G.W. Eybers.

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

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legislature sitting at Cape Town they would be at iiie ijiercy
of the inhabitants of Dutch descent who were in the majority.
Besides, they were near the Kaflftr tribes and had often had to
bear the brunt of a Kaffir invasion while troops were being
hurried from Cape Town over the six or seven nundred miles
of road to their assistance. If a government were situated
at Grahamstown it could direct the management of the eastern
border more satisfactorily. For these and other reasons the
majority of the people of the Eastern Districts had been
agitating for a division of the Colony, but ultimately the
decision of the matter lay with the imperial authorities, .and
the people who had only lately united tne two Canadas could
harmy be expected to retrace their steps in South Africa where
somewhat sunilar conditions prevailed. The firm attitude
they adopted probably no one regrets to-day. In 1850 the
interests of the Colony as a whole and those of Great Britain
were really identical, for the Eastern Province standing alone
could not have coped with the pressing troubles incidental to
the presence of powerful native tribes on its borders, and would
have had to rely on the assistance of the Government in
London. This would have meant the continued presence of
strong forces paid out of the imperial treasury and conse-
quently an extended period of paternal rule ; for, when once
separated from the rest of the Cape Colony, the Eastern
Districts would probably not have looked for aid to the Western
Province any more than they would have looked to New
Zeakuid or Jamaica. Moreover, in the Western Districts
was a minority of burghers of British descent, while in the
Eastern Districts there was a strong minority of Dutch extrac-
tion. It would have been a temptation difficult to resist for
the majorities in each half to ignore the interests of their
respective minorities, but as matters remained ndtiier party
was so overwhebningly powerful in the common Parliament

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The Cape of Good Hope, 1854-72 xxxv

as to be able to neglect the interests of the other. On the
other hand, if the parties continued to stand on national lines
and emphasise national aims, they were none the less made
to see the necessity of co-operating, to acquire the frame of
mind which recognised that mutual respect and goodwill
were indispensable, and in course of time the lines of cleavage
were bound to become less and less pronounced. Had the
British Government not benefited by the Canadian object-
lesson, had they been swayed by the exigencies of the moment
instead of looking ahead, co-operation and union in South
Africa would undoubtedly have been more difficult of accom-
plishment than has been the case. As it was, they practicsdly
placed the power to legislate for the country into the hands of
a majority of Dutch-speaking colonists, fully knowing that
they were doing so, and fully aware that this would be the
situation for many years to come. Indeed, no other course was
open, for numerically and economically the older inhabitants
were incomparably the stronger. Yet, not to deny the request of
the British settlers absolutely and irrevocably, they empowered
the Governor to call the new legislature at any place which
he might consider best, and permitted that body to make any
alterations that might seem desirable. The first meeting. of
the first Parliament held on African soil came together in Gaipe
Town on the sdth of June 1854.

§ 2. The Cape of Good Hope, 1854-72.

Though the legislature was wholly elective except for the
presidency of the Legislative Council, which was occupied by

What repre- ^^^ ^^^^ Justice iu virtue of his office, the executive
senia^^ power remained in the hands of a body of high

^^'Jl^jj*** ofiidals, the chief of whom occupied seats in either
house though without the ngtd to vote. The
Colony had thus reached a stage similar to that at which England
stood during the early years of the eighteenth century, before
Sir Robert Walpole became the chief Minister. The legislature
was an elective and representative body, but the Ministers
were still appointed by and responsible to the Crown. But
in Great Bntam there was an upper house which was for the
greater part non-elective and non-representative, so that in
this respect the colonial lerislature was from the very start
ahead of the Mother of ParUaments. There was, too, another
point of importance. In 1775 Edmund Burke made it clear
to his electors at Bristol that in every question brought before
Parliament it was he as member who was to decide, and not
th^ as constituents. This principle, it has been said by a

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xxxvi IntroducHon

distinguished author i who ought to know, is still the guiding
principle of most members in Great Britain to-day. At the
Cape this principle was denied from the very start. Members,
when elected, were instructed — there is no other word to use —
to act on broad issues in a certain way. Had they not signified
their intention to act in such a way they would not have been
elected ; and having signified such an intention, and having
been consequently elected, they were bound to adhere to their
undertakings or to resign their seats. If it were not so, de-
mocracy would not be anything real, and party government
would be an oligarchic rule. So many thousand men selected
one man to represent their views on certain matters and to
do his utmost to get those views enforced. If at any time
he found that he could not continue to support those views,
it was his duty to make place for some one who could, though
nowhere in the Empire has a law yet been passed cpmpeUing him
to do so. Occasionally a member would be sent to Parliament
on the understanding that he would act at his own discretion ;
then the case was different. And there were always numberless
matters on which a constituency could not, or at any rate did
not, make up its mind. In every such case the member
would act as seemed best to him. Of course the system
could not have been worked out with ease but for the advent
of railways an<J telegraphs; but even as matters stood in
1854 the responsibility of members to then* constituents,
which was admitted on all sides, was preparing the way for
party government with all its advantages and drawbacks.
The difficulties that stood in the way of making the executive
responsible to the legislature seem very trivial to-ckiy.

Less than two months after the first session of Parliament

commenced, a motion was brought before the Legislative

The Colony Assembly stating that the experience of the session

desires showed that hitches in the free-and-easy action of

^^ the legislature had occurred through the absence

power, ^j responsible Ministers. This opinion was to be

laid before the Secretary of State with the request that

he might be pleased to convey to the Colonial Government

the conditions on which responsible government could be

conceded to the Cape.* Early in the next year a motion

to this effect which also provided for the appointment of

a select conmiittee to consider the question was carried

by 23 votes to 9. A month later a . similar motion

came before the Council which declared " That in the

opinion of this Council the principal officers of government

should be appointed by the Governor, from among the members

* Sir Courtenay Ubert, Parliament, pp. 159-60.

• C, ofG, Hope Votes and Proceedings (No. T32), p. 152.

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The Cape of Good Hope, 1854-72 xxxvii

of both Houses^ and that they should hold office only so long
as they possess the confidence and can ensure the co-operation
of the legislature." ^ On the part of many men in Parliament
and in the country there was a strong desire to proceed to
the further step as soon as possible. Select committees
appointed by both houses recommended the change, but the
Government in London naturally wished to see first how
the new institution would work. Besides, there were other
pressing matters enough to consider. One of the first measures'"
adopted provided for the introduction of trial by jury in civil
cases.* The country had got over its early objection to the
jury s)rstem. Then came tiie creation of Divisional Councils
to manage the several districts much on the same lines as the
old boards of landdrost and heemraden had done, except that
the members of the councils were now made not only to be
representative of the people but actually elected by them.*

There were certain issues before the coimtry on which the
electors and the members of Parliament gradually ranged
c^,„p^ ^f themselves into two main parties. On the question
puiucai of the introduction of convicts the population had
^^y^- been all but unanimous. There had been a small
section centring round the editor of the Grahamstown Journalr
which supported the scheme, but it was not strong. On the
question of granting representative government there had
been a party, small but able and determined, which desired
to reject the scheme of an elected upper chamber, and some of
whose supporters had also favoured the introduction of con-
victs. These men had a paper too, the Cape Monitor , which
may be described as the government organ of those early days.
Directing its efforts towards the postponement of the repre-
sentative government plan had been a strong party which
voiced their opinions in the former of these journals. After
1854 tills section continued its efforts to obtain either a division - ^
of the Colony into two parts or the transference of the seat of
government to Grahamstown. They fought the first and the
second dection mamly on this issue, and when the matter was
brought up for discussion in the Assembly it gave rise to some
of the most dramatic scenes witnessed m the Cape Houses.*
But the majority of the people were opposed to separation,
and the plan was badly defeated in 1861. The desire to
separate was entertains mainly by the burghers of British
stock residing in the south-eastern parts of the Colony. It
was in the main the same people who opposed the grant of
respon^ble government for the same reasons as they had

» Minute XL. of the CofC. Hope Legist. Council, p. 5. .

•No. 79. 'No. 57. ^

* J. H. Hofmeyr. Het Leogn van J. H. Hofmeyr. p. 104.

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xxxviii Introduction

opposed the establishment of representative institutions,
though there were throughout the Colony men who wished
to see self-government postponed, but for dijBEerent reasons.
It was f ear^ by the conservative element in the country that
a leap taken too soon would fail to reach the mark, for, they
argued, the men who were to take resi)onsibility for the per-
formance of ministerial functions had still to be trained. This
view was drfended by one of tiie Dutch journals, De Volks-
vriend. On a third question the issue was not so clear, though
it was roughly the same leaders of public opinion who stood
for a vmit^ Colony, for responsible government, and for the
voluntaiy principle in the churches. By the last phrase tiiey
indicated, that State assistance to a few favoured denominations
like the Dutch Reforms! Church and the Anglican Church
should cease. It may be argued that these issues were of
temporary interest only and could not have divided the
coimtry permanently on party lines. That is true, but the
fact is that they were not so much issues in themselves as
manifestations of party feeling which had existed all along,
but which came definitely to the surface in connection with
discussions relating to the constitution. The attempts made
from the early years of the century to change the language of
the Dutch burghers had not been successfri, the removal of
their old institutions had given them a grievance, and the
recent aimexation of the Orange River Territory to the British
Empire had caused much Ul-f eding towards the British Govern-
ment and towards their fellow-burghers who supported it. In
the country itself the chances of co-operation between the
British ana Dutch colonists had been so few that national
divisions had not yet had a chance of being obliterated. What
was needed was some firm common ground on which they
could meet, and this had not yet shown itself, so that political
parties were also national parties. Yet it should be under-
stood that during the penod of representative government
the parties were by no means well organised or even so clearly
defined as they afterwarck became. One incident that helped
to keep English and Dutch apart was when in 1865 the Cape
legislature was made to annex Kaffraria in response to the
wishes of the eastern inhabitants after it had refused to do so.^
The question of responsible government was intimately
coimected with the questions of expansion and defence. Up
The question to about the year 1833 the burghers had been
of defence, largely responsible for the defence of their own
frontiers against the natives, but on philanthropic grounds
the commando system which was in vogue was objected to in
England, though in 1852 it was advocated for readoption in

^Corresp.iel. to the Annexation of Br. Kafi., presented loFeb. 1865. Cf.No. 32.

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The Cape of Good Hope, 1872-1910 xxxix

the House of Commons.^ Then imperial troops had been
employed to assist with the Kaffir wars. By 1850 the military
expendittire supplied from the imperial treasury was amounting
to about £3,000,000 per annum for all the colonies. This
sum amounted to less than 9s. in the poimd on British exports
to the colonies. This state of affairs had improved the chances
of colonial self-government, for it had forced colonial statesmen
in England to lay down the thesis that " if these colonies were
governed as they ought to be governed, no troops ought to be
maintained in them at the expense of the Umted Kingdom,
except for strictly imperial purposes, and that the expenses
of all troops required for local purposes ought to J)e paid by
the colonies." • Therefore the local government ^ould be
given the direction of the officers who managed relations with
the frontier tribes. It had been adopted, then, as a standing
rule of the Empire that when responsible govenunent is given
to a colony it must provide for its own internal order and for
its defence against savage peoples on its borders.' At the
Cape this caused some of the people to waver in their desire
to possess full self-government, but the real opposition to the
scheme came from the men from the East, who believed they
would see as a result of the withdrawal of paternal government
a neglect of their special interests. It became known in 1867
that the imperial authorities, desirous of establishing govern-
ment by responsible Ministers, intended to Mdthdraw the
troops in any case. By that time it had become abundantly
obvious that the activities of the executive and tjie legislature
were bound to end in a deadlock, the former having repeatedly
spent much more money than had been authorised by the
latter. Finally, the Governor began to make proposals which,
if carried out, would place all control in the hands of the Exe-
cutive Council. Under these circumstances the party opposed
to res}>onsible government lost ground, and after some difference
on the subject between the Legislative Coimcil and the As-
sembly a Responsible Government Bill * was passed in 1872
and, iiter being reserved by the Governor, received the royal
sanction bj^ore the end of the year.

1 3. The Cape of Good Hope, 1872-1910.

During the responsible government period of the Cape of

Good Hope there is a good deal of pariiamentary history, but

PoUHcai ^^^^^ constitutional history. The Colony was now

Tiwammiof two hundred and twenty years old, and two

ike coiomsis. hundred years before the grant of responsible

goveniment the burghers had been given the direction of

» HansaxcL 3 S., vol. 120, p. 736. ■ Ibid. vol. 1 15, p. 1372.

» Ci.[C.-328ol,pp. 1-15. * No. 34.

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xl IntfoiucUon

their everyday life in their local courts and boards. Though
that privilege had been gradually removed during the years
1806 to 1828, the arrivaJ of the British seittlers from 1820
onwards had caused them to cultivate an interest in the
activities of the central government which had been too
often lacking during the first quarter of the nineteenth century.
The justices of the peace ^ and the field-comets throughout
the country had been passing through a period of apprentice-
ship in the art of government. The training and experience
gained in the municipal boards and the road boards • was also
valuable, whilst the civil commissioners and resident magis-
trates were a valuable dass of public officials on whom the
Ministers were to rely in years to come for information on
matters of the most varied nature pertaining to their respective
districts. Perhaps there was no other class of civil servant
which contributed so much to the success of legislation or the
smooth working of the administration as these officials. The
experience which an important body of men had been gain-
ing in Pariiament since 1854, ^nd the education which the
whole of the population had undergone during the election
contests and through the English and the Dutch press, pre-
pared for the smooth working of the new form of government.
Aiter the Bill of 1872 had been adopted by both houses of
the legislature the Eastern Province party again moved for a
division of the Colony ; but as the local aspirations of Grahams-
town, Port Elizabeth, and King William's Town could not be
accommodated, and as the midland districts included in the
Eastern Province were opposed to separation, the scheme
was eventually abandoned.

Indeed a movement in the opposite direction had set in.
Instead of the two constituencies into which the coimtry had

Unification been divided for the election of members of the
^^widvu^y upper chamber, which had done so much to keep
tmergence'of the separatist spirit active, it was proposed to form

fhs people, seven electoral divisions. The number of elective
members was now twenty-one, so three members could be given
to each constituency, and electors could be allowed to give all
their three votes to one candidate or to distribute them as they
pleased, thus extending to definite small areas the principle
of the representation of minorities within those areas. The
measure was adopted in 1874,' and constituted in a mild way
a victory of the farming community over the townspeople, while
it obviously made the Legislative Council more representative
of the Colony as a whole than it had been before. Ine members
now held their seats for seven years instead of ten, and con-
sequently were more under the control of the electorate than

* No. 72. « No. 56. » No. 3S.

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The High ComnUssionership xli

they had been before. Another measure that bore dear evidence
of the rising influence of the country people was the first Act
passed in 1882 which permitted the use of the Dutch language
in both houses of Parliament.^ And this privilege was soon
extended to the courts of law.* During the last thurty years of
the century various native territories were annexed to the
Colony, thus adding a considerable nmnber to the native
population. It was considered desirable, therefore, to require
a Slight education test of all new applicants for registration as
voters, and at the same time other qualifications of electors
were also raised.* The next great constitutional step that
affected the Cape of Good Hope was the Union of the South
African colonies. A word must now be said about the High
Commissionership, an office which contributed a good deal
towards the achievement of that end.



On the loth day of October 1846 the Governor of the Cape
was appointed " Her Majesty's High Commissioner at the Cape
of Good Hope for certain purposes.' * In part this was intended
to give a more formal recognition to the authority which the
Governor had exercised tiff that time, in part it was laying
duties till then performed by the Lieutenant-Governor of the
Eastern Districts on the supreme authority at Cape Town ;
but it was also a measure intended to meet the growing com-
plexity of South African affairs.

Firstly, the Governor had from the commencement of British

rule managed the relations of the Colony with adjoining native

The needs to tribes subjcct to the direction and control of the

he met by Government in London. These powers were

tke office, exercised by him alone till on the appointment

of a Lieutenant-Governor for ^the Eastern Districts in 1836,*

the second phase opened. The Governor's authority began to

be shared in this respect by the new official. During the next

ten years treaties with natives were concluded by both men,

but the acts of the Lieutenant-Governor had to be ratified by

his superior^ In 1845 the office in the east began to fall into

abeyance, though it siurvived in a tentative sort of way for a

few years longer. In the third place there had arisen other

European communities in Natal, m the Orange River territory

« No. 38. • No. 86. • No. 48.

* Pttrl. Papers, C. of G. Hope, Kaffir Trvbes ; Feb. 1848, p. 5. • No. 25.

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xlii Introduction

and across the Vaal, creating a diversity of problems which
seemed to call for a special delegation of powers by the imperial

The commission of 1846 did not yet employ the phrase

" High Commissioner for South Amca," but this was a

The funoions ^^^^ detail. That official was apj>ointed " for the

of the High settling and adjustment of the affairs of the
^^^'*"**^'"*^' territories in Southern Africa adjacent or con-
tiguous to the eastern and north-eastern frontier " of the
Cape Colony, and he was to take measures to prevent attacks
of the native tribes inhabiting those temtories and to
place them under some settled form of government. Sub-
sequent commissions conferred similar powers, though the
manner of exercising these was prescribed in greater detail as
time went on. In 1849, after assimiing authority over the
Orange River Territory, the High Commissioner soUcited and
obtained a commission appointing him Governor of the new
dependency. A similar procedure was adopted at the end of
the South African War with regard to the Orange River Colony
and the Transvaal. The High Commissioner came to hold
a multipUcity of offices. At various times he became the
supreme head of such territories as Griqualand West, Basuto-
land, Bechuanaland, Rhodesia, etc., receiving instructions as
to the functions he was to perform in each.^ He m^s the repre-
sentative of the Crown in the sub-continent, the link uniting
all the varying conditions of the various peoples, the imifier of
j>olicies, the Empire's agent.

But he became all that only because he was as a rule the
Governor of the Cape Colony. Till about the year 1890 South

His success AMca's mother-colouy surpassed all the other

^^ ws territories put together in wealth and imj>ortance.
: GoSsrnorof In cxtencung her South African empire the

the Cape, home countiy was wise enough to employ as a
stepping-stone the foothold she had won. The High Com-
missioner was Britain's right hand, the Cape Colony was her
lever. Sometimes the Colony ^mbled and occasionally she
maintained an attitude of passive opposition, but in the end,
with perhaps one or two exceptions, she always adopted the
desired course. From the outset the governorship and the
high commissionership were inextricably interwoven. The
High Commissioner employed the pubUc seal of the Colony for
his formal official acts. His legal adviser was the Attorney-
General of the Cape Government, and when he proposed to take
an important step he consulted at first his Executive Council
in an informal manner, and after responsible government was
introduced, his Ministers. As most of the native territories

* See. e.g.. Pari. Papers, S.A., 130. 14 Ap. 1905.

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The High Commissionership xliii

were made dependencies of the Cape of Gk)od Hope any other
course would have been open to senous objections. We are for-
tunate enough to possess an authoritative statement on the
|xacticethat<euiie to govern the relations between the HighCom-
missioner and the Cape Ministry, In 1888, in reply to a question
put in the Legislative Council, the Treasurer-General stated :
" It is not the duty of the Ministry of this Colony to advise the

Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 4 of 70)