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

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imperial policy would be carried out ^ — ^the Executive Council
having at times adopted an independent attitude — ^and that
it was liable to end in a deadlock between the legislature
which had to find fimds and the executive which had the
spending of it ; and if the colonists desired the change, what
caused the dday ? If the answer must be given in a single
sentence it must be stated that responsibility would bring
with it obligations which a yoimg Colony, situated as Natal
was, could not shoulder; but the difficulties that stood in the
way related in the main to the defence of the country, to
native affairs, to the interests of Indian immigrants, to the
relations between the Governor and the Executive Council on
various issues, and to the relations to be observed by Natal
with regard to the High Commissioner for South Africa, the
Cape Colony, and the two Republics.

Reviewing each of these points, it was obvious in the
first place with regard to defence that Great Britain would

Defence'' ^^^^^Y foUow the procedure adopted in most
'' other colonies of withdrawing! the bulk of the
imperial troops stationed there, retaining only such garrisons
as were imperatively demanded by possible eventuaUties of
imperial defence. When an intimation of this intention was
published in Natal it straightway divided the inhabitants
into two more or less evenly balanced parties — the one, led
by the elected members of the legislature, still agitating for
responsible government, and the other fearing the bunlens
which that institution would entail. The question was only
one of suppl3dng the actual man-power for any war that might
arise, for even before responsible government was established
the Colony was liable to bear at least a large proportion of the

1 Pari. Papers, tC-3174]. p. 8.



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Natal, 1856-93 liii

expense involved.* For a long time the Government in
London maintained its attitude, and consequently a majority
of the colonists opposed a change in the constitution. Under
these circumstances no improvement could be effected, for
the Secretary of State for the Colonial Department was firm
in his demand that so important a step as the appointment of
a responsible Ministry should only be taken when a majority
of the citizens, being fully aware of the results that would
follow, had distinctly expressed themselves in favour of it.
Indeed it was only when native pressure on the northern
frontier had been weakened by a native war with the South
African Republic, when the Cape Colony made itself responsible
for the government of the territory on the south-western
frontier, and when the Government in London promised to
assist with the defence for a while longer, that a majority of
the electors could be persuaded to accept responsibility.
Really the matter was not quite so simple as it looked. More
was involved than the mere question whether the Colony
could enrol, equip, and pay the necessary number of troops
for repelling a native attack. Native policy was initiated and
directed by the imperial authorities. The question before the
colonists was whether they should support blindly a policy
over ^^ch they would have very little practical control, and
which, they stated, had already led to complications. But
this leads to a consideration of the second of the list of diflft-
culties which faced the framers of the new constitution, the
one which permeated nearly all the others, and made it im-
possible to do for Natal \^4iat was done for so many other
colonies possessing representative government, viz. establish
responsible government by merely amending a clause or two
of their constitution Acts or altering [a few words in the
instructions of their governors.

In 1880 i^en d^ands for an improvement of the con-
stitution became peculiarly insistent the white population of
TUnoHve Natal cousisted of about 30,000 soub, of whom less
^«*'«»- than 7000 were electors. The number of Kaffirs
was estimated at not less than 400,000. It was out of the
question to grant the franchise to those masses of coloured
people unless a legislature of uncivilised persons were to be
set up with perhaps three or four members to represent
European interests. But the natives had been living under
their own laws, which had lately been codified* and which
were administered by special officers responsible to the
Governor. In the event of responsible government being
set up it was feared that native rights would be disregarded or
exploited for the benefit of the white {>opulation, unless some
* [C-3280I p. 16 ff , » No. 141 .

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liv Introduction

means could be devised for first securing those rights ; for if
tiie unfettered direction of native affairs were placed in the
hands of responsible Ministers representing the views of the
majority in the legislature, the result might be that the tax-
payer in the Unit^ Kingdom would have to bear the cost and
responsibiUty of providing for a policy over which he had no
control. On behalf of the colonists it was claimed that they
more than any other people were likely to strive after the main-
tenance of a good understanding between whites and blacks, for
to them a KaflSr war meant the spreacKng of distress and con-
fusion, peril to life and property, and the arrest of progress.*
They went so far as to say that the control of native policy
which the Government in London exercised had not improved
the coloured races. " It is a fact beyond dispute," they de-
clared in 1888, " that the moral condition of the Native popu-
lation, after forty years of British rule, is worse than it has
ever been." «

At first the representative members in the Legislative
Council did not clami a complete measure of control over the
natives in the event of self-government being granted, but
were content that all measures relating to native affairs should
be referred to the Government in London for consideration
and approval.^ This attitude, however, was probably of the
nature of an offer in return for continued protection ; at any
rate, it did not satisfy the constituencies. Seven years later,
in 1888, the Council took some pains to remove the prevailing
impression that, were responsible government established, the
control of native affairs would practically remain in the hands
of the Crown, observing that it was the essence of responsible
government that the local administration should possess full
control over all classes of the population.* But now the
Council took the wind out of the Imperial Government's sails
by advocating as strenuously as the latter had ever done some
form of representation of native opinion and native interests.
Certainly the prolonged discussion of the subject had been
stirring the white community to a readjustment of their
early views. All this was to tiie good of the settlement, but
the home Government insisted on some positive constitu-
tional guarantee being afforded for the maintenance of native
interests. The Council was not irresponsive. They suggested
a legislature of two chambers. The seats in the upper chamber
might be filled by nominees, and this House alone could be
given the power to initiate legislation intended to deal with
the KaflSr population.* The Secretary of State, however, did
not consider this expedient would contain any security that

* P«r/. Papers [C-3 1 74], p. 4. « [€ - 6487]. p. 9-

• 1^3174]. p. 10. * [C-6487]. p. 8. • IHd. p. 15.

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NaUU, 1856-93 Iv

adequate laws would be passed or sufficient money voted for
the benefit of the natives,* particularly as the second chambar
would have the initiation of money Bills. Being asked to
offer a solution he suggested that all Bills exacting compulsory
service of natives or restricting their freedom in any way or
altering their old laws or increasing the taxes paid by them
should be reserved by the Governor. He also thought a
Native Protection Board indq)endent of the legislature might
be established and a sum of money should be reserved under
the absolute management of the Governor to be spent aimu-
ally for the education and general advancement of the natives.*
This was written in August 1889. The Colony now only too
gladly reverted to the idea of a unicameral legislature, but
again the Secretary of State objected. ResponsiWe govern-
ment with only one House was an unknown thing in the
Empire, and it was very desirable to have an upper chamber
which would be expected to guard against hasty and ill-
considered l^slation for the non-European population. In
1892 the British Government demanded the erection of an
upper chamber as an indispensable condition to the granting
of reqx)nsible government.*

The third difficidty that had to be met arose from the
presence in the Colony of a large body of natives of India.
The Indian Owing to the unrehable nature of the Kaf&r as an
P^i^^^^''^^^^ agricultural labourer a commencement was made
in the fifties with the introduction of cooUes at the public
expense. Within a few years several thousands arrived, and
contrary to the expectation of the promoters of the scheme,
they were not anxious to leave the country when their periods
of mdenture expired. In 1881 they numbered 25,000, thus
nearly equalling the European population. As yet there were
among them only some eight or nme dozen registered electors,
but large numbers of names were being pushed forward for
registration. There was considerable uncertainty as to the
position of this class of men under the Charter, so three Bills
were introduced into the Legislative Council in 1880 aiming at
limiting the Indian francluse by demanding an education
test for electors. In the same year a select committee of the
Council dealt very summarily with this question by simply
recommending the exclusion of the Indian population from
the franchise.* It was feared that in course of time the Indian
vote might swamp the European vote. Another objection
was that if the Incuans, who belonged to another coimtry and
were only brought into the Colony as labourers, could by
residence and by a property qualification obtain the franchise,

» [C-€4S7]* p. 22. « Ibid. p. 24. Cf. p. 74-

• tC-701 31 p. 19. • [C-3796]. p. 6.

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Ivi Introduction

then grave dissatisfaction would be felt by the Zulus of Natal,
who after all belonged to the country, assisted in police and
military duties, and contributed a large proportion of the
revenue. Yet the Indians were on the whole considerably
further advanced than the Kafiirs in the scale of civilisation,
they were not living under a separate code of law of their own,
they were contributing a good deal to the agricultural progress
of the Colony, and it was displeasing to the imperial authorities
that any of the sons of the Empire should be placed under
disabilities. But as a Bill was passed and sanctiohed in
1883 ^ providing for the enfranchisement of unindentured
Indians possessing the necessary property or residence quaUfica-
tions if they could write out an application for registration in
English or Dutch and sign their names in European char-
acters, the Indian franchise was not a serious ground of differ-
ence between the Colony and the Government in London
during the later efforts that were made to procure responsible
government.

The next point to be settled touched the relations that were

to subsist between the Governor and the Executive Council.

ROatums Under the 1856 Charter, and by Royal Conunis-

gSJSJII^ sions and Instructions issued since that date,

ofJTSr the Governor was commanded to considt the

Executive. Executive Council on practically every question

on which a decision was to be taken, but he could act against

the advice of a majority of the members. He alone was

entitled to submit questions to the Council, but any member

had the right to request him to submit any matter. He could

either decline or accede to such a request. In practice the

custom grew up, however, for the Governor to lay before the

Coimcil only tne more important questions connected with

the administration of the government of the Colony and such

Suestions as the law demanded should be dealt with by the
rovemor in Council. The view of the successive Governors
very probably was that they were responsible to the British
Government, and that the Council was not so responsible.
This view was confirmed by the Secretary of State m 1883 *
when he was called upon to settle a difference between the
Governor and a section of the Council. So far there was
Uttle real trouble, but in the negotiations over the relation
between Governor and Executive in the event of self-govern-
ment being conceded, there arose the ever-recurring native
?uestion. From the early years of British rule in Natal the
ieutenant-Govemor had occupied the. position and held the
title of Supreme Chief of the native tribes.* His authority



Supreme Chief of the native tribes.* His authority

796]. p. 86.

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* No. 124. «[C-37961.p.86

* Vide Preamble to Ord. 3-1849 (No. 141).



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Natal, 1856-93 Ivii

was absolute in all matters political, while in the administra-
tion o*f justice he acted through appointed deputies. Later
on his authority was formally recognised by statutory
enactments.* The point is that this authority was most of the
time exercised by the Governor on his own personal views.
The standpoint taken up by the colonists was that if they
were to receive responsible government this procedure should
be altered by the home Government, which ought to instruct the
Governor to act on the advice of his Ministers in native affairs
as in all other matters; but this the imperial authorities
would not concede. The powers of the Supreme Chief were
to be left in the hands of the Governor apart from his Council,
except in the few particulars which, by the Code of Native
Law, were vested m the Governor in Coxmcil." This was a
serious limitation of what is generally understood by reaoon-
sible government, for it affected the Colony in nearly all its
most vital interests, and towards the end of the agitation
under review the scheme was nearly wrecked on this issue.
Yet the Secretary of State remained firm on this point, though
he modified his early views to the extent of promising that
the colonial Ministers would be made acquainted with any
action which the Governor might propose to take with regard
to the natives. Mutual goodwill and co-operation could go
a long way towards saving any situation that might arise,
and he had little doubt that in every, or nearly every, case the
Governor would be able to arrange satisfactorily with his
Ministers as to any course to be adopted, although in the
last resort the decision would rest with him.

Apart from his functions as Supreme Chief, though partly
covered by those functions, were other duties of the Governor
having reference to the native problem. Up to 1882 aU
British territories in South Africa were governed by the High
Conomissioner, who was also the Governor of the Cape Colony.
In that year, however, the Governor of Natal was appointed
a Special Commissioner for Zulu Affairs to conduct relations
with the native tribes of Zululand.' It was a recognition that
the future of Zululand woidd be intimately connected with
that of Natal. The terms of the commission are instructive :
" We do hereby authorise and empower you in Our name and
on Our behalf to take aU such measures, and to do all such
things in relation to the Native Tribes of Zululand as are
lawful and appear to you to be advisable for maintaining our
Colony of Natal in peace and safety, and for promoting the
peace, order, and good government of the tnbes aforesaid,
and for preserving friencfiy relations with them. ..." The

* Nop. 146 and 149 (Annexure). *[C-70i$], p. 4i«

* The commission is given in [C-3 1 74], p. so.



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Iviii Inbroduction

natives in Natal and those in Zululand were closely akin, and
any matter affecting one group would also influence the other.
But if responsible government were introduced in Natal the
British Parliament would object to the speedy annexation of
Zululand. An Aborgines Protection Society in London was
keeping its eye on native conditions in South Africa,* and the
feelmg was abroad in Great Britain that the Zulus were being
harshly treated. Yet if complications arose in Zululand it was
thecolonists of Natal who would suffer, and no less an official than
the Attorney-General of the Colony gave it as his considered
opinion in 1891 that the results would be mischievous if the
government of the two countries were placed into different
hands. This was not what the Secretary of State desired.
On the contrary, keeping the direction of native affairs in
Natal under the management of the Governor, he was perfectly
logical in insisting that the same control should be extended
over Zululand.

The last point that needed clearer definition was the re-
lation of the Colony to the other countries in South Africa.
The posiHon ^his necessity arose from an incident that occurred
ofNMin in 1882. The Natal Legislature being anxious to
South Africa, q^^^ railway conununication with the Orange Free
State and the Transvaal in order to give the Colony the benefit
of the transport of goods to those countries, requested the
High Conunissioner for South Africa to arrange a conference
of delegates of the three countries. The High Commissioner
considered it his duty to inform the Government of the Cape
Colony of the scheme, and Natal took exception to this, stating
that its request had been directed to the High Commissioner
as such and not to the Governor of the Cape Colony.* Next
year the President of the Orange Free State opened the ques-
tion of fixing certain points in the boundary between his State
and Natal, addressing his communication, not to the High
Commissioner, but to the Governor of Natal, who received it
and dealt with it in the Executive Council.' This was pro-
bably unconstitutional, and it was not the first time that Natal
communicated directly with outside territories. On being
requested to explain what would be the relations of Natal
with the Cape Colony and the Republics in the event of sdf-
gov^mment being introduced, the Secretary of State gave an
evasive reply. No doubt he fdt that the question would
settle itself m course of time through experience far better
than if he were to lay down fixed niles of procedure. The
Ministers of the two Colonies, he thought, might correspond
on matters not requiring the intervention of the Governors.*
Relations with the Republics would be conducted through

*[C-3796].p. 64. «/6fd.p.4i. »/6irf.p.8o. * [C-64S7], p. 2a.



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NaM, Z893-1910 lix

a High Commissioner, and the Governor of Natal might not
improbably be appointed a High Commissioner for this purpose.
On the point of established constitutional theory, however,
be was emphatic. The granting of responsible government
would not give the Colony power to make treaties or enter into
alliances with outside States.^

Such were the views of the Colonial Office and of Natal.
On several points they had at first been diametrically opposed,
but South Africa is the land of via tnedia. Both parties
shifted their ground to a greater or less extent on various points
<rf difference, and even a cursory perusal of the instruments
which established responsible government in 1893 * will show
that the programme of neither party was fully carried out in
the end. After all, many of the minor differences had arisen
from the inexperience of the colonists, and it was repeatedly
neoeaBary for the Secretary of State to point to constitutional
law and practice in Canada, in the Cape Colony, and in Aus-
tralia. But the people were quick to learn, and by winning
the confidence of the imperial authorities in their ability and
moderation succeeded in gaining some benefits at first denied
them.

§5. Natal, 1893-1910.

For seventeen years Natal existed as a full-fledged Colony
possessing responsible government. By responsible govem-
Rmpotuibu ment in the British Empire is generally meant that
gi>90nnmeta. the Executive Council, ccmsisting of Ministers,
advises the Governor, and that in performing executive duties
he acts on such advice. And the Ministers, being appointed by
the Governor from the one of two or more parties which
commands the confidence of the enfranchised mhabitants, are
supposed to be responsible to the Legislature for the advice they
give. The elected members of the Legidature are obviously
responsible to their electors for carrying out certain broad
but definite principles which the majority favours.

In England it has been said in quite recent years, and truly

said, that the Crown has no option, but must, in accordance

Umiuaions to ^^ established constitutional usage, act accord-

toumudtdf' ing to the wishes of the Cabinet. " The advice

*'*"'''"*'*^ of the Ministers is the act of the Crown." In

works on colonial constitutions a good deal is always said

about the advice of Ministers given to their Governors, but

nothing about the Governor's advice to his Ministers ; yet in

matters of imperial interest — if in no others — such advice is

given, and it is generally effective. In such matters a wide

discretion is left to the Governor. Whilst he is expressly

» [0^7013], p. 38. • N08. 126-128,



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Ix Introduction

enjoined by Royal Instructions to guide himself by the advice
of his Executive Council, a discretion is generally |[iven him
in those instructions to act in opposition to the opinion of the
Council whenever he sees sufficient cause to dissent from that
opinion. One reason for allowing a Governor some latitude
is that it is necessary to fulfil British international obligations.
Besides, the Governor has by his office the supreme command
of the imperial troops stationed in his cdony, and no movement
of those troops can take place for any purpose whatever with-
out the sanction and authority of the Governor acting on his
unfettered personal responsibility. Such was the position in
1893 in all self-governing colonies. In Natal the presence of a
large native and Indian population was regarded as affording
a special and additional reason why the Governor should not
be too firmly tied down. And as regards Natal the royal veto
was apt to be exercised where in other colonies a compromise
would be negotiated.

But whilst a degree of freedom was theoretically reserved
to the Governor for cases of emergency, it was actually the policy
Growing ^^ ^^ white population that was eventually carried
uifhtenceof out. In 1896 a law was passed which in effect
ths coiomsts. placed in the hands of the Ministers the power to
grant or withhold the franchise in the case of the Indian re-
sidents,^ and the next year, when Zululand was annexed to the
Colony, it was laid down that the Governor in Council could
legislate by proclamation for that territory * during a period of
eighteen months, after which the province would pass under
the legislative control of the Parliament of Natal. This was a
complete departure from the position taken up by the Secretary
of State for the Colonies a few years earlier. After the
Anglo-Boer War a further accession of territory came to the
Colony by the addition of a strip of Transvaal territory, and
Natal was then ready to join hands with the other self-
governing colonies of South Africa.



SECTION V.

THE ORANGE FREE STATE, 1886-1910.

The narrative relating to the course of events in the terri-
tory which afterwards became the Orange Free State must be
Three main Connected with the history of Natal and of the
streams of Cape Colouy ; for all the emigrants came from
HHmtgraium. ^y^^ q^^ Colony, while some of them settled for a
time in Natal. There were three main movements, at different
periods, through which the trans-Orange territory became
1 No. 139. "No. 130.



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Orange Free State, 1836-1910 Ixi

populated by white men. First, there were people who with-
out discarding British authority moved across me river from
the north-eastern parts of the Cape Colony in search of eligible
pasturage during certain seasons of the year. Many of them
began to settle down beyond the river long before the Great
Trek commenced. It is important to note that this first
group settled not only in what is now Orange Free State
territory, but also to the westward, in what afterwards became
Griquaiand West. The second movement took place in 1836



Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 6 of 70)