which to draw his recruits, he does not stand alone. There is Mr.
Quarrier, near Alloa in Scotland, who is doing similar work. In London
no child who knocks at the door of the many institutions is refused.
Each is admitted, and the change in a year is marvellous. The child has
already become a good little mechanic or workman of some kind or other.
He is cleanly, disciplined, and has many an example ahead of him and
around him, to make him follow in the good road on which he has been
set. In London £5000 is now asked for by Dr. Barnardo for the African
scheme. The greatest care is to be taken to watch over the children sent
out. They are to be carefully placed where climate and water is good,
and there, after a course of instruction in all that is most useful in
South Africa, they will be placed out as in Canada with farmers, with
miners, with mechanics, and with any who want them, if the employers can
only show that a good home is provided. But until a good home is
provided by the Colonists, they are to have a good home out there of
their own. There are opportunities of education in the local farming
pursuits that "make the mouth water," to have children thus placed. The
pastoral work of dairying, as well as the healthy occupations of
gardening and produce-raising will all be studied and taught on the
spot. What a happy change from the crowded thoroughfares of the east of
London! And if these children succeed, as they assuredly will, why
should not the Government do a little useful work of the same kind as
that undertaken by Dr. Barnardo and by Mr. Quarrier on its own account?
Why not utilise for Africa some of the industrial school children? They,
if settled together, and sent to English-speaking farmers, will not
forget that they are English. They will not make their farms when they
get them, after their useful school career, resound only with the
expressive but illiterate "Taal" tongue. Good Saxon (even if shorn of a
few h's) will be heard in their homesteads in the future. They will add
a good reinforcement to those who know that freedom is not to be got by
racial separation, and the condemnation of everything British. They will
permeate the districts where they grow up to manhood and womanhood with
the British idea and practice of common obedience to law and justice as
the best security for freedom.
FOOTNOTES:
[1] The generosity of Mr. Rhodes and of the De Beers Company has made it
possible to the influential South African Immigration Committee which
has been formed at Cape Town to open a Hostel there already.
SOUTH AFRICAN FEDERATION
VIEWS OF COLONIAL PREMIERS
BY E. B. OSBORN
_Author of "Greater Canada"_
I
Unification has always been an ideal of South African statesmen, and
twice, at least, it has been within measurable distance of realisation.
In 1858 Sir George Grey, who had federated the New Zealand settlements
despite the intensity of their local jealousies, promulgated the first
practical scheme of South African Federation. So well had he ruled the
Kaffir tribes on the eastern border of Cape Colony, that the Free State,
weary of warfare with the Basutos, made overtures for a federal
alliance, and the proposition of the Volksraad was actually laid before
the Cape Parliament by Sir George Grey, before the opinion of the
British Ministry in regard to his scheme of federation on New Zealand
lines and their sanction for the course actually pursued had been
received. Sir George Grey was recalled; though on his arrival off the
British coast he found that he had been reinstated by a new Secretary of
State, the delay led to the loss of an excellent opportunity for
carrying through a measure comparable in importance with the Act which
brought about the legislative union of Upper and Lower Canada.
[Illustration: Photo: Elliott & Fry, London.
HON. SIR W. F. HELY HUTCHINSON,
Governor of Cape Colony.]
For many years after the failure of Sir George Grey's attempt,
unification was a little-regarded counsel of perfection. It is true that
the Duke of Buckingham, Secretary of State for the Colonies in the
Disraeli Ministry of 1868, admitted that it would be politic to consider
seriously any further overtures for a federal alliance from the Boers,
but the Free State was no longer in the mood to make them, our
annexation of Basutoland being resented, and the discovery of diamonds
on its western border in 1867 having created fresh causes of irritation.
When the second Disraeli Ministry came into power, and Lord Carnarvon,
who had collaborated with the Canadian Fathers of Federation (he himself
may be described as the Godfather of the Dominion), undertook the charge
of colonial affairs, the plan proposed by Sir Henry Barkly for a
confederation of South Africa, which should be the logical
consequence of the grant of autonomy to Cape Colony, was cordially
received. Unfortunately the Free State held aloof, the Cape Ministry
remembered only too well the object lessons in anti-Imperialism received
from Lord Carnarvon's predecessors, and a _grain de sable_--the
tactlessness of Mr. Froude--caused a vast amount of friction. Even then,
but for the revival at home of the belief that political quietism and a
policy of non-interference with Colonial affairs would enable Great
Britain to retain the commercial hegemony of the world, Lord Carnarvon's
hopes might have been realised; for he had grasped the all-important
fact that South Africa was, and must always remain, a single-minded
community, whenever the native question was discussed, and that this
unity of opinion was a stronger motive for unification than any or all
of those political or commercial considerations which had already led to
the making of the Dominion, and seemed certain, sooner or later, to
bring about the federation of the Australian Colonies.
In more recent years three men of commanding influence have, each in his
own way, attempted to realise the ideal of unity. Mr. Kruger's attempt
to lay the foundation of a Dutch confederacy, the future greatness of
which would have been based (can we doubt it?) on some form of slavery,
may be dismissed as an instance of the adage, _corruptio optimi
pessima_. Mr. Cecil Rhodes worked for a federation on the model of the
United States; since the Cape was half Dutch, the Transvaal was to be
made half British, and the settlement of Rhodesia was to insure the
preponderance of Imperial ideas in the Union of the future. He saw that
the Boers must be persuaded to co-operate, and for that reason he allied
himself to Mr. Hofmeyr, the unofficial leader of the Boer party in Cape
Colony, who also had his federal scheme. Had the two Boer leaders agreed
to work loyally together in their disloyalty, it is conceivable that
they might have brought about an act of federation in the Boer interest,
and have constitutionally demanded from Great Britain the removal of her
garrisons from South Africa, a naval station at Simon's Bay being
conceded in order to retain the essential measure of Imperial
protection. Such, at any rate, seems to have been Mr. Hofmeyr's dream.
But, instead of being content to widen and deepen the influence of the
Afrikander Bond until such time as the term "suzerainty" should have
been interpreted by the heirs to Mr. Gladstone's South African policy,
Mr. Kruger decided to make use of his hoarded armaments, and the future
of his great raid involved the failure of Mr. Hofmeyr's long-meditated
plan of--shall we call it?--constitutional disloyalty. Nevertheless the
twofold ideal of unity, which inspired the acts both of those who
deserved and those who did not deserve to succeed, has survived all
these vicissitudes, and was never more strong than at the present
moment. Indeed it is obvious that not only the British and Dutch
inhabitants of South Africa, but also all responsible politicians and
competent publicists in Canada and Australia, are now of opinion that
complete solutions of the three South African problems of primary
importance--the settlement of the native question, agricultural
development, and railway administration--can only be obtained through a
Federal Parliament, a body which would combine a detailed knowledge of
local conditions with the power of seeing each problem as a whole, and
devising a general solution.
II
The foregoing contains the gist of many conversations with those who
have a special knowledge of South Africa and South African affairs. The
opinions of Sir Albert Hime, the Prime Minister of Natal, who may
certainly claim to speak in this matter on behalf of the South African
loyalists, were expressed as follows in an interview with the writer:--
"I am convinced that the majority of South Africans are anxious to see a
'United South Africa,' and I believe they will see it before long. I
cannot, of course, speak for the Dutch; but I am sure that every
'Britisher' in Natal and in Rhodesia, and nine out of every ten
'Britishers' in the rest of South Africa, are in favour of federation.
The great problems of South African development can only be completely
solved by a central authority. The native problem, for example, which is
the most serious of all, is a case in point. The difficulty of obtaining
a sufficient supply of native labour--a difficulty only to be overcome
by increasing the wants of the natives--is only one phase of this
problem, but it will supply an illustration of the necessity of
considering the interests of the whole country in dealing with such
matters. As things are arranged at present, the planters and farmers of
Natal have a reasonable cause of complaint in the fact that all their
available supply of native labour is drawn away to the Rand mines. I may
add that the solidarity of South African opinion in regard to the
treatment of the natives--all white men in South Africa are agreed, for
example, that they must never have the franchise, and that no attempt
should be made to create a navvy class in South Africa to compete with
the natives in the unskilled labour market--is a great unifying
influence. The matter of agricultural settlement is another problem
which should be considered with reference to the general interests of
the whole country. There is an impression current in certain quarters
that immigration should be diverted into the new Colonies. But once the
conception of a United South Africa is grasped, it is obvious that a new
British settler in Natal will do as much for the maintenance of British
supremacy as a new British settler in the Transvaal. If South Africa is
not to become a country of two or three large cities in a huge, sparsely
settled territory, the problem of agricultural development should be
dealt with on the broadest lines, and in the interest of the whole
country. Natal has no intention whatever of pursuing a selfish policy in
regard to the work of procuring settlers or of obtaining a share of the
Transvaal traffic."
Asked to express his opinion as to when the "United South Africa" of his
hopes would come into being, Sir Albert Hime naturally enough refused to
suggest a date. "But I am strongly of opinion that federation should
take place before the new Colonies receive self-government, or, at any
rate, concurrently with that event. That would be the safest course; for
it is quite possible that the new Colonies, after they had received
autonomy, would refuse to join. Once they have attained the privileges
of self-government as part and parcel of a 'United South Africa,' I do
not think there would be any special friction; if there was, it would
gradually disappear as local jealousies grew less."
"Though I do not regard the question of South African Federation as a
matter of merely academic interest," continued Sir Albert Hime, "yet I
think it would serve no useful purpose to discuss the details of a
federal scheme at the present moment. But, for my own part, I do not
regard the arguments of Mr. Cecil Rhodes in favour of making Cape Town
the federal capital as conclusive. In a speech at Bulawayo, Mr. Cecil
Rhodes summed up those arguments in a forcible manner, and his bequest
of Groote Schuur as a residence for the Premier of the United South
Africa that is to be, is an additional argument of considerable weight.
But I am inclined to think that the fact that the Cape Peninsula is, as
Mr. Rhodes said, the seaside sanatorium of South Africa, would not
compensate for the remoteness of Cape Town from the centre of the new
federation. And, again, if Cape Town were chosen there would be a
tendency to make too much of Cape politics, and the spirit of Cape
politicians might tend to dominate the Federal Parliament. Johannesburg
would be a bad choice. Living will always be costly there, and the
influence of cosmopolitan capitalists might be exerted with bad results.
Of course we should be glad to have the capital in Natal, but I do not
expect we shall have that honour. All things considered, Bloemfontein
would perhaps be the best choice. Or we might follow the example of the
United States, Canada, and Australia, and settle the claims of the
existing capitals by creating a new city for our federal capital."
III
Sir Edward Barton was at first unwilling to express an opinion on a
subject "in which many with better knowledge have a deep interest." "But
I am confident," he continued, "that before many years have passed away
we shall see a Federated South Africa, and that no South African will
wish to return to the old order of things once that federation has come
into being. I still believe that the form chosen for the constitution of
the Australian Commonwealth was the best available, and I think that it
would be better suited to South Africa than the Canadian form. But
whichever form is chosen, the whole community will benefit by
federation.
"We in Australia have had great difficulties to overcome, and a certain
amount of friction has necessarily arisen between the States and the
federal authority, but the history of the United States and of the
Dominion shows that such difficulties and friction cannot be avoided,
but can always be surmounted. With the exception of a few discontented
persons, I think nobody in Australia would be in favour of a return to
the old order of things, and it is already clear that the local
jealousies which hampered Australian progress are vanishing. When I was
in British Columbia nine years ago, I tried hard to find a man who
believed that the act of confederation should be undone; but I could not
discover such a person. There may be a few 'Blue Noses' in Nova Scotia
who would like to see confederation abolished, but I never met one. In
either case, the fact that Annexationists are few--too few to be
counted--in Canada, explains my failure. And once South African
Federation is an accomplished fact--and though the racial antithesis, as
was the case in Canada, renders the accomplishment more difficult than
in Australia, where a difference in opinion as to fiscal policy was the
chief obstacle--I am very sure that the vast majority of South Africans,
whether British or Dutch, will refuse to contemplate a change to the old
state of local jealousies. The sooner South African Federation comes,
the better for South Africa."
[Illustration: CHURCH STREET, PRETORIA THE APPROACH TO THE TOWN.
Drawn by Donald E. M'Cracken.]
Asked to answer the question: Should federation come before the new
Colonies receive self-government, or concurrently with that event? Sir
Edward Barton replied that in his opinion either course would create
difficulties for the future.
"Australian Federation," he continued, "came out of the will of the
people. The result of a referendum proved that a majority of the people
was in favour of federation, and all the States consented to the terms
thereof. Now if the Transvaal and the Orange River Colonies, communities
that have enjoyed a form of self-government in the past, had not free
choice of assent or refusal, and joined the South African Federation
under compulsion (no matter how slight a measure of compulsion),
constitutional difficulties might spring up in the hereafter. Disputes
might arise between the federal authority and these two States, and they
would say, 'We were not asked for our consent, we had not complete
freedom of choice.' In any case, representation must be given to them,
and it would be awkward if two out of the five Federal States or
Provinces were trying to overthrow the federation. I do not say this
would happen, but the possibility of such an emergency should be
seriously considered. It would be safe, I think, to work and wait for a
majority in favour of federation; more especially as there has existed
and still exists, as I am informed, a strong feeling that the interests
of both peoples in South Africa would be furthered by such a measure."
IV
Neither Mr. Seddon nor Sir Wilfrid Laurier granted the writer's request
for an expression of opinion in regard to the possibility or probability
of South African Federation. Mr. Seddon, though he is always ready to
advise the various Provinces of the Empire in commercial matters, is
averse to interfering in other people's politics. Moreover the word
"federation" has a discomfortable sound in the ears of his New Zealand
constituents; to a few it suggests Rossetti's "might-have-been," to most
its echo is a more or less decided "certainly not."
Sir Wilfrid Laurier, who has suffered much from the too imaginative
interviewer, both in the United States and in France, makes it a
principle not to be interviewed. But a day or two after he had
courteously declined to grant the writer's request, he was good enough
to allude to the subject of South African Federation in a speech at
Edinburgh, from which the following excerpt is taken: "In my humble
opinion," said the Canadian Premier, with reference to the attempt of
Mr. Rhodes to secure the unification of South Africa, "Mr. Rhodes made
one mistake. He made the mistake of being too impatient. Had he allowed
time for development, had he allowed the Dutch population to get
reconciled to the idea of British citizenship, they would have had much
sooner than will be the case the federation of South Africa, _which is
the only future of that great country_."
To judge from the spirit of his utterances in Canada on the subject of
South Africa, it would appear that Sir Wilfrid Laurier's opinions as to
the best means of working towards the end of South African Federation
do not materially differ from those of Sir Edmund Barton. He believes
that the free consent of the new Colonies should be obtained, and that
the policy pursued with regard to Manitoba by the "Fathers of
Confederation"--a policy of which he disapproved at the time, a policy
which led to a long series of disputes between Manitoba and the Dominion
Government--should not be pursued in the case of the Transvaal and
Orange River Colonies. It will be remembered that the "Red River
Settlement" received Provincial status on condition of becoming a member
of confederation, and that the terms of membership were accepted under
compulsion, and in the hope that they could be bettered.
LAW AND LANGUAGE
BY MR. M. J. FARRELLY, LL.D.
_Barrister-at-Law; Advocate of the Supreme Court of Cape Colony_
I.--THE ROMAN DUTCH LAW AND THE LAW OF ENGLAND
The Roman Dutch Law--the body of legal principles and enactments
codified under the later Roman Empire by the Emperor Justinian, as
modified by legislation of the States-General and decisions of the
tribunals of Holland up to the end of the eighteenth century--the date
of the British occupation of Cape Colony--constitutes the Common Law of
all British South Africa from the Zambesi to the sea. Indeed its sway
stretches farther north, if we include the province of Northern
Rhodesia.
The recent annexation to the Empire of the territories of the two Boer
Republics must necessarily have many effects not alone in the sphere of
politics, but also in that of law. But no unsettling of the general
principles of private law, regulating the rights and duties of the
citizens in private relations, can be the result. The invariable
practice of the Imperial Government--the only possible one to prevent
inextricable confusion of personal status and property rights--has
always been to enforce, as the unaltered law of the land, any system of
European Law already in operation in territories annexed or ceded to the
Empire, being already a portion of the dominion of any State of the
European Family of Nations. In this respect the Imperial Government but
follows the general practice of other European States: a practice so
uniform that it may almost be regarded as a portion of the Law of
Nations, of that custom of the European race which for a century we are
accustomed to speak of as International Law. The committee of the Privy
Council, which, as regards the Empire outside of Europe, may be viewed
as the Imperial Court of Appeal, has therefore to adjudicate on systems
of law more numerous than these that come before any other tribunal in
the world. Not alone questions to be determined under the Common Law of
England, but suits to be decided under that law, as modified by the
legislation of the self-governing Colonies, come under the cognisance of
that unique tribunal. From the Channel Islands, whose people boast that
they were never conquered by England, are heard appeals, based on the
_Grand Coutumier de Normandie_, unknown in France since the French
Revolution. The French Law of Lower Canada, still administered under
British authority, is lifeless and unknown in the Paris which gave it
birth. Similarly the Roman Dutch Law of the United Provinces, now
enforced in the former over-sea possessions of Holland, has long ago
been swept away in Low Countries, surviving as the law of the land only
in the British possessions, in South America, in Ceylon, and in South
Africa. With one result, arresting the attention of the historical
student, that in our own day British tribunals accept, as of the highest
authority--in many matters most vitally affecting the status and
property of British citizens from the Lion's Head to the Line, the
recorded opinions of a Pretorian prefect of the Roman Empire in
York--the brightest of the five stars of the _Loi des Citations_.
The tribunals of the Empire constitute a museum of former systems of
law, flourishing far from their parent springs. But every change is not
necessarily progress. The marked liking of British colonists, born in
the United Kingdom, for the Roman Law under whose sway they have passed
is a very instructive phenomenon. Wisdom, they seem to think, did not
die with the fashioners of that "codeless myriad of precedents, that
wilderness of single instances" which, evolved according to
imperturbable theory from the bosom of the English judiciary, is known
as the Law of England.
This preference is the more impressive, seeing that on many vital
matters, not mere abstractions of jurisprudence, the Roman Dutch Law
differs from the English systemless system.
The personal status of all residents in the new British Colonies falls
under rules quite different from the English rules as to capacity to
enter into and to perform contracts, as to property rights, and as to
family relations. Results of some importance may chiefly be expected
from the fact that, since the annexation and the transformation of the
Republics into British Colonies, the presumption in law that British
immigrants intend to adopt a new domicile, and subject themselves and
their property to a new legal system, must necessarily be stronger than
when residence was being taken up in the territory, then foreign, of two
Boer Republics. In the future, not alone, as hitherto, contracts of
service and contracts as regards property, but the relationship,
personal and as affecting property, of marriage and succession, will
fall under the jurisdiction of a High Court administering primarily the
Law of Rome. The Court will apply the Law of England to those latter
conditions only in cases in which they consider that, in accordance with
the principles of Private International Law, the English system is
applicable--the presumption now being that, as a general rule, it is not
applicable.
[Illustration: Photo: Russell, London.
RIGHT HON. SIR J. GORDON SPRIGG, K.C.M.G.,
Prime Minister of Cape Colony.]
As regards the capacity of adults to enter into and be bound by
contract, the most striking difference between the English and Roman
Dutch systems is the survival, under the latter, of a modified form of
the Roman Interdiction of the Prodigal. Under certain circumstances, on
application of friends or relatives, such an order can issue. Again,
contracts of service made out of South Africa are not binding unless
entered into again before a public official in South Africa.
In respect to the tenure of property, more especially of property in
land, the differences which exist are all in favour of Roman Dutch Law.
An admirable system of registering titles to land, whether of ownership
or mortgage, exists in South Africa, as on the Continent of Europe,
where that most valuable legacy from the Roman Empire has remained
unchanged in principle to our day. No tedious scrutiny of documents
attesting title to land is necessary, as it is in England. The official
register is sufficient proof of ownership. Transfer is rapid and
inexpensive. Again, unavoidable calamity, amounting to a condition of
impossibility of beneficial occupation, excuses from the necessity of
payment of rent of land. Such excuse is not known to the Law of England.
Unlike the Law of England, but like the Law of Scotland, desertion by
either party to a marriage furnishes ground for absolute divorce, with
right of re-marriage. The system, flowing directly from the Roman Law,
both in Scotland and South Africa, is understood to work satisfactorily,
comparatively few divorces being sought for.
II.--THE MODERN LAW OF SOUTH AFRICA