MARGINE DT 912 .G 75 REGIST C 451,679 ....... *** Mas SOUTH AFRICAN REPUBLIC. PAPERS GRIEVANCES OF HER MAJESTY'S INDIAN SUBJECTS RELATING TO THE [C-7911.] Price 6d. ! IN THE SOUTH AFRICAN REPUBLIC. Presented to both Houses of Parliament by Command of Her Majesty. September 1895. DIEU ET||| 3017 ESNO TON-ROLE LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE, BY EYRE AND SPOTTISWOODE, PRINTERS TO THE QUEEN'S MOST EXCELLENT MAJESTY. And to be purchased, either directly or through any Bookseller, from EYRE AND SPOTTISWOODE, EAST HARDING STREET, FLEET STREET, E.C., and 32, ABINGDON STREET, WESTMINSTER, S.W.; or JOHN MENZIES & Co., 12, HANOVER STREET, EDINBURGH, and 90, WEST NILE STREET, GLasgow; or HODGES, FIGGIS, & Co., LIMITED, 104, GRAFTON STREET, DUBLIN. 1895. 3 H * C4E7 VAISTAI ARTES LIBRARY VERITAS UNIVERSITY OF MICHIGAN PLURIBUS › UNUM TUTBOR PALPAD, JATKOAJAISON a SCIENTIA OF THE SQUAERIS PENINSULAM AMOENAME CIRCUMSPICE toda NARKOTI antia Belk ܀ ....... 192 ܘܝ ... ... મ 4 DT 912 .375 Gt. Brit. Colonial 3r SOUTH AFRICAN REPUBLIC. P PAPERS GRIEVANCES OF HER MAJESTY'S INDIAN SUBJECTS RELATING TO THE SOUTH AFRICAN REPUBLIC. IN THE [C.-7911.] Price 6d. Presented to both Houses of Parliament by Command of Her Majesty. September 1895. DIED ET Na SOPTOU S SAL MON-DROIT LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE, BY EYRE AND SPOTTISWOODE, PRINTERS TO THE QUEEN'S MOST EXCELLENT MAJESTY. And to be purchased, either directly or through any Bookseller, from EYRE AND SPOTTISWOODE, EAST HARDING STREET, FLEET STREET, E.C., and 32, ABINGDON STREET, WESTMINSTER, S.W.; or JOHN MENZIES & Co., 12, HANOVER STREET, EDINBURGH, and 90, WEST NILE STREET, GLASGOW; or HODGES, FIGGIS, & Co., LIMITED, 104, GRAFTON STREET, DUBLIN. 7 1895. ! Serial No. 1 2 3 ex 6 7 8 9 10 11 From or to whom. Sir H. B. Loch To Sir H. B. Loch Sir H. B. Loch Lieut. - General Good- enough. Ditto Ditto Ditto To Sir Hercules Robinson Sir Hercules Robinson To Sir Hercules Robinson Į 88060, Wt, 7719, CONTENTS. Date. 1895. January 8 (Rec. Jan. 26.) March 22 March 26 (Rec. April 16.) April 9 (Rec. April 29.) April 20 (Rec. May 11.) April 29 (Rec. May 20.) May 6 (Rec. May 27.) June 22 (Telegraphic.) June 4 (Rec. June 24.) July 10 (Telegraphic.) Subject. Case of Her Majesty's Government Forwards a translation of the Case of the South African Republic. Encloses copy of a letter from Mr. Arnold Forster, M.P., respecting the alleged expulsion of Indian traders from Krugersdorp, and instructs him to call upon Sir J. A. de Wet for a report. Transmits copy of a report by Mr. Searle, the British counsel, on the proceedings. of the arbitration at Bloemfontein. Transmits the award in the arbitration, with other papers. Transmits an appeal from Indian traders against the award. Transmits a petition from Indian traders at Pretoria and Johannesburg, urging that the arbitrator's award is not in accordance with the terms of reference, and asking whether Her Majesty's Government accept it. Transmits, in reply to Secretary of State's Despatch of 22nd March, copy of an affidavit of the Indian trader who was prevented from opening a store at Krugersdorp. Transmits petitions to the Secretary of State and the Viceroy of India from Indian traders against the award, and expresses the opinion that it would be neither right nor expedient for Her Majesty's Government to go behind the award. Instructs him to convey the thanks of Her Majesty's Government to the Government and Chief Justice of the Orange Free State, A 2 i Page. 5 7 10 11 13 30 Instructs him to inform the Government of 31 the Republic that Her Majesty's Govern- ment will accept the award on the conditions stated, and suggests that he should invite the Government of the Republic to stay proceedings until ጾ test case can be tried. 32 33 34 45 268504 ív Serial No. 12 13 14 ! From or to whom. Sir Hercules Robinson Ditto t To Sir Hercules Robinson Date. 1895. June 25 (Rec. July 15.) July 30 (Rec. Aug. 19.) September 4 M Transmits copy of a telegram to the State President, Pretoria, accepting condition- ally the award, and urging that action should be stayed pending the adoption of the course suggested by the Arbitrator. APPENDIX A. - Forwards correspondence with Her Ma- jesty's Agent, Pretoria, relative to the acceptance of the Award, and copy of a despatch to the Acting State Secretary, Bloemfontein, conveying the thanks of Her Majesty's Government for the services of Chief Justice de Villiers as Arbitrator. Expresses regret that Her Majesty's Govern- ment are precluded from entertaining the memorials from British Indians forwarded in No. 10: Subject. A APPENDIX B. Page 50 50 1. Article XIV. of the Convention of London, 1884 - 2. Sir Hercules Robinson, 28th January, 1885 3. To Sir Hercules Robinson, 19th March, 1885 4. Sir Hercules Robinson, 20th January, 1886 52 52 55 5. To Sir Hercules Robinson, 24th February, 1886 6. Sir Hercules Robinson, 29th September, 1886 55 57 7. To Sir Hercules Robinson, 4th November, 1886 58 8. Government Notice of South African Republic, 25th September, 1893 9. Circular Instructions from the Government of the South African Republic, 27th December, 1893 - 58 1. Acting High Commissioner to State President, 2nd December, 1886 2. British Agent to State Secretary, 14th December, 1886 - 3. British Agent to State Secretary, 5th January 1889 4. Acting High Commissioner to State President, 8th August, 1889 5. Acting High Commissioner to State President, 8th August, 1889 6. British Agent to State Secretary, 13th January, 1890 - ર ( I Page. 46 - 46 48 Page - 59 60 60 61 == 61 63 SOUTH AFRICAN REPUBLIC. PAPERS RELATING TO THE (6 GRIEVANCES OF HER MAJESTY'S INDIAN SUBJECTS IN TIE SOUTH AFRICAN REPUBLIC. date and Note. The treatment of Her Majesty's Indian Subjects residing in the South African Republic having been for many years a subject of controversy between Her Majesty's Government and the Government of the South African Republic, and it having been found impossible by the two Govern- ments to arrive at an understanding, it was agreed to refer the matters in difference to an Arbitrator-His Honour Melius de Villiers, Chief Justice of the Orange Free State. The first document is the text of the case laid before the Arbitrator by Counsel representing the British Government, and the papers following show the course of proceedings and the action taken by the various parties concerned. No. 1. CASE to be submitted to the ARBITRATOR on behalf of HER MAJESTY'S GOVERNMENT. 1. Under Article 14 of the London Convention all persons, other than natives, conforming themselves to the laws of the South African Republic— (a) will have full liberty, with their families, to enter, travel, or reside, in any part of the South African Republic: (b) will be entitled to hire or possess houses, manufactories, warehouses, shops, and premises (c) may carry on their commerce, either in person or by any agents whom they may think fit to employ: (d) will not be subject in respect of their persons cr property, or in respect of their commerce or industry, to any taxes, whether general or local, other than those which are or may be imposed upon citizens of the said Republic. 2. The word "natives" (inboorlingen) does not include Her Majesty's Asiatic subjects resident in the South African Republic, consequently these Asiatics were entitled to full privileges of Europeans thereunder. 3. On the 28th of January 1885 in forwarding to the Secretary of State a despatch of 8th January 1885 from the South African Republic, in which that Government inquired what meaning should be attached to Article 14, seeing that it was desired to deal with Indian Coolies and other Asiatics, the High Commissioner (Sir Hercules Robinson recommended an amendment of Article 14 by inserting the words "African Natives or Indian or Chinese Coolie Immigrants." He added "the article as amended would still "leave the few Arab traders at present in Pretoria entitled to the liberties secured "under the existing article to all persons other than natives, and I can see no sufficient grounds for their being deprived of these rights." The Secretary of State (Lord Derby) replied on the 19th of March, that if Sir Hercules Robinson was of opinion that it would be preferable and more satisfactory to the Government of the South African Republic to proceed as he (Sir Hercules Robinson proposed, Her Majesty's Government. would be willing to amend the Convention as suggested; but that it seemed to deserve consideration whether it would not be more correct for the Volksraad to legislate in the proposed sense, having received an assurance that Her Majesty's Government would not desire to insist upon any such construction of the terms of the Convention as would interfere with reasonable legislation in the desired direction. This despatch was com- municated to the Government of the South African Republic, together with Sir Hercules Robinson's despatch to which it was a reply, and thereafter Ordinance No. 3 of 1885 A 3 6. + was passed, which provided inter alia that Asiatics settling in the Republic should be registered, that those entering in future should pay for registration, and should not be allowed to hold landed property in the Republic, and that in no case should Asiatics be able to acquire the rights of citizenship, and that the Government should have the right to point out to them their proper streets, wards, and locations, where they should reside. 4. Complaints having been received by Sir Hercules Robinson as to this law, he wrote to the Government of the South African Republic on the 16th of October 1885, referring them to the last paragraph of his despatch to the Secretary of State of 28th January, and pointing out that the new law appeared to be a breach of the under- standing upon which Her Majesty's Government waived their right to insist on a strict interpretation of the terms of the Convention of London. Sir Hercules Robinson informed the Government of the South African Republic that it was expressly understood by the Secretary of State that the proposed legislation was not to apply to Arab traders or merchants, but to Indian or Chinese coolie immigrants. It should here be stated that the word "coolie" as used officially in England is invariably limited to Asiatic labourers, and does not embrace persons of a superior class. The Government of the South African Republic in a reply dated the 23rd of December 1885, referred to Lord Derby's assurance that "Her Majesty's Government "will not desire to insist upon any such construction of the terms of the Convention as "would interfere with reasonable legislation in the desired direction," and added that the law had received no wider construction than that represented in their letter of the 8th January 1885, in which their request was made known. S Sir Hercules Robinson, in forwarding to the Secretary of State, on the 20th January 1886, the further correspondence above mentioned, pointed out that the argument of the South African Republic was based on the assumption that the words "proposed sense" and "desired direction" in Lord Derby's despatch, did not refer to his (Sir Hercules Robinson's) proposal or recommendation as embodied in his despatch of the 28th January 1885, but to the request of the Government of the South African Republic, as represented in their letter of the 8th of January 1885. Sir Hercules Robinson expressed the opinion that that was not Lord Derby's meaning. The Secretary of State (Lord Granville, who had succeeded Lord Derby) replied on the 24th of February 1886, that he could not accept the explanation offered by the South African Republic, and desired that the law in question might be revised, as it was in direct opposition to the views of Her Majesty's Government, and in its existing form a contravention of the Convention of London. 5. In consequence, amendments to the law were passed in 1886, and forwarded to Sir Hercules Robinson in a letter dated the 6th of September 1886, in which the Government of the South African Republic explained that the object of the law was a sanitary one, and stated that they had no disinclination to let that object appear more clearly. Accordingly, among other amendments, the words "for sanitary purposes were introduced more than once. "" Sir Hercules Robinson, in sending the amended law to the Secretary of State on the 29th of September 1886, recommended that, as Lord Derby had informed the South African Republic that Her Majesty's Government would not insist on such a con- struction of the Convention as would interfere with reasonable legislation, and as the Government of the South African Republic had asserted that the restrictions imposed by the law were necessary for the sake of the public health, the law should not be opposed. The Secretary of State (Mr. Stanhope) replied on the 4th of November 1886, that having regard to the amendments introduced into the law of 1885, Her Majesty's Government did any longer ece occasion to object to the legislation. 6. The amendments bearing upon this question were that in clause 2 subsection (1), it was provided that the Asiatics could not own landed property, save only in the streets, wards, or locations which the Government shall, for sanitary purposes, point out for habitation, and that sub-section (d) was amended so as to give the Government the power, for sanitary purposes, of showing them (the Asiatics) fixed streets, wards, and locations, for habitation. There is nothing in this law which prevents Her Majesty's Asiatic subjects from carrying on their business or trade in any portion of a town. 7. The words "for sanitary purposes," and "for habitation" shall be construed as referring to the dwelling places of such traders and not to places of business. 8. The words "streets and wards" have reference to the special quarter of the town which may be assigned to such persons who may be residing in the town; the word "locations" has reference to a special place which may be assigned to such persons who may be residing not in towns but in country places. 9. Her Majesty's Government agreed to raise no objection to reasonable legislation in the desired direction, and claims to be entitled to interpret this assent as above set forth, MAG 7 That all the places of business of these Indian and other Asiatic traders, being British subjects, should be closed, many of them having been established for years, and that the traders should be compelled to have their shops, as well as their residences, in assigned locations, is an unreasonable and incorrect construction of the Ordinances above set forth, and there exists no sanitary necessity for the adoption of any such course. 10. If the Ordinances bore this interpretation, they would be unreasonable legislation, and not such as it would have been in the contemplation of Her Majesty's Government to assent to. Upon the above grounds Her Majesty's Government claims (a.) That the Indians and other Asiatic traders, being British subjects, be allowed to reside in the towns of the South African Republic, in some quarter (wards and streets) which, for sanitary reasons, may be assigned to them. (b.) That they be allowed to carry on their trade or business in shops or stores in any part of the town. The Arbitrator shall be free to decide either in favour of the claims put forward by Her Majesty's Government or by the South African Republic, or to lay down such interpretation of the said Ordinances, read together with the despatches referring to the question, as shall appear to him to be correct. Documents referred to in the foregoing case, copies of which should be supplied to the Government of the South African Republic, if desired, and which should be placed before the Arbitrator at the Arbitration: 1. Convention of London, 1884. [See No. 1 in Appendix A. 2. Despatch from Government of South African Republic of January 8th, 1885 (covering a despatch to Lord Derby). [See Enclosure in No. 2 in Appendix A.] 3. Despatch of Sir H. Robinson to Secretary of State, January 28th, 1885. [No. 2 in Appendix A.] 4. Despatch from Secretary of State (Lord Derby), No. 130, March 19th, 1885. [No. 3 in Appendix A.]. 5. Ordinance No. 3 of 1885 of South African Republic. [Enclosure 4 in No. 4 in Appendix A.] 6. Letter from Sir H. Robinson to Government of South African Republic, October 16th, 1885. [Enclosure 1 in No. 4 in Appendix A. 7. Letter from Government of South African Republic to Sir H. Robinson, December 23rd, 1885. [Enclosure 3 in No. 4 in Appendix A.] 8. Despatch from Sir H. Robinson to Secretary of State, January 20th, 1886 [No. 4 in Appendix A.] 9. Despatch from Secretary of State (Lord Granville) to Sir H. Robinson, February 24th, 1886. [No. 5 in Appendix A.] 10. Ordinance of 1886 (South African Republic), amending Ordinance No. 3 of 1885. [See Enclosure 2 in No. 6 in Appendix A.] 11. Letter from Government of South African Republic to South African Republic to Sir H. Robinson, September 6th, 1886. [Enclosure 1 in No. 6 in Appendix A.] 12. Despatch of Sir H. Robinson to Secretary of State, September 29th, 1886. [No. 6 in Appendix A.] 13. Despatch of Secretary of State (Mr. Stanhope) to Sir H. Robinson, November 4th, 1886. [No. 7 in Appendix A.] 14. Government Notice of South African Republic in "Staats Courant," September 27th, 1893. [No. 8 in Appendix A.] 15. Government Notice of South African Republic to Indians, December 29th [? 27th], 1893. [No. 9 in Appendix A.] No. 2. SIR H. B. LOCH to the MARQUESS OF RIPON. (Received January 26, 1895.) Government House, Cape Town, January 8, 1895. MY LORD MARQUESS, WITH reference to previous correspondence, I have the honour to enclose a translation of the South African Republic's case in the arbitration now pending relative to British Indian subjects in the South African Republic. I have, &c. HENRY B. LOCH, Governor and High Commissioner. A 4 8 Enclosure in No. 2. EXPLANATION of the so-called COOLIE QUESTION now pending between HER MAJESTY'S GOVERNMENT and the GOVERNMENT of the SOUTH AFRICAN REPUBLIC. 1. Article 14 of the London Convention of 1884 stipulates :-"All persons, other "than natives, conforming themselves to the laws of the South African Republic (a) "will have full liberty, with their families, to enter, travel, or reside in any part of the "South African Republic; (b) they will be entitled to hire or possess houses, manu- "factories, warehouses, shops, and premises; (c) they may carry on their commerce, "either in person, or by any agents whom they may think fit to employ; (d) they will not be subject, in respect of their persons or property, or in respect of their commerce or industry, to any taxes, whether general or local, other than those which are or may "be imposed upon citizens of the said Republic." (i CC 2.-(a.) It was not the intention of the contracting parties to comprehend under the term "all persons, &c.," Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire, but only Europeans and their descendants. (b.) The South African Republic is therefore not prevented by Article 14 of the London Convention from laying down such laws as may seem fit to them with respect to Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire. (6 3.-(a.) The Government of the South African Republic being of opinion that the letter of Article 14 of the Convention did not entirely agree with the intention of parties approached Lord Derby, then Secretary of State, by letter, dated 6th January 1885 (G.B. 1., No. 9), with the question "whether, according to the opinion of Her "Majesty's Government, this Government is at liberty under the Convention now in "force to make such regulations with regard to said coloured persons (namely, Coolies, Arabs, and other Asiatics) as appear to it to be in the interests of the inhabitants of "this Republic, and if not, whether Her Majesty's Government will by its concurrence 66 empower this Government to wholly or partially meet the wishes of the memorialists "of European descent, copies of whose memorials were sent to Her Majesty's "Government." - " (b.) It is the contention of the Government of the South African Republic that the spirit of Lord Derby's reply, dated 19th March 1885 (G.B. 1., enclosure to No. 14), read in connexion with the letter from the High Commissioner, dated 28th January 1885 (G.P. 1. enclosure to No. 14) addressed to Lord Derby, copies of both of which letters were transmitted to the Government of the South African Republic by Her Majesty's Government, contain an acknowledgment of the fact that the letter of Article 14 of the Convention does not agree with the true intention of parties as explained in Article 2, and that Her Majesty's Government is therefore bound by such acknowledgment, and that the Government of the South African Republic is consequently at liberty to make such conditions with reference to the residence of Asiatics in the South African Republic as it thinks fit. (c.) The Government of the South African Republic, trusting to the assurance of Lord Derby, as explained in his letter, dated 19th March 1885 (G.B. 1. enclosure to No. 14), that Her Majesty's Government would not oppose reasonable legislation in the direction desired by the South African Republic, presented to the Hon. Volksraad in 1885 a Bill respecting Coolies, Arabs, and other Asiatics, which Bill was converted into law by that body as Law No. 3, 1895. 66 4. After the passing of this law, Her Majesty's Government complained to the Government of the South African Republic that the stipulations appearing in said law respecting Arabs would be in conflict with Article 14 of the Convention, and not in accordance with the intention of Lord Derby's assurance, as mentioned in paragraph 3 c. 5.-(a.) Although the stipulations respecting Arabs in Law No. 3, 1885, were not in conflict with Article 14 of the Convention, and also entirely within the bounds as desired. by Lord Derby; the Government of the South African Republic had no objection to propose to the Volksraad certain small amendments in Law No. 3, 1885, and in its letter, dated 5th September 1886 (G.B. 1., No. 32), addressed to the High Commis- sioner, it stated, after communication of the amendments to be proposed, inter alia: This Government is of opinion that, by the introduction of these amendments the objections will cease which may hitherto have existed with Her Majesty's Government "and its views will have been met. This Governinent will be glad to learn from your "Excellency a confirmation thereof." 9 (b.) In reply to the letter mentioned in paragraph 5a, the High Commissioner, on the 2nd December 1886, sent a letter (G.B. I., No. 37) to the Government of the South African Republic, in which, inter alia, it was said that the writer had received the directions of Her Majesty's Government to inform the Government of the South African Republic, "That Her Majesty's Government do not see occasion any longer to object to the legislation of the South African Republic in regard to Asiatics, having regard to the amendments which the Volksraad has introduced into the law of 1885.” (c.) The amendments in Law No. 3 1885, as proposed by the Government of the South African Republic, and in which Her Majesty's Government had expressed its concurrence, were confirmed by the Hon. Volksraad as Law No. 1, 1887 (amending Law No. 3, 1885). 66 46 6. After the approval expressed by Her Majesty's Government, as mentioned in paragraph 5c, Her Majesty's Government can no longer take up the position that the actions of the Governinent of the South African Republic respecting Coolies, Arabs, and other Asiatics are not in accordance with the letter of Article 14 of the Convention, nor that they are in conflict with the intention of the assurance given by Lord Derby (as mentioned in paragraph 4c). 7.-(a.) The actions of the Government of the South African Republic about which Her Majesty's Government complains are in accordance with Law No. 3, 1885, approved by Her Majesty's Government as amended by Law No. 1, 1887. (b.) The word "location," used in the amended Law No. 3, 1885, does not alone refer to pieces of ground reserved for coloured persons (Kleurlingen) outside the proclaimed villages, but also to pieces of ground intended for places of residence of coloured within the village lands. persons (c.) The words "for habitation (ter bewoning) used in article 26 and 2d of the amended law No. 3, 1885, apply to the places of business as well as the sleeping places of the coloured persons mentioned in the law, and the Government of the South African Republic has, therefore, the right to prevent them from carrying on business in villages or other places than those pointed out by it. (d.) The word "Coolie " means, in the South African Republic, every person belonging to, or descended from, the native races of Asia. "" 8.-(a.) Her Majesty's Government must be considered, by its concurrence as indicated in paragraph 56, to have acknowledged that, for the protection of the sanitary condition amongst the white population, separation of the coloured persons specified in the amended Law No. 3, 1885, was necessary, and that protection cannot be obtained if the coloured persons are allowed to be, during the whole day with the exception of the time meant for night's rest, in places of business in the midst of the white population. (b.) The explanation of "for habitation" as given in paragraph 7c, for the reasons explained in paragraph 8a, is in accordance with the spirit of the law approved by Her Majesty's Government. (c.) The High Court of the South African Republic, by judgment of 14th August 1888, in the matter of the application of Ismael Suliman and Co., also interpreted the words ("ter bewoning") for habitation as stated in paragraph 7c. 9.-(a.) Moreover, Her Majesty's Government was also of opinion that the interpre- tation given in paragraph 7c gave the intention of parties, and that, therefore, the Government of the South African Republic, under the Amended Law No. 3, 1885, was entitled to refuse to coloured persons mentioned in that law licences to do business at other places than pointed out by the Government of the South African Republic. (b.) In the letter from the British Agent at Pretoria to the Government of the South African Republic, dated 14th December 1888 (G. B. 11, No. 8), and more especially in the enclosure to that letter, being a letter from the High Commissioner to the British Agent, the Government of the South African Republic is requested not to put into operation the Amended Law No. 3, 1885, before the Honourable Volksraad shall have further decided thereon, and to renew licences granted before the passing of Law No. 3, 1885. (c.) Her Majesty's Government took up the same standpoint in its letter of 5th January 1889 (G. B. 2, No. 11), in its telegram of 8th August 1889 (G. B. 2, No. 19), and in its letter of 8th August 1889, with enclosures (G. B. 2, No. 20). (d.) Her Majesty's Government has only since January 1890 assumed another position, the same as now explained in the memorial addressed by the Counsel in this B I 88060. · 10 case to his Honour the Arbitrator, and in its letter dated 13th January 1890, with enclosures (G. B. 2, No. 27). (e.) The Government of the South African Republic is of opinion, however, that Her Majesty's Government remains bound to the standpoint once taken up in paragraph 9a, b, and c. 10. On grounds of the above, the Government of the South African Republic alleges (a.) That the South African Republic has full liberty to make such regulations as it may think fit respecting Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire. (b.) That Her Majesty's Government has no ground for objection if the Government of the South African Republic forbids Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire to have places of business in villages or towns at places other than those pointed out by the Government. 11. It is the wish of the Government of the South African Republic that his Honour the Arbitrator, taking notice in this matter of the explanations of the case as given by Her Majesty's Government and by it, and of the correspondence referred to therein, may decide as may appear right and just to him the Arbitrator. 12. Copics of the documents referred to in this memorial will be placed in the hands of the Arbitrator, and will be sent to Her Majesty's Government if desired. References. 1. Convention of London, 1884 [No. 1 in Appendix A.]. 2. Letter from the Government of the South African Republic to Lord Derby, dated 6th January 1885 (G. B. 1, No. 9) [Enclosure in No. 2 in Appendix A.]. 3. Reply from Lord Derby, dated 19th March 1885 [No. 3 in Appendix A.]. 4. Letter from the High Commissioner, dated 28th January 1885 [No. 2 in Appendix A.]. 5. Law No. 3, 1885 (S. A. R.) [Enclosure 4 in No. 4 in Appendix A.]. 6. Letter from the Government of the South African Republic to the High Commis- sioner, dated 6th September 1886 [Enclosure 1 in No. 6 in Appendix A.]. 7. Reply from the High Commissioner, dated 2nd December 1886 [No. 1 in Appendix B.]. 8. Law No. 1, 1887 (S. A. R.), Amending Law No. 3, 1885 [see Enclosure 2 in No. 6 in Appendix A.]. 9. Judgment of the High Court of the South African Republic in the case of the application of Ismael Suliman and Co., dated 14th August 1888 [Copies not received at Colonial Office]. 10. Letter from the British Agent at Pretoria to the Government of the South African Republic, dated 14th December 1888, with annexure to that letter, being letter from the High Commissioner to the British Agent [No. 2 in Appendix B.]. 11. Letter from Her Majesty's Government to the Government of the South African Republic, dated 5th January 1889 [No. 3 in Appendix B.]. 12. Telegram from Her Majesty's Government to the Government of the South African Republic, dated 8th August 1889 [No. 4 in Appendix B.]. 13. Letter from Her Majesty's Government to the Government of the South African Republic, dated 8th August 1889, with enclosure [No. 5 in Appendix B.]. 14. Letter from Her Majesty's Government to the Government of the South African Republic, dated 13th January 1890, with enclosure [No. 6 in Appendix B.]. No. 3. The MARQUESS OF RIPON to SIR H. B. LOCH. [Answered by No. 9.] Downing Street, March 22, 1895. SIR, I HAVE the honour to transmit to you a copy of a letter * addressed to Mr. Buxton by Mr. Arnold Forster, M.P., respecting the alleged expulsion of Indian traders from Krugersdorp, and I request that you will call on the British Agent at Pretoria for a report on the subject. *Not printed. I have, &c. } RIPON. 11 19 No. 4. SIR H. B. LOCH to the MARQUESS OF RIPON. (Received April 16, 1895.) MY LORD MARQUESS, WITH reference to previous correspondence respecting the arbitration as to the rights of British Indian subjects in the South African Republic, I have the honour to enclose, for your Lordship's consideration, a copy of a report by Mr. Searle, Q.C., the Counsel appointed to watch the case on behalf of Her Majesty's Government. Government House, Cape Town, March 26, 1895. I have, &c. HENRY B. LOCH, Governor and High Commissioner. Enclosure in No. 4. REPORT upon the PROCEEDINGS at the ARBITRATION held at BLOEMFONTEIN upon the INDIAN TRADERS' QUESTION. Cape Town, March 23, 1895. SIR, I HAVE the honour to report that I left Cape Town on the evening of March 13 for the purpose of appearing on behalf of Her Majesty's Government at the Arbitration upon the Indian Traders' Question to be held at Bloemfontein on the 16th. I arrived at Bloemfontein on March 15, and the following morning appeared on behalf of Her Majesty's Government with Mr. Curlewis, junior counsel, and Mr. Rooth (of Messrs. Rooth and Wessels), attorney, before His Honour Chief Justice M. de Villiers, the Arbitrator. Mr. Esselen, State attorney, with Messrs. Jeppe and Coster, as junior counsel, appeared for the Government of the South African Republic, which was also represented by Dr. Leyds, the State Secretary, who held a power of attorney from President Krüger, and by Messrs. Nell and Lorenz, attorneys. It was arranged that nothing more than the preliminaries, matters of procedure, &c. should be settled at the meeting on Saturday. The Arbitrator in opening the proceedings, expressed the hope that they would be conducted in a friendly spirit, and that his award would as far as possible give satisfaction. to all parties concerned. It was arranged the proceedings should be in private, and that either the English or the Dutch language should be used, as suited the speaker's convenience, that the Registrar of the High Court (in which building the arbitration was conducted) should be appointed to take notes of the proceedings, and to record all documents put in, and that the sheriff of the Court should also be in attendance. The Arbitrator raised the question of a deed of submission, and regretted that none had been drawn up between the two Governinents. I explained that the Governments considered the letters which had passed between them relative to the submission of the question to his Honour, as sufficient, in place of a formal deed, and I offered, if thought necessary, to put in copies of certain of these letters, which, however, had not then reached me from Cape Town. Mr. Esselen concurred in my views. The letters, however, were not eventually put in. I put in a copy of the case drawn up on behalf of Her Majesty's Government, with copies of the documents in the Schedule annexed to the case. Mr. Esselen put in a copy of the case for the Government of the South African Republic and handed in two " Green Books," the official books of the State, containing correspondence petitions, Volksraad Resolutions, opinions, &c. upon the question at issue. I objected to the Green Books being put in in this manner and to any documents therein being used for the purposes of this case, save those scheduled to either statement of case. Mr. Esselen contended that all the documents in the Green Books should be before the Arbitrator. The Arbitrator took time until Monday to consider the admissibility of the evidence. In answer to his Honour who pointed out that the terms of submission in the case for the South African Republic were wider than those in the case for Her Majesty's Government, the latter apparently limiting him to " an interpretation of the Ordinances and Despatches referred to," I stated that Her Majesty's Government had raised no objection to the terms of the contention on behalf of the Government of the South African Republic, when the latter's statement of case was forwarded to it, and would B 2 12 now leave the Arbitrator free to decide either in terms of the submission of Her Majesty's Government, or of the Government of the South African Republic. I then asked for information from Mr. Esselen as to whether oral evidence was to be adduced in support of the contention of his Government. Mr. Essclen took up the position that the Arbitrator should first decide upon the legal points raised, and that in the event of his decision being unfavourable to the Government of the South African Republic, the latter Government should be entitled to call witnesses to prove the necessity, for sanitary purposes, of the course sought to be adopted, and that for this purpose a postponement might be granted. I objected to the above views and proposal, and contended that if the other side was desirous of calling witnesses, such should be called at this one sitting, and due intimation given at once in order that Her Majesty's Government might be prepared with rebutting evidence. The Arbitrator stated that it did not seem to him that oral testimony was contemplated when the statements of case were prepared by either Government; that the mere opinions of different persons upon the sanitary necessity or otherwise for the removal of Indian shops would have little or no weight with him, and that under all the circumstances he would decide to exclude oral testimony. An adjournment was then made until Monday 18th. At this sitting the Arbitrator expressed an opinion that all despatches and letters between the two Governments or their representatives, whether annexures or not to the statements of case, might be used as evidence, and that the Green Books might be put in subject to the understanding that the Arbitrator should not consider any documents therein, save such despatches and letters and their enclosures. He suggested to me that I should agree to this course, and withdraw my objection on this understanding, pointing out that the submission in the case for Her Majesty's Government appeared to contemplate that all despatches should be considered, if necessary. I agreed to the course proposed. The Arbitrator stated that the Government of the South African Republic should have had copies made of the documents upon which they relied, so as to have avoided the putting in of the Green Books in this manner. A question having been raised as to my power to appear on behalf of Her Majesty's Government, I put in a telegram from Her Majesty's High Commissioner, and consented to commence the argument on behalf of Her Majesty's Government on condition of having a right of reply to Mr. Esselen. Mr. Esselen expressed himself as entirely satisfied with my authority to represent Her Majesty's Government. I concluded my opening argument in the afternoon of Monday, whereupon Mr. Esselen commenced and continued during the morning of Tuesday March 19th and portion of the afternoon. I then replied and the proceedings closed between five and six o'clock on that day. At the conclusion of the arguments the Arbitrator intimated that he would reserve his decision, and would in due time communicate the award, either written or printed, to each Government. He stated there were certain necessary costs-for example, fees to the Registrar and Sheriff, printing the award, &c., &c., and wished to know if there was any arrangement upon this head. Upon the question of costs, I stated that it had been arranged between the two Governments that each side should bear the costs incurred by it, whatever the issue of the case, but that the general costs of the Arbitration-for example, any costs incurred by or on behalf of the Arbitrator, should be borne in equal shares by either Government. Mr. Esselen corroborated this. I may state that both Mr. Curlewis and Mr. Rooth rendered valuable assistance throughout the proceedings. The latter has represented the leading Indian and Asiatic Traders for many years past in the Transvaal in connexion with this question, and was therefore well acquainted with the history of the case. He had obtained the evidence. of four witnesses, medical men and others, two from Johannesburg and two from Pretoria, as to the absence of any necessity for the removal of the Indian shops to locations, from a sanitary point point of view. These witnesses were in readiness to start for Bloemfontein at short notice, if it had been decided that oral evidence was to be taken, and their statements were in readiness for use. Certain small fees for "qualifying" to give evidence will be payable to the medical witnesses. Whilst satisfied that it would have been quite necessary to produce some oral evidence, if the Government of the South African Republic had called witnesses, Messrs. Curlewis, Rooth and myself all agreed that it would be better, if possible, in the interests of our case, to avoid the calling of witnesses, as it was felt that the weight of testimony would $ 1 • 13 probably be on the other side to the extent, at all events, that it would have been shown that it would be advantageous, for sanitary purposes, that many of the shops of the Asiatics should be removed from the European quarter. Mr. Leonard, who had been approached by the Indians with a view to his services being obtained at the Arbitration on their behalf, also, I am informed, concurred in this view. Every arrangement conducing to the convenience and comfort of those appearing at the Arbitration was made by the Arbitrator and the officials of the Free State Government. To the Imperial Secretary. No. 5. LIEUTENANT-GENERAL GOODENOUGH to the MARQUESS OF RIPON. (Received April 29, 1895.) Government House, Cape Town, April 9, 1895. MY LORD MARQUESS, I HAVE the honour to enclose for your Lordship's information a letter which I have received from the secretary to the Arbitration Court covering : (1.) The award in the recent arbitration case between Her Majesty's Government and the Government of the South African Republic. (2.) The reasons for the above. (3.) Memo. of expenses. I enclose also a copy of the reply which I have caused to be addressed to the Secretary. In communicating these papers to your Lordship I desire to place on record my high sense of the courtesy and patriotism of the Government of the Orange Free State, who, by placing at the disposal of the two parties to the arbitration the services of a gentleman of the eminence and high legal attainments of Chief Justice Melius de Villiers, have aided in the settlement of a long standing dispute. I desire also to place on record my appreciation of the public spirit shown by the Chief Justice, who has, in the conduct of this case, given to the two litigants the advantage of his great legal experience as well as of a conscientious, painstaking, and laborious attention to the various arguments advanced in support of the conflicting claims. 63 I have, &c. I trust, therefore, that the thanks of Her Majesty's Government may be conveyed to the Government of the Orange Free State and to Chief Justice de Villiers. M. W. Searle. Enclosure 1 in No. 5. • I have, &c. W. H. GOODENOUGH, Lieut.-General, Administrator and High Commissioner. Bloemfontein, Orange Free State, April 3, 1895. SIR, I AM directed by his Honour the Arbitrator to forward the following relative to the arbitration matter between Her Majesty's Government and the Government of the South African Republic. 1. His award. 2. Reasons for same. The Imperial Secretary to His Excellency the High Commissioner, Cape Town. 3. Press copy of memorandum of expenses, which are to be equally borne by the respective Governments. Kindly own receipt and oblige. * Not printed. I have, &c. CLEM. A. HANGER, Secretary to the Arbitrator. B 3 14 • AWARD of the ARBITRATOR with reference to the matters in controversy between the Government of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the Government of the South African Republic, relative to Article 14 of the Convention of London of 1884, Law No. 3, of 1885, of the South African Republic, as amended in 1886, and certain correspondence between these two Governments. Whereas certain questions have arisen between the Government of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the Government of the South African Republic with reference to the 14th Article of a certain Convention entered into in London on the 27th day of February 1884 by the representatives of the said Governments, on behalf of the said Governments respectively, with reference to Law No. 3, of 1885, enacted, and in the year 1886 amended, by the Volksraad of the South African Republic, and with reference to certain despatches thereunto relating. And whereas the said Governments have agreed to submit the said questions to arbitration, and have nominated me, the undersigned, Melius de Villiers, as arbitrator, to decide and determine the matters in controversy between the said Governments; and I, the arbitrator so nominated, have taken upon myself the burden of such arbitration. And whereas it has been agreed, on behalf of the said Governments, that the arbitrator, taking into consideration the statements of the case put forward by the Government of Her Majesty and the Government of the South African Republic respectively, and of the correspondence therein cited, might decide as to him, the arbitrator, should appear to be equitable and just. And whereas Her Majesty's Government, in their statement of the case, claim :-- 66 (a.) That the Indian and other Asiatic traders, being British subjects, be allowed to reside in the towns of the South African Republic in some quarters (wards and streets) which, for sanitary purposes, may be assigned to them. "(b.) That they may be allowed to carry on their trade or business in shops or stores in any part of the town." And whereas the Government of the South African Republic, in their statement of the case, claim: : "(a.) That the South African Republic is fully entitled to make such regulations concerning Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire as it may think fit. GC "" (b.) That Her Majesty's Government is not entitled to object when the Government of the South African Republic prohibit Coolies, Arabs, Malays, and Maho- medan subjects of the Turkish Empire from having business premises in villages and towns on other places than those assigned by the Government. And whereas I, the said arbitrator, have heard the counsel instructed on behalf of the said Governments respectively, and considered their arguments, and have carefully investigated the aforesaid questions and the documents relating thereto. And whereas it was agreed and understood that I, the said arbitrator, should give my award on the aforesaid questions in writing, in duplicate, to be communicated to the Governments before-mentioned respectively. Now, therefore I, the said arbitrator, do make this my award in writing, in manner following, that is to say :- (a.) The claims of Her Majesty's Government and of the Government of the South African Republic respectively are disallowed, save and except to the extent and degree following, that is to say: (b.) The South African Republic is bound and entitled in its treatment of Indian and other Asiatic traders, being British subjects, to give full force and effect to Law No. 3, of 1885, enacted, and in the year 1886 amended, by the Volksraad of the South African Republic, subject (in case of objections being raised by or on behalf of any such persons to any such treatment as not being in accordance with the provisions of the said law as amended) to sole and exclusive interpretation in the ordinary course by the tribunals of the country. In witness whereof I, the said Melius de Villiers, have hereunto set my hand, this 2nd day of April 1895. MELIUS DE VILLIERS. 15 REASONS of the Arbitrator for his Award with reference to the matters in controversy between the British Government and the Government of the South African Republic relative to Article 14 of the Convention of London, Law No. 3, of 1885, of the South African Republic, as amended in 1886, and certain correspondence between the two Governments. Sec. 1. The questions in controversy between Her Majesty's Government and the Government of the South African Republic relate to the interpretation and effect of the 14th Article of the Convention of London, entered into by the two Governments; of the terms in which assent was given by the British Government to legislation on the part of the South African Republic on certain matters in connexion with that Article; of Law No. 3 of 1885, enacted by the Volksraad of the South African Republic, and subsequently amended by that legislative body; of the terms in which assent was given by the British Government to this enactment; and of the despatches which passed between the two Governments on the subjects to which the above-mentioned Article of the Convention and Law No. 3 of 1885, as subsequently amended, refer. Sec. 2. Article 14 of the Convention of London is to the following effect :- All persons, other than natives, conforming themselves to the laws of the South African Republic-- (a) will have full liberty, with their families, to enter, travel, or reside in any part of the South African Republic; (b) will be entitled to hire or possess houses, manufactories, warehouses, shops, and premises; (c) may carry on their commerce either in person, or by any agents whom they may think fit to employ; (d) will not be subject in respect of their persons or property, or in respect of their commerce or industry, to any taxes, whether general or local, other than those which are or may be imposed upon citizens of the said Republic. Sec. 3. In the same year that the Convention of London was signed an agitation was set on foot in the South African Republic against "the threatened invasion of Asiatics "such as already has commenced at Pretoria "; and memorials were sent in to the Volksraad strongly urging that the influx of such Asiatics should be restricted by law. In a petition (of this document and of some others that originally appeared in Dutch, the translation is my own), signed by T. W. Beckett and 86 others, the memorialists say, amongst other things,- "We fear that if his Lordship (Lord Derby, then Secretary of State) should be "of opinion that Asiatics should enjoy the same privileges as Europeans who "come to settle in this State, this would be in conflict with our Constitution, "which recognises only two races of men-white and coloured; and the clause "in the Constitution relative to this matter remained unaltered during the time of the British Government.' "" 66 "Our knowledge of South African affairs and of the use and meaning of the word native creates the conviction that the representatives of the South African Republic, and of Great Britain, could only and exclusively have meant by the "words:- 66 66 6 CC 6 "I. All persons,' all Europeans and their descendants: 6 II. Natives,' the aboriginal races of South Africa and their descendants: "Indeed the meaning of the two expressions, used in the Conventions of Pretoria and "of London, was quite limited in intention and application to the conditions of 66 Southern Africa, and it would be equally incorrect to suppose that the ' aboriginal races of Asia, America, and Australia are included in the expression "of the Convention, natives,' as to suppose that they would be included under "the expression of the Convention, all persons'. "The aborigines of Asia, America, and Australia, are out of the question and have "nothing to do with our conditions.' >> After adducing a number of arguments against Asiatic races being allowed freely to settle in the territory of the South African Republic, the petition ends with the following words:- "Lastly, and with further reference to the 14th Article of the Convention of London, "we have the honour to observe that if the Right Honourable Lord Derby B 4 16 "should be of opinion that our reading is not the correct one, it "then becomes evident that the well-educated Christian natives of South Africa, "under the said London Convention and the Constitution of this Republic, are "held to occupy a lower and far less advantageous position in this State than "the common Hindoo coolie and the other aborigines of the other parts of the "world. We hope and trust that the Right Honourable Lord Derby shall be willing to 66 devote such attention to this matter as its importance so urgently demands, "and that he shall be willing to elucidate and declare the substance of Article 14 of the London Convention in such a manner that you will be enabled to take such steps as may seem to you to be requisite to protect the joint interests of the subjects of Her Majesty and of the citizens of this "State." 66 (( 66 Sec. 4. Another petition addressed to the Volksraad stated:- "That the population of the Arabians and coolies is much increasing in this town and in this State. "That your memorialists, after extensive and careful investigation, founded on the experience and acts of legislative bodies of other countries, are of opinion that the present system by which Arabians and coolies are permitted to settle in any part of the towns of this Republic, and more especially in the centres and principal streets should be abolished in the interest of the inhabitants of this State, and this for the following reasons :- "(a.) Your petitioners are in a position to prove that all sanitary measures are neglected in the extreme in the dwelling houses of the Arabians and coolies, and that their mode of living is loathsome. "(b.) Your petitioners further wish to bring to your notice that at a meeting of the most influential inhabitants of the town held on the it has been stated by the district surgeon, that by allowing the Arabians and coolies to live amidst a white population the development and spreading of epidemics, and of the consequent deaths, are much accelerated. And it is apparent that, if these Arabians and coolies are isolated within their own locations, quite separated from the white population, such epidemics can be counteracted sooner and with more effect, not only for the welfare of the Arabians and coolies themselves, but also in the interest and for the protection of the white inhabitants." * * * Sec. 5. A counter petition was also presented to the Volksraad by certain Arab merchants, in which they draw attention to the difference between themselves and coolies, Chinese, &c.; and contradict certain assertions made in the petitions presented by the white inhabitants and pray that their demands might not be acceded to. Sec. 6. A letter dated 6th January 1885 (G.B., 1 No. 9 p. 21), was thereafter sent by the Government of the South African Republic to Lord Derby, on the subject of the petitions which were enclosed therewith. In this letter the writer referred amongst other things to the fact that a few years since Orientals had emigrated from Asia or Northern Africa, nearly all of them being storekeepers and had settled in the Republic, and that gradually an agitation had been begun against these persons, which had found expression in the newspapers, in a certain pamphlet, and in numerously signed petitions to the Volksraad, which went inainly to show their unsuitability as residents in the country and the detrimental effect that would follow their being allowed to trade in competition with whites, and he continued by stating that the Volksraad was not unwilling to meet the wishes of the white petitioners, entirely or partly; for example, by assigning to the Orientals thus immigrated locations or wards within certain prescribed limits. The letter here referred to ended thus:- "The view taken in this last petition (that set out in part in paragraph 3 above), is to the effect that the London Convention does not relate to the persons against whom the petitioners raise their complaints. "I beg to request that your Lordship will be so good as to acquaint this Government as to the views of Her Majesty's Government on the subject—that is, whether, in the opinion of Her Majesty's Governinent, this Government is at liberty under the Convention now in force, to frame such regulations relative to the coloured persons referred to as may appear to it to be in the interests of the 17 ! + inhabitants of this Republic, and if not, whether Her Majesty's Government by its assent will empower this Government to meet either entirely or partly the wishes of the petitioners of European descent." Sec. 7. His Excellency the High Commissioner, Sir Hercules Robinson, in forwarding this letter to the Secretary of State in an accompanying despatch, dated 28th January 1885 (G.B.I., p. 27), wrote as follows:- "1. I have the honour to enclose a letter from the State Secretary of the South African Republic which has been forwarded to me for transmission to your Lordship. "2. "Mr. Bok encloses petitions and other documents relating to the position of Asiatics in the South African Republic, and in connexion with the question raised, asks what meaning is attached by Her Majesty's Government to Article 14 of the London Convention. * * "The point raised is whether Arabs, Indian Coolies, Malays, Chinese, and other Asiatics are to be considered "Natives," or whether they are included amongst the persons other than natives to whom certain specified rights are secured. "3. C 6 "4. Article 14 of the London Convention (with the exception of the substitution of the words South African Republic' for Transvaal State') is the same as Article 26 of the Convention of Pretoria. The latter Article, as originally drafted by the Royal Commission and agreed to by the representatives of the Boers, ran as follows:- The subjects of Her Majesty conforming themselves to the laws, &c., &c.' When this Article was telegraphed to Lord Kimberley, he in his message of the 27th July 1881, instructed me to omit the subjects of Her Majesty' and insert all persons other than natives,' which was done. < < * * * * "7. As it was doubtless not the intention of Lord Kimberley to prohibit the Transvaal Government from adopting, if necessary, special legislation for the regulation of Indian or Chinese coolie immigrants, I should be disposed to recommend that the Government of the South African Republic be informed that Her Majesty's Government will be willing to amend Article 14 of the Convention by inserting the words African natives cr Indian or Chinese coolie immigrants.' The Article would then run as follows:- All persons, < other than African natives or Indian or Chinese coolie immigrants, conforming themselves to the laws of the South African Republic will have full liberty with their families to enter, travel or reside, &c., &c.' C 6 "8. The Article as amended would still leave the few Arab traders at present in Pretoria entitled to the liberties secured under the existing Article to‘all persons other than natives,' and I can see no sufficient grounds for their being deprived of their rights." 6 Sec. 8. It may be conveniently noticed here, in the first place, that the point raised was not quite that which it was understood by Sir Hercules Robinson to be; the contention was rather that there had not been any intention on the part of the parties to the Convention to include Asiatics amongst either "other persons than natives," or amongst "natives.” This was also, later, the contention of counsel for the South African Republic before the arbitrator. This contention amounted in fact to this: that the representatives of Her Majesty's Government had solely in view the interests of European or white settlers in the South African Republic; and that at the time the Convention of London was signed, and still more so at the time the Convention of Pretoria (Article 26 of which, slightly modified, as stated by his Excellency in his despatch last referred to, became Article 14 of the later Convention) was signed, there was as yet no such general influx of foreign coloured natives that the exclusion of any but the natives of South Africa from the privileges granted in that article should have been thought of as necessary. In the second place, it may be remarked that the reference in the concluding passage of Sir Hercules Robinson's despatch to "the few Arab traders at present in Pretoria,' left it not quite clear whether his Excellency wished only to safeguard the "rights" of those few Arab traders whom he stated to be then at Pretoria; and what in prospect of "the threatened invasion of Asiatics, such as had already commenced at Pretoria," as alleged in the petitions above referred to, his views were as to Arabs who might subsequently settle in that country. I 88060. Ü "" 18 Sec. 9. The Secretary of State, Lord Derby, replied on the 19th March 1885 in a despatch to the High Commissioner (G.B.I., p. 29) in the following terms :- "I have carefully considered your suggestion as to the amendment of the Convention, and if you are of opinion that it would be preferable, and more satisfactory to the Government of the South African Republic, to proceed as you propose, Her Majesty's Government will be willing to amend the Convention as suggested. It seems to deserve consideration, however, whether it would not be more correct for the Volksraad to legislate in the proposed sense, having received an assurance that Her Majesty's Government will not desire to insist upon any such construction of the terms of the Convention as would interfere with reasonable legislation in the desired direction." This despatch was communicated to the Government of the South African Republic, together with the despatch of the High Commissioner to which it was a reply. Sec. 10. It will be seen hereafter that the construction subsequently placed by the Government of the South African Republic upon the concluding words of this despatch differed from that placed upon them by Her Majesty's Government. The former held that the words "legislation in the desired direction" should be read in connexion with the letter forwarded by that Government to Lord Derby on 6th January 1885 (sec. 6 above), and were intended to mean legislation in the direction in which the Volksraad had expressed a desire to legislate; the latter held that these words should be explained as referring to the High Commissioner's despatch of 28th January 1885 (sec. 7 above), and meant the same as "legislation in the proposed sense"; that is to say, "special legislation for the regulation of Indian or Chinese Coolie immigrants." 66 Sec. 11. Acting, however, it seems, upon what they conceived to be the purport of Lord Derby's despatch above referred to, and having before them the correspondence which had passed between the two Governments on the subject, the Government of the South African Republic prepared and laid before the Volksraad a draft law, which, with some slight modifications, was adopted by the Volksraad as Law No. 3 of 1885. enactment was to the following effect :- This "1. This law applies to persons belonging to any of the aboriginal races of Asia, including thereunder the so-called Coolies, Arabs, Malays, and Mahommedan subjects of the Turkish Empire. "2. With respect to the persons referred to in sec. 1, the following provisions shall be in force: 66 (a.) They shall not acquire citizenship in the South African Republic ; 6C (b.) They shall not be owners of landed property in the Republic. This provision has no retroactive effect; "(c.) Those who settle in the Republic with the object of trading, &c. shall have to be inscribed in a register, to be specially kept for that purpose by the Landdrosts of the respective districts, according to a model to be prescribed by the Government. "With this registration, which shall have to be effected within eight days after arrival, the sum of 257. (twenty-five pounds) sterling shall be payable. Contravention of the provisions contained in c shall be punishable by a fine of from 107. (ten) to 1007. (one hundred pounds) sterling, which shall be substi- tuted in default of payment, imprisonment for not less than fourteen days and not more than half a year. "The registration above referred to shall be effected without payment in the case of those who have settled in the Republic before the date upon which this law shall come into operation; provided that they shall have announced themselves to the Landdrosts in the case of Pretoria within eight days, and in the case of other districts within thirty days after such date. "(d.) The Government shall have the right to assign to them special streets, wards, and locations for habitation. "This provision shall not apply to those who reside with the masters in whose service they are." Sec. 12. On 9th October 1885, Mr. Michell, joint general manager of the Standard Bank of South Africa, sent a communication to his Excellency the High Commissioner, Sir Hercules Robinson (G.B.I., p. 36) in which he complained of the operation of the Law No. 3 of 1885, passed in respect of Coolies, Arabs, and Asiatics generally. On the 16th of that month the Imperial Secretary in Cape Town wrote a letter to the State 19 Secretary of the South African Republic, in which (G.B.I., No. 22, p. 36), after referring to the complaints thus made, he says:— "His Excellency desires me to refer you to the last paragraph of his despatch to the Secretary of State, a copy of which was forwarded to you in my letter, and to point out that the new law relating to Asiatics, if Mr. Michell has correctly apprehended its effect, is a breach of the understanding upon which Her Majesty's Government waived their right to insist upon the strict interpretation of the terms of the Convention of London. "It was expressly understood by the Secretary of State that the proposed legislation was not to apply to Arab traders or merchants, but to Indian or Chinese Coolie immigrants. His Excellency trusts, therefore, that the Government of the South African Republic will be able to assure him that merchants or traders of the class men- tioned in Mr. Michell's letter, and especially such as are British subjects, will enjoy the same privileges as are secured by the Convention of London to all persons other than natives.' C > "" Sec. 13. With reference to the last preceding letter, it was pointed out to the arbitrator by counsel for the South African Republic, that the Secretary of State had, as a matter of fact, not given any express intimation that the proposed legislation should not apply to Arab traders or merchants. The Imperial Secretary's reference, however, undoubtedly is to the general assent given by the Secretary of State on 19th March 1885 (vide sec. 9 above) to the suggestions of Sir Hercules Robinson contained in his despatch of 28th January 1885 (vide sec. 7 above) which, as before stated, he concluded by saying that Article 14 of the Convention, if amended as proposed by his Excellency, would not apply to the few Arab traders at Pretoria at the time when his Excellency wrote. Sec. 14. Again, on 24th October 1885, the Imperial Secretary to the High Commis- sioner, Sir Hercules Robinson, wrote a letter (G.B.I., No. 23, p. 38) to the State Secretary of the South African Republic, in which, referring to certain disabilities. complained of by a certain Mr. Cronwright as having been imposed upon Arab merchants, he expressed his Excellency's view that such disabilities constituted a breach of the understanding on which Her Majesty's Government waived their right to insist on a strict interpretation of the terms of the Convention of London, and intimated that his Excellency would be glad to receive an early assurance that merchants of that class had been relieved from those disabilities. Sec. 15. Amongst other further correspondence the Government of the South African Republic, in a letter of 23rd December 1885, signed by the State Secretary (G.B.I., No. 26, p. 41) defended its action with respect to Law No. 3 of 1885, and submitted that the law passed had no wider application than that proposed in the despatch from that Government of 6th January 1885 (vide par. 6 above), and stated that the law had been passed only after the Government had gratefully received the assurance of Her Majesty's Government contained in Lord Derby's despatch of 19th March 1885 (vide sec. 9 above). Sec. 16. On 20th January 1886 the High Commissioner forwarded a despatch to the British Government asking for instructions upon this subject. No copy of this despatch was served upon the Government of the South African Republic, and it is, therefore not necessary to recite any part of it. Sec. 17. On 24th February 1886 the Secretary of State (Lord Granville, who had succeeded Lord Derby) wrote to the High Commissioner, requesting the latter to inform the Government of the South African Republic that he was unable to accept the explanation offered in the State Secretary's letter of 23rd December 1885 (vide sec. 15 above), and that he must desire that the law in question may be revised, "as it is in "direct opposition to the views of Her Majesty's Government, and in its present form " is a contravention of the Convention of London." (G.B.I., p. 43.) Sec. 18. In a letter of 6th September 1886 (G.B.I., No. 32, p. 45) to the High Commissioner, the State Secretary on behalf of the Government of the South African Republic expressed its regret that the provisions of the Law No. 3 of 1885 were not quite in accordance with the views of Her Majesty's Government, and that there had been an apparent misconception as to the understanding upon which the British Government had waived its right to insist upon the strict interpretation of the Conven- tion of London :- "It appears (it is remarked) that there likewise exists a misconception in respect of the object with which the law referred to was made. It was for the sake of the C 2 20 general sanitary conditions, with a view to the experience gained in other countries and colonies, and also already in this country, very desirable and necessary to take measures of a sanitary nature in respect of those foreign Orientals who have settled themselves here in increasing numbers, and that first after the Pretoria Convention was signed, and selected their residences every- where in the midst of the white population. It was to meet this necessity and the wishes in accordance therewith expressed by the memorialists (most of them British subjects) and already brought to the notice of Her Majesty's Govern- ment, that the law referred to was passed. "This Government is not disinclined to let that object appear more clearly and to meet the views of Her Majesty's Government. It has, therefore, asked and obtained from the Volksraad authorisation to amend Law No. 3 of 1885, on the following basis":— > Receipt of this letter was duly acknowledged on 29th October 1886 (G.B.I., No. 34, p. 47). Sec. 20. Thereafter, on the 4th November, the Secretary of State (then Mr. Stanhope) withdrew his objections to the law which had been under discussion, in a despatch to the Acting High Commissioner (G.B.I., p. 48), in the following terms:- "I have the honour to inform you that Her Majesty's Government do not see occasion any longer to object to the legislation of the South African Republic in regard to Asiatic traders, having regard to the amendments which the Volksraad has introduced into the law of 1885. I have to request that a communication in this sense may be addressed to the Government of the Republic." This despatch was duly communicated to the Government of the South African Republic. Sec. 21. On the 26th January 1887 the law, as amended, was promulgated in the "Gouvernements Courant" of that date. Article 26 of Law No. 3 of 1885 was now inade to read as follows:- 6 They shall not be owners of landed property in the Republic, except in those streets, wards, and locations that the Government shall for sanitary purposes assign (aamrijzen) to them.” Article 2d was altered thus:- The Government shall have the right for sanitary purposes to assign (aamrijzen) to them special (bepaalde) streets, wards, and locations for habitation.' 21 Therewith it was supposed by the legislature of the South African Republic that the matter was finally settled (G.B.I., p. 51). Sec. 22. Thereafter, however, fresh difficulties arose out of the action of the Govern- ment of the South African Republic. It appears, in short, that in cases where locations had been assigned to the Asiatic natives, the authorities in that Republic, acting, it is alleged, under the provisions of Law No. 3 of 1885, as amended, required certain Indian merchants, claiming to be British subjects, to conduct their trade within such locations, and refused them licences to do so elsewhere. Sec. 23. In August 1888 the firm of Ismael Sulieman & Co. (Arab merchants) applied to the High Court for an order to compel the Landdrost to issue to them a licence for trading purposes in the town of Middelburg. The court refused to grant this order, in a judgment given on the 18th of the month. To this judgment it will be necessary to refer again. Sec. 24. Complaints having been made to the British Government on behalf of Indian merchants in the Republic, correspondence ensued between the two Governments with reference to the position of these persons. The South African Republic in the statement of its case (Sec. 96 & c) places much reliance upon a certain letter from the British Agent at Pretoria of 14th December 1888 (G. B. 2, No. 8, p. 5) and annexure thereto, a letter of 5th January 1889 (G.B. 2, No. 11, p. 7), a telegram of 8th August 1889 (G.B. 2, No. 19, p. 12) and a letter of even date with annexures (G.B. 2, No. 20, p. 13) as shewing that up to towards the end of the year 1889, the British Government and its representatives virtually admitted the right of the Government of the South African Republic to act as it had done by urging on the latter to defer any action in respect to the Indian traders till the meeting of the Volksraad, and that licences prior to the law of 1885 should be renewed, and "to postpone putting the law into effect "until sufficient time has elapsed for a reconsideration of the question by the Raad." In the last-named letter Sir Hercules Robinson writes:- "Whilst fully appreciating the difficulties of your Honour's Government in this matter, I trust that you will be able to meet in some respect the wishes of the Indian traders. It appears to me that the traders may reasonably claim that the law should respect vested interests, and should not apply to persons who acquired rights previous to the enactment of the law, on the faith of the protection accorded by the conventions of Pretoria and London." Also in the annexure, being a despatch from Lord Knutsford to Sir Hercules Robinson of 1st April 1889, this passage occurs: "Her Majesty's Government fully appreciate the difficulty which the President may feel in interfering with the execution of the law, but they trust that it inay yet be found possible in some way to meet, to a greater extent than at present, the wishes of the Indian traders, and not to press the law in its full strictness against any reasonable objections which they may make." (I have underlined the passages specially relied upon.) Sec. 25. It was urged before the arbitrator on behalf of the Government of the South African Republic that Her Majesty's Government was bound to the standpoint alleged to have been once assumed by them and could not be heard to allege that the law did not apply where they had once virtually made an admission that the law did apply and only asked that action upon it might be stayed till the next session of the Volksraad; and that the Government and Volksraad of the South African Republic were justified in acting upon such admission. On the other side it was contended that Her Majesty's Government were merely at the time not inclined to press for the full effect of the law, properly construed, but that this was at a time when it was thought that the Volksraad was going to sit, and that the matter would then be conveniently settled. Sec. 26. On 14th January 1890, a letter dated the 13th was received by the Govern- ment at Pretoria from the British Agent there (G.B. 2, No. 27, p. 22), with an enclosed despatch from Lord Knutsford to Sir Henry Loch, who had then been appointed High Commissioner, which relates to further complaints continuing to be made by Indian traders, and contains the following passage:- "The right of residing, trading, &c., under the London Convention appears to be restricted, as regards Asiatics by the law of 1885, amended in 1886, by requiring residence in certain localities selected for sanitary reasons and by registration but not otherwise; and if trading licences are granted to other peisons on application, Indian traders have clearly a right to obtain them. - 0 3 22 Moreover the law only prescribes locations for "habitation," and there does not appear to be any prohibition as to trading in places other than locations." Sec. 27. After some further correspondence a lengthy communication dated 18th February 1890 was despatched by the State Secretary of the South African Republic to the High Commissioner (G.B. 2, No. 38, p. 30). It is unnecessary to cite this communication in full. In view, however, of the fact that the Government of the South African Republic appeals to the judgment given by the High Court of that country in the matter of the application of Ismael Sulieman & Co., which has already been referred to, as one of the grounds for its claims as set forth in the statement of its case, and in view of the remarks it will be incumbent upon me hereafter to make with reference to this point, it is necessary to cite that portion of this communication that refers to this judgment, and also to cite further correspondence relative to it. Sec. 28. The writer in the communication of 18th February 1890, just referred to, says:- 66 I have the honour to refer to a certain judgment of the High Court of this State, given towards the end of the year 1888. "This judgment was the result of an action to order the Landdrost of Middelburg to issue a licence to Ismael Sulieman & Co. to carry on business on a certain premises, No. 148, situate within the town just mentioned. "The applicants had, in order to obtain this licence, tendered 77. 10s. to the Landdrost. "He refused to issue it, but pointed out a place for which the licence could be obtained. "After the arguments had been heard, the Chief Justice said that the application could not be granted. As the Chief Justice remarked, Law No. 3, 1885, made provision that the Government had the right for sanitary purposes to assign locations where coolies could live, and the question was whether this signified that they could only live there or also carry on business. "An Arab, the Chief Justice remarked, could live at several places, for he has in many cases more than one wife. "The Chief Justice felt no difficulty about the expression "for habitation," and can therefore make no distinction between places where persons carried on business and those where they lived. "The Government is bound to respect this judgment (heeft dze intspraats te cerbiedigen), and has also no reasons for not agreeing therewith, especially with a view to the requirements demanded from it in respect of the promotion of sanitary conditions." Sec. 29. In a reply to the above letter, addressed to the State President and dated 3rd March 1890 (G.B. 2, No. 39, p. 33), the High Commissioner wrote as follows: 6 "I observe that you quote the judgment of the Chief Justice of the High Court who stated that he had no difficulty as to the expression for residence and could make no distinction between places of trade' and 'residence,' but it is clear from the context that the Chief Justice intended to speak of places of trade which were inhabited by a portion of the family of the trader. For he explains that an Arab has in many instances more than one family and could therefore reside in several places. The judgment quoted therefore does not apply to the contention urged in the Secretary of State's Despatch, that an Indian trader may inhabit (or, as I would interpret the expression, sleep), in a location, and yet be lawfully entitled to trade in the town. "But whatever may be the true interpretation of the judgment of the High Court, and Her Majesty's Government would, in this as in all matters, desire to give weight to the opinions of the High Court of the Republic, it must be borne in mind that Her Majesty's Government are entitled to define the interpretation of the law which was intended and contemplated when they assented to the deviation from the provisions of the Convention. Sec. 30. An answer to the foregoing was sent on the 30th April 1890 (G.B. 2, No. 42, p. 35.), in which the State Secretary of the South African Republic wrote:- 44 The Government regrets that it finds it impossible to adopt your reading of this judgment The Chief Justice 23 1 declared that, basing his view on the existing law, he could make no distinction between places where persons carried on business and those where they lived, and did not grant the application. "This Government is grateful to your Excellency for the declaration, of which, indeed, they never had any doubt, that Her Majesty's Government would desire in this, as in all matters, to give weight to the opinions of the High Court of this Republic. It naturally is open for the Indian traders, just as to any other persons, to continue applying to that Court when they consider themselves aggrieved, and it would undoubtedly put an end to the existence of a twofold interpretation of the judgment which has been given if parties in similar circumstances again betook themselves to the High Court. "The Government feels quite assured that then also it would appear that its inter- pretation of the judgment is the correct one. "Your Excellency's second remark relates to the right of Her Majesty's Government to define the interpretation of the law which was intended and contemplated when Her Majesty's Government assented to the deviation from the provisions of the Convention setting aside the principle which, in the opinion of this Government, is a correct one, that the lawgiver, when any doubt arises as to the interpretation of existing laws, is the person indicated to give such inter- pretation; this Government must, with reference to this contention, again refer to what it tried to make evident in its letter of February last, &c." Sec. 31. In the "Staats Courant," of the South African Republic, of 27th September 1893, appeared a Resolution of the Volksraad, of 8th September (G.B. No. 2. 105, p. 79.), to the effect that Law No. 3, of 1885, should be strictly applied in such manner that all Asiatics and persons falling under the law should have to confine themselves, in respect both of habitation and of trade, to the locations assigned to them, with the exception of those whose leases (entered into before the locations had been assigned) had as yet not expired. A Government Circular, embodying this Resolution, was subsequently published (G.B. 2, No. 113, p. 85.). Other correspondence besides that to which reference has already been made also took place (more particularly between the British Resident at Pretoria and the Govern- ment of the South African Republic), but as it is not relied upon by either of the Governments concerned, it need not be further noticed. Sec. 32. No satisfactory settlement of the questions at issue between the twe Governments having been arrived at, it was agreed to submit them to arbitration. xc Sec. 33. In the Statement of the Case drawn up on behalf of Her Majesty's Govern- ment, the claims put forward were:- (a.) That the Indian and other Asiatic traders, being British subjects, be allowed to reside in the towns of the South African Republic, in some quarter ("wards and streets") which for sanitary reasons may be assigned to them; and (b.) That they be allowed to carry on their trade or business in shops or stores in any part of the town. Sec. 34. In the Statement of the Case drawn up on behalf of the Government of the South African Republic, the claims put forward on behalf of that Government, were :— (a.) That the South African Republic has full liberty to make such regulations in respect of coolies, Arabs, Malays, and Mohammedan subjects of the Turkish Empire, as it may think fit; and (b.) That Her Majesty's Government have no ground of objection should the Government of the South African Republic prohibit coolies, Arabs, Malays, and Mohammedan subjects of the Turkish Empire from having business premises upon any places in towns or villages other than those assigned to them by Government. Sec. 35. It was agreed on 16th March 1895, on behalf of the two Governments, in terms of paragraph 11 of the Statement of Claim of the South African Republic, " that "the Arbitrator, taking into consideration the Statements of the Case put forward by Her Majesty's Government and the Government of the South African Republic, respectively, and of the correspondence therein cited, might decide as to him, the "Arbitrator, should appear to be equitable and just. "" Sec. 36. The facts of the case being thus far stated, I propose now to deal with the arguments advanced on both sides, so far as they appear to me to be of materiał importance to the case, and to state the grounds for the conclusions at which I have arrived. The arguments thus advanced relate to the interpretation and effect of C 4 WorM 24 Article 14 of the Convention of London, and the position of the two Governments with reference thereto; to the terms in which Her Majesty's Government expressed their willingness to waive any such interpretation of the Convention as would interfere with reasonable legislation and the effect of such waiver; to the terms in which Her Majesty's Government withdrew their objections to Law No. 3 of 1885 as amended in 1886 and the effect of such withdrawal; and to the construction and effect of the amended Law No. 3 of 1885 itself. Sec. 37. It was contended, in the first place, on behalf of the South African Republic, that it was not the intention of the parties to the Convention of London to include in the words "all persons other than natives," Coolies, Arabs, Malays, and Mohammedan subjects of the Turkish Empire; and that the Convention should be interpreted accordingly. Sec. 38. In support of this contention, it was argued that if the literal interpretation of Article 14, as claimed by the British Government, were adopted, it would lead to certain unreasonable consequences, which could never have been in the contemplation of the contracting parties. Sec. 39. The arguments favourable to this contention may be summarised as follows:- (1.) That inasmuch as the constitution of the South African Republic, the terms of which could not have been unknown to the British Government, lays down that no equality between the white and coloured races shall be tolerated, it cannot be supposed that there was any intention on the part of the delegates of the South African Republic to assent to, or on the part of the British Government to insist upon, any such breach of the Constitution as would be involved (with a literal reading of the Convention) in placing upon a footing of equality Europeans and foreign coloured races. (2.) That it cannot be presumed that it was the purpose of the contracting parties to place Christianised, civilised, and educated natives of the country in a far worse position than foreign heathen coloured races, such as Polynesians, Papuans, and Hindoos, as would actually be the case if a literal interpretation were adopted. (3.) That every European nation or nation of European origin has an absolute and indefeasible right to exclude alien elements which it considers to be dangerous to its development and existence, and more especially Asiatic elements, from settling within its territory; and that there is a strong presumption against any intention on the part of the delegates of the South African Republic to surrender this right, or on the part of Great Britain to insist upon a surrender of this right, more especially in favour of foreign coloured races who are not presumed to be the subjects of international rights (since international law is not supposed to exist otherwise than between civilised European_races) and in some of whom (such as Polynesians, Papuans, &c.) Great Britain has absolutely no concern. Sec. 40. In favour of a restrictive interpretation of the Convention, moreover, it was argued that, with the possible exception of a few Arab settlers who came into the country after the Convention of Pretoria, the influx of Arabs after the Convention of London was a newly emergent circumstance which the parties to the Convention never had in contemplation, and to which their attention could never have been directed; that the ratio legis for the exclusion of natives of South Africa applied with as much, if not greater, force to Asiatic natives; and that this ratio legis must be taken into consideration in the interpretation of Article 14 of the Convention. Sec. 41. It is possible and, indeed, seems probable, from the terms of his Excellency the High Commissioner's letter of 28th January 1885 (vide sec. 7 above) that in making use of the expression "persons other than natives," the representatives of Her Majesty' Government had, as a matter of fact, in view solely the interests of white or European persons settling in the South African Republic, and that other coloured races than those native to South Africa were not thought of; and that in a country where a sharp line of demarcation is drawn between white and coloured races generally (as is apparent from the constitution of the South African Republic) apparently no efforts should have been made by its representatives to have the terms of exclusion made of wider applica- tion than to merely natives of South Africa, seems also to lend some support to such a supposition. Moreover it does not seem probable on the one hand that the South African Republic would willingly have agreed, without remonstrance, to surrender in 25 favour of foreign coloured races one of the most precious privileges of a young community-that of deciding for itself of what materials the future nation shall be built up; nor, on the other hand, that the British Government would deliberately have placed educated, Christianized, and civilised natives of South Africa in a worse position than foreign heathen coloured races. Nevertheless, when Her Majesty's Government insisted upon a literai interpretation of Article 14 of the Convention, I am bound to hold that they were within their rights. For it is impossible to surmise what the Governments concerned would have done or would not have done had the subject of foreign coloured races expressly been brought to their notice. They might have made no stipulations in favour of Papuans and Polynesians, who now enjoy certain privileges, if included under the term "all persons other than natives" according to a strict interpretation of the Convention; on the other hand, the British Government might have insisted upon protecting the Indian and other Asiatic traders, whom alone in the present instance the British Government claim to protect. Accordingly, I do not feel at liberty to apply the alleged ratio legis for the exclusion of African natives to the case of foreign coloured races, and feel bound, therefore, to decide, as I do, against the general contention of the South African Republic that Article 14 of the Convention of London does not stand in the way of its making such legislative provisions as it may think fit, in respect of coolies, Arabs, Malays, and Mohammedan subjects of the Turkish Empire. And I do not consider that under the Convention the South African Republic is entitled to enact exceptional legislation in restriction of the liberty of Indian and Arab traders to have or to hire shops wherever they may like. Sec. 42. It was argued on behalf of the South African Republic that even if Law No. 3 of 1885 had been in conflict with the provisions of Article 14 of the Convention, yet the South African Republic would have been justified in passing that law, inasmuch as by international law a treaty becomes voidable so soon as it is absolutely dangerous to the welfare of the State in a manner that had not been intended, and that this was the case here. I cannot admit the force of this contention in the present instance, supposing the principle of international law to be such as here laid down. Sec. 43. It was further argued on behalf of the South African Republic that the Despatch of Lord Derby, of 19th March 1885 (vide sec. 9 above) read together with the letter of the High Commissioner of 28th January 1885 (vide sec. 7 above) con- stituted an admission that the literal interpretation of the Convention of London was not in accordance with the intention of the parties thereto; and that the British Government cannot withdraw from this admission after the South African Republic had acted upon it by adopting legislation to meet a case which, it followed from such admission, was really not provided for in the Convention. . 66 Sec. 44. To me there does not seem to be any such admission, at all events not any admission that would justify the position taken up on behalf of the South African Republic. In the passage from the High Commissioner's letter, "it was doubtless. "not the intention of Lord Kimberley to prohibit the Transvaal Government from "adopting, if necessary, special legislation for the regulation of Indian or Chinese coolie immigrants;" the words "to prohibit" may mean no more than "to refuse to allow." If this passage meant that the South African Republic should be entitled under the Convention, without reference to the British Government, to place Indian and Chinese coolie immigrants under the sanic disabilities as natives of South Africa, it would not have been necessary to amend Article 14 of the Convention in the manner suggested by his Excellency. With this view of mine on the contention just referred to it is not necessary for me to express any opinion as to what would have been the effect of any such admission as alleged on the part of the High Cominissioner, or to dwell longer on this point. · Sec. 45. As to the contention of the South African Republic that Law No. 3 of 1885 was passed only after the assent of the British Government had been given to reasonable legislation in the direction desired by itself (vide sec. 10 above), I am of opinion that the British Government merely assented to reasonable legislation, such as had been suggested by the High Commissioner, namely, "special legislation for the regulation of Indian or Chinese coolie immigrants." In view, however, of the assent later given by Her Majesty's Government to the legislation actually affected, any expression of opinion on this point can be of but little importance. 66 D I 88060. UorM 26 Sec. 46. As regards the terms upon which Her Majesty's Government gave their assent to Law No. 3 of 1885 (as subsequently amended), after that law had been passed it was contended on behalf of the South African Republic that after such assent had been given in the manner in which it was given, Her Majesty's Government could no longer raise the objection that that law was not in conformity with the 14th article of the Convention of London. I concur with this view entirely. j Sec. 47. The contention was advanced on behalf of Her Majesty's Government that in the execution of Law No. 3 of 1885 it must be considered that there are imported into the law the conditions under which the assent of that Government was given to that law. These conditions, I understood it to be asserted, were such that (1) any action taken under the law must not be unreasonable; and (2) any action taken under the law must be necessary for the protection of the public health. This leaves the question open; who in every individual case is entitled to decide whether any act is reasonable or unreasonable, or absolutely necessary for the protection of the public health or not necessary, but this is a question which it does not appear to me to be necessary now to discuss. Sec. 48. As regards the alleged requirement of reasonableness, I do not consider that it was imported into the law in any special degree by virtue of the assent given, in the manner given, to the law by the British Government. That Government having at first intimated that they would not oppose reasonable legislation in a certain direction had the opportunity of satisfying themselves when the enactment came before them as to whether its provisions were reasonable or not. They might have refused to give assent to it if they considered that it was not such legislation as they had declared they would not oppose, but having subsequently assented, no investigation can be further made as to whether it is unreasonable or not. If any act that was done in strict accordance with the law is impeached it is a sufficient answer to say that it was so done in strict accordance with the law, and there may be no after-inquiry at the instance of the British Government as to whether the act is reasonable or otherwise. Sec. 49. It does not seem to me, either, to be a very practical proposal to read this requirement in a special degree into the law passed by the Volksraad of the South African Republic, inasmuch as "reasonableness reasonableness "in itself is such an abstract and relative term that it would be difficult to lay down in any particular case what is reasonable or otherwise. In the present instance, of course, this requirement would have relation to the circumstances of the South African Republic, and would have to be judged of in the light of those circumstances; and it has been argued that, since the Legislature of that country were in a far better position to form a correct judgment as to what was reasonable or unreasonable with reference to local circumstances than a foreign Government could be, the endorsement by the Volksraad of the proceedings of the Government goes far to show the reasonable nature of such proceedings. It was also remarked that since, by the terms of the Convention, the South African Republic had the right to exclude entirely from its territory native races, a right of exclusion which Sir Hercules Robinson was willing to extend also to Indian and Chinese coolie immigrants, it could not be so unreasonable in the case of other coloured immigrants to exercise the smaller right of controlling their methods of trade. It is alleged that the methods of trade of the Asiatic races generally are such that it is most desirable for sanitary reasons that they should be entirely isolated. Of this I have no means of judging. Independently, however, of sanitary reasons, I must confess that I would not wish to undertake to say that there is anything unreasonable in itself in restrictions being imposed upon Asiatic trading in competition with that of white persons, supposing the allegations set forth in the various petitions to the Volksraad to be correct. The question as to whether anything is reasonable or unreasonable in any case entirely depends upon the circumstances of that case, to those accustomed to the habits of thought prevalent in countries where a certain state of things does not present itself as a pressing danger that may appear unreasonable which in another country, where this state of things threatens the welfare of the community may appear to be an absolutely necessary act of national self-preservation. Things, too, may appear in a very different light to the doctrinal theorist and the man of practical experience. I need hardly point out the numerous instances where principles theoretically unreasonable have been adopted as the bases of practical legislation; as where, in some of the States of the American Union, intermarriage between whites and blacks, and education in common schools of white and black children are prohibited by the con- stitution; or where laws for the exclusion of Chinese have been passed in Australia and Maou · 27 Canada. In these cases it cannot be supposed that the legislation was, under the special circumstances of each particular case, unreasonable. And in connexion with this point, may here cite the remarks of a recent writer who shows a wide knowledge of the subject with which he deals, in preference to putting forward any opinion of my own with regard to the United States Chinese Exclusion Act. He writes as follows :- I "The justice of Chinese exclusion is clear when we once apprehend that it is a matter of life and death to the European race to keep to itself those temperate regions, such as the United States and Australia, in which alone they can live in health That the industrial extermination of the white labourer is the inevitable result of unrestricted Chinese immigration has been proved beyond question in America and Australia. It is understating the case to say that the standard of existence of the white labourer is lowered by Chinese competition. The white labourer cannot subsist on the wages of the Chinese, whose wants are fewer, as a result chiefly of his lower stage of civilization and partly of the fact that, unlike the white man, he has no family to support. The white labourer is simply starved out of existence, or driven out of the country. In a word, justice to Europeans demands Chinese exclusion." (Law Quarterly Review, Vol. X., p. 269. ` Recent Questions of International Law.) Very similar arguments are used by the memorialists in the petitions to which I have already referred with regard to Indian and Arab competition in business, and they are possibly not quite unfounded. Sec. 50. With regard to the alleged requirement of reasons of public health for any act done under Law No. 3 of 1885, I hold that no such requirement is imported into Law No. 3 of 1885 through the terms of the assent of the British Government; but that sanitary reasons are required only so far as that law itself in express terms requires them. If the law was not explicit enough the British Governinent could have withheld their assent thereto; having given their assent, they cannot object to proceedings, supposing these to be in strict accordance with the law, because unforeseen consequences have ensued. Sec. 51. With respect to the assent given by Her Majesty's Government to Law No. 3 of 1885, it is clear that it was given without reserve, condition, or qualification. Two letters relate to it. In the first, Sir Hercules Robinson says that, in view of the opinion of the State President of the South African Republic that the law was necessary for the protection of the public health, he would not advise Her Majesty's Government to offer further opposition to it. Supposing that, notwithstanding the later communica- tion made on behalf of Her Majesty's Government to the Government of the South African Republic, this letter must be regarded as affecting the position of the latter Government, I fail to see that his Excellency reserves any right to object to any act purporting to be done under the provisions of Law No. 3 of 1885, and actually so done, on the ground that in the opinion of himself or of Her Majesty's Government it is not necessary for the public health. His Excellency's motives in recommending the concession cannot affect the fact that the concession was actually made. If it were requisite in the execution of the law to have a regard to what was in the mind of the British Government or their representatives on the one side, it might be as necessary also to discover from the correspondence what was in the mind of the State President of the South African Republic on the other side, when he suggested that the proposed legislation was necessary for the sake of the public health; and it is not impossible` that it might then be argued that he had in view that complete "isolation" of Arabs and Coolies that was sought by some of the memorialists whose petitions had been forwarded by the Government of the South African Republic to Her Majesty's Government, and were referred to in the State Secretary's letter of 6th January 1885 (vide sec. 6 above). N Sec. 53. Be this, however, as it may, it is clear that in the second letter referring to this subject the assent given by the British Government to the enactment as amended was unqualified. It may be that Her Majesty's Government, in assenting, attached the same value to his Honour the State President's opinion as his Excellency the High Commissioner did; it may also be that they acted on their own judgment as to the merits of the law after it had been amended. It may be that they adopted his Excellency's motives, it may be that they acted upon distinctly different motives. In any case a simple intimation was made "That Her Majesty's Government do not see "occasion any longer to object to the legislation of the South African Republic in "regard to Asiatic traders, having regard to the amendments which the Volksraad has "introduced into the Law of 1885." D 2 28 It is obvious, then, that in so far as Law No. 3 of 1885 (as amended) derogated from the provisions of Article 14 of the Convention of London, such derogation was effected with the full approval of Her Majesty's Government. Sec. 54. Law No. 3 of 1885 was purely a municipal law of the South African Republic, and nothing that had occurred between the Government of that State and Her Majesty's Government could in any way affect its character as a purely municipal law. It is clear that being such, all the ordinary incidents of a municipal law (in so far as such incidents are not expressly or by necessary implication excluded) must attach to Law No. 3 of 1885. Sec. 55. I hold that when the British Government assented to the legislation effected by the Volksraad of the South African Republic, they were bound by the indisputable principle that the legislative enactments of a country are subject to the exclusive interpretation of the tribunals of that country; and they must be held to have acquiesced. in that principle. 1 I do not here refer to the so-called "authentic" interpretation by the legislative body itself, for though no doubt a legislative body, constituted of the same members as when it passed a law, would best know what it meant when it passed such law, yet such "authentic interpretation" must be considered as more in the nature of fresh legislation than of explanation of previous legislation. Sec. 56. It would be impossible for me anyway to assent to the contention put forward in the letter of his Excellency Sir Henry Loch, in his letter of 3rd March 1890 (vide sec. 29 above), to the effect that "Her Majesty's Government are entitled to "define the interpretation of the law which was intended and contemplated when they "assented to the deviation from the provisions of the Convention." Nor, in fact, do I understand that this contention is now insisted upon on the part of Her Majesty's Government. Sec. 57. It is perfectly clear that persons who settle in a foreign country are not only subject to its laws, but also to the interpretation of those laws by the legally appointed tribunals. When access to such tribunals is refused to them, or justice is in any other way denied to them, they may have a right to carry their complaints to the Government of the country of which they are subjects, and their Government may have a right to remonstrate; this also may be the case were the tribunals of the country incompetent to declare the law as over against the Government of the country, or were the Government to act in opposition to the decisions of its highest tribunals; but nothing of the kind is here asserted; in fact, the Government of the South African Republic in these despatches themselves suggest that the persons concerned should have recourse to the courts of the country; they rely upon a judgment of the High Court in defence of the position taken. up by themselves, and declare themselves bound to respect that judgment. It would be a calamitous and intolerable position that aliens in any country should be allowed to complain to their own governments that the local tribunals have erred in the interpreta- tion of the law of the country. The judgments of such tribunals over matters within their jurisdiction are final and of conclusive force everywhere; there can be no con- current jurisdiction in any extraneous body to interpret the law; nor can any appeal lie from such tribunals to any foreign body or government. Nor can it be supposed that the Volksraad, in acquiescing in the assent given by Her Majesty's Government, and in enacting the law, or in any subsequent proceeding, contemplated the possibility of the law by itself being subject to interpretation by any tribunal but those lawfully appointed in accordance with the constitution of the South African Republic. Sec. 58. Her Majesty's Government cannot reasonably insist upon greater rights and privileges on behalf of Her Majesty's subjects than those subjects themselves are entitled to claim. I hold, therefore, that on questions that have arisen, and on the various questions which possibly may still arise in the application of Law No. 3 of 1885, as amended in 1886, with reference to the interpretation and effect of that law, the decisions of the competent tribunals of the South African Republic must be considered as decisive both in respect of the individuals affected thereby and of Her Majesty's Government. Sec. 59. The further questions raised relate to the interpretation of Law No. 3 of 1885, as subsequently amended. These I need merely mention as having been mooted (with a few remarks that it seems to me not improper to make), as I hold it to be incompetent for me to give any decision thereon. Sec. 60. On the side of the Government of the South African Republic it was maintained- That the proceedings of that Government in regard to Asiatics resident in that country, which proceedings Her Majesty's Government complain of, were in + 29 conformity with the law passed in 1885, amended in 1886, and agreed to by the British Government; That the words "for habitation" used in sections 26 and 2d of the amended law have reference as well to places of business as to places for sleeping, and that therefore the Government of the South African Republic has the right to prohibit the coloured persons mentioned in the law to carry on business in towns in other places than those assigned to them for that purpose; That the word "location" used in the law referred to has reference not only to pieces of ground reserved for coloured races outside of proclaimed towns, but also to pieces of ground reserved for places of abode for such coloured persons on town lands; and That the word "Coolie " means in South Africa any person belonging to or descended from the native races of Asia. Section 61. On behalf of Her Majesty's Government, on the other hand, it was maintained- That there is nothing in the law of 1885 which prevents Her Majesty's Asiatic subjects from carrying on their business or trade in any portion of a town; That the words "for sanitary purposes" and "for habitation" should be construed as referring to the dwelling-places of such traders, and not to places of business That the words "streets and wards" have reference to the special quarter of the town ; which may be assigned to such persons who may be residing in the town; The word "locations" has reference to a special place which may be assigned to such persons who may be residing, not in towns, but in country places. (C Section 62. With reference to the contention put forward on behalf of Her Majesty's Government that the word "locations" has reference to special places which may be assigned to such persons who may be residing, not in towns, but in country places, I am not aware that this is any longer insisted upon; should it in any specific case be insisted upon, the matter may have to be decided by the courts of law of the South African Republic. Section 63. As regards the question whether the words "for habitation" and for sanitary purposes have reference only to dwelling places, and not to business premises, I would feel myself bound by any decision the High Court of the South African Republic may have given on the subject, were it necessary for me to give a decision thereon. It is indeed said that no actual decision on that point was given by the High Court. It is not for me to give an interpretation of the decision of the High Court, but if it be so that no such decision has actually been given, the point is one that may at any time arise, and then it will be with the tribunals of the South African Republic to give the necessary decision thereon. در Section 64. As regards the contentions of the South African Republic that its proceedings in regard to the Asiatics were in conformity with the law, it is clear that if the High Court of the South African Republic has decided that they were in conformity with the law, they must be deemed to be such. In every specific case, where pioceedings alleged to have been undertaken in execution of the law are impeached, it will be for the tribunals of the South African Republic to declare in how far such proceedings shall have been lawful or not. Section 65. With regard to the meaning of the word " "coolies," counsel for Her Majesty's Government fully admitted that in popular parlance no fine or very accurate discrimination is made between the different classes of Indian races, and that it is generally also applied to Arabs. This, however, is a matter ou which I need give no decision. Section 66. It may be proper here to remark that it was observed by counsel for Her Majesty's Government that in the present arbitration Her Majesty's Government insisted upon what they considered to be the true effect of the law taken into considera- tion with the despatches relating thereto, only so far as it affected British subjects, without prejudice to their right to object to this law (which related generally to the native races of Asia, including thereunder the so-called Coolies, Arabs, Malays, and other Mohammedan subjects of the Turkish Empire) in respect of the manner in which it affected other than British subjects. - Section 67. After consideration of the whole matter, I come to the conclusion (and upon this conclusion my award is based) that the claims of neither of the two Govern- ments concerned can be fully sustained, and that, in fact, they must be disallowed, in so far as they are not in accordance with the following principle, which, under the D 3 30 circumstances, I hold to be equitable and just; that is to say :-That the South African Republic is bound and entitled in its treatment of Indians and other Asiatic traders, being British subjects, to give full force and effect to the provisions of Law No. 3 of 1885 enacted, and in the year 1886 amended, by the Volksraad of the South African Republic, subject (in case of objections being raised by or on behalf of any such persons to any such treatment as not being in accordance with the provisions of the said law as amended) to sole and exclusive interpretation in ordinary course by the tribunals of the South African Republic. Section 68. It remains only for me to remark, with regard to the resolution of the Volksraad of the South African Republic of 8th September, 1893, marked Art. 1,353 (G.B. 2, No. 105, p. 79), that in terms of my award, Her Majesty's Government may rightly object to that resclution, and to any similar amplification by the Legislature of the South African Republic of Law No. 3 of 1885, as also to the circular of December, 1893, embodying that resolution. That resolution does not merely convey instructions to its own functionaries as to the execution of the above-mentioned law; it virtually also has the effect of establishing a legislative interpretation of that law which may or may not be in accordance with judicial decision, but which at all events the tribunals of the country will, no doubt, consider themselves bound in future to adopt and to recognise as having force of law, so long as it remains in existence. MELIUS DE VILLIERS. Bloemfontein, April 2, 1895. Enclosure 2 in No. 5. From IMPERIAL SECRETARY, Cape Town, to C. HANGER, Esquire, Secretary to Arbitration Court, Bloemfontein. SIR, Government House, Cape Town, April 9, 1895. I AM directed by his Excellency the High Commissioner to acknowledge the receipt of your letter of the 3rd instant, communicating the following documents : (1.) The Award in the recent Arbitration case between Her Majesty's Government. and the Government of the South African Republic. (2.) The reasons for the same. (3.) Memorandum of expenses. Ì am directed to enclose a cheque for 167. 17s. 3d., being the half-share of the expenses which is payable by Her Majesty's Government, and I will be glad if you will sign and return the enclosed vouchers. His Excellency will not fail to communicate to Her Majesty's Government his high sense of the courtesy displayed by the Government of the Orange Free State, and by his Honour the Chief Justice, in granting their valuable assistance for the settlement of a long standing controversy, but he desires to at once avail himself of this opportunity for tendering his sincere thanks to his Honour for his valuable, conscientious, and painstaking labours. I am directed also to express thanks to the officers of the court for the assistance rendered by them. G. Hanger, Esq., Secretary to Arbitration Court, Bloemfontein. I have, &c. No. 5. No. 6. LIEUT.-GENERAL GOODENOUGH to the MARQUESS OF RIPON. (Received May 11, 1895.) 1 GRAHAM BOWer, Government House, Cape Town, April 20, 1895. MY LORD MARQUESS, WITH reference to my Despatch of the 9th instant,* I have the honour to enclose, for your Lordship's information, a copy of a despatch which I have received from Her Majesty's Agent at Pretoria relative to the position of Indian traders in the South African Republic. : I Imperial Secretary. 31 I apprehend that the questions decided at the recent arbitration are no longer open to discussion, and that Her Majesty's Government are bound loyally to abide by the award of the arbitrator. 1 I have, &c. W. H. GOODENOUGH, Lieut.-General, Administrator and High Commissioner. 1 Enclosure in No. 6. From HER BRITANNIC MAJESTY'S AGENT, Pretoria, to His Excellency the HIGH COMMISSIONER, Cape Town. EXTRACT. Pretoria, April 12, 1895. I HAVE the honour to enclose, for your Excellency's information, a letter I received from the Indian traders at Johannesburg in reference to the recent award on the Asiatic question. Several deputations of Indians have also waited upon me for advice on the same subject. It is reported and expected that the Government of the South African Republic will soon take steps to close the Indian houses in towns and remove the traders to locations outside. This will inevitably result in the ruin of a large number of these people, who opened business under licences originally granted and subsequently refused. I am not acquainted with the views of Her Majesty's Government upon the subject, and consequently unable to give the Indians any answer. I shall therefore be glad to receive your Excellency's instructions how to act in the matter. HONOURABLE SIR, Johannesburg, April 10, 1895. WE, the undersigned British Indians, residing in Johannesburg and neighbour- hood, desire to bring to your notice that the result of the recent arbitration re our status in this Republic, held at Bloemfontein, in the Orange Free State, places us in a false position. We have always relied upon the 14th clause of the "London Convention," which entitled us to live, trade, travel, &c. in any part of this Republic. On the strength thereof we have established ourselves in business, and many, if not most of us, have large stocks of merchandise. + By the said arbitration it appears to us that we are, pure and simple, thrown upon the mercy of the law courts of this country, and if their power be supreme we may at any time be compelled to break up our respective businesses, and remove to locations which would mean absolute ruin to us. We have always observed the laws of this country as being the land we live in, and would therefore beg of you to protect our interests as you have always done, and for which we heartily thank you, so that we may not be driven to despair, and so commit any act that we might afterwards regret. Thanking your Honour in anticipation, To the Honourable Sir Jacobus de Wet, Her Majesty's British Resident, Pretoria. We have, &c. P. LEATHAPADIYACHY. AROOMOOGARN. R. COOPORSAMY NACKER. KISTNEISEMY. For the British Indian Community, Johannesburg and Suburbs. D 4 32 No. 7. Lieut.-GENERAL GOODENOUGH to the MARQUESS OF RIPON. (Received May 20, 1895.) Government House, Cape Town, April 29, 1895. MY LORD MARQUESS, I HAVE the honour to enclose for your Lordship's information a copy of a despatch which I have received from Her Majesty's Agent at Pretoria covering a petition from the Pretoria and Johannesburg Indian traders relative to the recent arbitration. It appears to me that the award of the arbitrator is binding on Her Majesty's Government, and that there is no course open but to abide by it. I have, &c. W. H. GOODENOUGH, Lieut.-General, Administrator and High Commissioner. Enclosure in No. 7. From HER BRITANNIC MAJESTY'S AGENT, Pretoria, to His Excellency the HIGH COMMISSIONER, Cape Town. His Excellency the High Commissioner, Cape Town. Government House, Cape Town, April 24, 1895. SIR, I HAVE the honour to transmit for your Excellency's information and instructions a petition received from the Pretoria and Johannesburg Indian traders, having reference to the arbitration on the Indian question at Bloemfontein in March last. I have, &c. J. A. DE WET, Her Britannic Majesty's Agent. To His Honour Sir JACOBUS DE WET, K.C.M.G., Her Majesty's Agent, Pretoria. THE memorial of Tayob Khan and Abdol Guny, of Pretoria, and Hajee Habeb, Hajee Dada, of Johannesburg, who act as a committee on behalf of the British Indian merchants in this Republic. We respectfully request your Honour to place yourself in communication with his Excellency the High Commissioner in order to ascertain whether Her Majesty's Government will be satisfied with the award given by the arbitrator in the recent arbitration held at Bloemfontein, in the Orange Free State, between Her Majesty's Government and the Government of the South African Republic on the Indian question. As your Honour is aware, the arbitrator has decided that Law 3 of 1885 as amended by Volksraad's Besluit of 1886, must be enforced by this Government, and that in the event of any dispute or difference as to the interpretation of that law, the High Court of this Republic must decide such difference. In one of the Green Books, No. 2, 1894, pp. 31 and 35, put in at the above-mentioned arbitration by the Government of this Republic statements are made to the effect that his Honour the Chief Justice, in giving judgment in certain application made before the High Court by Ismail Suliman and Co., held that no difference could be made between places where business is carried on or where Indians reside. In view of these facts, we respectfully submit, without in any way impugning the High Court, that it would be a foregone conclusion if the statements referred to above as to the judgment of the Chiet Justice be correct, that the judgment of the Court in any case submitted to it under the above quoted law would be against the Indian subjects of Her Majesty in this Republic. As, therefore, the arbitrator did not decide the question submitted to him in terms of the deed of submission, but practically left it to the decision of the High Court of this Republic, we would respectfully submit that the arbitrator did not decide the question in terms of the reference to him. We therefore respectfully request your Honour to communicate with Her Majesty's Government and ascertain whether they will be satisfied with the above award and acquiesce therein. Dated at Pretoria, this 16th day of April 1895. TAYOB HAYEE KHAN MOHarend. ABDOOL GANI. HOJEE HABIB, HOJEE DADA. 33 No. 8. Lieut.-GENERAL GOODENOUGH to the MARQUESS OF RIPON. (Received May 27, 1895.) Government House, Cape Town, May 6, 1895. MY LORD MARQUESS, WITH reference to your Lordship's Despatch of the 22nd March,* I have the honour to enclose a copy of a despatch from Sir J. A. de Wet, transmitting an affidavit by Ibrahim Mahomed Patel, the person who was prevented from opening a store at Krugersdorp. I have forwarded Sir Jacobus de Wet a copy of Mr. Justice Melius de Villiers' award. I have, &c. W. H. GOODENOUGH, Lieut.-General, Administrator and High Commissioner. Enclosure in No. 8. From HER BRITANNIC MAJESTY'S AGENT, Pretoria, to His Excellency the HIGH COMMISSIONER, Cape Town. Pretoria, April 27, 1895. SIR, I HAVE the honour to acknowledge the receipt of your Excellency's despatch of the 18th instant, with enclosures, and in compliance with instructions beg to transmit an affidavit by Ibrahim Mahomed Patel, the person who was prevented from opening a store at Krugersdorp. I presume this is the case referred to by Mr. Arnold Forster in his letter to Mr. Buxton. On the general question of the Indian traders 1 have so often reported that I could not say anything new. I presunie the Bloemfontein arbitration will give a different aspect to the matter, if the newspaper reports of the award are correct, which is the only information I have on the subject. I have, &c. His Excellency the High Commissioner, Cape Town. AFFIDAVIT. I, Ibrahim Mahomed Patel, of Johannesburg, do make oath and say that :- I am a commission agent at Johannesburg. In the January of this year I opened a store in Krugersdorp. This store is situated on the Market Square. The licence was taken out in the name of Mr. E. Houne, of Messrs. Gordon, Mitchell & Co. I paid 71. 10s. for the licence. As soon as I took the store I had goods worth 600l. sent from Johannesburg. The way-bills were made up in the name of " Ibrahim Mahomed and Co." r 88060. J. A. DE WET, Her Britannic Majesty's Agent. After the goods were passed by the Field Cornet and the way-bills were stamped, I unpacked some of my goods. Three hours later on the same day the Field-Cornet came up and asked to be shown the way-bills and the licence. He then took away from me both the way-bill and the licence, and took me to the magistrate of the place. The magistrate ordered me to remove the goods to Johannesburg because I was an Indian. I drew the attention of the magistrate to the fact that the licence was taken out in the name of a European; that I also held a power of attorney from that European. On the magistrate still persisting in his order and ordering instant removal, I went to a lawyer, and through him succeeded in getting three days during which to remove the goods. During the interval I engaged a Johannesburg attorney to fight the case, but did not succeed. 1 therefore removed the goods to Johannesburg. I had a lease of the above store for one year. The whole matter has cost me 751. Had it not been for the kindness of the Johannesburg merchants who took back the goods from me my loss would have been far more serious. * No. 3. E 34 I know from experience that there is no regularity about such proceedings. There are places in the Republic where we can trade with impunity while at other places it is absolutely impossible to trade, no matter in what part of the town the licence is asked for. IBRAHIM MAHomed. Sworn before me at Pretoria, this the 26th day of April 1895. EDWARD COHEN, J.P. for the South African Republic. No. 9. The MARQUESS OF RIPON to SIR HERCULES ROBINSON. (Sent June 22, 1895.) TELEGRAPHIC. INFORM President of South African Republic that Her Majesty's Government are prepared to accept award of arbitrator in relation to British Indians if course suggested by him at end of his reasons is adopted, viz., that Volksraad of South African Republic should repeal resolution of 8th September 1893, and Government of South African Republic should withdraw Circular of December 1893, so as to allow courts of justice to give an unfettered interpretation of Law of 1885 as amended. I have received telegrams from Indians stating that they have received notice to remove, and praying that action may be stayed. Should you not urge Government of South African Republic to do so until Resolution, &c. of 1893 are cancelled, and a test case can be tried? No. 10. SIR HERCULES ROBINSON to the MARQUESS OF RIPON. (Received June 24, 1895.) MY LORD MARQUESS, I HAVE the honour to enclose a copy of a despatch from Sir J. A. de Wet, covering petitions addressed to your Lordship and to the Viceroy of India, from Indians resident at Pretoria and Johannesburg, relative to the award recently given by his Honour the Chief Justice of the Orange Free State upon the status of British Indians in the South African Republic. The very long and able argument contained in the petition to your Lordship does not call for any comment from me. It is idle to discuss whether the treatment accorded to Her Majesty's Indian subjects is just or fair. The points are whether the treatment is legal, and whether Her Majesty's Government would in any way better the position of the Indians by seeking to go behind the decision of the arbitrator. Government House, Cape Town, June 4, 1895. I do not think that it would be right or proper to seek to set aside an award to which Her Majesty's Government have submitted in advance, and I am satisfied that even if Her Majesty's Government were to adopt such a course the position of the Indians would be in no way improved. I have, &c. His Excellency the Governor and High Commissioner, Cape Town. HERCULES ROBINSON, Governor and High Commissioner. Enclosure in No. 10. From HER BRITANNIC MAJESTY'S AGENT, Pretoria, to His Excellency the HIGH COMMISSIONER, Cape Town. Pretoria, May 30, 1895. SIR, I HAVE the honour to transmit two petitions handed to me by the Indians of Pretoria and Johannesburg, one addressed to the Marquess of Ripon and the other to the Viceroy of India, I have, &c. J. A. DE WET, Her Britannic Majesty's Agent. 35 To His Excellency the Right Honourable the MARQUESS OF RIPON, Her Majesty's Principal Secretary of State for the Colonies, London. The Petition of the British Indians residing in the South African Republic Humbly showeth, That your petitioners respectfully venture to approach your Excellency in connexion with their position in the South African Republic, especially as affected by the award lately given by the Chief Justice of the Orange Free State in the Indian Arbitration Case. 2. Your petitioners, whether as traders, shopkeepers' assistants, hawkers, cooks, waiters, or labourers, are scattered over the whole of the Transvaal, though the greatest number is settled in Johannesburg and Pretoria. Of traders there are nearly 200 whose liquidated assets would amount to nearly 100,000l. Of these about three firms import goods directly from England, Durban, Port Elizabeth, India, and other places, and have thus branches in other parts of the world whose existence mainly depends upon their Transvaal businesses. The rest are small vendors having stores in different places. There are nearly 2,000 hawkers in the Republic who buy goods and hawk them about, while those of your petitioners who are labourers are employed as general servants in European houses or hotels. They number about 1,500 men, of whom about 1,000 live at Johannesburg. 3. Your Excellency's petitioners, before entering into a discussion of their precarious position in the State, would, with the greatest deference, venture to point out that your petitioners, whose interests were at stake, were never once consulted as to the arbi- tration, that the moment the question of arbitration was broached your petitioners protested both against the principle of arbitration as against the choice of the arbitrator, Your petitioners conveyed the protest verbally to his Honour the British Agent at Pretoria, who, your petitioners here take the opportunity to say, has always been most courteous and attentive to those of your petitioners who had occasion to wait upon him from time to time in connexion with the grievances of the Indians in the Transvaal. Your petitioners would also draw your Excellency's attention to the fact that even a written protest was sent to Her Majesty's High Commissioner at Capetown. How- ever, your petitioners, by dwelling upon the matter, do not at all wish to cast the slightest reflection on the highmindedness or probity of the learned Chief Justice of the Orange Free State or to question the wisdom of Her Majesty's officers. Having known the bias of the learned Chief Justice against the Indians, your petitioners thought, and still humbly venture to think, that he could not, in spite of his most strenuous efforts to do otherwise, bring to bear upon the question an equi-balanced judgment which is so necessary to a right and proper perception of the facts of a case. Judges having a previous knowledge of cases have been known to refrain from deciding them lest they should unconsciously be led away by preconceived notions or prejudices. 4. The reference to the learned arbitrator in the case submitted on behalf of Her Majesty's Government runs thus:- "The arbitrator shall be free to decide either in favour of the claims put forward by Her Majesty's Government or by the South African Republic, or to lay down such interpretation of the said ordinances, read together with the despatches referring to the question, as shall appear to him to be correct. } + 5. The award, as published in the papers, is as follows :— (a.) The claims of Her Majesty's Government and of the Government of the South African Republic respectively are disallowed, save and except to the extent and degree following, that is to say :- (b.) The South African Republic is bound and entitled in its treatment of Indian and other Asiatic traders, being British subjects, to give full force and effect to Law No. 3, of 1885, enacted, and in the year 1886 amended, by the Volksraad of the South African Republic, subject (in case of objections being raised by or on behalf of any such persons to any such treatment as not being in accordance with the provisions of the said law as amended) to scle and exclusive interpretation in the ordinary course by the tribunals of the country. 6. Now, your petitioners humbly submit that the above award not being in terms of the reference is void, and that Her Majesty's Government is not, therefore, bound by it. The very object with which the arbitration was decided upon is, it is respectfully pointed out, frustrated. The reference leaves it to the arbitrator either to allow the claims of one of the two governments or to lay down such interpretation of the ordinances as may appear to him to be correct, regard being had to the despatches referring to the question. Instead of interpreting, the learned arbitrator has delegated E 2 36 the interpretation, and in delegating has, moreover, limited the delegation to such persons as by the very nature of their position cannot possibly avail themselves of the procedure and evidence that could be availed of, nay, that was expressly stipulated to be availed of, by the arbitrator, and that would tend to enable them to lay down such an interpretation as would be just and equitable, though, perhaps, not strictly legal. 7. The award, your petitioners submit, is invalid on two grounds. First, because the arbitrator has delegated his function, which no arbitrator in the world can do. Secondly, the arbitrator has failed to keep to the reference, inasmuch as he has left undecided the question that he was expressly called upon to decide. 8. The object, it would seem, was not to have the question of interpretation decided in a law court, but to terminate the question once for all. Had not such been the case, Her Majesty's Government never would have entered into the voluminous corre- spondence with regard to the question of interpretation as found in the Transvaal Green Books, Nos. 1 and 2, 1894. The question that was to be, and your petitioners submit can only be, decided diplomatically and politically has been left, if the award is to be valid, to be decided judicially only. And if it is true that the Chief Justice of the Transvaal has already expressed his opinion in the case of Ismail Suliman, as is specially alleged in the case presented on behalf of the Transvaal Government, the decision of the question is almost a foregone conclusion. To prove that this is so, your petitioners refer your Excellency to newspapers of current dates, especially the "Johannesburg Times" of 27th April 1895 (weekly edition). 9. But your petitioners' appeal to your Excellency is on higher and broader grounds; your petitioners have every confidence that the question that affects thousands of Her Majesty's subjects, on a proper solution of which depend the bread and butter of hundreds of British subjects and a technical solution of which may bring ruin to hundreds of homes and may leave them penniless, will not be left to be decided merely in a court of law, where everybody's hands are tied down, and where such considerations find no place. So far as the traders are concerned, if the contention of the Transvaal Govern- ment is ultimately upheld, it means absolute ruin to them, and not only to them personally, but to their families and relations and servants, both in India and the Transvaal, who are dependant upon them. It is impossible for some of your petitioners who have been trading for a long time in the Transvaal to seek "pastures new and manage to keep body and soul together, if they are driven out of their present position through no fault of their own, but merely, as will be seen presently, because of the misrepresentations of a few interested persons. "" 10. The gravity of the question and immense interests that are at stake, are your petitioner's excuse for the following somewhat lengthy resumé of their position, and for humbly soliciting your Excellency's undivided attention to it. 11. The unfortunate departure from the 14th clause of the Convention of 1881, which protects equally the interests of all persons other than natives has originated and been countenanced in and by the assumption that the Indian settlers in the Transvaal do not observe proper sanitation, and is based on the misrepresentations of certain interested persons. It has been emphatically laid down by Her Majesty's Government throughout the correspondence about the Law 3 of 1885 that separate streets might be set apart for the Indians in the interests of the public health, but that they cannot be compelled to trade in certain fixed parts only of the towns. After the Law 3 of 1885 was strenuously opposed for some time, the then High Commissioner, Sir H. Robinson, in withdrawing opposition to the amended Law of 1886, says in his letter, 26th September 1886, page 46, Green Book, No. 1, 1894, "Although the amended law is "still a contravention of the 14th article of the convention of London, I shall not advise "Her Majesty's Government to offer further opposition to it in view of your Honour's opinion that it is necessary for the protection of the public health." Even the reference to the arbitrator and the Law 3 of 1885 shows clearly that the departure from the Convention was to be assented to only for sanitary reasons. 66 12. Your petitioners hereby enter their most respectful but emphatic protest against the assumption that there exist sanitary reasons for such a departure; your petitioners hope to be able to show that no such reasons exist. 13. Your petitioners append hereto three certificates from doctors which would speak for themselves, and which show that their dwellings are in no way inferior to those of the Europeans from a sanitary point of view. (App. A., B., C.) Your petitioners challenge comparison of their own dwellings with those of the Europeans who have theirs in their immediate neighbourhood. For it so happens in Pretoria that side by side with some of your Petitioners' houses and stores are situated also the houses and stores of Europeans. 37 14. The following unsolicited testimonial will speak for itself. On the 16th October 1885, Mr. Mitchell, the then Joint General Manager of the Standard Bank, writes thus to the High Commissioner, Sir H. Robinson: "It may not be deemed out of place if I add that they (the Indian traders) are within my knowledge in all respects orderly, industrious, and respectable people, and some among them are merchants of wealth and position, having establishments on a large scale in Mauritius, Bombay, and elsewhere." (Green Book 1, p. 37.) 15. About 35 European firms of repute "distinctly declare that the aforementioned "Indian merchants, the majority of whom come from Bombay, keep their business places as well as their residences in a clean and proper sanitary state, in fact, just as good as the Europeans." App. D. CC 16. It is true, however, that this does not appear in the newspapers. The public press think that your petitioners are a filthy vermin." The representations to the Volksraad say the same thing. The reasons are obvious. Your petitioners, not knowing the English language so well as to be able to take part in such discussions, or even to keep themselves informed of all the misrepresentations about them, are not always in a position to refute such statements. It was only when they became aware that their very existence was at stake that they went to the European firms and doctors to give their opinion about their sanitary habits. 66 66 17. But your petitioners claim also a right to speak for themselves, and they have no hesitation in stating deliberately that collectively, though their dwellings may appear uncouth, and are certainly without much adornment, they are in no way inferior to the European dwellings from a sanitary point of view; and, as to their personal habits, they confidently assert that they use more water and bathe much oftener than the Europeans residing in the Transvaal whom they come in frequent connection with. Nothing can be further from your petitioners' wish than to set up comparisons, or to try to show themselves superior to their European brethren. Force of circumstances only has driven them to such a course. 18. The two elegant petitions at pp. 19-21 of the Green Book No. 2, which pray for an exclusion of all Asiatics, and contain wholesale denunciation of all the Asiatics, Chinamen, &c., render it absolutely necessary to state what has been stated above. The first petition enumerates terrible vices peculiar, as alleged therein, to Chinamen, and the second, referring to the first, includes in the denunciation all the Asiatics. Speaking of specifically Chinese, Coolies, and other Asiatics, the second petition refers to "the dangers to which the whole community is exposed by the spread of leprosy, syphilis, "and the like loathsome diseases engendered by the filthy habits and immoral practices "of these people. 166 رو 19. Without entering into further comparison, and without entering into the question as affecting the Chinamen, your petitioners most emphatically state that the above charges are entirely without ground, so far as your petitioners are concerned. 20. To show how far the interested agitators have gone, your petitioners quote below an excerpt from a memorial presented to the Volksraad of the Orange Free State, a copy of which was sent with approval by the Pretoria Chamber of Commerce to the Transvaal Government. "As these men enter the State without wives or female relatives the result is obvious. Their religion teaches them to consider all women as soulless and Christians as natural prey." (Green Book No. 1, 1894, p. 30.) 21. Your petitioners ask, Can there be a grosser libel on the great faiths prevailing in India, or a greater insult to the Indian nation? 22. Such are the statements which, it will be noticed from the Green Books referred to, have been used to make out a case against the Indians. 23. The real and the only reason has all along been suppressed. The only reason for compelling your petitioners or putting every obstacle in the way of your petitioners earning a decent livelihood is the trade jealousy. Your petitioners, i.e., those who are traders, and the whole crusade is practically against them, have by their competition and owing to their temperate and thrifty habits, been able to reduce the prices of the necessaries of life. This does not suit the European traders who would make very large profits. It is a notorious fact that your petitioners who are traders are, almost without exception, teetotalers. Their habits are simple, and thus are content to make small profits. This, and this only, is the reason of the opposition against them, and this is well known to everybody in South Africa; that this is so can be gathered from the public press of South Africa which sometimes becomes frank and shows the hatred in its true light. Thus dealing with the "coolie question," as it is contemptuously called, after E 3 38 showing that the real "coolie" is indispensable to South Africa, the "Natal Advertiser," of the 15th September 1893, thus delivers itself:- "The sooner the steps are taken to suppress, and, if possible, to compel, the Indian trader the better. These latter are the real canker that is eating into the very vitals of the community." 24. Again, the "Press," the Government organ in the Transvaal, dealing with this question, says-- "If the Asiatic invasion is not stopped in time, European shopkeepers must be driven "to the wall as they have been in Natal, and in many parts of the Cape Colony." The whole of the above article is interesting reading, and is a fair sample of the feeling of the Europeans towards colour in South Africa. Although the whole tenour of it betrays fear on the ground of competition, there occurs this characteristic passage :-- "If we are to be swamped by these people, trade by Europeans will be impossible, and we shall one and all become subjected to the horrible danger inseparable from close contact with a large body of uncleanly citizens, with whom syphilis and leprosy are common diseases, and hideous immorality a matter of course. 25. And yet Dr. Veal, in the certificate attached hereto, gives it as his deliberate opinion that "the lowest class Indians live better and in better habitations, and with more regard to sanitary measures than the lowest class whites." (App. A.) 66 26. Furthermore, the doctor puts on record that while "every nationality had one or more of its members at some time in the lazaretto there was not a single Indian "attached." Added to this is the testimony of the two doctors from Johannesburg, to the effect "that the Indians are in no way inferior to the Europeans of the same standing." (App. B. and C.) 27. In further proof of your petitioner's contention, your petitioners would take the liberty to quote from a leading article from the " Cape Times," of 13th April, 1889, which states the case for the Indians as fairly as could be wished :- 66 6 "The outcry which was raised in the capital of the Transvaal against the Coolie trader' some little time ago, is brought to the mind by occasional paragraphs in the morning papers, regarding the doings of the Indian and the Arab traders.' After quoting a flattering description of the Indian enterprise from another newspaper, the article goes on to say. "In face of such reminders as these, one may reasonably (5 expect to be pardoned for referring for a few moments to a body of respectable hard- working men whose position is so misunderstood that their very nationality is over- "looked and a name labelled to them, which tends to place them in an exceedingly low "level in the estimation of their fellow creatures. In the face, too, of financial 66 66 operations the success of which many of their detractors would envy, one fails to "understand the agitation which would place the operators in the same category as the "half heathen Native and confine him to locations, and subject him to the harsher laws