G.W. Eybers.

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

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and subsequent years as part of the Great Trek. Keeping to
the westward of the great Drakensberg range, some emigrants
spread themselves out in the Orange River territory in the
vicinity of what is now Winburg. Others kept on moving till
they had crossed the Vaal River and its tributaries, and their
doings will therefore be described in the section dealing with the
South African Republic. Others again crossed the mountains
into Natal. These have ahready been discussed in the portion
of this Introduction relating to Natal. The third movement
came from Natal, which supplied settlers to the Orange River
territoiy during the years 1843 to 1845, when British authority
was being established at Durban and Pietermaritzburg.

Up to this time there was a Volksraad at Pietermaritzburg

and an Adjunct Raad at Potchefstroom. Subject to Potchef-

cotuunams stTOom wcre not only the settlers to the north of

^M^^fSlmLu ^^ ^^' ^^^ ^^' though in a somewhat vague

^of £^sh 2md unsettled manner, most of those who had

'w'^ established themselves in the trans-Orange

country. When the Volksraad at Pietermaritzburg was

abolished the lesser body continued to claim authority over

the emigrants who had not passed under British rule, and it

arranged disputes with various tribes to the south of the

Vaal River. Now there was a movement farther northward

and eastward arising from two causes : (i) Large native states

were created on the eastern frontiers of the Cape by the British

authorities,* who desired to remove the possibility that an

emigrant state should arise ; and (2) the Natal seaport was lost

to ^e emigrants through its occupation by the British. The

movement ¥^as away from British control through native chiefs

and towards the Portuguese port of Lorenzo Marques. This was

in the later months of 1844 and during the year 1845. T^

most independent of the farmers were thus removed beyond

the Vaal, and the establishment of a British Resident with a

magistrate's authority supported by a small body of troops to

the south of that river was easily accomplished. The Resident

selected in 1846 for his headquarters a spot in the centre of

^ParL Papers, S. Africa, CO, 42, pp. 57-61. Cf. Theal., Hist, of S.A.
1795-1872 II.4S1 ff., and Documents Nos. 153 and 154 below.

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Ixii IfUrodudion

the country which was bordered by the Orange and the Vaal.
There the town of Bloemfontein arose. A little to the north-
ward was the town of Winbvirg, where a landdrost and heem-
raden were established administering justice and performing
administrative functions under the auspices of the Raad at
Potchefstroom. That the Raad to the north of the Vaal had
jurisdiction over the trans-Orange settlers explains how it came
about that in the next few years Transvaalers offered to inter-
vene in disputes between their compatriots south of the Vaal
and the Bntish or the natives. From the moment when the
emigrants left the Cape Colony the authorities had intended
to extend their sway over whatever territory might be occupied.
It was easy to accomplish the object after 1845. Some time
was spent in attempting to reach an agreement with the
Griquas, who had been made an independent people, and with
the Basutos, who also claimed territory to tne north of the
upper reaches of the Orange. When this was effected, a pro-
clamation was issued in 1848 annexing to the Queen's
dominions the territory lying between the Orange and the
Vaal west of the Drakensbergen.^

The question arose, by what title did the Crown hold
authority over the new Colony ? The Attorney-General of

Who was to *^^ ^P® ^'^^ *^^ ^^^ *^* *^^ Orange River
ugiskue for Sovereignty, as it came to be called, was " a
c^toJT? colony by occupancy." This the High Com-
^ missioner regarded as unsatisfactory, for it meant
that the Parliament of Great Britain would have to legislate
for the district. Could the matter be brought before a court
of law it would have constituted 'x>ne of those delicate series
of new combinations of circumstances with which the history
of South Africa teemed during the last centuiy. A colony
planted by another colony, i.e. by practically imopposed
settlement, — ^is it to be subject to the legislature of the mother
colony or to that of the home country ? And if the newly
planted colony has formally declared its independence, what
are its relations towards those two ? The facts, however,
were plain enough. The greater part of the territory had
been conquered from a group of people who had previously
performed all the fimctions of an mdependent state, but who
had never been recognised as independent by the British
Government. But the High Commissioner did not base his
title on conquest or settlement. He stated that before the
immigration of British subjects into the country north of the
Orange River had commenced, " that country must be held
to have belonged to the native chief s " —which was not the
case as regards the bulk of the territory concerned. He

» No. 155.

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Orange Free Siaie, 1636-1910 Ixiii

further afOrmed that just prior to his proclamation annexing
the country he had conferred with all the native chiefs, and
that they had agreed to cede the sovereignty of the country to
him as the representative of the Crown.* The country there-
fore was held by cession, and the High Commissioner could
legislate on behalf of the Crown. It must be noted, however,
that the constitutional theory involved was not very strictly
observed in South Africa. Or at any rate when the tacts of a
case were inconvenient they were made to conform to the
theory ; but that was a matter that concerned the Crown and the
British Parliament, and Parliament was content.

Preliminary arrangements for the government of the
Sovereignty were published a few weeks after the annexation,*
OmMntifm but in the next year these were superseded by a
^*^^ proclamation of the High Conmussioner which
Cfomt^ gave the new Colony a constitution.' The
government was carried on by the High Commissioner and a
Council of five official and eight non-official nominees. The
highest of the officials, the British Resident, acted for the
High Commissioner in most matters and was the president of
the Council. For the administration of justice in the districts
the Cape magisterial system was followed, and the employ-
ment of the Roman-Dutch Law was confirmed, except as
referring to natives, who retained their own laws and customs
within certain territories allotted to them. Serious criminal
cases involving European residents were tried by a court of
three or four magistrates. The most serious offences had to
be tried by judges of the Cape Colony. The constitution was
very similar to the one existmg at the Cape. One of the chief
reasons why the people had left the old Colony had been the
absence of a satisfeictory system of representative government.
Since the date of their departure they had begun to enjoy the
freedom for which they longed, so that it was inevitable that
they should be discontented when the system from which they
had fled was reimposed.

In 1854 the Sovereignty was abandoned by Great Britain.
Even to^y the reasons for this withdrawal are not quite
Rewmsfor P^^- Piobably many motives were at work.
ntedbtmdtm- Britain was drifting into war with Russia to sup-
s^aim^ port Turkey and defend her Asiatic possessions.
overagmty. ^^ ^ ^^ Standing army is always small, she
has generally found it necessary to order her troops from
various parts of the globe to proceed to the scene of conflict
whenever a serious war broke out. At the time of the with-
drawal there were serious troubles with the natives within

* Pari. Papers, 0,R. SoverHgniy, 19th May 1851, P. 73-
« No. 156. »No. 157-

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Ixiv tfiiroduction

the Sovereignty. British arms had met with reverses and
British prestige had not been vindicated. The imperial
authorities were unwiUing to incur heavy expense in South
Africa, and imable to supply at short notice a large body of
troops. TTbey probably preferred, too, to regain the goodwill
of tne natives. At any rate, in the face of more pressing
affairs in Europe the question of the Orange River Territory
could easily stand over for future settlement, particularly
as the country was still imdeveloped and the tracts that had
fallen imder direct British rule seemed to be of no great value.
Besides, a strong party in the Sovereignty was opposed to
British rule, and they had the sympathy of the settlers in the
Transvaal. Here, too, trouble might arise at any moment.
Possibly one of the strongest reasons for withdrawing was a
desire to conciliate public opinion in the Cape Colony. Very
many of the Cape burghers strongly disliked the assumption
of sovereignty beyond the Orange. Some who had no objec-
tions to the step on national and sentimental grounds were
averse because the Cape was being made to pay much of the
expense involved in governing the Orange River Sovereignty.
Such views were expressed m the Cape Legislative Coimcil
witili warmth and occasionally with bitterness. It was politic
to meet Cape views while a serious war was being waged in
Europe ; for after aU the Cape Colony was throughout the
century the basis of British authority in South Africa, and
more apparent vagaries in British poUcy in South Africa than
most people realise were due to a wish on the part of the im-
perial aumorities to defer to Cape opinion. Whatever might
happen in other territories, it was of vital importance that
the old Colony should not be aUenated. By so much as the
Government in London failed to carry the Cape Colony witii
it in the steps it took, by so much would imperial interests be
jeopardised. Indeed, looking at the Empire as a whole,
imperial policy must not be criticised only by referring to the
wishes of the home Government, but by calculating the in-
fluence on it and on its governors and commissioners of the
various outlying parts.

The Bloemfontein Convention of 1854 g^ve complete
independence to the people residing between the Orange and
ConstUuHan ^^® Vaal. They were no longer connected with
\r of the Fru the State across the Vaal which had been recog-
^^^' nised two years earUer. Indeed, in 1852, while the
Transvaal people won a recognition of their independence it
had been made quite clear that they were not to interfere to
the south of the Vaal, and many of the trans-Orange inhabi-
tants had felt that they were being left in the lurch. Therefore
there was now no intention to join the northern State, and

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The O ranfe Fu£. StqU, 1836-1910 Ixv

when such a suggestion >^ afterwards made the High Com-
missioner set his face hard against the project. Consequently a
new State arose, taking the name of the Orange Free State,
thus realising the people's ambition expressed in 1837 " *o
establish our settlement on the same pnndjjles of Uberty as
those adopted by the United States of America, carrying into
effect, as rax as practicable, our burgher laws." ^ There was
to be a Repubhc then, and legislation was to be modelled
after the old Cape Laws. One legislative chamber called the
Volksraad was created, consisting of elected members, and a
President was chosen.* The Executive consisted of two
Government officials and three ordinary members elected by
the Volksraad. It held monthly meetings, at which the
President of the Repubhc was the chairman, and measures
were decided upon by a majority of votes. Field-comets and
field-conmiandsmts were elected by the burghers. The
constitution was drawn up and adopted in 1854, ^md before
the end of the year laws were passed to estabUsh Dutch as
the official language,' and to define the duties of field-comets.*
The other sahent features of the Free State constitution are
given so fully below that it is not necessary to say more on
the subject. It may be pointed out, however, that in its
local government and its higher courts of justice it copied the
Cape systems rather closely. The district courts of justice
indicated an extension of the old Dutch system that had
existed at the Cape, and the elective principle was introduced
here as elsewhere. Trial by jury was estabUshed. The close
connection and almost daily intercourse of the people of the
Free State with those of the Cape Colony had tne inevitable
result that many of the institutions which worked well in
the one would be introduced into the other. Besides, during
the years when British authority extended over the territory
Cape institutions had already been established, and the changes
made in those were mainly intended to popularise them, 'Hie
centaJ government, of course, was somethmg quite different.

Some documents are given to illustrate the manner in which
subject native tribes were governed. As in Natal, the
Gamnmeni franchise was not given them, but they generally
ofUunaUfM. retained their own laws and customs administered
by their own chiefs under the guidance of a European official.
Yet, native chiefs and their councils were often apt to inflict
punishment on their followers which was in the eyes of
Europeans out of proportion with the offence committed.
For this reason all criminal cases were removed from their
jurisdiction — so it would seem, though the laws are not quite

» Quoted by Theal, Hist, ofS.A.Z7g5'i8j2» ii. 316.

*No. is^ • No. 100. < No. 161,

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Ixvi Introduction

plain on the point— and they were not permitted to inflict
corporal punisnments. The criminal laws of the State were
made to apply to the natives to their immense advantage and
to the exdnsion of any chance of undue favouritism or hasty
revenue on the part of the chiefs. Two other principles were
estabhshed: In the first place, native tribes were made sub-
ject to the legislative and administrative authority of the
President and the Executive Council, being thus removed
from the control of the popular assembly by the desire of
that body itself. It will have been noticed that a similar
arrangement existed in Natal, at least till the introduction
of responsible government. Secondly, the idea of segregation
was afiSrmed. In the reserves set aside for subject tribes no
Europeans were allowed to» reside without the consent of the
Executive Council. In practice this came to mean that a
missionary, a few traders, and a few Government officials were
the only white men who went to live in those reserves. It is
not a final solution of the native problem, nor can it be adopted
everywhere, but personal observation has shown that in such
a district the natives have not deteriorated, as they have un-
doubtedly done wherever they reside among Europeans, but
have become industrious, sober, and contented, whife they are
gradually being civilised and Christianised. As there has
been no familiarity between whites and blacks, the Kafl&r still
respects the European and the civilisation for which he stands.
The Orange Free State had a fairly smooth career, though
in its infancy it had a severe struggle with the Basutos, who
stabouyof when conquered passed under British rule. Con-
the comtuu- sidering the amount of trouble the Cape had with
**^ those people and the loss of money and dignity it
suffered at their hands, it was perhaps well that they did not
fall to the guidance and management of the little State. Though
it lost to Great Britain a diamond-laden tract of territory,^ it
never went to war with its great neighbour. Its own diamond
mines at Ja^ersfontein did not attract a large and difficult
aUen popidation as did Griqualand West and the Witwaters-
rand. No industries arose. The farming community was
spared the disadvantages of the commercial and matenahstic
spirit which degraded politics and retarded education else-
where. Its idealism remained unimpaired, and it will be
strange if it does not turn out to be tne bearer of ideas to the
other communities in the present century. The smoothness
of its career was reflected m the stability of its constitution.
Its laws were as terse and finished as could be expected, nearly
as complete and polished as could be desired. The tiny
annual publications show that as regards its constitution it

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The South African Republic, 1836-1910 Ixvii

Eursued the even tenor of its way till the end and hardly
>iind any modifications necessary.
Casting in its lot with the northern Republic in the war
of 1899 to 1902 the Free State was annexed by Great Britain
The country OTk the 24th Mav 1900, undeT the name of the
*g25S * Orange River Colony.^ The officers who remained
ccitmy. Its in the field subscribed to the Vereeniging Peace
totMtoitm. Treaty two years later.* Militaiy rule came to an
end by virtue of Royal Letters Patent dated 2nd August 1901,
whidi provided for the government of the Colony by a Governor
and by nominated Executive and Legislative Coimcils. These
came mto o][>eration on 23rd June 1902. The period of Crown
Colony Government ended with the publication of Letters
Patent dated 5th June 1907, which set up the ^stem known
as responsible government.' There were a Legislative Council
and a Legislative Assembly for whidi provisions similar to
those pas^ for the Transvaal were enacted.


It has been pomted out that the great constitutional lesson
which the Dutch burghers had to learn during the second
Local and Quarter of the nineteenth century was to direct
penanai iheir efforts towards securing the control of the
•'^^^' central government, and that thereby thev could
acquire the local liberties after which they hankered. Cen-
tralisation versus localism, the Colony against the District, the
State against the Individual — that was the issue at the Cape.
Before the farmers could learn the lesson fully several thou-
sands of them left the country, canying with them the idesJs
which had become a part of their life. Many of those who
departed had not possessed the patience to learn, and many
did not consider the lesson worth acquiring, for it would be
usdess and untruthful to say that national antipathies did
not act as an incentive towards the exodus of the thirties.
But surely when tiie emigrants arrived to the north of the Vaal
national rivalries had ceased for the time being. What re-
mained was the sense of personal dignity and importance.

For a few years this lay in the back^ound. In the face
of threatening dangers the community united to clear for itself
Theriuof habitable regions where marauding natives shoidd
J^w^ not trespass. When they believw this to have
repM$e». ^yeca accomplishcd, and after they obtained a re-
cognition of their independence,* the different localities that

»No. 172. «No. 173. •[Cd. 3526.] «No. 177.

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Ixviii Introduction

had been settled by various parties at different times drew
away from each other, with the' result that five years eiap>sed
before a satisfactory constitution could be established. And
even while that instrument was being adopted by a section
of the conmiunity there were no fewer than three republics
to the north of the Vaal. In 1858, however, two of these, Zout-
pansberg and the South African Republic — the latter name
had been adopted in 1853 ^ — joined hands, while Lijdenburg
maintained its independent position for two years more, and
was eventually brought into the fold by an agreement * which
contained a series of compromises admirably illustrating how
impossible it was to overcome the feelings of local and personal

The constitution which was finally accepted by all the
burghers of the Transvaal territory was a lengthy document.'
The consHtU' With the Groudwct of the Orange Free State and
Hon adopud. the demands for constitutional liberties nM,de by
the people of the Cape and Natal it forms a series for the study
of the political theories of the Boers of South Africa. Natu-
rally they drew up the provisions with their experiences of
earlier years very vividly before them. What they had dis-
liked in the Cape Colony they discarded, what they thought
had suited their needs they retained — ^whether it was some-
thing quite old or something very novel to their experience did
not matter. The whole document becomes one of the most
interesting instruments ever published in Soutii Africa if it
be read with this obvious fact in mind. There was, e.g., the
insistence that a member of the Volksraad should not be a
Government official — z. protest against the position that had
existed at the Cape since 1652. The executive was to be
responsible to the legislature. Treaties and alliances were
not to be made without the consent of the legislature. The
State was to assist in maintaining the Church. Courts of
landdrosts and of landdrosts and heemraden were erected to
administer justice, these officials being selected in the case of
the chief magistrates by the Executive Council, but subject
to the approval of the people, and in the case of the heemraden
by the outgoing heemraden, but again subject to approval
by popular consent. A High Court of Justice consisting of
three landdrosts was appointed to go on circuit. This, and
the adoption of a jury system, were two expedients copied
from institutions established at the Cape under British rule.
As in the case of the Free State, the natives were totally ex-
cluded from the franchise, and military officers were elected
by the burghers.

* Nos. 1 7Q and 1 80. « No. 188.

*No. X82.

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The South African Republic, 1836-1910 Ixix

But the most significant feature about the constitution is

the reiteration of the theory that the people were the source

TispMpu of all authority. The people wll have no equality

/Mtf*^ between blacks and whites. The people will have

ofmohonfy, ^^ slavery. The people entrusts tiie task of le^-

lating to the Volksraad, the government to the Executive

Council, defence to the army, the administration of justice

to landdrosts and jurors. When a law is passed, it cannot

as a rule be enforced until the people has signified its assent.

WTien a person is arrested for crime this is done in the name

of the people. Judgments are pronounced in the name of the

people, and when proclamations are issued, they end with the

words : God save Land and People.

Another feature of the constitution was its peculiar flexi-
bility. Being the fountain of all authority the people did not
Fiextbauy bind themselves down to any rigid measures. It
©//*# Mras well for them that they did not, for they would
coHshhuum. ^^^^ -^^ ^^^ y^^ education and experience. Some

of the clauses could be interpreted in more ways than one,
while situations could quite easily be imagined that were not
covered by the provisions, and very often no adequate arrange-
ment was made for carrying out the rules laid down ^ or for
punishing any breach of those rules. As a result the custom
grew up of modifying the provisions in any respect deemed
necessary by a resolution of the Volksraad passed by a majority
of votes taken at an ordinary session bf that body.

A third point of note was the absolute supremacy of the
legislature in the constitution. This was laid down in express
Supremacy terms in 1859. Eveiy Court was to observe aU the
VM^^L^ resolutions of the Volksraad as law, and no Court
^ was to express an opinion as to the validity of any
law.* The law was as explicit as it could be, and the Courts
observed it for some thirty-seven years. Then an attempt
was suddenly made by the High Court to set it aside and estab-
lish new precedents.' The effort failed, and the incident,
though it aioused a good deal of discussion and some political
agitation outside the Republic, mainly served to bring to
light the sound common-sense arrangement of the constitution.
The same arrangement is one of the characteristic featm:e§
of the British constitution, for an English court never thinks
of declaring a law passed by the Imperial Parliament opposed
to the constitution. The absence of a similar provision in the
United States constitution has in past years led to much

*See, ^.^., No. 22 s.
«No. 1S5.
* See No. 231,

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Ixx Introduction

As the chosen man of the people the President was in a
very strong position. He became the leading figure in the

The ' executive as well as in the legislature though he
President, did not select his executive, had no veto on legis-
lation, and could not dissolve the Volksraad. His patronage

Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 7 of 70)