THE TERMS OF SURRENDER.

[Contributed by THOMAS BATY, Esq.]

FOR the last time the South African Republic and the Orange Free State have received official recognition in an official document. In the agreement signed on May 31st, the Boer leaders are described as the acting Governments of these States.. The agreement is not, as some expected it would be, a military convention by which the submission of rebels is accepted, but a treaty by the terms of which two nations surrender their independence. Terms of the Surrender.-There is no means provided by which they can insist on the observance of these terms. They have ceased to exist: and if Britain finds that compliance with the strict intention of the agreement would be inconsistent with the welfare and development of the Empire, or if she is disposed to interpret them in a sense which is not that of her Dutch subjects, there is nothing (except regard for her good name) to prevent her from doing so. If this is kept in mind, it will be seen that, if the treaty is not an absolutely unconditional surrender, it comes extremely near it. Examining the terms of the document, it will be noted that the conquest of the Republics is to be implied from the surrender of their forces in the field. To have included among the articles an express deditio of them selves by the acting Governments would have thrown into too clear relief the fact (sufficiently obvious as it is) that they were recognised as such by the British. The leaders promise that their forces shall lay down their arms and recognise the King-Emperor as their lawful Sovereign: it is judiciously not stated when he became such. Their soldiers operating outside their territory will be readmitted to it on adhering to his Majesty. "Prisoners of war" outside South Africa will be allowed home on the same terms. The fact that this class of persons are styled "prisoners of war" is conclusive to show that they were not, up to the time of the treaty, subjects of Great Britain. If they had been, there would have been no colour for their indefinite detention as prisoners of war, and each of them would have been entitled to be brought to speedy trial as a rebel and a traitor. It may be convenient to accord to subjects the privileges of belligerents; but, unfortunately, it is not legal.

Britain undertakes to restore these enforced emigrants to their homes as and when practicable, and not to molest them, nor those who have surrendered, in person or property. This does not provide for the case

of individuals who are (1) not members of the surrendering forces, (2) nor of the forces in the field elsewhere, (3) nor prisoners outside South Africa. But, doubtless, a liberal interpretation will include all the subjects of the late States. The only difficulty is occasioned by the pointed way in which prisoners within South Africa seem to be excluded from benefit. It is hard to guess the purpose of this: and if the exclusion is held to apply to the inmates of the concentration camps, it will be a very important matter. The "property" of which Britain undertakes not to deprive these people must probably mean the property to which they may be at present entitled. The clause can hardly mean that confiscated property will be restored-its words are "... will not be deprived of their . . . property." But confiscating by proclamation introduces a difficulty. It is not easy to say whether property so confiscated will be considered as property of which the former owner will be considered to be "deprived" by its being retained; and there will doubtless be plenty of work for the repopulation commissions which are to settle the country. By the rules of warfare, apart from treaty, it is perfectly legitimate to confiscate the enemy's movables, and it is not "depriving" him of them to keep them afterwards, when the property has once passed. Immovables stand on a different footing: and as they could not be validly confiscated, except on the assumption of an effective annexation having long since taken place, it would seem that in retaining farms the conquerors would be really "depriving" their owners of property. And it seems admitted that there is no intention of the kind. The modern practice of refraining from confiscating movables (which is passing into a duty) is said by Wheaton to extend to cases "even of an absolute and unqualified conquest of the enemy's country."

As to the persons of the individuals in question, it is clear that they become British subjects, and, as such, it is not clear how their return to the Transvaal can be prevented, except by legislation. Equally plainly, those classes of persons who are not expressly included in the surrender and repatriation provisions, but who were subjects of the late States, must have become clothed with the British national character. So that Mr. Kruger, no less than General Botha, is now entitled to the protection of the KingEmperor, and is bound by the duties of his subjects. It might, perhaps, have been expressly provided that this transference of national character should only operate in the case of certain classes-e.g., those who should individually accept the new régime. But that has not been done, and it is questionable whether it could have been done. If an old State had been left subsisting, it might well bargain to retain some of its former subjects. But a State which has absorbed the old one can hardly leave its subjects derelict.

The Amnesty Clause.-The clause usual in treaties of peace follows, which grants an amnesty for acts done in prosecution of the war, the exceptions being very properly limited to specified and determined cases.

Next comes what are really (for it would be absurd that Britain should seriously think of wreaking vengeance on the surrendered burghers) the most important clauses in favour of the Dutch. The Dutch language will be taught in public schools, where the parents of the children desire it, and it will be allowed in Courts of law when necessary. The clause does not guarantee that other school subjects will be taught in Dutch, nor that European immigration shall not swamp the desires of the Dutch parents. Consistently with this provision, a small English majority in a township might have the whole school instructed in English. It would be a strict compliance with it, even in a purely Dutch district, to teach Dutch for an hour a day. As to the use of the language in Courts "when necessary for the better and more effectual administration of justice," this need not cover more than the allowance of an interpreter, as in Wales. It is to be inferred that a generous reading of the clause will extend to advocates the privilege of pleading in Dutch, and to judges the obligation of understanding it, in all districts where there is a considerable Boer population. Rifles, when required for protection, will be licensed.

Clause 7 contains a curious sliding scale of governmental institutions. "Military administration" is to be replaced by "civil government"; and that, in its turn, is to be reinforced by "representative institutions," which are, however, not to constitute, but to "lead up to" self-government. This is, of course, the self-government of a colony, which is limited by Imperial convenience.

The General Debt: Taking over. The advance of a certain sum to cover the cost of repatriation had been anticipated. In addition, receipts by commanders for value and a particular class of notes of the South African Republic will be considered as war losses, and recouped out of the sum in question. No provision is made as to the assumption by Britain of the general debt of the Republic. On principle, it ought to be taken over; and the fact that it may have been incurred in providing armaments should make no difference. Such preparations form a large part of the expenditure of every State. It is a corollary from the provisions for repopulation, and a necessary condition of the success of the process, that no special tax is to be levied on land for the expenses of the war. "Landed property" is the phrase; but it seems that the Secretary for the Colonies does not think that it includes the produce of land, since he regards it as leaving it open to tax the mines. Possibly the Boers will not object.

The War and the Law of Contraband. The war which has now closed has not been devoid of interest to the publicist. It has raised at least one point of International Law of first-class importance. The question of contraband goods in transit to a neutral port gave occasion for some extremely plain speaking, and a Departmental Commission is at present studying the question. Their skilled advisers will, we may hope, be imbued with the spirit which made this country refuse to recognise the new rules of the