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•J-; i-V



SELECT CONSTITUTIONAL
DOCUMENTS ILLUSTRATING
SOUTH AFRICAN HISTORY
1795-1910



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Select Constitutional
Documents Illustrating

South African History.
.1795-1910*



SELBCTED AND EDITED WITH AN INTRODUCTION
BY

G. W. EYBERS, M.A.



LONDON

GEORGE ROUTLEDGE & SONS, Limited

NEW YORK: E. P. DUTTON & CO.

1918

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PREFACE,

This volume is intended to supply the papers and documents
necessary to the study of South ^rican history from the year
1795. It fills a gap in the series of works by various compilers
which have 4one so much towards the careful study of the
constitutions of the United Kingdom and the outlying
dominions. It is hoped also that at this time when so much
thou^t is given to imperial relations it may serve as a handy
book of reference for estimating the character of the various
elements that have contributed towards the building up of
the youngest of the three great British Dominions. The work
is railly more than a volume of select documents, for it contains
nearly all the instruments necessary to follow the broad lines
of the constitutional history of the four colonies that formed
the Union. There will also be found some mention of practi-
cally every important step taken towards the extension of
British rule and the placing of native territories under European
control. Three documents which will form the basis of negotia-
tion towards the end of the War or shortly afterwards have
heea included in Appendices. Under the heading " Natal "
are now published several papers relating to the Great Trek
which have probably never been seen by anybody now alive
outside official circles except two or three historians. These
are included with the kind permission of Mr. Secretary
Bonar Law and after him Mr. Secretary Long. Most of the
Free State laws given below are to be found nowhere in
London except in one private collection of books, the fine
South African library collected by the late Mr. Sidney
Mendelssohn.

A few documents are given in their entirety as originally
issued, the object being to show the exact form given at
various times in the different countries to proclamations,
ordinances, acts of the legislatures, imperial papers, and

' ^^ _^ . .ooQle



vi Prefau

so forth. Where a portion of a document has been sum-
marised or abbreviated this is indicated by the customary
marks. In a very few cases where I wished to draw attention
to an Act only the title and the date are given.

As regards the plan of arrangement, it seemed desirable to
adopt for the Cape of Good Hope and Natal a scheme that
would have the advantage of maintaining the unity of interest
with r^ard to the main groups of persons who performed the
duties of government. There will therefore be found for each
of these colonies three divisions — Central Government, Local
Government, and Administration of Justice. In only a very
few cases does a document deal to any extent with two or more
of these. If the traditional division into Executive, Legis-
lature, and Judiciary had been made, a more logical basis
might be established, but then it would have been impossible
to avoid splitting up a large number of Acts and giving the
different parts under various heads. Such a course seemed
undesirable. As the papers are here arranged, matters relating
to the executive and the legislature will have to be sought
for under the first heading, those relating to municipal and
divisional councils under the second, and magistrate's courts,
high courts, and native courts are included under the third.
No distinction has been made with regard to the origin of the
documents. Instruments issued by the Crown in Council,
by the Governor, or by the colonial legislature may be found
side by side under any of the three headings.

In the case of the Orange Free State and the South African
Republic, the Grondwet or constitution of each contains
provisions for every branch of government. Here again it
would lead to chaos if the documents were to be subdivided,
therefore a purely chronological arrangement has been made.
When any particular subject is to be consulted, the Index at
the end of the volume will serve as a guide. The laws of these
two countries were drawn up in Dutch. With the originals
an English translation has been given in every case. I have
attempted to make the rendering as literal as possible. Where
a portion of an Act in Dutch has been summarised I have
acUiered as much as possible to the spelling and grammatical
forms of the original. Titles of dignity occurring in the Dutch

text have as a rule been omitted in translating.

_._„Dy Google



Preface vii

As thexe exists no work dealing specially with the constitu-
tional history of the South African colonies the subject has been
treated at considerable length in the Introduction. Thou^ I
have consulted nearly all the published records and the un-
published documents in the Public Record Office relating to
South Africa up to i860, 1 have often been greatly assisted also
by the very thorough and reliable histories of Dr. G. McC. Theal.
Mr. Advocate Gr^orowsld of Pretoria has kindly sent me
a good deal of information regarding the Free State laws
passed between 1867 and 1891. I also wish to record my
gratitude for ready assistance afforded me in my search for the
documents in the Public Record Office, the British Museum, the
Colonial Office Library, the Royal Colonial Institute, and the
Office of the High Conunissioner for South Africa. My best
thanks are particularly due to those who by their livdy interest
in the progress of the work, by encouragement, and by expert
advice have made my task a light one and a source of genuine
pleasure. To the willing co-worker who has copied several of
the documents and assisted in many other ways I desire to
acknowledge my indebtedness.

G. W. EYBERS.

King's College^ London,
ijM Odcber 1917.



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TABLE OF CONTENTS.



Prepacb . .

Some Abbrbviations Employed .



PAGE
V

XVI



INTRODUCTION.

SECTION SUBJECT.

I. Thb Capb of Good Hope under the Dutch, 1652-1795 xvii
II. Thb Capb of Good Hope under the British Crown,

179S-1910 ...... xxvii

III. Thb High Commissionership for South Africa xli

IV. Natal, i 835-1910 ...... xliii

V. Thb Orange Free State, i 836-1910 . . k

VI. Thb South African Rbpubuc, 1836-1910 . Ixvii

VII. Thb Union of South Africa . . Ixxv



DOCUMENTS.

CHAPTER I.

The Cape of Good Hope.

BttotioB Ju— GttitnU Oov«PBiii«Bt.

KO. TITLE AND DATE.

1. Request for an Order to surrender the Cape, i Feb. 1795

2. Order to admit British Forces into the Cape, 7 Feb. 1795

3. First Surrender of the Cape to the British, 16 Sept. 1795

4. Appointment of the first British Commandant, 30 Sept. 1795

5. Oath of Allegiance required, 7 Oct. 1795

6. Appointment of Officials, 10 Oct. 1795 .

7. Instructions issued to a Cape Governor, 30 Dec. 1796

8. Fees of Office, 7 Jan. 1797

9. Treaty of Amiens, 27 March 1802

10. The Cape restored to the Dutch, 21 Feb. 1803

11. Surrender of Cape Town to the British, 10 Jan. 1806

12. Second Surrender of the Cape, 19 Jan. 1806

13. The Farming Out of Licenses, 25 July 1807

14. Vagrancy and Contracts of Hire, i Nov. 1809

15. Sale of Christian Slaves, 9 Oct. 1812

16. Cession of the Cape to Great Britain, 13 Aug. 18 14



I
2
3
3
4
5
5

II
12
13
14
16
16

17
18

19



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Table of Contents



NO. TITLE AND DATE.

17. The English Language established, 5 July 1822

18. The First Council appointed, 2 May 1825

19. The Paper Currency, 6 June 1825

20. Extension of Hottentot Liberties, 17 July 1828

21. Roman Catholic Relief, 13 Jan. 1830 .

22. Debate in the House of Commons, 24 May 1830

23. The Emancipation of the Slaves, 28 Aug. 1833 .

24. Appropriation Ordinance for 1835, 3 Dec. 1834

25. The Eastern Districts Government, 19 Feb. 1836
6. Petition for Representative Government, 20 Dec. 1841

27. Nomination^of Ministers of Religion by the Crown, i Dec. 1845

28. Public Meeti)^, 12 Dec. 1848 .

29. The Cape Con§j[itution Ordinance, 3 April 1852

30. Reserved Civil %)|t Ordinance, 1852

31. Freedom of Spee^ in Parliament, 19 Sept. 1854

32. Incorporation of British KafEraria, 10 Oct. 1865
33., Annexation of Basutoland, 11 Aug. 1871

34. Responsible Government, 22 Nov. 1872

35. Amendment of the Constitution Ordinance, 31 July 1874

36. Annexation of Transkeian Territories, 15 Aug. 1879

37. Annexation of Griqualand West, 15 Aug. 1879 •

38. Equal Language Rights in Parliament, 25 May 1882

39. Representation of Kimberley in Parliament, 21 June 1882

40. Disannexation of Basutoland, 18 March 1884 .

41. Annexation of Walfish Bay, 25 July 1885

42. Annexation of Tembuland, 14 July 1885

43. Annexation of the Xesibe Country, 25 Oct. 1886

44. Representation of the Transkei, 9 Aug. 1887 .

45. Annexation of Rode Valley, i Nov. 1887

46. The Auditing of Public Accounts, 21 Aug. 1888

47. Salary of High Conmiissioner for South Africa, 13 Aug. 1889

48. Narrowing the Parliamentary Franchise, 16 Aug. 1892

49. Ministerial Offices, 12 Sept. 1893

50. Annexation of Pondoland, 25 Sept. 1894

51. Annexation of British Bechuanaland, 11 Nov. 1895



PAGE



B«otion B.~Iiooal OoTommttit.

52. Repair of Roads, 21 March 1800

53. Repair of Roads, 13 Sept. 1806.

54. Collection of the Revenue, 28 Feb. 1828

55. Municipal Boards created, 15 Aug. 1836

56. Creation of Road Boards, 22 Nov. 1843

57. Creation of Divisional Councils, 8 June 1855

58. Management of Public Roads, 5 June 1858

59. Educational Boards, 5 June 1858

60. Municipalities, 30 June 1882



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Table of CantefUs



XI



Saotlon O.— The Adminiatration of Juatioe.

NO. TITLB AND DATE.

V 6i. The Courts of Justice, 1 1 Oct. 1795

62. Landdrosts' Courts, 15 Oct. 1795

63. Police Arrangements, 20 May 1797

► 64. The Courts of Justice, 24 July 1797

65. Court of Appeal in CivU Cases, 29 May 1807 .

66. Court of Appeal in Criminal Cases, 10 June 1808
I 67. Circuit Courts established, 16 May 181 1

68. Judicial Proceedings in Public, 25 Sept. 181 3 .

69. The Cape Town Court of Landdrost and Heemraden, 5 April

1816 . ......

' 7a Criminal Jurisdiction granted to Local Courts, 18 July 18 17
71. Exclusive Adoption of the English Language postponed
13 Dec. 1826 ......

> 72. Creation of Office of Justice of the Peace, 1 1 Dec. 1 827 .

• 73- Creation of Office of Resident Magistrate, 19 Dec. 1827
74- The Sheriff of the Cape Colony, 5 Jan. 1828 .

75- Qualification of Jurors, 4 Feb. 1828

76. The Boyal Charter of Justice, 4 May 1832

77- Administration of Insolvent Estates, 24 Oct. 1843

78. Duties of Field-Comets, 4 July 1848 .

79- Trial by Jury in Civil Cases, 1854 .

' 80. Resident Magistrates, 4 June 1856

81. The Eastern Districts Court established, 26 July 1864 .
^ 82. Special Justices of the Peace, 4 July 1876

• 83. The Higher Courts of justice, 8 Sept. 1879

84. Administration of Justice in Griqualand West, 29 July 1880

85. Marriage Licenses, 14 June 1882

86. The Dutch Language in the Courts of Law, 25 July 1884

87. The Law relating to Jurors, 7 Aug. 1885

88. Appeal Court and Sheriff's Duties Act, 29 June 1886 .

89. The Dutch Language Judicial Use Amendment Act, 17 Aug.

1888 ......

90. The Jury Act, 1891 ....



PAGE

97
98
98

99
102
102
103
105

105
106

107
107
109
112

113
114

119
120
122
125
127
129

130
132
133
133
134
135

13^
137



CHAPTER IL
Natal.

Sttotion A«~Geiitpal Oorantment.

91. Treaty between British Residents and Diugaan, King of

theZulus, 6May 1835 ....

^ 92. llanif esto of Emigrant Farmers

• 93- Attorney-General's Opinion regarding the Great Trek, 13 Aug

1836

• 94- British Authority beyond the Cape borders, 13 Aug. 1836



143
143

145
146



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NO. TITLE AND DATE. PAGB

95. Cession of Natal Territory to the Emigrants, 4 Feb. 1837 148

96. Cession of Natal Territory to the King of England, 21 June

1837 • • .149

97. Protest of British Residents against a British Magistrate's

Authority, July 1837 . . . .150

98. Occupation of Port Natal by the British, 4 Dec. 1838 .151

99. Early Legislation of the Natal Republic, 39 July 1839 1 52
Memorial of Emigrants to the Governor, 1 839 '153
Emigrants' Demand for Independence, 4 Sept. 1840 . .158
Articles of Agreement and Alliance proposed, 14 Jan. 1841 . 1 59
Burghership Law, 14 April 1841 .... 162

104. British Authority over Emigrants, 2 Dec. 1 84 1 .164

« 105. Qualification of Volksraad Members, Feb. 1842 . 166

106. Emigrant Grievances, 21 Feb. 1842 .167

107. Demands for Constitutional Liberties, 4 Sept. 1843 . -174
British Authority consolidated, 5 Oct. 1843 . .180
Annexation of Natal to the Cape, 31 May 1844 .182
Maintenance of British Authority over all Emigrants,

21 Aug. 1845. • • • • .183

111. Natal a Separate Colony, 30 April 1 845 . 1 84

112. Legislative Council established, 2 March 1847 .186
Charter of Natal, 15 July 1856 . . . .188
NativeFranchise, 24 Aug. 1865 . . .194
Ecclesiastical Grants, 22 Sept. 1869 . . '197
Electoral Divisions, 12 July 1873 .... 198
Constitution Amendment Law, 23 Sept. 1875 • i99

1 1 8-1 22. Natal Government Railways, 1875-78 . 200-1

« 123. Constitution Amendment Law, 9 March 1883 . . 201

124. Franchise Amendment Law, 29 March 1883 . 203

s 125. Coastitution Amendment Law, 25 June 1889 204

^ 126. Responsible Government, 3 July 1893 • 204

127. Officeof Governor constituted, 20 July 1893 • • 209

128. Instructions to the Governor, 20 July 1893 . . .212
*^ 129. Franchise Amendment Act, 23 May 1896 . .215

130. Annexation of Zululand, 29 Dec. 1897 > 215
^ 131. Amendment of the Franchise Law, 12 July 1906 . 217



100.

*IOI.

* 102.
103.



108.
109.
no.



113-
114.
115.
116.
117.



••otion B.— Local Oovcrnmttit.

132. Creation of Municipal Boards, 30 March 1847

, 133. Municipal Corporations, 21 April 1854

134. Municipal Corporations, 16 Aug. 1861

135. Municipal Corporations, 20 Dec. 1872



218
220
224
226



Bootion O.— Administration of Jiaatioo.

27 Aug. 1845



136. Establishment of the Roman-Dutch Law

137. The District Court erected, 16 Oct. 1845

138. Field-Comets and Constables, 7 Jan. 1846



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227
229
231



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NO. TITLB AND DATS PAGE

139. Justices of the Peace, 7 Jan. 1846 .... 332
'14a Resident Magistrates, 24 April 1846 ... 233
' 141. Administration of Justice among Natives, 23 June 1849 ^35

142. Trial by Jury, 18 May 1859 .238

143. Trial by Jury in Civil Cases, 18 May 1852 . .241

144. Supreme and Circuit Courts, 10 July 1857 . . 242

145. Petty Debts Recovery Law, 4 Oct. 1867 . . 246

146. Native Administration Law, 17 Dec. 1875 • • ^7

147. Transfer of Causes, II Nov. 1876 • 251

148. Native Administration Law, 9 Sept. 1878 . 252

149. Native Administration Law, 18 Sept. 1887 . . 253
15a Resident Magistrates, 14 Aug. 1889 . . . -25$
151. Native Law, 1 891 ...... 259



CHAPTER III.

T&B Orangb Freb Statb.

/ 152. Petition of Trans-Orange Emigrants to Commissioner Cloete
inNatal, 28 Sept. 1843 ....

153. Recognition of the Griqua State, 19 Feb. 1846

154. Pteparations for anneTing Territory, 27 Jan. 1848

155. EstaUishment of the Queen's Sovereignty over Territory

between the Orange and the Vaal, 3 Feb. 1848

156. Provisional Government in the O.R. Sovereignty, 8 March

1848 ......

I 157. Regulations tor the Government of the O.R. Sovereignty
14 March 1849 .....

' 158. The Bloemfontein Convention, 23 Feb. 1854 .
"^159. The Constitution of the O.F. State, 10 April 1854, etc.
160. Ordinance establishing the Dutch Language, 15 April 1854
*i6i, Instmctions to Field-Comets, 16 April 1854 .

162. Ordinance No. 1, 1856 ....

163. Ordinance erecting Municipal Boards, 15 Feb. 1856 .

164. Ordinance regulating the Qualification of Jurors, 13 Feb.

1857

165. The Occupation Law, Ord. No. 2, 1866

166. Ordinance for the Govertmient of Molappo, 23 May 1866

167. Law relating to the People of Paulus Mopeli, 1867 .
^168. Law relating to the Higher Courts of Justice .
^169. Law relating to the Lower Courts of Justice .

170. The Convention of Aliwal North, 12 Feb. 1869

171. Settlement of the Diamond Fields Dispute, 13 July 1876
^ 172. Annexation of the Orange Free State, 24 May 1900 .
«-* 173. The Veieeniging Peace Treaty, 31 May 1902 .

«. O.R. Colony : Administration of Justice, 1902-1910 .
" O.R. Colony : Municipal Govemmeat, 1902-1910



260
261
269

270

373

275
281
285
296
297
301
311

312

314
3«o

3^5
326

330
336
34a
344
345
347
34«



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XIV



Table of Contents



-^



NO.

175.

176.

177.
'178.

179.

180.

[81.

E82.

183.

184.

185.

186.
.187.

188.

* 189.
^190.

191.

192.

193.
194.

195.
^196.

197.
'198.

199.
200.
201.
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.
212.
213.
214.
215.
216.
217.



CHAPTER IV.

The South African Rbpubuc.

title and date.
The Thirty-Three Articles, 9 April 1844
Resolution of the Volksraad, 23 May 1849
Resolution of the Volksraad, Jan. 185 1

The Sand River Ck>nvention, 16 Jan. 1852 ^

Resolution of the Vblksraad, 10 Aug. 1853 •
Resolution of the Volksraad, 19 Sept. 1853 .
Resolution of the Volksraad, 21 Nov. 1853 -
Resolution of the Volksraad, 18 June 1855 .
The Grondwet of the S.A. Republic, Feb. 1858, etc.
Instructions to the Field-Comets, 17 Sept. 1858
Addendum to the Grondwet, 19 Sept. 1859 ; No. i
Addendum to the Grondwet, 19 Sept. 1859 ; No. 2
Resolution of the Volksraad, Sept. 1858 ; Art. 23c
Resolution of the Volksraad, Sept. 1858 ; Art. 23^!
Union of the S.A. Republic and the lijdenburg Republic

24 Nov. 1859
Justices of the Peace, 22 July 1870 .
Resolution of the Volksraad, 6 Nov. 1871
Instructions to the Treasurer-General, 27 Dec. 1871
Resolution of the Volksraad, 25 July 1872
The Franchise Law of 1876 . >
Th6 Military Service Law of 1 876
Resolution of the Volksraad, 15 June 1876
Resolution of the Volksraad, 7 March 1877
Government Notice, ii April 1877
Annexation of the S.A. Republic, 12 April 1877
Proclamation, 12 April 1877 .
Convention of Pretoria, 3 Aug. 1881 .
Proclamation, 8 Aug. 1881
The District Councils Law of 1883
Government Notice^ i Oct. 1883
The London Convention, 27 Feb. 1884
Form of Warrant of Arrest, 1884
Resolution of the Volksraad, 17 Sept. 1884
Resolution of the Volksraad, 3 Oct. 1884
Resolution of the Volksraad, 3 Nov. 1884
Resolution of the Volksraad, 22 Oct. 1884
Resolution of the Volksraad, 29 June 1886
Resolution of the Volksraad, 7 July 1886
Resolution of the Volksraad, 9 May 1887
Resolution of the Volksraad, 21 July 1887
Representation of Public Diggings, 11 Aug. 1887
The Dutch Language made Compulsory, 30 July 1888
Resolution of the Volksraad, 9 May 1888
Resolution of the Volksraad, 27 May 1889



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XV



NO. TnXE AND DATS.

V218. TheGiondwet, 19 Nov. 1889 .
N219. Law to establidi Two Volksraads, 23 June 1890
22a Modification of the 1882 Franchise Law, 23 June 1890

221. Resolution of the Volksraad, 11 Aug. 1890 .

222. Resolution of the First Volksraad, 31 July 1891

223. Resolution of the First Volksraad, 26 Aug. 1892

224. Law to explain and modify the 1891 Franchise Law, 20 Sept,

1893

225. Resolution of the First Volksraad, 23 Aug. 1894

226. Resolution of the First Volksraad, 25 July 1895
^ 227. The Grondwet, 13 June 1896 ....

228. Law regulating the Right to expel Foreigners, 8 Oct. 1896

229. Resolution of the First Volksraad, 17 Aug. 1896
23a Resolution of the First Volksraad, 4 Sept. 1896
231. The Legislature v, the Judicature, Law No. i, 1897 .
•232. Resolution of the Fijst Volksraad, 22 July 1897

V 233. Resolution of the First Volksraad, 27 Aug. 1897
234. Annexation of the S.A. Republic, i Sept. 1900

The Transvaal : Administration of Justice, 1902-1910
The Transvaal : Municipal Government, 1902-1910 .
The Inter-Colonial Council, 1903



PAGB

485
488

495
498
499
500

-500
502
505
505
505
508
508
508
513
514
514
515
516
516



CHAPTER V.
The Union of South Africa.
' 235. The South Africa Act, 1909 .



517



Appendix A.

236. Charter of the British South Africa Company, 29 Oct. 1889 . 559

Appendix B.

237. Agreement between the British and German Ck>vemments

respecting Africa and Heligoland, i July 1890 . 567



Appbndix C.
238. The Capitulation in German South- West Africa, 191 5



570



Ihdsx



573



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SOME ABBREVIATIONS EMPLOYED.

\. C, of G. Hope Statutes : Statutes of the Cape of Good Hope,
1652-1895. Edited by Hercules Tenant and Edgar Michael
Jackson. Cape Town, 1895.

2. Lattfs of the O.R.O"^ Statute Law of the Orange River Colony.

Edited by P. L. I^febvre and Bedver B. L. Jackson. Bloem-
fontein, 1907.

3. Locale Wetten der Z.A. Rep. : Locale Wbtten en Volksraads-

besluitsn der Zuid - Afrixaanschb Rbpublibr, 1849-98.
By various compilers. Pretoria, 1887-99.

4. Ords. of Natal : Ordinances, Proclamations, etc., relating to

Natal, 1836-55. By W. J. D. Moodie. Natal, 1856.

5. 0,V.S. Wetboek: Wetboek van den Oranjevrijstaat, 1854-91.



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