who trekked were such British subjects, or were, like President Kruger, subjects by virtue of birth within the dominions of the Queen. Such status carries with it its rights of citizenship and its obligations of allegiance, neither of which can be removed except by express lawful enactment or by mutual consent. These subjects of

the Crown of England migrated across the Vaal River. The Sand River Convention guaranteed "in the fullest manner on the part of the British Government to the immigrant farmers north of the Vaal River the right to manage their own affairs and to govern themselves according to their own laws, without any interference on the part of the British Government." In this there was nothing, on the one hand, releasing the subject from allegiance, or, on the other, depriving him of the right of approaching the Crown by way of appeal in virtue of its prerogative. In 1854 some other British subjects, who had migrated across the Orange River to territories over which Great Britain had proclaimed sovereignty, obtained a Convention guaranteeing the future independence of the country and its Government, "freeing them from their allegiance to the British Crown, and declaring them to all intents and purposes a free and independent people, and their Government . . . a free and independent Government,” and a royal proclamation "declaring the abandonment and renunciation of the Crown's dominion and sovereignty over the territory and inhabitants thereof." The Transvaal farmers, however, continued in the Vaal territory subject to whatever their position was under the Sand River Convention. Whether or no it be true that a subject can only acquire territory in right of his Sovereign, it is sufficient to say that the words of that Convention would require considerable breadth of interpretation to read into it a release from the allegiance the subject owes to the Crown. However that may be, by proclamation dated April 12, 1877,† the territories occupied by these emigrant farmers were declared British territory. This proclamation was ratified under an Order in Council of February 4, 1878, and her Majesty's sign manual dated February 18, 1878. A British governor was appointed, Courts in existence were continued, and an appeal given to the Queen in Council in disputes above the value of £500. The Transvaal was to remain a separate Government with its own laws and legislature, and to enjoy the fullest legislative privileges. Under an Order in Council of November 27, 1878, two more judges of the High Court were appointed. Under her Majesty's

There was nothing new in this special renunciation. Precedent was followed. When the Crown of England concluded a treaty with the thirteen American colonies, it expressly acknowledged the States to be "free sovereign and independent States, and the King, for himself, his heirs and successors, relinquished all claims to the government, proprietary and territorial rights of the same and every part thereof.' See Chalmers' "Opinions," v. 2, pp. 368 and 367, where the necessity of clear and definite expressions for the purpose of transferring the allegiance of the people is enforced. And see further hereon Damadhar, Gordhan v. Deoram Kanji, 1 A. C. 332. † 68 State Papers, p. 144.

Royal Letters Patent, November 8, 1879, an Executive Council and a Legislative Assembly were established. By Letters Patent dated April 21, 1880, further provisions were made as to the constitution of the Legislative Council and Assembly and for the government of the Transvaal. It is important here to note that, after the Pretoria Convention of August 3, 1881, the above Letters Patent of 1879 and of 1880, which were confined to dealing with the nature of the government to which the people of the Transvaal Republic should be subject, were revoked by the Queen's Letters Patent of February 6, 1882, but that, on the other hand, no Letters Patent were issued, nor has any document under the Queen's sign manual been issued, revoking the proclamation of 1877 or her Majesty's sign manual, which acts had the effect of annexing the territory of the Transvaal to the British dominions, and were so construed and understood by both parties to the Convention of Pretoria in 1881. It can hardly be supposed, if it had been in the contemplation of Mr. Kruger and his colleagues that the proclamation of 1877 and the sign manual of the Queen were to be revoked or withdrawn, and the inhabitants of the Transvaal released from their allegiance, and the territory severed from the British Empire, he and they would not have stipulated therefor, as the Orange Free State had done in 1854. It is equally difficult to believe that the Ministers of the Queen, having before them the terms of the Orange Free State Convention expressed with emphatic clearness excluding by its terms the territories from the dominions of the Queen and releasing the inhabitants from their allegiance-would not have ased terms equally unequivocal with regard to the territory and the peoples of the Transvaal. Instead of this, however, no mention whatever is made of the territory or of the peoples, except that the former is referred to as having been annexed to the dominions of the Queen, and the latter are referred to as accorded complete self-government. It can scarcely be argued that Article 4 of the Convention of 1881, which states that "the government of the State, together with the rights and obligations thereto appertaining, and all State property taken over at the time of annexation, save and except munitions of war, will be handed to Messrs. Kruger, &c.," was intended to transfer a portion of the territory of the British Empire. Equally idle would it be to assert that Article 28 of the Convention of 1881 (repeated in Article 15 of the Convention of 1884) can be so construed. This article provides that all persons who had established their domicile in the Transvaal between the annexation on April 12, 1877, and the date of the Convention of 1881 (a period during which a Government was in force in whose programme compulsory military service formed no part), shall be entitled to retain their exemption from any compulsory military service to be imposed by reason of the powers accorded by the Convention for internal government. It can scarcely be doubted

that, had it been intended that the high acts of State annexing the territory should be recalled, the Queen's Ministers on the one hand would have caused, and the Transvaal representatives on the other hand would have required, their effect to be cancelled by documents as authoritative, as public, and as binding as those by which the land of the Transvaal had been annexed and the peoples made subject to the Queen of England.

In the absence of such release the inhabitants of the Transvaal are thrown back upon the Conventions of 1881 and of 1884. And here it should be borne in mind, in considering the Convention upon which the inhabitants base their claim, that "as every nation possesses exclusive sovereignty and jurisdiction in its own territories," the fact that the Queen accords or grants the government of the territory proves that the territory was the Queen's. For the South African Republic to question this would be to question the validity of the grant of the right of government. The first Convention alone contains any grant to the inhabitants the later Convention merely releases the grant from certain restrictions, conditions, and limitations. imposed thereon by the first Convention. By the Convention of 1881 her Majesty's Commissioners on behalf of her Majesty "do hereby undertake and guarantee that from and after the 8th day of August, 1881, complete self-government subject to the suzerainty of her Majesty, her heirs and successors, will be accorded to the inhabitants of the Transvaal territory." Then follow the terms and conditions and the reservations and limitations set forth in the Articles upon and subject to which such grant was made. Mr. Kruger and his colleagues in accepting and signing the grant added:

"We, the undersigned, &c., do hereby agree to all the above conditions, reservations, and limitations under which self-government has been restored to the inhabitants of the Transvaal territory subject to the suzerainty of her Majesty, her heirs and successors, and we agree to accept the government of the said territory with all rights and obligations thereto appertaining on the 8th day of August 1881, and we promise and undertake that this Convention shall be ratified by a newly elected Volksraad of the Transvaal State within three months of this date" [August 3, 1881].

It does not require to be noted that that which Mr. Kruger accepts is the government of the territory and not the territory. It cannot be pretended by the Uitlanders or their opponents that the London Convention of 1884 has superseded that of 1881. In that of 1884, as has been inferred, no grant of any kind is accorded to or accepted by the inhabitants of the Transvaal. The rights and obligations appertaining to the government of the Transvaal by reason of the acceptance of the grant at the hands of the Queen remained the same after the signature of the Convention of 1884 as they were when Mr.. Story's "Conflict of Laws," p. 19.

Kruger and his colleagues added the clause, on August 3, 1881, to the Pretoria Convention.

What some of these " Wrights and obligations were which appertained to the acceptance by the inhabitants of the restoration of the government of the Transvaal territory at the hands of the Queen it is important to consider. The restrictions and limitations contained in the Articles throw some light thereon. Among these rights and obligations attached to the grant of government was that all persons who had remained loyal through the recent hostilities should continue to enjoy the rights of property they had enjoyed since the annexation, and should continue to reside in the country with enjoyment of all civil rights.* Chief among the civil rights was that right of appeal † to the Sovereign, the source and fountain of justice, to which the idea of suzerainty is in no wise repugnant. This appeal, besides being the right of every subject of the Crown, had at the time of the Convention of 1881 been specially regulated as to the cases heard by the High Court of the Transvaal by her Majesty's Order in Council of February 4, 1878. This was then a portion of the written law of the land, the continuity of which, whether enacted before or after the annexation, was secured by Article 3 of the Convention of 1881. That law the Courts, to which Article 28 requires that all inhabitants should have access, were bound to recognise.

Except so far as the words "subject to the suzerainty of Her Majesty, her heirs and successors," may be taken to limit the right of the Crown or the privileges which the inhabitants take under the Convention, there seems nothing in the grant of complete self-government which has not been granted to many of the selfgoverning colonies known as proprietary governments. On behalf of those inhabitants whose views Mr. Kruger is taken as representing, a desire was, shortly after 1881, evinced of removing the words "subject to the suzerainty" from the grant, as if their omission would have had the effect of enlarging the rights which the inhabitants would take. It seems, on the other hand, doubtful whether they may not limit in some way the Queen's sovereign right of interference in the government of the State. From this desire of the Transvaal Government it would appear that an importance was and is attached to the obligations involved in the use of the word "suzerainty" greater than is understood by or attached to it in this

See Art. 12 of 1881 and Art. 7 of 1884.

+ That this right of appeal is considered a high and valuable one is evidenced by the fact that a colonial statute conferring an appeal to the Privy Council is ultra vires as ignoring the constitutional rule that an appeal lies to her Majesty. A.-G. for Dominion of Canada v. A.-G. for Province of Ontario; [1897] App. Cas. 199; and cf. The Queen v. Eduljee Byramjee, 5 Moo. 276. In the Transvaal, where we find the "highest Court of Justice in the country at the mercy of the Executive" (see Mr. Chamberlain's despatch to Sir Alfred Milner dated May 10, 1899, Parl. Pap. [c. 9345], p. 230), the right of appeal to the Sovereign is beyond price.

country. It is undoubtedly much to be regretted that a phrase of such disputable meaning should have been used in the Convention of 1881. Debates in the Commons and in the Lords at that period should have been sufficient to warn Ministers against its adoption. Mr. Gladstone considered suzerainty had relations to, though it was quite distinct from, sovereignty. While Lord Salisbury thought it did not preclude interference in internal affairs, Lord Kimberley was of opinion, on the other hand, that the term expressed the transfer of the powers of internal government. Lord Selborne expressed the view that the term suzerainty essentially distinguished the control of foreign power and frontier relations, but Lord Cairns expressed his doubt as to that being the true meaning of the word.*

In discussing the rights of England and the South African Republic, Mr. Westlake, than whom no international jurist approaches such a question with more sympathy for a weaker race struggling to be free, in an article entitled "L'Angleterre et la République SudAfricaine," † admits that no other suzerainty can be intended by the Convention than can be collected from the Articles themselves. He assumes for the purpose of his arguments the international character of the parties to the Convention, which, for the purpose of construction, he treats as an international document. Although in construing a document between a stronger and a weaker Power it may be right, in order to ascertain the status of the contracting parties, to construe the instrument with the liberality towards the weaker used in interpreting an international one, the status of the parties must be ascertained before the document can be declared an international one. To declare the Convention to be an international document without inquiry seems to beg the whole question as to the rights and obligations of the inhabitants which depend upon their status, and who, if subjects of the Queen, possess among those rights the right of approaching her by petition, and possess, moreover, all those rights and owe her all those obligations which have not been removed, and from which they have not been released, by the terms of that Convention.

Before such a document can be accepted and construed, as between the paramount Power and her subjects, as an international document, a preliminary question has to be considered and determined. This, it is submitted, is raised by the petition of 21,000 subjects of the Queen, inhabitants of the South African Republic.

Has the grant of the right of government had the effect of separating the territory of the Transvaal Province from the British Empire? Is the Convention an international document, or is it to be so construed? Has the Convention deprived the inhabitants of their right of appeal

See "Hansard's Debates," and Dr. Charles Stubbs' pamphlet entitled "Suzerainty, or the Rights and Duties of Vassal States."

† 28 "Revue de Droit International,” p. 275 (1896).