CO885-(11-13) — Page 529

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PUBLIC RECORD OFFICE

CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

No. 251 A.

(SOUTH AFRICA.—TRANSVAAL.)

NOTE BY LORD CHANCELLOR.

1. By the Sand River Convention (16th January 1853), the Commissionere representing the Queen “guaranteed in the fullest manner, on the part of the British Government, to the emigrant farmers beyond the Vaal River, the right to manage their own affairs, and to govern themselves without any interference on the part of Her Majesty the Queen's Government, in the territory beyond, to the north of the Vaal River." (Orange River correspondence, printed April 10th, 1854, p. 86.)

2. In 1877, Sir Theophilus Shepstone, acting under powers conferred by a Commission from Her Majesty, took possession of the territory of the Transvaal Republic, and declared it to be annexed to, and to have become part of, Her Majesty's dominions. This step was "taken without, on the one hand, any act of cession by the President or the Volksraad (the Legislature of the Republic), though at the instance of a large number of the inhabitants; and without, on the other hand, any exertion of force; though a corps of British soldiers had been encamped on the frontier of the Republic,' and (after the Proclamation) marched into it. and Sir H. Giffard), advised-quite correctly in my opinion,-that the territory lately The late Law Officers (Sir John Holker under the Government of the Transvaal Republic was to be regarded as conquered or ceded territory, and that Her Majesty had the samne power, by Order in Council, of legislating for the inhabitants of the territory, as she possessed in cases of conquered or ceded Colonies. (See their Report of 12 May 1877.)"

3. Whatever legislation has since taken place for the territory in question has been by Order in Council, revocable at the pleasure of the Crown. The Transvaal territory is not mentioned in, or in any way directly, expressly, or necessarily legislated for by the South Africa Act, 1877. The events, which (if they had happened) might have brought it within the scope of that Act, never happened in fact.

4. It is, in my opinion, within the legislative power of the Crown, by Order in Council and Proclamation, to give to the inhabitants of this territory a free constitution, with complete powers of self-government (including the power to elect their own governor), under the "suzerainty of the Crown: and, by such a constitution, fully to carry out the terms of peace agreed upon between Sir Evelyn Wood and the Boer -leaders. The term "Suzerainty" denotes not the total relinquishment and abdication, but only some restriction of the powers of sovereignty; and, as long as there is

suzerainty" there must be subjection, though in a qualified sense.

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5. This case, therefore, falls far short of what was done with respect to the Orange River territory in 1853, and the relinquishment of British sovereignty which then took place, and which has since been acquiesced in without objection by Parliament (and must now be assumed to have been valid and effectual), is a precedent, a fortiori, for whatever may now be done by the Crown. That relinquishment was carried into effect by Order in Council and Proclamation, without any Act of Parliament; it was done with the full knowledge of Parliament, and notwithstanding protests and remonstrances (by those who did not wish their subjection to the British Crown to cease) as loud and vehement as those which we now hear. Considering the local, historical, and other relations, between the inhabitants of the Orange Free State and those of the Transvaal territory, it appears to me to be impossible to dispute the power of the Crown to carry into effect, by Order in Council and Proclamation, the arrangements intended without also disputing the title of the Orange Free State to its present autonomy and independence.

6. With respect to the opinions which were expressed at the time of the relinquish- ment of the Orange territory, those of the then Law Officers, adopted and acted upon by the Crown with the acquiescence of Parliament and of the nation, must now be taken to have been correct, whoever else may have then aissented from them. It is true that an (in writing) adverse to the relinquishment was given at that time by the late Mr. Justice opinion Wills and myself:-not on the ground, that the Crown could not, under any circum- stances, cede any British territory without an Act of Parliament; nor (as far as I now remember) on the ground of a distinction between a cession in time of war, and one iu

• No. 135 in this Vol.

4298-25-12,99 Wt 439 D&8

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