In fact, under the existing usage there is no difference of qualified opinion as to the right of the invading belligerent to make use of the railways belonging to private companies, nor as to the right of private companies to receive back the property undiminished or with indemnity for what may be wanting.

In the war of 1870-1871, the German army took possession of the Eastern, Northern, Orleans and Paris-Lyons-Mediterranean Railways, and during their occupation of them the German authorities received the proceeds of the traffic. After the conclusion of peace, a mixed commission was appointed to settle the sum to be returned to the companies, which also re-entered into possession of their rolling and other stock.

In the case of the South African Railway, which was seized by the British authorities during the Boer War, the British authorities, instead of returning their property to the company, appropriated it, and dealt with groups of shareholders independently. Their object apparently was to avoid having to include in any arrangement the shares which belonged to the Transvaal Government at the outbreak of the war.1 The result of not complying with the established usage, however, was great confusion, and has, moreover, shaken confidence in the principle of exemption from confiscation of private property on land, which is one of the greatest achievements of International Law in connection with the usages of war.

1 In an article in the Law Quarterly Review of Oct. 1995, in reply to one by myself in the previous number of the same Review, on this case, Professor Westlake maintained that the shares in the company, which were the property of the Government of the South African Republic, became at some time the property of the British Government. As to the time at which the British Government displaced the Transvaal Government, he agreed it was not at the time (September 1, 1900) when the annexation was proclaimed, but he did not agree that the South African Republic existed as a State at the time when the British Government negotiated the treaty of surrender; nor did he suggest any other time when it was displaced. Yet it seems obvious that to enter into an agreement with elected representatives of the burghers of their Republic, representatives acknowledged in the treaty itself to be "acting as the Government" of the Republic, estopped the British Government from contesting that they were so acting. Professor Westlake argued that "if State life had not been extinguished in the Republics, the leaders would have had no authority to extinguish it." This seems to be a contradiction of terms. Professor Westlake seems to have forgotten that the representatives of the two Republics were appointed at a regularly convened meeting of burghers, and that their powers as representatives of the two States were in due form proclaimed. They were described as "acting as the Government" because their signature of the treaty was final, and no further ratification was to be required. I cannot see any date from September 1, 1900, which it would be possible to fix upon as that at which the South African Republic as a State ceased to exist till May 31, 1902, when it voluntarily closed its own existence by treaty. Professor Westlake himself allows that a State "may have lost its capital and the larger part of its territory, but if it continues to carry on State life in any corner of its territory, it is not yet extinguished, the legal succession to it is not yet open, and there has not yet been conquest." Surely there cannot be a greater recognition of a State carrying on its State life than treating with representatives of the burghers and recording that they were "acting as the Government of the South African Republic." My friend seemed in reality to agree with me in principle, and only to differ from me on questions which might arise out of points I suggested in the course of my argument. He did not dispute that a State has a right to dispose of what belongs to it till it is succeeded by its conqueror, and that this lasts so long "as it continues to carry on State life in any corner of its territory." This was just my contention, and I fail to see why Professor Westlake said that he differed from me. On the contrary, the essential part of his article entirely endorsed my view.

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

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

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

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

On January 10, 1903, at a meeting of German share and debenture holders a verbal communication was made through the German Ambassador in London that His Majesty's Government would pay £135 in respect of every share with reference to which satisfactory proof was given that it belonged to a private person before the outbreak of the war. Shares which were the property of the Government of the South African Republic or that of managers or agents of the Company, all such persons being considered as sharing the Company's responsibility, were excluded from the arrangement.1 This proposal was ultimately accepted by the German shareholders.

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

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

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

The British Government's attitude seems to have been to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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