inst the crown, represented
by the government of Cape Colony. It was made by persons holding a
concession of certain rights in eastern Pondoland from a native chief.
Before the grantees had taken up their grant by acts of possession,
Pondoland was annexed to Cape Colony. The colonial government refused to
recognize the grant on different grounds, the chief of them being that
the concession conferred no legal rights before the annexation and
therefore could confer none afterwards, a sufficiently good ground in
itself. The judicial committee, however, rested its decision chiefly on
the allegation that the acquisition of the territory was an act of state
and that "no municipal court had authority to enforce such an
obligation" as the duty of the new government to respect existing
titles. "It is no answer," said Lord Halsbury, "to say that by the
ordinary principles of international law 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 meant by such a
proposition is that according to the well-understood 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 potentate and the government
to which the cession is made that private property shall be respected,
that is only a bargain which can be enforced by sovereign against
sovereign in the ordinary course of diplomatic pressure." In an
editorial note on this case the _Law Quarterly Review_ of Jan. 1900 (p.
1), dissenting from the view of the judicial committee that "no
municipal tribunal has authority to enforce such an obligation," the
writer observes that "we can read this only as meant to lay down that,
on the annexation of territory even by peaceable cession, there is a
total abeyance of justice until the will of the annexing power is
expressly made known; and that, although the will of that power is
commonly to respect existing private rights, there is no rule or
presumption to that effect of which any court must or indeed can take
notice." So construed the doctrine is not only contrary to international
law, but according to so authoritative an exponent of the common law as
Sir F. Pollock, there is no warran