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High Commissioner. Their duty as Ministers is to advise the
Governor of the Colony. And the High Commissioner has
powers which he exercises as High Commissioner, with which
powers the Government of this Colony have no constitutional
right to interfere. At the same time he (the Treasurer-General)
wished it to be imderstood that the relations between the
Ministry of this Colony and the High Commissioner are as good
as can be desired. And although it is not the duty of the
Minisb^ to advise the High Commissioner, nor is it the duty of
the High Commissioner to inform the Ministry of this Colony
what he is doing as High Commissioner, yet the relations between
the two authorities are of that character that whenever the
High Conunissioner is acquainted with anything going on that
may have a relation to, or some effect upon, the interests of
this Colony, he does not fail to communicate with the Ministry
ujwn that subject. At all times he is ready to confer with the
Ministry on any subject that may have any relation whatever
to the interests of this Colony." ^ So far had constitutional
practice outstripped the written law that when the Secretary
of State's attention was drawn to this statement he had no
criticism to offer. It would be difficult to think of an}^ im-
portant subject whatever on which the High Commissioner
was called upon to decide, which had no relation whatever to
the interests of the Cape Colony, so that as a rule the High
Commissioner conferred with the Cape Ministry on steps he was
about to take. But Uke most other rules this one had excep-
tions, both before 1888 and thereafter.



SECTION IV.

NATAL, 1886-1910.

For the sake of clearness of treatment it is convenient to
divide the constitutional history of Natal into five wdl-
marked periods :

(1) 1835 - 38. (3) 1844-56.

(2) 1838-44. (4) 1856-93.

(5) 1893-1910.
'[0-5488]. pp. 21-2.

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xliv Introduction

§ I. Natal, 1835-38.

By the year 1835 a small number of British settlers had
congregated round Port Natal for the purposes of himting,

British trading with the natives of the neighbourhood, and
settlers in engaging in adventures of various kinds. They

Naiai, ^ff^xe quite imconnected with the British Govern-
ment or with the Government of the Cape Colony. In that
year they first formed the semblance of a ^ovenmuent by
appointing a committee of management of their affairs whom
they authorised to levy certain taxes and to perform some
public duties, mainly for the purpose of granting and distribut-
ing land in freehold among themselves, for from the start these
immigrants had been occup3nng waste land round the Bay,
and Ihey desired to show some form of legal right to the tracts
on which they had settled. Under the authority ^f the
committee they proceeded to make grants along the coast,
restricting the size of their farms to 3000 acres. The bound-
aries of these farms were never measured or clearly defined,
an approxiniate estimate was all that could be made and
care was taken not to encroach on their neighbours' lands.
The town of Durban was already growing up, and from that
port as well as from Cape Town requests were sent to England
asking that British authority might be established over the
district, one of the chief reasons given being that the United
States was likely to found a colony in the territory. Colour
was given to the statement by mentioning that a number of
American missionaries had arrived in the country. The
Colonial Office, however, took no steps, so that the small
commimity had to plod along as best they could. Some of
the white men gathered round themselves a number of native
retainers, thereby gaining the status of petty chiefs in the
co\mtry,i and presently they got involved in native disputes.
In the year 1838 an unwise attack was made by a large portion
of the feritish settlers at the head of a number of natives upon
Dingaan, the Zulu King, when they were destroyed almost to
a man. Most of the properties were thus left unoccupied,
and when a British Commissioner • visited Natal in 1843, ^^
found that only two farms had been regularly occupied for
any length of time. While Dingaan was destroying the white
inhabitants from the Bay, Natd was being entered by Euro-
peans from another quarter.

»c/. N0.91.

•H. Cloete's Report on iMftds in Natal, addressed to Secretary John
Montaga* Cape Town. 30th May 1 844. P.R.O,, MS. in CO. 4% I247.



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Natal, 183&-44 xlv

§2. Natal, 1838-44.

The causes of the emigration of Dutch farmers from the
Cape Colony in 1836 and subsequent years were of various
0^^^^^ kinds with different individuals. They arose
ike Great mainly from an unwillingness to be ruled over
^afcMT ^y ^ f oreipn powe r, from the absolutism of the
^^" rule, the loss of their i<ya] gnvpmjng hnriiAQ the
refusal to grant them rftprp sftn^ativf^ ^nstifii tioris. the many
harsh laws made for the b etter treatip^nt of slaves, the absence
of ade quate compensat ion when their slaves were set free, the
l ack 01 protection "aSainst native attacks. Most important
0! all the lactors was the desire for in<;^f;pf>nHAnr<:> the re-
publican spirit, which had grown strong by a slow but steady
process during the eighteenth century, the spirit which has
always been revealed in course of time by colonies planted
in every age and in all latitudes, and which at the Cape had
been cultivated by the liberal district government arrange-
ments, by the vast distances of the country, and by the loose-
ness of ihe government of the Netherlands Company. The
chief circumstances leading up to the Great Trek which were
uppermost in men's minck at various periods are indicated
in the documents,^ but of course there were some factors
which operated subconsciously and others which could not
be openly talked about when addressing an English governor,
and these can only be gleaned by a careful study of the
character of the Dutch bxu-ghers, of their previous history
and of their subsequent enterprises. If it is the historian's
task to interpret events as well as to chronicle them, he will
seek for the connection of the Great Trek with the history
of the seventeenth and eighteenth century as well as the early
nineteenth, and he will further consult the story of the trekkers
in the later nineteenth and the twentieth century.

Having been advised by the Attorney-General that there

was no convenient power by which the thousands of departing

Briii^pfficy ermgraxits could be prevented from leaving the

te«agjSg Cape Colony,* and having been informed by the

*^*^* Lieutenant-Governor of the Eastern Districts

that it was impossible to employ force to keep them in the

country, the Colonial Government adopted two outstanding

lines (rf policy with regard to the expatriated burghers. In

the first place, they laid down the theory that the emigrants

continued to be British subjects and liable to be dealt with

according to British laws no matter where they went.'

Secondly, they acknowledged the authority of some native

chief or other over tracts of territory in which the emigrants

* Noe. 92. 100. 106, and 107/ * No. 93. ■ New. 94 and 104.

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xlvi Introduction

had settied or seemed about to settle. This was done either
explicitly by means of a formal treaty or by n^otiations of a
more or less confidential nature, or implicitly by siding with
the tribes with whom the emigrants came into conflict. As
an aid to this second line of policy they prevented, as far as
lay in their power, the sending of fresh supplies of ammunition
with a view to making it impossible for the emigrants to
commit acts of aggression against any of the native tribes.
Great Britain was the paramount power in South Africa.
She was bound to grow progressively stronger. For better or
for worse she believed that she had the advancement and
well-being of hundreds of thousands of natives in her keeping.
If her policy has been at times tentative and uncertain in
many respects, her representatives have steadily attempted
to maintain the welfare of the coloured people when they were
at issue with the white men. As the farmers trekked eastward
and north-eastward in various parties they ^dually formed
themselves in the course of several years mto three main
groups, settling in the territories now called Natal, the Orange
Free State, and the Transvaal. It is with the first of these
groups that this section of the work has to deal.

Securing the cession of a large tract of land in Natal from
the Zulu long for services rendered**in 1837,^ *^ group of

Settument emigrants became firmly established in the country

of the in the course of the next two years, deposing

iTifaS^ Dingaan who acted treacherously and setting up

fkHfcon- another in his stead. A British force had lately
I stiiuHon. ly^Q^i stationed at Port Natal, but it did not interfere
much with the emigrant community which had settled further
inland. As to the form of government established by the
farmers, each party elected a leader, whose orders they gener-
ally obeyed while trekking. He was generally styled the
Commandant. It was his task to see that the members of
his party performed such duties as they were familiar with
according to the old Cape burgher laws. Some time before
the negotiations with Dingaan, one of the most able leaders,
Pieter Retief by name, was elected a sort of commandant-
general. Curiously enough he received the title of " governor,"
intended to signify, no doubt, that he was to exercise auth-
ority over all the farmers of the neighbourhood. Towards
the end of the year 1838 there was a Vo&sraad, i.e. a legislative
body chosen by the people. The members seem to have
belonged to one of the largest parties then in Natal. Gradually
matters shaped themselves as the danger of fresh attacks
from the Zulus became less menacing. From a letter written
by Captain Jervis, the commander of the British garrison at

1 No. 95.



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Natal, 1838-44 xlvii

the Port, and dated 27th March 1839,^ it is plain that a large
body of emigrants had by that time concentrated at the Bush-
man's Rand, the present site of Pietermaritzburg, with the
intention of laying out a town there. They had already
elected a Volksraad of 24 members, one of whom they had
appointed President. Judicial functions were exercised by
magistrates called landdrosts, each of whom was assisted
by six heemraden, elected annually. The landdrosts tried
sommarily all criminal cases in which fines could be imposed
amounting to 20 Rix-dollars. Sentences inflicting heavier
fines were subject to appeal to the Volksraad. In case of
murder or other very serious charges the magistrate was at
Bberty to swear in a jury of twelve who found the verdict. In
such cases the landdrost and the heemraden merely investi-
gated the charges. The constitution of the Republic em-
bodied every principle of government that the people had
been striving to establish during the previous seventy.years,
and the peculiarly EngUsh institution of trial by jury with
which they had become acquainted in the old Colony suited
their democratic ideals entirely, hence its adoption.

Negotiations with foreign powers were carried on and letters
were signed by the Volksraad as a body. In practice drafts of
laws were submitted to the people for their endorsement or
rejection. The State was small and its smaj^ess made the
procedure quite easy.

Was it a State at all, and is it correct to speak of the Re-
public in Natal? A constitutional lawyer would probably
Status of ike auswer the questiou in the negative. The emigrants
**vw«fc- were claimed as British subjects, and an Act
of the Imperial ParUament had referred to them as such.*
Parliament could undoubtedly legislate ex-territorially for
Briti^ subjects, if they were Bntish subjects. Did they
remain British subjects merely because they were regarded
as such ? Was it possible for them to discard their status as
subjects if they chose to become subjects of another state, but
impossible to lay aside that status when they moved into
unoccupied regions i - The Repubhc was never recognised by
any Power, and international usage seems to demand that
states newly created should be recognised by other civilised
states. Had the problem been brought before an impartial
arbitration court it would have made one of the most interest-
ing test cases in the historjj of the world. De jure there may
never have been a republic in Natal ; that such a state existed
in fact is obvious. It provided for its government, adminis-
tered justice, levied taxes, waged war, and concluded treaties
without reference to any other power. When the troops were
* P.R.O,, MS. in CO. 48 /200. • No. 94.



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X



xlviii Introduction

withdrawn from the Port in 1839 the British subjects remaining
there readily submitted to the Volksraad.

The interests of the British Empire could not permit an
independent state to grow up on the south-eastern seaboard
Afmexaiion of Africa. A proclamation was issued in 1841 by
of Natal, the Cape Governor* and military possession was
taken of Natal. Protracted negotiations followed and a good
deal of fighting, till towards the end of J §^ a portion of the
emigrant community capitulated and the rest trekked north-
ward to join their comrades beyond the Drakensberg. Those
who intended to remain behind made certain demands*
which if conceded would have placed them in the situation of
an average British colony possessing representative institutions
but without responsible government. No notice was taken of
the document embodying their requests. The next vear
Natal was annexed to the Cape Colony* and the inrant
Republic ceased to exist.



§3. Natal, 1844-56.

Intimately connected with the problem whether or not
Natal was a RepubUc prior to the year 1844 is the further
LegisiaUoH question whether after its annexation it was to be
for Natal regarded as a Colony acquired by conquest or
by the Crown, ceggion or by settlement. Up to the year 1887,
when an Imperial statute gave full power to the Crown to
legislate for all newly acquired colonies where there is no
existing civilised government, British constitutional theory
said that colonies acquired by settlement were not subject
to the legislative power of the Crown in Council, unless they
were made to be so by an Act of the Imperial Parliament.
Colonies acquired by conquest or cession, on the other hand,
fell directly under the legislative power of the Crown.
Cession is often a formal recognition of conquest. Now
for a good many years the Crown did in fact issue laws for
Natal, so that the conclusion must be, that the imperial auth-
orities in 1844 and subsequent years regarded the new territory
as having been acquired either by conquest or by cession.
No formal deed of cession was ever shown, only a general
statement by the Volksraad that they would not oppose the
annexation by forceful means. But this took place only after
the emigrant conmiunity had actually been fighting to oppose
British occui>ation and when they had become convmced
of their inabiUty to carry the struggle to a successful issue.
Natal then was acquired by conquest, and the instruments

* No. 104. • No. 107. » No. 109.



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Natal, 1844-56 xlix

regulating its government down to the year 1856 were issued
on the authority of the Crown in Council.

For one year Natal formed an integral part of the Cape
Colony, but the Cape legislature had to pass special laws for

Ufisuitum ^^ ^^w district and could not apply any old.

^^il^Sf^ laws or institutions to it without such specific
^^*"'^" enactment. This arrangement continued even
after provision was made in 1845 for a separate government
in Natal with a Lieutenant-Governor at its head.^ Till 1847
the Governor and Council legislated for Natal, setting up
municipal boards,* field-comets, justices of the peace, and
resident magistrates in imitation of the Cape models. A
district court* consisting of one judge ap[>ointed by the
Crown and holding olB&ce during good behavioiu: was also
erected, and the Roman-Dutch Law was established.*

Naturally this arrangement, .by which their country was
honoured with no worthier title than that of a District and

Desw€ofih€ was subject to a few individuals holding session at

^^^ a considerable distance, was not expect^ to satisfy

wt^. the inhabitants, and it did not. Before submitting
'■^*- to the new order of things the Dutch burghers
bad particularly desired that Natal should be constituted a
separate colony, and from the start the British settlers wished
to possess a legislative body consisting of elected members.
One step forward was taken in 1847 when Letters Patent *
were issued providing for a separate legislative body for Natal
consisting of three or more members appointed by the Crown
and holdmg office during pleasure. * General executive powers
were vested in the same oody, but the Lieutenant-Governor
was instructed to act without the concurrence of his Coimcil
whenevCT he felt convinced that this was necessary.

The establishment of a Legislative Council on the spot
came none too soon, for Natal already stood face to face with

Secasifyfor ^® great native problem. How could the Zulus
a local be governed? Should they remain under the

'****''*^^ authority of hereditary chiefs, and if so, was there
a sufficient guarantee (i) that the public peace of the country
would be preserved, and (2) that they would advance towards
the civilisation which Europeans have always regarded as a
good in itself ? Or should they be brought under the direct
rule of the Colonial Government, and if so, (i) what law should
be administered, and (2) was the Government prepared to
finance the administration, and (3) would not the resultant
contact with the very civilisation which it was intended to
impart effect the debasement and ultimate ruin of the race ?
Could the Zulus be put to any use for purposes of labour,

*No.iii. ■No.r32. «No.i37. *Noi36. •No.iia.

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1 tntroduOioH

defence, or commerce, and if so, what return could be made
them as a people for the services rendered ? The study of
native customs and native law in Natal was essential to the
good government of the territory, and the task could be
accomplished by the Council at Cape Town only in a very
perfunctory and half-hearted manner. A fuller consideration
of the various aspects of the native problem must be reserved
till the efforts to obtain responsible government are discussed.
While it was in the interests of the Empire with a view to
upholding its dignity and establishing its hold on the new

DifficuUies dependency that its officios should stand under

' in the way its direct control, the inhabitants believed it to be

rep^^^ve to their interest that they should share that

gooemmetu, coutrol. Of the European population those of
British blood were still the less niunerous section, though by
inmiigration they were steadily increasing in proportion to
the oQier settlers, and at the middle of last century ajiy govern-
ment in London which maintained a paternal rule in any
colony inhabited by a large number of British citizens would
have to make out before Parliament and country a strong
case for keeping up such a position. Besides, while the
colonial autihorities were negotiating in 1843 with a view to
taking over the government of Natal, the Governor had read
in the Legislative Council of the Cape a minute yrhich was
soon published in Natal and in which it was declared that
Her Majesty's Government was anxious to place the Natal
institutions upon such a footing, consistent witK^The main-
tenance of her royal authority, as might be most acceptable
to the bulk of her subjects.^ Yet the settlement was still in
its infancy, the Dutch farmers were disaffected, and it was
said that there was not one English inhabitant possessing
the imited cjualifications of character, interest in the country,
and education, whom it would be expedient or proper to
dect or appoint a member of any Legislative Council,* so that
a petition which in 1848 asked for a representative form of
government met with no success. One of the chief objections
to an elective council, viz. the smallness of the number of
British settlers, was overcome to some extent during the years
1850 and 1851, when a few thousand inunigrants were intro-
duced according to a scheme promoted by a certain Mr. Byrne,'
— that colossal benefactor of Natal going bankrupt over the
operation. The colonists were gainmg valuable experience
in sdf-govemment in their village and district boards, and the
Governor recommended compliance with a second petition

i Pari. Papers, Settlemeniof iVo^o/, presented 14th Aug. 1850, p. 190.
• Ibid. p. 7. The petition is given on p. 2 of that work.
> Ibid. Natal, presented 30th July 1851, pp. 19 fL, and 58 fi.



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Natal, 1856-93 K

pnying for representative govenunent in 1852. His advice
was adopted and Letters Patent establishing the principle of
rq)resentation in the Council were passed in 1856.

During the period under review some alterations were
made in the system of municipal government by extending
the powers and duties of the corporations as .previously
established,^ while divisional or coimty councils were created.*
These, however, were devised on too pretentious a scale for the
various districts to support. The arrangements were annulled
after three years. As regards the administration of justice
an Ordinance of 1849 ' preserved the power of native chiefs
to try according to native law cases jtrising between members
of their tribes, subject to the advice and control of European
oflSdals appointed by the Lieutenant-Governor. In all cases
appeals were allowed to the Lieutenant-Governor, acting
with the advice of the Executive Council. For the benefit of
the European population two laws were passed in 1852 to
indicate the qualification and duties of jurymen * and to
introduce the institution of trial by jury in civil cases.*

§4. Natal, 1856-93.

Up to this time Natal had been largely dependent on the
Cape Government, carrying on its correspondence with the
Colonial Office through that channel ; but the Charter •
granted in 1856 raised it to the status of a separate Colony.
The Legislative Council was reconstituted so as to consist of
sixteen members of whom twelve were to be dective and
the others, who were high officials, were Crown nominees. In
practice these nominated members also constituted the Exe-
cutive Coimcil, which remained under the direct control of,
and responsible to, the Ministers of the Crown in England.
The Colony was definitely launched on its way to responsible
self-government, the coveted goal which Canada had reached
just ten years earlier and to which the Cape Colony and the
Australian colonies were also moving. The British Govern-
ment and the bulk of the people in the United Kingdom had
no objection to pushing the system of government established
in 1856 to its logical conclusion — ^that objection was a thing
of the past, though of the recent past. It was only sixteen
years since Lord Durham had published his memorable report
on the government of Canada, in which he advocated tiie
s)rstem of responsible government for that Colony, carrying
tiie British political world by storm in a short space of time
through the cogency of his arguments and the sound common-

i No. 133. «Ord.3, 1854; P./?.0., CO. 180/1.

• No. 141. * No. 142. • No. 143. • No. 113-



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lii IntroducHon

sense conclusions at which he arrived. But if his reasoning
was unassailable it was obviously none the less imperative
that in every colony due precautions should be taken to
maintain imperial interests.

In Natal the movement for responsible government came
to a head in 1870, when a Bill aiming at the introduction of
^ The demand *^^ system was introduced in the Legislative
:far respaneibu Council, but was withdrawn without completed
gauemmeru, legislation. It was not until 1893 that the
movement gained success. During the intervening twenty-
three years some two or three dozen Bills were introduced,
of which about a dozen were passed, and several petitions and
addresses were presented aiming at making the executive
responsible to the legislature. If then the imperial authorities
had no objections to offer to the system, and readUy admitted
that the arrangement made in 1856 gave no guarantee that



Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 5 of 70)