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Select constitutional documents illustrating South African history, 1795-1910 online

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was, moreover, a very troublesome Colony, inasmuch as it had
at an early date broken away from the ordinary rut of factories
and out-stations owing to the presence of a large body of free
settlers, who devoted themselves to pastoral and agricultural
pursuits rather than to trade and barter.

After the middle of the eighteenth century the people
made demands for govemmentsd reform which became more
Dificuuies of and more far-reaching and insistent. The great
ihecakmists. \yix\jji, of the affairs in which the colonists were
concerned was already being managed in the local courts and
boards by men of their own class, selected from their midst
and in S3rmpathy vdth their wishes and requirements. It is
possible, therefore, that they would have remained content for
many years more with the established order of things, but
there were mainly jyri nity^^ypc^^^rAc wVi^^^Vi ^^^utfid thnm to
move. The Nethed^feCPJapSiifly WAS, a body trading for
profit and~ft >esefved to itseU an almost exclusive right of

4 a3e Irt the C ape. This was a very old grievance with^^he
uSabitants. Th e otfaey* source of trouble arose from the Oct

^ that during the last:jaaaxtocL(ff' the" pigtitpenffi" .century^ V^e'
eastern bQjqgr^^e Colony beganto^e threatwed by power-
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xxvi Introduction

fill an^ h^H-^cMine F^^^ tribes. In earlier years conflicts
with the Hottentots, Bushmen, and bands of escaped slaves
could be concluded successfully by a commando called together
in a district or a ward without the Government's interference.
But the Kaffirs were a new factor and far more difficult to
dispose of. Yet it was just at that time that the Company
was passing through its final period of decline. It cUd not
affoixlits subjects the protectioaof which they stoocTm need.

During the last quarter of the century, too, the people were
inspired first by the teachings of the American War of In-
Anemptsto dependence and then by the French Revolution,
win reform, and they began to think and talk about the con-
stitution, about fundamental laws, and about the rights of man.
Their difficulties were discussed in the light of their experience
during previous years when they had found it impossible to
obtain any guarantee for the permanent redress of their
grievances. Arriv fog in A msteraamr 4heir delegates., pleaded
with the directors of the Company and with thp States General
for rnnQf if iif if^T^f^,^ HSfitf ^^^^ Some years were spent in discus-
sion and negotiation. The Company was hastening to its fall,
and the States General, realising that any weakening of the
authority and prestige of the Company, which was a huge
national concern in whose welfare the whole of the people was
directly concerned, would be fatal at that time when the
political situation in Europe was in a vety disturbed state,
were unwiUing to coerce the directors. Commissioners were
sent to the Cape, however, to try to allay the unrest, but the
improvements which they brought about did not meet the
chief needs of the burghers. FaiKafrjto^- eb t ahi tomp liance
with their demands, _which included ^qud representation with
the employees of the Company in ihe Council xrf 'Government
and a considerable curtailment of the powers of the fiscal,
th^ people rose in rcfvolt. At Graafi Reinet and SweUendam
the Janddrosts were expelled and miniature republics set-up
ia^;29$*. The Government was unable to reassert its authority.
Bt ^ e nbes e h was on the point of rising and Cgge^XQWU was
expected to follow the example of the other centres. But
mfiagjyhik .war had hrgken -oat between France -^md Oreat
JBriiaia, and the Nethftrlands had attached itself :tQ the French
ansL^xpelled its . stadtholder, the Prince of Orange, paying
fled to JEnglstnd, lie sent with an English expedition intended
to capture the Cape an cMder ^ instructing the Government to
admit the 3riti3b forces into the Colony. After some fighting
Qipe Town capitulated » and the Soutii African repubffiT^as
strangled at its birth.

* Document No. 2. • No. 3.

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The Cape of Good Hope, 1795-1854 xxvii


CROWN, 1795-1910.

Taking as a basis of division the three forms of colonial man-
agonent, Crown Colony Government, Representative Gk)vem-
ment, and Responsible Government, the constitutional history
of the Cape Colony falls naturally into the following periods :

(1) 1795-1854.

(2) 1854-1872.

(3) 1872-1910.

§ I. The Cape of Good Hope, 1795-1854.
Up to the year 1824 the central government had no history
worth recording, except during the period 1803 to 1806 when,
The Governor ^Jider the Batavian Republic which received the
m Minohiu couutry by the Treaty of Amiens, the Governor was
fuUr au 1825. assisted by a Council of four, of whom at least
one had to be colonial bom and no one could be a govern-
ment official. In 1806 when the country was conquered a
second time it reverted to the position that existed from 1795
till 1803. Every public act done derived its validity from
the sole and undivided and unadvised authority of the Governor.
He directed by proclamation, instructions, and commissions
literally every matter, from the manner of drawing water on
the Cape Town square to the quelling of rebellions on the
eastern frontier. All the powers of government, as well civil
as military, were vested in him by instructions issued in 1796
to Hie first civil Governor, ^ and he had the sole legislative
power in the country, giving his own reading of the old laws,
modif3ang them at pleasure, and enacting new ones. He
increased the amount of old taxes and levied fresh imposts.
He regulated the tenure of land by fixing or reducing the
amount of perpetual quit-rent. The governors exerci^sd a
general control of the administration of justice, and with one or
more assistants, whose opinions had no binding effect on any
decision, the successive governors sat as courts of appeal to
try civil and criminal cases of a serious nature.* The
Governor appointed nearly all the officials except the very
highest, and he could remove any one of them except the
Lieutenant-Governor and the Secretary. He took away the
power of initiating measures and enterprises from the local
boards and made mem the instruments of his own will, while
the policy was adopted of appointing to the post of landdrost
in the various centres military officers who had retired on half-

1 No. 7. » Nos. 65 and 66,

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xxviii Introduction

pay, and who were but very slightly acquainted with the
language and customs of the people or with the laws which
they had to administer. In many notable instances these
extensive powers were employed to the distinct advantage of
good government. Arrears of oppressive taxes were remitted,
torture as a means of eliciting evidence or punishing crime was
abolished on a Governor's recommendation, judges were sent
on circuit to try cases in all the districts, ^ judicid proceedings
were ordered to be held in public,* and criminal jurisdiction
was granted to the district courts,* thus obviating the
tedious necessity of referring trivial cases to Cape Town. It is
a curious fact that all these measures, which probably no one
will regard otherwise than as eminently wise and statesmanlike,
were adopted while the Governor was the supreme and sole
ruler, whereas subsequent legislation which was most seriously
complained of as short-sighted and oppressive was passed by
Cpuncils which were established in 1825, and later with the
object of assisting the Governor and limiting his power.

A despotism is not necessarily bad for a country : at times

it is the only chance of salvation. But certainly the large

AiHiude of body of British settlers who arrived in the Colony

the British in i82oaiid - 6»bsequeat J^cars did not th ink so.

settlers, and is^^ ■ ■ ' . r .•• r-"*^^-^ Ttr"

of the Dutch ruF^e rest of the century these men were to have
burghers, a bracing effect on the thorough but slow-moving
Dutch burghers. As s ^oon as _their immediate- «Mtterial
needs were satisfied they commenced io agitate for a share
in the government, for the freedom of the press, and for
the right to hold public meetings. The second of these
privileges they soon gained — ^f or the pothers they had to
wait more than twenty years. Being for the greater part
men of intelligence and. sterling meriti and having influential
friends in Great Britain to plead their cause in Parliament
and before the country, they were hopeful that a speedy
change in the form of government would be effected ; but the
imperial authorities knew that it would take some time before
they could establish a firm hold on the old inhabitants, and
therefore -while e|]ga^edJui-£stablishing the-English language,
English law, and British institutions they realised that it was
necessary to have in the Colony a government wholly respon-
sible to themselves. The Dutch inhabitants asked for elective
district government on more than one occasion. TheLfigsential
charartfiristirs ,q£ their, rbs^ were a ritrong -ffirrrif'fflfi and a
marked individuaHsm devdoped on the veld in semi-inde-
pendent districts. They did not yet realise that under British
rule their cherished land did not lie along those paths, for they
were as yet quite unfamiliar with the British Constitution.

» No. 67, « No. 68. ' No. 70.

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The Cape of Good Hope, 1795-1854 xxix

They would have to make a complete break with their past
history, going in a direction opposite to the one along wnich
they had come. Instead of gaming liberties in separate areas,
and freedom from unnecessary interference on the part of ^e
British Government, they would have to realise that British
sovereignty was firmly established, and that it had become
necessary to look at the pivot and get the government into their
own hands. That was the great constitutional lesson which
the British settlers had to teach the Dutch burghers ; for the
latter, when they came under British rule, had fallen back
into their early groove of localism, out of which they had been
toiling laboriously during the eighteenth century. They were
hardly aware how nearly their halting footsteps had brought
them to the promised land of self-government m 1795.

The teacners were able and determined, and the example
they set would have been plain if their pupils had been able
Diiicuuus in to read their newspapers or associate with them
*J^~y?/ regularly; but bdng unable to comm^dJth^English
^baSZntZp langua ge, and ^^^J^^^r^T^^^^'^^^''^^^" Hin^^nnnoc
coionists. VrfTTTi t]^£ jif wfofflf f^i. the burghers can hardly be
blamed for failing to master the lesson rapidly. No nation
can unlearn dR tibe lessons of its past history and acquire
a new set of political ideals within the space of ten years. And
there was the grave complication that the people were under
a foreign rule and that they were intensely conscious of the
fact. Nor did the Crovemment give a distinct lead. It was
never clearly and authoritatively stated in a manner that
could be understood by the bulk of the inhabitants that there
was a real intention to grant them at some future period the
nanagement of their own affairs. On the contrary, the Council
tin Counca stsset up in IL8253. denied all hope," lor it consisted
Qf 1825. on^6rofficiaisj3Yfir,whflm> the. Governor had up to
Jiat time exercised'the most complete control, and who were
not in any way expected to represent the wishes of the people.
The members were to discuss and vote on measures proposed by
the Governor, but any member mi^t request him in writing
to bring up for consideration any matter. It rested with him
to decide whether this would be expedient. He could act
without the concurrence of a majority of his Council, but he
was not authorised to act in important measures without a
previous communication with them. If after such communi-
cation he took upon himself to act in opposition to their opinions
he incurred a responsibility which it might be quite necessary
to take, but with regard to which he was then bound to satisfy
the Secretary of State for the Colonies. The Governor couldi
suspend any member on grave issues demanded by the public

» No. 18. /

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XXX Introduction

interest, but here again the step had to be fully explained and
justified.^ Here was a first step preliminary to the intro-
duction of representative government. No one yet thought
of self-government. That was to be first invented in Cana(]Ui.
But the intention was to establish a legislative assembly as
soon as the older inhabitants should acquire a command of the
English language, and measures for the amelioration of the
slave population diould place the slaves beyond the reach of
colonial iq^slative control. The burghers were not attached
to the institution of slavery. Before the close of the eighteenth
century, and during the early years of the nineteenth, they
had several times been on the point of stating in so many words
that the whole system was bad, and should be swept away.
This was one of the chief items of the policy of the Batavian
Government during the years 1803-6, but by 1830 it was the
earnest wish of the inhabitants of the Cape in all walks of life.

In June 1828 there was started the Cape of Good Hope
Philanthropic Society,* for aiding deserving slaves and slave
The Cokmy^s children to purchase their freedom. The aim was
attitude to- - to mauumit as many female slave chilren as possible
w^dssUmerS' between the ages of 3 and 12, but without causing
grave pecuniary loss to their masters. The Governor was the
patron, and subscriptions were collected for accomplishing the
object of tiie society. The whole number of female slaves bom
annually did not exceed 600. A number of slave children were
actually freed in this way at an average price of less than £20,
so that ;f 12,000 per year would be need«i to prevent the increase
of female slaves. Many owners of slaves were zealous sup-
porters of the society. If the limds could be regularly procured
not a single slave would be bom after 30 years^and very few
after 20, Slaves of a certain age became freel&y an old law of
the Colony. If in addition to the work done by the society the
Cape revenue could be charged with twenty or thirty thousand
poimds per annum towarck this worthy object, every slave
would be liberated in less than ten years' time vathout any
cost to the British taxpayer. Petitions and addresses asking
that such a scheme should be adopted were all futile, though
they were warmly supported by the Governor. And if the
further colonial programme embodied in resolutions passed
in various parts of the country which offered to declare every
slave free at birth • were also worked out, there would not have
been a slave to set free by the end of 1838 ; but the intentions
of the Colony were distrusted in political, missionary, and
philanthropic circles in England, so that the emancipation
was eventually effected by an Act of the Imperial Parliam^t.

> Rec. XX. 5-6. ■ P.R.O.. MSS and pamphlets in CO. 48/131 and 48/141.
» Theal, Prog. ofS.A. in the Cent., pp. 185-6.

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The Cape of Good Hope, 1795-1854 xxxi

Another item of Batavian policy that was carried out by the
new Council was the consolidation and extension of Hottentot

In 1827, when the old jurisdictions of the local boards were
about to be removed,* two bvirghers were appointed to the

Tu Cornea Council, but they were pensioners of the Govem-
1111837 ment and were not looked upon by the colonists

mdi%i^ as representing their interests. Six years later a
new constitution came into being. There was to be an Executive
Council of five ofiBicials of the Government and a Le^ative
Council consisting of the same five officials, together with five,
six, or seven unofficial members selected by the Governor from
among the most considerable merchants and landowners of
the Colony.* The unofficial members could be dismissed by
the Crown within two years of their appointment, but if not so
dismissed they were to retain their membership during good
behaviour. The public were now allowed to attend the Council's
meetings. Within eight months of the first meeting of the
new l^^attu'e the colonists began to draw up another of their
numerous petitions for representative govenmient, but without
gaining any further concessions. The Legislative Council was
not in existence many years when the Great Trek * commenced.
^^ waft IT^^ in i>ny wny mycrn ni hlr f r r r th at mn-fi mnnt On the
contrary, it did what layjn its gower to check the emigration
by r<^toiing.^tb« people a SraLction of tlidr oldlocal liberties,^
while one oiitsjufimbers went out. of his way to plead the cause
of tfc.buTighffrs at ri^gardfr their district boards, which he stated
was also the cause of progress and wise govemm^it.* .

Meantime the old Court of Justice was abolished and by a
Ro]^ Charter of 1827 a bench was created consisting of four

-,. -^ judges. That instrument was superswed by

a//i«S^ another Charter of Justice in 1834J Up to this
1827 m^ time the Governor had appointed and removed the
' ^' judges at pleasure, but when the first Charter was
issued the judges hdd office during good behaviour, and it was
pointed out by the Secretary of State that the Governor's inter-
ference in the administration of justice between individuals
would entirdy cease.^ It was thought that the immediate
substitution of English Law for the Roman-Dutch Law then in
exigence would be too sudden a change and would give rise to
much confusion. The assimilation of the law of the Colony to
the law of England was therefore to be gradual. To carry out

* No. 20. ■ Nos. 54 and 73. • Cape Town Gazette, Jan. 1834.

* As the Great Trek of 1 8^6 led to the settlement of Natal and the two
Republics the matter will be ^cussed under those headings.

^No. 55.

* Colonel John Sell to R, W. Hay, 7 June 1834. P.R.O., MS. in CO. 48/159.
» No. 76. • Rec. XXXIl. 2 S4 ff • '

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xxxii Introduction

this plan smoothly the judges were ordered to submit drafts
of laws to the Crovemor as occasion offered for amending the
existing civil and criminal code. In this way commenced a
process by which the best elements of the two S3^tems of law
were gradually amalgamated. The establishment of trial by
jury in criminal cases was one of the featmres of the 1827
Charter. Under Dutch rule the institution had been quite
unknown, but its absence had been compensated for by the
presence as judges or magistrates of several members of the
burgher class in each of the courts of justice. It was in
terms of the Charter of Justice, too, that Resident Magistrates
were appointed to the various districts.^

Between 1840 and 1850 the demands on the part of the

colonists for representative government became very insistent

Growth of a and they kept pace vdth the growth in Great Britain

^^iTiL ^^ ^ liberal spirit which manifested itself during this
policy in decade. With the growth of the free trade move-
Engiand, meut which came to a head in 1846 and 1849 and
of liberalism in general came a ready willingness to allow
the colonies to manage their own internal affairs. Not
that people were indifferent towards the colonial empire or
believed that in any case the fruit would drop from the tree
when ripe, for some of the most fervid advocates of colonial self-
rule, like Lord Durham and his circle, were the staunchest of
imperialists. Rather, it was felt that the colonies were out-
growing the systems of the later eighteenth and the early nine-
teenth century, and that the true way to maintain the interests
of the Empire intact was not — as was believed for a long time
after the American Revolution — ^by keeping the various sections
under paternal guardianship. With regard to the Cape Colony
imperial statesmen believeu that this was particularly the case.
All that could be done to discourage the Dutch burghers from
joining their countrymen across the Orange and the Vaal should
be done ; and in 1849, when the Secretary of State sent a
number of convicts to the Cape against the wishes of the inhabit-
ants, the opposition which his scheme encountered came as a
revelation, the chief feature being the perfect co-operation of the
British and Dutch colonists in the stand they made. In attempt-
ing to carry out the policy of the British Government the
majority of the Cape Council completely lost the confidence
of the bulk of the inhabitants.

As soon as this became dear in England it was decided to
modify the resolution, already taken, to establish a bicameral
legislature with a nominated upper chamber, as requested
by the colonists in their petitions, and to erect instead an
elective upper house. Another reason given for the change

» No. 73>

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The Cape of Good Hope, 1795-1854 xxxiii

was that it was feared that some of the most eligible men
who could be elected to the lower house would be unwilling
Eimomfor to serve if the upper consisted of nominees.^
iJJJ^jjjjjjj^ After the convict agitation there was no longer
TISawi any room for a nominated body in the Colony.
fomiiMioH. Rdference was also made to the Britkh colonies
generally and to Canada in particular, and it was points
out that the nominee house had proved to be the weak
spot in all the constitutions where it existed. Thus, by the
decision of the home Government the Cape received a constitu-
tion* farjnoieJibecalthan that of any other colonjTexce^
Canada — ^where the principle of responsible government had
been introduced in 1846* — and of a more thoroughly repre-
sentative type than that which the inhabitants had asked for.
Not for several years to come was any of the colonies of Natal
or the Australian settlements to wm such liberal forms of
government, though at the middle of the century changes in
colcmal constitutions were the order of the day.

An dective s econd c hamber was not the only remarkable
feature aRmt the new constitution. The franchise was in
efiect quite low : male persons of an y col our wKo'^occupied
jfToperty to the value"oT£25, or drew a salary^ £50 per aimum
or of £25 per annum with board and lodging, could vote. There
had been some difierence between the British and the colonial
authorities on this point, the Cape Council having desired to
fix a property qualification ; but the Government in England
insisted on an ^^'paan^ yiaM^na^nn only, in the hope of
placing the more advanced secBSTof the native population
in possession of the franchise. Something was certamly gained
in the direction desired, but the bulk of the coloured people was
hardly benefited at all.

Another difficulty was how to prevent the upper chamber,
the Lqiislative Council, from being a mere duplicate of the
lower. The old plan of having an upper house of nominees
to safeguard the interests of the Crown having been abandoned,
what mnction remained for this Council to perform ? As a
matter of fact, it prolwibly was throughout its existence next
to useless ; b ut it wa^ ii^t^^ded to jgprjpisftnt the landed ^iass
^ki\ mn'ititntfrt ih^ bulk of thf pc^mlation, and to prevent
Ifi gKi^finn a r i oT P p^ni^ or any other • temporary force
from being effected without deliberate consideration and
discusaon. Both bouses were elected on the same franchise,
but while members of tiie Legislative Assembly were to possess
onljutfae qnalifiratinns of^an ordinary elector, those of the
« agc^Slj^haxnbeLJSrece'-ia have a high, property qualification

^ Haasanl, 3 Sir vol. 1 18, pp. 725-6.

* No. 39. ' Merivale, Led. on Coi,, p. 636.

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xxxiv Introduction

and to have reached the age of thirty years. By further
provisions which had the same object in view, the forty-six
members of the Assembly were to be elected by twenty-two
constituencies, while those of the Council were chosen by only
two constituencies, the E^em Districts and the >^^tem
Districts, in which the electors could distribute theirvoles
exacffy as they pleased. If wisely worked this last arrange-
ment could provide for the representation of minorities.

The division of the Colony into Eastern and Western
Provinces for electoral purposes was significant, for it arose
V Eastv. West from a desire on the part of the eastern inhabitants
inthe cokmy. either to have a government of their own, or to
have the seat of government in the east. They were mainly
of British descent, and feared that if they were represented in a

Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 3 of 70)