10.
อง
International Law and the concluding words of Lord
Chief Justice Cockburn's opinion quoted above would
be meaningless, nor would it be possible to justify
the action of the British and French authorities in
the cases of Sun Yat Sen and Nikitschenkow which arc
referred to in the footnote to page 632 of Vol. I of
Oppenheim's work.
There remains for consideration the third of
the submissions made on behalf of the appellant.
As we have already decided against the contention
that the visiting state has solo and exclusive jurisdiction
it follows that in our opinion there is no merit in the
argument that there can be no waiver of immunity. The
question that now falls for decision is whether in the
facts of this case there has been a valid and sufficient
waiver and therefore a submission to the jurisdiction of
this Court.
In the course of his argument Mr. Macnamara
referred us to the reported cases of Taylor v. Best
(1854) 14 C.B. 487, In re Suarez, Suarez v. Suarez
(1918) 1 Ch.176 and Dickinson v. Del Solar (1930)
1 K.B. 376, and relied particularly on the extradition
proceedings at the instance of the Chinese Government as
evidencing the fact that they had not consented to waive
their priority of jurisdiction nor had they approved
of any waiver of that priority which might be inferred
from the conduct of the Chief Officer or the boatswain.
In his able argument Mr. Macnamara, in our
opinion, overlooked one important point which is fatal
to his contention. The appellant has been found by a
competent court to be a British subject. By the Treaty of Tientsin 1858 the Emperor of China renounced all
claim to exercise jurisdiction within his territorial
limits over British subjects. The requisition for the surrender of the appellant was doubtless inspired