single chapter of the magnitude and difficulties of the task
imposed upon the Claims Commissioners. A full account of
their labours will be found in a voluminous report published
in August, 1906. On that report I have drawn very freely,
and I have followed more or less the divisions into which it
is split up. I cannot, however, enter into the mass of facts,
both vast and varied, which the report in question will be
found to contain.^

Originally, in accordance with the Terms of Surrender, the
work of both repatriation and compensation was intended to
be carried out by the same district commissions. But while
decentralization and difference of treatment were found to be
imperative in the case of repatriation, the work of compensa-
tion demanded a uniformity of treatment throughout. The

1 Cd. 3028.
238




Major T. Makcus .McI.nkr.nev,

\'iii;-1'kk,sii)EN r ok the Cexikai, Iidicial Commission.




Claims Oi-mceks stakti.m; ox Trek.



COMPENSATION 239

local commissions were differently constituted in different
localities, as their task of assisting in the restoration of the
people to their homes, and the necessitous through war losses
required to be treated according to the conditions and circum-
stances of each locality. The reports of the local commissions
in connection with claims work widely differed, and the need
of some central control, therefore, so as to co-ordinate and
render their labours consistent, was soon found to be
essential.^

Accordingly, the constitution of the Central Judicial Com-
mission, appointed in October, 1902, underwent several modifi-
cations, and did not receive its final form until January, 1904.
These modifications it is unnecessary to trace in detail. They
all tended to increase from time to time the powers of the
Commission, which gradually gained full and complete control
of all claims work. The local commissions continued to
examine and adjudicate all claims, but they acted under the
instructions of the Central Commission, which revised all
assessments made, and decided what amounts should be
disbursed in settlement. Its field of operations was further
extended to the payment of military receipts and the distribu-
tion of the gratuity granted to ' protected burghers.' The
funds placed at the disposal of the Central Judicial Com-
mission and the mode of their disbursement will be dealt with
briefly in the following order : Ex-Burgher Fund ; the British
Subject Fund, including foreign subjects and natives ; the
Protected Ex-Burgher Fund, together with military receipts.

Strictly speaking, subjugation does not itself touch or affect
private property. In the absence of any agreement to the
contrary, the declaration of peace signifies a return to the
status quo ante helium, while the rights of the parties to
the compact are determined by the broad principle of Uti
Possidetis. On the other hand, there is no claim against the
victor on the part of individuals of the newly-conquered

^ Copies of the instructions issued to the local (repatriation) com-
missions, military officers, and Resident Magistrates are given in
Appendices H i. and H ii., p. 280.



240 THE AFTERMATH OF WAR

territory in respect of property necessarily damaged or
destroyed by the operations of war. In fact, in case of war
citizens who have suffered losses owing to the destruction of
property inseparable from hostilities have no claim for indem-
nification against their own Government. ' A native Govern-
ment may, on the return of peace, see lit for special reason to
grant compensation to subjects who have suffered loss in the
course of the struggle ; but such conduct is founded in charity,
not in strict right. The Government of the United States,
after the great American civil struggle, refused indemnity for
the destruction of property by General Sherman in Alabama.
The Germans in 1872, while reimbursing in the parts of
Alsace and Lorraine acquired by them the losses sustained
by individuals by bombardments, declined to compensate
Swiss subjects who suffered by the shelling of Strasburg.
The more generous French indemnified, without distinction
of nationality, the necessitous victims of the war, but care-
fully guarded against the recognition in the assisted of any
absolute right.' ^

There was no moral or legal obligation on Great Britain to
grant compensation in respect of war losses in South Africa ;
such grant was purely a matter of policy and an act of grace.
The ex-burgher fund of .£3,000,000 owed, indeed, its origin to
the Terms of Surrender ; but Article X. made no provision for
compensation. The word ' compensation ' does not even appear
in Article X. Article X. stated that notes issued under Law
No. 1 of 1900 of the Government of the South African
Republic, and receipts given by Boer officers in the field, if
found to have been duly issued in return for valuable con-
sideration, would be received by the local commissions as
evidence of war losses suffered by the persons to whom these
notes and receipts had been originally given. But there was
no undertaking to pay these notes and receipts ; they merely
ranked as evidence that war losses had been suffered. When
the local commissions had this evidence before them, if the

' Walker, ' The Science of International Law '; Bluntschli, ' Le Droit
International Codifie,' § 662.



COMPENSATION 241

sufferers were unable to provide for themselves, they were
entitled to be supplied on what may be called repatriation
terms out of the free grant of i:3, 000,000 so long as the latter
remained unspent. Article X. clearly did not even contem-
plate compensation.^

The money already spent by the local commissions on
repatriation was regarded as expenditure on account of the
i'3,000,000. The following scheme of distribution was
adopted :

1. Every person who had proved war losses, and in whose
favour an award had been made, was paid the amount of the
award in full up to i'25.

2. Those who had received relief from the local Repatriation
Commissions (and which relief they were liable to repay) were
paid the amount of such relief up to £'25, to be applied
towards the repayment of such relief.-

3. The balance of the £3,000,000 remaining, after deduct-
ing the moneys payable under 1 and 2, was distributed pro
rata amongst those ex-burghers who had suffered war losses
assessed at a greater sum than £2.5.

It was found by calculations that, if the assessments which
exceeded £25 were reduced by 5 per cent., and the fund was
supplemented by the sum of £4,050 Is. 3d., the balance for
pro rata distribution would be sufficient to pay a dividend of
2s. in the £ on the amount of the assessed claims in excess of
£25. The fund was therefore supplemented by this amount.

^ Compensation was a misnomer when applied to the i'3,000,000
granted by Article X. The use of the term ' compensation ' arose from the
fact that rehef was based on statements of war losses, and more or less
distributed in proportion to them. But the claims for war losses were
merely called for, and used, to guide the Government in the distribution
of rehef. On the other hand, the sums paid to British subjects, foreigners
and natives, and the gratuity granted to ' Protected Burghers,' were
genuine compensation.

- Tlie payment of ex-burgher compensation commenced on October 23,
1905. In September, 1906, the value of loans standing to the debit of
individual debtors on the books of the Orange River Colony Repatriation
Department had been reduced by almost 50 per cent, through the settle-
ment of ex-burgher compensation. The final distribution of the free grant
has been based practically on the assessed claims of all ex-burghers,
whether rich or poor.

16



242 THE AFTERMATH OF WAR

The following is an illustration of the working of the fund
distributed in this way. A, B, C, and D are four claimants,
whose claims are respectively i;25, .4*50, £100, £200.

Claimant A would receive payment in full.

Claimant B would receive payment of £27 10s. — viz., the
minimum dividend on ,£25, plus the jno rata distribution of
28. in the £ on the balance of his allowed claim, which is
equal to 55 per cent, of his allowed claim.

C would receive payment of £25 and 2s. in the i* on £75 —
viz., £32 10s., which equals 32^ per cent.

D would receive payment of £25 and 2s. in the £ on £175
— viz., £42 10s., which equals 21{- per cent. ; and so on. ^

The disposal of the £3,000,000, supplemented as previously

stated, was as follows :

£ s. d.

Amount of ex-burgher fund 3,000,000

Supplement 4,050 1 3

Total fund for distribution 3,004,050 1 3

Amount paid to the

Government of Natal

for ex-burghers of the

ceded portion of the £ s. d.

Transvaal 100,000

Amount awarded to the

ex-burghers of the

Transvaal 1,521,316 8 8

Amount awarded to the

ex - burghers of the

Orange River Colony... 1,382,733 12 7

i-3,004,050 1 3



The whole of the cost of the administration of the fund was
borne by the Government. In the Orange River Colony
17,747 claims were investigated ; 615 of these, amounting
to £335,903 18s. 4d., were rejected, and 17,132 were allowed
in whole or in part. The sum claimed by these latter was
£17,872,932 5s. lOd. The sum at which they were assessed
was £8,432,533 13s.

^ The Government rightly held that the poorer burghers should be more
liberally dealt with than the richer. All needed help, but the poorest
needed it most. Hence the decision to give at least £15 all round. It
is evident that the relief was much greater, in proportion to the loss
sustained, in the case of the small man than in that of his richer neigh-
bours.



COMPENSATION 243

In November, 1902, it has been pointed out in another
chapter, the Imperial authorities made a voluntary gift of
£2,000,000, to be applied in paying compensation to British
subjects, neutral foreign subjects, and natives. This gift had
no connection with the Terms of Surrender ; it was purely
voluntary. It expressed, not the obligations, but the bounty
of the Imperial Government to resident foreigners and to
natives as well as to its own subjects. It was made subject
to the reservation that ' limited liability companies ' and
' large firms ' should not share in it ; but no definition of
* large firms ' had been supplied. It was not unreasonably
assumed, however, that the Imperial Government desired its
bounty to be distributed amongst the suffering many, and not
to be absorbed by the wealthy few, and that the term ' large
firms ' was generic, and to be construed according to the
circumstances of each case. No universal definition could be
laid down. In many instances an examination of the facts
disclosed that what had been generally regarded as ' large
firms ' before the outbreak of war were now crippled. During
the continuance of the war their trade, if it had not wholly
ceased, had been greatly curtailed. Their property had been
looted or commandeered. After the restoration of peace some
of these once ' large firms ' resumed business with diminished
capital and under increased expense ; it was therefore deter-
mined to treat each case on its own merits.

Of the £2,000,000, the sum of £300,000 was apportioned
to the compensation of natives. This £300,000 was sub-
divided among the different colonies as follows : £15,000 for
compensation to the natives within the portion of the Trans-
vaal ceded on the declaration of peace to Natal ; £114,000 to
the natives of the Transvaal ; £171,000 to the natives of the
Orange Eiver Colony.

The native's attitude towards compensation resembled that
which he had previously shown towards concentration camps
and repatriation. He did not complain. He expected nothing;
he got something ; he was grateful.

All claims made by British subjects in the Orange Eiver

16—2



244 THE AFTERMATH OF WAR

Colony were in the first instance investigated by the Resident
Magistrates in each district. British subjects as claimants
were required to prove their nationality and their loss. The
Resident Magistrates provisionally assessed the claims. The
claims, with all the evidence taken thereon and the pro-
visional assessments or reports of the Resident Magistrates,
were then forwarded to the Central Judicial Commission, who
re-examined each claim, and allowed, disallowed, or varied
each provisional assessment. Many of the claimants resided
since the war in Cape Colony and in Natal. To have insisted
on these claimants coming either to the Transvaal or the
Orange River Colony to give evidence in support of their
claims would have been to them a hardship as well as an
expense. These claimants were therefore allowed to prove
their claims before Claims Commissions established in the
coast colonies, and the assessments arrived at were allowed
by the Central Judicial Commission.

Altogether 9,534 persons submitted claims as British
subjects. The amount claimed was ^4,944,344 13s. Id.

In the Orange River Colony 1,799 claims were sent in. The
amount claimed was i>l,368,693 6s. Id. The amount paid
was ii512,495 10s.

The number of persons who claimed as foreign subjects
was 2,015. Of these no less than 595 were Germans. And
in this connection it is not out of place to contrast the
liberality of the Imperial Government with the principle laid
down by a German Chancellor under somewhat similar cir-
cumstances. After the war of 1870-1871 the French Govern-
ment excluded from compensation German property-holders
in France who had suffered loss during the struggle. These
property-owners petitioned the German Government, and on
July 2, 1871, Prince Bismarck in the Reichstag said : ' The
citizen of a country who exercises his industry or profession
abroad and suffers in consequence of a war cannot expect
compensation. He ought always to remember that the greatest
risks attach to the fact that he is working in a foreign country.
This is a principle which particularly applies to distant countries



COMPENSATION 245

where the law has not the power it has in the States of the
Continent of Europe. Business carried on abroad is often
more lucrative. It is more profitable, but it is more dangerous.
In my view, there is no obligation on the part of the Empire
to assist a class of German citizens because war waged by the
Empire has caused them loss, to which I will not say we are
accessories, although they were caused because we waged war,
for the losses are part of the calamity of war.'

In 1871, while excluding Germans, France, for the purposes
of compensation, admitted all neutral foreign subjects who
were property-holders to equal rights with French citizens.
The German Government, dealing with the question of com-
pensation in Alsace and Lorraine, provided that compensation
for damage to movable and immovable property caused by the
war should be paid out of the war indemnity exacted from
France, subject to certain conditions. Amongst these con-
ditions were the following : ' Compensation will be paid only
to such claimants who at the time of the promulgation of the
law (June 14, 1871) were domiciled in Germany. If the
claimants were not German citizens, then compensation would
be paid to those only the Government of whose country
promised reciprocity in similar cases.' The British Govern-
ment felt itself unable to, and did not, guarantee the recip-
rocity required by this condition, and no British subjects
received any compensation from the German Government for
the losses inflicted by the war of 1870-1871.

With regard to compensation in South Africa, the Imperial
Government treated all neutral foreign subjects in precisely
the same manner as British subjects, save that foreign sub-
jects had to prove their neutrality. With this exception the
claims of foreign subjects were received, investigated and
assessed in exactly the same way as claims by British sub-
jects. The appraisement differed in no respect. No dis-
tinction was drawn between the causes of war losses, except
that the hons de rdquisition given by military officers in the
field were paid the assessed value in full.

The number of persons who claimed as foreign subjects was



246 THE AFTERMATH OF WAR

2,015 ; the total amount claimed was £1,494,931 3s. 4d.
The number of persons who established their nationality,
neutrality, and loss was 695, and the amount claimed by them
was £472,682 6s. 6d. The amount allowed was £135,615 8s.

It has been stated in a previous chapter that British sub-
jects were allowed to obtain in advance a portion of the value
at which their claims had been assessed. Owing to the
destruction wrought by the war, the country was claimant for
capital. Yet, until all claims by British and foreign subjects
in the two new colonies had been assessed, it was impossible
to tell what dividend would be payable on the claims. But at
an early stage it was realized that some portion of the assess-
ment could be paid immediately. The £2,000,000 granted in
November, 1902, became available in January, 1903, and the
first dividend of 6s. 8d. in the £ was paid in the following
April. A second dividend of 6s. 8d. in the £ was paid in July,
1903. Later a further dividend of 4s, in the £ was paid, so
that every British and foreign claimant received 17s. 4d. in
the £ on the amount of his assessment, being at the rate of
about 87 per cent, of the assessment.

In order to facilitate distribution, the £2,000,000 was sup-
plemented by the sum of £149 13s. 5d. from colonial funds.
The Colonial Government defrayed the whole of the cost of
collecting, investigating, assessing, and paying claims under
the British Subject Fund. The following is a tabulated
statement of its disbursement :









£


s.


d.


Amount of fund ...
Amount of supplement ...






2,000,000
149



13



5


Total fund for distribution .


2,000,149


13


5


£


s.


d.








Native compensation ... 300,000
Amount payable to British

subjects in the Witwaters-

rand, being 17s. 4d. in the

£ on their assessments ... 584,400
Amount payable to British

subjects in the remainder

of the Transvaal ... 501,291




1

7




2
10









COMPENSATION 247



Amount payable to British £ s. d.

subjects in the Orange
Kiver Colony 423,887 14 8

Amount payable to claim-
ants whose claims were
investigated in Cape
Colony and Natal ... 20,357 11 4

Amount payable to foreign
subjects in the Transvaal,
including the territory
ceded to Natal, and to
foreign subjects in the
Orange Eiver Colony .. 117,533 6 11

Amount paid to the Trea-
sury in repayment of ad-
vances made to British
refugees 52,679 11 6



^2,000,149 13 5

' Eequisitions and contributions in war are the outcome of
the eternal principle that war must support war. This prin-
ciple means that every belligerent can make his enemy pay
as far as possible for the continuation of the war.'^ In ancient
wars belligerents used to appropriate indiscriminately all
public and private property they could lay hands on. This
practice, however, grew milder about the seventeenth century,
under the influence of the experience that wholesale appro-
priation tended to demoralize an army, and to render its
sustenance in enemy territory extremely difficult. Accord-
ingly, although the right still remained, it was not so generally
enforced. Instead of wholesale appropriation, it became cus-
tomary to levy contributions and to exact requisitions in a
more or less methodical manner ; but with the development of
this custom no belligerent ever dreamt of paying cash for
requisitions or of giving receipts in lieu thereof.

^ Oppenheim, whom I have closely followed, and also Lawrence,
Walker, and Risley.

I have used the two terms ' requisition ' and ' contribution ' indis-
criminately, and they may be so used, although they may be very clearly
distinguished.

' Strictly speaking, requisitions are articles of daily consumption and use
taken by an invading army from the people of tine occupied territory ;
contributions are sums of money exacted over and above the taxes ; and
fines are payments levied upon a district as a punishment for some offence
against the invaders committed within it ' (Lawrence, § 204). So far as I
am aware, no contributions were exacted during the South African war,
and no fines levied which were not subsequently refunded in toto.



248 THE AFTERMATH OF WAR

Throughout his career Napoleon acted, and somewhat suc-
cessfully, on the principle of making each war pay for itself.
During his Italian campaigns he usually marched with few or
no supplies of his own, and obliged the provinces he subjugated
to feed and clothe his famished and ill-clad battalions.^ But in
the nineteenth century another practice was adopted. It
became usual to regard requisitions as a supplementary
resource, and not as the main support of the invaders. More-
over, receipts, or hons de requisition, were frequently given in
acknowledgment of the exactions made with the object of
protecting holders against fresh and unreasonable requisitions
on the part of succeeding commanders. The amount of the
requisition was still, however, left to the discretion of the
belligerents, and no restriction whatever was yet placed upon
the demands which they might think fit to make, nor was the
proportion between the resources of the country affected and
the burden imposed taken into consideration. The receipts
given carried with them no guarantee of reimbursement.

In modern wars civilized armies have usually been accom-
panied by huge trains of supplies and other provisions, but
even when thus furnished their exactions have sometimes
been gigantic. The following is a list of the daih/ supplies
requisitioned by the German troops quartered at Versailles
during the siege of Paris in the winter of 1870-1871 :

80,000 pounds of meat. 27,000 poiinds of rice.

4,500 gallons of wine. 7,000 pounds of roasted coffee.

120,000 loaves. 4,000 pounds of salt.

90,000 pounds of oats. 500.000 cigars.

Throughout the theatre of war similar exactions were made,
not only by the Germans, but by the French armies from
their own countrymen. It has been estimated that in a war
which lasted only six months, the occupied districts of France
were mulcted in goods of all kinds to the tune of £16,000,000.-

1 Fyffe, ' Modern Europe,' i., 116, 117.

2 These might under certain circumstances be continued even after the
conclusion of peace. Cf. Article VIII. of Treaty, May 10, 1871 : ' German
troops shaU continue to abstain from levying contributions, either in kind
or money, in the occupied territories; that obligation on their part being
correlative to the obligations contracted for their maintenance by the



COMPENSATION 249

The Hague Eegulations, however, laid down in 1899 certain
rules with regard to commandeering. That war must support
war remains a principle under these regulations also, but
this principle is somewhat modified by the plea that the
enemy State, and not the enemy individual, should be called
upon to support the war, and that requisitions should only be
imposed to the extent required by military necessity. Public
property may be appropriated as heretofore, but requisitions
from individuals should be either paid for in cash or acknow-
ledged by receipt.^

The practice of the British army in war has been to pay
for all supplies for the use of troops taken from the inhabitants.
This practice was continued during the Boer war. At the
commencement supplies or property taken were paid for in
cash ; but payment in cash became difficult as the theatre
of hostilities increased in extent, and the troops became
dispersed over an ever-widening area. Consequently, on
December 17, 1900, an Army Order was published suspending
payment for supplies requisitioned until the termination of
hostilities, but ordering that receipts on a prescribed form
should in all cases be given. '^ In spite of this order, however,
receipts were constantly honoured by the various army depart-
ments — such as Ordnance, Supplies, and Remounts — during
the war ; and it is impossible to state how much money was
expended in this connection, because the various sums dis-
bursed were allocated to the departments concerned. The
figures to be given later only apply to the amount paid out
on military receipts some months after the conclusion of
peace by the Central Judicial Commission.^

French Government. In case the French Government, notwithstanding
the reiterated demands of the German Government, is behindhand in
the execution of the said obhgations. the German troops will have the right