Now though the East End philanthropist has the greatest number from

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

South Africa and the Transvaal War, Vol. 8 (of 8) South Africa and Its Future · 第 2 / 20 段