L.J.P.C. 181 that if the act complained of was done to him in British territory he has the same right to sue as a British subject and the defence of "act of State" is, in that case, equally inap plicable. But the term is also used in another and less questionable sense. It will be entertained by English Courts where the acts in respect of which an action is brought are "transactions of inde pendent States between each other," such as those arising out of the execution, or non-execution, of a treaty, the succession of the Crown to a foreign territory by cession or conquest, and the like. For example, a concession granted by the chief of native territory is not enforceable whether by Petition of Right or otherwise in British Courts by the grantees against the Crown, on succeeding to the territory by annexation (Cook v. Sprigg [1897] A.C. 572). So too the contractual obligations incurred, whether towards a British subject or an alien, by a foreign state are not binding on the Crown, after its conquest and annexation by the Crown, unless the Crown expressly elects to adopt them (West Rand Gold Mining Co. v. the King 74 L.J.K.B. 753) ; for annexation is an "act of State" of an international character. In such cases the title of the subject has originated with a foreign Government, not with the Crown. If the contract or concession in question had originally been made by the Crown itself, it would be another matter. Even in the case of a British Protectorate the Crown may plead "act of State" as a defence to claims in respect of expropriation of native territory because the Crown in such a case is acting in territory which is not British (see the recent case of Sobhuza II. v. Miller [1926] A.C. 518). So too claims arising un
der a treaty are not enforceable against the Crown unless and until the Treaty, which is an international act, becomes part of English municipal law by being incorporated in a statute. The negotiation of the Treaty is an "act of State" into which, and its meaning, the Courts cannot enquire. In this sense the declaration of war and the making of peace by the Sovereign is also an act of State. As Lord Somer put it in Johnstone v. Pedlar (Op. cit. at p. 794) "Municipal Courts do not take it upon themselves to review the dealings of State with State and Sovereign with Sovereign." On the other hand the mere fact that some act, wrongful per se in English law, was done in execution, or alleged execution, of a treaty made by the Crown against the person or property of a British subject is a defence that would never be entertained by the courts in action against a servant of the Crown, for, while a treaty cannot confer new rights, enforceable at law, upon a British subject, neither can it deprive him of any of his existing rights under English law. This was specifically laid down in Walker v. Baird [1892] A C. 491 where in an action for trespass an officer of the Crown put in the plea of "Act of State" in that he was acting in the execution of a Convention with the French Government.