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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
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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 P
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
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has brought back Cape Colony under the direct authority of Parliament-a curious conclusion to have reached when we call to mind that the war arose out of the denial of local franchises to Englishmen in the Transvaal.
Is it possible, without in all probability rendering more remote than ever the return of Cape Colony to peaceful constitutionalism, at once to revive the Constitution? Free elections, freedom of the Press, free debating, either upon the platform or in Parliament itself, cannot, it is certain, exist whilst martial law prevails. It would, of course, be the cue of the one party to describe its political opponents as disloyal, and to call in the military authority to imprison its antagonists as persons disaffected and dangerous to the State. As in Mr. Cartwright's case, the sentiment that there were too many pro-Boers at liberty already would be held by excited men to justify the most flagrant interference with civil rights. If we are to return at all to constitutional ways, the first thing to do is to get rid of martial law. Very probably before this is done it may be desirable to provide strong and trustworthy tribunals, in which Dutchmen and Englishmen may feel equal confidence. But this means an alteration of the law, and here we find ourselves in the old impasse. There is, we repeat, in Cape Colony, unless the Colonial Parliament assembles, no authority competent to change the law; yet without some changes in the law the Constitution can hardly at once be re-established in working order. Is it safe at once to re-establish the old Constitution just as it was, and to hand the Colony over to local parliamentary government and embittered party strife ?
With these formidable questions our statesmen are now face to face. The war, and the rebellion of many thousand British subjects, and the racial antagonism that the war has created or intensified, are great facts which cannot be ignored. We must do the best we can in circumstances of the greatest difficulty to bring into working order a satisfactory system, ultimately developing into complete self governing institutions upon the usual British Jines. It may be impossible, as great authorities tell us it is, to revive at once precisely the old state of things, as if nothing had been changed by the events of the last three years.
To what, then, does all this tend ? In the first instance, surely, to action from home. To revive the Constitution of Cape Colony, means the ending of martial law, and the reassembling of the Colonial Parliament. These things can be brought about only by will of the Sovereign de • facto' who governs the Cape—the Supreme Executive. To suspend the Constitution of Cape Colony, a phrase in everyone's mouth, means the substitution for the time being of a new system, which, of course, must have the authority of the Parliament of the United Kingdom. To invite Parliament to legislate directly for Cape Colony further involves the making of Parliament fully acquainted with the existing situation in that colony. Now, with a military censorship in force in South Africa, with the suppression of free speech and public meetings, Parliament has not as yet before it evidence upon which it can safely act in a matter of such extreme importance. An impartial and thorough inquiry into the existing state of things in Cape Colony should surely be undertaken, and reports laid before Parliament to enable it to act with knowledge and deliberation. This, it is true, will take time, but it is by no means certain that the lapse of a few months after the cessation of hostilities before the resumption of regular civil government would not be beneficial rather than the reverse.
It is unfortunately the case that those who should be best acquainted with the condition of Cape Colony take diametrically different views of the policy which should be pursued. Lord Milner, in a letter written for publication, commenting upon a petition to Sir Walter Hely-Hutchinson, Governor of Cape Colony, from forty-five members * of the Colonial Legislature, praying for a temporary suspension of the Constitution, uses very decided language.
"I entirely sympathise,' he writes, with the desire to preserve the Colony from the disastrous consequences which are likely to result from the resumption of Parliamentary and party strife before the bitter passions excited by the war have had even a little time to subside.' And he goes on at some length to declare that this view is 'no defection from the principle of responsible government. Local independence is the essence of our Imperial system, and so far from wishing to depart from it in this country, we all, I believe, hope to see it extended in the not distant future to the whole of South Africa. But it may well be that an interregnum of non-Parliamentary Government in the Cape Colony will not prevent, but promote, a return to the normal working of the constitutional system, and preserve that system from the complete breakdown with which a repetition of the events of the summer and autumn of 1900 would undoubtedly threaten it. As a matter of fact an interregnum of a sort already exists. For some time past the administration has of necessity been carried on without
* Three of these subsequently withdrew their names.