G.W. Eybers.

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

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needed the introduction of rational principles of training and
examination, for the University of the Cape of Good Hope was
only an examining and a degree-granting body, the most indis-
pensable qualification of its examiners being that they should
know nothing about the candidates beyond their powers of
assimilation. The other colonies fell under lie wing of the Cape
University. The decision of the Transvaal, taken before the
South African War, to erect its own University had had no
chance of being carried out.

On economic grounds the argument in favour of union was
also a strong one. It was necessary within certain limits to
equalise taxation, to get an equality of customs duties for all
the colonies, to end the old rivalry between the Cape and
Natal seaports, to work the Government railways on a com-
mon basis and so avoid the recurrence of inter-colonial (hs-
putes. A considerable saving in the expense of administration
could be effected, if only by avoiding the repetition in each
colony of all the necessary ministerial offices and heads of
departments. The combating of diseases in fruit, cereals, and
stock would supply a very extensive field of labour which
could be best performed by one Government with a consistent
policy and the power to emorce it.

Some of the outstanding provisions of the South Africa
Act of 1909 ^ may be briefly noted. The legislatures of the

TAtfcoif- four colonies, the Cape, Natal, the Orange River
Mioum of Colony — it was now renamed the Orange Free State
fotSJlu^ — ana the Transvaal, ceased to exist and their powers
were vested in the Union Parliament. This body
consisted of two houses, the Senate and the House of Assembly.
In each of the colonies, which now received the name of
Provinces, a Provincial Council was erected. It had power
to make ordinances with regard to direct taxation for pro-
vincial purposes, to .elementary education, to municipal and
divisional councils, and a number of other specified subjects
of less importance. All other matters were ddegated to the
care of the Union Parliament. The Provincial Councils each
had an Executive Committee just as the Union Parliament
had its Executive Council. The King was declared the supreme
head, and on his death his heirs and successors. It is interest-
ing to note that for ordinary purposes there is no mention
of the Crown, or of the King in Council, as had been the
practice in earli^ constitutional Acts passed in the colonies.
The phraseology was copied from the Act establishing the
Commonwealth of Australia. It is the King who may veto
legislation. The King in Council, as far as the South Africa

*No. 235.

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Ixxx Introduction

Act is concerned, means the King— or his rei>resentative, the
Governor-General — acting with the advice of his South African
Ministers. If his South African Council were to tender one
kind of advice with regard to South African affairs and his
Privy Council were to advise an opposite course the funda-
mental relations between the Union and the rest of the King's
dominions woyld be affected. The letter of the law does not
sanction the view that the South African democracy is subject
to the democracy of the United Kingdom ; but constitutional
theory based on many decisions of the Judicial Committee
has established the fact beyond controversy. The theory
that the advice of the Ministers in England is the act of the
Crown does apply to the self-governing dominions, though
many attempts are being made m the dominions to (question
the doctrine. It is true that it has not been defimtdy or
successfully challenged up to the present — ^perhaps because
it has not been ddlnitely formulated with reference to the
dominions. On the outbreak of the European War, for
example, an order was issued from London prohibiting the
export of copper from South Africa to foreign coimtries, but
that was a temporary measure calculated to meet conunon
imperial needs in a time of great stress. It was probably taken
after consultation with the South African Government, and
may have been issued to assist that Grovemment in its diffi-
culties with Parliament and country. Still, in normal times the
indications are that the South African Parliament would wish
such an order to be registered by itsdf before it could take
effect ; and the matter will doubtless settle itsdf in the
future if it is not complicated by tactless egotism on either

The smooth working of the constitution depends very
largely on the ability and tact of the Prime Minister. Some-
Exunsive body has said in days gone by that the Prime-
S^PHf^ Minister of the United Kingdom has more real
Minis^nd power than the Czar of Russia. In his own country
theCabina, and as regards internal affairs a colonial Prime
Minister's authority is nearly as great. And throughout the
Empire the authority of Rime Ministers tends to increase.
Centralisation has ^one a long way. It is obvious that under
the system of cabmet government the popular control exer-
cised over the Prime Minister and the rest of the executive
is feeble and slow. The referendum as it exists in Switzer-
land would hardly help the people in directing administrative
measures or controlling the management of affairs generally
imless some machinery were devised to give tiiem the power
to annul as well as to sanction or reject. The Cabinet has
certain arbitrary powers which are exercised by issuing orders

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The Union of Sotsth Africa Ixxxi

and it sometimes publishes proclamations. It tends to
becoBie an autocracy in practice if not in law. But the South
Africa Act gives legal sanction to this tendency in certain
matters. The Schedule, which is one of the most interesting
portions of the instrument, provides that when any of the
native territories still under the Crown is taken over by the
Union, the Prime Minister shall be charged with the adminis-
tratioa of such territory. He will be advised by a conmiission
of three or more members appointed by the Governor-General
in Council. Here obviously the term Governor-General in
Council means the Governor-General acting with the advice of
his South African Ministers. The extension of the Cabinet's
powers has results of two different kinds. It limits the chance
of control by the electors, but it also narrows the authority
of the impenal representative. Prior to the date of Union in
the three younger colonies native affairs were much imder the
influence of tiie Government in London. Provision was
made in the Act of 1909 that at some future date that influence
should cease. But at the same time those parts where the
natives were most numerous and had all along enjoyed special
privileges of their own were placed beyond the control of
the popular legislature. This was following the arrangements
of ttie old Free State Republic. Indeed it was a principle
which had been recognised as sound throughout Soutn Africa,
but which had in the other parts been carried out in a more
half-hearted manner.

That suggests an inquiry as to how far in other respects
the Act of Union was a consummation of the earlier history of
Ths Union ^^ various parts of the country, to what extent it
does not was a development of earUer constitutional arrange-
2j^^2? ments. Most of the great principles of demo-
tonsiUMtiomU oracy were retained : the elective principle in the
'^'^'^ various governmental bodies, in a certain degree the
resp(Hisibility of the executive to the legislature and of the
legislature to the electorate, in a large measure the certainty
timt in administering justice the judges would pronoimce
sentence according to the laws without fear or favour. Except
for one large and important body of people, the mining popu-
lation in the Transvaal, who had naturally received the
franchise on the introduction of responsible government, no
person received constitutional Uberties which he had not
enjoyed for very many years. Where the natives were al-
ready enfranchised they retained their rights. In other places
they were left in their old situation. Every person became a
small unit in a great whole and his power to influence the
direction of his concerns was greatly lessened. In the Trans-
vaal and the Orange Free State the people had in 1902 lost

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Ixxxii IfUfoduction

their control of foreign policy and the right to sanction or
veto the appointment of public officials. Everywhere local
traditions and individual tastes were limited in their scope.
Yet the idea of union was a grand one. PoUtical parties in
each colony were anxious to amalgamate with corresponding
parties in the others. Union would g;ive a better cliance to
consolidate and to expand, it promised to advance their
material pros^cts, and the people decided — ^in so far as they
were in a position to decide at all — ^that it would be to their
advantage to unite.

The Union was a very real one, much more so than in
Australia or Canada. It may seem strange that the delegates
centraiiso' ^^^ ^^ the drafting of the Bill went to such
Hon pushed extreme lengths in the process of centralisation,
veryfat^. for many of them must have known that the
early history of the country had brought to light strongly
local and individualistic tendencies. Possibly it was with
set piirpose that they proceeded to coimteract those tendencies
as being subversive of real strength and unity of purpose,
though this could hardly have been the attitude of the
majority of the delegates. It should be noticed, however,
that during the previous fifty years the old individualism
had been considerably weakened ty different forces that
operated in each of the countries. Tnat is the only sense in
\raich the Union of South Africa is the natural outcome of its
previous history. Yet individualism had by no means dis-
appeared, as is witnessed by the history of South Africa's
troubles since 1910. But the real explanation probably
Ues therein that at the time of the meetmg of ihe delegates
there were brought under discussion the constitutions of
several confederations : the Swiss, the German, the American,
the Canadian, and the Australian. The weak points of each
of these were pointed out, and the delegates, several of whom
were lawyers, must have been struck by the amount of litiga-
tion that had been going on in Canada and particularly in
Australia arising from the division and distribution of powers
between the central and the local legislatures. Except in a
few matters they decided that the Provindal Legi^tures
should occupy a position quite subordinate to the Union
Executive and the Union Parliament. As the Executive
Council may sanction or reject provincial ordinances, it is
very unlikely that disputes leading to litigation will arise.
That is another illustration of the great powers reserved to
the central executive. It is further obvious that no matters
will be referred to the Privy Cotmdl, so that imperial influence
must be greatly weakened. More than that : no appeal from
the Supreme Court of South Africa to the King in Council is

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The Union of South Africa Ixxxiii

allowed, except when the King in Council grants special leave
to appeal. Colonial autonomy has been carried much fur-
ther m the Union than in either of the other two great

Everything points to the likelihood that the native problem
will always be with political workers in South Africa. Pre-
The/uiur^ judice of colour and race is very strong, but it is
of the natives, jn some measuie imderstandable if we remember
that Europeans have complicated the matter by employing
the natives on more tham one occasion to fight Europeans.
But it will be wise to make a real effort to bury the past for
the sake of winning a brighter future. There can be no
intention to place the bulk of the black-skinned races per-
manently in a position of subordination, for that woula be
nearly tantamount to a form of slavery. The tendency is
to-day to reserve tracts of countn^ for occupation by natives
wherever that is still possible. Tne whole mstory of the last
century seems to suggest that for the present that scheme is
the only way to prevent the undesired contact between whites
and blacks, which has not been beneficially felt by either, but
least of all by the natives. There should be no hurry in try-
ing to colour the native with the civilisation of the European
by the agency of uncontrolled association. There are highly
educated natives who are the ideal teachers of their own
people, and perhaps the Union Government will assist in the
training of others. When competition arises between natives
and Europeans, the white man may well be left to fend for
himself. In the meantime there seems to be no reason why
in llie native reserves the people should not be given mimidpal
government on the same hues as those laid down for the white
population. The natives are backward, it is true, but they
win be backward only so long as the white men choose to keep
them so. If their sense of responsibility can be called forth,
half the battle will be won. In the end they must take
their place side by side with other citizens of the Union,
but it is not necessary to remark here on all that that
will involve, for it lies in the remote future, when the out-
look of South Africans of European extraction may have

As South Africa is by no means a sovereign state it is
ahnost impossible not to theorise at the present time with
s&iuk Africa's ^gard to the future of her constitutional position
fuhDre within withiu the Empire. The world is moving so
Ou Empire, rapidly and the conservative instincts of humanity
are being so rudely shaken that the reception of ideas is accom-
plished with unusual readiness. In the Empire there are
two classes of thinkers who desire to take advantage of this

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Ixxxiv Introduction

unwonted receptiveness, both including men of the highest
ability and political wisdom. One class is moving for the
federation of the Empire. The exact form has not been
agreed upon, and many different paths are still being pointed
out ; but eventually some scheme that finds general favour
will be arrived at. The other class stands for the maintenance
of the present situation and the preservation, or perhaps even
the extension, of the constitutional liberties already granted.
The former class desires a return to protection in trade and
advocates an imperial customs union, while the latter pleads
for free trade and the unrestricted association with the other
nations of the world. All matters with which the citizen of
the Empire is concerned are involved in the speculations of
the two opposing schools, questions of nationahty, language,
economics, domestic poUtics, foreign relations, travel, educa-
tion, science, art, and man's outlook on life generally. Pushed
to their logical conclusion one view leads to a highly organised
Empire which will be all in all to itself, the other brings its
supporters to exchange goods and ideas and ideals with other
nations of the world and may conceivably lead to the control
of foreign policy by the people and even to internationalism,
in one form or another. But it is not easy to see very far
ahead and, perhaps fortunately for its supporters, it is seldom
possible to push a view to its extreme limits at any one epoch.
After ail, we can influence the rate or direction of our growth
only very slightly, and our premeditated action is more likely
to spoil than to improve. The one view is based on the assump-
tion that the colomes are bent on secession and aims at restrain-
ing them. The other is grounded on the belief that the
colonies only desire the greatest possible degree of freedom
which is compatible with the maintenance of the imperial

The student of history keeps wide awake to these dis-
cussions and he is chiefly interested in the academic
Thesugges- ^tspect of the disputatious, for he sees before him
Hon for im- constitutional history in the making. But he
^Honu^t observes that in South Africa the agitation for
counur- imperial federation has had the result of raising a
suggestions, counter claim — curious perhaps and uninstructed in
itself, but not entirely inexplicable under the circumstances —
that when at any future time the imperial authorities get in-
volved ip a war it should be the right of any one of the dominions
to decide whether it shall participate or stand out. A similar
suggestion has been raised in Canada. That is an extreme
counter-irritant to imperial federation ; but imperial states-
men know that the colonies and dominions as well as India
are not. nor are they likely to be at any time, unwilling to

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The Union of South Africa Ixxxv

contribute to the utmost of their power towards performing
the common duties of them all as long as there is no curtail-
ment of their freedom. It is extremely unlikely that this
attitude will be abused or aUenated by precipitate incon-
siderateness. No doubt as regards commerce and foreign
affairs the colonial governments will in future be consulted
and action will be taken only if there is no strong objection on
the part of any of them. That this was, to some extent at
least, the practice before the war can hardly be doubted.
Possibly such informal procedure will conduce more to ihe
peace and welfare of the proletariat in the various countries
concerned than could any federal executive with the con-
sciousness of having behind it millions of men who can be
called to arms by signing and issuing a proclamation ; and it
seems as if such an executive could never in practice be called
to account by anybody. It seems to be an absolute negation
of democracy. At any rate great tact and moderation will
be exercised in moving for constitutional changes, for the
liberties granted to the colonies in the past have extended
so far that it will not be an act of real statesmanship to
appear to withdraw any of them. Without those liberties
the Empire could not have stood and grown, and they
have therefore acquired the character of goods deUvered
in fulfihn^it of a contract. To adapt a wise man's saying :
if the tie that holds together the separate parts of the
Empire is strong as steel that is only because it is as light
as a feather.

Impoial conferences have laid down lines of policy with-
out reference to the peoples committed thereby. The delegates
have agreed to su^estions and action has been taken on such
agreement. The opportunity of making up their minds and
expressing their wishes has been withheld from the people,
whether unavoidably or with set purpose makes no differ-
ence. But there is undeniably a general tendency to do
away with that method of procedure. The British peoples
seem to be outgrowing the old system. They demand mat
they should know of every contemplated step that will affect
them. They argue that if they know and endorse their
commitments then they cannot be otherwise than faithful to
than, but they demand to know and they state that they
have a right to decide and that no one else has such a right.
They further assert that as regards foreign policv if the British
Empire transacts its business in public no other power will
very long be able to take shelter in secrecy as a normal process
of negotiation. It is obvious that in this respect Uberties
can not be extended to the colonies until they have begun to
be enjoyed in the United Kingdom. Whatever the future

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Ixxxvi IfUroductian

utiKty of imperial conferences may Be, their significance has
not been generally grasped in the past, not even in the most
advanced colonies. Whether the institution will be extended
and made permanent so as to effect a virtual federation of the
Empire seems doubtful, as the delegates will certainly in future
be called to account by their legislatures, so that their decisions
will have no binding e&ect

Names and phrases and catch-words often have the effect
of obscuring the thoughts that lie behind them. It may be
that those who speak of a Commonwealth of Nations and
those who are labouring to establish a Self-contained Empire
have somewhat different roads in view by which to reach the
same goal. Possibly, too, the one term is meant to attract
one class of people, and the other to satisfy another class. In
the United Kingdom propaganda of a determined character
has been proceedSmg, but in the dominions there is a great deal
of hostility and misapprehension arising from ill-timed and
ill-considered agitation. Any scheme that may be sub-
mitted to the peoples of the Empire in the near future will
probably be decided on without their grasping the issues at
stake. There can be no intention to force a decision until
the whole question in all its bearings is everywhere understood.
The people will be honestly told that they are to decide whether
there is to be greater scope for individual and local liberty, for
self-development along fairly democratic lines, or whether
for the sake of a powerful Empire they will sink their pro-
vincial ambitions. Either course has its attractions. Tem-
perament, education, lack of education, and past history will
decide for individual men and women as for the various peoi)les
the course to be favoured. There seems to be a great parting
of wa}^ in the Empire, and amy action taken will greatly
influence the worid's history. The maintenance of peace in
the future is the great object which the bulk of the human race
is trying for the moment to assure. The question is whether
that peace can be best preserved by organising into a compli-
cated but perfect fighting-machine a large number of groups
of peoples whom no one power will dare to assail, or bj^ allow-
ing each group freedom to act or stand out as its own inclina-
tion dictates. But there is a further and vastly more im-
portant question : will a highly organised Empire or a number
of separate and semi-independent dominions give greater
freedom of action to the individual and contribute to the com-
mon fund of human liberty which has been painfully but
steadily accumulated during the ages, and which has been
and is still to-day the great fountain of inspiration for the
oppressed? Ultimately, of course, we get involved in a

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The Union of South Africa Ixxxvii

consideration of the whole aim and object of human
existence, but here it is only necessary to note the issues
as they dimly seem to imfold themselves, leaving it to his-
torians to present the narrative when the events have been
played off.

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b. 1. Letter from Lord Grenville to the Duke of York

AND Albany.

Downing Street, ist February 1795.

Sir, — As it appears of the utmost importance, particularly
from the Letters this day received from Captain Berkeley,
that the Prince Stadtholder should give to the different
ofl5cers and Commanders of the Forts and Vessels of the Re-
public such orders as may distinctlv mark the real situation
in which His Serene Highness is placed, and may authorize
them to avail themselves of that protection which His Majesty
is desirous of holding out to them, according as circumstances
may permit ; His Majesty's servants have thought that a
Proposal of this nature, the urgent necessity of which is so
apparoit, could not in any manner be brdught forward with
so much advantage, as if Your Royal Highness would have
the goodness to charge yourself with it.

Your RoyaJ Highness is too well acquainted with all the
bearing of this important point, to make it at all necessary
to dwdl on the arguments which will prove to His Serene
Highness, in the most indisputable manner, that the line now
pointed out is what He owes as much to the interests of the
Reoublic, as to those of His own House, and of the high dignity
with which He is invested.

There would be no difficulty in giving to His Serene High*
ness any assurance that He might wish, that any Ships of
War or r orts, surrendered in consequence of such order, would
be restored to the Republic at the conclusion of a General
Peace, by which Her independence and Constitution should
be secured.

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2 . . . CAPE OF GOOD HOPE [1795

I have the Honor to enclose to Your Royal Highness the
Draft of an order, which has been prepared on this idea ; and
it would be desirable if His Serene Highness could be per-

Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 9 of 70)