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PUBLIC RECORD OFFICE

Reference :-

TTIC.O.

885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

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Mr. Fairfield further stated that it would be seen that the language of that Article was not always uniform in its tenour, for in some places it spoke of such approved applicants as if they were "burghers of the South African Republic," whilst in other places it spoke of them as persons who had become "entitled to all the political

privileges of a full burgher of the South African Republic."

That in connexion with the general question of the status of British subjects living within the South African Republic itself who obtained naturalization therein, Mr. Fairfield was to refer us to paragraphs 3 to 9 of the copy Despatch of the 19th October last from your Lordship to the High Commissioner in South Africa, which paragraphs, he was to mention, were settled by the Lord Chancellor.

That, assuming that we would agree in the view of the effect of the Imperial Naturalization Act stated in that Despatch, it was nevertheless obvious that there was a distinction between the case of British subjects resident within the Republic who obtained naturalization therein, and that of British subjects resident in Swaziland, who, under the peculiar provisions of Article VIII. of the Convention, obtained 'all the political privileges of a full burgher of the South African Republic, of which they were not even residents. That the question seemed mainly to turn on the language of the Article, but that it might be well to call attention to the exact language of section 6 of the Naturalization Act, 1870, which dealt with the question of expatria- tion. Any British subject who has at any time before, or may at any time after the passing of this Act when in any foreign State, and not under any disability volun- tarily become naturalized in such State shall," &c. That from the language of sub- section (a) of Article VIII. it appeared that the application for enrolment (which constituted the foundation of the grant of privileges) had to be made at Bremersdorp within Swaziland itself, and not (as contemplated by the Imperial Act) in the State where the applicant obtained the privileges, and that the enjoyment of the privileges of the full burgher by him was conditional on his continuing to reside in Swaziland.

That it would seem to be reasonable to hold that in that Article the South African Republic had seen fit for sufficient reasons to agree to give to certain specified strangers living outside its borders the privileges of full citizenship within its borders without affecting their national status as regards the States of which they had been and were the subjects. That it might be worth noting that no oath of allegiance to the Republic was required by the Convention from applicants for enrolment, although, as observed in your Lordship's Despatch of the 19th of October, an oath of allegiance was not an essential step in the progress of naturalization.

But that your Lordship left the whole matter for our consideration and advice.

In obedience to your Lordship's commands, we have taken the matter into our consideration, and have the honour to

Report-

That, in our opinion, the position of Swaziland under the Convention of 1894 is that of a protected dependency administered by the South African Republic. In recent years the qualities and incidents of a Protectorate have undergone change, and in some cases it may be a question whether or not a protected territory is a part of the dominions of the Protecting States, e.g., for the purposes of the Foreign Enlistment Act. But in the case of Swaziland, the terms of the Convention of 1894 preclude its incorporation iuto the South African Republic.

Accordingly we consider that, in strictness, those British subjects who have become entitled to privileges under Article VIII. of that Convention do not come within the language of section VI. of the Naturalization Act, 1870. They have not, in the words of that section," when in any foreign State

voluntarily become naturalized

in that State," and they still remain British subjects.

The paragraphs in the Despatch of 19th October 1894 regarding the status of British subjects in the South African Republic are not inconsistent with this view, for they do not appear to deal with the case of persons resident in Swaziland.

We desire, however, to observe that, though British subjects who have become full burghers of the South African Republic under Article VIII. of the Convention of 1894 do not appear to us to have forfeited their British nationality under the Naturali- zation Act, 1870, they will have in substance accepted the Boer nationality, and may, conformably with precedent, be treated by Her Majesty's Government as disentitled to Her Majesty's protection while resident in Swaziland or the Transvaal.

While the principle of the indelibility of natural allegiance was still proclaimed by British law Her Majesty's Government did not always bestow the protection which

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that status in theory might justify. For example, during the Civil War in America Great Britain refused protection to persons who had exercised privileges reserved to citizens of the United States, though they had not been formally naturalized. And, in view of the terms in which the Convention of 1894 is expressed, we consider that it is optional for Her Majesty's Government to decline to exercise, in respect of the class of British subjects now in question, those rights of diplomatic representation and of protection which are applicable to the case of Her Majesty's subjects in general. Though the letter of section 6 of the Naturalization Act has not been complied with, the persons in question have in substance expatriated themselves. We have, &c.

The Right Hon. the Secretary of State,

&c.

&c.

&c.

R. T. REID.

FRANK LOCKWOOD.