R
PUBLIC RECORD OFFICE
Reference :-
44 C.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRABH-NOT TO
15 PUBLIC RECORD OFFICE, LONDON
2
1877, when, being insolvent and threatened with destruction by native tribes, and it being understood that the inhabitants were ready to come under British rule, it was, by the Proclamation of Sir T. Shepstone, dated the 12th April, 1877, declared to be British territory, and brought under the Government of the Crown as a dependency acquired by cession. That in December 1880 the Boers rebelled. That peace was made in 1881, and that in October of that year the Convention of Pretoria was signed.
·
That the principal operative portion of that instrument, which had been incor- reetly styled its preamble (being, in fact, the permanent and only grant of the limited independence conceded by the Queen) guaranteed, on behalf of Her Majesty that complete self-government, subject to the suzerainty of Her Majesty, her heirs and successors, will be accorded to the inhabitants of the Transvaal territory on the terms and conditions, and subject to the reservations and limitations" which were appended in a number of Articles.
That on the 27th February, 1884, after a Conference with delegates from the Transvaal, a new Convention, known as the Convention of London, containing fresh Articles in substitution for the Articles of the Convention of Pretoria, was granted by the Queen. That in this Convention the chief operative portion of the former Convention, granting self-government subject to the suzerainty, was neither re-enacted nor cancelled, the Articles only being revised. That it was not re-enacted because it was a permanent instrument-the "Charter" of the liberties of the South African Republic; that it was not cancelled because without it the Transvaal would be a Crown Colony as it was before the Convention of 1881 was granted. That, there- fore, in transmitting to Sir II. Robinson (on the 11th March, 1881), the corre spondence relating to the Convention of London, the Earl of Derby had spoken of the South African Republic as being “a country having self-government as conceded under the Convention of Pretoria; "and it was accordingly contended that both the self- government and the suzerainty existed together up to the commencement of the present hostilities. That this position was maintained in the despatch addressed by you to the High Commissioner for South Afrien on the 16th October, 1897, which was approved by us in our Report dated the 30th September, 1897.*
That we were requested to advise--
1. Whether, in view of the fact that though the Orange Free State was up to the commencement of the present war an independent State, its independence having been granted by the British Crown, the action of the Goverumbut of the Orange Free State in taking part with the South African Republic in commencing the present war had had the effect of putting an end to the instrument constituting that independence, leaving it only under the paramount authority of the Crown.
2. Whether the South African Republic, which up to the date of the commence- ment of the present stilities was a State enjoying the right of internal self- government subject to the Queen's suzerainty, had, by its action in declaring war against Her Majesty's Government, put an end to the Conventions of 1881 and 1884, and, if so, what was its actual political status.
3. Whether the Queen's claim to be paramount in any cause whatever tending to interrupt the general peace and harmony of South Africa was still in full force, or "lund been either wholly or in part invalidated either by any of the acts or instruments to which our attention had been directed or otherwise.
That, in the second place, you would be obliged by our informing you what would be the position of the Orange Free State and the South African Republic respectively when, after conquest, or unconditional capitulation, their territories were occupied by the Queen's forces. That having regard to the history of the previous and present. relations to the Crown, would those two States, which had now combined together to levy war upon the Queen, stand on the same footing in regard to the treatment to be accorded to them in order to re-establish within them the Queen's sovereignty and Government? and would one or two Proclamations of the Queen's sovereignty he required, followed by an Order or Orders in Council giving powers of legislation and administration?
That Mr. Lucas was further to request information as to the nationality of the burghers or citizens of these two territories after their conquest and the Proclamation of the Queen's sovereignty. Would they and their children, as well as any foreigners resident in them who did not claim to be nationals of some civilized foreign Power, become ipso facto British subjects ?
No. 156 in Vol. V.
3
That, as bearing upon the questions raised in his letter, or some of them, Mr. Lucas was to inclose, for our consideration, copies of two notes by the Lord Chan- cellor, the Earl of Selborne, dated the 6th May, 1881, and the 18th July, 1981, and also copies of Opinions of the Law Officers dated the 12th May, 1877; 25th September, 1977; 3rd July, 1894; and 30th September, 1897.*
That you would be further obliged by any observations which it might occur to us to make on the constitutional situation generally arising out of the state of war.
We have taken the questions submitted to us into our consideration, and, in obedience to your commands, have the honour to
REPORT-
1. That, in our opinion, the action of the Orange Free State in taking part in the present war has not, ipso facto, had the effect of putting an end to the instrument constituting its independence. The arrangement made by that instrument set up a state of things intended to be permanent by an act done once for all. Instruments of this kind are not, ipso facto, abrogated by war. The only way in which
the independence of the Orange Free State can be put an end to is by conquest.
2. The same considerations, in our opinion, apply to the case of the South African Republic. The South African Republic enjoyed the right of self-govern- ment, subject to the conditions contained first in the Convention of 1881, and ́afterwards in the Convention of 1881. An arrangement of this kind cannot be regarded as belonging to that class of Treaties which are abrogated by the mere fact of war. The existence of suzerainty would not, in our opinion, make any difference in this respect, except iu so far as the conduct of the South African Republic in declaring war against the Suzerain State might be regarded as an additional reason for annexation in the event of conquest.
3. The Queen's claim to be paramount, in the sense in which the term is used in
the Proclamation of 1818, was, we think, put an end to by the Proclamation of the 30th January, 1851, so far as the Orange Free State is concerned.
As regards the South African Republic, the paraihountey of Her Majesty depends on the terms of the Conventions of 1581 and 1881.
In dealing with the question of paramountey, we have treated the subject from the legal point of view, without entering into the general political question of the right of the predominant Power to interfere in any matter affecting the general peace and harmony of South Africa.
4. The two Republics will, after conquest or unconditional capitulation, stand on the same footing with regard to the proceedings necessary to be taken to re- establish within them the Queen's sovereignty and government. If it is determined to annex them to the British dominions, this may be effected by one or by two Proclamations as may be deemed most convenient from the administrative point of view.
After conquest and the Proclamation of the Queen's sovereignty, the burghesa or citizens of these two territories, as well as any foreigners resident in them who do not claim to be nationals of some civilized foreign Power, and their children, will become British subjects. This is one of the effects of acquisition of territory by conquest.
We have, &c.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
* Nos. 251A. 262a, 135, and 151 in Vul, lif, and Nos, 67 and 156 in Vol. V.