The dismissal of the Chief Justice and enforced resignation of Mr. Justice Ameshoff as the result of their decision. in Brown's case, followed by the appointment of Judges pledged to carry out Mr. Kruger's wishes as expressed through his mouthpiece, the Volksraad, was probably the one act above all others that sealed the fate of the Republic.

The following may be taken as established facts:

1. The 1,200 claims to which Brown is entitled have wrongfully withheld from him.

2. That the licenses under which the lottery holders pretend to hold their claims have been set aside as invalid.

The Government being therefore at full liberty to deal therewith as they think right and proper, would it be just and equitable for the Government to refuse to assist Brown in the establishment of his rights? It might be said that the Courts are open and whatever rights Brown has he is in a position to enforce them the same as other litigants. Unfortunately, this is not the case, because the very basis of Brown's claim is of a character of which the present High Court can scarcely take cognizance.

An official, no doubt under instructions from a dishonest Executive, will not issue a licence in compliance with the judgment of the Court. A servile Court refuses redress. How can such matters as these well be adjudicated upon by a Court? How can the present Court of the Transvaal Colony sit in judgment upon the motives which influenced the late President's nominees in refusing to recognise Brown's rights? It is submitted that such matters as these fal! within the province, not of the Courts, but of the Executive.

It is further submitted that after having once prosecuted his claim to judgment and established his title in the Transvaal High Court of last resort, the present Government should give effect to such judgment and Brown should not be required to institute new proceedings. Why should Brown be called upon to institute proceedings to set aside licenses which have been already declared void?

It cannot be pretended that the present holders of the invalid licenses are not as much bound by the original judgment as they would be by any judgment rendered by the present Court of the Colony. It cannot be suggested that Brown should bring action against

of course the British Government should and would take cognizance of the original judgment. Why, therefore, should Brown again be forced into litigation contrary to one of the first principles of law?

The position of the matter may be briefly stated as follows:

Certain persons hold licenses for the claims which were obtained in fraud of Brown's rights and have been declared invalid by the Court, whose judgment could not be enforced owing to the improper influence of a dishonest Executive. Brown was and is entitled by the judgment and upon every principle of fair dealing to receive the claims, but a corrupt Court (whilst not pretending to set aside or interfere with the judgment) refused to give him relief.

Brown entered into possession of the claims and retained as complete possession thereof as the nature of the property and circumstances at the time admitted.

The lottery holders have expended no money on the claims beyond paying certain sums by way of license fees which since the date of the judgment, namely 22nd January 1897, would be inconsiderable to the individual holders.

The Government are absolutely free to act as they deem right. Can there be any doubt that the present Government, now that they have the opportunity, should do what the entire British public, the Uitlander population and the Johannesburg Bar (irrespective of nationality) blamed the late President for not doing, namely: establish Brown in his rights?

It is reasonably clear upon the authorities that the facts set forth in Brown's memorial constitute a good ground for the intervention of the American Government as against the late Transvaal Government, and it is submitted that the British authorities having taken over the claims with full knowledge of the existence of Brown's rights, have assumed to the extent of the claims so taken over responsibility in the premises. It is therefore submitted that Brown's rights to the claims should be recognised and allowed by the present Government.

ANNEX 19.

(Enclosure 4 to Mr. Galt's letter to the Rt. Hon. J. Chamberlain, September 6, 1902.)

Memorandum.

THE Minute of the Attorney-General to His Excellency Viscount Milner advises the rejection of Mr. Brown's application upon two grounds.

Firstly. "That Mr. Brown did not exhaust all his legal remedies, as he did not issue a new summons as ordered by the Court," and

Secondly, that the "claims are at present lawfully held by third persons under the Geld Law, and any interference with the title of the present holders would give rise to a general feeling of insecurity."

It is respectfully submitted that neither of these objections is well founded.

First Was Brown called upon to issue a summons?

new

In order to determine this question it becomes necessary to consider shortly certain facts connected with the litigation which are set forth at length in Mr. Brown's memorial to Her late Majesty Queen Victoria.

The memorial shows that a final judgment was obtained in the High Court of the South African Republic, based upon incontrovertible facts, declaring the memorialist to be entitled to a licence for 1,200 claims on the farm Witfontein, or in the absence thereof to damages.

That upon application being made by the memorialist's representative to the Responsible Clerk for the license, pursuant to the terms of the judgment, that official, acting no doubt under instructions from Pretoria, issued to the memorialist a license for the claims in question, but with an indorsement thereon to the effect that as such claims encroached upon the vergunning claims it would not be renewed, and notwithstanding all the memorialist's efforts to obtain a renewal of the license, he was unable to do so.

The excuse given for issuing a non-renewable and therefore worthless license was palpably invented for the pur

if vergunning claims existed that would be no reason why the memorialist should not receive a renewal of his license in respect of those claims upon which it could not be pretended that the vergunnings encroached; that the memorialist having therefore become entitled under the said judgment to alternative damages sought in the mode outlined therein to obtain the assessment thereof; and that the newly constructed Court refusing to pursue the course stated dismissed the application with costs aud required a new summons to be issued in order to permit the memorialist to proceed.

The result was palpably unjust and oppressive as by the second judgment not only was relief refused, but the memorialist was punished in costs for seeking to have his damages ascertained in the mode specified in the original judgment, to wit: by a notice to the defendant, although such mode of procedure was after full argument determined by the Court to be correct in a precisely similar case shortly before decided in the High Court.

No matter how unfair to the memorialist the second judgment may be in the aspect just considered, it is completely overshadowed in the injustice inflicted on him by its effects upon the original judgment.

By the law of South African Republic the issuance of the new summons authorizes the re-opening of the judgment upon its merits. Under ordinary circumstances, the re-opening and retrial of a cause involving, as it does, the expenditure of time, labour, and money, the possibility of being unable to produce the evidence adduced at the former trial, and the opportunity afforded to the opposing party of procuring new evidence which he might have produced at the former trial, is never permitted unless upon good and sufficient reason, and no reason was offered by the newly constructed Court for such re-opening. The real reason, however, is not difficult to find, and it was sufficient to satisfy Brown and his Counsel, and should, it is subinitted, satisfy the Attorney-General that any further attempt to obtain justice from the newly-constructed court would have been useless.

It will be remembered that under the law of the late Republic the issuing of a new summons authorises the re-opening of a case upon its merits, so in effect the Court ordered that Brown should bring a new action which they, the newly-constructed Court, would try.

In order to properly appreciate Brown's position we must now consider certain then recent changes in the

personnel of the High Court and the manner in which such changes were brought about.

The old Court which decided in Brown's favour was composed of Chief Justice Kotze (recently appointed Attorney-General and Administrator of Rhodesia by His Majesty's Government) and Judges Ameshoff and Morice. Chief Justice Kotze and Ameshoff no longer occupied seats upon the bench, the former having been dismissed and the latter forced to resign in consequence of their judg ment in Brown's favour, as more fully set forth in the Memorial.

It appears that after Brown had instituted proceedings for the recovery of the 1,200 claims pegged by him on the 19th July 1895, the President of the late Republic hastily summoned his Volksraad together, when the following resolution was passed, aimed directly at Brown's action :

"Second Volksraad. Regard being had to the communication of the Government now under consideration containing a proclamation by His Honour the State President, Pretoria, the 18th, 20th and 23rd day of July, 1895, whereby the operation of the proclamation respectfully proclaiming the Eastern portion of the farm Witfontein, No. 572, a public digging from the 19th of July, 1895, was provisionally suspended until further decision in the matter, and regard being had to the circumstances under which proclamation was issued,

Resolves :

1st. To approve the action of the Government in this matter considering the subsequent proclamations to have been published in the public interests.

2nd. That no person whosoever deeming himself injured by this proclamation shall be entitled to compensation out of the public treasury or from any official who has been instrumental in carrying out said proclamation.

3rd. That no pegging of claims upon any of the farms shall be taken into account, but that all pegging off on the said farms be declared unlawful and that no license shall be issued for the same."

At the trial Brown's Counsel contended that these resolutions upon which the Government based its defence were ineffectual to deprive Brown of his rights to the claims in question, which had become vested under the