July 7, 1900.]
me, therefore, on consideration of the whole of the facts and documents in this case, that we are bound, in accordance with one of the best established principles of law, to presume a legal origin, if one were possible, in favour of a long and uninterrupted actual enjoyment of a right, and that our judgment in this case should be for the defendant."
manner in which it is shown to have been
CHINA OVERLAND TRADE REPORT.
eign act of State which could not be reviewed by a municipal court.
The last of the three cases and the one most relied upon by Mr. Sharp is Cook v. Sprigg, [1899] A. C. 572. There the paramount chief of Pondoland had granted certain concesions for railway and other rights to the appellants. After the concessions had been granted, Pon- doland was annexed to and became part of the British dominions, and the appellants sought to enforce against the Crown the privileges and rights conferred by the concessions. But it was held by the Judicial Committee, affirming the judgment of the Supreme Court of the Cape of Good Hope and following Secretary of State in Council of India v. Kamachee Boye Sahaba supra, that they could not do this, on the 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.
喊膳
6,
and discretion of the Crown in relation rights of property of the inhabitants leased district? Let us see what is the exac meaning of "expropriation." The word is de- fined as "the act of dispossessing 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 Government, in **Mr. Blade for the defendant relied much on
causing such a stipulation to be embodied in a similar dictum of Lord Selborne, L.C., in
the Convention, was to ensure that their subjects Goodman v. Mayor of Saltash supra. In that
in the territory to be handed over to Great case in the course of his judgment Lord
Britain should be secured in the enjoyment, Selborne said, at p. 639 of the report:
free from deprivation or interference by any "The special case, no doubt, does not find
person, of their rights of property and of that such fishery was of right' (which
residence in the territory. The power of ex- would have been to prejudge the question of
propriation was to be limited to the sole case of law left for the opinion of the Court) but only
land required for public purposes, it being pro- that it was under a claim of right. But an
vided that land so required should be bought or open and uninterrupted enjoyment from time
at a fair price.In the present instance I immemorial under a claim of right seems to
think that the granting to the plaintiffs of an me to be all that is necessary for a presumption
exclusive right to the use and possession of the that it had such an origin as would establish the
submarine area comprised in Lantao Marine Lot right, if a lawful origin was reasonably possible
I have carefully examined these cases, and I No. 2 amounted to an expropriation of the in law. That in such a case a lawful origin
am bound to say that in the last case especially defendant in respect of his right of taking and ought to be presumed, if it is reasonably the language of the judgment is very compre-appropriating coral and shells from that ares. possible, is established by many authorities."
hensive. But, on the best consideration that I And when the plaintiffs' title is challenged on. Assuming then that these or similar general can give to them, I have come to the conclusion this ground, I think the answer must be that principles can properly be applied to the
that these cases are distinguishable from the the Crown had no power to confer such title. point now under consideration, I am prepared
case now before the Court. In the cases cited to hold that it is reasonably possible that the alleged to grow directly ont of the act of State an attempt was made to enforce an obligation right claimed by the defendant may have had a lawful origin, and that it should be recognized
or to obtain redress for a wrong allege:l to be as valid and subsisting at the date of the Con-involved directly in such act. And the proceed. vention and also of the agreement. I am fur-ings in those cases were taken by private per ther of opinion that this right, exercised in the sons 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 another private person. It is alleged by the proceedings are by two private persons against 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 had no power to create the right in question to his prejudice. It appears to me that in such a case it is competent for a municipal court to inquire into and determine the question whether right that is sought to be enforced, even the sovereign had the power to create the although such inquiry may involve an amination and interpretation of a convention that a distinction may be drawn between the with another sovereign. I think perhaps also
acts of State in the cases cited and that in the tion pure and simple and the Crown assumed present case.
complete sovereignty of the territories annexed, term of years and the Crown has only a limited in the present case there is only a lease for a
The Convention is its document of title to the or qualified sovereignty in the leased district. 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. tives of Her Majesty the Queen and His Ma- The Convention was executed by representa-
seem to have some bear- effect from the 1st July, 1898. The preamble October, 1898, Mr. Stewart Lockhart, Colonial jesty the Emperor of China, and was to take ing
matter in hand. On the 8th and the first clause read as follows:-"Whereas Secretary of the Colony, acting as Special Com- that an extension of Hongkong territory is Office an elaborate "Report on the Extension of it has for many years past been recognized missioner for that purpose, made to the Colonial - necessary for the proper defence and protec- the Colony of Hongkong." The concluding-- tion of the Colony: It has agreed between the Governments of Great terms" In conclusion, it may, I trust, be gath now been paragraph of that report is in the following
ritory shall be enlarged under lease to the extent it will form a valueable extension of Hongkong.✨ Britain and China that the limits of British ter ered from the account of the new territory that indicated generally on the annexed map. The term of this lease shall by 99 years.'
It is favourably situated, has good harbours Then follow clauses containing stipulations of is inhabited by an industrious, hardy, and frugal with safe anchorages, possesses a rich soil, and various kinds, for the most past directed to the protection or reservation of certain rights of at a discount, and progress has been at a stand- race. Under Chinese rule enterprise has been Chinese officials and people. And the fifth still for centuries. The San On district of to- clause is in the following terms:-"It is further day must be much the same as it was four or understood that there will be no expropriation five hundred years ago. But when British rule or expulsion of the inhabitants of the district is established, and the people realise that justies is required for public offices, fortifications, or avocations in peace and freedom from illicit like official purposes, it shall be bought at a tortions, and that there is no unnecessary fair price.”
ference with their manners and custor What, then, is the meaning of this clause? spirit of enterprise will soon - Has it the effect, as contended for by the decapitalists will be attracted fendant, of limiting or controlling the power their capital is not liable to offcial
exercised by the defendant, may properly be described as a valuable or quasi-proprietary right, and that the defendant may also properly be described as one of the owners of the right.
In this state of facts the agreement was executed, and it is clear that it had or purported to have the effect of interfering with and indeed of nullifying the right of the defendant. It is contended by the defendant that the agreement was executed by the Governor contrary to the stipulations of the Convention, and that it was therefore ultra vires and cannot operate to deprive the defendant of his right. But to this it was answered by Mr. Sharp, in the course of his able argument for the plantiffs, that the making of the Convention was an act of State and that it is not competent to the Court to inquire into any matter connected with it. Three cases were cited in support of this position. In Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moore P.C.C. 22, the facts were that the Rajah of Tanjore, a native independent sovereign, but in virtue of treaties under the protection of the East India Company, having died without leav- ing issue male, the Company, in the exercise of their sovereign power and in trust for the British Government, seized the Raj of Tanjore, and the whole of the property of the deceased Rajah, as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government. A suit was instituted by the respondent claiming, for herself as the eldest widow of the deceased Rajah and for the first married among his sur viving widows, his private estate and effects. The respondent obtained a decree in the Supreme Court at Madras, but on appeal this decree was reversed by the Judicial Committee, which held that the seizure of the deceased Rajah's property was an act of State by a sovereign power and that the Supreme Court had no jurisdiction in respect of it. The general principle of law on which this decision was founded was that "the transactions of independent sovereign States between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make."
ex-
In those cases there was annexa-
As to the general right of the Crown to make in the territorial limits, in Hall's Essay on the a lease or grant of land covered by the sea with- Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, at p. it is said: The title of the King of Eng land to the land or soil agua 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 terra the property (by grant and tenure) of the sub- firma of England has become, almost entirely,
ject. But the terra aquá maris cooperta 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, i.e. 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 exclusive possession.' And the author pro- ceeds to quote a text writer who says it is effectively made. From all which it would seem very disputable whether such grants can be
ing it to exist, is in abeyance in modern times. that the right of making such grants,assum. In The Encyclopedia of the Laws of Eng there remain in the books a large number of land, 8.v. "Prerogative," it is said: Even so prerogative powers, which, though never formal- ly repealed, are now never exercised. Laws in England are.not abrogated by desuetude, but garded with great jealousy," And this leads the revival of disused prerogatives would be re-
me to say that when a question of right is raised ed with reference to legal considerations alone, in a court of law, that question must be determin....... and its determination connot be influenced or affected by any political considerations which may be involved in the case. But, having reži gard to the special and unusual circumstances of this case, I may perhaps be excused for draw- opinion which ing attention to two official expressions✨✨of
on the
This decision was followed by Malins, V.C., Secretary of State for India in Council L. R. 19 Eq. 509. In that case certain
editors of the King of Oudh, whose kingdom included within the extension, and that if land prevails, that they are allowed to pursue their
had been annered by the East India Company as trustees for the British Government, sued the Secretary of State for India claiming to be entitled to a charge upon the revenue of the territory of Oudh. But it was held by the Vice-Chancellor that the annexation was a sover-
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