Transvaal Government to appropriate a sum not exceeding £50,000 for the payment of arrears of salary due to old servants of the state. It will be noted (i.) that a special vote of the Legislature is required, there being no legal liability; (ii.) the sum assigned is strictly limited; (iii.) payment is only to be made in respect of civil service, excluding any periods during which the civil servant was on commando; (iv.) payment is only to be made up to either the date of the annexation of the Transvaal or the date of the effective occupation of the district in which the civil servant was stationed, whichever date occurred earlier. (Transvaal Hansard, 1904, 1905, 2179-2190; Reports of Unpaid Salaries' Commission in Transvaal Parliamentary Papers.) II. We now proceed to the consideration of the liability of the successor for the torts of his predecessor. On this subject there is little clear authority. Many writers use vague language which does not discriminate between the classes of obligations taken over by the successor. Wheaton (p. 48) uses language which would certainly cover cases of tort, even when a state succession takes place, but the examples there given of the disputes of the United States with Holland, Naples and France, relative to wrongs inflicted on the subjects of the United States during the revolutionary wars, do not really bear on the point at issue. In the case of Naples and France the only matter in question was the responsibility of a Government, despite internal changes in its constitution—a doctrine which does not solve questions of state succession. with Holland appears to be incorrectly summarised. quoted in Wharton (ii., 49-58), clearly shows that the United States did not press the claims of its subjects, which were based on tort, against the Netherlands, after they had definitely ascertained that the kingdom of the Netherlands repudiated the continued identity of the state on the basis of the alteration of its form of government, the enlargement of its territories, and its historical vicissitudes. This case, therefore (cf. Hall, p. 570), is, so far as it goes, strong evidence that states do not recognise claims founded on torts as binding a successor. The result of the dispute Gabba (p. 383) writes: "Others are of the opinion that, independent of treaty, and in virtue solely of the juridical principle of succession of state to state, every heritable obligation incumbent on the ceding Government to a private person, appertaining to the province annexed to the kingdom of Italy, must be recognised and satisfied by Italy; that, in consequence, the eighth article of the Treaty of Zürich, which contemplates only one species of such obligations, viz., the contractual, cannot prevent others also which have a different origin having to pass like contractual obligations to the Italian state from the Austrian state." He proceeds to quote the circular of the Minister of the Interior, of the 16th August, 1860: "The King's Government assumes the responsibility for and has decided in the Council of Ministers to consider at the cost of the state the compensation for the losses arising out of the requisitions regularly made by the Austrians in Lombardy," and judgments of the Court of Cassation at Turin, of 21st December, 1881, 6th July, 1877, and 19th February, 1881, of the Court of Cassation of Florence, of 21st July, 1878, and 15th December, 1879, and of the Court of Venice, of 19th June, 1879. These examples are, however, mainly of quasi-contract; requisitions in war, as distinguished from mere damage, are really contracts in which there is an implicit promise of payment, even when no formal receipt is given, and, therefore, these cases do not prove more than that a state which recognises succession to contract liabilities is naturally ready to extend that recognition to liabilities which rest practically on contract. Besides, it will be noted that Gabba distinctly refers to heritable obligations (obbligazione patrimoniale) and, so far as I can find, this term in Italian Law does not extend, at any rate, to all torts. The term is borrowed from Roman Law, and under that law, as a general rule, liability for torts was not heritable (cf. Moyle, Justinian, i., 597). What would be of greater value for the purpose of Gabba's view would be to find that the Italian Courts recognised a legal liability on the Italian Government to pay compensation for the damage done as distinguished from the requisitions made by the Austrians during the war. This they do not even appear to have done. It might, of course, be argued that damage done in war might not be regarded as being tortious at all by Austrian and Italian law, as it is not in English law or in Roman-Dutch law or in the law of the United States (Wharton, ii., 582), but if the Italian Government accepted legal liability for the requisitions of the Austrians it is certainly hard to see why they should not have accepted liability for damage done, except on the broad doctrine that there is no succession to liabilities from tort. As a matter of fact, in 1866 the crops in the provinces of Mantua and Venice were destroyed before the declaration of war by the Austrians for purposes of defence, and the Italian Government declined to accept responsibility for the action (Huber, p. 250). Huber himself (p. 115), following Gabba, states: "Non-contractual obligations of the state are to be classed with contractual obligations of the state. It is not a mere substitution in the contracting party; it is a universal succession in the whole sphere of rights, a substitution in all functions." It may be noted that the Attorney-General of England, in his argument in the West Rand Central Gold Mining Co. v. The King (at p. 114 of the separate print of the judgment) argued that Huber did not hold that obligations ex delicto pass over to the successor, and, in support of this opinion, quoted Huber's remarks on pp. 65, 66. This, however, is a misunderstanding of Huber, who in the passage cited is dealing with obligations not between the state and individuals, but between the state in a case of cession of a portion of territory and a third state, not individual, which has been wronged by the ceding state. The Attorney-General's inference from this passage is therefore wrong. Huber's theory is logical, and avoids the arbitrary separation of contractual and non-contractual obligations. On the theory of universal succession and the parallel of state succession to a mere change of Government, the passing over of obligations ex delicto is really necessary, and those who, holding the doctrine of universal succession, deny the passing over can only base their argument on an inaccurate analogy of private law. But it does not seem possible to obtain any evidence of practice in support of the theory other than the Italian cases which have been shown above not to be really relevant. It is true that in an Imperial German Law of the 14th June, 1871, sec. 1, Germany provided from the funds derived from the indemnity paid by France compensation for damage to movables and immovables caused by commandeering or burning for military purposes, whether by French or German troops, in Alsace-Lorraine, and though restricting compensation for destruction to movables by the law, sec. 1, sub-sec. 4, to persons domiciled in Germany and being German subjects (unless France should pass reciprocal legislation), yet actually paid compensation to all French subjects as well. But this is merely a sign of the affluence and consequent generosity of Germany resulting from the indemnity. The law applied to all other places in Germany as well as in Alsace-Lorraine, and was a measure of politics and not an admission of legal liability. Similarly, the United States, by the treaty of 10th December, 1898 (Art. 5), undertook to satisfy the claims of its nationals against Spain, so far as they had risen since the commencement of the Cuban insurrection. In the case of English jurisprudence the rule is that the state itself recognises no liability for tort, and therefore if it succeeds another state it equally recognises no liability for the tort of its predecessor, whether or not its predecessor by its laws admitted liability in tort. It was finally decided in Tobin v. The Queen (16 C.B. N.S. 310), and Feather v. The Queen (6 B. & S. 257), that no petition of right lies in a case of tort, and this principle received formal approbation in the case of the West Rand Central Gold Mining Co. v. The King. Attempts have been made from time to time to sue the Government through a superior officer for tort. These, however, have constantly been unsuccessful. The earliest case is one of 1701 (Lane v. Cotton, 1 Lord Raymond, 646), where it was attempted to hold the Postmaster-General responsible for the loss of certain exchequer bills in the post. The case was confirmed by Lord Mansfield in Whitfield v. Lord le Despencer (2 Cowper, 704), and has since been followed in Raleigh v. Goschen (1898, 1 Ch. 73, per Romer, J.), and by the Court of Appeal (Collins, M.R., and Matthews, L.J.), in Bainbridge v. The Postmaster-General (see 22 T.L.R. 70, and Times, 18th November, 1905), where it was attempted to hold the Postmaster-General responsible for personal injuries caused by the negligence of one of his servants. These cases turned on the question whether the maxim respondeat superior was applicable to a relation like that of Postmaster-General and post office official, but it has been held that there is no such relation of inferior and superior, for both are alike servants of His Majesty and each is only liable for personal torts (cf. Graham v. Public Works Commissioners, 1901, 2 K.B. 781, which was an action for breach of contract). Of course, if the head of a department could be sued the same effect would be produced as of allowing the Crown itself to be sued in tort, as the Government would have to reimburse the official concerned. The prerogative of the Crown being the same in the colonies as in the United Kingdom, save where altered by statute, the Supreme Court of the Cape of Good Hope has decided that under Cape law the Crown cannot be sued in tort (Binder v. Colonial Government, 5 Supreme Court Reports, 284). The Supreme Court of the Transvaal has decided that this is also the law of the Transvaal, and that a head of a department cannot be sued for the torts of his subordinates (Ruthven Bros. v. Collector of Customs, 1903, Supreme Court Reports, 85). The same rule has also been laid down in the courts of Canada, Australia, and many of the Crown colonies. It was also the rule of the South African Republic (Cullinan v. Reitz, decided in June, 1899, in the High Court of the Republic), and is apparently still the law of France, Spain, and Germany. The practice of the British Government in South Africa bore out this rule. The Pretoria-Petersburg Railway Company had, by the tort of the South African Republic, been condemned before the war to pay the contractor for the line the sum of £125,000, and they claimed to be entitled to enforce repayment of this sum by the Republican Government, and they therefore asked His Majesty's Government to take over the liability on the annexation of the Transvaal. The request was steadily refused, but eventually, as they based their claim on contract, His Majesty's Government allowed it to be argued before the Transvaal Supreme Court, with the result that a compromise on equitable grounds was arrived at. But this was on the ground that the liability was at least capable of being considered contractual, and that, taking everything into account, the Company had some claim to equitable treatment. Even claims based on tort, which before the annexation Her Majesty's Government had pressed diplomatically upon the Government of the South African Republic, were held not to lie against His Majesty's Government-e.g., the claim of Mr. Hess for the suppression of the Critic was pressed before the war, but after the war was held not to be legally binding on the Transvaal Government, and as the Transvaal Legislature was not prepared to vote anything for Mr. Hess he received no compensation. Similarly, His Majesty's Government recognised no liability for damage done to property by the Boers, whether the property belonged to British or Boers. Damage to property during war was most probably not a tort by Roman-Dutch law, but at any rate His Majesty's Government did nothing beyond allowing a part of the sum of £2,000,000 voted for the relief of British subjects, and of the sum of £3,000,000 allotted under the terms of peace to the ex-burgher to be granted in respect of damage to property, but, as mentioned above, both these grants were purely ex gratia and not in recognition of any legal liability, and the amount of compensation awarded bore no substantial relation to the damage done. On the On the same principles, it was held that the Transvaal Government had not succeeded to the rights of the South African Republic to sue in tort in the case of the Jameson incursion indemnity claim. When the Jameson raid took place His Majesty's Government gave a pledge that the British South Africa Company "should make amends for this outrage," and the Company actually did undertake to consent to the reference to arbitration of the question of the amount of indemnity to be paid by them, the terms of reference to be limited to an adjudication upon the material damages claimed as opposed to the moral and intellectual damages, and the expenses incurred properly attributable to Dr. Jameson's incursion as distinct from the disturbances in Johannesburg (Parliamentary Paper, C. 9343). This was clearly a case of a claim in tort by the Transvaal Government. 1st April, 1901, the Secretary of State for the Colonies was asked, in the House of Commons, what action would be taken against the Chartered Company in respect of the claim of the late Transvaal Government, and replied that "His Majesty's Government have taken legal opinion, and have been advised that the right to exact reparation for any damage caused to the South African Republic by the raid has not passed to His Majesty's Government as the result of the conquest and annexation of the state, and that there is no legal liability on the part of the Chartered Company to pay to His Majesty's Government, as representing the Government of the late South African Republic, any compensation in respect of the raid. In view of this opinion His Majesty's Government are not aware of any steps that can be taken by them in respect of the claim of the late Transvaal Government." These examples show that to the exceptions to succession enumerated by Westlake (i., 78 seq.) must be added that of obligations in tort which he seems not to except. The fact is of great importance as supporting the theory here, maintained of a singular succession. There is no difficulty, then, in understanding that liability for torts does not pass over to the successor, while at the same time it is easy to see why, though contractual obligations equally do not pass in law, it is more often expedient for a government to recognise contractual obligations than obligations ex delicto. In both instances His Majesty's Government have, in the case of South Africa, acted on the dictates of expediency. CHAPTER IX. STATE SUCCESSION IN RELATION TO PRIVATE RIGHTS. THE general rule on either theory of state succession must be that the substitution of the new state makes no difference in existing private rights, and that any alterations in such rights are a matter for legislative action. Such rights include all rights in rem and ail rights in personam where the person is other than the state, whether based on contract or on tort. On either theory the right to alter private rights by legislation is unlimited, unless specially restricted by treaty. In the case of cession such a right will naturally be used with more care than in the case of a conquest, and perhaps on the theory of universal succession emphasis is laid on the propriety of not altering these rights, while the theory of singular succession insists rather on the right to alter. The general rule follows logically from the nature of state succession; rights in rem exist indifferently with regard to all persons, and an alteration in the personality of the state makes no difference. Rights in personam, in regard to any person save the state itself, are equally clearly unaffected by the alteration in the state personality. Treaties frequently provide for the quiet enjoyment of the private property of individuals, but such stipulations are unnecessary, and treaties in this respect are declaratory of the common International Law. Similarly, all laws dealing with private, as opposed to public and administrative laws, remain in force until altered by the legislative action of the conqueror or cessionary. For example, a Prussian Patent of 22nd May, 1815, regarding the incorporation of parts of Saxony, decrees that every one shall possess and enjoy his duly acquired private rights; the similar Patents of 13th September, 1865, for the annexation of Lauenburg, and of 3rd October, 1866, for the annexation of Hanover, Hesse, Nassau and Frankfurt, read: "We will protect every one in the possession and enjoyment of his duly acquired private rights," and the same words are used in the Patent of 12th January, 1867, for the incorporation of SchleswigHolstein. Art. 17 of the Treaty of 1864, for the cession of the Duchies, explicitly provided that the new Government would respect every right legally acquired by individuals and civil persons. The United States is peculiarly rich in judicial and other dicta on this head. The classical passage in the judgment of Marshall, C.J., in U.S. v. Pertcheman (7 Peters, 51); on p. 86 he says: "It may not be unworthy of mark that it is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance, their relation to their ancient sovereign is dissolved, but their relation to each other and their rights of property remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new Government would have been unaffected by the change." Then later: "A cession of territory is not understood to be a cession of property belonging to |