The Assistant Commissioner of Pensions has forwarded for advice the following memorandum:

A.B.C, residing at Kalgoorlie, W.A., an applicant for old-age pension, states that he was born at Heidelberg, Transvaal, South Africa, in 1845. He is not certain whether his father was born in Holland or in Transvaal, but his father's parents were Dutch. He believes his mother was born in either the Transvaal or the Cape of Good Hope. He left Transvaal about 1863 or a little earlier, and was subsequently in Great Britain and New Zealand. He came to Australia in 1871 and has since resided here continuously.

It is understood that the independence of the Transvaal was first recognised by Great Britain in 1852, and that the Territory was annexed by the British Government in 1877, but subsequently again became virtually independent until its annexation to the British Crown on 1 September 1900.

Will you kindly advise me as to whether, if the facts are as stated, the claimant may be regarded as a British subject.

I might add that Inspector R.H. Weddell, of the Investigation Branch of your Department in Perth, states that he has refused to let claimant have a set of forms of application for naturalization on the ground that, having been born in the Transvaal, he is a British subject by right of conquest.

Transvaal at the time at which C. emigrated to Australia (1871) was an independent state. C. was, therefore, at that time a Boer national.

In 1877 Transvaal was annexed by the British Government, but, C. continuing to reside out of the Transvaal, that annexation did not, according to Westlake, International Law, 1904 edn, make him a British subject. Westlake says in Part I, p. 70:

It cannot be doubted that the nationals of an extinguished state who continue to reside in the territory, or who, not being within it at the moment of the change, return to it for any but a temporary purpose, become the subjects of the new government. They do so by accepting its rule and protection, even if the succession did not of itself comprise them among its objects. But what of the nationals of an extinguished state who were not within its territory at the moment of the change, or leave it after the change without any undue delay, repudiate any tie to the conqueror, and do not return to the territory except for the removal of their goods or some other such temporary purpose? The decisive consideration appears to be that allegiance is a purely personal tie, and therefore cannot be claimed by the successor state, which is not identified in person with the extinguished state, merely on the ground that it was due to the latter. If the individuals in question do not get themselves naturalized elsewhere, they can have only the legal position which the state in which they reside grants to resident aliens, and such an international position as depends on residence. That deminutio capitis they cannot avoid.

Upon the annexation, therefore, C, in my opinion, lost his Boer nationality but acquired no other. The fact that he was resident in British territory would not, I think, warrant the assumption that the annexation made him a British subject. In 1881 Transvaal again became independent but in 1902 was formally annexed to the British Crown. Whether or not the revival of the Boer state in 1881 revived C.'s Boer nationality (I am inclined to think it did not) the subsequent annexation in 1902 placed him in the same position as~in 1897.

Neither in 1877 nor in 1902 does there appear to have been any treaty provision with respect to the nationality of Boer nationals resident outside the Territory. In my opinion, therefore, C. is not a British subject.

[Vol. 18, p. 258]