CHAP. V] TREATY RELATIONS 1103
Quite apart from this obligation, which exists whether
legislation is passed or not, is the question whether the mere
making of a treaty can alter the rights and obligations of
British subjects. It appears clear in theory that the Crown
can cede territory, and thus change the allegiance and the
legal rights of its subjects ; 1 but if it.does not take this step
it appears equally clear that the mere making of a treaty
is inadequate to create any new legal rights or duties under
municipal law. There is no precisely definite case appearing
on the matter, but for all practical purposes the action of
the Government in connexion with the case of Baird v.
Walker * may be regarded as deciding the matter. In that
case Sir Baldwin Walker, under the authority of a modus
vivendi with the French Republic,concluded by Her Majesty’s
Government, took steps which involved interference with
the property of Mr. Baird on the Treaty Shore of Newfound-
land. Mr. Baird brought an action in the Newfoundland
Court against Sir Baldwin Walker, whose defence was that
his act was an act of state into which the Colonial Court had
no power of inquiry. The Colonial Court? declined to accept
this defence as adequate, and the matter then went on
appeal to the Privy Council. The Judicial Committee
decided that the decision of the Colonial Court was correct.
They expressly disclaimed any intention of passing judge-
ment as to whether the treaty was or was not sufficient
justification for the action of Sir Baldwin Walker. What
they did decide was, that if the treaty was set up as the
justification for his action, it was formally to be pleaded
in defence, and that it was no answer to Mr. Baird’s claim
to say that the act complained of, which was prima facie
a breach of Mr. Baird’s legal rights, was an act of state. It
* See Forsyth, Cases and Opinions on Constitutional Law, pp. 182-6;
the Heligoland debate, 1890, Hansard, ccexlvii, 764; 1 App. Cas. 352.
* [1892] A. C. 491. Cf. Damodhar Gordhan v. Deoram Kanji, 1 App. Cas.
352; Parlement Belge, 4 P. D. 129; 5 P. D. 197. Cases like in re
Californian Fig Syrup Company's Trade Mark, 40 Ch. D, 620, show that
a treaty cannot overrule a statute, but leaves the position as regards
the common law unaffected. Cf, in re Carter Medicine Company's Trade
Mark, W. N. [1892] 106. 2 1897 Newfoundland Decisions, 490.
no
