Mr. Justice Sercombe Smith appears to me to be correct.
14.·
I have ventured to mark in pencil in the copy sent
me with these papers certain passages numerically.
At (1) the Chief Justice points: out that the onus
of having his defence lies on the Defendant and that in default of
his so doing he must be regarded as a trespasser..
At (3) he admits that, by English Law, a fluctuating
and uncertain body cannot claim a profit a prendre in alieno solo.
If, therefore, the case is to be settled by English
Law the Defendant fails.
At (3) the Chief Justice says the custom grew up under Chinese Law and its validity can only be determined by rete- rence to the rules of that Law,'
At (4) he says "No evidence with respect to them bas
been given on the one side or the other".-
But, surely, it is the duty of the Defendant who alleges he is entitled to something under Chinese Law which be is not entitled to under English Law, to give some evidence of Chinese Law. The Chief Justice said at (1) that the onus of proving the defence lay on the Defendant. I should have thought that after (4) the Chief Justice would have gone on to say "But, as it lay on the Defendant to prove that the Chinese Law allowed a fluctuating and uncertain body to claim a profit a prendre in the soil of another, or to prove that the Chinese Law sanctioned his clain, and he has not given any evidence at all as to Chinese Law, I must find that he has not established his defence". Instead of which he finds in favour of the Defendant."
15.
But there is another and more important matter,
that is the mode in which the Chief Justice has dealt with the Convention of June 1999, between the Emperor of China and Her Majesty, as limiting the right of the Crown to grant such a Lease as that in question.
་
Now the language of the Lord Chancellor in Cook v. Sprigg (Law Reports, 1999, Appeal Cases p. 572) is very explicit. He says at p. 578,
*It is no answer to say that by the ordinary principles of International Gaw, 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 proper- ly meant by such a proposition is that according to the well-under- stood 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. And if there is either an express or a well understood bargain between the ceding potentats and the Government to which the cession is made that private pro-
-perty