"Something had been said of the obedience due to the letter of these Instructions. Undoubtedly the letter of the Instructions was a sufficient warrant for His Majesty's officers for detaining ships, which appeared to offend against it; but, as to the doctrine that courts of prize were bound by illegal instructions, he had already, in a former case (that of The Erin), treated it as a groundless charge by an American writer against English courts. In this case (which had hitherto been, and, he trusted, ever would continue, imaginary), of such illegal instructions, he was convinced that English courts of admiralty would as much assert their independence of arbitrary mandates as English courts of common law. That happily no judge had ever been called upon to determine, and no writer had distinctly put the case of, such a repugnance. He had, therefore, no direct and positive authority; but he never could hesitate in asserting, that, in such an imaginary case, it would be the duty of a judge to disregard the Instructions, and to sult only that universal law, to which all civilized princes and states acknowledge themselves to be subject, and over which, none of them can claim any authority." " WEST RAND CENTRAL GOLD MINING CO., Limited, v. THE KING. (Court of King's Bench, 1905. L. R. [1905] 2 K. B. 391.) Petition of right by the West Rand Central Gold Mining Company, Limited.R * * * 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 2 This decision of Sir James Mackintosh is quoted with approval by Sir Robert Phillimore, Commentaries upon International Law (3d Ed., 1885) 655. It has had the good fortune to be confirmed by the highest judicial authorities of Great Britain. Thus, Lord Parker, speaking for the Judicial Committee of the Privy Council in The Steamship Consul Corfitzon, [1917] L. R., App. Cas. 550, 555, said: "The substantive law administered by the court is international law, which cannot be affected by the municipal legislation of any one state, and its practice and procedure are governed by the municipal law of the state from which it derives its jurisdiction, and cannot be modified by the municipal legislation of any other state." For an elaborate statement of this position see The Zamora, 1916, L. R. [1916] 2 A. C. 77, post, p. 1052. The statement of facts contained in the report is omitted, and only the portion of the opinion of the court dealing with international law is given. For the balance of the opinion, dealing with the liability of the succeeding state, see post, p. 74. in the petition of the circumstances under which, or the right by which, the government of the Transvaal Republic claimed to seize the gold; but it was stated in paragraph 6: "That the 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 that 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 your suppliants, nor did the said government make any payment in respect thereof." The petition then alleged that a state of war commenced at 5 p. m. on October 11, 1899, that the forces of the late queen conquered the Republic, and that by a proclamation of September 1, 1900, the whole of the territories of the Republic were annexed to, and became part of, her majesty's dominions, and that the government of the Republic ceased to exist. The petition then averred that by reason of the conquest and annexation her majesty succeeded to the sovereignty of the Transvaal Republic, and became entitled to its property; and that the obligation which vested in the government was binding upon his present majesty the king. Before dealing with the questions of law which were argued before us, we think it right to say that we must not be taken as acceding to the view that the allegations in the petition disclosed a sufficient ground for relief. The petition appears to us demurrable for the reason that it shews no obligation of a contractual nature on the part of the Transvaal government. For all that appears in the petition the seizure might have been an act of lawless violence. * * * * Lord Robert Cecil argued that all contractual obligations incurred by a conquered state, before war actually breaks out, pass upon annexation to the conqueror, no matter what was their nature, character, origin, or history. His main proposition was divided into three heads: First, that, by international law, the sovereign of a conquering state is liable for the obligations of the conquered; secondly, that international law forms part of the law of England; and, thirdly, that rights and obligations, which were binding upon the conquered state, must be protected and can be enforced by the municipal courts of the conquering state. In support of his first proposition Lord Robert Cecil cited passages from various writers on international law. In regard to this class of authority it is important to remember certain necessary limitations to its value. There is an essential difference, as to certainty and definiteness, between municipal law and a system or body of rules in regard to international conduct, which, so far as it exists at all (and its existence is assumed by the phrase "international law"), rests upon a consensus of civilized states, not expressed in any code or pact, nor possessing, in case of dispute, any authorized or authoritative interpreter, and capable, indeed, of proof, in the absence of some express international agreement, only by evidence of usage to be obtained from the action of nations in similar cases in the course of their history. It is obvious that, in respect of many questions that may arise, there will be room for difference of opinion as to whether such a consensus could be shown to exist. Perhaps it is in regard to the extraterritorial privileges of ambassadors, and in regard to the system of limits as to territorial waters, that it is least open to doubt or question. The views expressed by learned writers on international law have done in the past, and will do in the future, valuable service in helping to create the opinion by which the range of the consensus of civilized nations is enlarged. But in many instances their pronouncements must be regarded rather as the embodiments of their views as to what ought to be, from an ethical standpoint, the conduct of nations inter se, than the enunciation of a rule or practice so universally approved or assented to as to be fairly termed, even in the qualified sense in which that word can be understood in reference to the relations between independent political communities, "law." The reference which these writers not infrequently make to stipulations in particular treaties as acceptable evidence of international law is as little convincing as the attempt, not unknown to our courts, to establish a trade custom which is binding without being stated, by adducing evidence of express stipulations to be found in a number of particular contracts. Before, however, dealing with the specific passages in the writings of jurists upon which the suppliants rely, we desire to consider the proposition, that by international law the conquering country is bound to fulfil the obligations of the conquered, upon principle; and upon principle we think it cannot be sustained. * * The second proposition urged by Lord Robert Cecil, that international law forms part of the law of England, requires a word of explanation and comment. It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized state would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognized, are not in themselves sufficient. They must have received the express sanc tion of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations. We adopt the language used by Lord Russell of Killowen in his address at Saratoga in 1896 on the subject of international law and arbitration: "What, then, is international law? I know no better definition of it than that it is the sum of the rules or usages which civilized states have agreed shall be binding upon them in their dealings with one another." In our judgment, the second proposition for which Lord Robert Cecil contended in his argument before us ought to be treated as correct only if the term "international law" is understood in the sense, and subject to the limitations of application, which we have explained. The authorities which he cited in support of the proposition are entirely in accord with and, indeed, well illustrate our judgment upon this branch of the arguments advanced on behalf of the suppliants; for instance, Barbuit's Case, Cas. t. Tal. 281, Triquet v. Bath, 3 Burr. 1478, and Heathfield v. Chilton, 4 Burr. 2016, are cases in which the courts of law have recognized and have given effect to the privilege of ambassadors as established by international law. But the expressions used by Lord Mansfield when dealing with the particular and recognized rule of international law on this subject, that the law of nations forms part of the law of England, ought not to be construed so as to include as part of the law of England opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her courts. The cases of Wolff v. Oxholm, 6 M. & S. 92, 18 R. R. 313, and Rex v. Keyn, 2 Ex. D. 63, are only illustrations of the same rule-namely, that questions of international law may arise, and may have to be considered in connection with the administration of municipal law. We pass now to consider the third proposition upon which the success of the suppliants in this case must depend-namely, that the claims of the suppliants based upon the alleged principle that the conquering state is bound by the obligations of the conquered can be enforced by petition of right. We are of opinion, for the reasons given, that no right on the part of the suppliants is disclosed by the petition which can be enforced as against his majesty in this or in any municipal court; and we therefore allow the demurrer, with costs. * * * Judgment for the crown. II. AMERICAN CASES THE ANTELOPE. (Supreme Court of the United States, 1825. 10 Wheat. 66, 6 L. Ed. 268.) Appeal from the Circuit Court of Georgia. These cases were allegations filed by the vice consuls of Spain and Portugal, claiming certain Africans as the property of subjects of their nation. A privateer, called the Columbia, sailing under a Venezuelan commission, clandestinely shipped a crew mostly of citizens of the United States in Baltimore in 1819 and proceeded to sea, hoisted a foreign flag and assumed the name of the Arraganta. Off the coast of Africa she captured several Portuguese vessels and a Spanish vessel called the Antelope, from each of which vessels she took off a considerable number of Africans. The two vessels then sailed to the coast of Brazil, where the Arraganta was wrecked and a part of the crew were made prisoners, and some of the Africans were lost. The rest of the crew and the remainder of the Africans were transferred to the Antelope. This vessel later was captured off the coast of the United States by the revenue cutter Dallas, and brought into the port of Savannah for adjudication. The vessel and the Africans were libelled by the Portuguese and Spanish vice consuls. The Africans were also claimed by the United States as having been transported from foreign parts by American citizens, in contravention of the laws of the United States, and as entitled to their freedom by those laws and by the law of nations. The court dismissed the claim of the United States, except as to that portion of the Africans which had been taken from the American vessel. The residue was divided between the Spanish and Portuguese claimants.* Mr. Chief Justice MARSHALL. In prosecuting this appeal, the United States assert no property in themselves. They appear in the character of guardians, or next friends, of these Africans, who are brought, without any act of their own, into the bosom of our country, insist on their right to freedom, and submit their claim to the laws of the land, and to the tribunals of the nation. The consuls of Spain and Portugal, respectively, demand these Africans as slaves, who have, in the regular cause of legitimate commerce, been acquired as property, by the subjects of their respective sovereigns, and claim their restitution under the laws of the United States. * * * In the United States, different opinions have been entertained in the different circuits and districts; and the subject is now, for the A statement of the facts of the case has been substituted for that of the report. |