The British Government accepted them as duly qualified representatives, and only the burghers themselves would be entitled, under the ordinary principles of the law of representation, to dispute their credentials.

This treaty provided inter alia that His Majesty's Government would place at the disposal of certain commissaries a sum of £3,000,000, and would allow all notes issued under law I of 1900 of the South African Republic and all receipts given by officers in the field of the late Republic, or under their orders, to be presented to a judicial Commission which would be appointed by the Government, and, if such notes and receipts were found by this Commission to have been duly issued in return for valuable considerations, they would be received by the first named Commission as evidence of war losses suffered by the persons to whom they were originally given.

A few days later (June 14) the Directors of the Railway Company at Amsterdam wrote to the Colonial Office reminding them that no answer had yet been given to an inquiry, dated January 14, 1901, as to the fate of their property. They now inquired whether they could not now resume the working of their lines, as they were no longer required for military purposes.

On the 9th of the following month a reply was despatched by the Colonial Office stating that no declaration could yet be made on the subject, but that a communication would be made at a later date.

On January 10, 1903, at a meeting of German share and debenture holders a verbal communication was made through the German Ambassador in London that His Majesty's Government would pay £135 in respect of every share with reference to which satisfactory proof was given that it belonged to a private person before the outbreak of the war. Shares which were the property of the Government of the South African Republic or that of managers or agents of the Company, all such persons being considered as sharing the Company's responsibility, were excluded from the arrangement. This proposal was ultimately accepted by the German shareholders.

The French shareholders, considering that as members of a joint-stock company they were not called upon to detach their interests from those of their fellow-shareholders in general, had not approached the British Government independently. But they now handed in a note to Lord Lansdowne, who replied in a note dated August 17, 1904, in which he referred to the alleged violation by the Company of their duty as neutrals through the agency of Mr. Van Kretschmar, the manager, but still gave no final answer.

The total capital of the Company was divided into 14,000 shares. Of these some 4695 shares were held in France and Holland and 8699 in Germany. These two sums together very nearly made up the 14,000. It may, therefore, be assumed that the 5713 held by the South African Republic found their way into the hands of one or other of both groups.

The business of the Company was managed by the German and Dutch shareholders. The French group was not represented in the management of the Company's affairs.

The British Government's attitude seems to have been to

1 This distinction was not in accordance with the recommendation of the Transvaal Concessions Commission, which was that the shareholders were responsible for the belligerent acts of the servants of the Company, and were therefore not entitled to compensation for the loss of their property in the railway. As regards this latter contention, the question of the liability of a shareholder of a joint-stock company for the acts of its directors and manager seems not to have been clearly appreciated by the Transvaal Concessions Com. mission. They omitted to distinguish between personal and corporate liability. Corporate liability is incurred by shareholders proportionately and in accordance with their constitutive undertakings through their legally appointed representatives and for all acts within the scop of their authority. The shareholders might be held to have invested the manager or directors with authority to take an active part in the war, had they met and passed a resolution for the purpose or given countenance to such an attitude, but even then it is doubtful whether a majority could have bound the minority, and whether the liability could be held to go beyond the personal act of each individual shareholder.

The British Government's idea was, no doubt, to confiscate the shares held by the South African Republic as having become at some date during the war the property of Great Britain, but a confiscation based on an arbitrary distinction, devoid of legal foundation, might obviously become a most dangerous precedent, especially in the hands of some filibustering government.

A possible attitude of the Government might have been to hold that shares acquired from private persons differ from shares acquired from the South African Republic, and that the latter being affected by the proclamation of March 19, 1900, those who acquired them, in spite of this notice, took them at their risk and peril. This might be plausible, if it were possible to prove that the notice had been actually apprehended by any purchaser through personal service or otherwise. But, as a fact, the proclamation does not seem to have been brought to the attention of any possible purchasers. It was not issued at Pretoria, which was only reached in June, but, as I have already said, by the High Commissioner at CapeTo argue constructive knowledge of a proclamation issued so far from the area concerned would be rather far-fetched. But apart from this, the war was still only in its earlier stages. The proclamation was probably in its origin based on an equally obscure

town.

stand by the distinction made by Lord Lansdowne on July 11, 1901 (and repeated through the German Ambassador on January 10, 1903) between holdings acquired before and those acquired after the commencement of the war. It was not alleged that the property in the railway passed to the British Government on the outbreak of the war.

It is submitted that it was highly undesirable to establish any precedent which does not take into account the binding character of the principle of Article LIII. of the Peace Convention. Under this principle the British Government, setting aside all questions with individual shareholders or groups of shareholders,1 would have taken over the railway from the Company under the expropriation clause referred to above.

notice of January 6, 1900, issued, like the proclamation of March 19, 1900, by the High Commissioner at Capetown, which ran as follows:-"Notice is hereby given that the Government of Her Majesty will not recognise as valid or effectual any forfeiture of any property situated in the territories of the South African Railway or Orange Free State, or any charges, fines or encumbrances of whatsoever description declared, levied or charged upon any such property, or any conveyance, transfer or transmission of any such property which forfeiture, charge, fine, encumbrance, conveyance, transfer, or transmission has been, or shall be, declared, charged, levied, created, made or carried into effect by the Governments of the South African Republic or of the Orange Free State subsequently to the 10th day of October 1899" (the date of the commencement of the war). The outcome of the war, however certain to British eyes, was not yet necessarily so in the view of others, and a proclamation forbidding transactions with a State which seemed still capable of maintaining its independence could not affect third parties. Such premature proclamations, however binding on the subjects of the Government issuing them, belong essentially to a class of incidents which International Law no longer recognises, such as paper blockades and fictitious occupations of territory. An invader to exercise the right of conquest must be in de facto possession.

Another alternative possible attitude of the Government might have been that from the date of the proclamation of annexation on September 1, 1900, the shares in the Railway Company held by the South African Republic became ipso facto the property of Great Britain, and that therefore no valid title could thereafter be conferred by the South African Republic.

This alternative suggests more or less the same observations as the other. The proclamation of annexation could confer no rights without actual de facto annexation. That the war continued for two years after the proclamation, and then was only terminated by a conditional treaty of surrender, shows how premature and fictitious such a proclamation was, The only legal, even judicious course, for International Law is often only expediency in a comprehensive sense, was that the British Government, having acknowledged the existence of the Government of the South African Republic down to May 31, 1902, when the treaty of surrender was negotiated, should have ceased to deny its existence at any time before that date, though for political purposes the British military commander professed to deny it. So long as the Government of the South African Republic existed, it could dispose of what belonged to it. Nobody will dispute that the government which displaces another government assumes its obligations. Nor has any distinction ever been made between obligations incurred for civil or for military purposes. Purchases even of war material for use against the conquering forces are debts properly incurred, and it is immaterial whether the purchases were made before or in the course of the war. The only criterion is that the transactions be bona fide. If the South African Republic paid off any part of its debts in shares of the Railway Company, it only parted with property which it had a right to part with. If the shares were annulled, the right of those who received them to be paid otherwise, in accordance with the terms of their contract, by the successor of the South African Republic, would have revived. In his International Law, Peace (Cambridge, 19c4), Professor Westlake gives a very clear statement of the principles of International Law governing such cases. It may be summed up as follows:

(1) The purely private rights of individuals, whether of property or obligation, are untouched by the change of Government.

(2) The acquiring State succeeds to the entire position of the displaced State as owner of the assets, or what is called the active succession (p. 74).

(3) The acquiring State is affected by what is called the passive succession; in other words, it steps into the civil liabilities of the displaced State, though, of course, in the case of a partial cession only into those of them which exist in connection with the ceded territory (p. 75).

The continued existence of concessions must depend on their not being in conflict with the public law and policy of the annexing State; but if they are cancelled the persons interested will be entitled to such compensation as that State grants on cancelling a conces sion of its own (p. 83).

A transferee or annexing State takes the territory as it stands-that is, subject to all the rights which have been impressed on it in favour of third parties by the treaties which have disposed about it; and by virtue of this possibility of looking only at the rights as they stand, without going behind them to the documents of title, dispositive treaties may be represented as not being an exception to the general rule (p. 61).

1 Did not the guarantee of dividend and interest by the Transvaal Government bind that government's successor, irrespectively of the cause of non-payment by the Company and especially where the non-payment was due to the action of that government's successor ? Comp. Cook v. Sprigg [1899], A. C. 572, judgment of Judicial Committee delivered by the Lord Chancellor :

"It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory. All that can be properly meant by such a proposition is that according to the well-understood rules of international law a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has authority to enforce such an obligation. And if there is either an express or a well-understood bargain between the ceding potentate and the government to which the cession is made that private property shall be respected, that is only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure." See note on this case by Editor (Sir F. Pollock), Law Quarterly Review, Jan. 1900, p. 1, dissenting from the view of the Judicial Committee that "no municipal tribunal has authority to enforce such an obligation.

of the Manual of the Institute-i.e. it is forbidden (a) to destroy public or private property, if such destruction is not commanded by the imperative necessity of war; (b) to attack and bombard localities which are not defended, apply also to naval forces.

Art. III. The rules set out in Articles XXXIII, and XXXIV.2 of the Manual are equally applicable to naval bombardments.

Art. IV. In virtue of the foregoing principles, the bombardment by a naval force of an open town, i.e., one not defended by fortifications or other means of attack or of resistance for immediate defence, or by detached forts situated in proximity to it, for example, at the maximum distance of from 4 to 10 kilometres, is inadmissible, except in the following cases: (1) In order to obtain by means of requisitions or of contributions what is necessary for the fleet. Nevertheless, such requisitions and contributions must remain within the bounds prescribed by Articles LVI. and LVIII. 3 of the Manual of the Institute. (2) In order to destroy dockyards, military establishments, depôts of munitions of war, or vessels of war found in a port.-Moreover, an open town which is defended against the entrance of troops or of disembarked marines may be bombarded in order to protect the landing of soldiers and of marines if the open town attempts to prevent it, and as an auxiliary measure of war in order to facilitate an assault made by the troops and disembarked marines, if the town defends itself.-Bombardments whose sole object is to exact a ransom, and, with greater reason, those destined only to induce the submission of the country by the destruction, without other motive, of peaceable inhabitants or their property, are specially forbidden.

Art. V. An open town shall not be exposed to bombardment by the sole fact: (1) That it is the capital of a State or the seat of government (but, naturally, these circumstances give it no guarantee against bombardment ; (2) that it is being occupied by troops, or that it is usually garrisoned by troops of various arms, intended to join the army in time of war.'

Of the other matters referred to by the Russian Government, Declarations of War,5 Floating Mines, and the Transformation of Merchant into War ships 7 alone are specially discussed in this volume, the rest involving technical questions beyond the range of law and diplomacy.

In connection with the Convention for the adaptation to Maritime War of the principles of the Geneva Convention of August 22, 1864, the following vau was adopted by The Hague Conference (1899):

The Conference, taking into consideration the preliminary steps taken by the Government of the Swiss Confederation for the revision of the Geneva Convention, expresses the wish that a special conference should be held shortly for the purpose of revising the said Convention.

This Conference was held at Geneva in July 1906, when a full revised Convention was adopted which now takes the place of that of 1864. The full text of it will be found among the Appendices.8

Another International Conference held in December 1904 dealt with the status of Hospital Ships in time of war. Great Britain did not take part in this Conference. Her abstention, however, was not owing to any objection of principle, but purely to considerations of domestic legislation which are explained in a special note on the work of the Conference.10

* See text, p. 261. The Swiss Government deserves all praise for the persistency of its endeavours to bring about the revision of the Geneva Convention of 1864 in the face of a most discouraging indifference on the part of most other States.

Very soon after its adoption it was thought desirable to revise and complete it. Ard after the war of 1865 a diplomatic conference was held at Geneva (October 5, 1868) for this purpose. This Conference resulted in a project of fourteen additional articles, five of which related to war on land and nine to naval warfare. The additional articles were not, however, ratified by all States, and never became operative. The International Conference of 1874 at Brussels for the codification of the law and customs of war tock up the Geneva Convention and again drew up a number of articles which were submitted to the interested Governments. But as in the case of the additional articles of 1868, no effect was ever givea to them.

At length in deference to the above vau the Swiss Government in 1901 sounded the different Governments as to whether the time had now come to call a special conference; but the replies received from some of the Governments not giving much encouragement, the matter was dropped for the time being. By a circular note of February 17, 1903, however, the Swiss Government invited all the States participating in the Geneva Convention to each send a representative to a Conference to be held at Geneva on September 14, 1903. Some Governments not having accepted the invitation in time, the Conference was postponed, but at the beginning of 1904, there being no apparent obstacle, the Swiss Government again invited the Signatory States of the Geneva Convention to send delegates to a Conference to be opened on May 16, 1604. The war which shortly afterwards broke out between Russia and Japan entailed still again an adjournment. In March 10, 1506, a fresh invitation for June 11 was sent out.

Out of the forty-one Governments interested, thirty-five accepted and six States (Turkey, Salvador, Bolivia, Venezuela, Nicaragua, and Columbia) abstained. But this time the Conference did at length take place.

9 See text of the Convention, p. 257.

10 See p. 198.