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PUBLIC RECORD
OFFICE
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C.O.885
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13 PUBLIC RECORD OFFICE, LONDON
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No. 142.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
Royal Courts of Justice, We were honoured with your Lordship's commands, signified in Sir Robert
March 14, 1889. Herbert's letter of the 26th ultimo, stating that he was directed by your Lordship to acknowledge the receipt of our Report of the 31st January on the Cape Act for giving effect to the proposed South African Customs Union,
That since our Report was received, the Board of Trade had been consulted on the subject, and that Sir Robert Herbert was to enclose a copy of a confidential memo- randum drawn up in that Department setting forth the reasons (which were not brought before us when our opinion was previously invited on the question) for holding_that most-favoured-nation clauses in commercial treaties did not prevent Customs Union arrangements.
That for convenience of reference other memoranda referred to in the Board of Trade memorandum were annexed, viz., a set of memoranda drawn up in 1872 in reference to the proposed commercial reciprocity system between the Australian Colonies, which was subsequently authorised by the Imperial Act 36 Victoria, chapter 22, and a memo- randum drawn up by Mr. R. Giffen of the Board of Trade in December 1887 question of commercial union between Canada and the United States.
upon the
That your Lordship, however, desired Sir Robert Herbert to point out that in referring to those two last-mentioned memoranda, it should be borne in mind that the case with reference to which they were written differed essentially from the present case, and that it would be seen that Mr. Giffen in his memorandum touched only incidentally in paragraph 20 upon the question as affecting treaty rights.
That as regarded the memoranda of 1872, Sir Robert Herbert was to call our special attention to the opinion expressed by Sir J. H. Bergne, and his reference to the Oldenburg Treaty at page 5.
That Sir Robert Herbert was also to enclose a copy of a memorandum drawn up in the Colonial Office in October last advocating the confirmation of the Cape Act, and that, although your Lordship did not wish that document to be accepted as expressing more than the individual opinion of the writer, your Lordship thought it important as showing that there were precedents, both in the action of this and other countries, for holding that most-favoured-nation clauses were not to be literally interpreted where border trade was concerned, or where some arrangement in the nature of neighbourly reciprocity or commercial union was in question.
a common
That with regard to that portion of our Report of the 31st ultimo in which we referred to the case of frontier regulations between "two states, having boundary, respecting the interchange of local produce," Sir Robert Herbert was to explain that the Cape Government had lately expressed its readiness to amend the Customs Act by confining the right of free or favoured importation in the case of foreign states, members of the union, to importation overland.
That the Cape and the Orange Free State, as we were aware, had a common inland frontier, and that the Orange Free State had no access to the sea. circumstances Sir Robert Herbert was to request that we would again consider the That in those subject, and inform your Lordship (1) whether, after considering the arguments and precedents contained in the memorandum of the Board of Trade, we were of opinion that the view taken by that Department that most-favoured-nation clauses did not prevent an arrangement in the nature of a Customs Union between neighbouring countries, and (2) whether a Customs Union limited as now proposed by the Cape Government in its operation, in regard to Foreign States joining the union, to importations overland, might be brought into operation.
That the Cape Customs Act, and other material documents which were previously before us, were enclosed for convenience of reference.
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