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armies in the field to labour for the reconstruction of a system of law and local freedom for what is now our common country—a system which can never be really established unless men of Dutch as well as of English sympathies assist the good work both in Cape Colony and our new provinces. Nothing could be more satisfactory than the bearing towards each other, after the peace, of the British and Boer fighting men who had just been engaged in deadly conflict. The feeling at once sprang up of mutual respect between those who had had a severe and honourable conflict and had fairly fought it out. Reproaches and recriminations, of which there had been too many in the past, were forgotten, and the combatants agreed with mutual heartiness to shake bands in good faith as friends.
Lord Milner and Lord Kitchener were far too wise to countenance the foolish view that British prestige required from the Boers in the field an unconditional surrender. In March 1901 they and Mr. Chamberlain had shown that they were ready and willing to make conditions so long as the question of sovereignty was placed beyond dispute. Inconsiderate and unfortunate speeches were made on this subject which certainly did nothing to bring peace nearer, since they tended to obscure the intentions which the Colonial Secretary had throughout professed and ultimately carried out. The conditions finally accepted were, as we have said, generous, as, indeed, were those (substantially the same) offered a year and a half ago. The terms finally accepted by the Boers were, in regard to pecuniary assistance, more liberal to them than those offered in 1901.
By the agreement between Lord Kitchener and Lord Milner, on behalf of the British, and Messrs. Steyn, De Wet, Reitz, Louis Botha, Delarey, and other leaders of the Boers on the part of the two Republics, the Boers in the field were to lay down their arms and acknowledge King Edward VII. Burghers in the field outside the Transvaal and Orange Colony, and prisoners of war, on accepting the position of British subjects, were to be returned to their homes as free men so soon as transport could be provided and their subsistence insured. Dutch was to be taught in the schools when the parents wished it, and used in the law courts when required for the better administration of justice. Rifles would be allowed, under licence, to those requiring them for their protection. Military administration in the two new colonies * would at the earliest possible date be 'succeeded by civil government, and as soon as circum•
'stances permitted representative institutions, leading up to 'self-government, would be introduced.' Measures were to be taken to restore the people to their homes, and the Government was to provide 3,000,00(M., and further to grant loans free of interest for two years, and subsequently at 3 per cent., in order to assist those who, owing to war losses, are unable to start themselves in their normal occupations. It was further arranged, though not mentioned in the agreement with the Boer leaders, that Cape Colony rebels of the rank and file, on pleading guilty, should be disfranchised for life, and that rebels of higher grade should be triable in the Colony for high treason, but that in no case should the penalty of death be inflicted.
If peace was to be re-established on the basis of annexation, it is difficult to see how more favourable conditions could have been granted to our new fellow-subjects. It is a terrible thing for a high-spirited and freedom-loving people to surrender a national independence for which they have fought for years and for which so many of their countrymen had ungrudgingly laid down their lives. Lord Kitchener evidently appreciated this; and his chivalrous and statesmanlike manner of treating his vanquished foes did fully as much as the conditions of the agreement itself to raise sentiments of friendship and good will amongst the Boer soldiers. The British Commander-in-Chief, it is clear, had never regarded Boer resistance to conquest as the action of brigands, but rather that of patriotic and brave men; and he complimented them on the courageous way in which they had done their duty. 'There was no disgrace,' he said, * in 'being defeated by an overwhelming force. If he had been 'one of them he would be proud to do as they had done. 'He welcomed them as citizens of a great Empire, and hoped 'they would do their duty to it and their Sovereign as 'loyally as they had done it to the old State.' *
So much for the war and the immediate future of the new colonies. But what is to be done with regard to the present situation in Cape Colony, the most important part of our old South African dominion? Natal, it is generally assumed, will still be enabled to cany on its constitutional system, but the conditions there are, of course, very different from those of the Cape. In the latter colony every course is beset with great difficulties which are not to be wholly disposed of by the invocation of constitutional maxims on the
* Lord Kitchener at Vereeniging.— Times, June 5, 1902.
one side, or the recourse to methods of absolutism on the other. As always it is as well to begin with the recognition of facts. At the present moment, and for a long time past, constitutional government in the Cape has been in abeyance. There is there, as we all know, created and sanctioned by the supreme Parliament at Westminster, a constitutional parliamentary system. The legislation of the supreme and of the local Parliament has alike been set at naught, and is being set at naught every day. The country is governed in fact by agents in Africa of the Executive Government at home in accordance with the instructions sent out to them from home, and this rule is supported by an army of occupation, also, of course, entirely at the orders of the Home Government. Constitutionally, nothing can be more abnormal than the existing situation. Here are the most solemn statutes of the realm, passed by the Imperial and the local Parliaments, suspended by the mere will of the British Cabinet. No request has been made to either Parliament to repeal or suspend the laws that it has passed. As yet neither Parliament has been approached to indemnify those who, for the public good, have broken the law. There is, it is true, still something of the paraphernalia of constitutional government left in Cape Colony. But a parliamentary system without a Parliament is a conception not to be grasped by the constitutional mind; and men, if they are honest to themselves, must recognise clearly that in sober truth and fact there is no constitutionalism whatever in the present state of things. Cape Colony, then, is at the present time governed absolutely according to the discretion of the Colonial Office and the Cabinet in London, advised by its agents on the spot. The Prime Minister of the Colony also advises the Governor and the Home Government who may or may not follow his advice. But in the absence of a Colonial Parliament there is no authority in South Africa to whom the local ministry is responsible. The Colonial Office and the War Office, like all other departments of the Home Government, are, of necessity, responsible to the Parliament at Westminster, and it is in that Parliament alone that the policy pursued and the acts done in Cape Colony by departmental authority can be constitutionally questioned. Responsibility to the Home Parliament is all that remains to protect British subjects in South Africa against the wrongful or excessive exercise of power by the civil or military officials. This is not a state of things that any Englishman can wish to exist for an hour longer than is absolutely necessary.
/ The suspension of the law, and consequently of the liberties
of British subjects, in South Africa can only be defended by reason of the necessities of the case. It is in itself no more legal cr constitutional for the supreme Executive of the United Kingdom to suspend an Act of Parliament in Cape Colony than in Kent. Lord Kitchener in a recent speech at Capetown has claimed that martial law, which really means the suspension of all law, and the substitution of government at the sole will and discretion of military commanders, was required for the salvation of the colony and for the protection of law-abiding men. In this he seems to us, so far as we can judge the condition of affairs, to have been right. For their illegal or extra legal action the Governors, military authorities, and others who brought about or carried out the system of martial law may be made ultimately accountable unless, their conduct having been bona fide and for the best, an Act of Indemnity is passed by the Legislature for their protection. It is obvious that such a condition of no law should exist as short a time as possible. Indeed, hitherto, it has always been supposed that the co-existence under the British flag of martial law and peace was an absolute impossibility. In any case it will be granted on all hands that the exercise of powers so absolute requires to be most carefully watched. Even whilst the war lasted British subjects in Cape Colony had their rights, which ought to have been respected whenever the supreme interests of the State rendered it possible to respect them.
A singular instance of the refusal by the military authorities in Cape Colony to respect the ordinary liberties of a British subject occurred when an Englishman in Capetown —Mr. Cartwright—who had undergone a long term of imprisonment for libelling the conduct of British troops, was prevented after his discharge from returning to England. He had been duly tried and convicted by judge and jury in Capetown, before the establishment of martial law. His arbitrary detention was very properly brought to the notice of the House of Commons, and the representative of the War Office justified the detention on the ground that the military authorities thought that Mr. Cartwright sympathised with the Boers, and that there were too many of that way of thinking already in England! This grotesque reply was hardly mended by the subsequent explanation of the Secretary of State that it was intended, before letting Mr. Cartwright sail for England, to obtain pledges from him as to his behaviour in England. Of course the conduct of Englishmen in England is regulated by law, which is here, at all events, quite strong enough to protect the safety of the State, and no English Court would have attached the slightest importance to such an undertaking as was suggested. The mistake that had been committed—indeed, its utter absurdity, if such a word can be applied to an invasion by supreme power of the rights of the citizen—was exposed and sharply criticised on both sides of the House of Commons, the debate affording a useful and much-needed reminder that military power, however absolute, should be exercised with discretion, and that to Parliament it belonged in the last resort to guard the liberties of British citizens.
So far as regards Cape Colony, if it is really impossible, with due regard to its safety and internal peace, to summon the Legislature, we seem to have arrived at an impasse. Admittedly the non-summoning of Parliament is a continuing breach of the law. Admittedly an Act of Indemnity must be passed to protect those who have honestly acted for the best, though contrary to or in excess of law, during recent troubles. But the only authority in South Africa that can legalise the present position of affairs or pass an Act of Indemnity is the Cape Parliament! What, then, is to be done?
In constitutional theory the authority of the Parliament at Westminster has always remained and still remains unimpaired over Cape Colony. The rights of its local Legislature, and the whole parliamentary system of the colony, are dependent upon Acts of the Home Parliament, and one Parliament at Westminster can repeal or modify that which a previous Parliament has enacted. It would, of course, be impolitic in the highest degree in anything like normal conditions for the Home Parliament which had once established a local parliamentary constitution to re-enter into possession (so to speak), and to attempt to resume in practice the direct legislative authority which it hoped it had delegated once for all to a local Parliament. But we must remember that the whole situation in South Africa is utterly abnormal, and we must keep our eyes on the actual facts of the situation. There is, as a matter of fact, no constitutional authority left in Cape Colony with power at its back; the Colonial Office and the War Office in London are supreme. These departments are instruments of the joint will of the Cabinet, which, again, is of necessity entirely dependent upon the support of Parliament. The sheer force of circumstances