family relations, and property rights, the difference between the Law of
England and that of South Africa practically disappears as regards
Europeans in social relations. In the whole field of Commercial Law, and
in that of the Law of Crimes and Punishments, the Law of England has
practically been adopted in all the States and Colonies. The origin of
this state of the law is, of course, to be found in the fact that the
Roman Law conceptions were out of harmony with modern commercial
conditions and the competition of the World Market; and also that their
code of Crimes and Punishments has become inappropriate to the later
forms of European civilisation.
Several features of South African legislation require more special
notice. The Transvaal Law may be taken as typical of that of the other
States, and political and economical conditions make the law of the late
Republics of most importance and interest to the British public. The
most salient topics are those dealt with by the Law of Mines, the law as
to the natives, and the Law of Universal Military Service.
The law as to minerals, including not alone gold and silver, but all
precious metals and precious stones, is based on State ownership. It is
expressly declared: "The right of mining for and disposal of all
precious stones and precious metals belongs to the State."
The State, however, does not undertake the work of mining, but grants,
under certain conditions, that privilege to various classes in the
community. The Government is authorised by law to proclaim a specified
area to be public "diggings." Thereupon, certain rights are reserved to
the owner of the farm wherein the area is situated. These rights are in
effect to select certain portions of the proclaimed area as mining
"claims" belonging to the owner, and to mark off these portions. The
remainder of the area is then open to appropriation by the public, the
first comer having the first right. Shortly before the war of 1899, in
consequence of scenes of disorder attending the marking off of these
"claims" by the general public, steps were taken to introduce a system
of assigning the mining areas by lot among the residents in each
district.
The taxation of the mineral grounds was, and is, based on a dual system.
The one is taxation, by means of levying a monthly due, called a "claim
licence," in the mere possession of a mining area, called a "claim,"
whether or not the area is being developed. The other principle,
superadded to the first, was that of taxing the profits of each mine.
Before the war this latter tax amounted to five per cent.
In relation to gold mining, in one very important respect the Law of the
Transvaal, like that of Cape Colony, is in striking opposition to the
rules of civilised law all over the world. The famous I. D. B. (Illicit
Diamond Buying) enactments passed to protect diamond mining in Kimberley
have a parallel in the I. G. B. (Illicit Gold Buying) provisions of the
Transvaal Law. It is incumbent on the possessor of rough diamonds to
prove his innocence. Similarly, under the Gold Law of the Transvaal,
"Any one who is found in possession of amalgam or unwrought gold, or
uncut precious stones, and can give no proof that he obtained possession
of the same in a lawful manner," is punishable with fine and
imprisonment. For a third offence, the amount of fine and imprisonment
with hard labour is at the discretion of the Court, and forfeiture of
the unwrought gold, or uncut precious stones, follows conviction.
It is true that in England, for instance, a similar exception is in
force with reference to the possession of explosives, a measure intended
to prevent Anarchist outrages. But the difference is very great between
the two classes of cases. The manufacture and sale of explosives is not
the staple industry of England, as the production of gold and diamonds
is in South Africa. The chief occupation of the industrial population of
England is not affected; the provision remains only one of some
inconsiderable exceptions to the general rule, that every one is
presumed innocent until he is proved guilty.
The law relating to natives, under which head are included all the
coloured races, is equally strange to those familiar only with the Law
of England. The so-called Pass Law provides that every native in
districts or towns inhabited by Europeans--everywhere, in fact, except
in the native villages--must be in possession of an official passport,
showing he is registered in an official State registry. Other
regulations limit the action of the native--the Curfew regulations,
compelling Kaffirs in town districts to remain indoors after sunset.
Municipal rules, prohibiting Kaffirs from walking on the footpath of the
street, and special rules of the Criminal Law affect them. The lash is
presented as the penalty for various offences. The death penalty is
inflicted for Kaffir outrages on women of the European race. By the
imposition of a Hut Tax, payable annually, the Kaffir is induced to
labour; an occupation which, if left to himself, he prefers to leave to
women.
The Law of Universal Military Service, applying to all Europeans who are
burghers--a law of all the States of South Africa--furnishes another
point of divergence from the Law of England. In the Transvaal all
burghers over the age of sixteen and up to the age of sixty are under
the military command of the elected Field Cornet of the district. In
time of war the age begins at fourteen and has no fixed limit for
ending. This, be it noted, is not a case of conscription; it is a levy
_en masse_, taken as a normal condition of life. Burghers on commando
are exempt from civil process, and are exempt from the obligation of
paying claim licenses for the period they are on commando.
III.--RECENT BRITISH MODIFICATIONS
It is, of course, in the present stage of our information impossible to
state fully the various modifications which have been introduced in the
new Colonies since the British annexation two years ago.
Some changes worth noticing have, however, been published.
In Private Law, the chief change of which we have information appears to
have been the abolition of the Orphan Chamber of Roman Dutch Law--a
State department concerned with the administration of infants' estates.
The change, however, seems only to have been one of administration and
title, the duties of the abolished Chamber being transferred to the
Attorney-General's Department.
As regards the Gold Law, an enactment by the late Republic of a war-tax
on the gold output of from forty to fifty per cent. has been abolished.
The British tax on the mines has been fixed by proclamation at ten per
cent. on the profits of each mine. The system of claim licenses--taxation
on the possession of mining areas--is continued.
Minor modifications of the details of the Native Pass Law have also been
announced, including the restriction of the number of cases, and of the
power of magistrates to sentence Kaffirs to the punishment of the lash.
The Law of Military Service appears to remain up to the present
unmodified. Indeed, a recent decision in the newly established British
High Court of the Transvaal has very rigidly construed a provision of
the Gold Law, protecting burghers on commando from liability to pay
license dues. The Court refuses to allow to Uitlanders the same
privilege as that allowed to burghers in arms. The Uitlander, according
to that decision, is liable to pay these arrears accruing during the war
to the present British administration.
IV.--PRINCIPLES OF IMPERIAL POLICY--OBSTACLES IN THE WAY OF THEIR BEING
CARRIED OUT
Before considering specific suggestions as to actual legislation
required in the new Colonies, it is necessary to set clearly before us
what are the objects to be aimed at by Imperial statesmen. Most of the
errors of the past century of Imperial rule in South Africa are
traceable to the fact that no steady and consistent policy has been
adopted for any definite period. With every change of government in the
United Kingdom the British policy in South Africa altered. As I have
written elsewhere, it swung with bewildering inconsistency, according to
whether an Imperialist or a Little Englander Government was in power,
from an expansionist to a "retrenchment" policy. Alternately
negrophilist and anti-Kaffir, alternately conciliatory to the Dutch and
aggressively British. "Nothing more fixed than the certainty of Imperial
change, unless, indeed, it were the cruelty of Imperial ingratitude."
I shall take it, then, that consistency is the least we may expect as
the result of the late war. The maintenance of the integrity of the
world-wide Empire, plainly bound up with the retention of South Africa,
involving the possession of the only secure sea-route to Australia and
India; the upholding of the banner of European justice and humanity in
Africa, the British portion of the mission of the European race the
world over--to this end, the fusion of all strains of the European
people in a new nationality to form a constituent part of the
Empire--these I take to be the objects of Imperial statesmen in the
United Kingdom and the Colonies, and of all loyal citizens of the
Empire.
Now, these principles being fixed, we have next to consider what are the
dangers threatening the successful carrying out of a policy based on
these principles.
The first, and most formidable, danger is that arising from the
existence in all the Colonies of South Africa of a Separatist party
among the Boer section of the population, usually described as the Young
Afrikander party. Its origin is due to many historic causes; among which
not the least has been the unwise and vacillating policy of the Imperial
Government. That party is by no means extinct as a result of the late
war. No matter what professions are made in the Land of Diplomatists, it
has to be reckoned with for our time and generation. It relies for the
ultimate success of its policy of substituting a Boer-ruled independent
State for British citizenship of the Empire on many causes. In the first
place, the stubborn tenacity of the Boer people, and their slowness to
abandon any long-held purpose. Again, on their military skill, their
religious fanaticism, their conviction that they are the Lord's elect,
and that His sword will smite not in vain. Yet again, and most of all,
on the enormous birth-rate among the Boers--families of twelve sons
being not uncommon. Boer ignorance of the power and purpose of the
Empire--of the real character of that federation of freemen--figures
also in their calculations; and as well the barrier against fusion of
the European strains kept up by the use of that _patois_ of the
Hollander tongue, the South African _Taal_. Lastly, their main reliance
is on future inefficiency of the Imperial administration--marred by
negrophilist British missionaries and English society nepotism and
favouritism--on the see-saw of British party politics, and on the
prospects of the Empire becoming involved in war with some great
European Power.
The next danger is that arising from the presence on the goldfields of
the Transvaal of vast agglomerations of cosmopolitan finance owning most
of the mineral wealth of the State. On many points, the interest of
these groups is not the same as those of the Imperial Government and
those of the rank and file of the British settlers. Taxation of the
mines for Imperial purposes, such as those of State-aided British
immigration and State-constructed irrigation works, cannot be in the
interest of the mining groups. The lowering of the wages of the white
miners is clearly in their interest; while opposed to the prospects of
welfare of British miners and British merchants in the towns, to those
of the professional classes, and, above all, to the interests of British
agricultural settlers, whose occupation cannot be profitable for many
years to come unless their market is at their door. Mining profits
remitted to Berlin and Paris, instead of going to the pockets of
resident British miners, cannot benefit the British agricultural
settler. Again, the truck system, by which employers supply goods to
their workers (a system illegal in England), while it may increase the
profits of the mining groups, would be destruction of the trade of the
British dwellers in the towns. This aspect of the question is rendered
more serious by the fact that practically all the press of South Africa
is owned or controlled by the financiers of the mining groups.
Lastly, a danger which has existed for generations is that arising from
the existence of a body of sentiment in the United Kingdom which, for
want of a better word, is called negrophilism. This sentiment is usually
voiced by British missionaries, and advocates an impossible black man
and brother theory. Its effect on British legislation and administration
in South Africa caused the first dissension of moment between Boers and
British at the time of the abolition of negro slavery in 1836. The whole
theory is felt by all Europeans of South African experience to be based
on a flat contradiction of the facts of life and the teaching of the 250
years of European contact with the South African native--Bushman,
Hottentot, or Kaffir. Allied with this is the colour-blindness of some
Anglo-Indians, who favour the disastrous measure of flooding South
Africa with Asiatics from India.
V.--LINES OF LEGISLATION TO CARRY OUT THE IMPERIAL POLICY
Having defined the Imperial policy in South Africa to be the maintenance
of the integrity of that federation of freemen which is the British
Empire, the upholding of the banner of European justice and humanity in
the Dark Continent, and for the promotion of these ends the fusion of
all strains of the European race in one community, let us now consider
the general lines of State action requisite to carry out that policy.
All parties loyal to the Empire are agreed that the first requisite
from the standpoint of the Imperial welfare is the promotion of the
immigration of British agriculturists to South Africa. The enormous
birth-rate of the Boer people will prevent any prospect of fusion
between British and Boers--anything, in fact, but the swamping of the
British element--unless this immigration be organised by the State. The
life of the gold and diamond mines cannot last longer--so those
qualified to speak are agreed--than a few generations. With the
exhaustion of the mines, the British population, if confined to the
towns, would inevitably disappear. Again, the Boers being essentially
country folk, could never have that close association with the British
necessary for the coalition of a united people, unless the British are
settled as agriculturists. A most encouraging precedent of the success
of State-organised immigration of British settlers on the land is to be
found in the State-aided immigration of 1820 into the Eastern Province
of Cape Colony.
Exactly as in Egypt and in India, agriculture, to be prosperous and to
extend over large areas, is impossible in South Africa unless with the
aid of State-constructed irrigation works. The water supply, both from
rainfall and underground natural reservoirs, is ample; but engineering
skill is required to enable these sources to be utilised all the year
round. The recently published report of Mr. W. Willcocks shows what
favourable prospects exist for the carrying out of a general system of
State irrigation works.
One word of warning is necessary. The general impression, so sedulously
created for many years past, of the unsuitability of South Africa as a
sphere for British immigration, is, as Mr. Rudyard Kipling has pointed
out, only a part of a political propaganda, intended to exclude British
influence. It may be entirely ignored.
The next requisite of State action is the promotion, by legislation and
administration, of the development of the present and future goldfields,
and other mineral fields, in such manner as may tend to further the
general ends of the Imperial policy as already described. The taxation
of the mines should be so adjusted as to favour British immigration and
the creation of a prosperous and loyal British community. The
development of new fields should be encouraged; adequate sums should be
raised for public objects; the minerals, expressly declared to be
property of the State, should be primarily regarded as a fund for State
purposes, not one for the creation of millionaires or the undue
enriching of shareholders in Hamburg or Paris or Vienna. The welfare of
the mass of British residents in the towns engaged in trade should be
considered in legislation affecting the gold mines.
In view of the presence of an overwhelming majority of the subject
Kaffir race, all Europeans should be trained to arms, on the model of
the laws already in existence in the two new Colonies. From an Imperial,
as distinguished from a European standpoint, this measure is equally
necessary. The Boers are born soldiers: a nation in arms. No reliance on
a professional army or professional police can afford any assurance of
stability for the Imperial rule. The Boers would regard such a régime as
merely one of transitory military domination.
An efficient system of education, from primary school to university,
should be organised and carried out. In the new Colonies great progress
has already been made in this direction, and a recently published
address by Mr. W. Sargent, the Director of Education, shows that the
principles to be kept in mind are clearly apprehended.
A sane and consistent policy with regard to the status of the Kaffir and
other non-European people should be adopted and adhered to. The Boer
position, that the Kaffir is not in justice entitled to equality, social
or political, with Europeans, should be upheld, as that plainly
sanctioned by European experience of two centuries and a half.
Efficiency should be insisted on as the test for appointment in the
public service. Salaries on an adequate scale should be given, bearing
in mind the standard of payment usually obtaining in gold-bearing
districts. The obstacles in the way of making efficiency the test of
appointment should be clearly understood, and as far as possible guarded
against; the persistence of Young Afrikander Separatist ideals, and the
readiness of the propagandists to accept office under the Imperial
Government; the danger of undue weight being given to the influence of
the great capitalists; the equal danger of the intrigue, favouritism,
and nepotism of London society--of which so much was heard at the late
Committee of Inquiry into the training of army officers--being brought
to bear on appointments to office in the new Colonies.
The language question--that of the degree of recognition necessary or
expedient of the Dutch language in the courts and public offices--is so
important that it is better to consider it separately.
[Illustration: Photo: Russell, London.
HON. SIR ARTHUR LAWLEY, K.C.M.G.,
Lieutenant-Governor of the Transvaal.]
VI.--THE LANGUAGE QUESTION
The question of the degree of recognition of the Dutch language in the
new Colonies to be accorded by the new administration is one of the most
difficult, and at the same time one of the most urgent and altogether
inevitable, presented by the altered situation, the result of the late
war. It is one of the cases where not to decide is to decide. Let us
endeavour to understand the conditions of the problem, bearing steadily
in mind the objects to be aimed at by the Imperial policy.
No responsible statesman in the United Kingdom or in the Colonies can
desire to take any step other than conciliatory to Boer sentiment,
provided the main object of creating a united and prosperous European
community is obtained. Anything like a persecution of the Boer tongue or
traditions would not only be unjust, but most unwise. At the same time,
Imperial statesmen must remember that British-descended citizens of the
Empire in South Africa hold that their sentiment and their opinion is
not to be taken as a matter to be ignored. Now, Imperialist sentiment in
South Africa is united as to the desirability of having only one
official language, and of doing away with the dual language system
introduced in Cape Colony twenty years ago.
Limiting any action of the Imperial Government, must necessarily be the
conditions as to the recognition of Dutch agreed upon with the Boer
generals as one of the terms of peace. These conditions were that the
Dutch language is to be taught in the schools, in cases where the
parents of the children desire it; and in the courts of law in cases
where, in the opinion of the court, the ends of justice will be
furthered by its use. The wish of the parents and the discretion of the
law-courts are, therefore, to be arbiters. The peace terms, in this
matter, seem wholly reasonable; but the main question of a dual language
remains unaffected.
Let us first deal with the cause of much misapprehension in the United
Kingdom in this matter. Here I will quote from an article of mine
published some time before the peace agreement:--
"There is no question here of the suppression of the language of a
people. The language of the Boer people of South Africa is a patois
called the Taal, based on the seventeenth-century Hollander Dutch, with
a mixture of many strange words, Kaffir and English, and with the
omission of most grammatical inflexions. In that happy tongue you are
permitted to say: 'I is.' It is needless to say there is no literature
in this patois, as there is in the Hollander Dutch of this century. Now,
it is only to Hollander Dutch that it is proposed to accord equal
audience as an official language. The official recognition of Hollander
Dutch dates from 1882 in the Cape Colony, and is a result of the
political propaganda of the Afrikander Bond. It was openly announced and
hailed as the 'thin end of the wedge' to prevent the fusion of the Boer
and British strains of the European people, and to drive the British
into the sea. It is almost as grotesque a misrepresentation to call this
claim for the official recognition of Hollander Dutch a popular demand,
as if, in regard to modern Italy, we were told that the peasants of
Umbria or the Marches were hungering and thirsting for the recognition
of Augustan Latin as entitled to equal audience with Italian in the
courts and public offices of Italy.
"The veld Boer does not understand Hollander Dutch. He only hears the
Hollander tongue, or, rather, the seventeenth-century predecessor of it,
in the text from the seventeenth-century Dutch Bible read out in the
churches on Sundays by the predikant, or in the hymns, once chanted by
his forefathers of the Lowlands, who worsted Alva, persecutor of the
Saints of the Lord.
"It will clear the air greatly if people at home will realise what is
the force behind this Hollander Dutch language movement. It is the Young
Afrikander party.
"For sixty years English was the sole official language in South Africa.
The experiment of two official languages is one of only twenty years'
duration, and has not been crowned with any conspicuous success, unless
racial cleavage, political and social, be counted as such.
"No other course can so speedily promote the fusion of all Europeans.
Judging by the trend of events, the future among the European people
belongs to one or two of the great languages. It is significant that, at
the present moment of time, with a knowledge of English and French, one
can travel the world. The fusion of European strains, so happily
accomplished in the United States of America, is admittedly due to the
determined enforcement of a single language as the sole official
language of the Republic. Immigrants of all European nationalities learn
to speak and write English--their children of the next generation become
Americans. As a London Consul-General of the United States pointed out
to me, the reunion of the European race, as a political measure on a
vast scale, has been first accomplished in the American Commonwealth.
Never since the pre-historic time of the root-origins of our language,
never since the corporate unity of the Roman Empire, has there been so
vast a breaking down of barriers between Europeans.