My Lord, ANNEX 23. Mr. Choate to Lord Lansdowne. American Embassy, London, I HAVE the honour, under instructions from my Government, to present to Your Lordship the claim of Lawrence E. Brown, a citizen of the United States, as Executor of the last will and testament of his son, R. E. Brown, lately deceased, also at all times a citizen of the United States, against His Majesty's Government, and to request that it receive Your Lordship's early attention. The late R. E. Brown was a Mining Engineer, residing, when said claim had its origin, in the late South African Republic. On the 22nd of January in the year 1897 he recovered a judgment in the High Court of the said South African Republic at Pretoria against Dr. W. J. Leyds, Secretary of State of the said Republic, and A. A. J. C. Dieperink, Responsible Clerk at Doornkop in the said Republic, in their respective official capacities, which was in substance and effect a judgment against the said Republic, whereby the said Court adjudged that he was entitled to a license for certain twelve hundred mining claims, that (sic? but) he was wrongfully and unjustly deprived of all benefit and advantage of such judgment, by the unlawful intervention of the Executive, and by means and under circumstances, which rendered the said South African Republic responsible in damage to him for such deprivation, and it continued so liable until the said Republic ceased to exist, and its territory was annexed to, and became a part of the Dominions of His Majesty and of the British Empire. On the 28th of October, 1898, the said Brown presented to her late Majesty's Secretary of State for the Colonies a memorial addressed to Her Majesty as Suzerain of the said South African Republic, in which the facts and circumstances up to that date constituting his claim are fully and at large set forth, and I beg leave to refer Your Lordship to the same. On the 15th day of December 1898, the said Secretary of State for the Colonies caused the said Brown to be advised that, in his opinion, if there is any question of diplomatic action, his proper course as an American citizen was to bring this matter in the first place fully to the notice of the Government of the United States. That thereafter, and in pursuance of said opinion, the said Brown, on the 15th day of July 1899, presented his memorial to the Secretary of State of the United States, with an Appendix dated the 18th day of December 1900, which were transmitted to Congress by the President on the 29th day of January 1901 with a report from the Secretary of State, to all which documents, embodying the facts which constitute the claim of said Brown, I beg leave to call your Lordship's attention. They are contained in the accompanying printed Senate Document No. 126, 56th Congress, 2nd Session. It further appears that afterwards in the month of 1902, the said Brown presented a further memorial to Viscount Milner, Governor of the Transvaal Colony, to a copy of which, enclosed, I ask your Lordship's attention. That afterwards in September 1902 the Attorney of said Brown received from the High Commissioners, a copy of the written opinion of Richard Solomon, Esq., Attorney General of the Transvaal Colony, which was intended as a formal reply to the last mentioned Memorial, and as a rejection of the Petition therein contained. Your Lordship will observe that the learned Attorney puts the rejection of Mr. Brown's claim upon two groundsFirst, "that Mr. Brown did not exhaust all his legal remedies as he did not issue a new summons as ordered by the Court," meaning the High Court of the Transvaal Colony as reorganized by President Kruger for the purpose of preventing Brown from recovering his claim, however just-and Secondly, "that the claims " (meaning the mining claims to a license for which Brown was adjudged to be entitled) at present lawfully held by third persons,' making it impossible for the Governor to comply with his request, and that if he considers that he has any legal right to possession of the claims or that he is entitled to damages, the Supreme Court is open to him and he may take any proceedings he may be advised to. "are But my Government is unable, in face of the facts set forth in the Memorials, which are notorious and seem to be undisputed, to concur in the view of the Attorney General in either aspect of the case. The action of the Supreme Court of the Transvaal Republic not only vitiated the efficiency of the judgment but perverted and destroyed the judicial character of the Tribunal as a Court of Justice. The legal remedy pointed out was therefore only illusory. The second ground on which the Attorney General a satisfactory disposition of the matter, nor does it believe that His Majesty's Government will be unwilling to respond to the question in a manner to enable the representative of Brown to know what adequate and substantial legal remedy he has, if any-or how he can obtain the justice to which he is entitled otherwise than from His Majesty's Government. Your Lordship will note that in the opinion of the Attorney General the claims to which Brown was adjudged to be entitled are now lawfully held by third persons, so that it is clearly impossible for the Governor of the Transvaal Colony to comply with his request. Against what persons, natural or artificial, the claimant may have an effectual legal remedy in damages the Attorney General does not point out. Upon the facts stated in the Memorials, the South African Republic at the time of its extinction and annexation to the British Crown was liable to make good the injustice which Brown had suffered through the action of the Executive, and of the new Court which the President had reorganized, and my Government is advised, that the true rule of International law in such cases was well stated by the Attorney General of the United States in connexion with certain claims of British subjects, presented to the Department of State for alleged denials of justice by the late republic of Hawaii as follows: "The general doctrine of International Law founded upon obvious principles of Justice is that in case of annexation of a State or cession of Territory the substituted Sovereignty assumes the debts and obligations of the absorbed State or Territory. It takes the burdens with the benefits." The case as presented appears to be one of great hardship to the claimant, and my Government would be glad if some just and reasonable mode or measure of relief could be afforded him, and it is with that view that I have been instructed to bring the matter to the attention of Your Lordship and of His Majesty's Government. Since the rejection of his claim by the Governor of the Transvaal Colony, the said R. E. Brown has departed this life, leaving a last will and testament, under which Letters Testamentary have been granted to Lawrence E. Brown, his father; certified copies of the will and letters testamentary have been lodged with the Secretary of State. I also enclose for Your Lordship's perusal a copy of the legal opinion of Mr. J. W. Leonard, one of the most eminent Counsel in South Africa, advising the claimants that the present Courts of Justice in South Africa are not in a position to grant any relief in the premises, and that he cannot advise the institution of any proceedings there. I commend the whole matter to the consideration of Your Lordship and hope soon to hear that His Majesty's Government is disposed to cause justice to be done in this very serious case. I have, &c. JOSEPH H. CHOATE. Enclosures. 1. Senate Document No, 126 (56th Congress) including a Message from the President. 2. Memorial-R. E. Brown to Lord Milner, including Opinion rendered to Lord Milner by Mr. Solomon, Attorney General of Transvaal Colony. 3. Opinion of Mr. J. W. Leonard. † Enclosure 1. (Senate Document No. 126, 56th Congress, 2d Session). R. E. Brown. Message from the President of the United States, transmitting, in response to a Resolution of the Senate of January 21, 1901, a Report by the Secretary of State, with Accompanying Papers, relative to steps taken by the Department of State to Protect and Preserve, in the present condition of Public Affairs in South Africa, the Rights of R. E. Brown, a Citizen of the United States of America. January 29, 1901.-Read, referred to the Committee on Foreign Relations, and ordered to be printed. To the Senate: I transmit herewith a report by the Secretary of State, with accompanying papers, in response to the resolution of This enclosure comprised the Memorial to Lord Milner printed at p. 151 of the Memorial of the United States Government, the Memorandum forming Annex 18 to this Answer; the opinion of Sir R. Solomon, printed at p. 157 of the Memorial of the United States Government, and the Memorandum of reply, forming Annex 19 to this Answer. a satisfactory disposition of the matter, nor does it believe that His Majesty's Government will be unwilling to respond to the question in a manner to enable the representative of Brown to know what adequate and substantial legal remedy he has, if any-or how he can obtain the justice to which he is entitled otherwise than from His Majesty's Government. Your Lordship will note that in the opinion of the Attorney General the claims to which Brown was adjudged to be entitled are now lawfully held by third persons, so that it is clearly impossible for the Governor of the Transvaal Colony to comply with his request. Against what persons, natural or artificial, the claimant may have an effectual legal remedy in damages the Attorney General does not point out. Upon the facts stated in the Memorials, the South African Republic at the time of its extinction and anuexation to the British Crown was liable to make good the injustice which Brown had suffered through the action of the Executive, and of the new Court which the President had reorganized, and my Government is advised, that the true rule of International law in such cases was well stated by the Attorney General of the United States in connexion with certain claims of British subjects, presented to the Department of State for alleged denials of justice by the late republic of Hawaii as follows: "The general doctrine of International Law founded upon obvious principles of Justice is that in case of annexation of a State or cession of Territory the substituted Sovereignty assumes the debts and obligations of the absorbed State or Territory. It takes the burdens with the benefits." The case as presented appears to be one of great hardship to the claimant, and my Government would be glad if some just and reasonable mode or measure of relief could be afforded him, and it is with that view that I have been instructed to bring the matter to the attention of Your Lordship and of His Majesty's Government. Since the rejection of his claim by the Governor of the Transvaal Colony, the said R. E. Brown has departed this life, leaving a last will and testament, under which Letters Testamentary have been granted to Lawrence E. Brown, his father; certified copies of the will and letters testamentary have been lodged with the Secretary of State. I also enclose for Your Lordship's perusal a copy of the legal opinion of Mr. J. W. Leonard, one of the most |