But while the Cape Colony was in the throes of this agitation, British soldiers were gallantly fighting their way to Johannesburg and Pretoria. During the six weeks of Lord Roberts's "prolonged and enforced halt" at Bloemfontein (March 13th—May 1st), and subsequently, while the Army was advancing upon the Transvaal, considerable progress was made in the work of clearing the Colony of the republican invaders and re-establishing British authority in the districts in which the Dutch had risen in rebellion. In the course of these operations a large number of rebels had fallen into the hands of the Imperial military authorities, and it was the question of the treatment of these colonial rebels that was destined to bring Mr. Schreiner into direct conflict with those of his ministers who still held the opinions of the Bond.
The punishment of rebels.
In the middle of April Lord Milner had received from Mr. Chamberlain a despatch containing a preliminary statement of the opinion of the Home Government upon the two questions of the compensation of loyalists and the punishment of rebels, and on April 14th he requested his ministers to give formal expression to their views upon the subjects to which Mr. Chamberlain had drawn his attention. A fortnight later Lord Milner reported to the Home Government the conclusions at which Mr. Schreiner and his fellow-ministers had arrived. Trial by jury for persons indicted for high treason must be abandoned, since it would be impossible for the Crown to obtain the necessary convictions, and a special tribunal must be established by statute. As regards the nature of the punishment to be inflicted upon the rebels, Mr. Schreiner wrote:
"Ministers submit that the ends of justice would be served by the selection of a certain limited number of the principal offenders, whose trials would mark the magnitude of their offence and whose punishment, if found guilty, would act as a deterrent. For the remainder, ministers believe that the interests both of sound policy and of public morality would be served if Her Gracious Majesty were moved to issue, as an act of grace, a Proclamation of amnesty under which, upon giving proper security for their good behaviour, all persons chargeable with high treason, except those held for trial, might be enlarged and allowed to return to their avocations."[223]
The substance of the Ministers' Minutes containing these conclusions, and the arguments by which they were supported—notably an appeal to the "Canadian precedent"—were telegraphed to the Home Government, and on May 4th Mr. Chamberlain replied, also by telegram. While the people of Great Britain were animated by no vindictive feeling against "those who had been or were in arms against Her Majesty's forces, whether enemies or rebels"—did, in fact, desire that all racial animosity should disappear in South Africa at the earliest possible moment after the war was over—the "sentiments of both sides" must be taken into consideration. The consequences which would ensue from "the rankling sense of injustice" that would arise if the rebels were actually placed in a better position after the struggle was over than those who had risked life and property in the determination to remain "loyal to their Queen and flag," would be no less serious than the bad results to be anticipated from any display of a revengeful policy on the part of the loyalists. He continued:
"Clemency to rebels is a policy which has the hearty sympathy of Her Majesty's Government, but justice to loyalists is an obligation of duty and honour. The question is, how can these two policies be harmonised? It is clear that, in the interest of future peace, it is necessary to show that rebellion cannot be indulged in with impunity, and above all that, if unsuccessful, it is not a profitable business for the rebel. Otherwise the State would be offering a premium to rebellion. The present moment, therefore, while the war is still proceeding, and while efforts may still be made to tempt British subjects into rebellious courses, is in any case not appropriate for announcing that such action may be indulged in with absolute impunity. And if, as has been suggested, a great many of the Queen's rebellious subjects are the mere tools of those who have deceived them, it is important that these should be made aware individually that, whatever their leaders may tell them, rebellion is a punishable offence.
"Up to this time very lenient treatment has been meted out to rebels. Although, according to the law of the Cape Colony, and under martial law, the punishment of death might have been inflicted, in no case has any rebel suffered the capital penalty, and the vast majority have been permitted for the present to return to their homes and to resume their occupations. There are many degrees in the crime of rebellion. Her Majesty's Government desire that in any case means shall be found for dealing effectually with: (1) The ringleaders and promoters; (2) those who have committed outrages or looted the property of their loyal fellow-subjects; (3) those who have committed acts contrary to the usages of civilised warfare, such as abuse of the white flag, firing on hospitals, etc. There remain (4) those who, though not guilty, of either of those offences, have openly and willingly waged war against Her Majesty's forces; (5) those who confined themselves to aiding Her Majesty's enemies by giving information or furnishing provisions; and (6) those who can satisfactorily prove that they acted under compulsion. In the opinion of Her Majesty's Government a distinction ought to be, if possible, drawn between these different classes.
"Her Majesty's Government recognise the difficulty of indicting for high treason all who have taken part with the enemy, and they would suggest, for the consideration of your ministers, the expediency of investing either the Special Judicial Commission which, as stated in your telegram of 28th April, is contemplated by your ministers, or a separate Commission, with powers to schedule the names of all persons implicated in the rebellion under the various heads indicated above. It would be necessary to decide beforehand how the different categories should then be dealt with. As regards 1, 2, and 3, they would, of course, be brought before the Judicial Commission and tried by them. Might not 4 and 5 be allowed to plead guilty, and be thereupon either sentenced to a fine carrying with it disfranchisement, or released on recognisances, to come up for judgment when called upon (this also to involve disfranchisement), while 6 might be subjected to disfranchisement alone? Her Majesty's Government offer these as suggestions for the consideration of your ministers.
"In regard to the reasons urged by your ministers in favour of a general amnesty, Her Majesty's Government would point out that they are of a highly controversial character, and it is impossible to discuss them fully at a moment when an indication of the views of Her Majesty's Government is urgently required. Her Majesty's Government would only observe that the policy which they have indicated in this telegram appears to them to be one not merely of justice, but of clemency, which the whole white population of the Colony might well accept as satisfactory, and which should not, any more than the ordinary administration of justice, encourage the natives to think that the two white races are permanently disunited, while with especial reference to the third reason, it may be observed that the expediency of the action to be taken in such cases depends upon circumstances which must vary greatly according to date and locality. In Lower Canada in 1837-38 there was a revolt during peace against the Queen's authority, founded on grievances under constitutional conditions which were recognised as unsatisfactory by the Government of the day, and altered by subsequent legislation. In the Cape there has been adhesion to the Queen's enemies during war by those who have not even the pretext of any grievance, and who have for a generation enjoyed full constitutional liberty. In Canada the insurrection was never a formidable one from a military point of view; in the Cape it has added very largely to the cost and difficulty of the war, and has entailed danger and heavy loss to Her Majesty's troops."[224]
The ministry divided.