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PUBLIC RECORD OFFICE

Reference :-

TLC.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

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We cannot see any legal principle on which we could defend a condition that in future these persons should not resile in the British dominions in South Africa. In practice, however, the two forms of condition would probably lead to the same result.

July 9th, 1901.

GENTLEMEN,

(Signed) R. B. F.

E. C.

Foreign Office, Jane 13, 1901. I HAVE the honour, by direction of the Marquess of Lansdowne, to transmit to you the papers noted on the accompanying list, which relate to the nationality of certain persons who were burghers

· of the late Orange Free State.

The circumstances of the case are briefly as follows:-

Persons of German nationality hail, in inany cases, obtained the burghership of the Free State, and were resident within what had been the territory of that Republic at the date of its annexation to the British dominions,

The Proclamation of September 3rd, 1900 (Document A.), by Field-Marshal Lord Roberts announcing the annexation of the Orange Free State, contained the following provision :—“ All persons residing in the Orang River Colony, heretofore burghers of the Orange Free State, have become the subjects of Her Majesty except those burghers who were attached to some commando prior to the annexation, and who have continuously since then been in arms against Her Majesty."

A memorandum of the 16th of March last from the German Embassy (Document B.) stated that the attention of the German Government had been called to this Proclamation, by which numerous Germans were turned, without their concurrence, into British subjects, and that the Imperial Government would, ther fore, be grateful if the opportunity could be offered to the Germans affected by the Proclamation of refusing in some way to accept the status of British subjects.

It is in regard to this request that your advice is now sought.

On receipt of this memorandum His Majesty's Ambassador at Berlin was reynested to obtain the opinion of the Legal Alviser to the Embassy as to whether Germans who had become burghers of the Orange Free Stat could in any, and if so, in what, circumstances, retain their German nationality. The report has been received, and will be found in the enclosed despatch from Sir F. Lascelles, No. 57 Africa, of the 22nd ultimo (Doenment (.). According to this report German nationality is lost.

(1.) By dismissal on application. This request for dismissal can only be refused when certain conditions as to the fulfilm nt of the compulsory military service in Germany have not been Pomplied with.

(2.) By decision of the Authorities. This is a dismissal without application, by disobeying the command to return home in case of war, and by entering without permission the State service of a foreign power; anl, with certain exceptions which appear, however, to be of no great importance for the purposes of the present referené s

(3.) By living uninterruptedly for the period of ten years in a foreign country.

A German does not, therefore, according to the opinion of Justizrath Schneider, lose his German nationality by becoming bursther of the late Orange Free State unless one or other of the above mentioned conditions is fullì!l»l.

There appears to be no fixed and universally recognised rule of international law with respect to the acquisition of a new nationality on the conquest or cession of the whole or part of a State.

Definite public annou coments as to the nationality of subjects of a State the whole of which has been annexed by anoth or State, do not up ar to be usual. This is probably due to the fact that as the oul nationality ceas; to › xist, there can be no question of making arrangements whereby certain classes of persons may retain it. It has no doubt been assumed that all persons of the old nationality whether domiciled in th territory of the old "tate or not acquire the nationality of the conquering and annexing Stat, the must tha the latter can do is not to hinder its new subjects from acquiring the nationality of some third State. The followin· examples may be cited :-The conquest and annexation of Geneva, of Muhlhausen in 1792, and of the Netherlands by France in 1795; of Hanover and Hesse-Cassel by Prussia in 1866; of Burmah by Great Britaiu in 1886; and the annexa tion of the Ionian Islands to Greece in 1864.

In none of these cases does any specific arrangement appear to have been made under which members of the annex-l populations could avoid accepting the nationality of the annexing State. In the cases of the annexation of Muhlhausen and of Geneva, natives were declared to be born Frenchmen by the fax of annexation, but the liberty of erigration was granted to them. Any such specific grant is perhaps of little practical value where the whole State is annexed, for, from the moment at which conquest and annexation have been actually accomplished, the nationality of the annexing State is the only one available, and a subject or citizen of the annexed State who does not wish to adopt the nationality of the annexing State must, befor he can logically reject or renounce Buch nationality, find some third State willing to adopt him as a subject. "In the meantime, however, he must apparently of necessity be of the conqueror's nationality, or of none at all.

Two particular cases of considerable interest in this connection may here bo mentioned. (1.) The case of Count Platen Hallemund, a Hanoverian subject, a brief account of which is given in a letter to the London "Observer" of the 19th ultimo (Document D.). From this letter it appears that Count Platen Hallemund migrated to Austria with the dispossessed King of Hanover, but was cited before a Berlín Court on a charge of high treason alleged to have been committed by him abroad as a subject of the King of Prussia. It was argued by eminent jurists that the Count's emigration from Hanover at the time of the annexation had prevented the transfer of his allegiance to Prussia; but this plea was overruled, and he was, according to the letter in the "Observer," sentenced in contumaciam to penal servitude. The records of this Department do not contain any

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report of this case: but it is not perhaps rash to suppose the Court to have held that, Hanoverian nationality having ceased to exist, the Count must necessarily have become invested with Prussian nationality, and that, from the point of view of Prussian law, he necessarily continued to be a Prussian subject until such time as he acquired another nationality in such a manner as to divest him of Prussian nationality.

(2.) The case of Chong Kham, who had been a subject of the King of Burmah, before the annexation of that State by Great Britain; this case is set out in the reference recited in the report of the 24th March, 1888 (Document E.), from your predecessors in office. This man was resident out of Burmah, namely in Siam, at the time of the annexation, but the report mentioned advises that he had nevertheless become a British subject.

The whole of the Orange Free State has been annexed by Great Britain, and the case appears, therefore, to be strictly similar to those mentioned above.

It is doubtful whether for the present purpose any useful analogies can be drawn from the consideration of cases in which a portion only of a State has been annexed, and the nationality of that State has not been extinguished by its entire absorption within the dominions of the annexing State. The radical difference between cases of partial and of entire annexation is that where a part only of a State is annexed, the old nationality survives, and it becomes necessary to consider what classes of the persons who were before the annexation invested after that event with the nationality of the annexing State.

A memorandum which has been prepared in this office, and which deals with the more important cases in recent times of partial absorption, is enclosed for your information and consideration should you so dešire, in connection with the point more immediately under discussion (Document F.).

The general question of the tranfer to Great Britain of the allegiance of the burghers of the late Orange Free State has already been before you, and formed the subject of your report of the 17th of May, 1900 (Document G.) in which you advised the Secretary of State for the Colonies that the inhabitants" of the State would become British subjects upon annexation, but that it had been usual in recent times to allow those who did not desire to become subjects of the conqueror to leave the conquered territory within a reasonable time, and that you thought this course would properly be followed in the present case.

It only remains to consider the special case of persons who are subjects of the annexed State or the annexed territory in virtue of naturalization. A case of this nature formed the subject of your report of the 22nd of October last, in which you advised that no distinction should be drawn between the case of a natural-born and that of a naturalized citizen.

The case of the persons on whose behalf is made the request contained in the above-mentioned German memorandum is therefore that of naturalized subjects of a State the whole of which has been annexed, and whose nationality derived from that State has ceased to exist, but whose nationality of origin has not, according to the law of the country of origin, been lost to them.

I have the honour to request you to take the above-mentioned observations and papers into your consideration, and to favour Lord Lansdowne with your opinion :—

(1.) As to what from the standpoint of international law are the legal merits of the application made in the memorandum of the Hith of March last from the German Embassy.

(2.) As to whether there is any objection from a legal point of view to releasing from their obligations under the Proclamation such burghers of German origin as formally express their desire not to accept British nationality, on condition that they no longer remain in the British dominions in South Africa, and

(3.) Generally,

His Majesty's Attorney-General

and Solicitor-General.

I have, &c.,

(Signed)

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