CO885-(13-15) — Page 599

TTTTT

PUBLIC RECORD OFFICE

C.O.

Reference :-

885

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

14 PUBLIC RECORD OFFICE, LONDON

2

the South African Republic, in reply to my Despatch, No. 432 of the 16th of October 1897, on the subject of certain questions at issue between Her Majesty's Government and the Government of the South African Republic.

"

2. In that note the State Secretary, on behalf of the Government of the South African Republic, denies the existence of any "suzerainty on the part of Her Majesty over the South African Republic, and he asserts that the preamble of the Convention of 1881 was in fact repealed by the Convention of 1884. Her Majesty's Government are unable to admit either of these propositions.

To

3. The preamble of the Convention of 1881 laid down the basis of the future mutual relations of Her Majesty and of the inhabitants of the South African Republic. these inhabitants Her Majesty granted internal independence. To Herself She reserved the position of Suzerain. The Articles of the Convention of 1881 defined alike the general character of the internal independence and of the suzerainty.

4. The Articles of the Convention of 1884 substituted a fresh definition for the former one.

The preamble of the Convention of 1881, the basis on which these definitions rested, remained unchanged. If that preamble had been repealed, not only would the reservation of suzerainty on the part of Her Majesty have been repealed, but also the grant of internal independence to the inhabitants of the South African Republic. Her Majesty's Government observe that the State Secretary asserts that that internal independence in no sense derived its real origin from the preamble of the Convention of 1881. In this, however, he is in error. The grant of internal independence and. the reservation of suzerainty alike have their sole constitutional origin in that preamble.

5. In this connexion, and with reference to the conclusion of paragraph 13 of Dr. Leyds's note, I am constrained to point out that, in Lord Derby's draft, the whole of the Pretoria Convention was set forth and that the words crossed out were "under which self-government has been restored to the inhabitants of the Transvaal territory subject to the suzerainty, &c.' If the omission of these words is alleged to involve the supersession of the suzerainty, it must also, by parity of reasoning, be assumed to have abolished at the same time the right of self-government conceded by Her Majesty to the South African Republic in the same sentence. If Dr. Leyds's argument is sound, the one consequence follows as inevitably as the other. Her Majesty's Government are equally unable to admit the validity of the argument or its consequences.

4. In reply to-the-argument of the State Suretary-an-to-the-intentions-of-Lord-Derby-acting on behalf-of-Her-Majesty's Ginvernment-in-1>>I- Her Majesty's-Government have-in-pint out that there-in-fortunately-m-doubt as to what at the time was the intention of Her Majesty's Government in-advising Her Majesty to direct the -nl»titution of the Articles-eml-ulied in the Convention of 122d-fine-three-emleslied-in the Convention of ]``),—Lurd Derby in-n speeck-in-the-House of

-the lith of March1>>4. Juntly-after the rignature of the Convention, suid, “The word =euzeminty --is-a-vert-vague-word, and I do not think it is capable of any precise-legal-definition. Whatever we may understumt-by-it, I think it-in-not-ency to-deline.—But I apprehendi,-whether Ton-eull-it-n–Protectorate, or-n-Suzerninty, or the perignition-of-Enclumt-as-a-puramount Power. the_fuet-is-that-n-certain-controlling power is retained when the State which exercises this Suzerainty hua-eight-to-vvtn-any-negutintinus-into-which the dependent-State may enter with Foreign Powers-Whatever Suzerainty-mant-in-the Convention-of-Pretoria-the-condition of things which it implied-still remains +-although-the word is not-netnull; employed, we have kept the substaneET We have abstained-from-neingthe-word-kem-e-it-was not en pable of legal definition-and-lævause-it seemed-to-ben-word which was likely-to-lead-tu-misconception-and-misunderstamling.”

7. Hand-Herby-u;parently did not think if necessary-netually to employ the word conserninty” in the Artirien-of the Convention of 141–nub-in that spreek he gave the exact reasons why he alestained-from-uring-it-These reasons-are-wholly secondary in their charneter --no-reference is made-in-them to any aledition of the relation-hij deserilne by the word " suzerainty in the premimble of the P'returin-Conventions-and-what-follows-is-incompatible with any such supposition. Imund Herby was-in-fiet-content-in-these-Articles-to-redefine that relationship ami to retain its sultance.

6. What the nature of the that substance of suzerainty is was described by Lord Kimberley in his Despatch of the 31st March 1881, as quoted by the State Secretary in paragraph 5 of his note, viz.: superiority over a State possessing independent rights of Government, subject to reservations with reference to certain specified matters. These words appear to Her Majesty's Government accurately to describe the existing relations between Her Majesty and the South African Republic.

Ihave thought it right in dealing with this part of the question under disenssion to take brief mrte-of-the-principul arguments put forward-by-the-State Secretary, but I think-it-unnecessary to prolong-a-cuntravere which is one of etymologieul-rather than of polition! interent.-The essential fnet-whi k-in wdmitted on both sides is that under the London Convention-the-South African Republie is not a fully independent State, but-is-limited in the exercise of sovereign-rights-by certain

3

Articles-of-the-London Convention and especially by Artiole IV-As the-Government-of the-South Afriman Republic have repeatedly dealured their intention of abiding by the terms of that Convention, the-previne--words which may be used to describe auch a political relationship-are-of-miner importance-se-long-as itu souditions are clearly understood and strictly-observed:

7. 40. With reference however to the conclusion of Treaties under Article IV. of the London Convention, which is treated in paragraph 19 of Dr. Leyds's note, the Government of the South African Republic do not make any attempt to answer the contention of Her Majesty's Government expressed in my Despatch of the 16th of October. The language of Article IV. of the Convention being in the opinion of Her Majesty's Government so plain, and the practical result, so far as the South African Republic is concerned, of adopting the view of Her Majesty's Government being the same as if the view of the Government of the South African Republic were adopted, Her Majesty's Government are unable to understand the unwillingness of the Government of the South African Republic to accept the proposal of Her Majesty's Government that a compromise should be effected by embodying the requirements of the Convention which the Government of the South African Republic do not dispute in their treaties with Foreign Powers.

There seems to

be no reason for not stating formally facts which are admitted on both sides.

8. 11. Failing an agreement on this point, Her Majesty's Government will he compelled to regard the action of the South African Republic as in conflict with the interests of Great Britain, and to advise Her Majesty to exercise Her right of refusing approval of

any treaty or engagement not submitted to Her before its conclusion. 9. Her Majesty's Government have taken note of the assurance, once more repeated at the commencement of Dr. Leyds's note, that the Government of the South African Republic are prepared in every respect to abide by the stipulations of the See Report. Convention of 1884. They would, however, have been glad to have observed some R.E.W. practical proof of the desire so often expressed by the Government of the South African R.B.F. Republic.]

10. In connection with the matter of the submission of treaties, Dr. Leyds refers (in paragraphs 20 and 21) to the reciprocal duties of both parties to the Convention and the obligations of Her Majesty's Government thereunder, and he again alludes to the Jameson raid as a breach of those obligations, while maintaining that the proceedings in Stellaland and Goosen were of a different character, on the ground that there existed a state of war between independent native chiefs who called for volunteers to enter their service. He refers to President Kruger's Despatch of the 17th of March 1896 (page 21 of C. 8063) in which it is stated that "Their actions"—that is, the actions of the freebooters in Bechuanaland-" would under no circumstances be constrited as a breach of the Convention, as the actions of Dr. Jameson cum suis in every respect were,”

11. 44. Her Majesty's Government are unable to admit that, as regards breaches of the Convention, the proceedings of Dr. Jameson are in any way comparable to what they must consider the indisputable breaches of conventional obligations involved, in the proceedings in Bechuanaland. It is indeed true that Dr. Jameson invaded the territory of the South African Republic, and that on the other hand the operations of the Bechuanaland freebooters, who used the Transvaal as a base were in territory which was not at first British territory; but while Her Majesty's Government used every means available in the short time at their disposal to compel Dr. Jameson to desist from his illegal act, and took measures to render the repetition of such an act impossible, the Government of the Republic not only failed, throughout the period of years during which the freebooters' operations went on, to take effective steps against them, but endeavoured to profit by the evil doings of the freebooters by accepting the cession of territory overrun by them. By thus attempting to acquire the territories of Massouw and Mankaroane, the Government of the Republic, as the British Resident pointed out to them in a Despatch of the 30th of November 1882 (p. 35 of C. 3486), violated three distinct Articles of the Pretoria Convention, and the issue of President Kruger's Proclamation of the 16th of September 1884, taking Montsion under the protection of the South African Republic subsequently to the signature of the London Convention, and that extension of the British Protectorate was, as the late Lord Rosmead, then Sir Hercules Robinson, observed, “ simply the annexation by the Transvaal Republic of about one-half of the British Protectorate, and an open and defiant violation of the Convention' (C. 4213, pp. 84 and 105). I may add that his Lordship's opinion with regard to the moral responsibility of the Government of the Republic for the scenes of lawlessness and bloodshed which prevailed on their Western border was equally clearly stated. Despatch of the 22nd of January 1883 (C. 3486, p. 50) he said- After carefully perusing In his

"