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ground that annexation is an act of State and any obligation assumed under a treaty to that effect. either to the ceding sovereign or to in- dividuals, is not one which municipal courts are authorized to enforce.
ex-
I have carefully examined these cases, and I am bound to say that in the last case especially the language of the judgment is very compre hensive. But, on the bust consideration that I can give to them, I have come to the coaclusion that these cases are distinguishable from the case now before the Court. In the cases cited an attempt was made to enforce an obligation alleged to grow directly out of the act of State or to obtain redress for a wrong alleged to be involved directly in such act. And the proceed- ings in those cases were taken by private per- seus against the sovereign committing the act of State. But in the present case the subject- matter of the suit is not connected directly but only indirectly with the act of State, and the proceedings are by two private persons against. another private person. It is alleged by the plaintiffs that a private right has been created in their favour by the Crown and that the de- fendant has invaded that right, to which it is answered by the defendant that the Crown kad no power to create the right in question to his prejudice. It appears to me that in such a ease it is competent for a municipal court to inquire into and determine the question whether the sovereign had the power to create the right that is sought to be enforced, even although such inquiry may involve an amination and interpretation of a convention with another sovereign. I think perhaps also that a distinction may be drawn between the acts of State in the cases cited and that in the i present case. In those cases there was andexa- tion pure and simple and the Crown assumed complete sovereignty of the territories annexed; in the present case there is only a lease for a term of years and the Crown has only a limited or qualified sovereignty in the leased district. The Convention is its document of title to the district, and the lands in the district are held subject to that title. For these reasons I am of opinion that the Court is not debarred from entertaining the objection taken by the defen- dant to the title of the plaintiffs and founded on the Convention, and I therefore proceed to consider the terms and effect of the Convention, so far as it bears on this matter now in litigation. The Convention was executed by representa- tives of Her Majesty the Queen and His Ma- jesty the Emperor of China, and was to take effect from the 1st July, 1898. The preamble and the first clause read as follows" Whereas it has for many years past been recognized that an extension of Hongkong territory is necessary for the proper defence and protec tion of the Colony: It has now been agreed between the Governments of Great Britain and China that the limits of British ter- ritory shall be enlarged under lease to the extent indicated generally on the annexed map. The term of this lease shall by 99 years." Then follow clauses containing stipulations of various kinds, for the most past directed to the protection or reservation of certain rights of Chinese officials and people. And the fifth clause is in the following terms:-"It is further understood that there will be no expropriation or expulsion of the inhabitants of the district included within the extension, and that if land is required for public offices, fortifications, or like official purposes, it shall be bought at a fair price."
What, then, is the meaning of this clause! Has it the effect, as contended for by the de- fendant, of limiting or controlling the power and discretion of the Crown in relation to the rights of property of the inhabitants of the leased district? Let us see what is the exact
meaning of "expropriation." The word is de fined as the act of dispostessing an owner, either wholly or to a limited extent, of his pro- perty or proprietary rights." It is clear that the intention of the Chinese Clovernment, in causing such a stipulation to be embodied in the Convention, was to ensure that their subjects in the territory to be handed over to Great Britain should be secured in the enjoyment, free from deprivation or interference by any person, of their rights of property and of residence in the territory. The power of ex- propriation was to be limited to the sole case of land required for public purposes, it being pro- vided that land so required should be bought or at a fair price." In the present instance I think that the granting to the plaintiffs of an exclusive right to the use and possession of the submarino area comprised in Lautao Marine Lot No. 2 amounted to an expropriation of the defendant in respect of his right of taking and appropriating coral and shells from that area. And when the plaintiffs' title is challenged on this ground, I think the answer must be that the Crown had no power to confer such title.
As to the general right of the Crown to make a lease or grant of land covered by the sea with- in the territorial lisuite, in Hall's Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Bean, at p. 6, it is said: The title of the King of Eng- land to the land er soil aquâ maris cooperta is similar to his title to all the terra firma in his dominions, as the first and original proprietor and lord paramount.
The ferra
· Area of England has become, almost entirely. the property (by grant and tenure) of the sub. ject. Ent the terra aquá maris cooperte still remains to the King in wide and barren owner- ship. Some rare and antique instances may indeed be found of actual grants, by Kings of England, of certain portions of land under the sea, ie, of both sea and land, to a certain extent. These grants have been made in such places where some creek or bay has afforded the means of exclusivo possession." And the author pro- ceeds to quote a text writer who says it is very disputable whether such grants can he effectively made. From all which it would seen. that the right of waking each grants,assumi- ing it to exist, is in abeyance in modern times. In The Encyclopaedia of the Laws of Eng. land, s.r. Prerogative," it is said: Even so there remain in the books & large number of prerogative powers, which, though never formal- ly repealed, are now never exercised. Laws in England are not zhrogated by desuetude, but the revival of disused prerogatives would be re- ! garded with great jealousy." And this leads que to say that when a question of right is raised in a court of law, that question must be determin- ad with reference to legal considerations alone, and it determination connot be influenced or affected by any political considerations which may be involved in the case. But, having re- gard to the special and antenal circumstances of this case. I may perhaps be excused for dom ing sibution to two official expressions of opinion which soen! to have some bear- ing on the matter in band. On the Sth! October, 1898, Mr. Stewart 7ockbart. Colonial Secretary of the Colony, neting as Specia! Com- missioner for that purpose, made to the Colonial Office an elaborate Report on the Extension of the Colony of Hongkong." The concluding paragraph of that report is in the following terms: In conclusion, it may, I trust, be guth- ered from the account of the new territory that it will form a valuable extension of Hongkong. It is favourably situated,, has good harbours with safe anchorages, possesses a rich soil, and is inhabited by an industrious, bordy, and frugal race. Under Chinese rule enterprise has been at a discount, and progress has been at stand.
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