Part 4

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.

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

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.