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PERIODICAL LITERATURE OF INTERNATIONAL LAW.
and George A. Finch..
W. Clayton Carpenter
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IMPORTANT TEXTS OF AN INTERNATIONAL CHARACTER.
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A COMPARATIVE STUDY OF THE SOUTH AFRICAN
The self-governing colonies of the British Empire are not, it is true, states within the meaning of international law, for Great Britain has, among other things, the legal right to conclude with other nations treaties which affect her colonies. It is, moreover, too much to say that the self-governing colonies will become members of the family of nations. Still it is a fact that England has in recent years granted them more or less participation in the negotiation of treaties affecting their welfare; and in a recent treaty of general arbitration Great Britain expressly reserves “ the right before concluding a special agreement in any matter affecting the interest of a self-governing Dominion of the British Empire, to obtain the concurrence therein of the Government of that Dominion.” 1 Consequently these colonies possess a certain standing in international relations which can not be overlooked, and which justifies some comparative study of their fundamental laws. The object of this paper is, therefore, to give a general sketch of the constitution of South Africa, recently approved by the English Parliament, in the light of the earlier constitutions similarly granted to Canada and Australia.
That part of South Africa under British control today comprises the self-governing colonies of the Transvaal, Natal, Cape Colony, and the Orange River Colony, together with Rhodesia, administered by the British South African Company, and the native territories under the control of the crown, viz., Basutoland, Swazieland, and Bechuanaland. These are the districts affected by the South African constitution. The colonies themselves are said to have a population of 6,130,000, of which 1,130,000 are Europeans, chiefly English and Dutch. Though these colonies are not separated by natural
1 Arbitration Convention between the United States and Great Britain, signed April 4, 1908, Art. II.
barriers, yet in years past some of them have been petty states under other than the British flag.
After a Portuguese sailor, imbued with the adventurous spirit of Prince Henry, discovered the Cape of Good Hope in the year 1486, little attention was paid to the place by other countries except to make it a port of call on the route to and from the East. The first actual settlement was made in the year 1652 by the Dutch who, except for four years of English domination, held control until about the beginning of the nineteenth century. Finally, on January 10, 1806, as a result of the Napoleonic wars, the Cape capitulated to Great Britain and passed once for all under English rule.?
The Dutch in the Cape grew restless under British rule and the distasteful British taxes. Consequently, in 1837, in order to escape their burden of troubles, about 6,000 of the Dutch inhabitants emigrated to what is now a part of Natal. Many of them had already entered the territory between the Orange and Vaal rivers (part of what is now the Orange River Colony) but the Queen's sovereignty was proclaimed over this area in 1848, and the Boers were compelled to trek sorrowfully across the Vaal River.
The British position in South Africa, however, was fast becoming uncomfortable. The Cape Colony officials were engaged in repressing native attacks in addition to smothering the rebellious Boer trekkers. At length considering that the latter task was not worth the cost and that the country was worthless anyhow, a compromise seemed desirable and by an agreement ever after known as the “ Sand River Convention,” the independence of the Boers in the South African Republic beyond the Vaal River was recognized January 17, 1852. On similar considerations Her Majesty's Government withdrew from the territory between the Orange and Vaal rivers, and on February 23, 1854, signed a convention at Bloemfontein which transferred the government to the Orange Free State.
During this generous period the home government, in April 1853, granted Cape Colony a parliament with representative government,
2 It is said that by the treaty of Vienna, 1815, England formally purchased the Cape from Holland for £6,000,000. Memorandum on the Federation of the South African Colonies, by Lord Selbourne, p. 15.
which was supplemented in 1872 by responsible government. Finally in 1856, Natal was given a new constitution and a legislative council elected by the people.
The non-tax-loving Boers kept the treasury of the South African Republic in a constant state of depletion. Consequently, dissensions among its people were rampant, sometimes ending in civil war.
None know better than the natives when opportunities exist and the British authorities saw with grave apprehension an impoverished and badly governed state seriously threatened by the greatest savage power in South Africa. White inhabitants called out for speedy protection, and Lord Carnarvon, then Secretary of State for the Colonies, thought it wise to send Sir Theophilus Shepstone from Natal as a Special Commissioner, empowered, with the approval of the High Commissioner, to annex any territory he might think fit to the British dominions. * As it was, we merely entered their country, took for granted what should never have been taken for granted — that is, the wishes of the mass of the people — and pensioning off the chief officials, declared that there was an end of that system of government for which the Voortrekkers had fought, and which was almost as dear as life to their descendants.3
At length, the indiscretions of the English administrator of the Transvaal drove the Boers to appoint a triumvirate to carry on the government and to drive out the British. After some engagements in which the Boers were in general victorious, a convention was signed at Pretoria, October 25, 1881, which gave the Transvaal complete self-government subject to the suzerainty of the Queen. Finally, in 1881, England abandoned all control over internal affairs and reserved only the right to veto treaties except those made with the Orange Free State. It was, however, distinctly agreed between the English commissioners and the Boer representatives that Englishmen and burghers in the Transvaal were to have substantially equal political rights, including that of the franchise.
At this time a white man was entitled to the franchise after a residence of one year. The influx of Englishmen, however, after the discovery of gold in the Transvaal and diamonds at Kimberly, resulted in the period of residence being gradually lengthened by the Boers to 14 years.
And taxes on the mining companies were made
3 A. Wilmot, Manual South African History, pp. 126, 127.
iniquitously heavy, amounting to thirty and even fifty per cent of the output. The capitalists, driven to desperation, planned to overthrow the Transvaal Government by force. The result was the Jameson raid which caused the Boers to pronounce the doom of British rule in South Africa. Arms and war supplies, which had long been quietly gathering, poured into the Boer republies in increasing streams. Rumors of war were on every hand.
A conference called at Bloemfontain in 1899, failed to come to an agreement on the question of the franchise, and after temporising for some time the South African Republic directed an ultimatum to the Queen, October 9, 1899, requiring the withdrawal of her troops from the border. Shortly afterward, war was declared by the South African Republic.
The progress of the Boer war is yet too familiar to call for recounting here. In May, 1902, the Boers finally submitted, receiving honorable terms but renouncing independence, and the annexed Orange Free State and South African Republic became the crown colonies of Orange River and Transvaal with appointive legislative councils. In 1906 England granted these colonies liberal responsible governments which were wisely and creditably handled, and to this generous act of the victors is attributed the rapid reconciliation which has manifested itself between the colonies and the races in South Africa.
The advent of a new constitutional government, such as the South African Union, is sufficient excuse perhaps to pause and briefly review past similar events. A fundamental constitutional law which was to be unalterable is an old idea. Cromwell is credited with saying that there must be a fundamental law beyond the power of Parliament to control. But John Lilburne may be called the father of the written constitution; for in 1648-1649 he drew up a constitution and presented it to the Parliament of England for adoption by the people, not by Parliament. In 1653 Cromwell declared the “ Instrument of Government,” but it lasted only a short while and did not rest on the approval of the people. The United States, however,
4 The main points in this historical sketch are taken from Manual of South African History, by A. Wilmot, supplemented from various sources.