The Union of South Africa

UNIO

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THE UNION
OF SOUTH AFRICA

BY

THE HON. R. H. BRAN I >

•OMCTIMK nCIXOW OT ALL MN7U COLUOE

oxroto

IKCtETAMY TO THE TMAXIYAAL DCUBOATB AT THE

•ocmi AnucAJc VATIOITAL conranoy

OXFOHD

\l TIIK CLARlADnN PRESS
1909

IIKNRY FROWDE, M.A.

I UBLISHEB TO THE UNIVERSITY OF OXFORD

LONDON, EDINBURGH, NEW YORK
TORONTO AND MELBOURNE

PREFACE

THE aim of this book is to give a short sketeh
<>t the leading feature* 01 in Con-

>tituti«m. In order to make the subject intelli-
gible, it has been necessary to refer also to th<
history of the movement towards Union. But
t)i< chapter dealing with this aspect of the ques-
tion has been made intentionally brief. Those
who wish for more details are referred to Lord
Selborne's memorandum, entitled A Review of
the Present Mutual Relations of the British South
African Colonies, published in England as a Blue
Book in 1907, and to The Government of South
<*a, an anonymous work in two volumes, pub-
lished by the Cape Times, Limited, Cape Town,
in 1908. For the purposes of reference the South
ica Act is printed as an append

The sketch of the Constitution might have been
more interesting to the layman, had it been
possible to supplement it by some account of
the proceedings of the National Convention itself.
But the Convention sat with closed doors, and
secrecy is still maintained as to its proceedings.
No reference to them could therefore be made
without a breach of confidence.

As I have held an official position in the public
service of the Transvaal and Orange River Colony
during the past seven years, first under Crown
Colony and then under Responsible Government,
it may be as well to state that the opinions ex-
pressed in the following pages are purely personal
to myself

R. H. BRAND.

London, Oct. 1909.

ALLES ZAL RECHT KOMEN

—Praidenl Sir John Brand

CONTENTS

CHAPTER I

PAGE

PRELIMINARY . . :

• HAPTER II

HISTORICAL . 14

' HAPTER III
THE CONVENTION .... . uj

< HAPTER IV

THE CONSTITUTION ...... 43

CHAPTER V

. . . 55

< HAPTER VI

THE LEGISLATURE .....

CHAPTER VII
PROVINCIAL CONSTITUTIONS . .75

• HAPTER VIII
THE JUDICATURE . . .87

i; i\
FINANCE AND RAILWAYS . . M«

CHAPTER X

THE NATIVES 97

6 CONTENTS

CHAPTER \1 PAGE

GENERAL REFLECTIONS ON THE CONSTITUTION . 1 1 4

CHAPTER X 1 1
THE FUTURE OF PARTIES 119

CHAPTER XI 1 1
SOUTH AFRICA AND THE EMPIRE i.u

APPENDIX
SOUTH AFRICA ACT, 1909 .137

CHAPTER I
PRELIMINARY

SHORTLY after the draft Constitution of South
published in February last, Sir Percy
, one of the Transvaal delegates, in u
speech at Johannesburg, delivered a panegyric upon
it as being the finest constitution in the world.
A few days later General Smuts, in the course of
a speech at Pretoria, remarked that to him imu h
more wonderful than the Constitution itself were
the signatures at the end of it. General Smuts
was right. South African politics have always
been kaleidoscopic, but no political whirligig has
been so astonishing or so complete as that of
the last tut -l\e months. What would President

_cer have said in 1899 if he had been told
that in less than seven years after the com-
plete destruction of the Republics and t
tmu xation to the British Empire, a Constitution
tin bodying all that the Uitlanders had struggled
for would have been enthusiastically accepted by
all parties and races in South Africa? Would
he have believed his eyes had he seen appended
to that document, side by side, the names of

lameson, who raided the independent Republic-
<>t the Transvaal in order to overthrow its govern-
ment, and General Botha, who, then a leading
of that Republic, is said to have demanded

8 THE UNION OF SOUTH AFRICA OH.

that Dr. Jameson should be shot as a freebooter ;
of Sir Percy Fitzpatrick, the author of a violent
attack on Krugerism, and Mr. Abraham Fischer,
who in his capacity as interpreter at the Bloem-
fontein Conference of 1898 between President
Kruger and Lord Milner, is credited with having
been by no means the least important actor in
that drama ; of Sir George Farrar, who, as one of
the leading reformers on the Rand, was, in com-
pany with Lionel Phillips, Frank Rhodes, and
Hayes Hammond, condemned to death by Mr.
Gregorowski, then a judge of the Republic, now
a barrister and a member of the Transvaal Parlia-
ment, and Mr. Steyn, then president of a republic
on close terms of alliance with the government to
which the reformers had been so bitterly hostile ;
of Dr. Smartt, the ardent supporter of the British
cause in the Cape Colony and the strenuous advo-
cate, after the war, of the suspension of the con-
stitution in that colony, and Mr. Merriman and
Mr. Sauer, who were bitter opponents of that
policy, and who have never ceased since to express
t heir detestation of Lord Milner and all his works;
of General Smuts and Mr. Hull, now Ministers
of the Crown in the same government, the one
a leading member of Kruger's government at the
outbreak of the war, the other one of the most
prominent of the reformers ? But, strange though
so sudden a reconciliation of such diverse elements
appears on the surface, to those who know South
Africa it is a natural outcome of her history. In

i PRELIMINARY 9

no country is the growth of a common national it \
more certain, and the creation of one controlling
government more imperative. The country, vast
as it is in area, it destined by nature to be one.
Its physical characteristics are uniform, and there
are no natural barriers between one part and
another. The population forms, and in reality
formed even before the war, one body politie.
Not only is a Boer of the Cape Peninsula identical
in all essentials of character and ideas with a Boer
of the Zoutpansberg, but, as Mr. Bryce long ago
remarked, the inhabitants of the towns, whether
of Cape Town or Johannesburg, Durban or
Pretoria, are connected by the closest ties of
blood and friendship and form to a large extent
one society. With modern facilities of communi-
cation all this made political union in some form
or other, and either sooner or later, inevitable.

South Africa throws a spell not only over those
who have been born and bred in her, but even over
the immigrant who has known her but for a few
years. Apart from their passionate attachment
to the soil itself, South Africans of both races love
country for her varied and romantic history,
and both English and Dutch cherish a common
patriotism which springs from a pride in the many
deeds of courage record. <i in her annals. Hitherto
the existence of two conflicting ideals, the spirit
of Dutch AfriMttfansm on th.- one hand and of
-h dominance on the other, has caused the
curnnt ol ial feeling to Hoi

10 THE UNION OF SOUTH AFRICA OH,

hanneb. But since the war has eradicated this
profound cause of conflict, the barrier between the
channels has been thrown down and the last
obstacle to the formation of a common patriot!
it-moved. It i>. t herefore, no paradox to assert
that out of war has come harmony. Without the
war South Africa might have found in time a
common nationality and a common aim, but \vln»
can tell after what vicissitudes and struggles, and
under what flag, the union would have been con-
summated ? Some politicians in England, while
they hail the advent of union, continue to denounce
t he policy which alone has made it possible. They
condemn the war, and yet claim its results as

triumph of Liberal policy. The grant of self-
jjovernment to the two new colonies in 1906 has
indeed hastened the attainment of union, and for
this the Liberal party may justly take credit, but
the impartial historian of the future, weighing the

lions of British statesmen in the cause of union,
will undoubtedly give the first place, not to Sir
iry Campbell-Bannerman, but to Lord Milner
and Mr. Chamberlain.

Hopeful, however, as is the future, it is use-
less to suppose that racialism will never trouble
South Africa again. The new spirit animating
the leaders of both sides has been generously
welcomed by both the British and Dutch
communities. But in the working out of the
constitution the differing ideals of the two races
cannot fail to clash. Bi-lingualism, whether

i PRELIMINARY 11

in education <>i m the public net vice, will cause

many yean. Recent events are a

sufficient proof. The education law of the Orange

i < . -I- >i i \ . whatever iu merits or demerits, has
certainly been read by the British population as

an attempt to depn\< thm < -Inhlren of any proper
in t he KnL'lish tongue. Efforts have been
made to found private schools where English can
be properly taught. The government has dismissed
English and Scotch inspectors for their alleged
unsympathetic administration of the law. Adepu-

n has been sent to England to represent the
grievances of the l'.riti>h people. There is every
sign of strong feeling. Lees is heard of the difti-
eulties in the Transvaal, where the law is less rigid.

iiny one who has any knowledge of the subject
is a ware that there, too, administration is hampered
by const tion arising from local quarrels and

jealousies over language. Nevertheless one cannot
doubt that these difficulties will in time disappear.
There are influences at work too strong to be cou-
1 1 oiled by legislation. As a general rule English
parents an.- prepared that thrir ehildren shall learn
Dutch; while Dutch parents see how essential is
a knowledge of English. A story which well illus-
trates this tendency is told of a small dor]) in
the Orange River Colony. A Scotch parent com-
plained to the Education Department that his
small daughter had been submitted in the play-
ground of the school to the indignity of having
a wooden collar placed round her neck. On

12 THE UNION OF SOUTH AFRICA OH.

inquiry it was found that the parents, most of
whom were Dutch, thinking that too little English
was taught in school hours, had asked that that
hmizu.-i.L'e mi^'ht be used during the play hours.
There had been invented, in consequence, a mode
of punishment which consisted in fastening a
wooden collar round the neck of any child who
used a Dutch word in the playground.

A conflict is also possible in the comparatively
near future over the policy of encouraging immi-
gration on lines which the British party will con-
sider of the utmost importance, but which a large
section of the Dutch will probably resist. Immi-
gration as free as that into perhaps more favoured
countries is indeed out of the question, since at
present practically all unskilled labour, whether in-
dustrial or agricultural, is restricted to Kaffirs. But
there is a great need of enterprising and progressive
farmers with a small capital. The encourage-
ment of this kind of immigrant would do much
to quicken the country's progress. It is, too, at
the moment the best and easiest way of strengthen-
ing the white population against the black. But
there is a very general prejudice, particularly
strong among the Dutch, against the newcomer
with which the advocates of immigration will
have to reckon.

In any forecast of the future it must not be
forgotten that the new ideas, freely absorbed by
the urban communities, are not likely to have so
thoroughly permeated the back veld. The national

i PRELIMINARY 13

sentiment* and feelings of the Dutch have bean
forged by blood and in MI. and for many yean
their patriotism will take what to an ardent
imperialist may seem a narrow form. But its
development, though gradual, will be sure. It
will be enormously accelerated if the Dutch leaders
rontmiio to be imbued with that spirit of tolera-
1 1"! i i', ,r all parties which has been so conspicuously
displayed by General Botha, General Smuts, and
President Steyn.

But, in addition to the all-powerful force of
>nal sentiment, there are other strong causes
disposing the peoples of the different colonies to
sink their different t>. inter-colonial relations
6 the war have been far from harmonious.
Indeed, men had begun to see that the parting of
the ways had been reached, and that if thedifft
states were not soon welded firmly together they
would inevitably fly asunder. Some knowledge of
the causes of inter-colonial conflict is an essential
preliminary to a study of the Constitution.

CHAPTER II
HISTORICAL

MORE than one attempt has been made in South
Africa's history to make her one nation. A short
but admirable sketch of the subject is given in
Lord Selborne's well-known memorandum upon
union. The disunion of the South African people
and the want of understanding between the Brit ish
Government and the South African Governments
caused all such attempts to fail, and the trials and
tnities which have fallen upon South Africa in
the last fifty years have been the result. The
failure of the last attempt, made by Lord Car-
narvon in 1876, was decisive. From that moment
the people of the north entered upon a path
which led them further and further apart from
their southern and eastern neighbours. This was
inevitable. The Boers had sought their indepen-
dence through dislike of the British rule. It was
their chief object to guard it by becoming strong
and self-sufficient. In Delagoa Bay they found
in outlet, which freed them from economic
dependence on the Cape Colony and Natal, and as
their strength grew, so did their national patriotism
and their determination never willingly to accept
the British flag. Thus their object waa to have
as little real connexion as was possible with their
neighbours. As time passed, the true effect of

n HISTORICAL 16

i, the growth of national ideals not merely
rmitii ting but contradictory, became apparent;
i IK! dl other meana had failed, the issue

was set finally at reet by the arbitfament of the
sword. With the resumption of government

there reappeared economic rivalries between the
colonies which, while always existing, had formerly
been overshadowed by the racial conflict. These
rivalries, which centred round the questions of
<>ms dues and rai rates, the adoption of

a common flag had done nothing to exorcise. It
is difficult for those who live in a united and long
•tittled country like Great Britain, where economic
activities are left mainly to individual enterprise,
to understand the immense part which econ<
que>t inns play in the relations between the
n i ments of n • • \\ < ountries such as Australia and
South Africa. In a community whose main object
is to develop resources hitherto untouched, and
w&ere the government's main \\nrk is to foster such
development, freedom to adapt customs dues and
railway rates to the rapidly changing needs of th<
community is a matter of life and death. It is,
therefore, no cause for surprise that politics should
focus themselves round such questions.

Questions of customs dues had always led to
bad feeling. In old days the Cape Colony and
Natal, controlling all the means of ingress into the
inland colonies, had used their power in a manner
which can only be termed unscrupulous. Like
robber barons of the Rhine, they forced all

16 THE UNION OF SOUTH AFRICA OH.

who passed by to pay toll. For years their
treasuries simply took all the produce of the
duties paid on goods consigned to the Transvaal
and Orange Free State. Later they were content
with a fee of 25 per cent., which was supposed to
represent the cost of collecting the duties, a cost
which now certainly does not exceed 5 per cent.
The extortions of the coast colonies led to a result
which soon made them repent of their rapacity,
but not before much bad blood had been created.
The Transvaal turned to Delagoa Bay. To
this day, as a consequence, the Boers of the
Transvaal look upon Delagoa Bay as peculiarly
their own port, whose interests must be defended
in opposition to those of the harbours in British
territory. The coast colonies came to terms, and
an attempt, partially successful, was made to form
a Customs Union, though before the war it never
included every South African state.

Soon after the war, Lord Milner, who saw the
urgent necessity for a common fiscal policy, sum-
moned a conference at Bloemfontein, and succeeded
in persuading all the colonies to join a Customs
Union. The arrangement, though carried to com-
pletion, was not popular, and was indeed only
ratified in the Cape Parliament by a majority of
one vote. Nevertheless, it has been maintained
to this day. But its life has been a precarious one.
Twice since, once in 1906 and again in 1908, it has
been denounced by one or other colony. Con-
ferences have met to patch up an agreement. No

ii HISTORICAL 17

ny has been satisfied. One has had too much
revenue from customs; another too little; one
has wished for higher protective duties for

j'lu pose of stimulating South African production ;
anot hrr has demanded lower duties in order to
cheapen the cost of living. The Transvaal, with
its large industrial centre in Johannesburg, and
without any great need for customs revenue, has
wished to revise the tariff in the direction of free
trade, while the coast colonies, believing that, if
manufactures were protected, they would spring
up, not in the interior, but at the coast, owing to
t lir lower cost of living and lower wages there, were
in favour of hi^h.-r protection, particularly as that
policy coincided with their desire for more revenue.
(>n tin- other hand, a union of any kind was
mgered by the very strong desire of the agri-
cultural population of the Transvaal for protection
against the farmers of the Cape Colony. Transvaal
i era regarded the great m a r k et of Johannesburg
as peculiarly their own preserve, and were clamor-
ous for protection a^.tm-t the successful competi-
tion from the Cape. During the year 1908 General
tia had no little difficulty in stemming this
<ind, to yield to which meant the complete
iption of the Customs Union. For another
reason the Union was bound to be unpopular. I
was a treaty between different states, and it was
^ecret. Being a treaty it could not be
altered by any of the parliaments. It had to be
accepted or rejected, as it stood. Its terms were

18 THE UNION OF SOUTH AFRICA CH.

not, therefore, subject to popular control. Its
maintenance has indrrd been due rather to the
fact that South African statesmen have shrunk
from the consequences of its disruption than t<>
any general wish to continue it.

Railway rates have been an even more constant
and potent source of inter-colonial conflict. The
railways throughout South Africa are state rail-
ways, and railway revenues have an extremely
important bearing on the financial stability of the
ral colonies. The traffic to the Witwatersrand
is the most profitable of all, and it is for this prize
that all governments and ports in South Africa
have long contended. The railway from the Cape
ports was first in the field, and till about 1894
the Cape, in consequence, secured all the traffic.
On the completion of the Natal line Durban also
quickly obtained a substantial share. Last of all
came Delagoa Bay, but until after the war no
very serious competition was met with from that
port, where there were at that time few facilities
for handling traffic.

The Witwatersrand may thus be compared to
the hub of a wheel from which radiate lines to
Delagoa Bay, Durban, and the Cape ports. It
follows that the government which controlled the
railways of the Transvaal was in a commanding
position, and could play off the different lines
and ports against one another. For years this
has been a dominant issue in inter-colonial poli-
tics. Any one who cared to read the reports of

ii EffiTORK \1 i<»

the endless railway conferences held since 1806

1 find the same story in every one of them.

Thomas Price, the general manager of the

Central South African Railways, was, in 1008, in
exact 1\ th<- NMM ptMttOfl s Mr. Middelburg, the
general manager of the Netherlands Railway
Company, occupied in 1805. He was, in short,
able for all practical purposes to dictate his own
terms. Important as it was to each port to secure
as much of the Rand traffic as it could, it \\.t-
doubly important to the Governments of the Cape
Colony and Natal, for tiny were accustomed to
in ak linanrial stability largely dependen

railway earnings, and these earnings again
were to a great extent dependent on the trade to
nsvaal. Unfortunately for the cause of
harmony, the interests of the Transvaal in thi>
:or were diametrically oppos< < <>f the

r colonies. The revenue earned by the Trans-
Vaal l&BWSys on every ton carried from Delagoa
Bay was, owing to the greater mileage within the
isvaal frontiers, much larger than that earned
«»n < very ton carried from Durban or the Tape ports .
The Transvaal Government could hardly be ex-
pected to be so altruistic as to prefer the welfare of
the ports of the Cape Colony and Natal to that of
its own people and di iffic from the Delagoa

Bay line to the Cape and Natal lines. In any case
it could hardly have done so, even had it had the
desire. 1m it was bound to the Portuguese
Government, and could not act without its con-

B 2

20 THE UNION OF SOUTH AFRICA OH.

sent. In 1901, impelled by the urgent necessity
that the mines should recommence working, Lord
Milner. without consultation with the Cape Colony or
Natal, concluded an agreement with the Portuguese
Government. That Government gave certain f acil i -
ties for the recruitment of native labour for the
mines, while Delagoa Bay obtained the security that
railway rates would not be altered to its detriment .
As Delagoa Bay was put in no better position than
it had been in 1 >ef ore t lie war, no one could have fore-
seen the result which has actually occurred. Owing
mainly to the great improvements made in the har-
bour itself, there has been, ever since 1901, a gradual
but sure transference of traffic to Delagoa Bay.
That port gets now about 67 per cent, of the whole
Rand traffic ; the Cape ports, which in 1894 got
80 per cent., now get about 11 per cent. Durban's
share has also been steadily falling.

The Cape and Natal Governments have ever
since its conclusion continued to express them-
selves in terms of great hostility to this agreement ,
and the British ports have watched with dismay
and resentment the gradual diversion of their
trade. On the other hand, the more the traffic
went to Delagoa Bay, the larger grew the revenues
of the Transvaal. The government and people
of the Transvaal were not, therefore, inclined to
pay much attention to the lamentations of their
neighbours. Recently a new treaty has taken the
place of Lord Milner's agreement. Its reception
in South Africa, to which reference will be made

n HISTORICAL 21

later, in a good indication of the difficulty of the

\vay question.

But the situation, bad as it was, would have
been worse had it not been for the wise action of

Lord MiliuT in another direction. H\ tin- .im.il-
gamation of the railways of the Transvaal and
IT Colony, he had at least secured that
the latter colony should share in the prosperity of
the I cvitable dev<

t of Delagoa Bay should not be detrinn
to its interests. United to the Transvaal, the

-« Kiver Colony shared in the profits of
Delagoa Bay line. Separated, she would not only
have lost this advantage, but would have add* <1
double strength to the Transvaal's inclination t<>
turn to Delagoa Bay, for the latter colony would
tin -ii h nothing at all on traffic coming

the Cape ports until it reached Vereeniging,
only titty miles distant from Johannesburg,
whereas by the amalgamation it shared in the
l>r<>tits upon the whole line from the Orange Hi
a distance of between three and four hundred
miles. It was this geographical difficulty whieh
led to an open rupture in 1895 between the Cape
Colony and the South African Republic, when the
latter was forced to yield only by the intervention
of the Imperial Government.

But this has been by no means the only quarrel
railways. The construction of « new

with the consequent alteration
from the ports, has been since the war the signal

22 THE UNION OF SOUTH AFRICA CH.

for an immediate struggle bet worn ihr colonies—
one seeking to gain the trade, the other to retain
IE Rate wars between the governments have not
hern avoided, and public opinion has on several
occasions been inflamed. Th< following is one
instance out of many. The Orange River Colony
Government wished to build a line from Bloemfon-
tein to Kimberley. This meant that some of the
Kimberley traffic, which was the most profitable
traffic of the Cape Government railways, might be
transferred from the Cape ports to Durban. The
Cape Government accordingly refused to allow any
junction to be made with its lines at Kimberley.
The Orange River Colony threatened to build to
the border, only three miles from Kimberley, and
transport the goods by waggon. The Cape Go vcr 1 1 -
inent replied that it would erect a wire fence along
the border and refuse ingress to any goods.
Eventually an agreement was reached by which
the interests of the Cape ports were protected for
a term of years, and Durban prevented from com-
peting, but this was only at the cost of absurdly
high rates along the line itself, which go far to
hamper its utility.

Numerous attempts have been made to compose
these inter-colonial differences, but they have all
necessarily failed, since the differences arose from
the very fact of disunion. Frequent conferences
have been held, but without avail. In 1905,
shortly before Lord Milner left South Africa,
a conference was held in Johannesburg under his

ii HISTORICAL LM

presidency. At its conclusion he made a moving
appeal in words which well illustrate the .iitliculties

\\hich . •MMtiMMtrd him. He said :

4 1 do not see how the policy of railway develop-

in. nt tliroughout South A trie* can be otherwise
than greatly retarded by the fact that the

present system of four separate administrations
the benefit to the country generally of any new
line is constantly obscured and thrown into the
.jr. .in, .I by considerations of its effect upon
the comparative profits from the railways of tin-
several states.

• 1 1 may be established on the most conclusive

evidence that a particular line U m th«- general

interest and would develop commerce and increase

prosperity. Yet that line may be indefinitely

I pecause it is going to take m< it of

the pocket of a particular adm ion. If

ly one pocket this obstacle would

Vou may to-morrow find that the abandonment
of a particular through line in favour of another
would involve an enormous saving to the country,
yet you may be absolutely debarred from the
consideration of the matter, because of the
e of state revenues which it would

>lve. I might give scores of instances to p

drawbacks of the present system. We have
got into a rut, and we shall never get out of that
rut until there is community of interest in all the
main railways of South Africa. When that is
achieved, we shall be able to have a real railway
policy for the best development of the country
as a whole, which can also be in the interests of
the consumer.

1 should like to record, as a parting word, my
ion of the supreme importance of trying to

24 THE UNION OF SOUTH AFRICA < H

get over that conflict of State interests in the
matter of railways. I know it would be very
ditVicult to adjust all interests, but even if it
took six months to arrive at an adjustment, it
\\ould be made for all time. What impresses m<>
is that almost every railway question which is
brought forward, however trivial it may be, raises
the whole controversy, and the battle between
irt ing interests has to be fought out over
and over again on each occasion. You bad far
it once for all. Would it not be
'possible to sit down, and — even if it occupied
six months — settle the basis on which all the rail-
ways could be worked as one concern, and so end
once for all this continual controversy ?

' I do not wish to urge the Conference to adopt
any platonic resolutions to-day if they do not
wish to, but I am glad to have the opportunity,
which will probably be my last, of expressing
the strong feeling I have on the subject. What
I wish is to see the principle which has been applied
to the railways of the Transvaal and Orange River
Colony extended to all the State railways of
South Africa. I am certain that, whatever may
be the prevalent opinion about pooling the rail-
ways of the two colonies to-day, when the matter
comes to be looked at by the historian, when the
subject is seen in all its aspects and consequences,
it will be regarded as a good step forward. What-
else, to which I have been a party in South
Africa in the last few years, may be condemned,
I am sure that this step will not be condemned in
the judgement of the future. I am glad to have
had the opportunity of expressing my opinion
that it is in the highest interests of South Africa
to go further in that direction, and I hope that
future conferences will succeed in finding, on
these lines, a way out of the very great difficulties
that at present exist.'

ii HISTORICAL

Since thru the dangers whi< h Ixxd Milner so
clearly saw have impressed themselves on the

popular imagination. Responsible statesmen m

1 1 Africa, who are not accustomed to talk
lightly, have expressed on that, n

some way out were not soon found. South Africa
might, before many years, b<> plunged once more
into internecine strife. Failing the attainment
of a complete Union the Transvaal would un-
doubtedly have gone its own wa\ . 1 1 would have
uith the Customs Union and framed
nl' suited purely to its own need*- ould

have protected its nascent manufactures and it-
agriculture against the other colonies, and
its eyes away from tin liritish ports to Delagoa
Bay. ^IK h a policy had great at us, and

it might well have been that tor some years the

svaal would have been more prosperous than
she is likely to be in the Union. But its su«
would have been secured at tin upsnse ol ite
neighbours' prosperity and of South
peac< ; and : Mirts the end of which it is im-

ihle to foresee would have arisen. Neverthe-
less, it speaks well for the patriotism of the people
of the Transvaal that they have paid so little
attention to selfish hut attractive arguments of
this nature.

The economic conflict hctwccn thr rolomcs
culminated last year i dlock. Immediately

on tin- inception of respohatBrBKSrinnent the

i. svaal Government gave notice to the <>

L'ii THE UNION OF SOUTH AFRICA < H

Governments of its intention to terminate the
present Customs Union. The tariff, which had
been agreed upon in 1906 at a Conference in
Hantzburg, had been framed with the object
of providing more revenue for the Cape Colony
and Natal, both of whom were then urgently in
need of money. It had been strongly opposed
in the Transvaal as needlessly high and as increas-
ing the already excessive cost of living. The
Crown Colony Government had defended their
action on the ground that they were not prepared
so shortly before responsible government to take
the momentous step of breaking away from the
Customs Union. It was with the intention of
securing a readjustment of the tariff to suit the
needs of the Transvaal, and also such alterations
in railway rates as in the opinion of the new
Transvaal Government were needed in the interests
both of the coast and the interior, that a Con-
ference was summoned at Pretoria in May, 1908.
But in fact all the governments knew that any
satisfactory settlement of the problems with which
they were confronted was out of the question.
The Conference, therefore, with great wisdom,
commenced its proceedings by discussing and
passing unanimously resolutions pledging the
governments to summon a National Convention
for the purpose of drafting a constitution for
South Africa. It is true that a serious attempt
was then made, both in Pretoria and later at
Cape Town, to come to some settlement of the

ii HISTORICAL 27

question* for the discussion of which the Con-
ference had ostensibly met. But a deadlock
soon reached The Transvaal refused to
to an ih<nast in the customs duties over the
Hcale of 1906; the Cape Colony and Natal
refused to accept the Transvaal's proposals for
tin adjustment of railway rates. Nothing what-
ever was settled except to continue the settlement
1 to postpone an open rupture until it
was known whetlMF UUmphjUj political union could
be seen i

Apart, too, from economic questions which have
been more immediately in the public eye, thought-
tul men have long seen in the native question also
a peril which menaces the future. The enlightened
handling — it would be looking too far into the
future to say the solution — of this intractable
problem will demand the united efforts of the whole
South African people under the leadership of the
wisest statesmen they can choose. No other
n is faced with a future so perilous. There
are, it is true, twice as many negroes in the Southern
States as there are in South Africa, but in the
United States as a whole the white population
vastly outnumbers the black. The white men of
the south have behind them the enormous white
reservoir of the north. Fn South Africa there are
five Kaffirs to every white man, and they are
Basing faster. Already they have a monopoly
of all the unskilled labour of the count:
they are beginning t<> compote in the skilled

28 THE UNION OF SOUTH AFRICA < ...

trades also. Will the white man be able to hold
his own ? The growth of a poor white class which
is too ignorant for any skilled trade and yet
-es to do * Kaffir work ' is an ominous sign.
The future relations between races and their
reaction one upon the other are obscure, but it is
raanifot that the white man, far from improving,
can only maintain his position by demonstrating
that, man for man, he is a better and more efficient
instrument of labour than the Kaffir. Some com-
petent observers believe he will do so ; others,
more pessimistic, predict the gradual submerge n< <
of the white population, or in the alternative the
adoption of methods of repression leading to a
war of extermination. Whatever the differences
of opinion may be, most men recognize that the
problem must be treated as one throughout South
Africa. Hitherto the opposite policy has been
pursued, and must ultimately have led to disaster.
The Cape Colony had one native policy ; Natal
another entirely different ; the Transvaal and
Orange River Colony a third. No one who knows
the different stages of development among the
different tribes would advocate absolute uni-
formity of administration. But it is at least
necessary that the problem should be viewed as
a whole, and that different remedies should not
be applied to the same disease. The natives of
Pondoland are not very different from those in
southern Natal ; but they are living under an
entirely different system of government. As it is

ii HISTORICAL iMi

the ever-widening gulf between the native policies
of the different states not only endangered the

vement of union, but has left to the Union
a thiv.itemng problem \\hnh mu-t
be tackled in tin . In another gei

tinn tli,« gulf would probably have been too wide

•f bridged. Apart, too, from the more subtle,
though infinitely more dangerous, effect* of the
interaction between race and race in everyday

there is the risk of a native war with which
one or other of the colonies may not be able to
cope. There is little doubt that the white popula-
n united under one government rong

^enough to deal with any danger of the kind. But
tin- .Linger of the existing situation and thr need
for some Uniterm scheme of local defence were
recently illustrated by the Zulu Rebellion in Natal.
Disunion not only brought with it many
1 1 meant also that government was
iumbrous, and expensive. Four separ-
ate systems were needed for the control of one
million white inhabitants. There were four Parlia-
iling identical problems by means of
differing laws ; there were four Courts interpreting

" laws in diverse manners; there were four

ernors with their accompaniment of Go\
nirnt Houses, retinues, and staffs ; there were four
Governments, driven in every sphere of their
activity to recognize the necessity of unity and

latitude of action and yet failing to achieve
either ; th n treasuries, each borrowing

:u> THE UNION OF SOUTH AFRICA CH.

money \\ ithout regard to the needs of the others ;
e confusing differences in many of the laws,
especially in such matters as patents, marriage,
inheritance, and naturalization. A man might be
a British subject in the Cape Cokmybut not in the
Transvaal. Taken alone, all these elements of waste
and confusion were a potent argument for Union.

Those also, perhaps few in number, who were
capable of grasping the necessities not only of
South Africa but of the British Empire, recognizing
the rapid development of the imperial situation,
and that the empire's fate may well depend on the
creation of some form of imperial union within
the next twenty or thirty years, foresaw how
greatly the difficulties of any action would be
increased if no single government were responsible
for the affairs of South Africa. South African
union is in itself a great step forward in the
direction of imperial consolidation. It simplifies
at once all imperial problems and particularly
that of defence, which for the safety of the empire
and its component parts must be grappled with
at once.

During the last two years an active work of
propaganda in favour of union has been carried
on. The necessity of educating public opinion was
recognized by Lord Selborne, whose work on
behalf of Union during his tenure of the offices
of High Commissioner and Governor of the
Transvaal is recognized throughout South
Africa, His well-known Review of the Mutual

ii

Relation* of the British South African Colonies,
published in 1007, is admitted to have had a
marked effect on public <»|>im<>n. The educative
progress was continued and carried a step further
by the anonymous publi. .it ion of a work entitled
The Government of South Africa. The
.timed at giving an epitome of all the activities of
government in South Africa, with tin- ot
«\ plaining defects in the existing systems, so far
as they were due to the absence of a central
government, and providing the materials of a
sound judgement on all those questions which
.Id arise in the formation of a new constitu-
tion. The book disavowed any intention of
id -mul at ing a definite scheme of union, but it
is noticeable that the authors found themselves
driven to recommend the unitary form of go\

- Later, closer union societies wore formed
tin. )ughout South Africa. They served the double
purpose of centres of propaganda and of an
organized force in case an active campaign in
favour of the movement were found necessary.
Undoubtedly this active work of education not
only did mm -h to mould public opinion, but has
also been not without its effect on the actual
form of the constitution itself.
It was in these circumstances, and with the
\vledge of the responsibilities resting upon
them, that the members of the Convention ap-
pointed by the four Colonial Parliaments met in
1 irban in October, 1908.

CHAPTER III

THE CONVENTION

I r is interesting to compare this body, which is
likely to become famous in South African history,
with that renowned assembly, the Federal Con-
vention of the United States, and the Conventions
of Canada and Australia. We are told by John
Fiske, the author of The Critical Period of American
History, that in its composition the Federal
Convention of the United States left ' nothing to
be desired. In its strength and in its weakness
it was an ideally perfect assembly. There were
fifty-five men, all of them respectable for family
and for personal qualities — men who had been
well educated, and had done something whereby
to earn recognition in these troubled times.
Twenty-nine were university men, graduates of
Harvard, Yale, Columbia, Princetown, William
and Mary, Oxford, Glasgow, Edinburgh. Twenty-
six were not university men'. The thirty-three
delegates of the Quebec Convention of 1864,
curiously enough the exact number of the South
African Convention, are stated by Sir John
Bourinot, not perhaps a very critical judge, to
have been ' all men of large experience in the work
of administration or legislation ' ; but the names
of few of them, with the notable exception of
Sir John MacDonald, are known beyond the con-

in THE CONVENTION 33

fines of il». -11 11 ative land. The Australian Con-
H were conspicuous for their large proportion
ble lawyers, possessed of great oonstitutional
learning. The South African Convention was prob-
ably different in its character from them all ;
certainly it was unlike tin* American Convention.
Its outstanding characteristic was the preponder-
ance of the farming element. \\lu> h is everywhere
supposed to be essentially conservative in its
ire. Out of the thirty-three delegates, about
one-third were farmers pure and simple ; the
interests of several of the remainder, such as
Dr. Smartt and Sir Percy Fitzpatrick, lie largely
in farming ; and still others, such as General
Smuts, Mr. Hull, Sir Henry de Villiere, and a few
<>, though not themselves actually engaged in
farming, are directly interested in it. There
were, in addition, about ten lawyers, two or three
men connected with commerce and mining, two
journalists, and three ex-officials. In contrast to
the United States Convention there was a con-
nous absence of university men. A few had
been trained at the Cape University, but the
famous Universities of Oxford and Cambridge
claimed only a single representative in the person
of General Smuts. It was not so much for educa-
t ion as for a practical knowledge of the world and
of politics that the Convention was conspicuous.
South Africa has passed through troubled years,
and those men who have played a great part in
her affairs have been tried and tested in the

c

34 THE UNION OK soiTH AI'KICA en.

furnace of experience. War itself is a supreme
test of character, and no man can successfully
pass such a trial without some conspicuous qualii iai
for leadership. Botha, Steyn, Smuts, De la Rey,
and De Wet, recognized leaders of the Dutch,
have, by their conduct in the struggle for indepen-
(!•! ice, fully earned the confidence and trust of their
people ; and the qualities that sustained them in
war have now been displayed for their country's
benefit in the peaceful campaign for union. On
the British side, too, the delegates present at the
Convention were men whose natural capacities had
brought them to the front in the struggles of the
last ten or fifteen years. As examples it is only
necessary to mention the names of Dr. Jameson,
Sir George Farrar, and Sir Percy Fitzpatrick.
Then there were others, ' elder statesmen ' and
men of South African reputation, whose long and
bitter political struggles, whether in the Cape
Colony or elsewhere, might well have warped their
judgements, but upon whom the events of the last
three or four years appear to have had a mellowing
effect.

The Convention took time over its task. It
met first on October 12 in Durban ; it completed
its work at the end of the first week in February
at Cape Town. But it did not sit continuously
during these four months. There were two inter-
ludes, the first of a fortnight or so between the end
of the Durban session and the beginning of that at
Cape Town, and the second of nearly three weeks

111 THE CONVENTION :$:,

mtmaa holidays. Nevertheless, the

k was never interrupted. Much was done

during the intervals between the regular sittingH

'ittmjj the ( 'on\ention's resolutions into the
shape of a bill, and in preparing new ground.
During tin- \\h<»le of October the ConvrntK.il
remained in Durban. Much progress was made
.UK! man\ diHirultio overcome. Then, partly
because of the increasing heat, but partly, also,
because it was felt necessary that the delegates
should ; me in the calm of their own homes

to reflect on certain very debatable matters
under consider, it ion, an adjournment was made
to Cape Town. Moreover, the Cape delegates were

i rally anxious that the Convention should have
an opportunity of seeing for themselves the
beauties of the parent city. The Convention
remained at Cape Town until it had completed
ming a constitution. Some months
later there was a short but critical session at
Bloemfontoin to consider the amendments sug-
gested by the various parliaments.

As this sketch does not pretend to be a history

he movement towards union, it is unnecessary

lo more than refer briefly to the proceedings
in the respective Parliaments, and the nature of
the amendments recommended by them. In the
Transvaal there was no opposition at any stage.
The leaders of both parties wisely insisted upon the
great danger of any tampering with the Constitu-
tion signed by the Convention at Cape Town.

•M I Mi: UNION OF SOUTH AFRICA m.

They impressed upon their followers the fact that
the document was the result of compromises by
all parties. It was thus a delicately -balanced
equipoise, all parts of which were interdependent,
and no alteration could be made without the risk
of a total collapse. Their advice was taken, and
the draft was agreed to by the Transvaal Parlia-
ment without a single amendment being recom-
mended to the Convention.

The delegates in the other colonies also laid
stress in their Parliaments on the danger of altera-
tion, but with less success. In the Orange River
Colony only one or two amendments were sug-
gested, but they were of vital importance. They
related to the burning question of * equal rights '
and * one vote, one value '. Every one knew that
the Convention had had great difficulty in coming
to any agreement at all on this matter, and that
to re-open it again might wreck everything. The
amendments recommended by the Parliament of
the Orange River Colony were practically identical
both in form and substance with those soon after
adopted in the Cape Parliament. The Dutch
leaders in the Orange River Colony were clearly
in sympathy on this point with those leaders of
the Bond to whom this part of the Constitution
was so objectionable.

In the Cape Parliament, against the advice of
all the delegates from that colony, amendments
were passed involving the practical abandonment
of proportional representation, and the re-opening

in THE CONVENTION

bhfl \\liole question of 'equal rights'. But,

igh their reluctance was obvious, the delegates

the Government side found themselves

obliged to follow the rank and Hie of their party,

and vote for fundamental alterations in the docu-

ment \\hirh they had signed but a few weeks

before. Other amendments, of greater or less

importance, most of them of an un controversial

were also recommended by the Cape

Parliament.

In Natal countless amendments were brought

ard. Most of th<>m were merely obstructive;

some were ridiculous. Several amendments were,

however, carried, and the Convention found it

necessary, in order to placate Natal, to go as far

as possible in accepting them. But none of them

did anything to improve either the form or tin-

stance of the Constitution.

In reality, however, the only amendments

\\lihh proved at the Bloemfontein session of tilt-

Convention to be a serious danger were those

passed in the Parliaments of the Cape and Orange

r Colony. Fortunately, as is explained in

< 'h.ipter VI, the Convention managed, in the end,

to discover a solution of the ditti* -ul

After the Convention had dealt with the amend-
ments recommended by the Parliaments, the final
approval of the different colonies had to be ob-
t uned. In none of them except Natal was it
considered necessary to adopt any special means
(•sting the popular feeling. It was contvtly

38 THE UNION OF SOUTH AFRICA OH.

supposed that the Parliaments sufficiently repre-
sented the will of the people. In one or two
colonies, indeed, there was some agitation for
a direct popular vote by means of a referendum,
but it soon collapsed. The Dutch leaders \\rn-
-tnuigly opposed to it, and stigmatized it as
a new-fangled idea to which their people u (•re-
quite unaccustomed. So long indeed as the Boers
are content to abide by the opinions of their
leaders, what was the use of going to the trouble
of taking a referendum ? There was everything
to lose and nothing to gain by so doing. Nor did
the British population ask for it. They were satis-
fied with the Constitution, and wished to avoid
anything which might cause a delay in carrying
the change into effect as soon as possible.

In Natal, on the other hand, there was much
less enthusiasm for union, and much more sus-
picion of the motives of those who were bringing
it about. The people of Natal, cut off as they are
by the great wall of the Drakensberg from the
rest of South Africa, have always lived a life of
their own. They have prided themselves on being
almost purely British, and on their maintenance
of British methods and ideals. It was natural
that they should hesitate to abandon their inde-
pendence and cast in their lot without reserve
with the rest of South Africa. To them it seemed
equivalent to accepting Dutch dominance. The
Natal press was throughout, until almost the very
last week or so, wholly opposed to union, and it

in Mil CONVENTION :t-.i

aeemed very doubtful to which side public opinion
leaned. In these circumstances it waa deairable
to teat the feeling of the colony by the moat direct

means possible. A r*/,nn<lum wa.s then-fun- taken.

Contrary to general expectation it revealed an

overwhelming majority for union, a good teati-
mon\ to the sound aenae of the people of the
OOlony. ' °r sooner or later Natal muat have
• •d the union. She would have discovered
that no other course waa possible. There waa
every reason, therefore, why she should come in
uillingly at once.

Thus, almost within t \selve months of the tirat
being • the project had been carried to

I »lft ion. jn May, 1908, the Pretoria Con-
nee resolved to recommend the summoning of
a National Convention : hy June, 1909, a South
African Constitution had been accepted by every
colony.

Unlike its Australian predecessors, the Con

sat in secret, and therefore no reference to
its proceedings can be made \\ithout a breach of
:<!( -m -e. It is impossible to doubt the wisdom
of this procedure. The questions handled were so
delicate, and the feeling upon them throughout
the country so divided and so acute, that it is not
conceivable that an agreement could have been
reached in public. It is well known that, on more
occasions than out . feeling in the Convention itself
ran high. Its work was only brought to a success-
ful issue because no apj ia possible to the

40 THE UNION OF SOUTH AFRICA CH.

gallery. The public was brought to recognize
that the result must in any case be a delicately-
balanced equipoise, and, instead of being daily
inflamed, was content to wait and pass a final
judgement on the completed work. Thus the
men who represented it were emboldened to act
calmly and with courage, and with a due sense,
not only of the immediate present, but of their
responsibility towards future generations. As it
was, and as must no doubt always be the case in
such matters, much was settled outside the Con-
vention itself. Compromises that seemed impos-
sible in the formal atmosphere of the Convention
room, settled themselves sooner or later through
the medium of personal influences. This process of
gradual solution, which was incessant throughout
the Convention, would have been impossible in
the glare of publicity.

The Convention took its work seriously, and is
admitted to have done it well. The Transvaal
delegates and no doubt the representatives of
the other colonies as well prepared themselves
thoroughly for their task. The former, indeed,
spent some weeks before the Convention on
the work of preparation. All important matters
were thoroughly discussed by the delegation
as a whole, and as a consequence it arrived
on the scene of action united. The Transvaal
delegation alone was assisted throughout the
Convention by a staff of legal advisers and experts.
The solid front presented by the Transvaal

111 THE CONVENTION 41

delegate*, both British and Dutch, throughout
the Convention wan of Ant-rate importance on
the result.

It is an ill wind that blows nobody good. All
classes in South Africa, politicians and people alike,
ud tired of disunion. Tiny knou tin
disasters which come from it, and they have
experienced the calamities of war, and the leaden
it all better than any one else. They met,
t hrrcfore, in the determination to have no more of
it and to make one big effort for union, so
South Africa might henceforth live in peace. It
was this spirit of enthusiasm which alone carried
the Convention through its work at Durban and
Cape Town. Later events, and particularly tl it-
strong opposition of a certain section of the Bond
in Cape Colony to provisions which to the British
section were fundamental, revealed the thinness
of the ice over which the Convention had skated.
The proceedings in the Cape Parliament, indeed,
Completely damped the generous spirit shown
at the first two sessions of the Convention. Hut
tins, after all, was only a temporary eclipse.
It remains true that all sides have been ready
t<> make great concessions to attain union. They
had learnt the trouble which mine of preferring
the interests of the part to those of the whole,
an«l they were determined not to repeat the
mistakes of the past. It was this spirit of
tolerance, born of a profound conviction that the
continuance of racial and inter-colonial struggles

4:? THE UNION OF SOUTH AFRICA

would be fatal to South Africa, which led the
Convention, although representing two races who
for many years have opposed each other so
bitterly, to display in their work a mutual trust
far greater than that shown by the French in
Canada or by the representatives of the different
States, although of the same nationality, in the
United States and Australia. Thus was achieved
in a few months a work which, as Mr. Balfour
said in the House of Commons, is without parallel
in history.

CHAPTER IV

THE CONSTITUTION— GENERA I

IN form, the draft Constitution in not unlike
those of Canada and Australia, or even the United

States; in spirit, tin- difference is profound. Tin-
three latter are federal constitutions. There are
important differences between them, but they all

orm to what Professor Dicey, in his work on
The Law of the Constitution, has stated to be the
three leading characteristics of federalism — the
supremacy of the constitution, the distribution

ng bodies with limited and coordinate authority
of the different powers of government, and the
authority of the courts to act as the interpreters of
the constitution. The South African Constitution
possesooo none of these characteristics. The Par-
liament of the 1'iiion, and not the Constitution, is
supreme; power i> not distributed among bodies
with limited and co-ordinate authority, but resides
ultimately in the Parliament ; the Courts will have
no more authority than they have in Great Britain
to act as interpreters of the Constitution. It is
from the principle of the supremacy of Parliament
that flow all the fundamental differences between
a federal constitution and a unitary constitution
sin -h as that framed for South Africa, The South
an Parliament is not, it is true, supreme in
manner in which the British Parliament is

44 THE UNION OF SOUTH AFRICA CH.

supreme, because it is subject to the limitations
which the British Constitution imposes upon all
Colonial parliaments, and further because in the
case of certain sections of the Constitution its
plenary power of amendment is qualified. But
in fact and in essence within South Africa it is
all-powerful. In the case of the British Constitu-
tion the supremacy of Parliament has been called
by Professor Dicey ' the clue to guide the inquirer
through the mazes of a perplexed topic'. It is
no less the first principle of the South African
Constitution. It is easy to establish the truth of
this statement from the terms of the Act itself.
In the first place, Parliament is expressly stated
to have full power to make laws for the peace,
order, and good government of South Africa. Again,
any ordinance (as the legislative acts of the
Provincial Councils are named) is valid so long and
so far only as it is not repugnant to any Act of
Parliament ; and, finally, Parliament may amend
the Constitution by a simple act of legislation
just in the same way as it may amend any other
law. There is, therefore, no such legal sanctity
about the Constitution as there is in the cases of
the United States, Canada, and Australia. Par-
liament's power of amendment is, however, qualified
in two ways. Certain provisions relating particu-
larly to the legislature cannot be amended at all
for a definite, though short, period ; certain
other provisions, i.e. those relating to the native
franchise in the Cape Colony, to the equal treat-

is THE OONVI I I ITION 4,

ment accorded to the English and Dutch language*,

and to what are known a* * equal right* \ can

only be altered by a two-third* majority of both

ises of Parliament Hitting together, and in the

case of Mill oihn |>i<»vi*ion*v including the section*
providing for 'equal right* ', and for the existence
of provincial council*, every amending bill i*
reserved for the King's pleasure. The section
of the Act, however, uhich define* the various
methods of amending the Constitution can itself
be amended by a similar majority of tun-third*.
Legally, therefore, the only limitation on the
complete power of Parliament over the Const it u-
ti«n is the requirement of a two-thirds majority
in certain particular cases. If the South African
Parliament, in the exercise of its legislative power*
ignored this requirement, any law so passed, being
in conflict with t he Constitution, or, in other words,
with an Imperial Act of Parliament, must be de-
clared by the Courts to be null and void.

Professor Dicey has charged the framers of the

iah North America Act with 4 diplon
inaccuracy ' because they asserted in its preamble
the Dominion is to possess 'a constitution
similar in principle to that of the United Kingdom '.
Canadian critics, looking rather at the system of
parliamentary government in force in Canada
than at its essentially federal nature, have denied
the justice of the charge. Whatever the merit*
of the controversy as applied to Canada, there i*
no doubt that the terms of the Canadian preamble

46 THE UNION Ol SOUTH AFRICA OH,

would have been entirely applicable to the South
Africa Act.

In South Africa this fundamental principle of the
supremacy of Parliament has in three colonies
been greeted as the great achievement of the Act,
and in the fourth has been condemned as a
disastrous error. But, notwithstanding the hot
opposition of critics in Natal, which the history
and ( ire u instances of that colony render natural,
there is little doubt that opinion in South Afri< ;i
is overwhelmingly in favour of the unitary as
opposed to the federal principle. The panegyrics
which American writers have been accustomed to
lavish on the Constitution of the United States,
and the imitation of that Constitution by Canada
and Australia, probably explain the widespread
opinion that federalism is a form of government to
be sought as an end in itself, and not one which
should be accepted only when nothing better can
be obtained. But federalism is, after all, a pis
otter, a concession to human weakness. Alexander
Hamilton saw its dangers and only acquiesced
because by no other means was union possible.
In Canada Sir John MacDonald strongly favoured
a legislative union, but was obliged to bow to the
intense provincialism of Quebec. In Australia the
narrow patriotism of the different states has im-
posed upon the Federal Government limitations
which are generally admitted to be checking that
country's advance. Federalism must be accepted
where nothing better can be got, but its dis-

IV

I MB CONMIM I ION 47

advantages are patent. It means division of
power and consequent irritation and weakness in
the organs of government, and it tends to stereo-
type and limit tin* development of a new country.
South African statesmen have been wise to take
advantage of the general sentiment in fa von
;i < loser form <>f union. It is remarkable that South
Africans should have succeeded where almost all
othrr unions have failed, in subordinating local
to national feeling, and that the people of each
colony should have been ready to merge the
identity of their state, of whose history and
•lions they are in every case intensely proud,
in a wider national union, which is still but a name
to thrni The truth, as has already been stated,
is that bitter experience has taught them the
evils of disunion. The lesson is confirmed for
thnn by the difficulties in which Australian
federalism is floundering. They u^ree with (ieneral
Smuts in his emphatic expression of the immense
advantages of a strong government, especially in
a country faced, as South Africa is, with problems
\\hirh may well appal the stoutest and most
heart. Thr racial question between
British and Dutch, the economic and social
questions of capital against labour and town
against country, administrative questions such as
the elimination of animal diseases which nature
has lavished on the country with such abundance,
all require uniform treatment and firm handling.
ill these are of minor importance when com-

48 THE UNION OF SOUTH AFRICA OH,

pared with the black shadow of the native problem.
* The white people of South Africa,' as Lord
Selborne has truly said, ' are committed to such
a path as few nations have trod before them,
and scarcely one trod with success.' The darkness
which surrounds the future of the white and black
races is impenetrable, and opinions as to the path
which leads through to the light are as far apart
as the poles. Men agree only in resolving that
a great effort must soon be made to reach a com-
mon opinion, so that the united strength of the
whole community, centred in one government, may
be directed towards the solution of this great pro-
blem. Failing this, disaster awaits South Africa.

The supreme power given to the Parliament of
the Union has been criticized in some quarters as
excessive and dangerous to liberty. The criticism
is not well founded. There is no more curious
phenomenon in modern politics than the distrust
of representative government which some forms
of democracy have engendered. In the United
States this feeling has gone to extreme lengths,
and in the newest constitutions the legislature is
hedged about by innumerable restrictions, and
in some cases may not meet oftener than once
in two years — surely a strange commentary on
the power of public opinion to control the people's
representatives under a form of government where
responsibility is not centred in some one authority.
The unfortunate experiences of the American
democracy are probably due to the fundamental

ix I I IE CONSTITUTION

error of all American coiiMitutiMii- m separating
legislative from executive p<> Where, a* in

tish self-governing countries, there is no such
separation, and where in consequence the exe<
tive and legislative authorities, the cabinets and
parliaments, react upon and mutually control
each ..ih. -I, both being subject in the Im.jj run to
public opinion, no harm has come from trusting
t lie legislature completely. In countries where the
people are more accustomed to revolutions than
to constitutional government, to grant complete
freedom to the legislative body might be really
dangerous. But both British and Dutch in South

rica are essentially law-abiding. What reas<
indeed, is there to suppose that the Parliament of
the TH ion will be more revolutionary than the
parliaments of the colonies T According to the
well-established practice of the British Constitu-
tion. these latter have always possessed full power
to amend their own constitutions. That power
they have never abused. They have now agreed
to transfer it in its fullness and entirety to the
Government of the Union. It is to be expected
that tii<- moral sanctions which were sufficient in
the past will be sufficient in the future. Custom
is at least as strong as law, and while the Const
tut ion will certainly be amended, since it must
harmonize with the rapid growth and changing
(. ire u instances of a young nation, every parliament
will be in honour bound not to violate its spirit
for any selfish ends.

50 THE UNION OP SOUTH AFRICA CH.

But although ultimate authority is thus con-
centrated, instead of being distributed as in
a federal system, the framers of the Constitution
recognized the dangers of too great centralization.
Indeed, the area to be governed is so large that
the grant of some fairly wide powers of local
government was essential. The problem was com-
plicated first by the determination to abolish the
existing colonial constitutions, a step which could
not be avoided, and secondly by the absence in
South Africa, except in the Cape Colony, of any
indigenous system of local government. It was
necessary, therefore, to create afresh within the
provinces some new framework of government.
The provincial constitutions thus framed give
rise to several interesting questions which will
be touched upon later. For immediate purposes
reference need only be made to the matters
upon which legislative power is delegated to the
Provincial Councils. The list is to a large degree
copied from the Canadian Constitution, but it
covers less ground. The provinces may raise
local taxation, provided it is direct, may borrow
money with the consent of the Union Govern-
ment, may legislate upon all such local matters as
municipalities, hospitals, and local undertakings,
and upon all other matters which the Central
Government may consider to be of a local or
private nature, or which Parliament may delegate
to them. They have also legislative, and conse-
quently administrative, power over education,

IN I HE CONSTITUTION 51

exclusive of higher education, for five yean
after union, and thereafter until Parliament
decides otherwise, and over agriculture * to the
extent and subject to tin- condition^ to b«- drtinrd
by Parliament '. There are evident signs of

promise in these arrangements. It is in-
consistent, for instance, with the whole spirit
of the Act that so important a subject as educa-
tion, doubly important in a country where the
language question raises such fierce controversies,
should be left to the tender mercies of bodies
\\hich are generally expected to be the haven of
mediocrity. It was earnestly to be hoped for the
sake of future peace that the education question
would have been treated upon broad and uniform
lines. But this cannot now be expected. If the
past may point a way to the future, the question
will, at any rate in the Orange Free State, be

Hod in a spirit which will supply fuel to the fires

icialism. This concession to provincial feeling
is limited, it is true, to five years, but those who
obtained it must obviously hope that, once the
provinces have enjoyed it, they will not lightly
give it up. The future will show whether they are
right. Meanwhile the provision is certainly one

he least satisfactory in the Constitution.
As to agriculture the terms of the Act are more
ambiguous. Parliament may interpret it literally
and keep much of the control in its own hands.
Indeed, when the matters dealt with by the
different agricultural departments are examined,

i> -2

52 THE UNION OF SOUTH AFRICA CH.

the importance of some central control in almost
all cases becomes manifest. In the case of cattle
disease, the greatest scourge of the country, and
of locusts such control is indispensable. The
negligence of one provincial government might
otherwise render abortive the vigilance of the
others. It is useless to destroy every swarm of
locusts in the Transvaal if they are allowed to
breed with impunity in the Cape Colony. More-
over, in questions of research and scientific work,
which occupies so large a sphere in a modern
agricultural department, it seems a useless waste
to multiply laboratories throughout the country.
It may, therefore, be anticipated that Parliament
will show itself loth to part with any powers which
it can with reason retain.

Compromise again is written large over the pro-
vision— surely a strange one — that the provinces
may legislate upon ' all matters which in the opinion
of the Governor-General-in-Council are of a merely
local or private nature in the province'. There is
probably no other instance in a British Constitution
of a provision by means of which the legislative
power of Parliament may be indefinitely dimi-
nished without any reference to Parliament itself.
The Governor-General-in-Council may change his
opinion from day to day ; certainly from year to
year. May he, therefore, withdraw a power he
has once granted ? Apparently he may treat any
question, even the native question, as private and
local, and no one may gainsay him. The provision

iv THE CONSTITUTION :,:i

IB a blot upon the Constitution. While, however,
it may make con ual lawyers shudder, it*

practical effect will probably be small. No govern-
ment in likely to fly in the face of Parliament, and
no Parliament ^ likely to acquiesce in a diminution
of its authority. Moreover, if governments are
found to abuh» discretionary power, Parlia-

innit can as a last resort amend the provision.

<> brief survey given of the division of power
between the Union and Provincial Governments is
snHieient to show the immensely preponderating
authority of the former. With the exception of
education and agriculture, the Provincial Govern-
ments are restricted to purely local affairs, and
their power even here is not exclusive. Indeed,
r nliament may, \\ith the consent of the Imperial
Government, entirely abolish the Provinces. South
African statesmen have thus proceeded on an
entirely different plan from that followed either
in America or Australia or Canada. In the two
former countries the federal constitution was
super i in | >osrd on the existing state constitutions,
the latter remaining in force except where they
were inconsistent with the federal constitution;
only rcrtain matters of national importance were
transferred to the central government, the residual
power remaining with the states. In Canada, on
the other hand, the separation of Quebec from
Ontario made it necessary to frame a new constitu-
tion for each of these provinces, but the remaining
ial constitutions were left in force except

r>4 THE UNION OF SOUTH AFRICA

in so far as they were repealed by the Constitution.
An exhaustive division of power between the Cen-
tral and Provincial Governments was attempted,
the powers given to the latter being large and in their
nature exclusive. In South Africa a bolder course
has been pursued. Existing colonial constitutions
are swept away, and the Act sets up a new frame-
work of government, not only for the Union but for
the provinces as well. Moreover, the Union takes
over at once every important function of govern-
ment, and there is none which legally it may
not assume. On the appointed day all existing
governments will disappear, to be replaced at first
by a national government alone. A few months
later the Provincial Governments will be formed.
It is easy to realize, therefore, the immense responsi-
bilities which will devolve upon the Union Govern-
ment, and the boldness of an experiment which
proposes wholly to demolish the existing framework
of government over so vast an area. It is now
necessary to see what are the organs of government
which are to take its place.

CHAPTER V

THE EXECUTIVE

I i is characteristic of South Afn< i that, con-
trary to Australian example, the portion of the
Act dealing with the Executive should precede
that uhirh deals with Parliament. The power of
Parliament over the Executive is probably not so
great in practice in South Africa as in other parts
of the British Kmpire. The causes are various.
In the first place, except in the Cape Colony, there
is no parliamentary tradition. It may be difficult
now to foster. For even in Great Britain the
decay of Parliament is noticeable, and everywhere
ents seem to be failing to cope efficiently
\sitli the burdens imposed on them by the growth
of state socialism, and the complexity of modern

Perhaps, however, the chief reason is the ten-
dency of the Dutch to give their confidence to the
government of the day. There is a strong feeling
among them that it is disloyal to criticize the
Government. They have not arrived at the stage
of believing that it is the business of an opposition
to oppose. K at In T they look upon any such action
as unpatriotic. K\m immediately after the war
many of them refrained, owing to this sentiment,
11 opposing the Crown Colony Government.

.->« THE UNION OF SOUTH AFRICA CH.

They argued, like the Duke of Wellington, that
His Majesty's Government must be carried on.

A further consequence of this tendency is that if
a leader has once proved himself he may reckon
with confidence on the implicit trust of his fol-
lowers. All this tends to place great power in the
hands of the government of the day, certainly if
it be a Dutch government. A good example of
this is to be found in the very success of union.
The entire lack of opposition to union among the
Boers in the Transvaal and Orange River Colony
is quite as much due to their faith in their leaders
as to their liking for so revolutionary a change.

The provisions relating to the Executive require
little comment. They do not depart from British
precedent. There are to be not more than ten Minis-
ters of State administering Departments of State,
all of whom must be members of Parliament; but
as these clauses have been interpreted in Australia,
there seems nothing to prevent Ministers without
portfolio being added to the Ministers of State to
form the Cabinet. The Government is clothed
with all the powers and authorities formerly vested
in the governments of the Colonies, except such
as are in the Act vested in some other authority,
such as the administrator of a province. The exe-
cutive will be installed in office before the election
of Parliament.

In this chapter of the Act, also, Pretoria is fixed
as the seat of government. This shows that its
framers intended that ' Government ' should here

v THI-: I-:\K' i 1 1\ i. 57

denote merely Executive Government, and not
Legislative Government also, Gape Town ha
been fixed aa the aeat of

The choice of a capital was bound to be a matter
xtreme difficulty. There IB nothing elae win* h
brings home BO directly to the popular imagination
thr sacrifices which union entails. Where the
results of a great political change are incalculable,
men may believe that they will be great, and
-nil be ready to trust the future. But here is a
sacrifice of which there can be no doubt. The
losses which may follow to individuals may be
exaggerated, but tin- tran^tnvnee of the auth<
of government to a centre, perhaps hundreds of
miles away, and the exaltation of a rival city are
mat ters which come home to every citizen. Luckily,
in South Africa there was no difficulty so great as
the irreconcilable rivalry of the great Australian
< • 1 1 1 cs of Melbourne and Sydney. None the less, the
obstacles to any settlement were formidable. Cape
Town had always held that it possessed the
prescriptive right to be the capital of a united
South Africa, and until a few yean ago it would
have had the support of the mass of South African
opinion. Indeed, until the meeting of the Con-
"ii the people of Cape Town had hardly con-
ceived it possible that the capital should be
elsewhere. (\ij)e Town is the most ancient eity of
South Africa. It is the place at which its history
begins. In 1508, Almeida, the Portuguese navi-
gator, landed on the shores of Table Bay, only to

r>8 THE UNION OF SOUTH AFRICA m.

meet his death at the hands of t hr Hottentots ;
in 1652, Van Riebook founded the first Dutch
settlement, and established a port of call for ships
bound for the east.

The struggles of the small community against
man and beast are a fitting prelude to South
Africa's strenuous history. The Hottentots were
a dangerous enemy, and the old block-house,
\\liirh was used to watch for their coming, still
stands high on the slopes of Table Mountain.
Wild beasts were numerous, and it is recorded that
a man was actually carried off by a lion from the
Castle. It was from Cape Town that the Dutch
farmers ventured forth into the wilderness and
began those wanderings which form the romance
of their nation. Nor is its history its only claim.
For the Cape peninsula is one of the most beautiful
spots on earth, and its inhabitants may be excused
for believing that no one who had come under
the influence of its charm could wholly ignore its
claims to be the capital. The great uplands and
vast plains of the high veld have a fascination of
their own, from which few escape. But to those
who have been nurtured on England's sea-breezes
there comes at times a longing for the sight and
sounds of the sea. To one who has dwelt long
in the dry and parched interior there can be few
pleasures more intense than to stand on the
glittering sands of Muizenburg, and to breathe
the moist and refreshing wind blowing over the
waters of False Bay straight from the South Pole.

v mi: i:\ECUTIVE .v.i

As be gaze* over the blue sea there rise before him
on one side the majestic mountains of Hottentot's
Holland, while on the other he sees the soft out-
Inn of the high hill* above Simonstown, stretch-
ing doun to the bay, until they end m the « htl-
»t t he Cape of Good Hope. H^hW him is spread
the beautiful panorama of the peninsula itself,
\\ nli its mountains and pleasant streams, its vine-
yards and forests, its splendid Dutch farmhouses
great avenues of oaks and firs, built and
planted by the Dutch governors of old. Over all
towers Table Mountain. For beauty and amenity
of life the Cape peninsula is without a rival in
South A

Pretoria, the other chief claimant for the
honour, has neither Cape Town's history nor its
beauty. It is a pretty town nestling in the bosom
of Magaliesberg, well wooded and well watered.
But its streets are mean, and it is yet hardly more
than an overgrown dorp. The inhabitants of Cape
Town are thought by the population of the inland
to be out of sympathy with the veld, but it is no
less true that the people of Pretoria are apt to be
parochial and selfish in their views. They find it
ditlicult to look beyond the hills which surround
them. In this respect they suffer by contrast
with the population of Johannesburg. But Pre-
toria has this great advantage, that it is central in
position, while Cape Town is at the extreme end
he continent. It is what Cape Town is not,
a part of the true South Africa. The Cape

60 THE UNION OF SOUTH AFRICA CH.

peninsula is a land of vineyards and streams, not
of karroo, and kopje, and veld. Its climate even
is quite different. South Africa is a land of summer
rains and winter drought, but at Cape Town it is
the winter that is the rainy season. Pretoria, too,
is in close proximity to the great industrial centre
of the country, and likely to be some day the seat
of industry itself, for it is surrounded by vast
deposits of coal and iron ore. But, while its near-
ness to the Rand is truly an advantage, the
domination of Johannesburg is so much of a bogie
to the rest of South Africa that this very fact was
the chief obstacle to its success.

Johannesburg itself, though it possessed many
advantages, was out of the running. There is
a general fear throughout South Africa of the
influence of the mining industry. This sentiment
is largely the outcome of ignorance and prejudice,
but whether ill or well-founded it was strong
enough to make any idea of Johannesburg as the
capital out of the question.

The only other possible rival among existing
towns was Bloemfontein. It is central in position,
but has nothing else to commend it. It is the
most unattractive of South African capitals. If
there was a danger of its being chosen, it was solely
due to the difficulty of reconciling the conflicting
claims of Cape Town and Pretoria.

The Convention might have determined to ignore
all existing capitals and choose a new site on the
Vaal River, or in some other favourable position.

\ THE EXECUTIVE til

But even bad such a ooune bean acceptable to
the public, the expense of creating a new capital
and the difficulties of con<lu< tmg the government
in the meantime were strong arguments again*' u.
The ditlii -ulties in the way of a settlement were
therefore great it her Cape Town or Pretoria

gained the prize at the expense of the <>therf or if
neither gained it at all. it was equally likely that
ii i not i would be wrecked. When it became known

that a deadlock had hern readied, thr nru>-
papers advocated the Australian plan of leaving
the matter to the decision of the future Parlia-
ment. But to this course many delegates had
rightly the strongest objection. It possessed
every disadvantage, and Australia was a warning
of the probable consequences. Compromise was
necessary, and in the art of compromise Afrikanders
are past-masters. The spoil was divided. Pre-
toria cried out that it was betrayed, but its
lamentations were unheeded, since most reasonable
men thought it had got as much as it deserved.

This curious arrangement by which the execu-
tive government has its seat in Pretoria, while
Parliament sits a thousand miles away at Cape
Town, has its advantages and disadvantages. It
must add to the expense of conducting the govern-
ment, and it must tend to make efficiency more
ditlicult. At t he same time, in so large and varied
a country as South Africa, there is something to
be said in favour of bringing the government and
the members of Parliament into contact with two

62 THE UNION OF SOUTH AFRICA

great centres, Pretoria and Cape Town, the one
typifying the continental nature of the Union, the
other its ultimate dependence on sea-power, a fact
which it is all-important to bring home to South
African legislators. And, while it is essential that
the government should be in touch with the great
inland districts, it may be fortunate that Parlia-
ment will meet in a city where political traditions
are more settled and perhaps sounder than in the
youthful north. Lord Curzon has pointed to the
example of Simla and Calcutta as a proof that the
compromise is quite workable. While one may be
inclined to doubt the aptness of a parallel drawn
from such widely differing conditions, there need
be no insuperable difficulty in carrying on the
government efficiently. It is merely a question of
organization. The compromise may last for years,
and in any case it is useless to attempt to probe the
future. All that may be said with safety is that,
whatever direction South Africa's development
may take, Cape Town will never be its centre of
gravity.

CHAPTER VI

i HE LEGISLATURE

THE Legislature is to consist as usual of two
Houses — a Senate and a House of Assembly.
But although to this extent the Act follows prece-
dent— not, we have been told by some delegates,
\Mthout opposition — it has several novel features.
In the first place the constitution of the two
Houses of Parliament is for the first few yean
of their existence even more federal in character
than that of the corresponding Houses in federally
governed countries. In the latter it is the rule that
\vhile the Upper House represents the principle
of state rights, the Lower is elected by the whole
population without respect to state boundaries.
In South Africa both Houses of Parliament will for
the first period of their existence be constituted
on what may be termed a provincial basis. I*
was found necessary to make large concessions
to provincial feeling in order to secure the accept-
ance of a constitution unitary in its nature al-
though apparently federal in some of its aspects.

The constitution of the Senate is somewhat
complex. It is to consist of eight members
linated by the Governor-General-in-Council,
four of whom must be well versed in native
affairs, and, in addition to these, of eight elected
for each province. Thus, except in the case
i'i tiu nominated members, the principle of equal

04 THE UNION OF SOUTH AFRICA CH.

representation among the provinces, common to
strictly federal constitutions, is followed. This
principle is secured for ten years ; thereafter it
is retained only until Parliament decides to make
other arrangements. The nominated members
will, it is hoped, add to the strength of the Senate,
by including men prominent in the life of the
nation who would otherwise be lost to politics.
The elected members of the first Senate are chosen
in a novel manner. The two Houses of the
present colonial Legislatures, which will disappear
with union, are before that date to meet together
and elect the eight senators for their province.
These senators hold their seats for ten years, and
vacancies among them are filled by election by the
Provincial Councils. If at the end of ten years
no other provision has been made by Parliament,
the elected senators will be chosen jointly by the
members of the Provincial Council and the mem-
bers of the House of Assembly representing the
province concerned, and any vacancy will be filled
in a similar manner. It will be seen, therefore,
that there are actually four methods of choosing
senators — nomination by the Governor-General-
in-Council, election by the present Houses of
Parliament, election by the Provincial Councils,
and election jointly by the Provincial Councils and
certain members of the House of Assembly. All
this complexity does not appear to be very
satisfactory. The election of senators is to be
by means of proportional representation, and it

vi THE LEGISLATURE »,;,

is probable, therefore, that the complexion of the
existing Parliaments will be reflected in the first
Senate. I n other words, the existing majorities will
perpetuate themselves in it for a period of ten years,
sinoe during that period the Senate cannot be dis-
solved. Thus the method of constituting the first
Senate appears to be favourable to the parties now in
power and correspondingly unfair to the minorities.

The delegates who were sent to England from
the different colonies were entrusted with the
task of framing regulations for the election of
senators by proportional representation. The rules
\\lm-h they drew up have now been published in
South Africa. They are an adaptation of the
system of the single transferable vote, which is
advocated by the English Proportional Repre-
sentation Society. The delegates had before them
the Act in force in Tasmania, and also the .Muni-
1 Representation Bill introduced by Lord
Courtney into the House of Lords in 1907 and
passed. The regulations for the election of senators
are to a large extent founded on the rules contained
in those Acts, but it was found necessary to modify
them in some important respects. It is not so simple
to apply the system of the single transferable vote
to quite a small election, where the electors number
leas than one hundred, as it is to a large election.
The modifications are therefore in the direction of
securing absolute accuracy in the result.

Critics of proportional representation will no
doubt complain of the complication of the rules.

66 THE UNION OF SOUTH AFRICA CH.

For the voter, however, the system is simplicity
itself. The Returning Officer must, it is true,
make himself acquainted with the rules for count-
ing and transferring the votes, but if he is a man
of ordinary intelligence he should have no diffi-
culty. It is fair also to remind critics that it is
only by means of proportional representation that
the Senate has been able to be constituted as it is.
There is no other known way by which senators
can be elected, and yet each party be represented
according to its strength. The abandonment of
proportional representation would, in fact, have
meant that the whole constitution of the Senate
must be entirely recast.

Nothing seems more difficult in constitution-
making than the composition of an Upper House.
The Convention might have followed Canada and
adopted nomination pure and simple, or Australia
and caused the Senate to be elected directly by
the people. There were arguments against both
courses. Nomination has been shown in Canada
to possess many objectionable features. It gives
too much power to the Government of the day,
and the patronage which it places in its hands
may be used in a form in which it is hardly to
be distinguished from bribery. Sir Wilfrid Laurier
has himself dwelt on the evils of nomination and
advocates rather the plan adopted in the United
States of election by the State legislatures.

The objection to direct election by the people was
that the Senate might then become a dangerous

vi I Ml LEGISLATURE «;T

rival to the Lower Home. If Senators

elected in the saim- di.strirts and l,\ th«-
electors, might they not claim to be as

'• of the people aa members of the Lower
House ? The Australian constitution attempt* to
impart a different complexion to the Upper House
by making each state a single electoral area for the
election of Senators. Hut as Senators an- ••Irrtrd
by ' general ticket ', a system which gives each
voter as many vote* as there are seats to be filled,
the result is that the party in the majority in any
state can sweep the board. In most states tin-
Labour party has been in the past better organized
than its 1 1\ iU, and the Senate in consequence has
been said to be more like a National Labour
Convention than an Upper House. The Chamber,
\\hirh is usually supposed to act as a drag on
revolutionary legislation has largely occupied itself
in passing academic resolutions in favour of the
lization of all means employed in the pro-
duction and distribution of wealth and other
projects of a socialistic character.

The South African constitution entirely eschews
lection for the Senate. It is rather a com-
pound of the principles of the Canadian and
American constitutions. Its provisions in this
respect might have been simpler without losing
any of their virtues, but it is quite possible that
in practice they may be satisfactory.

1 t has been shown that equality of representation
in the Senate among the provinces is safeguarded

12

<>S THE UNION OF SOUTH AFRICA CH.

in the Constitution only for ten years. Those who
insisted on this limitation doubtless hoped that
provincial feeling would have so far given way to
national feeling that it might be possible at the
end of that time to make a nearer approach to
the unitary principle. But prophecy on such
a matter is dangerous. Threatened institutions
live long, and the Senate has first to be got to
agree to its own reconstruction.

In the composition of the House of Assembly
the same principle of provincial representation is
observed. The members are not distributed on
a uniform basis throughout the Union, but a certain
arbitrary number is allotted to each province.
The ultimate basis on which the allocation rests
is the number of the European male adults in
each province. But the Cape and Transvaal have
both taken a smaller representation than they are
strictly entitled to, in order to allow a larger
representation to the two smaller provinces of
Natal and the Orange Free State. No province
can have its representation reduced until the
number of members of the House reaches 150 or
until the expiration of ten years after the estab-
lishment of union, whichever is the longer. In
this way the separate identity of the provinces is
recognized, the vote of a Natal citizen, for instance,
simply by virtue of his residence in Natal, being
of much more value than the vote of a citizen of
the Cape Colony or the Transvaal. Complicated
and ingenious provisions determine the increased

n THE LEGISLATURE

representation to be allotted to any province in

the caae of an increase in its white population.

The process goes on until the number of member*

ie House reaches 150. The number of members

is then to remain at 150, and they are to be distri-

1 without reference to provincial boundaries,

so that throughout the Union the proportion

j>eaii male adults to each member may be

as far as possible the same in each province.

Thus it is contemplated, a* in the case of th«-

Senate, that after a short and limited period of time

the constitution of the Assembly will be framed

on a national instead of a provincial basis.

Although an arbitrary number is adopted for
the representation of each province as such, the
(listril)ution within the provinces of members so
allotted follows a definite principle. Members
will be distributed m electoral divisions based on
the number of registered voters in each, and each
1>< r will, so far as possible, represent an equal
number of votes. Each electoral division is to
return one member. Constituencies are to be
delimited by a commission of judges and the com-
mission may depart from th«» strict quota to the
extent of 15 per cent., either above or below, if they
think it necessary owing to the sparsity or density
of the population, or for other reasons, An auto-
matic redivision of the constituencies by a com-
mission of three judges is to take place after every
quinquennial census.

By these provisions the question of 'equal

70 THE UNION OF SOUTH AFRICA CH.

rights ' is once and for all settled in the Constitution
in a manner satisfactory to the British population.
But, as the world knows, it was on this rock that
the ship of union was almost wrecked. In the
Cape Colony the country population have always
had a decided advantage over the towns, two
voters in the country being equal in voting value to
three in the towns. The Progressive party in the
Cape have always talked of drastic redistribution,
but every one knew that a reform so sweeping
as that now embodied in the Constitution had no
chance whatever of passing the Cape Parliament
as a local measure. Not only were the Bond
strenuously opposed to any change which would
weaken their party, but the Progressive farmers
also looked askance at increasing the political
power of the towns. Thus the knowledge that the
Cape delegates had been induced not only to
agree to equality of representation between town
and country, but to adopt a system of proportional
representation which might have the effect of
diminishing the overwhelming power of the Bond
in the country districts, came as a shock to the
politicians of that party. To the rank and file
of the Bond, who were no doubt prepared to look
at the matter in a broader light than the party
wire-pullers, the change was also distasteful for
the reason that proportional representation meant,
especially in the Cape Colony, very large electoral
areas. The farmers on both sides were naturally
(1 of increasing the cost of elections and the

M THE LEGISLATURE 71

ditli. ultien of canvassing. An organized ittaok
was accordingly made on these two point*. Lurid

ures were placed before the Bond members
Parliament of the disastrous effect of these
provisions on the party's fortunes, with the result
that when the Capo Parliament met to consider the
nstitution the I'M me Minister and the other
delegates on the Government side were compelled
to throw over the compact arrived at by the
Convention and to vote for amendments involving
its entire abandonment. Thus a most critical
>it nation was created It was impossible that the
Transvaal Progressives should give way upon
tin- prim iple of "equal rights'. They had with
the utmost reluctance consented at Cape Town
to include denseness or spaneness of population
among the reasons of which the Commissioners
might take account in differentiating between
area and area. This provision already meant that
a thinly populated country area might number
30 per cent, less voters than an urban area.
Beyond this concession they could not go. The
fate of union rested in the hands of General Botha

his colleagues, since the Cape delegates could
not hope to carry their amendments through
against the Transvaal Government. That Govern-
ment remained linn to their honourable compact
with the Progressives, and a compromise was
finally reached by which the retention of the
4 equal rights ' clauses as they stood was balanced
against the abandonment of proportional ropre-

72 THE UNION OF SOUTH AFRICA CH.

sentation for the election of the House of Assembly
and the Provincial Councils. The question, there-
fore, of equal voting power for all sections of the
community, which led to the war, which has been
for years a subject of party strife in the Cape, and
which after the war formed the main bone of
contention between the opposing parties in the
Transvaal, is now settled, let us hope, for ever.

Those who had advocated proportional repre-
sentation had seen in it a valuable means of
softening racial antagonisms. It is unfortunate
that the British minority scattered throughout
the country districts, and to a less extent the Dutch
minority in the towns, will now be deprived of all
hope of proper representation. As before, and
particularly in the Transvaal and Orange Free
State, the towns will return British members and
the country Dutch. The line between town and
country is in itself too strongly marked ; it is
intensified by race prejudice. Proportional repre-
sentation might gradually have broken down these
barriers with the most fortunate results to the
country. To those who held this view the com-
promise was most distasteful. It was accepted
only as the price of union. The Transvaal Govern-
ment have since vindicated their faith in pro-
portional representation by applying it to the
election of the town councillors of Johannesburg
and Pretoria. These elections take place almost
immediately, and the results of the experiment
will be watched with interest.

vi i m: LHBL.V]

In South Africa* aa in Canada, one important
question haa been left to the future. No attempt
has been made to establish a uniform franchise
throughout the Union. It m a task of the most
serious cliiMViilt \. and as the Convention's object
was to build the framework of a national govern*
ment, not to settle all the problems of the country,
it was wise in deciding to let alone a matter any
settlement of which would have wrecked the whole
scheme. It was impossible to extend the coloured

ohise of the Cape Colony to the rest of the
Union. It was equally impossible to extend the
manhood -mirage of the Transvaal to the Cape
Colony. It was impossible to deprive the Cape
coloured voters of the rights which they now
possess. It was therefore decided to maintain
the present laws, to safeguard by special means t h<>
native franchise where it now exists, and to leave
the whole question to be dealt with by the Union
Parliament. The violent criticism with which even
this compromise has been received, on the one side

he coloured voters and by their friends in the
Cape Colony, and on the other by the extreme op-
ponents in the northern colonies of the grant of any
franchise rights to coloured persons, is sufficient
« \ i.lence that South Africa is not yet ripe for a
settlement of this difficult question, and that any
attempt to settle it would have led to disaster,
It has already been shown that the South

an Constitution avoids one difficulty which
may yet cause trouble in Australia. There will

74 THE UNION OF SOUTH AFRICA

be no doubt which is the predominant House
of Parliament. The ordinary British system of
Cabinet Government, which the Constitution pre-
supposes, requires for its proper working that the
Government should be fully responsible to one
House only. An adverse vote in the Senate
should no more than an adverse vote in the
House of Lords involve the Government's resigna-
tion. The secondary election of the senators will
prevent them from laying claim to represent the
people with the same directness as the Assembly.
If any deadlock arises between the two Houses
the solution is provided by a deadlock clause
generally similar to the Australian clause. If
there is any conflict the Governor can order
a joint sitting in the next session after that in
which the trouble arose, and the majority in such
a sitting determines the result. There is, however,
an innovation to the effect that in the case of a
money bill the senate may, to use a local expression,
be * steam-rollered ' in the same session in which the
quarrel arises and not in the ensuing session as in
Australia. Thus the Assembly's predominance
over the Senate will be undoubted. The Senate will
be reduced to the position of a house of review,
and a place where ministers may make graceful
concessions which they have refused elsewhere.

< II LPTBfi \ M

PROVINCIAL CONSTITUTIONS

THE details of th< 1

been received by the publi. m South Africa with
indifference ratlin than with commendation or
criticism, liidrrd, this part of the Act has been
treated as so much of an experiment that it in
generally assumed that in the near future mu.-h
of it will require to be altered, and that therefore
it is hardly worth while wasting time and trouble
in any detailed consideration of it. But this is
a short-sighted view. Institutions when once
they have been brought into being have a knack
of refusing to disappear. Problems will un-
doubtedly arise — some of them will be referred
to later— but there is no valid reason for supposing
that the difficulties in the scheme formulated by
the ( 'oiivrntion are so grave as to make it un-
\\ i kable. Indeed, a great deal of care and trouble
appears to have been spent in devising these
constitutions; and an examination of them is
well worth the while of the political student.

Each Provincial Constitution has three main
organs. There is an administrator appointed and
paid by the Union Government, a Provincial
Council elected by the same electors as the House of
Assembly and consisting of the same number of
members as represent the province in the .WemhU

76 THE UNION OF SOUTH AFRICA CH.

(no Provincial Council, however, having less than
twenty-five members) and an executive committee
consisting of the administrator and four members
elected by the Provincial Council. The members
of the Executive Committee need not necessarily
be members of the Provincial Council. The ad-
ministrator is appointed for five years. Both the
Provincial Council and the executive committee
sit for three years, the executive committee
remaining in office until a fresh committee is
elected by the new Provincial Council. The
Provincial Council cannot be dissolved nor is there
any authority which can dismiss the executive
committee. The executive committee is to be
elected by proportional voting and is therefore
certain to contain in almost every instance
representatives of the chief opposing parties.

It is worth while to consider a little more closely
the functions of these three organs of government.
The administrator's functions are various. In the
first place there are what may be called his orna-
mental functions. He is stated to be the chief
executive officer of the province. He will no
doubt represent the province on all ceremonial
occasions. He has in addition certain functions
similar to those of a governor of a self-governing
colony. He determines when Parliament shall
meet ; no money can be issued without his warrant
and no appropriation ordinance introduced unless
recommended by him. In other respects he is
simply a member of the executive committee.

vii PROVINCIAL CONSTITUTIONS

He is its chairman but with the exception of
possessing a casting vote in addition to his ordinary
vote, he haa no more power than any other
member of the executive committee. In ordinary
timee, therefore, it ia probable that hia power
uill depend on his ability and hia peraonal influ-
ence. It he ia a man of force and character, and
if the other members of the executive committee
are divided in their opinions, he may hold the
balance of power and by this means exercise great
influence. If, on the other hand, he ia distasteful

to the jx'ople of the province, it apjM-ars likely th.it

the other members of the committee will be able
to reduce him to the position of a constitutional
governor. It is conceivable that a development
might take place somewhat similar to that which
led to the rise of cabinet government in England.
The elected members of the executive committee
might meet together and decide all questions of
policy informally, meeting again later in formal
ni t tee for the purpose of obtaining the
assent of the chairman. There is nothing, indeed,
to make even the presence of the administrator
necessary for the exercise by the committee of it-
powers. It must be remembered also that the
administrator will start with an initial handicap.
He will be a nominated official, and those who have
any experience of Crown Colony government in
a country like South Africa will recognize what
that means.

In certain contingencies, on the other hand, the

78 THE UNION OF SOUTH AFRICA CH.

administrator is clothed with exceptional powers.
In the interim before union is fully established
and before the Provincial Councils have been
brought into being, the administrator has full
power to administer the affairs of the province
alone. This period of dictatorship will, however,
be short. But there is another occasion on which
he assumes almost autocratic powers. Whenever
for any reason the executive committee has not
a quorum the administrator has power to carry
on the administration of provincial affairs until
a quorum is re-established. He need not, appar-
ently, even consult any members of his executive
committee who are still left.

Another point worth noting is that the adminis-
trator will serve in a two-fold capacity. He is
first a servant of the Provincial Council, but he
is also a servant of the Union Government ; and
it is expressly provided that if the Union Govern-
ment acting within its powers conveys instruc-
tions to the administrator he may carry out
those instructions without reference to the other
members of the executive committee. But there
is no hint in the Act what powers the administrator
is likely to be called upon to perform for the Union
Government. They must obviously be left to
be determined as experience dictates since they
involve the whole question of the organization of
government. The importance or otherwise of the
position of the administrator will largely depend
on the nature of the settlement arrived at. The

MI PROVINCIAL CONSTITUTIONS :••

probable relation* of the administrator to the
Union Government form, indeed, an interesting
•peculation His term of office, for instance, need
and generally will not, coincide with the
possession of power by the party which appointed
him. Having been appointed by one party he
may be called upon to serve another. It i* «juit«-
possible that when party feeling is high he may
tiiui his position extremely difficult.

The administrator could have been omitted from
the scheme of the Provincial Constitutions without
altering th ial character and possibly

with advantage to it. There is no counterpart
to him in any British Constitution. He bears
an analogy to the ' superintendent ' who existed
in New Zealand in the fifties. He is cer-
tainly opposed to the spirit of British institutions
and it is possible that he may share the fate of
the superintendents and disappear after a brief
existence.

The executive committee consists of the adminis-
trator and four members elected by the Provincial
Council. In the first published draft the elected
members might vary in number between three and
five. It was feared by Natal that in a committee
of three an administrator with both 'an ordinary
and a casting vote might exercise a dominating
influence, and to meet this criticism the number
was made four in every case ; a number which
is either too large for Natal and the Free State
«T too small for Cape Colony and the Transvaal

80 THE UNION OF SOUTH AFRICA CH.

The committee will contain representatives of
than one party. Party government, therefore, in
the ordinary sense will be impossible. The Pro-
vincial Constitutions, indeed, presuppose a form
of government entirely different from that to
which Englishmen are used either in national or
local politics. They seem to be based rather on the
model of the Swiss Constitution to which many of
their features are strikingly similar. Their creators
no doubt hope that the results will be equally
successful. The outstanding feature of the Swiss
form of government is that, although political
parties exist, party government does not. As
Professor Dicey observes, the Federal Council, i. e.
the governing body, is in reality not a cabinet but
a board for the management of business analogous
to a company's board of directors. Representa-
tives of various parties sit upon it, and as Professor
Lowell has pointed out, its members hold very
divergent views. Nevertheless, the Council con-
ducts its business with admirable efficiency and
harmony, and possesses ' a stability, a freedom
from sudden changes of policy, and a permanence
of tenure on the part of capable administrators,
which can never be attained under the parlia-
mentary system '. A form of government may
work well in Switzerland and still be entirely
unsuited to a British community, but an experi-
ment so successful in one country is at least worth
a trial. These Provincial Constitutions have, more-
over, been advocated on the ground that they

MI PROVINCIAL CONSTITUTIONS 81

are not unlike the pre-war constitutions of the
an Republic and Orange Free State,
and tint these latter were found to be well suited
to Dutch ideas of government. But this analogy
cannot be pressed too far. These republican
constitutions were only suited to a romparatm-ly
Mm pie community. In theory they made the
legislature supreme ; in practice their efficacy
depended on the ability and jMTsomility of th<-
president. President Krup»r was an autorrat and
his reign would no doubt have been as successful
as President Brand's in the Free State had not
the Witwatersrand brought with it problems
which the old form of government could not solve.
The president was powerful because he was the
chosen of the people; the administrator on the
other hand will be nominated, and even if one
ad mi to that the republican constitutions
well suited to a homogeneous society, it
imagination to predict what might have happened
had two Uitlanders sat at President Kruger9s
Executive Council Board.

Those on the other hand who dislike so great
a departure from British traditions maintain that
the experiment must fail. They point out that
no provision is made for avoiding deadlocks
between the committee and the Council, since the
inittee cannot be dismissed and the Council
cannot be dissolved. In practice, however, no
great difficulties need be anticipated on this score.
The committee cannot legally disobey the ordin-

82 THE UNION OF SOUTH AFRICA OH,

,ii ires of the Council and the Council in the long
run will be able to force the resignation of the
committee by cutting off its supplies. The latter
is indeed likely as in Switzerland to limit its
functions to carrying out the policy of the Council.
A more serious criticism is that to attempt to
force opposing parties to work together in the
same Government, will be to try to mix oil and
water. But before the Provincial Constitutions
are condemned on this score the powers which
they will be called upon to exercise should be
examined. With the exception of education
there are none of a character into which party
politics need enter. Nor, indeed, are the inde-
pendent powers of the provinces likely to be
extended. One may venture to prophesy that in
all likelihood they will be diminished. What is
wanted in South Africa at its present stage of
development is legislative centralization and
administrative decentralization. Economy in
administration is essential. Unfortunately even
with the limited provincial powers the existence
of two co-ordinate authorities will make it difficult
to secure. Examples of probable difficulties are
easy to find. The South African system of
government is not unlike that of India. The
country is divided into magistracies and at the
head of each district is a magistrate who is the
general representative of the Government. His
duties will in future be undertaken partly for
the Provincial and partly for the Union Govern-

MI PROVINCIAL CONSTITUTIONS 83

" there to be two parallel systems of
local government m the future or can the
two masters, both Union and
Provincial Government* ? Again, some public
works such as roads and bridges and schools will
be under the ad ation of the provinces;

the remainder will belong to tin* I'liion. An-
there to be two Public Works Departments where
one is now sufficient ? The following is again
.mother kind of difficulty which will probably
arise. Public health, which must be administered
by local bodies, is a matter for the Union. Munici-
palities and local bodies are under the Provincial
Government. The municipalities will thus also
serve two masters. They will be responsible for
public health to the Union Government ; for
everything else to the Provincial Government.
The truth seems to be that a half-way house
between the thorough - going federal and the
purely unitary form of government is not easy to
find. No doubt the curious mixture of the South
Africa Act was accepted as being the nearest
approach to unification which it was possible to
attain. It may, therefore, be that the Union
Government will have either to absorb the
independent power of the provinces, devolving,
however, administrative powers upon them to
whatever extent is necessary after the fashion of
English local government, or sink bark into the
position of a federal authority. As the South
an Constitution-makers have put all the

S4 THE UNION OF SOUTH AFRICA CH.

cards in the hands of the Union Government
the former alternative is the more likely.

The provincial constitutions are therefore ad-
mittedly experimental, and at this stage it is
impossible to predict their success or failure. The
result will largely depend upon the spirit in which
they are worked. Sound local government will be
hampered by the great size of some of the areas,
particularly Cape Colony, which is undoubtedly
too large for the purpose, and for this reason it
is somewhat unfortunate that a province may not
be divided into two or more provinces without
a petition from its provincial council. That body
is Likely to be the last to see the necessity for such
a step.

Those who criticize the ready-made character
of these constitutions should be prepared with an
alternative. The only possible one would appear
to have been the creation of small responsible
governments throughout South Africa, engaged
mainly in the administration of purely local
affairs, with all the paraphernalia of lieutenant-
governors, cabinets, dissolutions, and party govern-
ment. It is probable that the Convention was
right in rejecting such a plan.

Finally, it may be noted that the control of the
Union Government over the provinces is not
limited merely to the legislative supremacy of
Parliament. For in addition all provincial ordin-
ances must receive the assent of the Governor-
General-in-Council, and still more important, the

vii PROVINCIAL CONSTITUTIONS sr,

financial control of the I'nion ( iovcrnmcnt nvi-r
the provinces, as explained in Chapter I \
complete.

It i- oom to refer here to the provision

that new territories and province* may be m-
. -hided in the Union on such terms as the South
African Parliammt may determine. Apart from
the native protectorates, which are dealt with
specially in Chapter X, there remains only Rho-
desia, though it is conceivable that British Cei
Africa may some day be taken over, and, in the
far distant future, even British East Africa and
Uganda. Rhodesia must undoubtedly be included
in tin* t'nion, hut it is an open question whether any
steps to that end should be taken in the immediate
tut ure. The people of Rhodesia are said generally
to be averse from the prospect. The new South
African Government will be overwhelmed with
uork. and are likely to neglect the interests
of a part of the Union so distant, at the
Mimnrnt so comparatively unimportant and pos-
sessed of so little voting power. The administra-
tion «.t thr rhartrred Company has been good.
A country so immature, and yet of such great
possibilities, demands close attention from its
responsihle rulers. The steps which are taken
m the next few years towards developing it-
resources and settling an energetic and progressive
population on the land will go far to determine
its future. Both in the interests of the Rhodesian
population and of the South African Government.

86 THE UNION OF SOUTH AFRICA

it is therefore desirable to delay the inclusion of
Rhodesia in the Union. That Government should
first settle the more immediate problems which
face it elsewhere. When that has been done,
and when Rhodesia itself is more ripe for the
change, it will be time for the Imperial Govern-
ment to consider on what lines and under what
safeguards the transfer of the administration
should be made.

CHAPTER Mil
THE JUDICATURE

TH iMons of the Act with regard to the

judiciary require little conn unit. A Supreme
Court of South Africa is constituted, and when
the spoils were divided, the Supreme Court was

n to Bloemfontein. Its sittings must be held
there, though for the convenience of suitors it
may go elsewhere. Bloemfontein is not a very

ictive place and since judges are only human
they may tind that the convenience of suitors of ten
requires their presence at Cape Town and other
more pleasant places of abode. The Supreme
Court is to sit in an appellate division and in
provincial and local divisions ; the existing
supreme courts of the colonies become the pro-

ial divisions, and the existing district and

lit courts become the local divisions. Appeals
from any superior court will go direct to the
appellate division. Appeals from the Supreme
Court to the Privy Council are limited to oases
in which the Privy Council may give leave to
appeal. As in Australia, Parliament may limit
the matters in which such leave may be asked,
but laws imposing such restrictions are to be
reserved for the pleasure of the Crown. The
question which gave so much trouble in the
Australian Constitution with regard to the inter-

88 THE UNION OF SOUTH AFRICA

pretation of the Constitution does not arise in
the case of South Africa. The interpretation of
a federal constitution is a matter of immense
importance. It may, and in fact probably will,
determine the whole course of the political life
of the country, but, where parliament is supreme,
the courts cease to be the guardians of the con-
stitution, and, since any judicial interpretation
which may be considered detrimental to the
country's interest may be upset by means of an
ordinary law, there is no reason to enter any special
safeguards in this respect. The main benefit to
be expected from this chapter of the Act is the
removal of the present anomaly by which four
Supreme Courts sit in South Africa, none of
them bound by the other's decisions and occa-
sionally delivering inconsistent and even con-
tradictory judgements.

CHAPTER IX
FINANCE AND RAILWAYS

TUB chapter dealing with finance and railways
is not only one of the most important of the whole
but is also perhaps the most logical and com-
plete. It is hen- that the unitary prim-iplr limU
its most complete fulfilment. There is no attempt
rigidly to define once and for all in a written docu-
mmt the financial relations between the central
and local governments, A cut and dried financial
scheme, which is a necessary consequence of the
adoption of the federal system, has been found in
all federal countries to be a most serious drawback*
Whether in America, or Canada, or Australia, the
financial relations between the central and local
governments are unsatisfactory. There is no sphere
of government where elasticity and freedom are
more necessary than in that of finance, and the
difficulty of making those readjustments which
t In- 1 hanging circumstances of a country's develop-
ment require may often be found to be a serious
handicap to its prosperity. The South African
Constitution meets this difficulty simply and
effectively by leaving the whole matter to be deter
mined by the Union Parliament in the manner
which the future may show to be the best It
does not set up a ready-made system ; it merely
indicates the procedure to be followed temporarily

90 THE UNION OF SOUTH AFRICA CH.

until Parliament has had time and opportunity to
deal fully with the whole matter. All revenues
(apart from revenues arising from the administra-
tion of railways and harbours, which are dealt with
separately) are paid into the Treasury of the Union.
All properties and rights belonging to the govern-
ments of the colonies which enter the Union,
including even property incidental to the duties
cast upon the Provincial Governments, are taken
over by the Union Government, and all their debts
and liabilities assumed by it. The Provincial
Governments will, for the time being, depend on
grants from the Treasury of the Union, except in so
far as they may exercise their power of imposing
direct taxation, which they will be in no hurry to
do, if we may judge from the example of Canada.
As soon as the Union is established a commission
is to be appointed, consisting of one representative
from each province, and presided over by an
officer from the imperial service, to report upon the
financial relations which should exist between
the Union and the provinces. Until this com-
mission has reported and Parliament has acted
upon its report, the Provincial Governments will
be entirely dependent upon the Union Treasury.
For the expenditure of any grants they will be
completely responsible to the Union Government ;
their estimates must be approved by that Govern-
ment ; and their expenditure will be audited by its
officers.

All government centres in finance. There is

ix FINANCE AND RAILWAYS '•!

no doubt that the Convention, whether deliber-
ately or nut. has by means of the financial pro-
•as of the Constitution sealed the a
he Union Government over the provinces,

They aiv held in a \ in- and tin- I.TIIIIT ha* -imply

to tutu t !,r screw in order to secure its ends.

The elaborate provisions with regard to the
administration of the railways and harbours of
the Union, which are without parallel in any other
(Constitution, are a good indication of the
immense importance of the administrative side of
a modern state. They point equally to the dangers
which experience has shown to arise when a
government becomes responsible for the adminis-
um of commercial undertakings. The peculiar
evils to which the state administration of railways
is subject are fairly well known both in Australia
and South Africa. They are probably less appre-
ciated in England. In Australia political inter-
ference and jobbery became so rampant that in the
attempt to stem them drastic changes in railway
management were found necessary. The railways
were placed under the control of independent
rnmmissioners, relieved as far as possible from
the pressure of political interference. This system
of management is no doubt not perfect, but it has
spread throughout the Australian i-olonir>. and
once tried has not been abandoned. Responsible
Australian statesmen who have had experience
both of the former system and of the system of
management by commissioners have no

92 THE UNION OF SOUTH AFRICA < n

in expressing their decided preference for the latter.
In South Africa the evils of political interference
have not been so glaring, but they have not been
absent, and under the ordinary system of minis-
terial control they are likely to increase in the
future. A single idea — the prevention of political
jobbery and the administration of the railways
and harbours, so far as is possible for a govern-
ment undertaking, on commercial principles — runs
through all the railway provisions of the constitu-
tion. It is an attempt, much in the same way as
the provision in the schedule that the native protec-
torates shall be administered by a commission, to
save democracy from itself. In the first place the
railways are to be managed, subject to the authority
of the Governor-General-in-Council, by a board
consisting of not more than three commissioners
to be appointed by the Union Government and by
a minister who is to be chairman. The commis-
sioners are protected by being appointed for a
period of five years and by not being subject to
removal before the expiration of that period
except by the Governor-General-in-Council for
cause assigned, which is to be communicated at
once to both Houses of Parliament. Their salaries
are not to be reduced during their term of office.
The success or otherwise of this board will depend
on the class of men appointed as commissioners.
The management of a railway system of many
thousands of miles is a vast undertaking requiring
special knowledge and capacity for organization,

ix I I NANCE AND RAILWAYS 93

and it the poets are to be the perquisite* of poli-
ticians without any particular qualifications,
the scheme will fail. All revenue from the •
ways and harbours is to go into a separate fund,
i ml is to be used only for the purposes of tin
railways, ports, and harbours. Their earnings
are not to be more than sufficient to meet Un-
necessary outlays which must be incurred in
thru proper administration, and they are to
be administered, as the Constitution quaintly
says, * on business principles, due regard being
had to agricultural and industrial development
within the Union, and the promotion, by means of
cheap transport, of the settlement of an agricultural
and industrial population in the inland portions
of all p es of the Union/

A curious commentary upon these provisions,
in indication of the great importance of the
railway question, is the reference in the Constitution
to the division of the traffic to the Rand (Section
148 (2)). In a previous chapter the difficult !«•>
arising out of this question have been referred to.
Some time before the Convention, the Transvaal
Government had commenced negotiations with the
Portuguese authorities for the conclusion of a new
treaty to take the place of the temporary modus
vivendi of 1901 ; but as the questions dealt with
intimately affected the other colonies, nothing
was settled until there had been an opportunity
of consulting them during the Convention. It
was an open question, whether it was to the

04 THE UNION OF SOUTH AFRICA CH.

interest of any colony that a new treaty should
be concluded at all with the Portuguese, or whether
a South African government, negotiating with the
full force of a united South African opinion belli nd
it, might not have been in a position to secure
better terms.

But apart from certain reasons which made the
Transvaal Government anxious to conclude a
treaty, that step was rendered inevitable by the
insistence of the Natal Government on a fixed
proportion of 30 per cent, of the Rand traffic for
Durban. So long as the modus vivendi was in
existence, no such guarantee could be given to
Natal without a breach of faith with the Portuguese,
and when an agreement between the colonies was
concluded at Cape Town in February (the agree-
ment referred to in Section 148), by which 30 per
cent, of the traffic was secured to Durban and
20 per cent, to the Cape ports, a new treaty
was inevitable. Negotiations were accordingly
completed by the Transvaal and Portuguese
Governments, by which the Portuguese continued
to grant facilities for the recruitment of native
labour, and Delagoa Bay was secured for ten
years in the possession of that portion of the
railway traffic not divided between the Cape Colony
and Natal. The publication of the treaty, how-
ever, led to a storm of protests throughout South
Africa, and particularly in Natal. At one moment
it looked as if the Union itself was jeopardized.
Natal opinion was intensely suspicious, and at

ix r I NANCE AND RAILW.U <c>

the same time ill-informed. All aorta of danger*
to NataTs prosperity were imagined, which had
no foundation m fact But on reflection it was
recognized that the evils of the treaty had been
exaggerated, and that, however distasteful it was, it

had heen rendered inevitahle hy Natal's drt«-rmina-

not to enter the Union without a guarantee of

traffic. It was clear too that Durban would in any

rase he hetter otT than it is now. None the le»,
although the best may have been made of an un-
satisfactory business, the arrangement by \\hieh
the whole traffic is divided in certain fixed pro-
ions between the ports is obviously not con-
ceived on * business principles ', and will be
dilVieult to work.

ihe Constitution provides elaborately that if
the Board of Commissioners is compelled by
IV i i-l iament to build unremunerative new lines, or
to grant unremunerative concessions, the loss
Ived is not to fall on the railways, but is to
be met by grants to the railways by the Gov
ment. These safeguards were prompted by some
discreditable incidents in past railway hist
particularly in the Cape Colony. Finally, the
railway staff is to be under the sole control of the
Board, and is not suhjeet to review hy the eommis-
sion which is to report upon the remainder of the
public service.

It is manifest that the intention of all these
clauses is to separate so far as possible the adminis-
tration of the railways from the remaining func-

96 THE UNION OF SOUTH AFRICA

tions of government. The inland colonies have,
in the past, suffered from the imposition of high
railway rates by the coast colonies, and the
railways have always been used very largely as
instruments of taxation. In the future all this
will be impossible. The railways are to be worked
at cost, and if it happens that any surplus remains
that surplus cannot go to meet non-railway ex-
penditure by the Government, but is secured to
the railways for their own purposes. The policy
here laid down is in marked contrast to that of
other countries owning state railways, e.g. Prussia,
which raises immense sums by means of railway
rates for the ordinary purposes of government.
But in a country of vast area, depending largely
on imported articles, taxation through the railways
is obviously unfair to the dweller in the inland,
and the policy of the past has been most unpopular
in the Transvaal. It was for this reason that
General Smuts, much to the indignation of the
coast towns, designated these clauses as the Magna
Charta of the interior.

< 1 1 AFTER \

THE NATIVES

THERE waa no part of the Constitution which
the Imp.-rml Parliament waa bound to scrutim/r
\\ith more care, or with which it waa more certain
that it could not interfere, than that relating to
natives. The parliamentary debates at West-
minster were indeed practically confined to this
aspect of the bill. Many speakers, anxious to
vindicate the ancient claim of Parliament to act
as the protector of the inferior races throughout
the British possessions, resented the imputation
that Parliament might disapprove, but could not
amend. Hut they failed to appreciate that new
i it ions had arisen. Old wine will not go into
new bottles. To most speakers the true nature of
thr problem before them was not clear. It may,
therefore, be useful to anticipate reference to thr
provisions of the Constitution itself by an attempt
to elucidate the position of the Imperial Parlia-
ment towards South Africa in this matter.

in order to avoid confusion, it is well to explain
in what sense the terms ' coloured men ' and
4 natives ' are used in South Africa. A ' coloured
man ' is not a Kaffir. He is a person of mixed
white and black blood. 4 Coloured men ' var\
colour between all the shades which are not quite
white or quite black. They are numerous only

<>8 THE UNION OF SOUTH AFRICA CH.

in the Cape Colony, and particularly in the en-
virons of Cape Town. The majority of them are
the product of a cross not between Europeans and
Kaffirs, but between Europeans and the former
slaves or Hottentots or Malays. In this chapter,
therefore, it is necessary to distinguish between
pure-blooded Kaffirs and persons of mixed blood.
The term ' coloured men ' will be used for the
latter. On the other hand, the terms ' natives ',
' black men,' and ' coloured races,' will, for pur-
poses of convenience, include ' coloured men ' as
well as Kaffirs, unless it is otherwise stated.

Mr. Balfour truly said that the relations between
the races of European descent and the dark races
of Africa present a problem of the most extra-
ordinary difficulty and complexity, one entirely
novel in history, and to which there is no parallel
in the memory and experience of mankind. He
might have added with equal truth that it is in
South Africa that the problem reaches the zenith
of its difficulty and complexity. For in the
United States, formidable as the problem is, the
position of the white man is at least secure. The
white population vastly outnumbers the blacks.
In the West Indies, on the other hand, the white
population hardly claims or hopes to be more than
a garrison. But in South Africa the white man,
faced by tremendous odds, and outnumbered by
five to one, has founded and is striving to maintain
and strengthen a civilization and a polity which
will do shame neither in its freedom nor its

x THE NATIVES w

morality to the tradition* of hia race. The
\\hiu- iurn in Smith Africa are no longer merely
a garrison. One hundred yean ago there were
but a few thousand of them ; to-day they number
over a million. What they may attain to in
future, and to what extent South Africa can ever
become a white man's country, cannot be foreseen ;

they have already reached the maturity of
a nation, and they cannot be denied the constitu-
tional freedom to which their status entitles them.
Thus a situation has arisen the significance of
which has not hitherto been fully grasped. The

sh nation has been singularly successful in the
past in its government of inferior races. In Asia
and in Africa it may lay claim to a record to which
no other nation can pretend. But its success has
been invariably proportioned to the simplicity of
the racial problem with which it has been faced.
Where there has been no question of competition
between white and black, it has attained unex-
ampled success by capable administration and by
the application of certain simple principles of
liberality, justice, and humanity. It has been
mui h less successful where white men and black
are living side by side. Even when the white
population has been comparatively small, as in the
early days in the Cape Colony, and as is now the
case in British East Africa, government from
Downing Street has been accompanied by incessant
trouble. Many of the calamities of South African
history have sprung from this cause. As the

o 2

100 THE UNION OF SOUTH AFRICA < n

white population has increased, so has the diffi-
culty of the task, until a stage is reached when
the attempt is perforce abandoned, and the colony
is granted self-government. But hitherto, in the
case of South Africa, self-government has never
been granted without a reservation in the minds
of certain sections, at any rate, of the British
public. They admitted that the white popula-
tion of the colonies must be allowed to determine
its own affairs ; they did not admit that the right
extended to the government of the native popula-
tions in their midst. They said in effect, ' You
may govern yourselves, but the government of
the inferior races is in the last resort our affair.'
They did not see that their claim, though a plausible
one, reduced self-government to a mockery, since
there is no political question in South Africa which
does not bear upon the native question, and beside
it all other problems sink into insignificance. The
British Parliament might as well be restricted
from legislating for women. Thus the Liberal
party, while granting self-government with one
hand, was in danger of taking it away with the
other. On two grounds only could they defend
their position. They must argue that the colonies
were either too weak to undertake the government
of the inferior races, or, if they were not too weak,
that they were unfit from some inferiority of
moral character, or from an ignorance of the
true principles of political freedom. The first
argument has hitherto had much weight, but

x i HI: NATIVES 101

henceforth it will fall to the ground. A stigma
.sin -h as IB implied by the second could be admitted
only by a people too weak to resent it.

But not only is the arrogation by the Imperial
Parliament to itself of the right to determine native-
policy inconsistent with the grant of full self*
government; it is also imjMissible to put into
practice. A free people can never consent to be
governed by a parliament sitting 6,000 miles away,
in which they are not represented. It is useless
to toll them that the I in j.« rial Parliament claims
only to govern the black population, not the
white. Every South African knows that from the
conditions of the problem such a claim is meaning-
lees. The man who wears the shoe alone knows
where it pinches. The proper handling of the
native problem is a matter of life and death to
the inhabitants of South Africa. They cannot
be expected willingly to entrust it to those who
have no immediate responsibility, and who
would not suffer in life or property from any
mistakes they might make. It would be like
asking the British nation to submit its naval
policy to the determination of South Africa. Any
attempt, indeed, to impose on South Africa a policy
to whir h it is strongly opposed can only be carried
through by coercion.

Parliament was, therefore, on every ground
well advised to show by its action that the grant
of self-government had been made completely
and u ithout reservation. The least calamity that

102 THE UNION OF SOUTH AFRICA CH.

must have followed from any other course would
have been the postponement of union. The
failure to reach the goal they so ardently desired
would have been placed by South Africans at the
door of the natives. Discord would have been
sown between white and black, and South African
( > j > i n ion might have become permanently embittered
against the Government of Great Britain.

All this has been said without reference to the
question whether South African opinion is or is
not more enlightened than British opinion. As
Mr. Balfour said, the British Parliament must
have a different perspective to that of South
Africa, perhaps truer in some respects, certainly
less true in others. One may freely admit that a
great deal of South African opinion is ignorant,
unintelligent, and crude. The man in the street
and the man on the veld seldom realize even the
elements of the stupendous problem with which
they are faced. The policy which attracts them
is often one of simple repression. Take away
from the native the lands which he possesses, and
there will be more compulsion upon him to work
for the white man. Do not educate him, or
else he will become too independent. Keep him
in his place. That is the simple creed of the
average white man. He fails to see that in his
own interests it is fatal. For, if the black man
sinks, he will inevitably drag the white man with
him. The Kaffirs too now number six millions.
They will soon number ten and twenty millions.

x THE NATIVES 103

By raising in their breast* a sense of wrong the
\\hit.- in ui uill merely be digging hia own grave.

Nevertheless, the germ* of a sound public opinion
exiat. In Gape Colony a truer view of the object*
and methods of native administration has prevailed,
the influence of a few enlightened men has
been a remarkable leaven on the ^eneral opinion
"i" the colony. It is therefore probable that this
pcooets will be continued with equal success on
the wider stage of the Union.

In this gradual development of opinion lies the
best hope for the future. It was impossible with-
out union, since no common native policy was
possible. The varying policies of the different
colonies merely reacted on one another, and
•lengthened their antagonism. Nowhere, indeed,
are the benefits of union likely to be greater or
more permanent than in the matter of the natives.

But whatever may be our view as to the relative
enlightenment of South African and British opinion,
that is a matter, as will be clear from what has
been said, \\hich has no practical bearing on the
question of imperial interference. South Africans
must find their own salvation. Any attempt to
coerce them into the right way will merely con-
firm them in their course. They must be left to
reap wisdom from their own experience.

But, although happily no amendment was made
in the provisions relating to natives, the fact that
they have been described in the Imperial Parlia-
ment as illiberal, unjust, pernicious, and retro-

104 THE UNION OF SOUTH AFRICA CH.

grade, makes it necessary to see what they are.
An impartial study of them may lead to a milder
conclusion. Mr. Keir Hardie stigmatized the
bill as one ' to unify the white races, to dis-
franchise the coloured races, and not to pro-
mote union between the races in South Africa '.
He is both right and wrong. The coloured races
are in no way disfranchised, but it is perfectly true
that the bill is not intended to promote the union
of the black race and the white. No one with
a knowledge of South Africa could suppose that
any constitution could do that. The intention of
the bill, as Mr. Hardie says, is to unite the white
races. If an attempt had been made to find in
it a solution of the native question, it must un-
questionably have failed. Its success, as its
framers well knew, could be achieved only by
leaving the question of the native franchise
where it was. And this is what is done. The
provisions relating to natives have all the one
object of not prejudicing the question before
it can be dealt with by a South African
Parliament fully representative of South African
opinion.

Let us consider what those provisions are. In
the first place as to the franchise. As matters
stand, the franchise is reserved in the Transvaal
and the Orange River Colony to white men ;
in Natal a native can obtain a vote, but under
restrictions which make the privilege to all intents
and purposes nugatory ; in the Cape Colony any

x I HE NATIVES in:.

man* whether white or black, who has a certain
property qualification, and can write hi* name, is
< -n titled to vote. The position ia further compli-
cated by the present British Government's grant
lanhood suffrage to the Transvaal and Orange
<T Colony. If the Convention had wished to
create a uniform franchise throughout South Africa,
it had various alternatives before it. First, it
might have abolished the colour line and extended
t liroughout the Union the Cape franchise for \vlnt<
men and black. As every one knew, this course
was impossible. It would have been universally
rejected by the population of the north. And not
merely because it gave votes to coloured men and
Kaffirs. It involved also of necessity the dis-
franchisement of a certain number of white men,
at any rate in the Transvaal and Orange River
Colony. Nor did it commend itself to unpre-
judiced men who recognize that some form of
representation must be given to the black races.
In the debates in the Imperial Parliament few
members seemed to doubt the complete success of
the Cape franchise, but, as a matter of fact, com-
petent observers in South Africa deem it open to
the gravest question. t'aj>e native administration
has indeed been excellent, but it is much to be
doubted whether its excellence is in any way the
result of the native vote or whether the present
franchise affords a proper test for civilization. It
is said, for instance, that agents of both political
parties are accustomed, when a native, who is

106 THE UNION OF SOUTH AFRICA CH.

otherwise qualified, cannot write, to tench him to
draw his name, and that in this way many natives
without any sufficient education are on the roll.

It was equally impossible for the Convention to
extend the manhood suffrage of the Transvaal
and Orange River Colony over the Union, at any
rate without abolishing the native franchise alto-
gether, for not even the most ardent negrophilc
was prepared to enfranchise the teeming savages
of Zululand, the Zoutpansberg, or the Transkei.

Thus, if there were to be no colour bar within
the Union, the extension of Cape franchise meant
the disfranchisement of white men, the extension
of the Transvaal franchise the enfranchisement of
savages. It remained to devise an entirely new
franchise, and some new test of fitness, more
efficient than the Cape franchise, had to be dis-
covered.

Now this problem is the most difficult and
critical of all those which face South Africa. What
was the test of fitness to be ? Was it to be the
same for white men and black ? There is much
to be said for the view that the ' civilization ' of
a Kaffir needs to be tested by means quite different
from those which are sufficient in the case of
white men. If, however, the test were the same,
what became of the manhood suffrage in the
Transvaal and Orange River Colony ? Obviously
some of the white voters in those colonies must,
in this case also, have been disfranchised. Again,
if a black man has a vote, is not a white woman

x I HE NATIVES 107

entitled to one? And if white and black man
and white woman have votes, on what ground in
tin- privilege to be withheld tr<>m u... ;. women ?

H the true policy separate representation for
the coloured races ? All these are questions which
must he faced in the future, hut for deriding \s hicli
South An uais certainly not ripe now. Isitconceiv-
able that they should have been settled by the
('on \rnt ion without public discussion or time for
thought, as part of a compromise made for the
sake of union ? Any attempt to do so must infallibly
have failed. The Convention, therefore, wisely
decided to do no more than protect adequately
the rights of the coloured voters in the Cape
Colony, secure that Parliament should include
men well acquainted with native conditions of

md requirements, and leave the rest to the
future. No bill amending the Cape franchise law
to the detriment of the natives or coloured men

be passed without a two-thirds majority of the
whole Parliament, and in no case can any voter
id uaily registered be deprived of his vote by reason
of his race or colour. Otherwise the various fran-
chise laws remain as they are in each colony.

A regrettable concomitant of the compromise
on the question of the franchise was the decision
that only men ' of European descent ' should be
< 1 11,1 lifted to be members of Parliament. Since
natives in the Transvaal and Orange River
Colony were to have no franchise rights, it would
have been illogical to have given them the privilege

108 THE UNION OF SOUTH AFRICA CH.

of sitting in Parliament, seeing that they had not
even a vote. Obviously the two things went
together. The same thing was to all intents and
purposes true of Natal. An alternative was to allow
the privilege to natives and coloured men in the
Cape Colony alone. But although such a course
might commend itself to liberal men, it was certain
that the population of the northern colonies would
strenuously oppose the possibility of a black
man, to whom they would not give a vote, helping
to make laws for them. The Convention was pro-
bably right in concluding that union itself would
be menaced by the insertion of any such provision.
And illiberal though the exclusion of all coloured
men is, it involves no practical hardship to the
natives. Hitherto natives and coloured men have
been qualified for membership of the Cape Parlia-
ment. In fifty-five years there has been no single
example of the election of either. Moreover,
while they are excluded from the Union Parliament,
they may still sit in the Cape Provincial Council.
And, lastly, this matter will undoubtedly require
to be reconsidered when Parliament deals, as
sooner or later it must, with the native franchise.
The two questions hang together. If a fair solution
is reached upon the franchise, whether in the
direction of separate representation or not, it is
certain that any grievance which natives or
coloured men have in the matter of eligibility to
Parliament will be likewise redressed.

Nevertheless it is impossible to deny that some

THE NATIVES

he coloured or half-caste population, particu-
larly in the Cape peninsula, are fully a* well fitted
aa many white men to become members of Parlia-
nd it is regrettable that it should have been
found necessary for greater ends to place upon
t li'-m a disability which they feel as a stigma.

It is very probable that the interpretation of
the extremely vague term ( of European descent *
will lead t<> difficulties, and will require definition
by the courts. The Convention must have been
aware of this probability. It was indeed impos-
sible to devise a term which was at once compre-
hensive and free from ambiguity. There are
many gradations between pure black and pure
white. The members of the Convention presum-
ably were not ready to say in so many words that
no man, who could be proved to have a trace of
black blood in him, should sit in Parliament.
They were therefore content with a phrase which,
\\hile its final interpretation must be left to the
fut u iv, \\ill at any rate secure their main purpose.

The South African public are right in treating
the question of the franchise as of fundamental
importance. It goes to the roots of society. A
man's opinion upon it must inevitably depend
upon the view which he holds on the whole rela-
tion between white men and black. On this
great question there is yet no settled opinion in
South Africa and time must be given it to make
up its mind. The most diverse views are held as
t<> tiu- future place of the black man in the social

110 THE UNION OF SOUTH AFRICA CH.

organism of the country. One school advocates
the policy of segregation. It holds that natural
tendencies will always separate the two races and
that Government should actively encourage tin-in
by settling the black population in the lower and
warmer regions of the country, in which the white
man does not flourish, while reserving the high veld
for the white races. An essential of this policy is
that the natives should be left in possession of the
land in those parts of the country which are set
apart for them, a condition to which many white
men would strongly object. To many, again, it
appears doubtful whether complete segregation
can ever be reached, though they have before
them in Basutoland and Bechuanaland indications
that the development of the Kaffir is sounder
when he is removed as far as may be from contact
with the white man. Others are opposed to the
whole idea. They, believe that the two races,
if not destined in the far distant future to form
one, must at least make up their minds that
they have to live together, and that the sooner
this fact is faced the better. They demand that
any tentative attempts at segregation such as
the maintenance of the protectorates of Basuto-
land and Bechuanaland should be forthwith
abandoned. If this view is correct, somehow
or other some place in the social organism must
be found for the black man. Crude repression
and sentimentalism will both fail. The Kaffir
cannot be treated either as an equal or as a child.

x THENATI\I> 111

Mm in the complexity of modern civilization it
must be confessed that at present he IB more of
a child than a man. With the exception of
a very limited number of educated natives, the
Kaffirs have not the vaguest idea of what parlia-
mentary government means. They have never
heard of the franchise and do not want it. The
••nt Britons of Caesar's time would be more
capable of understanding the British Constitution
of to-day than the Kaffirs of giving an explanation
of the South Africa Act.

Thus the backwardness of the Kaffirs and the
divided opinion of white men are both arguments
for deliberation. No immediate solution can be
expected, and the pitfalls into which other countries
have fallen demonstrate the need of the utmost
caution.

The remaining important question relates to
the future administration of the protectorates
of Basutoland, Bechuanaland, and Swaziland.
Hitherto they have been governed by the High
Commissioner on behalf of the Imperial Govern*
mm!. Their administration has been successful.
The natives are satisfied and do not wish for any
change. In Basutoland at any rate they are
rapidly advancing in wealth, and are acquiring the
first elements of civilization under happier auspices
than elsewhere, for their seclusion helps them to
resist the worst vices of the white man. But in
time it is inevitable that the government of thsje
countries should be entrusted to the people of

112 THE UNION OF SOUTH AFRICA CH.

South Africa. In the opinion of the Imperial
Government the present moment was proper for
the determination of the conditions upon which the
ultimate transference of the administration of these
countries should take place, and it was therefore both
the right and the duty of the Imperial Parliament
to see that safeguards sufficient to secure good
government were inserted. The protectorates are
different both in their physical characteristics, and
in the races which inhabit them. Basutoland is
a rich but mountainous country. It is thickly
populated by a warlike and energetic race. Bechu-
analand on the other hand is a dry flat bushy
country, a large part of it desert, and its inhabitants
have neither the energy nor the capacity of the
Basutos. No white man is allowed to acquire
land or settle permanently in Basutoland or the
Bechuanaland Protectorate. Swaziland is in its
physical characteristics more akin to Basutoland,
but in reality presents a problem entirely different.
For two-thirds of Swaziland now belong to white
men. The white population is growing, and in
time to come it will be impossible to govern
Swaziland as if it were a purely native country.

For the present, however, the Imperial Govern-
ment has thought it well to treat all three
countries on the same footing. It has recognized
that when the day of transfer comes, there must
be no sudden transition in the form of government.
The place of the High Commissioner will be taken
by the Prime Minister, assisted by a Commission,

x THE NATIVES 113

constituted very much on the lines of the India
Conm-il. In all probability tho existing form of
ad in i lustration will continue almost unchanged.
All native authorities are agreed in the opinion
that personal government of some form or other
affords the best hope of the successful administra-
tinn of native territories. A native cannot under-
stand why his rulers should be constantly changing,
as they do under responsible government. H<
has no sooner learnt to look up to one man as his
ruler than he finds another in his place. The
Commission will ^i\< the new form of government
the very necessary characteristic of permanence.
Safeguards for seeurin^ to the natives their land,
and for prohibiting the sale of liquor have been
properly inserted. The Protectorates are not
secured in the Act against the imposition by the
Union of hostile tariffs or high transit duties.
But there is no reason to suppose that they will
not be as fairly dealt with in the future as they
have been in the pa-
It is quite possible that some time may elapse
before the transfer of any of these territories.
Before any such step is taken, the Imperial
Government will have to be clear that it is
desirable. But eventually it must be taken, and
wluMi that day comes, the provisions of the Act
will fully safeguard the interests of the natives.

BIAND

CHAPTER XT

GENERAL REFLECTIONS ON THE
CONSTITUTION

THE most striking characteristic, perhaps, of
the Constitution is its trust in the future. In
other countries people and states have usually
been most loth to part with one tittle of their
independence or individuality, and constitutions
have for the most taken the form of very definite
contracts of partnership setting forth in precise
language exactly what each partner surrenders
and what he retains. The partners have generally
been full of suspicion both of one another and of
the new Government which they were creating.
There is little of this spirit in the South Africa
Act. The people of South Africa are, in General
Smuts's words, called upon to pool their patriotism
as well as their material resources. Undoubtedly
there are plenty of compromises, but they are for
the most part of a temporary nature, intended like
wheels for an aeroplane, to enable the unitary ship
of state to get fairly started on its way. They do
not jeopardize first principles. The spirit of trust
in the new government to be created is evident in
every part of the Act. Its most striking mani-
festation is in the principle of the supremacy of
Parliament ; but it is apparent also in the willing-
ness of the colonies to assent to the complete

\i GENERAL REFLECTIONS 115

repeal of their present constitutions ; in the po\\er

granted to Parliament to recreate the Senate in
any form it likes at the end of ten yean ; in the
deter n 11 to leave the supremely important

question of the financial relations between the
central government and the provinces to be settled
by Parliament. The Constitution breathes also
a new spirit of trust between the two dominant
u lute races. In the future there is to be equality
of opportunity. ' Equal rights * are to apply,
not only to votes, but to language also. The
Constitution carefully avoids any suspicion of the
dominance of one race over another. It was even
decided to return to the name ' Orange Free
State ', which is so dear to the hearts of the Boers
of that colony. Whatever their opinions may
have been in the past, South Africans are fairly
well agreed that in the future equality is the
only road to peace. They recognize that the
two races, equal as they are in number and in
influence, must live together. Neither can hope
to attain an ascendancy over the other. The
best that can be done is to remove all causes
of bitterness and distrust and to leave the issue
to the incalculable forces of the future. No one
supposes that in the future racial antagonisms will
cease to cause political strife, or that bilingualism
will ever be anything but a curse. But racialism
need no longer be the dominant issue in politics, and,
that once gained, the rest may ultimately follow.
An eminent historian has remarked that * the

H 2

116 THE UNION OF SOUTH AFRICA CH.

success of most great political operations will, if
narrowly examined, be found to consist in the
fact that they are carefully circumscribed in scope
and divested of embarrassing and inflammatory
matter \ The South African Union will probably
be a testimony to the truth of this saying. The
Constitution is lengthy ; sometimes it descends
into minute detail. Nevertheless, all its pro-
visions are strictly germane to its great object.
It sets up a framework of union ; it creates a
government strong enough to cope with the
harassing problems which afflict the country, but
it wisely makes no attempt to settle those problems
itself. The question of the franchise, including
the native franchise, a premature settlement of
which at this stage must indubitably have wrecked
union, is left in statu quo ; the problem of Asiatic
immigration is not mentioned ; no attempt is made
to bring about uniformity in taxation or in law.
Its fundamental provisions are framed on broad
and simple lines, and no extraneous questions
are raised to distract public attention from the
main issue.

Other striking aspects of the document are its
modernity and its curious mixture of conservatism
with democracy. It is not ' advanced ' after the
fashion of the Australian Constitution. ' The
people ' are mentioned but once, and then only
casually in a somewhat unimportant financial
provision adopted verbally from the Common-
wealth Act. The constitution of the Senate is

M GENERAL REFLECTIONS 117

essentially undemocratic. On the other hand, the
enshrines some of the latest devices of
democracy, such as 4one vote one value', auto-
matic redint 11 inn ;..!!, and proportional representa-
tion—devices which the Prime Minister of the
Cape Colony, to whom advanced democrat
personally abhorrent, has elegantly described as
iculous democratic ideas9 and 'mischievous
jim-jams '.

It is the spirit of a people and the wisdom of
their leaders which determines the success or
failure of any instrument of government. The
South African people, few as they are in number,
are composed of diverse elements. The popula-
tinn of the towns, particularly Johannesburg, is
mercurial in its temperament. If the share-
market is cheerful, Johannesburg troubles itself
little about its government. If it is depressed
there is nothing which it does not criticize. In
the gloomy times of !!>< 4 it was said that if a man
had a bad hand at bridge he cursed Lord Milner.
There is no place in which a more sudden and
violent agitation can be raised. Nevertheless, the
town population is composed of sound elements,
democratic, progressive, conciliatory, and anxious
for good and clean government. It can be trusted
in the future staunchly to support the well-tried
methods of British administration. Dutch political
idaao, on the other hand, are different. In the
Transvaal one might almost say that the clan
system still lingered, with all its virtues and faults.

118 THE UNION OF SOUTH AFRICA

The Boers are democratic, but not in the modern
manner. Their passion for independence and
self-government is equalled by their detestation of
licence. They look for a leader who is worthy of
their confidence, and, having found him, they are
content to leave all ordinary matters of govern-
ment to him. Such a method of government,
impossible as it would be in any but a com-
paratively simple community, has the conspicuous
merits which historians tell us are to be found
in a benevolent despotism or the German tribal
system. But in this form of government every-
thing depends on the qualities of the leaders.
The despot must be wise as well as benevolent.
Therefore it is sincerely to be hoped that those
statesmen who have earned the confidence of
the people of the Transvaal, and whom popular
rumour credits with the larger share in the work
of the national Constitution, may equally earn
the confidence of all South Africa, and help to
shape her destinies during the forthcoming critical
years. But, whatever the future, one may predict
that it will be long before South Africa suffers from
those political excesses to which the city democracy
of to-day is prone, and for the simple reason
that the whole white population is itself an aris-
tocracy ruling as inferiors the subject and vastly
larger Bantu population. In such a society every
white man is a member of a superior race, and
where the proletariat is black, extreme democracy
will never thrive.

CHAPTER X 1 1

THE FUTURE OF PARTIES

IN his book on Canada Mr. Goldwin Smith
makes the following remark : ' The absence in the
debate on Confederation of any attempt to fore-
oast the composition and action of Federal parties
t.t tally detracts from the value of the discussion.
iiBtralia or any other group of colonies thinks
of following the example of Canada, a forecast,
as definite as the nature of the case will permit,
\nieral parties will be at least as essential to
the formation of a right judgement as the know-
ledge of anything relating to the machinery of the
Constitution/

Whatever one may think of this sweeping state-
ment, it is no doubt interesting to reflect on the
probable future of parties in South Africa during
ill*- next few years. At the same time to make
a prediction of any value is a matter of extreme
difficulty. One can but indicate possibilities.
For what principles are parties likely to stand ?
Where will the dividing line be drawn ? What
are the questions which will be fought out in
tin political arena? The observer who takes the
past as his guide will notice the strong tendency
in South Africa towards the two-party system.
!imy ignore in his inquiry Natal and the Orange
River Colony. The population there is too small
and homogeneous and the preponderance of one
of thr white races over the other too marked to

120 THE UNION OF SOUTH AFRICA OIL

afford scope for proper party divisions. In the
Cape Colony, however, groups have never been
powerful and Parliament has usually been divided
into two well-defined parties. Responsible govern-
ment has brought about a similar result in the
Transvaal. There is every likelihood, therefore, of
the two-party system continuing. Independents
are not popular, and it will be long before the labour
party can throw much weight into the scale.

In the past the two parties have found their
main line of cleavage in race. The Progressives
in the Cape and the Transvaal are the British
parties ; the Bond and Het Volk are the Dutch par-
ties. There are Englishmen in the Dutch parties
and Dutchmen in the British, but these are
the exceptions which prove the rule. It is gener-
ally taken for granted that the first elections will
follow broadly the present line of cleavage. It is
assumed that existing party organizations will be
maintained, and that the Dutch parties, the Unie
in the Orange River Colony, Het Volk in the
Transvaal, and the Bond in the Cape Colony, will
be found on the same side, while the majority in
Natal will range itself on the side of the Pro-
gressives in the Transvaal and Cape Colony.
Certainly such a result would seem to be only
natural, if only because the natural tendency of
existing party organizations will be to exert
a strong force in that direction. It would be
absurd, too, to suppose that the racial division
between British and Dutch, which permeates the

xii THE FUTURE OF PARTIES 121

whole life of the country, in language aa well aa
religion, and which muat colour the conaideration
v important political queationa, will be at
once obliterate l. It muat play a large part in
party division* for a long time to come. Thia ia
all the more certain from the fact that the racial
ion \\ill mcide roughly \vith the line of
cleavage between town and country, which ia at
present perhaps the next most fundamental «.
MOM in the social and political life of the country.

Yet the possibility of some grouping of parties
not on present lines should not be dismissed aa
inconceivable. According to the Constitution, th<-
first act of the Governor-General must be to send
for a leading South African statesman to form
a miniMrv, and he must, it would seem, make his
selection from the parties at present in office.
ii will (It pt IK! on his choice of persons. The
statesman \\hom he summons will have more
than one alternative before him. He may aim
first at forming a coalition ministry, containing
the leaders of both races; and there is much to
be said for such a course.

The Constitution imposes an immense burden
upon the first Union Government, and few even
in South Africa realize the greatness of the task.
The Constitution itself is but a skeleton, and its
bones must be clothed with flesh. The first yean
after Union will therefore be critical for the South
African nat A Government is needed which

ia resolutely determined to look with a single eye

122 THE UNION OF SOUTH AFRICA tiftt

to the progress and development of the country,
and which is strong enough to ignore personal
differences, and to deal with the many problems
before it with absolute impartiality, and without
reference to race. Certainly it would seem that
only a coalition Government is likely to be able
to carry such a policy into practice. It alone
would start without bias towards either side.
Failing a coalition, it may be difficult to avoid
some recrudescence of racial feeling. But this is
exactly what the best men on both sides wish to
avoid. Not only would it undo much of the work
of the last two years, but it would stereotype
present racial divisions, and make the attainment
of any healthier composition of parties more
difficult. But there are weighty arguments on
the other side also. In the first place in any
coalition each party must go in on fair and equal
terms. This may well be impossible to arrange.
Then a coalition may come to grief, if it is not
founded on true community of aim. Any such
breakdown must intensify rather than mitigate
racial divisions. Again, all experience goes to
show that the health of Parliamentary Govern-
ment is damaged by coalitions. A strong opposi-
tion is as essential to the working of the Parlia-
mentary machine as a strong Government. In
the building up of a new nation both a strong
Government and a strong opposition are needed,
and whichever party is in power, criticism, honest
but keen, is essential. With a coalition there

xii Mil FUTURE OF PARTIES

u < Mild be a risk of the settlement of vital question*
l'\ unsatisfactory compromises, entered into by
the leaders of both sides without any sufficient
public discussion.

1 1 , for whatever reason, a coalition Government
is not formed, the prospective I'
must choose his cabinet from his own party and
the partieH in sympathy \\ith him. This may be
no easy matter. In the first place, he will have
it most one party under his command, that,
namely, in his own colony. He will have to
negotiate with the others in the remaining colonies,
just as one independent nation negotiates with
another. Ami there are many delicate matters to
be settled, such as the distribution of portfolios
between the colonies, and the use to be made of
t hr considerable amount of patronage in the shape
of Administratorships and Commissionerships,
\\hirh the Government will have at its bestowal.

Furthermore, the parties at present holding
office, just as other parties, undoubtedly contain
a reactionary aa well as a liberal section, and the
< i .-ice of a leader and a programme equally
acceptable to both may be difficult.

Thus the task of the man who is called upon to
t<>im a cabinet will be no easy one. It the differ-
ences between the parties in the different colonies
or their leaders proved deep-seated, there might
be considerable difficulty in reconciling them, and
in forming a Government fully representative of
all of them. Yet such an outcome is perhaps

124 THE UNION OF SOUTH AFRICA CH.

improbable, since the forces against any disruption
will be strong. Public opinion will recognize the
rvil of starting the Union with a hopelessly weak
Government, and certainly no Government could
last, to which both existing parties, whether it were
in the Cape Colony or the Transvaal, were hostile.
It is likely, therefore, that the first cabinet will be
<<>mposed of members of all the present Govern-
ments. What its programme will be is another
matter, and will depend on the relative strength of
the influences within it. The elections will no doubt
be held as soon as possible after the formation of
the Government. It is useless, however, to attempt
to forecast their result. Much will depend on the
personnel of the Government and on the pro-
grammes which the different parties put forward.
Looking, however, beyond the immediate future,
one may already descry questions which may also
help towards the formation of other party com-
binations. First there is the division between
town and country. The towns will bear the taxa-
tion ; the country will want the money to spend.
The country will be united as one man against the
taxation of landed property or the imposition of
any burdens upon it. The country will generally
be conservative and the towns progressive. The
country will be protectionist, while the inland
towns at any rate will incline to free trade. On
the other hand, the coast towns, thinking that
industrial development will centre there, will
favour protection against imported manufactures.

\n THE FUTURE OF PARTIES 125

In this expectation they may be mistaken.
Modern industry generally goes where there is
cheap power. Owing to the abundance of coal
and the conditions of the mining industry, electric
power will be produced more cheaply near the
Rand than almost anywhere in the world. This
is a factor the effect of which may in timr »>••
far-reaching. The country again will as a whole
probably resist the active encouragement of
immigration ; the towns will favour it. Finally,
there must be reckoned the prejudice with which
all parts of South Africa view the Rand.

Nevertheless, although there will undoubtedly
always be differences of opinion between town
and country, too much must not be made of them.
It is in the Transvaal that the feeling of antago-
nism among the rural population towards tin-
towns was strongest. Yet it is now disappearing.
In the old days before the war there was a great
L'ulf fixed between the urban and rural popula-
tion. Under the dominance of President Kruger's
ideas, and incited by all the trouble to which his
methods of Government led, the Boers learnt to
hate Johannesburg and its population. They were
quite naturally ready enough to make what money
they could out of the Rand. But they merely
wished to squeeze the orange, and then throw it
away. Both they and their President were re-
luctant to admit that the great gold-mining
industry could ever be of any permanent value
to the country. Thus between town and country

126 THE UNION OF SOUTH AFRICA CH.

there was practically no intercourse. Neither
recognized that their interests were in reality
identical, and the progressive elements of tin-
t-owns had no opportunity to influence the intense
conservatism of the country. Nowadays all is
different. The farmers have awoken to the value
of the Rand as their market, and the Rand sees
that its interests are bound up with the general
prosperity of the country. Mutual knowledge
and intercourse is growing. The leaders of the
mining industry have shown in a practical manner
their desire to help the prosperity of agriculture,
and one of the largest agricultural shows in South
Africa is now held at Johannesburg. The former
contempt for the application of science to agri-
culture is disappearing, and farmers are becoming
keen to adopt the latest methods. All these
tendencies will help to draw closer together the
town and country population, and what is true
of Johannesburg is in a measure true also of other
towns in South Africa.

A further division will be between coast and
inland, which will cut across any division between
the provinces themselves. For a short time
perhaps provincial feeling may be strong, but any
division of parties based upon it, being unnatural,
can only be temporary. The interests of the
northern Cape Colony, for instance, are identical
with those of the Free State ; the interests of
Kimberley with those of the Rand. Transvaal
statesmen are determined to avoid the lop-sided

MI THE FUTURE OF PAKIIB8 127

concentration of wealth and industry in great
coastal towns which characterizes Australia, and
tii.-irdeteri! -n is reflected in the Constitution.

Their economic p<>li< \. m the matter of customs
duties, railway rates, and other means to their
hand, will be to foster development inland and
upon the coast equally. The coast towns will
probably resent what they may deem an inter-
ference with natural lawn. Hut if regard is had to
thr vast mineral wealth in the interior, whether
gold, coal, or iron, there is every probability that
the policy deserves to succeed and will succeed.

In addition to other questions not of immediate
importance, such as the antagonism between
capital and labour, between the propertied and
non-propertied classes, in a struggle between
uhirh. it it ever became acute, there would be
found on the same side the land-owners and the
mine-owners, there remain three main questions—
the native question, immigration, and the public
service — all of which must be dealt with in the
near future, and the first two of which might
cause a reconstruction of parties.

Any settlement of the native franchise will
raise the fiercest passions. No government will
touch it until they are compelled to, but, as it
cannot for ever be left in its present anomalous
position, sooner or later it must be faced. It may
result in quite new divisions in politics.

The encouragement of immigration, with which
will also be connected the proper treatment of the

128 THE UNION OF SOUTH AFRICA CH.

indigent whites, who are now being bred in large
numbers, is another matter of the first importance
if the white races are to make headway against
the black. There are difficulties in the way, but
they can be overcome. This cause will rally all
those who are in favour of active steps being taken
to increase the white population. It will probably
be taken up strongly by the party corresponding
to the present Progressive parties, and be resisted
by the Dutch, who, notwithstanding the ease with
which newcomers become South Africans in spirit,
have not yet got over their dislike of Uitlanders,
and by those, not a few in number, whose national
patriotism takes the narrow form of a belief
in South Africa's self-sufficiency and independence
of the outside world. The labour party, as in
Australia, may also resist any policy of immigration.
The treatment of the indigent white problem
will also probably divide parties. The problem
exists in practically all the colonies, particularly
in the Transvaal and the Cape Colony. The causes
which have led to the growth of a poor white class
are various. They were graphically described in
an able report published in 1907 by the Transvaal
Indigency Commission. Perhaps the most impor-
tant cause has been the continuous impoverishment
of the poor population by the grant of Govern-
ment doles. Grants of money or cattle or land
were the favourite means employed by President
Kruger of helping his ' poor burghers '. The In-
digency Commission irrefragably proved the hope-

xii THE FUTURE OF PARTIES

lessness of this method of combating the evil It
IB a remedy which merely aggravates the disease.
Nevertheless it ia one to which the popula-
tion are accustomed, and which naturally they
believe in to a man. The temptation, therefore,
for the Government to relieve for the time
being the pressure which their followers bring to
bear upon them, by the simple expedient of pour-
ing more money into this bottomless pit, is strong.
Indeed, it has often proved too strong.

I:, however, tin indigent whites are not to in-
crease and multiply in the future, and in the
present are to be rescued from their pitiable con-
(1 1 1 1 o n , t he proper remedies must be applied. Doles
will only demoralize both those who give and those
who receive. On political grounds alone they are
open to the strongest objection. But these are
principles which may appear hard to the party
u hi.-h by means of manhood suffrage the indigent
whites are enabled to do something to support.

The question of the public service, the main-
tenance of its purity and the manner of its re-
cniitiiu'nt, will require to be faced by the Union
Parliament almost at once. Every party is
equally concerned in its purity, but they will
probably differ as to the means to secure it.
Those representing the present Progressive parties,
if true to their traditions, will demand the appoint-
ment of an independent Commission, somewhat on
Australian lines, to determine recruitment and
even promotion. Another large party will pro-

130 THE UNION OF SOUTH AFRICA

bably favour the retention by the Government of
freedom in these matters. In the eyes of a large
section of the Dutch a Government is not worthy
of its name unless it can make appointments of its
own free will, and find posts for its friends and
supporters. The question is one of the utmost
importance. The pernicious ' spoils system ' is
ruinous to any country. It is a danger of a pecu-
liarly insidious nature and one to which South
Africa may for various reasons be considered
prone. Signs are not wanting that the danger is
even now far from imaginary. A sound law pro-
tecting the Government from itself will be required
if the high traditions of British Civil Services
throughout the world are to be maintained.

From this short survey it is clear that there
will be opportunities in future for parties to
form themselves on lines which will blur and
may eventually obliterate the racial cleavage.
Pessimists no doubt will say, it must be admitted
with some plausibility, that nothing will split the
Dutch, or unite the British. But though this has
been so in the past, circumstances are now so
changed that the future may be very different.
There is in all countries a natural division
between the influences of reaction and progress,
of conservatism and liberalism. In South Africa
these influences have hitherto never had room
to grow naturally. But, as elsewhere, they exist,
and in time they will prove themselves to be
stronger and more lasting than any other.

CHAPTER XIII

SOUTH AFRICA AND THE EMPIRE

GREAT empires are welded together by pressure
from without. Particularly in an empire whose
parts lie scattered over the four seas some such
pressure is needed to bring home to the ordinary
riti/.en the weakness of disunion. In this way it
may happen that the external dangers now
threatening the British Empire will knit together
in a more real union the nations which it embraces.
Just as the British Empire could never have
«>nie into being but for Great Britain's conm
"of the sea, so it will disappear the moment tint

emacy is lost. With the fpnwth tf tfrg

•nun and American n
Taecome clear not only to the people of Great

iin but to those of the great self-governing
colonies as well. It is not less vital to them than
to Great Britain. Not only has Canada to guard
a frontier of thousands of miles, but if she relies
on her own strength she is defenceless against Un-
American, or, indeed, any other fleet. Similarly

Australians, separated by the breadth of tl it-
world from their European home, are menaced in
their far away southern seas by the overshadow-
ing danger of the yellow races. South Africa
appears at first sight to be more fortunate. But

i a

132 THE UNION OF SOUTH AFRICA CH.

in reality there is no part of the Empire to which
Great Britain's supremacy at sea is more vital.

South Africa cannot live apart from the world.
In the first place she depends for her prosperity
on the export of her minerals. If a hostile power
were in command of the sea, the risks to the safe
carriage of raw gold and diamonds from Johannes-
burg and Kimberley would be so enormous that
the mines would probably have to stop working.
That would be a calamity not only to the Treasury
and to the populations of the great towns, but
to the farmers, who look to the latter as their only
market. The country's whole industrial and
agricultural life would come to a sudden stop.

Then again, Simon's Bay is still, notwithstanding
the Suez Canal, one of the most important naval
stations in the world, the Gibraltar of the southern
hemisphere. Its retention by South Africa is
only secure so long as Great Britain's supremacy
at sea is unchallenged. If that were lost it would
not be a difficult matter for a great power to seize
the peninsula stretching from Simon's Town to
Cape Point and make it impregnable against
attack from land.

Furthermore, South Africa depends on imports
almost as largely as Great Britain. With the
British fleet destroyed it would be easy to blockade
the few British South African ports and throttle
all trade, whether import or export.

It is clear indeed that no country is more depen-
dent on sea-power. Moreover, South Africans

xra SOUTH AFRICA AND THE EMPIRE

keep in miii'I that there are other European powers
besides Great Britain interested in their country,
and near neighbours to them. They bear no
grudge against them, but they recognize
it would be foolish to ignore the possibility of
war between one or other of them and Great
Britain. In that event South Africa's position
may be precarious, for she would seem a noble
prize for any power ambitious of colonial expan-
sion. But if the day of trial ever comas,
South Africa will show to the world that her

e is high.

Meanwhile these possible dangers are present
to the minds of South African statesmen and are
beginning to filter through the public consciousness.
The only insurance against them is the British fleet.
A Soutli African republic, independent of the
-h Kmpire, would be defenceless. Apart from
all other considerations, there is in the necessity
of naval defence, therefore, the strongest reason
why South Africa should remain a part of tin-
Empire. But there are other forces also tending
in the same direction. South Africa stands to
Lr iin more than perhaps any other portion of the
Empire by the grant of preferential treatment to
her products. Tobacco, wine, and brandy, which
she could produce in vast quantities, and of a
sound quality, are articles upon which it would
be particularly easy for Great Britain to grant
her a substantial preference. In some of them
she would certainly be able to compete sue-

134 THE UNION OF SOUTH AFRICA CH.

cessfully with other countries. Then again she
could produce sufficient maize to supply the
whole market of Great Britain, which imports
from other countries many million pounds
worth every year. South Africa has for the
past six years granted a preference to British
goods. The grant of a reciprocal privilege
would be of great value both materially and
as a means of strengthening the bonds between
the two countries.

But South Africa has no right to demand any
sacrifice from Great Britain. As things stand
to-day, she has much the best of the bargain.
The Dutch cannot be expected to be grateful for
the money which the Imperial Treasury spent
like water during the war, but the British are, and
most reasonable men of both races will admit that
the British tax-payer has done and is doing his
fair share towards paying the price of union. To-
wards naval defence South Africa contributes
practically nothing. She is assisted by Great
Britain in land defence to no small extent.
Lastly, Great Britain has generously pledged
her credit to the extent of £40,000,000 on behalf
of the Transvaal. The South African tax-payer
is thereby relieved of taxes to the extent of several
hundred thousand pounds worth a year.

There are no corresponding disadvantages in
the Imperial connexion to set against these benefits.
In the past there have been reasons which made
it impossible for the Imperial Government to

xm SOUTH AFRICA AND THE EMPIRE 135

abstain from interference in the domestic affairs
of the country. But the nation has now grown
to maturity, and so soon as it is prepared to take
up the full responsibility for its internal defence
it can claim, and must be accorded, the same
freedom in the management of its internal affairs
as is granted to Canada and Australia, It may
seem hard to one class of politician in
^England to renounce the right of enunciating
pica's native policy. But so long as th<
tions of the South African Government do i
conflict with Imperial interests and are in <<>n-
sonancc with the humane and liberal traditions of
Great Britain, such interference should M..I h.
countenanced. At the best it would !•• nehVr-
tive as it would be irritating. The South African
people must of necessity decide this matter for
themselves. It may with confidence be left to
their wisdom and judgement.

Finally, when we consider that the British
mpire guarantees to South Africa not only liberty,
lint also security, a combination of privileges which
-lie could possess neither as an in-
power nor under the hegemony of any other empire,
we may believe with confidence that to the invin-
cible patriotism of the British section of the
population will be added the reasoned attachment
of the Dutch, and that unless some cataclysm
overtakes the Empire, South Africa will remain
a part of it and be ready to take a full shu
responsibilities as well as its privileges.

APPENDIX

SOUTH AFRICA ACT, 1009.

[9 EDW. 7. CH. 0.)

ARRANGEMENT OP SECTIONS. A.EUW*.

I.— PRMUHDfABY.

1. Short tit!,-.

2. Definitions.

3. Application of Act to King's successors.

II .— Tm UNION.

4. Proclamation of Union.

5. Commencement of Act.

6. Incorporation of Colonies into the Union.

7. Application of Colonial Boundaries Act, Ac.

I II.— EXBCUTiVB GOVERNMENT.

8. Executive power.

9. Governor-General.

10. Salary of Governor-General.

11. Application of Act to Governor-General.

12. Executive Council

13. Meaning of Governor-General in Council.

14. Appointment of ministers.

16. Appointment and removal of officers.

16. Transfer of executive powers to Governor-General

in Council.

17. Command of naval and military forces.

18. Seat of Government.

19. Legislative pp\v

20. Sessions of Parliament .

21. Summoning of first Parliam

22. Annual session of Parliam.

23. Seat of Legislature.

24. Original constitution of Senate.

25. Subsequent constitution of Senate.

26. Qualifications of senators.

27. Appointment and tenure of office of President.

28. Deputy President.

138 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. Section.

29. Resignation of senators.

30. Quorum.

31. Voting in the Senate.

House of Assembly.

32. Constitution of House of Assembly.

33. Original number of members.

34. Increase of number of members.

35. Qualifications of voters.

36. Application of existing qualifications.

37. Elections.

38. Commission for delimitation of electoral divisions.

39. Electoral divisions.

40. Method of dividing provinces into electoral divisions.

41. Alteration of electoral divisions.

42. Powers and duties of commission for delimiting

electoral divisions.

43. Date from which alteration of electoral divisions to

take effect.

44. Qualifications of members of House of Assembly.

45. Duration.

46. Appointment and tenure of office of Speaker.

47. Deputy Speaker.

48. Resignation of members.

49. Quorum.

50. Voting in House of Assembly.

Both Houses of Parliament.

51. Oath or affirmation of allegiance.

52. Member of either House disqualified for being

Member of the other House.

53. Disqualifications for being a member of either House.

54. Vacation of seats.

55. Penalty for sitting or voting when disqualified.

56. Allowances of members.

57. Privileges of Houses of Parliament.

58. Rules of procedure.

Powers of Parliament.

59. Powers of Parliament.

60. Money Bills.

61. Appropriation Bills.

62. Recommendation of money votes.

63. Disagreements between the two Houses.

9EDW.7] SOUTH AFRICA ACT, 1909

s,<-it,,n A.D.itot.

64. Royal Assent to Bill*.

65. Disallowance of Bill*

66. Reservation ..f Hills.

67. Signature and enrolment of AcU.

V.— THI PROVWCBS.

68. Appointment and tenure of office of provincial

administrators.

69. Salaries of administrator!.

Provincial Councils.

70. Constitution of provincial councils,

71 (juuliti. anon of provincial councillors.
72. Applica sections 53 to 56 to provincial

nllors.

Tenure of office by provincial councillor*.

Sessions of provincial councils.

75. Chairman of provincial councils.

76. Allowances of provincial councillors.

77. Freedom of speech in provincial councils.

Committees.

78. Provincial executive committees.

79. Right of administrator, Ac. to take part in pro-

ceedings of provincial council.

80. Powers of provincial executive committees.

81. Transfer of power to provincial executive com-

mittees.

82. Voting in executive q ?•*•••*• *fff

83. Tenure of office by members of executive commit tees.

84. Power of administrator to act on behalf of Governor-

General in Council

Powers of Provincial Councils.

85. Powers of provincial councils.

86. Effect of provincial ordinances.

87. Recommendations to Parliament.

88. Power to deal with matters proper to be dealt with

by private Bill legislati

89. Constitution of provincial revenue fund.

90. Assent to provincial ordinances.

i> 1 Effect and enrolment of ordinances.

140 SOUTH AFRICA ACT, 1909 [9 EDW. 7
Miscellaneous.

A.D. 1909. Section.

92. Audit of provincial accoui

93. Continuation of powers of divisional and municipal

councils.

94. Seats of Provincial Government.

VI.— THE SUPREME COURT OF SOUTH AFRICA.

95. Constitution of Supreme Court.

96. Appellate Division of Supreme Court.

97. Filling of temporary vacancies in Appellate Division .

98. Constitution of provincial and local divisions^of

Supreme Court.

99. Continuation in office of existing judges.

100. Appointment and remuneration of judges.

101. Tenure of office by judges.

102. Reduction in number of judges.

103. Appeals to Appellate Division.

104. Existing appeals.

105. Appeals from inferior courts to provincial divisions.

106. Provisions as to appeals to the King in Council, i

107. Rules of procedure in Appellate Division.

108. Rules of procedure in provincial and local divisions.

109. Place of sittings of Appellate Division.

110. Quorum for hearing appeals.

111. Jurisdiction of Appellate Division.

112. Execution of processes of provincial divisions.

113. Transfer of suits from one provincial or local

division to another.

114. Registrar and officers of Appellate Division.

115. Advocates and attorneys.

116. Pending suits.

VII. — FINANCE AND RAILWAYS.

117. Constitution of Consolidated Revenue Fund and

Railway and Harbour Fund.

118. Commission of inquiry into financial relations

between Union and provinces.

119. Security for existing public debts.

120. Requirements for withdrawal of money from funds.

121. Transfer of colonial property to the Union.

122. ^ Crown lands, &c.

123. Mines and minerals.

124. Assumption by Union of colonial debts.

9EDW.7] SOUTH AFRICA ACT, 1009 141

A.D. 1909.

125. PorU, harbours, and railway*.

126. Constitution of Harbour and Railway Board.
Administration of railways, ports, and harbours.

128. Establishment of fund for maintaining uniformity

of railway rates.

129. Management of railway and harbour balances.

130. Construction of harbour and railway works.
Making good of defidsnnies in Railway Fur

certain ossco.
132. Controller and Auditor-General.

Compensation of colonial capitals for diminution of
prosjH'rity.

\ 1 1 1 -GENERAL.

134. Method of voting for senators, Ac.
136. Continuation of existing colonial laws.

136. Free trade throughout Union.

137. Equality of English and Dutch languages.

138. Naturalisation

139. Administration of just

140. Existing officers.

141. Reorganisation of public departments.

142. Public service commission.
Pensions of existing officers.

144. Tenure of office of existing officers.
146. Existing officers not to be dismissed for ignorance
of English or Dutch.

146. Compensation to existing officers who are not

retained.

147. Administration of native affairs, Ac.

148. Devolution on Union of rights and obligati

under conventions.

IX. — NEW PROVINCES AND TERRITORIES.

149. Alteration of boundaries of provinces.

150. Power to admit into Union territories admini

by British South Africa Company.

161. Power to transfer to Union government of native

territories.

X.— AMENDMENT OF ACT.

162. Amendment of Act.

SCHEDULE.

CHAPTER 9.

A.D. 1909. An Act to constitute the Union of South Africa.

[20th September 1909.]

WHEREAS it is desirable for the welfare and future pro-
gress of South Africa that the several British Colonies
therein should be united under one Government in a legis-
lative union under the Crown of Great Britain and Ireland :

And whereas it is expedient to make provision for the
union of the Colonies of the Cape of Good Hope, Natal, the
Transvaal, and the Orange River Colony on terms and
conditions to which they have agreed by resolution of
their respective Parliaments, and to define the executive,
legislative, and judicial powers to be exercised in the
government of the Union :

And whereas it is expedient to make provision for the
establishment of provinces with powers of legislation and
administration in local matters and in such other matters
as may be specially reserved for provincial legislation and
administration :

And whereas it is expedient to provide for the eventual
admission into the Union or transfer to the Union of such
parts of South Africa as are not originally included therein :

Be it therefore enacted by the King's most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows : —

I. — PRELIMINABY.

Short 1. This Act may be cited as the South Africa Act, 1909.

2. In this Act, unless it is otherwise expressed or im-
ti'oriT.1" plied, the words " the Union " shall be taken to mean the
Union of South Africa as constituted under this Act, and

9 EDW. 7] SOUTH AFRICA ACT, 1909 148

the words •• Houses of Parliament," " HOOM of Parliament," A.OltOt.
or " Parliament," •ball be taken to mean the Parliament of
the Union.

3. The provision* of tin* Act referring to the Ring shall
extend to His Majesty's heirs and tneoessom in the
sovereignty of the United Kingdom of Great Britain
and Irelnn i

II.— TmUHioit.

4. It shall be lawful for the Ring, with the advice of the Ptnri
Privy Council, to declare by proclamation that, on and Uafaa.
after a day therein appointed, not being later than one
year after the pawing of this Act, the Colonies of the Cape

of Good Hope, Natal, the Transvaal, and the Orange River
Colony, hereinafter called the Colonies, shall be united in
a Legislative Union under one Government under the
name of the Union of South Africa. On and after the
day appointed by such proclamation the Government
and Parliament of the Union shall have full power and
authority within the limits of the Colonies, but the King
may at any time after the proclamation appoint a governor-
general for the Union.

5. The provisions of this Act bhall, unless it is otherwise COB-
expressed or implied, take effect on and after the day so
appointed.

6. The colonies mentioned in section four shall
original provinces of the Union under the names of Cape of
Good Hope, Natal, Transvaal, and Orange Free State, as *£»*•
the case may be. The original provinces shall have the
same limits as the respective colonies at the establishment

of the Union.

7. Upon any colony entering the Union, the Colonial
Boundaries Act, 1895, and every other Act applying to any 4*59

of the Colonies as being self-governing colonies or colonies c. 14. ic.
with responsible government, shall cease to apply to that
colony, but as from the date when this Act takes effect
every such Act of Parliament shall apply to the Union.

144 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. iw». 1 1 1.— EXECUTIVE GOVERNMENT.

Executive 8. The Executive Government of the Union is vested in

power. the King, and shall be administered by His Majesty in

person or by a governor-general as His representative.
Governor- 9. The Governor-General shall be appointed by the
King, and shall have and may exercise in the Union during
the Ring's pleasure, but subject to this Act, such powers
and functions of the King as His Majesty may be pleased
to assign to him.

10. There shall be payable to the King out of the Con-
solidated Revenue Fund of the Union for the salary of the
Governor-General an annual sum of ten thousand pounds.
The salary of the Governor-General shall not be altered
during his continuance in office.

Applica- 11. The provisions of this Act relating to the Governor-
Act <to General extend and apply to the Governor-General for the
Governor- time being or such person as the King may appoint to
administer the government of the Union. The King may
authorise the Governor-General to appoint any person to
be his deputy within the Union during his temporary
absence, and in that capacity to exercise for and on behalf
of the Governor-General during such absence all such
powers and authorities vested in the Governor-General as
the Governor- General may assign to him, subject to any
limitations expressed or directions given by the King;
but the appointment of such deputy shall not affect the
exercise by the Governor-General himself of any power or
function.

Executive 12. There shall be an Executive Council to advise the

Council Governor-General in the government of the Union, and the

members of the council shall be chosen and summoned by

the Governor-General and sworn as executive councillors,

and shall hold office during his pleasure.

Meaning of 13. The provisions of this Act referring to the Governor-
O^JUfin General in Council shall be construed as referring to the
Council Governor-General acting with the advice of the Executive
Council.

9 EDW. 7] SOUTH AFRICA ACT, 1909 145

14. The Governor-General may appoint offioera Dot
exceeding ten in number to administer such department* ipgmfai
of State of the Union aa the Ctovenwr-General in Council •
may establish ; such officers •hall bold office daring tbe "
pleasure of tbe Governor-General. They aball be membera

of tbe Executive Council and aball be tbe King's ministers
of State for tbe Union. After tbe first general election
of membera of tbe Uouae of Assembly, at hereinafter pro-
vided, no minister shall bold office for a longer period
than three months unless he in or becomes a member of
either House of Parliament.

15. The appointment and removal of all officers of tbe Appofet-
P ul. lie service of tbe Union shall be vested in the Governor-
General in Council, unless tbe appointment is delegated

by the Governor-General in Council or by this Act or by
a law of Parliament to some other author

16. All powers, authorities, and functions which at tbe Traaafw
o.staMishiiirnt of tho Union are in any of tho Coloni.-* 't f .'*~ '
vested in the Governor or in the Governor in Council,

any authority of the Colony, shall, as far as tbe same
continue in existence and are capable of being exercised
after the establishment of the Union, be vested in tbe
Governor-General or in the Governor-General in Council,
I the authority exercising similar powers under tbe
Union, as tbe case may be, except such powers and functions
aa are by this Act or may by a law of Parliament be vested
in some other authority.

17. The command in chief of the naval and military
forces within the Union is vested in the King or in the
Governor-General as His representative.

18. Save aa in section twenty-three excepted, F^^ria
shall be the seat of Government of the Union.

IV.— PARLIAMENT.

19. The legislative power of tbe Union shall be vested in
the Parliament of the Union, herein called Parliament, which
shall consist of the King, a Senate, and a House of Assembly.

146 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1909. 20. The Governor-General may appoint such times for

S^dioQiof holding the sessions of Parliament as he thinks fit, and

PAT!!*- mav aJao from time to time, by proclamation or otherwise,

prorogue Parliament, and may in like manner dissolve the

Senate and the House of Assembly simultaneously, or the

House of Assembly alone : provided that the Senate shall

not be dissolved within a period of ten years after the

establishment of the Union, and provided further that the

dissolution of the Senate shall not affect any senators

nominated by the Governor-General in Council.

Summon- 21. Parliament shall be summoned to meet not later

ParUa- ri than 8*x months after the establishment of the Union.

meat. 22. There shall be a session of Parliament once at least

•elision1 of *n everv vear» 8O ^at a Peri°d °f twelve months shall not
Parlia- intervene between the last sitting of Parliament in one

session and its first sitting in the next session.
Scat of 23. Cape Town shall be the seat of the Legislature of

the Union.

Senate.

Original 24. For ten years after the establishment of the Union
of"" ^e constitution of the Senate shall, in respect of the

Senate, original provinces, be as follows :—

(i) Eight senators shall be nominated by the Governor-
General in Council, and for each original province
eight senators shall be elected in the manner
hereinafter provided :

(ii) The senators to be nominated by the Governor-
General in Council shall hold their seats for ten
years. One-half of their number shall be selected
on the ground mainly of their thorough acquain-
tance, by reason of their official experience or
otherwise, with the reasonable wants and wishes
of the coloured races in South Africa. If the seat
of a senator so nominated shall become vacant,
the Governor-General in Council shall nominate
another person to be a senator, who shall hold his
seat for ten years :

9EDW.7] SOUTH AFRICA ACT, 1909 147

(iii) After the patting of this Act, and before the day A.&IMS.
appointed for the establishment of the Union, the
Governor of each of the Colonies shall summon
a special nitting of both Houses of the Legislature,
and the two Houses sitting together as one body
and presided over by the Speaker of the Legis-
lative Assembly shall elect eight persons to be
senators for the province. Such senators shall
hold their seats for ten years. If the seat of
a senator so elected shall become vacant, the
provincial council of the province for which such
senator has been elected shall choose a person to
hold the seat until the completion of the period
for which the person in whose stead be is elected
would have held his seat.

25. Parliament may provide for the manner in which SoU»-
the Senate shall be constituted after the expiration of ten 23X£2T"
years, and unless and until such provision shall have been of i
made—-
he provisions of the last preceding section with
regard to nominated senators shall continue to
have effect ;

) eight senators for each province shall be elected by
the members of the provincial council of such
province together with the members of the House
of Assembly elected for such province. Such
senators shall hold their seats for ten years unless
the Senate be sooner dissolved. If the seat of an
elected senator shall become vacant, the members
of the provincial council of the province, together
with the members of the House of Assembly
elected for such province, shall choose a person
to hold the seat until the completion of the period
for which the person in whose stead he is elected
would have held his seat The Governor-General
in Council shall make regulations for the joint
eketion of senators prescribed in this section.
K a

148 SOUTH AFRICA ACT, 1909 [9 EDW. 7

'09. 26. The qualifications of a senator shall be as follows :—
Qualifier He must —

(a) be not less than thirty years of age ;
(6) be qualified to be registered as a voter for the
election of members of the House of Assembly
in one of the provinces ;

(c) have resided for five years within the limits of
the Union as existing at the time when he is
elected or nominated, as the case may be ;
be a British subject of European descent ;
(e) in the case of an elected senator, be the registered
owner of immovable property within the
Union of the value of not less than h've
hundred pounds over and above any special
mortgages thereon.

For the purposes of this section, residence in, and property
situated within, a colony before its incorporation in the
Union shall be treated as residence in and property situated
within the Union.
Appoint- 27. The Senate shall, before proceeding to the dispatch
of any other business, choose a senator to be the President
°^ *"ke Se^tej and as often as the office of President becomes
vacant the Senate shall again choose a senator to be the
President. The President shall cease to hold office if he
ceases to be a senator. He may be removed from office by
a vote of the Senate, or he may resign his office by writing
under his hand addressed to the Governor- General.
Deputy 28. Prior to or during any absence of the President the
*' Senate may choose a senator to perform his duties in his

absence.

Reaign*- 29. A senator may, by writing under his hand addressed

JJJJ^ors to the Governor-General, resign his seat, which thereupon

shall become vacant. The Governor- General shall as soon as

practicable cause steps to be taken to have the vacancy filled.

Quorum. 30. The presence of at least twelve senators shall be

necessary to constitute a meeting of the Senate for the

exercise of its powers.

9 EDW. 7] SOUTH AFRICA ACT, 1909 149

: U . All questions iu the Senate shall be determined by *
maj- >tes of senators preeent other than the President v<*m«

or the presiding senator, who »hall, however, have andjfjjf
exercise * casting vote in the caae of an equality of votes.

House of AaemUy.

32. The House of Assembly shall be composed of members
directly chosen by the voters of the Union in electoral
• liviaions delimited as hereinafter provided.

88. The number of members to be elected in the original
provinces at the first election and until t !..- number is altered
In accordance with the provisions of this Act shall be as
follows :—

Cape of Good Hope . . Fifty-oil-.

Natal Seventeen.

Transvaal . . . Thirty-six.

Orange Free State ... Seventeen.

These numbers may be increased as provided in the next
succeeding section, but shall not, in the case of any original
, be diminished until the total number of members
of the House of Assembly in respect of the provinces herein
provided for reaches one hundred and fifty, or until a period
of ten years has elapsed after the establishment of the
Union, whichever is the longer period.

34. The number of members to be elected in each
province, aa provided in section thirty-three, shall be of m
.usi-d from time to time aa may be necessary in accor- *""•
dance with the following provisions: —

(i) The quota of the Union shall be obtained by divid-
ing the total number of European male adults
in the Union, as ascertained at the census of
nineteen hundred and four, by the total number
of members of the House of Assembly as con-
stituted at the establishment of the Union :
(ii) In nineteen hundred and eleven, and every five
years thereafter, a census of the European

160 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. population of the Union shall be taken for the

purposes of this Act :

(iii) After any such census the number of European
male adults in each province shall be compared
with the number of European male adults as
ascertained at the census of nineteen hundred
and four, and, in the case of any province
where an increase is shown, as compared with
the census of nineteen hundred and four, equal
to the quota of the Union or any multiple
thereof, the number of members allotted to
such province in the last preceding section
shall be increased by an additional member or
an additional number of members equal to
such multiple, as the case may be :

(iv) Notwithstanding anything herein contained, no
additional member shall be allotted to any
province until the total number of European
male adults in such province exceeds the quota
of the Union multiplied by the number of
members allotted to such province for the time
being, and thereupon additional members shall
be allotted to such province in respect only of
such excess :

(v) As soon as the number of members of the House of
Assembly to be elected in the original provinces
in accordance with the preceding subsections
reaches the total of one hundred and fifty, such
total shall not be further increased unless and
until Parliament otherwise provides ; and sub-
ject to the provisions of the last preceding
section the distribution of members among the
provinces shall be such that the proportion
between the number of members to be elected
at any time in each province and the number
of European male adults in such province, as
ascertained at the last preceding census, shall

9 EDW. 7] SOUTH AFRICA ACT, 1909 161

as far aa possible be identical throughout the
Union :

Male adults" in this Act shall be taken to mean
males of twenty-one years of sge or upwards
not being members of His Majesty's regular
forces on fall pay :

i or the purposes of this Act the number of European
male adults, as ascertained at the census of
nineteen hundred and four, shall be taken to
be—

For the Cape of Good Hope . 167,546
For Natal . $4,784

For the Transvaal . . . 106,408
For the Orange Free State . 41,014
36.— (1) Parliament may by law prescribe the q
tions which shall be necessary to entitle persons to vote at
the election of members of the House of Assembly, but no
such law shall disqualify any person in the province of the
Cape of Good Hope who, under the laws existing in the
Colony of the Capo of Good Hope at the establishment of
the Union, is or may become capable of being registered as
a voter from being so registered in the province of the Cape
of Good Hope by reason of his race or colour only, unless
the Bill be passed by both Houses of Parliament sitting
together, and at the third reading be agreed to by not leas
than two-thirds of the total number of members of both
Houses. A Bill so paaaed at such joint sitting shall be
taken to have been duly passed by both Houses of Parlia-
ment.

(2) No person who at the passing of any such law w
registered as a voter in any province shall be removed
from the register by reason only of any disqualification
baaed on race or colour.

36. Subject to the provisions of the last
section, the qualifications of parliamenUry voters, as exist-
ing in the several Colonies at the establishment of the
Union, shall be the qualifications necessary to entitle

152 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A. D. 1909. persons in the corresponding provinces to vote for tin-
election of members of the House of Assembly : Provided
that no member of His Majesty's regular forces on full pay
shall be entitled to be registered as a vot< i.

Election*. 37. — (1) Subject to the provisions of this Act, the laws
in force in the Colonies at the establishment of the Union
relating to elections for the more numerous Houses of
Parliament in such Colonies respectively, the registration
of voters, the oaths or declarations to be taken by voters,
returning officers, the powers and duties of such officers,
the proceedings in connection with elections, election ex-
penses, corrupt and illegal practices, the hearing of election
petitions and the proceedings incident thereto, the vacating
of seats of members, and the proceedings necessary for
filling such vacancies, shall, mutatis mutandis, apply to
the elections in the respective provinces of members of the
House of Assembly.

(2) Notwithstanding anything to the contrary in any
of the said laws contained, at any general election of
members of the House of Assembly, all polls shall be taken
on one and the same day in all the electoral divisions
throughout the Union, such day to be appointed by the
Governor-General in Council.

Commia- 38. Between the date of the passing of this Act and the
delimiu- ^a^ fixe^ f°r ^e establishment of the Union, the Governor
t!i0n ^ m Council of each of the Colonies shall nominate a judge
divisions, of any of the Supreme or High Courts of the Colonies, and
the judges so nominated shall, upon acceptance by them
respectively of such nomination, form a joint commission,
without any further appointment, for the purpose of the
first division of the provinces into electoral divisions. The
High Commissioner for South Africa shall forthwith con-
vene a meeting of such commission at such time and place
in one of the Colonies as he shall fix and determine. At
such meeting the Commissioners shall elect one of their
number as chairman of such commission. They shall there-
upon proceed with the discharge of their duties under this

9EDW.7] SOUTH AFRICA ACT, 1909

Act, and may appoint persons in any province to assist A.D. Its*,
them or to act aa assessors to the com ra Won or with
ividual members thereof for the purpoae of inquiring
into matter* eooneeted with the duties of the eomaMoa.
The commission may regulate their own procedure and
may act by a majority of their number. All moneys
required for the payment of the expenses of such com-
mission before the establishment of the Union in any of the
Colonies shall be provided by the Governor in Council of
such colony. In case of the death, resignation, or other
disability of any of the Commissioners before the establish-
ment of the Union, the Governor in Council of the Colony
in raepeot of which he was nominated shall forthwith non
nate another judge to fill the vacancy. After the establish-
ment of the Union the expenses of the commission shall
be defrayed by the Governor-General in Council, and any
vacancies shall be filled by him.

39. The commission shall divide each province into
electoral divisions, each returning one member.

40.— (1) For the purpose of such division as is in the iUd»d ol
last preceding section mentioned, the quota of each pro-
vince shall be obtained by dividing the total number of
voters in the province, as ascertained at the last regis-*^'
t ration of voters, by the number of members of the House
of Assembly to be elected therein.

(2) Each province shall be divided into electoral divisions
in such a manner that each such division shall, subject
to the provisions of subsection (3) of this section, contain

tuber of voters, as nearly as may be, equal to the quota
of the province,

(3) The Commissioners shall give due consideration to—

(a) community or diversity of interests ;
(6) means of communication ;
physical features ;

(d) existing electoral boundaries;

(e) sparsity or density of population .

in such manner that, while taking the quota of voters as

164 SOUTH AFRICA ACT, 1909 [9 Emv. 7

A.D. 1000. the basis of division, the Commissioners may, whenever
they deem it necessary, depart therefrom, but in no case to
any greater extent than fifteen per centum more or fifteen
per centum less than the quota.

Alteration 41. As soon as may be after every quinquennial census,
toral*divi. tne Governor- General in Council shall appoint a commission
sions. consisting of three judges of the Supreme Court of South
Africa to carry out any re-division which may have become
necessary as between the different electoral divisions in
each province, and to provide for the allocation of the
number of members to which such province may have
become entitled under the provisions of this Act. In carry-
ing out such re-division and allocation the commission shall
have the same powers and proceed upon the same principles
as are by this Act provided in regard to the original
division.

Powers 42. — (1) The joint commission constituted under section
^com-1CS thirty-eight, and any subsequent commission appointed
™i*ion under the provisions of the last preceding section, shall
limiting submit to the Governor-General in Council —

^ * ^st °^ e^ectora^ divisions, with the names given
to them by the commission and a description
of the boundaries of every such division :
(6) a map or maps showing the electoral divisions into

which the provinces have been divided :
(c) such further particulars as they consider necessary.

(2) The Governor-General in Council may refer to the
commission for its consideration any matter relating to
such list or arising out of the powers or duties of the
commission.

(3) The Governor-General in Council shall proclaim the
names and boundaries of the electoral divisions as finally
settled and certified by the commission, or a majority thereof,
and thereafter, until there shall be a re-division, the electoral
divisions as named and defined shall be the electoral divi-
sions of the Union in the provinces.

(4) If any discrepancy shall arise between the descrip-

9EDW.7J SOUTH AFRICA ACT, 1909 ir,r,

tion of the divisions and the aforesaid map or maps, the A.D. IMS.
description shall prevail.

House of Assembly to be elected in the several provinces, [jjj^,

and any re-division of the provinces into electoral divisions, *

shall, in respect of the election of members of the House 2

of Assembly, come into operation at the next

tion held after the completion of the re-division or of

any allocation consequent upon such alteration, and not

earlier.

44. The qualifications of a member of the House of
Assembly shall be as follows:—

He must—
(a) be qualified to be registered as a voter for

election of members of the House of Assembly
in one of the provinces ;

(t>) have resided for five years within the limits of the
Union as existing at the time when he is elected ;
(<•) be a British subject of European descent
;• the purposes of this section, residence in a colony
before iU incorporation in the Union shall be treated as
residence in the Union.

45. Kvery House of Assembly shall continue for five
years from the first meeting thereof, and no longer, but
may be sooner dissolved by the Governor-General.

46. The House of Assembly shall, before proceeding to Appos*
the despatch of any other business, choose a member to be SlSwa?
the Speaker of the House, and, as often as the office of J**^
Speaker becomes vacant, the House shall again choose a
member to be the Speaker. The Speaker shall cease to hold

his office if he coaooo to be a member. He may be removed
from office by a vote of the House, or he may resign his
office or his seat by writing under his hand addressed to the
Governor-General.

47. Prior to or during the absence of the

House of Assembly may choose a member to perform his
duties in his

166 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1909. 48. A member may, by writing under his hand addressed
Rarigna. to the Speaker, or, if there is no Speaker, or if the Speak, r
ti"n of ia absent from the Union, to the Governor-General, resign

his seat, which shall thereupon become vacant.
Quorum. 49. The presence of at least thirty members of the House
of Assembly shall be necessary to constitute a meeting of
the House for the exercise of its powers.

Voting in 50. All questions in the House of Assembly shall be
jJJJJU.0 determined by a majority of votes of members present oth»-r
wy- than the Speaker or the presiding member, who shall, how-
ever, have and exercise a casting vote in the case of an
equality of votes.

Both Houses of Parliament.

Oath or 51. Every senator and every member of the House of

StaToT" Assembly shall, before taking bis seat, make and subscribe

allegiance, before the Governor-General, or some person authorised by

him, an oath or affirmation of allegiance in the following

form : —

Oath.

I, A.B., do swear that I will be faithful and bear true
allegiance to His Majesty [here insert the name of
the King or Queen of the United Kingdom of 6
Britain and Ireland for the time being] His [or Her]
heirs and successors according to law. So help me
God.

Affirmation.

I, A.B.t do solemnly and sincerely affirm and declare
that I will be faithful and bear true allegiance to His
Majesty [here insert the name of the King or Queen
of the United Kingdom of Great Britain and Ire-
land for the time being] His [or Her] heirs and
successors according to law.

Member of 52. A member of either House of Parliament shall be
House dU- incapable of being chosen or of sitting as a member of the
qualified other House : Provided that every minister of State who is
a member of either House of Parliament shall have the

the other rjghfc (^ 8ft an(j gpeafc jn the Senate and the House of

9 EDW. 7] SOUTH AFRICA ACT, 1909 167

Assembly, but shall vote only in the ROOM of which he is A.D. itot.
a member.

58. No peraoo shall be capable of being chosen or ofPiqisi

^ aa a tenator or an a member of the Home ofJj^JJJJJ

Assembly who- *•--

i baa been at any time convicted of any crime or

offence for which he «hall have been sentenced

to imprtftonment without the option of a fine for

a term of not lees than twelve month*, unices

he shall have received a grant of amnesty or

a free pardon, or unless such imprisonment shall

have expired at least five years before the date

of his election ; or

(6) is an unrehabilitated insolvent ; or

in of unsound mind, and has been so declared by

a competent court ; or

(</) holds any office of profit under the Crown within
the Union : Provided that the following persons
shall not be deemed to hold an office of profit
under the Crown for the purposes of this sub-

(1) a minister of State for the Union ;
(~>) a person in receipt of a pension from
the Crown ;

(3) an officer or member of His Majesty's
naval or military forces on retired or half pay,
or an officer or member of the naval or mili-
tary forces of the Union whose services are
not wholly employed by the Union.

54. If a senator or member of the House of Assembly— V<
(a) becomes subject to any of the disabilities men- d

tioned in the last preceding section ; or
(6) ceases to be qualified as required by law ; or
(«•) fails for a whole ordinary session to attend with-
out the special leave of the Senate or the
House of Assembly, as the case may be ;
his seat shall thereupon become vacant

158 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. 55. If any person who is by law incapable of sitting as
a senator or member of the House of Assembly shall, while
^ disqualified and knowing or having reasonable grounds
for knowing that he is so disqualified, sit or vote as a mem-
ber of the Senate or the House of Assembly, he shall be
liable to a penalty of one hundred pounds for each day on
which he shall so sit or vote, to be recovered on behalf of
the Treasury of the Union by action in any Superior Court
of the Union.

Allow. 56. Each senator and each member of the House of
JJSnbwm. Assembly shall, under such rules as shall be framed by
Parliament, receive an allowance of four hundred pounds
a year, to be reckoned from the date on which he takes his
seat : Provided that for every day of the session on which
he is absent there shall be deducted from such allowance
the sum of three pounds : Provided further that no such
allowance shall be paid to a Minister receiving a salary
under the Crown or to the President of the Senate or the
Speaker of the House of Assembly. A day of the session
shall mean in respect of a member any day during a session
on which the House of which he is a member or any com-
mittee of which he is a member meets.

Privileges 57. The powers, privileges, and immunities of the Senate
of p*ri£ and of the House of Assembly and of the members and com-
ra"nt- mittees of each House shall, subject to the provisions of this
Act, be such as are declared by Parliament, and until de-
clared shall be those of the House of Assembly of the Cape
of Good Hope and of its members and committees at the
establishment of the Union.

EaJes of 58. Each House of Parliament may make rules and orders
e" with respect to the order and conduct of its business and
proceedings. Until such rules and orders shall have been
made the rules and orders of the Legislative Council and
House of Assembly of the Cape of Good Hope at the
establishment of the Union shall mutatis mutandis apply
to the Senate and House of Assembly respectively. If
a joint sitting of both Houses of Parliament is required

9EDW.7] SOUTH AFRICA ACT, 1909 169

under the provisions of this Act, it shall be convened by A.D. i w*.
the Governor-General by message to both Houses. At any
such joint sitting the Speaker of the House of Assembly
shall preside and the rules of the House of Assembly shall,
as far as practicable, apply.

Powm of Parliament.

59. Parliament shall have full power to make laws for Vmn of
the peace, order, and good government of the Union.

60.— (1) Bills appropriating revenue or moneys or im- MOM?
posing taxation shall originate only in the House of8*0*-
Assembly. But a Bill shall not be taken to appropriate
revenue or moneys or to impose taxation by reason only
of its containing provisions for the imposition or appro-
priation of fines or other pecuniary penalties.

(2) The Senate may not amend any Bills so far as
they impose taxation or appropriate revenue or moneys
for the services of the Government.

(8) The Senate may not amend any Bill so as to in-
crease any proposed charges or burden on the people.

61. Any Bill which appropriates revenue or moneys for Appro-
the ordinary annual services of the Government shall deal
only with such appropriation.

62. The House of Assembly shall not originate or pass
any vote, resolution, address, or Bill for the appropriation JJJJ*
of any part of the public revenue or of any tax or impost

to any purpose unless such appropriation has been recom-
mended by message from the Governor-General during the
Session in which such vote, resolution, address, or Bill is
proposed.

63. If the House of Assembly passes any Bill and the
Senate rejects or fails to pass it or passes it with amend- ™
mento to which the House of Assembly will not agree, and «™
if the House of Assembly in the next session again

the Bill with or without any amendments which have
made or agreed to by the Senate and the Senate rejects or
fails to pass it or passes it with amendments to which the

160 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. House of Assembly will not agree, the Governor-General
may during that session convene a joint sitting of the
members of the Senate and House of Assembly. The mem-
bers present at any such joint sitting may deliberate and
shall vote together upon the Bill as last proposed by the
House of Assembly and upon amendments, if any, which
have been made therein by one House of Parliament and
not agreed to by the other; and any such amendments
which are affirmed by a majority of the total number of
members of the Senate and House of Assembly present at
such sitting shall be taken to have been carried, and if the
Bill with the amendments, if any, is affirmed by a majority
of the members of the Senate and House of Assembly
present at such sitting, it shall be taken to have been duly
passed by both Houses of Parliament : Provided that, if the
Senate shall reject or fail to pass any Bill dealing with the
appropriation of revenue or moneys for the public service,
such joint sitting may be convened during the same
session in which the Senate so rejects or fails to pass such
Bill.

Royal 64. When a Bill is presented to the Governor-General

finis"1 ° f°r tne King's Assent, he shall declare according to his
discretion, but subject to the provisions of this Act, and to
such instructions as may from time to time be given in that
behalf by the King, that he assents in the King's name, or
that he withholds assent, or that he reserves the Bill for
the signification of the King's pleasure. All Bills repealing
or amending this section or any of the provisions of
Chapter IV. under the heading " House of Assembly," and
all Bills abolishing provincial councils or abridging the
powers conferred on provincial councils under section
eighty-five, otherwise than in accordance with the provisions
of that section, shall be so reserved. The Governor-General
may return to the House in which it originated any Bill so
presented to him, and may transmit therewith any amend-
ments which he may recommend, and the House may deal
with the recommendation.

9EDW. 7] SOUTH AFRICA ACT, 1909 161

65. The Ring may disallow any law within one year AD itot.
after it hat been assented to by the Governor-General, an

such disallowance, on being made known by the Governor- MM» of
General by speech or message to each of the Houses of
Parliament or by proclamation, shall annul the law from
the day when the disallowance is so made known.

66. A Hill reserved for the King's pleasure shall not lu-rr*.
have any force unless and until, within one year from the JNsV
day on which it was presented to the Governor-General for

the King's Assent, the Governor-General makes known by
speech or massage to each of the Houses of Parliament or
by proclamation that it has received the King's Assent

67. As soon as may be after any law shall have been n^pty
assented to in the King's name by the Governor-General, JJ^J"^
or having been reserved for the King's pleasure shall have Aou.
received his assent, the Clerk of the House of Assembly shall

cause two fair copies of such law, one being in the English
and the other in the Dutch language (one of which copies
shall be signed by the Governor-General), to be enrolled of
record in the office of the Registrar of the Appellate Division
of the Supreme Court of South Africa; and such copies
shall be conclusive evidence as to the provisions of every
such law, and in case of conflict between the two copies
thus deposited that signed by the Governor-General shall
prevail.

V.— THE PROVINCES.
Administrator*.

68.— (1) In each province there shall be a chief executive Appotot-
officer appointed by the Governor-General in Council, who JJJ^ «*
shall be styled the administrator of the province, and in «
whose name all executive acts relating to provincial affairs
therein shall be done.

(2) In the appointment of the administrator of any
moe, the Governor-General in Council shall, as far
as practicable, give preference to persons resident in such
province.

UAVD L

162 SOUTH AFRICA ACT, 1909 [9 EDAV. 7

A.D. 1900. (3) Such administrator shall hold office for a term of
five years and shall not be removed before the expiration
thereof except by the Govern or- General in Council for
cause assigned, which shall be communicated by message
to both Houses of Parliament within one week after the
removal, if Parliament be then sitting, or, if Parliament be
not sitting, then within one week after the commencement
of the next ensuing session.

(4) The Governor-General in Council may from time to
time appoint a deputy administrator to execute the office
and functions of the administrator during his absence,
illness, or other inability.

Salaries of 69. The salaries of the administrators shall be fixed and
trators! provided by Parliament, and shall not be reduced during
their respective terms of office.

Provincial Councils.

Constitu- 70. — (1) There shall be a provincial council in each

provincial province consisting of the same number of members as

councils, are elected in the province for the House of Assembly :

Provided that, in any province whose representatives in

the House of Assembly shall be less than twenty-five in

number, the provincial council shall consist of twenty-five

members.

(2) Any person qualified to vote for the election of
members of the provincial council shall be qualified to be
a member of such council.

Qualifier 71. — (1) The members of the provincial council shall be
provincial elected by the persons qualified to vote for the election of
council- members of the House of Assembly in the province voting
in the same electoral divisions as are delimited for the
election of members of the House of Assembly : Provided
that, in any province in which less than twenty-five
members are elected to the House of Assembly, the de-
limitation of the electoral divisions, and any necessary
re-allocation of members or adjustment of electoral divi-

9EDW.7] SODTI V ACT, 1909

shall be effected by the same cnmnifasion and on the A.D im.

Mine principles as are prescribed in regard to the electoral
divisions for the House of Assembly.

(2) Any alteration in the number of membeti of the
provincial council, and any re-division of the province into
electoral division*, Hhall come into operation at the next
general election for such council held after the completion
of such re-division, or of any allocation consequent upon
such alteration, and not earlier.

(3) The election shall take place at such times as the
uistrator shall by proclamation direct, and the pro*

visions of section thirty-seven applicable to the election of
members of the House of Assembly shall mutatis mutandis
apply to such elections.

72. The provisions of sections fifty. three, fifty-four, and Applica-
tive, relative to members of the House of Assembly, u£Lwu>

shall mutatis mutandis apply to members of the provincial *
councils : Provided that any member of a provincial council MSB*-
who shall become a member of either House of Parliament *****-
shall thereupon cease to be a member of such provincial

73. Each provincial council shall continue for three Tenor* <rf
years from the date of its first meeting, and shall not^jJ^Ll
be subject to dissolution save by effluxion of time.

74. The administrator of each province shall by pro- r!Mail]ng nj
clamation fix such times for holding the sessions of the P^ ^»>
provincial council as he may think fit, and may from time "

to time prorogue such council : Provided that there shall
be a session of every provincial council once at least in
every year, so that a period of twelve months shall not
intervene between the last sitting of the council in one
session and its first sitting in the next session.

75. The provincial council shall elect from among its ChatasB
members a chairman, and may make rules for the conduct rJSu
of its proceedings. Such rules shall be transmitted by the "ness*
administrator to the Governor- General, and shall have full

force and effect unless and until the Governor-General in

L a

104 SOUTH AFRICA ACT, 1909 [9EDW.7

A.D. 1900. council shall express his disapproval thereof in writing

addressed to the administrator.
Allow. 76. The members of the provincial council shall receive

such allowances as shall be determined by the Governor-

General in Council.

77. There shall be freedom of speech in the provincial
of speech council, and no member shall be liable to any action or
"! nl'Tiii" proceeding in any court by reason of his speech or vote
councils, in such council.

Executive Committees.

Provincial 78.— (1) Each provincial council shall at its first meeting
com-UtiVe a^er ^y general election elect from among its members, or
mit tees. otherwise, four persons to form with the administrator, who

shall be chairman, an executive committee for the province.

The members of the executive committee other than the

administrator shall hold office until the election of their

successors in the same manner.

(2) Such members shall receive such remuneration as
the provincial council, with the approval of the Governor-
General in Council, shall determine.

(3) A member of the provincial council shall not be
disqualified from sitting as a member by reason of his having
been elected as a member of the executive committee.

(4) Any casual vacancy arising in the executive com-
mittee shall be filled by election by the provincial council
if then in session or, if the council is not in session, by
a person appointed by the executive committee to hold
office temporarily pending an election by the council.

Right of 79. The administrator and any other member of the
,1 Ac. executive committee of a province, not being a member
^ ^e Prov*nc^ council, shall have the right to take part
proceed, in the proceedings of the council, but shall not have the

council 80. The executive committee shall on behalf of the pro-
ProvincUl v*nc*a^ counc^ carry on the administration of provincial
executive affairs. Until the first election of members to serve on the

9 EDW. 7] SOUTH AFRICA ACT, 1909

executive committee, such administration shall be carried A.D. itot.
on by the administrator. Whenever there are not suf- Hn^""
ficient members of the executive committee to form a
quorum according to the rales of the ooMtttee. the
administrator shall, as soon as practicable, convene a
ing of the provincial council for the purpose of
members to fill the vacancies, and until such election
the administrator shall carry on the administration of
ncial affairs.

81. Subject to the provisions of this Act, all powers, TtmMfar

s, and functions which at the establishment of the £ *
Union are in any of the Colonies vested in or exercised by
the Governor or the Governor in Council, or any minister

he Colony, shall after such establishment be
in the executive committee of the province so far as
powers, authorities, and functions relate to matters in
respect of which the provincial council is competent to
make ordinances.

82. Questions arising in the executive committee shall V<
be determined by a majority of votes of the

present, and. in case of an equality of votes, the ad-
ministrator shall have also a casting vote, Subject to the
approval of the Governor-General in Council, the executive
committee may make rules for the conduct of its proceedings.

83. Subject to the provisions of any law passed by Twin* of
Parliament regulating the conditions of appointment, tenure jj1

of office, retirement and superannuation of public officers, d
the executive committee shall have power to appoint such

officers as may be necessary, in addition to officers assigned
to the province by the Governor-General in Council under
the provisions of this Act, to carry out the services en-
trusted to them and to make and enforce regulations for
the organisation and discipline of such officers.

84. In regard to all matters in respect of which
powers are reserved or delegated to the provincial council, to**sr to
the administrator shall act on behalf of the Governor- JJS *
General in Council when required to do so, and in

ir,ii 3OUTH AFRICA A(T. 1009 [9 Emv. 7

A i' iwu. matters the administrator may act without reference to the
other members of the executive committee.

Powers of Pror //»/"/ '

Powers of 85. Subject to the provisions of this Act and the assent
°f tne Governor-General in Council as hereinafter provM.-.l.
the provincial council may make ordinances in relation to
matters coming within the following classes of sul
(that is to say) : —

(i) Direct taxation within the province in order to

raise a revenue for provincial purposes :
(ii) The borrowing of money on the sole credit of tin-
province with the consent of the Governor-
General in Council and in accordance with
regulations to be framed by Parliament :
(iii) Education, other than higher education, for a peri<»< 1
of five years and thereafter until Parliament
otherwise provides:

(iv) Agriculture to the extent and subject to the con-
ditions to be defined by Parliament :
(v) The establishment, maintenance, and management

of hospitals and charitable institutions :
(vi) Municipal institutions, divisional councils, and

other local institutions of a similar nature :
(vii) Local works and undertakings within the province,
other than railways and harbours and other than
such works as extend beyond the borders of the
province, and subject to the power of Parliament
to declare any work a national work and to
provide for its construction by arrangement
with the provincial council or otherwise:
(viii) Roads, outspans, ponts, and bridges, other than

bridges connecting two provinces :
(ix) Markets and pounds :
(x) Fish and game preservation :

(xi) The imposition of punishment by fine, penalty, or
imprisonment for enforcing any law or any

9EDW. 7] SOUTH AFRICA ACT, 1909 H'.7

ordinance of tin- province nmd« in r« -Uu-.n t., A M^.
Anv maia^r Munintr within anv of iK^ classes of

(••IT UMvvQw* %*vsaa*a*g wsvs**** SBMV **• »*»w «**^s^^^^v w»

subjects enumerated in this section :
i) Generally all matters which, in the opinion of the

Governor-General in Council, are of a merely

local or private nature in the province:
i) All other subjects in respect of which Parliament

shall by any law delegate the power of making
nances to the provincial council.

86. Any ordinance made by a provincial council shall
have effect in and for the province as long and as far only
as it is not repugnant to any Act of Parliament

87. A provincial council may recommend to Parliament

the passing of any law relating to any matter in respect of JJJU
which each council is not competent to make ordii

88. In regard to any matter which requires to be dealt
with by means of a private Act of Parliament, the provincial
council of the province to which the matter relates may,
subject to urh procedure as shall be laid down by Parlia-
ment, take evidence by means of a Select Committee or
otherwise for and against the passing of such law, and,
upon receipt of a report from such council together with
the evidence upon which it is founded, Parliament may
pass such Act without further evidence being taken in
support ther-

89. A provincial revenue fund shall be formed in every
province, into which shall b • paid all revenues raised

or accruing to the provincial council and all moneys paid
over by the Governor-General in Council to the provincial
council. Such fund shall be appropriated by the provincial
council by ordinance for the purposes of the provincial ad-
ministration generally, or, in the case of moneys paid over
10 Governor-General in Council for particular purposes,
then fur such purposes, but no such ordinance shall be
passed by the provincial council unless the administrator
shall have first recommended to the council to make
provision for the specific service for which the appro-

168 SOUTH AFRICA ACT, 1909 [9 Emv. 7

A i> 1909. priation is to be made. No money shall be issued from tin
provincial revenue fund except in accordance with such
appropriation and under warrant signed by the adminis-
trator: Provided that, until the expiration of one month
after the first meeting of the provincial council, the ad-
ministrator may expend such moneys as may be necessary
for the services of the province.

Awent to 90. When a proposed ordinance has been passed by a

!.Tdi""lf ll provincial council it shall be presented by the administrator
to the Governor-General in Council for his assent. The
Governor-General in Council shall declare within one
month from the presentation to him of the prop*'
ordinance that he assents thereto, or that he withholds
assent, or that he reserves the proposed ordinance for
further consideration. A proposed ordinance so reserved
shall not have any force unless and until, within one year
from the day on which it was presented to the Governor-
General in Council, he makes known by proclamation that
it has received his assent.

Effect and 91. An ordinance assented to by the Governor-General
*n Council and promulgated by the administrator shall,
subject to the provisions of this Act, have the force of law
within the province. The administrator shall cause two
fair copies of every such ordinance, one being in the English
and the other in the Dutch language (one of which copies
shall be signed by the Governor-General), to be enrolled
of record in the office of the Registrar of the Appellate
Division of the Supreme Court of South Africa ; and such
copies shall be conclusive evidence as to the provisions of
such ordinance, and, in case of conflict between the two
copies thus deposited, that signed by the Governor-General
shall prevail.

Audit of 92. — (1) In each province there shall be an auditor of
accounts! accounts to be appointed by the Governor-General in
Council.

(2) No such auditor shall be removed from office except

9EDW.7] SOUTH AFRICA ACT, 1909 HJV

by the Governor-General in Council for cause assigned, a~D. IMS.
which shall be ootnmiminaUd by massage to both Houses
of Parliament within one week after the removal, if 1'arlia-
ment be then sitting, and, if Parliament be not sitting.
| hen within one week after the commencement of toe next

(3) Each such auditor shall receive out of the Consoli-
dated Revenue Fund such salary at the Governor-General
in Council, with the approval of Parliament, shall determine.

(4) Each such auditor shall examine and audit the
accounts of the province to which he is assigned subject to
such regulations and orders aa may be framed by the
Governor-General in Council and approved by Parliament,
and no warrant signed by the administrator authorising
the issuing of money shall have effect unless countersigned
by such auditor.

93. Notwithstanding anything in this Act

all powers, authorities, and functions lawfully exercised at
the establishment of the Union by divisional or munici
councils, or any other duly constituted local authority,
shall be and remain in force until varied or withdrawn by
Parliament or by a provincial council having power in that
behalf.

94. The seats of provincial government shall be —

For the Cape of Good Hope . Cape Town.
For Natal . PietermariUburg.

For the Transvaal . . Pretoria.
For the Orange Free State . Bloemfontein.

vi. THE SUPREME COURT OF SOUTH APRI

95. There shall be a Supreme Court of South Africa OuniHi
consisting of a Chief Justice of South Africa, the ordinary pj^g,
judges of appeal, and the other judges of the several divisions °Mrt»
of the Supreme Court of South Africa in the provinces.

96. There shall be an Appellate Division

t of South Africa, mi Misting of the Chief Justice of

170 SOUTH AFRICA ACT, 1909 [9Eow. 7

A.D. 1909. South Africa, two ordinary judges of appeal, and i\\<>
additional judges of appeal. Such additional judges of
appeal shall be assigned by the Governor-General in
Council to the Appellate Division ln>m any of the provincial
or local divisions of the Supreme Court of South Africa,
but shall continue to perform th.-ir duties as judges of th< ir
respective divisions when their attendance is not required
in the Appellate Division.

Filling of 97. The Governor-General in Council may, during the

JJJJJJJjJJ* absence, illness, or other incapacity of the Chief Justice of

in Appel- South Africa, or of any ordinary or additional judge of

aton. appeal, appoint any other judge of the Supreme Court of

South Africa to act temporarily as such chi< f justice,

ordinary judge of appeal, or additional judge of appeal,

as the case may be.

Conatitu- 98.— (1) The several supreme courts of the Cape of Good

provincial Hope, Natal, and the Transvaal, and the High Court of

and local the Orange River Colony shall, on the establishment of the

of Supreme Unipn, become provincial divisions of the Supreme Court

of South Africa within their respective provinces, and shall

each be presided over by a judge-president.

(2) The court of the eastern districts of the Cape of Good
Hope, the High Court of Griqualand, the High Court of
Witwatersrand, and the several circuit courts, shall become
local divisions of the Supreme Court of South Africa within
the respective areas of their jurisdiction as existing at the
establishment of the Union.

(3) The said provincial and local divisions, referred to in
this Act as superior courts, shall, in addition to any original
jurisdiction exercised by the corresponding courts of the
Colonies at the establishment of the Union, have jurisdic-
tion in all matters-
in which the Government of the Union or a person

suing or being sued on behalf of such Govern
ment is a party :

(I) in which the validity of any provincial ordinance
shall come into question.

7] SOUTH AFRICA ACT, 1909 171

(4) Unless and until Parliament »liall otherwise provide, A.D.ISOB.
the said superior court* shall mutatis mutandis have the
same jurisdiction in matters aflecting the validity of elec-
tion* of members of the House of Assembly and provincial
council* as the corresponding oourU of the Colonies have
tie establishment of the Union in regard to parliamentary
elections in such Colonies respectively.

99. All judges of the supreme court* of the Colonies, QBBSSNSV
iiirliiding the High Court of the Orange River Colony, Jjjjj%
holding office at the establishment of the Union shall on «
such eslablinhment become judges of the Supreme Court of l-
South Africa, assigned to the divisions of the Supreme
Court in the respective provinces, and shall retain all such
rights in regard to salaries and pensions as they may
possess at the establishment of the Union. The Chief
Justices of the Colonies holding office at the establishment
the Union shall on such establishment become the
Judges-President of the divisions of the Supreme Court in
the respective provinces, but shall so long as they hold that
office retain the title of Chief Justice of their respective
provinces.

100. The Chief Justice of South Africa, the ordinary jppofc*
judges of appeal, and all other judges of the Supreme JJJJJJJjJ.
Court of South Africa to be appointed alter the establish* **
ment of the Union shall be appointed by the Governor- ''
General in Council, and shall receive such remuneration as
Parliament shall prescribe, and their remuneration shall

not be diminished during their continuance in office.

101. The ( hi. i .In t <. pi South Africa and other judges TMMU» of
of the Supreme < 'nun «.f Smith Africa shall not be removed01
from office except by the Governor-General in Council on

an address from both Houses of Parliament in the sane
session praying for such removal on the ground of mis-
behaviour or incapa<

102. Upon any vacancy occurring in any division of the iu
* Court of South Africa, other than the Appellate

ion, the Governor-General in Council may, in case he

172 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. shall consider that the number of judges of such court may
with advantage to the public interest be reduced, postpone
filling the vacancy until Parliament shall have determined
whether such reduction shall take place.

Appe*lsto 103. In i-v. i -\ civil case in which, according to the law

DmLon* in f°rce at fcne establishment of the Union, an appeal might
have been made to the Supreme Court of any of the
Colonies from a Superior Court in any of the Colon
or from the High Court of Southern Rhodesia, the appeal
shall be made only to the Appellate Division, except in
cases of orders or judgments given by a single judge, upon
applications by way of motion or petition or on summons
for provisional sentence or judgments as to costs only,
which by law are left to the discretion of the court. The
appeal from any such orders or judgments, as well as any
appeal in criminal cases from any such Superior Court, or
the special reference by any such court of any point of law
in a criminal case, shall be made to the provincial division
corresponding to the court which before the establishment
of the Union would have had jurisdiction in the matter.
There shall be no further appeal against any judgment
given on appeal by such provincial division except to the
Appellate Division, and then only if the Appellate Division
shall have given special leave to appeal.

Existing 104. In every case, civil or criminal, in which at tin-
establishment of the Union an appeal might have been
made from the Supreme Court of any of the Colonies or
from the High Court of the Orange River Colony to the
King in Council, the appeal shall be made only to tin-
Appellate Division : Provided that the right of appeal in
any civil suit shall not be limited by reason only of the
value of the matter in dispute or the amount claimed or
awarded in such suit.

Appeals 105. In every case, civil or criminal, in which at the
establishment of the Union an appeal might have been

courts to made from a court of resident magistrate or other inferior
divisions, court to a superior court in any of the Colonies, the appeal

9EDW.7] SOUTH AFRICA ACT, 1909 17 i

be made to the corresponding division of the Supreme A.D.
Court of South Africa, !.,.< there •hail be no further
appeal against any judgment given on appeal by such
on except to the Appellate Division, and then only
he Appellate Divinion shall liave given special leave
to appeal
106. There shall be no appeal from the Supreme C

^outh Africa or from any division thereof to the King*.

E K,

in Council, but nothing herein contained shall be

to impair any right which the King in Council may be
pleased to exercise to grant special leave to appeal from
the Appellate Division to the Ring in Council Parliament
may make laws limiting the matters in respect of which
Mich special leave may be asked, but Bills *«nt^Sni«g any
such limitation shall be reserved by the Governor-General
for the signification of His Majesty's pleasure: Provided
that nothing in this section shall affect any right of appeal
to His Majes imril from any judgment given by

the Appellate Division of the Supreme Court under or in
virtuo of the Colonial Courte of Admiralty Act, 1890. u *

107. Thf ( hi< f Justice of South Africa and the ordinary "
judges of appeal may, subject to tbe approval of the
Governor-General in Council, make rules for the conduct jy
of the proceedings of the Appellate Division and prescrib- •fac-
ing the time and manner of making appeals thereto. Until
such rules shall have been promulgated, the rules in force

in the Supreme Court of the Cape of Good Hope at the
establishment of the Union shall mutatis mutandis
apply.

108. The chief justice and other judges of the Supreme B«k«
Court of South Africa may, subject to the approval of the
Governor-General in Council, frame rules for the conduct

of the proceedings of the several provincial and local 4os*»
divisions. Until such rules shall have been promulgated,
the rules in force at the establishment of the Union in the
respective courts which become divisions of the
Court of South Africa shall continue to apply therein.

174 SOUTH AFRICA ACT, 1909 [OEmv. 7

A.D i«K>9. 109. The Appellate Division shall sit in Bloemfontein,
PlacTof but mav fr°m time to time for the convenience of suitors
of hold its sittings at other places within the Union.

110. On the hearing of appeals from a court consisting
Quorum of two or more judges, five judges of the Appellate
ing ap^ Division shall form a quorum, but, on the hearing of appeals
paafc. from a single judge, three judges of the Appellate 1 )i \ i i< >n
shall form a quorum. No judge shall take part in the
hearing of any appeal against the judgment given in a
case heard before him.

Jurisdic- 111. The process of the Appellate Division shall run

A°peiLte throughout the Union, and all its judgments or orders shall

Division, have full force and effect in every province, and shall )><>

executed in like manner as if they were original judgments

or orders of the provincial division of the Supreme Court

of South Africa in such province.

Execu- 112. The registrar of every provincial division of the

ff^ffm Supreme Court of South Africa, if thereto requested by

ofDTovin- any party in whose favour any judgment or order has

Hons.n been given or made by any other division, shall, upon

the deposit with him of an authenticated copy of such

judgment or order and on proof that the same remains

unsatisfied, issue a writ or other process for the execution

of such judgment or order, and thereupon such writ or

other process shall be executed in like manner as if it had

been originally issued from the division of which he is

registrar.

Transfer 113. Any provincial or local division of the Supreme

fronione ^°ul^ °^ South Africa to which it may be made to appear

provincial that any civil suit pending therein may be more con-

divirion to veniently or fitly heard or determined in another division

another, may order the same to bo removed to such other division,

and thereupon such last -mentioned division may proceed

with such suit in like manner as if it had been originally

commenced therein.

114. The Governor-General in Council may appoint
a registrar of the Appellate Division and such other officers

9EDW.7] SOUTH AFRICA ACT, 1909 176
thereof M »b»ll b* required for the proper dicpttch of UM A.D. i»w.

l.| I f * . fcj f I I - I

115.— (I) The laws regulating the ad mi won of advocate*
and attorney** to practise before any superior court of any **"
Of the Colonies shall inuUtin mutandis apply to the admis- M
sion of advocates and attorneys to practise in the eorre-
spori ision of the Supreme Court of South Africa.

advocates and attorneys entitled at the establish-
<>f thr !'ni<.M to practise in any superior court of any
of the Colonies shall be entitled to practise at sock
the corresponding division of the Supreme Court of South

0ft,

(8) All advocates and attorneys entitled to practise before
any provincial .livision of the Supreme Court of South
>ca shall be entitled to practise before the Appellate
-ion.

116. All Miits civil or criminal, pending in any superior Ptodi
• of any of the Colonies at the establishment of the "**

i shall stand removed to the corresponding division of
the Supreme Court of South Africa, which shall have juris-

t ion to hear and determine the tame, and all judgments
and orders of any superior court of any of the Colonies
given or made before the establishment of the Union shall
have the same force and effect as if they had been given or
made by the corresponding division of the Supreme Court
of South Africa. All appeals to the King in Council which
shall be pending at the establishment of the Union shall be
proceeded with as if this Act had not been passed.

VII FINANCE AND RAILWAYS.

117. All revenues, from whatever source arising, over
b the several Colonies have at the establishment of the
Union power of appropriation, shall vest in the Governor-
General in Council. There shall be formed a Railway and
Harbour Fund, into which shall be paid all revenues raked
or received by the Governor-General in Council from the

176 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. administration of the railways, ports, and harbours, and
such fund shall be appropriated by Parliament to the pur-
poses of the railways, ports, and harbours in the manner
prescribed by this Act. There shall also be formed a Con-
solidated Revenue Fund, into which shall be paid all other
revenues raised or received by the Governor-General in
Council, and such fund shall be appropriated by Parliament
for the purposes of the Union in the manner prescribed by
this Act, and subject to the charges imposed thereby.
Commit- ug. The Governor-General in Council shall, as soon
quiry into as mav be after the establishment of the Union, appoint
a commission, consisting of one representative from each
between province, and presided over by an officer from the Imperial
S6™06' to institute an inquiry into the financial relations
which should exist between the Union and the provinces.
Pending the completion of that inquiry and until Parliament
otherwise provides, there shall be paid annually out of the
Consolidated Revenue Fund to the administrator of each
province—

(a) an amount equal to the sum provided in the esti-
mates for education, other than higher education,
in respect of the financial year, 1908-9, as voted
by the Legislature of the corresponding colony
during the year nineteen hundred and eight ;
(I) such further sums as the Governor-General in
Council may consider necessary for the due
performance of the services and duties assigned
to the provinces respectively.

Until such inquiry shall be completed and Parliament shall
have made other provision, the executive committees in the
several provinces shall annually submit estimates of their
expenditure for the approval of the Governor-General in
Council, and no expenditure shall be incurred by any execu-
tive committee which is not provided for in such approved
estimates.

Security 119. The annual interest of the public debts of the
\m exi£j: Colonies and any sinking funds constituted by law at the
debt*.

DW.7] SOUTH AFRICA ACT, 1909 177

establishment of the Union *hall form a fir*t charge on A.D. isot
the Consolidated Revenue Fu

120. No money shall be withdrawn from the Consoli- **•*»
dated Revenue Fond or the Railway and Harbour Fund JJJJJ* *
except under appropriation made by law. But, until the

ration of two months after the first meeting of Parlia-
ment, the Governor-General in Council may draw there-
from and expend such moneys as may be necessary for the
{•ul. lie service, and lor railway and harbour administration
r.-.sprctiv.-ly.

121. All stocks, ca*h, bankers' balances, and securities TtwMfar
for money belonging to each of the Colonies at the establbtv

of the Union shall be the property of the Union: »«
Provided that the balances of any funds raised at the
establishment of the Union by law for any special pur-
poses in any of the Colonies shall be deemed to have been
appropriated by Parliament for the special purposes for
which they have been provided.

122. Crown lands, public works, and all property Crown
throughout the Union, movable or immovable, and all Und-' **•
rights of whatever description belonging to the several
Colonies at the establishment of the Union, shall vest

in the Governor-General in Council subject to any debt
or liability specifically charged thereon.

123. All rights in and to mines and minerals, and all
rights in connection with the searching for, working for,
or disposing of, minerals or precious stones, which at the
establishment of the Union are vested in the Government
of any of the Colonies, shall on such establishment vest in
the Governor-General in Council.

124. The Union »holl assume all debts and liabilities
the Colonies existing at its establishment, subject, not-
withstanding any other provision contained in this Act, to «***
the conditions imposed by any law under which such
debts or liabilities were raised or incurred, and without
prejudice to any rights of security or priority in respect of

the payment of principal, interest, sinking fund, and other

178 SOUTH AFRICA ACT, l'.»w [9EDw. 7

A.D. 1900. charges conferred on the creditors of any of the Colonies,
and may, subject to such conditions and rights, convert,
renew, or consolidate such debts.

Porto, bar- 125. All ports, harbours, ami railways belonging to the
J25!|£"d several Colonies at the establishment of the Union shall
from the date thereof vest in the Governor-General in
Council. No railway for the conveyance of public traffic,
and no port, harbour, or similar work, shall be constructed
without the sanction of Parliament.

Const it u- 126. Subject to the authority of the Governor-General
Harbour *n Council, the control and management of the railways*
and Rail- ports, and harbours of the Union shall be exercised through
BoLd. a board consisting of not more than three commissioners,
who shall be appointed by the Governor-General in Council,
and a minister of State, who shall be chairman. Each
commissioner shall hold office for a period of five years,
but may be re-appointed. He shall not be removed before
the expiration of his period of appointment, except by the
Governor-General in Council for cause assigned, which shall
be communicated by message to both Houses of Parliament
within one week after the removal, if Parliament be then
sitting, or, if Parliament be not sitting, then within one
week after the commencement of the next ensuing session.
The salaries of the commissioners shall be fixed by Parlia-
ment and shall not be reduced during their respective terms
of office.

Admini»- 127. The railways, ports, and harbours of the Union

oTrail- shall be administered on business principles, due regard

*»y«. being had to agricultural and industrial development within

harboura. the Union and promotion, by means of cheap transport, of

the settlement of an agricultural and industrial population

in the inland portions of all provinces of the Union. So

far as may be, the total earnings shall be not more than

are sufficient to meet the necessary outlays for working,

maintenance, betterment, depreciation, and the payment

of interest due on capital not being capital contributed out

of railway or harbour revenue, and not including any sums

9EDW. 7] SOUTH AFRICA ACT, 1909 179

payable out of the Consolidated Revenue Fund in aceor- A.D. ito».
tm»<^tovn**^*m*kmm**mi*iml+

and one hundred and ihirly-i-iuv Th- AII..HH.I rf IttttMl
doe on such capital invested shall be paid over from the
Railway and Harbour Fond into the Consolidated Revenue

ui. The Governor-General in Council shall give elbet
to the provisions of this section as soon as and at such time
as the necessary administrative and financial arrangemenU
can be made, but in any case shall give full effect to them
before the expiration of four years from the esJsblishment

lie Union. During such period, if the revenues accruing
to the Consolidated Revenue Fund are insufficient to
provide for the general service of the Union, and if the
earnings accruing to the Railway and Harbour Fund are

••xeees of the outlays specified herein, Parliament nay
by law appropriate such excess or any part thereof towards
the general expenditure of the Union, and all sums so
appropriated shall be paid over to the Consolidated Revenue
Fund.

128. Notwithstanding anything to the contrary in the
last preceding section, the Board may establish a fund out
of railway and harbour revenue to be used for maintaining,
as far as may be, uniformity of rates notwithstanding
fluctuations in traffic.

129. All balances standing to the credit of any fund
established in any of the Colonies for railway or harbour
purposes at the establishment of the Union shall be under HT
the sole control and management of the Board, and shall be *££
deemed to have been appropriated by Parliament for the
respective purposes for which they have been provided.

130. Every proposal for the construction of any port or COM
harbour works or of any line of railway, before being ^
submitted to Parliament, shall be considered by the Board, aad
which shall report thereon, and shall advise whether the ^
proposed works or line of railway should or should not be
constructed. If any such work* or line shall be uuustroetsil
contrary to the advice of the Board, and if the Board is of

M a

180 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1909. opinion that the revenue derived from the operation of such
works or line will be in^utlicimt to nu-rt tin- costs of
working and maintenance, and of interest on the capital
invested therein, it shall frame an estimate of the annual
loss which, in its opinion, will result from such operation.
Such estimate shall be examined by the Controller and
Auditor-General, and when approved by him the amount
thereof shall be paid over annually from the Consolidated
Revenue Fund to the Railway and Harbour Fund : Provided
that, if in any year the actual loss incurred, as calculated
by the Board and certified by the Controller and Auditor-
General, is less than the estimate framed by the Board, the
amount paid over in respect of that year shall bo reduced
accordingly so as not to exceed the actual loss incurred. 1 n
calculating the loss arising from the operation of any such
work or line, the Board shall have regard to the value of
any contributions of traffic to other parts of the system
which may be due to the operation of such work or line.

Making 131. If the Board shall be required by the Governor-
d. of General in Council or under any Act of Parliament or

QOudon* <*

resolution of both Houses of Parliament to provide any
FundTtn services or facilities either gratuitously or at a rate of
charge which is insufficient to meet the costs involved in
the provision of such services or facilities, the Board shall
at the end of each financial year present to Parliament an
account approved by the Controller and Auditor-General,
showing, as nearly as can be ascertained, the amount of the
loss incurred by reason of the provision of such services and
facilities, and such amount shall be paid out of the Con-
solidated Revenue Fund to the Railway and Harbour Fund.
Controller 132. The Governor-General in Council shall appoint a
Auditor- Controller and Auditor-General who shall hold office during
General good behaviour : provided that he shall be removed by the
Governor-General in Council on an address praying for
such removal presented to the Governor-General by both
Houses of Parliament : provided further that when Parlia-
ment is not in session the Governor-General in Council may

9 EDW. 7] SOUTH AFRICA ACT, 1909 181

on the ground of inapsipilsmi or A.D ism

misbehaviour ; and, when and so often as soeh sospensioo
shall take place, a full statement of the eiieiimstiBOSi aWfl
be laid before both Howes of Parliament within fourteen
days after the oommeneement of its next lassinn ; and, if
an address shall at any time during the session of Parliament
be presented to the Governor-General by both ilonsss
praying for the restoration to office of soeh officer, he shall
be restored accordingly ; and if no such address be
the Governor-General shall confirm soeh
shall declare the office of Controller and Auditor-General to
be, and it shall thereupon become, vacant Until Parliament
shall otherwise provide, the Controller and Auditor-General
shall exercise such powers and functions and undertake
such duties as may be assigned to him by the Governor-
General in Council by regulations framed in that behalf.

133. In order to compensate Pietermaritzburg and
Bloemfontein for any loss sustained by them in the form
of <1 ii of prosperity or decreased rateable value by ^ijj*

reason of their ceasing to be the seats of government of ratfaaof
their respective colonies, there shall be paid from the
Consolidated Revenue Fund for a period not exceeding
twenty-five yean to the municipal councils of such towns
a grant of two per centum per annum on their municipal
debts, as existing on the thirty -first day of January nineteen
hundred and nine, and as ascertained by the Controller and
A u < 1 i tor-General. The Commission appointed under section
one hundred and eighteen shall, alter due inquiry, report to
the Governor-General in Council what compensation should
be paid to the municipal councils of Cape Town and Pretoria
for the losses, if any, similarly sustained by them. Soeh
compensation shall U> paid «mt of the < onsi.li.iat^i K. v, n,;,
1 fur a period not exceeding twenty-five years, and
shall not exceed one per centum per annum on the respective
municipal debts of such towns as existing on the thirty-first
January nineteen hundred and nine, and as ascertained by
the Controller and Auditor-General For the purposes of

182 SOUTH AFRICA ACT, 1909 [9 Emv. 7

A.D. 1900. this section Cape Town shall be deemed to include the
municipalities of Cape Town, Green Point, and Sea Point,
Wi.M.Ktock. Mowl.ray, ami Mmulclinsch. ( 'lareniont, and
Wynberg, and any grant made to Cape Town shall be
payable to the councils of such municipalities in proportion
to their respective debts. One half of any such grants shall
be applied to the redemption of the municipal debts of such
wns respectively. At any time after the tenth annual
grant has been paid to any of such towns the Governor-
General in Council, with the approval of Parliament, may
after due inquiry withdraw or reduce the grant to such
town.

VIII.— GENERAL.

Method of 134. The election of senators and of members of the
wrnato *** execu^^ve committees of the provincial councils as provided
Ac. in this Act shall, whenever such election is contested, be

according to the principle of proportional representation,
each voter having one transferable vote. The Governor-
General in Council, or, in the case of the first election
of the Senate, the Governor in Council of each of the
Colonies, shall frame regulations prescribing the method
of voting and of transferring and counting votes and the
duties of returning officers in connection therewith, and
such regulations or any amendments thereof after being
duly promulgated shall have full force and effect unless
and until Parliament shall otherwise provide.

Continue 135. Subject to the provisions of this Act, all laws
existing *n ^T(^ in the several Colonies at the establishment of
colonial the Union shall continue in force in the respective pro-
vinces until repealed or amended by Parliament, or by
the provincial councils in matters in respect of which the
power to make ordinances is reserved or delegated to
them. All legal commissions in the several Colonies at
the establishment of the Union shall continue as if the
Union had not been established.

136. There shall be free trade throughout the Union,

9 EDW. 7] SOUTH AFRICA ACT, 1909

txit until Parliament otherwise provides the duties of AD

and of excise leviable under the laws existing p^T^

in any of the Colonies at the establishment of the Union "*"*•
shall remain in force. ssslfciss,

. Both the English and Dutch language* shall be
official language* of ibe Union, and ahall be treated on £J
a footing of equality, ami possess and enjoy equal freedom,
rigbU,an.l privileges ; all records, journals, and proceedings
of Parliament shall be kept in both languages, and all Bills,
Act*, and notices of general public importance or interest
issued by the Government of the Union shall be in both

188. All persons who have been naturalised in any
the Colonies shall be deemed to be naturalised throughout
the Union.

139. The administration of justice throughout the Union
shall be under the control of a minister of State, in whom
shall be vested all powers, authorities, and functions which
shall at the establishment of the Union be vested in the
Attorneys- General of the Colonies, save and except all
powers, authorities, and functions relating to the pfoseeu-
tion of crimes and offences, which shall in each province
be vested in an officer to be appointed by the Governor-
General in Council, and styled the Attorney-General of
the province, who shall also discharge such other duties
as may be assigned to him by the Governor-General in
Council: Provided that in the province of the Cape of
Good Hope the Solicitor-General for the Eastern Dis-
tricts and the Crown Prosecutor for Griqualand West
shall respectively continue to exercise the powers and
duties by law vested in thorn at the time of the

ment of the Union.

140. Subject to the provisions of the next

section, all officers of the public service of the Colonies
shall at the establishment of the Union become officers

I Union.
141.-0) As soon ss possible after the establishment of

184 SOUTH AFRICA ACT, 1909 [9 EDW. 7

A.D. 1900. the Union, the Governor-General in Council shall appoint
a public service commission to make recommendations for
of such reorganisation and readjustment of the departments
of the public service as may be necessary. The commission
shall also make recommendations in regard to the as
ment of officers to the several provinces.

(2) The Governor- General in Council may after such
commission has reported assign from time to time to each
province such officers as may be necessary for the proper
discharge of the services reserved or delegated to it, and
such officers on being so assigned shall become officers
of the province. Pending the assignment of such officers,
the Governor-General in Council may place at the disposal
of the provinces the services of such officers of the Union
as may be necessary.

(3) The provisions of this section shall not apply
to any service or department under the control of the
Railway and Harbour Board, or to any person holding
office under the Board.

Public »er. 142. After the establishment of the Union the Governor-
m ^enera^ m Council shall appoint a permanent public service
commission with such powers and duties relating to th<
appointment, discipline, retirement, and superannuation <>i
public officers as Parliament shall determine.

Penmons 143. Any officer of the public service of any of the
Colonies at the establishment of the Union who is not
retained in the service of the Union or assigned to that of
a province shall be entitled to receive such pension, gratuity,
or other compensation as he would have received in like
circumstances if the Union had not been established.

Tenure of 144. Any officer of the public service of any of the

office of Colonies at the establishment of the Union who is retained
in the service of the Union or assigned to that of a province
shall retain all his existing and accruing rights, and shall
be entitled to retire from the service at the time at which
he would have been entitled by law to retire, and on the
pension or retiring allowance to which be would have been

9EDW. 7] SOUTH AFRICA ACT, 1909 185
entitled by law in like circumstances if the Union bad not A.D. iam

145. Tbe services of officers in tbe public service of
any of tbe Colonies at tbe establishment of tbe Union aball £T
not be dispensed with by reason of their want of knowledge *•*»*
of either tbe English or Dutch language. Sftf

146. Any permanent officer of tbe Legislature of any of •
tbe Colonies who is not retained in the eervice of tbe Union,
or assigned to that of any province, and for whom no pro-

>n shall have been made by such Legislature, aball be
entitled to such pension, gratuity, or compensation aa Parlia- jjj^1
ment may determine.

147. Tbe control and administration of native affairs
and of matters specially or differentially affecting Asiatk
throughout th<> I'nion shall vest in tbe Governor-General •*•**••**
in Council, who shall exercise all special powers in regard

to native administration hitherto vested in tbe Governors
he Colonies or exercised by them aa supreme chiefs, and
any lands vested in tbe Governor or Governor and Executive
Council of any colony for the purpose of reserves for native
locations shall vest in the Governor-General in Council,
who shall exercise all special powers in relation to such
reserves as may hitherto have been exerciseable by any
such Governor or Governor and Executive Council, and no
lands set aside for the occupation of natives which cannot
at the establishment of the Union be alienated except by
an Act of the Colonial Legislature shall be alienated or in
any way diverted from the purposes for which they are set
apart except under tbe authority of an Act of Parliament.

148.— (1) All rights and obligations under any con- Dmfc.
- or agreements which are binding on any of tbe r%fj*
Colonies aball devolve upon the Union at its establishment fjjatj
Tbe provisions of the railway agreement between tbe S2T
Governments of tbe Transvaal, the Cape of Good Hope, JJ*J
and Natal, dated tbe second of February, nineteen hundred
and nine, shall, as far as practicable, be given effect to by
the Government of tbe l*i

18i> SOUTH AFRICA ACT, 1909 [9Emv. 7

A.D. low. IX.— NEW PROVINCES AND TERRITORIES.

Alteration 149. Parliament may alter the boundaries of any pro-
vince, divide a province into two or more provinces, or
form a new province out of provinces within tin- Knion.
on the petition of the provincial council of every province
whose boundaries are affected thereby.

Power to 150. The King, with the advice of the Privy Council,
on addresses from the Houses of Parliament of the

• >ea Union admit into the Union the territories administered

tered by by the British South Africa Company on such terms and

South*1 c°ndtoions as to representation and otherwise in each case

Afrim as are expressed in the addresses and approved by the

Company. Kjng^ ^d the provisions of any Order in Council in that

behalf shall have effect as if they had been enacted by the

Parliament of the United Kingdom of Great Britain and

Ireland.

Power to 151. The King, with the advice of the Privy Council,
tcTunfon may» on addresses fr°m the Houses of Parliament of the
govern- Union, transfer to the Union the government of any terri-
° tories, other than the territories administered by the British

South Africa Company, belonging to or under the protection
of His Majesty, and inhabited wholly or in part by natives,
and upon such transfer the Governor-General in Council
may undertake the government of such territory upon the
terms and conditions embodied in the Schedule to this Act.

X. — AMENDMENT OF ACT.

Amend- 152. Parliament may by law repeal or alter any of the
* provisions of this Act : Provided that no provision thereof,
for the operation of which a definite period of time is pre-
scribed, shall during such period be repealed or altered :
And provided further that no repeal or alteration of the
provisions contained in this section, or in sections thirty-
three and thirty-four (until the number of members of the
House of Assembly has reached the limit therein prescribed,
or until a period of ten years has elapsed after the estab-

9EDW.7] SOUTH AFRICA ACT, 1909 187

lishment of the Union, whichever is the longer period), or AD ism
in sections thirty-five and one hundred and thirty-teven,
shall be valid unless the Bill embodying snob repeal or
alteration shall be passed by both Houses of Parliament
l together, and at the third reading be agreed to by
not less than two-thirds of the total number of members of
both Houses. A Bill so passed at such joint sitting shall
be taken to have been duly passed by both Houses of
Parliament

SCHEDULE

A.D. 1909. 1. After the transfer of the government of any territory
g^T^ belonging to or under the protection of His Majesty, the
'i.Vi. ' Governor-General in Council ahall be the legislative autho-
rity, and may by proclamation make laws for the peace,
order, and good government of such territory : Provided
that all such laws shall be laid before both Houses of
Parliament within seven days after the issue of the pro-
clamation or, if Parliament be not then sitting, within
seven days after the beginning of the next session, and
shall be effectual unless and until both Houses of Parlia-
ment shall by resolutions passed in the same session request
the Governor-General in Council to repeal the same, in
which case they shall be repealed by proclamation.

2. The Prime Minister shall be charged with the adminis-
tration of any territory thus transferred, and he shall be
advised in the general conduct of such administration by
a commission consisting of not fewer than three members
with a secretary, to be appointed by the Governor-General
in Council, who shall take the instructions of the Prime
Minister in conducting all correspondence relating to the
territories, and shall also under the like control have
custody of all official papers relating to the territories.

3. The members of the commission shall be appointed by
the Governor-General in Council, and shall be entitled to
hold office for a period of ten years, but such period may
be extended to successive further terms of five years.
They shall each be entitled to a fixed annual salary, which
shall not be reduced during the continuance of their term
of office, and they shall not be removed from office except
upon addresses from both Houses of Parliament passed in
the same session praying for such removal. They shall
not be qualified to become, or to be, members of either
House of Parliament. One of the members of the commis-
sion shall be appointed by the Governor-General in Council
as vice-chairman thereof. In case of the absence, illness,
or other incapacity of any member of the commission, the

9Eow. 7] SOUTH AFRICA ACT, 1909

Governor-General in Council may appoint some other fit AJX Its*,
and proper person to act during such shsence, illness, or
other inoapa<

4. It shall be the duty of the memben

to advise the Prime Minister upon all mitten
the general conduct of the administration of, or t
for, the said territories. The Prime Minister,
.Minister of State nominated by the Prime Minister to be
his deputy for a fixed period, or, failing such nomination,
the vice-chairman, shall preside at all meetinffs of the
commission, and in case of an equality of votes shall have
a easting vote. Two members of the eosiBiission shall
form a quorum. In case the commission shall consist of
four or more members, three of them shall form a

5. Any member of the commission who
decision of a majority shall be entitled to have the
for his dissent recorded in the minutes of the coma

6. The members of the commission shall have

to all official papers concerning the territories, and they
may deliberate on any matter relating thereto and
their advice thereon to the Prime Minister.

lie fore coining to a decision on any matter
either to the administration, other than routine, of the
lories or to legislation therefor, the Prime Minister
shall cause the papers relating to such matter to be deposited
with the secretary to the commission, and shall convene a
meeting of the commission for the purpose of obtaining its
on such matter.

8. Where it appears to the Prime Minister that the
despatch of any communication or the making of any
order is urgently required, the communication may be sent
or order made, although it has not been submitted to a
meeting of the commission or deposited for the perusal of
the members thereof. In any such case the Prime Minister
shall record the reasons for sending the communication or
making the order and give notice thereof to every member.

9. If the Prime Minister does not accept a recommenda-
tion of the commission or proposes to take some action
contrary to their advice, he shall state his views to the
commission, who shall be at liberty to place on record the
reasons in support of their recommendation or advice.
This record shall be laid by the Prime Minister bef
Governor-General in Council, whose decision in the

shall be final.

190 SOUTH AFRICA ACT, 1909 [9Eow. 7

A.D. 1909. 10. When the recommendations of the commission have
not been accepted by the Governor-General in Council,
or action not in accordance with their advice has 1>
taken by the Governor-General in Council, the Prime
Minister, if thereto requested by the commission, shall lay
the record of their dissent from the decision or action
taken and of the reasons therefor before both Houses of
rl lament, unless in any case the Governor-General in
mril shall transmit to the commission a mil >nl-

ing his opinion that the publication of such record and
reasons would be gravely detrimental to the public interest.

11. The Governor-General in Council shall appoint a
resident commissioner for each territory, who shall, in
addition to such other duties as shall be imposed on him,
prepare the annual estimates of revenue and expenditure
for such territory, and forward the same to the secretary to
the commission for the consideration of the commission and
of the Prime Minister. A proclamation shall be issued by
the Governor-General in Council, giving to the provisions
for revenue and expenditure made in the estimates as finally
approved by the Governor-General in Council the force
of law.

12. There shall be paid into the Treasury of the Union
all duties of customs levied on dutiable articles imported
into and consumed in the territories, and there shall be
paid out of the Treasury annually towards the cost of
administration of each territory a sum in respect of such
duties which shall bear to the total customs revenue of the
Union in respect of each financial year the same proportion
as the average amount of the customs revenue of such
territory for the three completed financial years last pre-
ceding the taking effect of this Act bore to the average
amount of the whole customs revenue for all the Colonies
and territories included in the Union received during the
same period.

13. If the revenue of any territory for any financial
year shall be insufficient to meet the expenditure thereof,
any amount required to make good the deficiency may,
with the approval of the Governor-General in Council,
and on such terms and conditions and in such manner
as with the like approval may be directed or prescribed,
be advanced from tne funds of any other territory. In
default of any such arrangement, the amount required to
make good any such deficiency shall be advanced by the

9 EDW. 7] SOUTH A v ACT, HH»

Government of the Union. In case there shall be a surplus A u ism
for any territory, such surplus shall in the first instance —
be devoted to the repayment of any sums previously ad-
vanced by any other territory or by the Union Govern-
ment to make good any deficiency in the revenue of sash
territory.

14. It ahall not be lawful to alienate any land in
Basutoland or any land forming part of the native reserves
in the Bechuanaland protectorate and Hwasiland from the
native tribes inhabiting those territories.

15. The sale of intoxicating liquor to natives shall be
hited in the territories, and no provision giving

•i » »• . . * . . .

I snob

facilities for introducing, obtaining, or

: in any part of the territories less stringent than those
existing at the time of transfer shall be allowed.

16. The custom, where it exists, of holding pitsos or
other recognised forms of native assembly shall be main-
tained in the territories.

N«. differential duties or imposts on the produce of
the territories shall be levied. The laws of the Union
relating to customs and excise shall be made to apply to
the territories.

18. There shall be free intercourse for the inhabitaats
<>f the territories with the rest of South Africa subject to
the laws, including the pass laws, of the Union.

19. Subject to the provisions of this Schedule, all
revenues derived from any territory shall be expended
for and on behalf of such territory : Provided that the
Governor-General in Council may make special provision
for the appropriation of a portion of such revenue as a
contribution towards the cost of defence and other ser-
vices performed by the Union for the benefit of the whole
of South Africa, so, however, that that contribution shall
not boar a higher proportion to the total cost of saeh

services than that which the amount payable under para-
graph 12 of this Schedule from the Treasury of the Union
towards the cost of the administration of the territory
bears to the total customs revenue of the Union on the
average of the three years immediately preceding the year

which the contribution is made.

20. The King may disallow any law made by the

Governor-General in Council by proclsrnstion for any

territory within one year from the date of the proelama-

and such disallowance on being made known by the

IM SOUTH AFRICA ACT, 1909 [9 Emv. 7

A.D. 1900. Governor-General by proclamation shall annul the law
from tho day when the disallowance is so made known.

21. The members of the commission shall be entith 1
to such pensions or superannuation allowances as th.-
Governor-General in Council shall by proclamation j
vide, and the salaries and pensions of such members and
ail other expenses of the commission shall be borne by tin-
territories in the proportion of their respective revenues.

22. The rights as existing at the date of transfer of
officers of the public service employed in any territory
shall remain in force.

^3. Where any appeal may by law be made to th.
King in Council from any court of the territories, such
appeal shall, subject to the provisions of this Act, l>e made
to the Appellate Division of the Supreme Court of South
Africa.

24. The Commission shall prepare an annual report
on the territories, which shall, when approved by the
Governor-General in Council, be laid before both 11 u

of Parliament.

25. All bills to amend or alter the provisions of this
Schedule shall be reserved for the signification of His
Majesty's pleasure.

Oxford : Printed at the Clarendon Press by HORACE HAET, M.A.

PLEASE DO NOT REMOVE
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UNIVERSITY OF TORONTO LIBRARY

JQ Brand, Robert Henry

1918 The Union of South Africa

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