By a proclamation dated the 18th day of June, 1895, signed by the late S. J. P. Kruger, State President of the South African Republic, and Dr. W. J. Leyds, State Secretary, and published in the Official Gazette of the South African Republic under date of the 19th day of June, 1895, the eastern portion of the Farm Witfontein, No. 572, situate in the District of Potchefstroom in the South African Republic, was, in the terms of Law 14 of 1894, proclaimed as a public goldfield from the 19th day of July, 1895, under the administration of the Responsible Clerk at Doornkop.5 Under the above-mentioned Law 14 of 1894, upon any parcel of land being declared a public digging, "every white person, who subjects himself to the laws of the country and to the official who issues the licenses," and "produces the receipt or the certificate that he has paid his personal taxes according to law for the current year," had the right, upon payment of a stipulated sum, to obtain a prospecting license authorizing such person to prospect on Government ground situate within the jurisdiction of the official who issued the licenses and which were set aside for prospecting by the Government or on private lands in accordance with the regulations of the law." Upon ascertaining that the said farm would be thrown open for "pegging" on the 19th day of July, 1895, Mr. Brown made arrangements to peg a large number of claims thereon and on the date set attended at the office of the Responsible Clerk at Doornkop for the purpose of obtaining the necessary licenses, when he was informed that no licenses would be issued until 10 o'clock A.M., although the time prescribed by law for the opening of such office was 8.30 o'clock A.M. Brown, upon being thus informed, protested in writing against this action on the part of the Responsible Clerk and made application for 1,200 prospecting licenses, tendering at the same time the sum of £300 and producing his certificate as to the payment of his personal taxes for the current year. The Responsible Clerk, in spite of this full compliance with the law by the applicant, refused to issue the licenses, whereupon Brown gave instructions to the men, whom he had employed to assist him, to pro 5Appendix, pp. 20, 51, 52. 6Appendix, p. 102. 7Appendix, pp. 21, 60. 8 Appendix, pp. 60, 88. 8 ceed to peg claims upon the proclaimed portion of the Farm Witfontein, and in accordance with such instruction, 1,200 claims were duly pegged thereon.o On the 18th day of July, the day preceding that on which the farm was proclaimed a public goldfield, the State President decided to suspend provisionally the opening of the farm, and a proclamation to that effect was signed by the President and communicated by wire to the Responsible Clerk; but this suspending proclamation did not appear in the Official Gazette until the 20th day of July, 1895, on which day a proclamation was issued by the State President whereby the Farm Witfontein was proclaimed a public diggings from Friday, the 22nd day of August, 1895, and by further proclamation the opening of the farm as a public digging was further postponed.10 The Government in the meanwhile determined, instead of throwing open the farm for pegging, to dispose of the claims thereon by lot, and regulations were prepared at the instance of the Government for such purpose, and subsequently on the 30th day of August, 1895, all the claims upon the farm were disposed of pursuant to such lottery regulations.' 11 On the 22nd day of July, 1895, Robert E. Brown commenced an action in the High Court of the South African Republic against Dr. W. J. Leyds, Secretary of State of the Republic, and A. A. J. C. Dieperink, Responsible Clerk at Doornkop, in which he claimed that a license should be issued to him to peg 1,200 prospecting claims on the proclaimed portion of the Farm Witfontein, or, in the alternative, that the defendants should pay to him the sum of £372,400 as damages.11 The State President having become aware that Brown had instituted these proceedings against the officials of the Government, caused a draft resolution to be prepared by the Executive Council for approval by the Second Volksraad, whereby after referring to the postponement of the proclamation of the Farm Witfontein and a certain other farm named Luipaards Vlei, it was resolved: 9Appendix, p. 61. 10 Appendix, p. 81. 11Appendix, p. 82. 1. To approve of the action of the Government in this matter, considering these (subsequent) proclamations to have been issued in the public interest. 2. 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 the said proclamation. 3. That no pegging of claims, except those under sections 9, 10 and 14 of the so-called Gold Law, 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. This draft resolution was approved and passed by the Second Volksraad on the 26th day of July, 1895.12 The action instituted by Brown against Dr. W. J. Leyds, Secretary of State, and A. A. J. C. Dieperink, Responsible Clerk, came on for trial before Chief Justice Kotzé and Judges Ameshoff and Morice on the 15th, 16th, 18th, and 19th days of November, 1895, when the evidence was taken and judgment reserved.13 The principal questions raised at the trial were: First. Whether the proclamation of the 18th day of June, 1895, whereby the eastern portion of Witfontein was set open as a public digging had already begun to take effect on the morning of the 19th day of July when the plaintiff applied at half-past eight o'clock at the Doornkop Office for a prospecting license, and, if so, whether this proclamation could be suspended by a proclamation which was not published in the Gazette until the 20th day of July. Second. Whether the Volksraad resolution of the 26th day of July, 1895, whereby it was declared that the pegging of the Witfontein Farm was illegal and that no one deeming himself to have suffered damages should have any redress against the Government, had the force and effect of law.14 According to article 59 of the Gold Law of 1894, a piece of ground once set open as a public digging can only be closed in the manner specified in that Act, and it was contended on behalf of Brown, the plaintiff, that article 59 could only be altered by a 12 Appendix, p. 85. declaration of the will of the legislature in the form of a law and not by a mere resolution of the Volksraad.15 The Government on the other hand contended that resolutions of the Volksraad had the force and effect of law and that the resolution passed on the 26th day of July, 1895, put an end to any rights Brown might have had in the premises.16 Between the date of the commencement of Brown's action and the delivery of judgment, the President of the Republic, having become apprehensive that the Court might not give effect to the resolution of the Volksraad, passed on the 26th day of July, 1895, sought an interview with the Chief Justice for the purpose of ascertaining whether the Court intended to give effect to the Volksraad resolution in the Brown case; and at such interview the President went the length of threatening the Chief Justice with dismissal in case of his failure to uphold such resolution;" but all President Kruger's efforts were without effect, as on the 22nd day of January, 1897, judgment was rendered in the plaintiff's favor. The following is the head note of the judgment extracted from Chief Justice Kotzé's translation in Volume 4 of Official Reports of the South African Republic: "Where a proclamation was issued on 19th June, 1895, proclaiming the Farm Witfontein as a public goldfield from the 19th July, 1895, it was held that the proclamation commenced to operate on the morning of the 19th July, and that a subsequent proclamation, published on 20th July, was too late to cancel the previous proclamation. "Further, that the farm, having been properly proclaimed as a public goldfield, could only be closed in the manner prescribed by Art. 59 of Law 14 of 1894. "Art. 59 of Law 14 of 1894 can only be altered or repealed by a subsequent law. "Per Kotzé, C. J., and Ameshoff, J.: A resolution of the Volksraad has, according to the Grondwet, no force of law. Art. 32 of Law 4 of 1890, as interpreted by the Attor ney-General, is in conflict with the Grondwet and cannot be applied by the Court in the present case. olksraad in this "Per Morice, J.: The resolution of the V. instance cannot be taken as applying to pending 15 Appendix, p. 70. 16 Appendix, p. 72. 17Appendix, p. 142. cases, and it is therefore unnecessary to consider whether the said resolution has the force of law. "Per Curiam: The plaintiff is accordingly entitled to the licenses applied for by him on the 19th July." The following extract from the opinion of Chief Justice Kotzé clearly indicates the nature of the relief granted: "The plaintiff is entitled to be placed by the Court in as nearly as possible the same position in which he would have been on the morning of 19th July, 1895. He has framed his claim, by means of a subsequent amendment, in the alternative, that the Responsible Clerk at Doornkop shall be ordered, upon receipt of the necessary moneys, to issue to the plaintiff a license for 1,200 prospecting claims upon the proclaimed portion of Witfontein, or otherwise that the sum of £372,400 shall be paid him as and by way of damages. The plaintiff is clearly entitled to the license, whereby he will be able to peg off 1,200 prospecting claims on the eastern portion of Witfontein. Nothing definite was said during the argument about the measures of damages, and no special grounds have been submitted to us on behalf of the Government, why in the event of the Court deciding in favour of the plaintiff, it would be impossible for him to proceed to peg off the 1,200 claims, which he has already informally pegged off. The evidence, so far as it relates to this point, leaves no doubt that if the plaintiff had obtained the license to which he was entitled, he would have been able to have properly pegged off 1,200 prospecting claims, which, as a matter of fact, he did peg off. That certain persons also lay claim to some of these 1,200 prospecting claims, by virtue of vergunningen, is a question which can at some future time be settled between them and the plaintiff, and, if need be, decided by the Court. It cannot affect our judgment in this case. Should it appear that it has become impossible for the plaintiff to peg off under the prospecting license the 1,200 specific claims, either in whole or in part, which he had already pegged on the 19th July, 1895, it will become necessary for the Court to determine the amount of damages. We can do no more at present, for, although the plaintiff is entitled to compensation against the State, by reason of the unlawful conduct of an official acting upon instruction of the Government, the onus of showing, with more or less definiteness and as nearly as possible, the amount of the damages lies on him, and the evidence, which he has submitted on this point, is too vague and uncertain to enable |