PUBLIC RECORD OFFICE
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C.O.8
Reference :-
885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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We may add that we are unable to agree with the view that such a claim could have properly been put forward under the Convention of 1881, if its Articles still remained in force.
23. We are unable to see any ground upon which Her Majesty's Government are entitled to make any representation to the Government of the South African Republic on behalf of Mr. Kotzé.
4. We think that Mr. Kotzé should be informed that Her Majesty's Governfuent greatly regret that they are unable to intervene on his behalf.
Although we cannot advise that Her Majesty's Government can insist on redress to Mr. Kotzé, we, of course, retain the view expressed in our Report of April, 1897, that Her Majesty's Governinent would be entitled to remonstrate against arbitrary changes in the constitution of the High Court subjecting the Judges to the control of the Executive, on the ground that British subjects are entitled under Article XIV., while residing and carrying on business in the Transvaal, to the protection of the law.
We have, &c..
The Right Honourable J. Chamberlain, M.P.. &c..
&c.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
16735.
SIR,
No. 181.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
July 13, 1898.
WE were honoured with your commands signified in Mr. F. Graham's letter of the 24th ultimo, stating that he was directed by you to transmit to us a copy of a despatch from Her Majesty's Agent at Pretoria to the High Commissioner for South Africa, with reference to the question of the treatment of coloured persons in the South African Republic.
That it was argued that the Government of the South Africa Republic was not entitled to subject Cape coloured persons (ie., persons of mixed white and native blood) to the same restrictions as were imposed upon the descendants of the pure aboriginal races of South Africa, on the ground that they could not be included within the meaning of the term "* natives as used in Article XIV. of the London Convention of 1884.
That a copy of the opinion of Mr. Searle, the legal adviser to the High Commissioner, referred to by Mr. Conyngham Greene, was enclosed, and also a copy of a subsequent opinion given by him upon Mr. Greene's despatch.
That the views of Sir A. Milner on the question were to be found in the last paragraph of a despatch to Her Majesty's Agent at Pretoria, which was also enclosed.
That Mr. Graham was also to transmit a copy of the Parliamentary Paper, C. 7,911, containing correspondence referred to by Mr. Searle, and a copy of the Transvaal Law No. 6 of 1880, passed during the British occupation, in Section 10 of which would be found a definition of the word "Native." That in the Dutch version of that Law the word "native" was rendered “Inboorling of " (that is "or") "naturelle." That the view taken by the Government of the South African Republic upon the question was set forth in a Memorandum of Dr. Leyds, and in a despatch from Mr. Conyngham Greene dated April 28th, copies of which were enclosed.
That you did not propose to trouble us with regard to the questions of the treatment of Indians and other coloured British Subjects who were not natives of South Africa. as you had no doubt that they were entitled to the benefits provided in Article XIV. of the London Convention for persons other than natives; but that Mr. Graham was to request that we would favour you with our opinion whether the action of the Government of the South African Republic in subjecting Cape coloured persons to restrictions not imposed upon persons other than natives constituted a breach of Article XIV. of the Convention.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
THAT in our opinion it is quite clear that the expression "natives" (inboorlingen) in Article XIV. of the Convention of 1884 applies only to the native aboriginal races of South Africa, and does not include half-castes.
This appears to us to be the natural meaning of the word itself, and to be borne out by the use of the same expression in Articles XI., XVIII, and XIX. of the Convention of 1884. The terms of the Convention of 1881 in Articles II., III., XIII., XIV. XVIII, XX.. XXI., XXII, and XXXI. appear to us to point to the same conclusion as to the meaning of the word. The expression is not, as in the IXth Article of the Grondwet of 1879. coloured persons (gekleurden), and we cannot see any ground for the contention of the Transvaal Government that a coloured person is necessarily "a native" within the meaning of Article XIV.
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In the despatch of 28 January 1885, Sir H. Robinson states that the word **inboorlingen" is always understood to mean "the coloured aborigines of the country," and this shows the sense in which he, a few lines further down, spoke of ** the coloured population of South Africa“ in the passage eited by Mr. Searle, Of course it cannot be
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