Leaving the general principles of the law affecting personal status,

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.

South Africa and the Transvaal War, Vol. 8 (of 8) South Africa and Its Future · 第 3 / 20 段