Page:The Green Bag (1889–1914), Volume 17.pdf/628

 EDITORIAL DEPARTMENT prepared the ground for the development of a system of estates and of Parliament." He criticises Mr. McKechnie's book for neglect of this side of the subject, but expressly disclaims any desire to lessen the recognition of the great service of the book as a guid's to the great charter in its immediate sursoundings, but he desires that this should be supplemented by another bearing on the his tory of Magna Carta in succeeding centuries. INTERNATIONAL LAW (Rights of Neutral Shareholders in Corporations of a Belligerent). Sir Thomas Barclay discusses an interesting question on international law in the July Law Quarterly Review (V. 'xxi, p. 301) entitled "The South African Railway Case and Inter national Law." This railway was constructed under a concession of the South African Re public prior to the Boer War on the condition that the government might appropriate it upon making indemnity in time of war. The gov ernment of the republic exercised its right and gave notice to that effect. The English later by proclamation announced that they would not recognize alienation of property within the republic made by it after the date of the proclamation. Later, upon evidence discov ered of the use for belligerent purposes of the railway, the property was seized by the Eng lish military government. Much of the stock of this railway was held by investors in neutral countries and probably many of their shares were acquired during the war directly from the South African Republic which had owned a large block of shares previously. Foreign owners have addressed the British foreign office as to its intentions regarding their rights and a reply has been made that compensation will be offered to shareholders who prove that their shares belonged to pri vate persons before the outbreak of the war. It is not alleged that the property in the railway passed to the British Government on the outbreak of the war. But its policy ap pears to be to confiscate the shares held then by the South African Republic as having at some date during the war become the property of Great Britain. But the author declares "that a confiscation based on an arbitrary distinction, devoid of legal foundation, might obviously become a most dangerous precedent,

599

especially in the hands of some filibustering government." The possible attitude that the government is entitled to shares acquired from the republic after the publication of the notice above referred to or after the date of the proclamation of annexation the author con tends is improper, because, as a matter of fact, these proclamations do not seem to have been brought to the attention of any possible purchasers. "The only legal, even judicious course, for international law is often only expediency in a comprehensive sense. Nevertheless, 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, cannot now deny its existence at any time before that date, though for political purposes the British military commander professed to do so. And 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 obli gations incurred for civil or for military pur poses. 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, so long as it continued to possess acknowledged corporate existence. If the shares are annulled, the right of those who received them to be paid otherwise, in accor dance with the terms of their contract, by the successor of the South African Republic would revive. "It is to be hoped, apart from the question of legality, that the British Government, in dealing with the matter, will take into con sideration the danger of creating a precedent which might be used, in other similar cases, against British investors. "The best, and indeed only proper course, would be that the British Government, setting aside all questions with individual sharehold