APPENDIX II.

FROM THE STANDPOINT OF AN INTERNATIONAL LAWYER.

THE RECONSTITUTION OF SOUTH AFRICA.

The London Times publishes the following letter of the 10th March, 1900, from Professor Westlake of the University of Cambridge and of the Institute of International Law.

To the Editor.

Sir, The nation appears to be practically agreed that the territories of the two Dutch Republics must become a part of the British Dominions, and that their inhabitants must enjoy the free institutions which have been found the best security for the loyalty of all races under the British flag. Whether those institutions shall be given to them as provinces of the same areas with the Republics, or there shall be a re-arrangement of areas in South Africa, whether they shall be enjoyed by each province separately or in federation with others, and what arrangements may be necessary in order that any part of the cost of the war may fall on the provinces on which it ought to fall—these are questions which it may not be premature to discuss, but which I do not propose to discuss to-day. I wish to draw attention to a preliminary point of which the importance may easily be overlooked-namely, the necessity of ending the war, when it comes to be ended, in such a manner as to leave no doubt that the Republics will have ceased to exist. To say that "their past system, which involved a large measure of political and military independence, will, of course, be materially modified as a result of the war" is probably to go as far as, at the present stage of the military operations, it would become the Government to go; but the public ought already to accustom itself to perceiving that, when the thing comes to be done, that will not be enough. If the Republics are left standing with a modified system they will continue to be separate States under restrictions extending, no doubt, to the franchise and to armaments, and, therefore, much more important than any to which they are not subject, but which, whatever they may be, must leave the situation open to the difficulty which uniformly dogs the attempt to maintain restrictions on any State acknowledged to be one. The right of Russia to emancipation from the Black Sea Clauses of the Treaty of Paris was put by many on the ground that restrictions on what a State may do to its own territory are contrary to

nature, a contradiction in logic, and therefore never to be justified except for a temporary purpose. Those who remember 1848 will call to mind how, when tearing up the treaties of 1815, the satisfaction of the French in proclaiming themselves free to fortify Huningue seemed, at least, equal to that which they felt from claiming an increased liberty of action in Europe. So we may be sure that if the Republics continue to exist, it will not be long before they, with the support of their sympathisers in all parts of the world, will not only try, but will claim as of right, to shake off all fetters to which they may be subjected. And they will have the further support of those who, while unable to deny the attempts which the Transvaal has made from 1881, to shake off the successive Conventions, justify them on the ground that the independence taken from them in 1877 ought to have been fully restored. There are never wanting those who contend that a State is not prevented by its signature from re-opening the question whether the conditions which it signed were just, and their arguments will be backed by the fallacy that no permanent restrictions on a State can be just.

It may be said that it is forcing an open door to insist on its being made plain that the two territories are to be taken under the British flag. In answer, I would point to the bungling phases through which France, a country in which form is much more attended to than in England, arrived at her goal after her war in Madagascar; the treaty of the 1st October, 1895, the unilateral declaration of the Queen of Madagascar on the 18th January, 1896, and the equally unilateral French law of the 6th to 8th August, 1896. In the words of the Revue Générale de Droit International Public, a very able periodical certainly not disposed to find France in the wrong, "these different documents gave rise to the most lively and confused controversies about the meaning of the words protectorate, annexation, sovereignty, and the consequences of the annexation of territories." If England, which has to face a widely-spread disposition to find her in the wrong, cannot arrive at her goal more simply than this, we shall not only incur the usual imputations of bad faith, but shall leave a real doubt to cloud the future. And our statesmen are, in such a matter, under the peculiar liability of being misled by our Indian experience. For reasons of policy, the reality of which I am far from disputing, we have built up in the Peninsula a system of our own, of which the result is that the relations between the United Kingdom and the native States cannot be expressed without contradiction in the terms of European international law. That does not matter, for there is no neighbour to take advantage of the circumstance, and it has been officially notified in the Indian Government Gazette of the 21st August, 1891, that "the principles of international law have no bearing upon the relations between the Government of India as representing the QueenEmpress on the one hand, and the native States, under the suzerainty of

Her Majesty, on the other." But in South Africa we dare not follow such precedents. If the evident mind of the nation is to be carried out it must be made clear to those who take their stand on European international law, that the Dutch States have ceased to exist, even as dependent ones.

This being so, it will be well that the public should begin to reflect on the way in which its intention of bringing all South Africa under the British flag can be fulfilled. A State may cede a part of its territory, but when the whole State disappears there can be no legal cession, because no constitution provides for such case. Neither the Legislature, the Executive, nor any general has a commission to put an end to the State's existence. A general may conclude a military convention as to the terms in which he and his troops will lay down their arms, but there is this difficulty about inserting any political promises or holding out any political hopes in such a convention, that at that stage reconstruction cannot be far advanced, if indeed it has commenced, and in its progress it may be found impossible to carry out such promises or give effect to such hopes. The Treaty of Limerick is an instructive example of the difficulties which may follow from trying to make a military convention serve a political purpose. A moral sanction to the extinction of a State may be obtained from a popular vote, or from the resolution of an assembly specially elected to decide on the matter; and, since such sanction cannot in any case be a legal one, the voters summoned need not be only those who enjoyed the franchise before. The oligarchy hitherto governing has no moral claim to represent the South African Republic. But, as against third Powers with which a question may arise as to what has become of the rights and obligations of the annexed State, the only legal title which the annexing State can claim under international usage is the will of itself as conqueror sanctioned by time. And perhaps the annexing State will take the wisest course if it announces that will in the simplest way, by proclamation. For the moral justification which we all desire and expect, we must look to the co-operation, in working the system which we set up, of assemblies elected on a liberal franchise.

I will conclude with two warnings. First, in any reconstruction let the name "State" be avoided, even if the territories of the two Republics should be adopted without alteration of boundaries as colonies or provinces. In the case of the United States there was an original justification for the word, because the colonies became States by declaring and achieving their independence. But if, when they formed a true union, they had dropped that word with its misleading associations, it could not have been argued so plausibly that entrance into the union did not preclude eventual secession from it. The power of names is great, and not even England can afford to neglect accuracy in their use, and to rival Carlyle's" Emperor Sigismund super grammaticam."

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Secondly, let the lesson of 1877 teach us the danger of delay in introducing the free institutions which we intend for these territories if and when conquered. There is no agrarian question and no religious question to fear. Since the Dutch language is sure to be admitted on equal terms with the English, as in the Cape Colony and Natal, and the exclusion of English cannot be again attempted without big guns, there will not even be a language question. Some persons talk of guerillas, but there can be no guerillas without a sympathising population from which to draw their supplies, and the small body of Boers cannot be at once guerillas in the mountains and farmers to supply them. And the non-Dutch vote will have the majority in the Transvaal, and our garrison will, for a considerable time, be large. If the new institutions are quickly got to work, we may rely, with Lord Loch, on the practical Teutonic minds of the Boers for settling down. The danger will be in the disaffection which delay in getting the new institutions to work may cause to spread from the Boers to those who are now Uitlanders.

Yours obediently,

J. WESTLAKE.

Chelsea, 10th March.

The Times comments as follows on the preceding letter:

"Lord Salisbury refuses to be led into a discussion of the highlycontentious assertions made by the two Presidents. They move us as little as their pathetic reference to considerations which ought to have been present to their minds and to have held their hands when they prepared for and precipitated war and boasted that they would drive the English into the sea. The burden of blood and tears and of moral and economic ruin of which they talk is heavy, but it is on their shoulders and not on ours that the load must rest. It is enough for us that they deliberately made preparations for this contest for years on an enormous scale, and that when they thought they were ready they made war upon us and seduced numbers of our Dutch fellow-subjects from their allegiance. That is proof enough of the conspiracy, the existence of which is sometimes denied by their friends. It must be our business to abolish, as far as possible, any centre around which a similar conspiracy might hereafter re-form. Professor Westlake, who had some doubts about our legal position while the Conventions existed, writes us a weighty letter this morning on the situation which follows their abrogation by the war. He insists on the absolute necessity of doing in the most effectual way what the Government have now declared they mean to do. There must be no loophole for a doubt hereafter that the Republics have ceased to exist. To leave room for doubts is to leave room for aspirations and for intrigues which must be extinguished for ever if the peace and the security of South Africa are at last to be laid upon a solid and enduring foundation.”

APPENDIX III.

FROM THE STANDPOINT OF THE CHURCHES.

THE NONCONFORMIST CLERGY AND THE WAR.-THE CONFIDENCE OF THE CHURCHES IN SIR ALFRED MILNER.

From “ Cape Times,” 18th June, 1900.

Yesterday, at noon, a large and influential body of Nonconformist clergy waited upon Sir Alfred Milner at Government House to present to His Excellency an address conveying the support of all the religious bodies in Cape Town and district in the Imperial policy towards the two Republics, and of confidence in His Excellency as the exponent of that policy. The deputation met the Governor in the drawing-room, where there were present: The Revs. J. J. McClure (convener), A. H. Hodges, H. Cotton, Ezra Nuttall, J. H. Gathercole, J. G. Locke, J. R. Saunders, B. E. Elderkin, W. S. Caldecott, R. Jenkin, Geo. Robson, Wesleyans; D. W. Drew, A. Pitt, Jas. Richardson, J. S. Moffatt, A. Vine Hall, and H. C. Newell, Congregationalists; W. E. Robertson, David Russell, and W. McIntosh, Presbyterians; A. E. Saxby and E. Baker, Baptists; and J. Tom Brown, London Missionary Society. The following ministers were unable for various reasons to attend: Revs. H. Tindall, J. le Pla, Jas. Fish, and W. Edwards.

The Rev. J. J. McClure said: Your Excellency, the address which 1 have the honour to present, with my brethren, to you this morning represents not only the respect and esteem in which you are held by the ministers of the Evangelical Churches of Cape Town and district, which are represented here, and also those who are not represented, but also a deep feeling of personal affection. We are here to-day to present this address to you convinced that the policy which you represent, and of which you have been such a distinguished exponent, has within it peace, prosperity, and abiding happiness for all the States and colonies of South