SELECT CONSTITUTIONAL DOCUMENTS ILLUSTRATING SOUTH AFRICAN HISTORY 1795-1910
SELECTED AND EDITED WITH AN INTRODUCTION BY G. W. EYBERS, M.A.
LONDON
GEORGE ROUTLEDGE & SONS, LIMITED
NEW YORK: E. P. BUTTON & CO.
1918
PREFACE.
THIS volume is intended to supply the papers and documents
necessary to the study of South African history from the year
1795. It fills a gap in the series of works by various compilers
which have done so much towards the careful study of the
constitutions of the United Kingdom and the outlying
dominions. It is hoped also that at this time when so much
thought is given to imperial relations it may serve as a handy
book of reference for estimating the character of the various
elements that have contributed towards the building up of
the youngest of the three great British Dominions. The work
is really more than a volume of select documents, for it contains
nearly all the instruments necessary to follow the broad lines
of the constitutional history of the four colonies that formed
the Union. There will also be found some mention of practi-
cally every important step taken towards the extension of
British rule and the placing of native territories under European
control . Three documents which will form the basis of negotia-
tion towards the end of the War or shortly afterwards have
been included in Appendices. Under the heading “Natal”
are now published several papers relating to the Great Trek
which have probably never been seen by anybody now alive
outside official circles except two or three historians. These
are included with the kind permission of Mr. Secretary
Bonar Law and after him Mr. Secretary Long. Most of the
Free State laws given below are to be found nowhere in
London except in one private collection of books, the fine
South African library collected by the late Mr. Sidney
Mendelssohn.
A few documents are given in their entirety as originally
issued, the object being to show the exact form given at
various times in the different countries to proclamations,
ordinances, acts ofj[tJO’f^^ii yes imperial papers, and
vi Preface
so forth. Where a portion of a document has been sum-
marised or abbreviated this is indicated by the customary
marks. In a very few cases where I wished to draw attention
to an Act only the title and the date are given.
As regards the plan of arrangement, it seemed desirable to
adopt for the Cape of Good Hope and Natal a scheme that
would have the advantage of maintaining the unity of interest
with regard to the main groups of persons who performed the
duties of government. There will therefore be found for each
of these colonies three divisions Central Government, Local
Government, and Administration of Justice. In only a very
few cases does a document deal to any extent with two or more
of these. If the traditional division into Executive, Legis-
lature, and Judiciary had been made, a more logical basis
might be established, but then it would have been impossible
to avoid splitting up a large number of Acts and giving the
different parts under various heads. Such a course seemed
undesirable. As the papers are here arranged, matters relating
to the executive and the legislature will have to be sought
for under the first heading, those relating to municipal and
divisional councils under the second, and magistrate’s courts,
high courts, and native courts are included under the third.
No distinction has been made with regard to the origin of the
documents. Instruments issued by the Crown in Council,
by the Governor, or by the colonial legislature may be found
side by side under any of the three headings.
In the case of the Orange Free State and the South African
Republic, the Grondwet or constitution of each contains
provisions for every branch of government. Here again it
would lead to chaos if the documents were to be subdivided,
therefore a purely chronological arrangement has been made.
When any particular subject is to be consulted, the Index at
the end of the volume will serve as a guide. The laws of these
two countries were drawn up in Dutch. With the originals
an English translation has been given in every case. I have
attempted to make the rendering as literal as possible. Where
a portion of an Act in Dutch has been summarised I have
adhered as much as possible to the spelling and grammatical
forms of the original. Titles of dignity occurring in the Dutch
text have as a rule been omitted in translating.
Preface vii
As there exists no work dealing specially with the constitu-
tional history of the South African colonies the subject has been
treated at considerable length in the Introduction. Though I
have consulted nearly all the published records and the un-
published documents in the Public Record Office relating to
South Africa up to 1860, I have often been greatly assisted also
by the very thorough and reliable histories of Dr. G. McC. Theal.
Mr. Advocate Gregorowski of Pretoria has kindly sent me
a good deal of information regarding the Free State laws
passed between 1867 and 1891. I also wish to record my
gratitude for ready assistance afforded me in my search for the
documents in the Public Record Office, _the British Museum, the
Colonial Office Library, the Royal Colonial Institute, and the
Office of the High Commissioner for South Africa. My best
thanks are particularly due to those who by their lively interest
in the progress of the work, by encouragement, and by expert
advice have made my task a light one and a source of genuine
pleasure. To the willing co-worker who has copied several of
the documents and assisted in many other ways I desire to
acknowledge my indebtedness.
G. W. EYBERS.
KING’S COLLEGE, LONDON,
i$th October 1917.
TABLE OF CONTENTS.
PAGE
PREFACE . – . . . . . . . ‘ .. v
SOME ABBREVIATIONS EMPLOYED . … xvi
INTRODUCTION.
SECTION SUBJECT.
I. THE CAPE OF GOOD HOPE UNDER THE DUTCH, 1652-1795 xvii
II. THE CAPE OF GOOD HOPE UNDER THE BRITISH CROWN,
1795-1910 . . . . . xxvii
III. THE HIGH COMMISSIONERSHIP FOR SOUTH AFRICA . xli
IV. NATAL, 1835-1910 …… xliii
V. THE ORANGE FREE STATE, 1836-1910 . . lx
VI. THE SOUTH AFRICAN REPUBLIC, 1836-1910 . . Ixvii
VII. THE UNION OF SOUTH AFRICA …. Ixxv
DOCUMENTS.
CHAPTER I.
THE CAPE OF GOOD HOPE.
Section A. Central Government.
NO. TITLE AND DATE.
1. Request for an Order to surrender the Cape, i Feb. 1795 . I
2. Order to admit British Forces into the Cape, 7 Feb. 1795 2
3. First Surrender of the Cape to the British, 16 Sept. 1795 . 3
4. Appointment of the first British Commandant, 30 Sept. 1795 . 3
5′ Oath of Allegiance required, 7 Oct. 1795 . . .4
6. Appointment of Officials, loOct. 1795 …. 5
7. Instructions issued to a Cape Governor, 30 Dec. 1796 . . 5
8. Fees of Office, 7 Jan. 1797 . . . . .11
9. Treaty of Amiens, 27 March 1802 . . . .12
10. The Cape restored to the Dutch, 21 Feb. 1803 . . 13
11. Surrender of Cape Town to the British, 10 Jan. 1806 . . 14
12. Second Surrender of the Cape, 19 Jan. 1806 . . .16
13. The Farming Out of Licenses, 25 July 1807 . . .16
14. Vagrancy and Contracts of Hire, i Nov. 1809 . . . . 17
15. Sale of Christian Slaves, 9 Oct. 1812 . . . .18
1 6. Cession of the Cape to Great Britain, 13 Aug. 1814 . . 19
x Table of Contents
NO. TITLE AND DATE. PAGE
17. The English Language established, 5 July 1822 . . 23
18. The First Council appointed, 2 May 1825 . . .24
19. The Paper Currency, 6 June 1825 . . . 25
20. Extension of Hottentot Liberties, 17 July 1828 . . 26
21. Roman Catholic Relief , 1 3 Jan. 1830 . . . .29
22. Debate in the House of Commons, 24 May 1830 . . 30
23. The Emancipation of the Slaves, 28 Aug. 1833. . . 38
24. Appropriation Ordinance for 1835, 3 Dec. 1834 . . 38
25. The Eastern Districts Government, 19 Feb. 1836 . . 39
26. Petition for Representative Government, 20 Dec. 1841 . 41
27. Nomination of Ministers of Religion by the Crown, i Dec, 1845 43
28. Public Meetings, 12 Dec. 1848 . . . . .44
29. The Cape Constitution Ordinance, 3 April 1852 . . 45
30. Reserved Civil List Ordinance, 1852 . . . ’55
31. Freedom of Speech in Parliament, 19 Sept. 1854 . . 57
32. Incorporation of British Kaffraria, 10 Oct. 1865 . . 59
33.. Annexation of Basutoland, n Aug. 1871 . . .61
34. Responsible Government, 22 Nov. 1 872 . . -63
35. Amendment of the Constitution Ordinance, 31 July 1874 . . 64
36. Annexation of Transkeian Territories, 15 Aug. 1879 . 65
37. Annexation of Griqualand West, 15 Aug. 1879. . . 66
38. Equal Language Rights in Parliament, 25 May 1882 . . 66
39. Representation of Kimberley in Parliament, 21 June 1882 . 66
40. Disannexation of Basutoland, 1 8 March 1884 . . -67
41. Annexation of Walfish Bay, 25 July 1885 . . .68
42. Annexation of Tembuland, 14 July 1885 . . .68
43. Annexation of the Xesibe Country, 25 Oct. 1886 . . 69
44. Representation of the Transkei, 9 Aug. 1887 . . .70
45. Annexation of Rode Valley, i Nov. 1887 . . .7
46. The Auditing of Public Accounts, 21 Aug. 1888 . 71
47. Salary of High Commissioner for South Africa, 13 Aug. 1889 . 73
48. Narrowing the Parliamentary Franchise, 1 6 Aug. 1892 . 73
49. Ministerial Offices, 12 Sept. 1893 -74
50. Annexation of Pondoland, 25 Sept. 1894 . . .76
51. Annexation of British Bechuanaland, ii Nov. 1895 . . 76
Section B. Local Government.
52. Repair of Roads, 21 March 1800 . . . -76
53. Repair of Roads, 13 Sept. 1806. . . . -77
54. Collection of the Revenue, 28 Feb. 1828 . . -77
55. Municipal Boards created, 1 5 Aug. 1836 . . .78
56. Creation of Road Boards, 22 Nov. 1843 . . .81
57. Creation of Divisional Councils, 8 June 1855 . . -83
58. Management of Public Roads, 5 June 1858 . . ’85
59. Educational Boards, 5 June 1858 . . . .87
60. Municipalities, 30 June 1882 … .88
Table of Contents xi
Section C. The Administration of Justice.
NO. TITLE AND DATE. PAGE
61. The Courts of Justice, ii Oct. 1795 . . . -97
62. Landdrosts’ Courts, 15 Oct. 1795 . .. ‘ . . 98
63. Police Arrangements, 20 May 1797 . . . -98
64. The Courts of Justice, 24 July 1797 . . . -99
65. Court of Appeal in Civil Cases, 29 May 1807 . . .102
66. Court of Appeal in Criminal Cases, 10 June 1808 . .102
67. Circuit Courts established, 16 May 181 1 . . . 103
68. Judicial Proceedings in Public, 25 Sept. 1813 . . . 105
69. The Cape Town Court of Landdrost and Heemraden, 5 April
1816 . . . . . . . .105
70. Criminal Jurisdiction granted to Local Courts, 18 July 1817 . 106
71. Exclusive Adoption of the English Language postponed,
13 Dec. 1826 ……. 107
72. Creation of Office of Justice of the Peace, 1 1 Dec. 1827 . . 107
73. Creation of Office of Resident Magistrate, 19 Dec. 1827 . 109
74. The Sheriff of the Cape Colony, 5 Jan. 1828 . . .112
75. Qualification of Jurors, 4 Feb. 1828 . . . 113
76. The Royal Charter of Justice, 4 May 1832 . . .114
77. Administration of Insolvent Estates, 24 Oct. 1843 .119
78. Duties of Field-Cornets, 4 July 1848 . . . .120
79. Trial by Jury in Civil Cases, 1854 . . . .122
80. Resident Magistrates, 4 June 1856 ….. 125
81. The Eastern Districts Court established, 26 July 1864 . . 127
82. Special Justices of the Peace, 4 July 1876 . . . 129
83. The Higher Courts of Justice, 8 Sept. 1879 . . . 130
84. Administration of Justice in Griqualand West, 29 July 1880 . 132
85. Marriage Licenses, 14 June 1882 …. 133
86. The Dutch Language in the Courts of Law, 25 July 1884 . 133
87. The Law relating to Jurors, 7 Aug. 1885 . . . 134
88. Appeal Court and Sheriff’s Duties Act, 29 June 1886 . . 135
89. The Dutch Language Judicial Use Amendment Act, 17 Aug.
1888 . ……. 136
90. The Jury Act, 1891 …… 137
CHAPTER II.
NATAL.
Section A. Central Government.
91. Treaty between British Residents and Dingaan, King of
the Zulus, 6 May 1835 ….. 143
92. Manifesto of Emigrant Farmers …. 143
93. Attorney-General’s Opinion regarding the Great Trek, 13 Aug.
1836 . .-…;. 145
94. British Authority beyond the Cape borders, 13 Aug. 1836 . 146
xii Table of Contents
NO. TITLE AND DATE. PAGE
95. Cession of Natal Territory to the Emigrants, 4 Feb. 1837 . 148
96. Cession of Natal Territory to the King of England, 21 June
1837 … . .149
97. Protest of British Residents against a British Magistrate’s
Authority, July 1837 . . . . .150
98. Occupation of Port Natal by the British, 4 Dec. 1838 . 151
99. Early Legislation of the Natal Republic, 29 July 1839 . 152
100. Memorial of Emigrants to the Governor, 1839 . 153
101. Emigrants’ Demand for Independence, 4 Sept. 1840 . . 158
102. Articles of Agreement and Alliance proposed, 14 Jan. 1841 . 159
103. Burghership Law, 14 April 1841 . . . .162
104. British Authority over Emigrants, 2 Dec. 1841 . . 164
105. Qualification of Volksraad Members, Feb. 1 842 . . 166
1 06. Emigrant Grievances, 21 Feb. 1842 …. 167
107. Demands for Constitutional Liberties, 4 Sept. 1843 . . 174
108. British Authority consolidated, 5 Oct. 1843 . . . 180
109. Annexation of Natal to the Cape, 31 May 1844 . .182
no. Maintenance of British Authority over all Emigrants,
21 Aug. 1845. -183
in. Natal a Separate Colony, 30 April 1845 . . .184
112. Legislative Council established. 2 March 1847 . . 186
113. Charter of Natal, 15 July 1856 . . . .188
114. Native Franchise, 24 Aug. 1 865 …. 194
115. Ecclesiastical Grants, 22 Sept. 1869 …. 197
116. Electoral Divisions, 12 July 1873 …. 198
117. Constitution Amendment Law, 23 Sept. 1875 . . 199
118-122. Natal Government Railways, 1875-78 . . 200-1
123. Constitution Amendment Law, 9 March 1883 . . 201
124. Franchise Amendment Law, 29 March 1883 . . . 203
125. Constitution Amendment Law, 25 June 1889 . . 204
126. Responsible Government, 3 July 1893 2O 4
127. Office of Governor constituted, 20 July 1893 . . . 209
128. Instructions to the Governor, 20 July 1893 .212
129. Franchise Amendment Act, 23 May 1896 . . . 215
130. Annexation of Zululand, 29 Dec. 1897 . . -215
131. Amendment of the Franchise Law, 12 July 1906 . .217
Section B. Local Government.
132. Creation of Municipal Boards, 30 March 1847 . . 218
133. Municipal Corporations, 21 April 1854 . . . 220
134. Municipal Corporations, 1 6 Aug. 1 86 1 . . 224
135. Municipal Corporations, 20 Dec. 1872 . . . 226
Section C. Administration of Justice.
136. Establishment of the Roman-Dutch Law 27 Aug. 1845 . 227
137. The District Court erected, 1 6 Oct. 1845 22 9
138. Field-Cornets and Constables, 7 Jan. 1846 . . .231
Table of Contents xiii
NO. TITLE AND DATE PAGE
139. Justices of the Peace, 7 Jan. 1846 . . … 232
140. Resident Magistrates, 24 April 1846 . . . 233
141. Administration of Justice among Natives, 23 June 1849 . 235
142. Trial by Jury, 1 8 May 1852 ….. 238
143. Trial by Jury in Civil Cases, 1 8 May 1852 . . . 241
144. Supreme and Circuit Courts, 10 July 1857 . . . 242
145. Petty Debts Recovery Law, 4 Oct. 1867 . . . 246
146. Native Administration Law, 17 Dec. 1875 ‘ * 2 47
147. Transfer of Causes, n Nov. 1876 . . . .251
148. Native Administration Law. 9 Sept. 1878 . . . 252
149. Native Administration Law, 1 8 Sept. 1887 . .. . 253
150. Resident Magistrates, 14 Aug. 1889 . , . . 255
151. Native Law, 1891 . . . , .. 259
CHAPTER III.
THE ORANGE FREE STATE.
152. Petition of Trans-Orange Emigrants to Commissioner Cloete
in Natal, 28 Sept. 1843 ….. 260
153. Recognition of the Griqua State, 19 Feb. 1846 . . 261
1 54. Preparations for annexing Territory, 27 Jan. 1 848 . . 269
155. Establishment of the Queen’s Sovereignty over Territory
between the Orange and the Vaal, 3 Feb. 1 848 . . 270
156. Provisional Government in the O.R. Sovereignty, 8 March
1848 …. . 273
157. Regulations for the Government of the O.R. Sovereignty,
14 March 1849 …… 275
158. The Bloemfontein Convention, 23 Feb. 1854 . . . 281
159. The Constitution of the O.F. State, 10 April 1854, etc. . 285
1 60. Ordinance establishing the Dutch Language, 15 April 1854 . 296
161. Instructions to Field-Cornets, 16 April 1854 . . . 297
162. Ordinance No. 1,1856 ….. “301
163. Ordinance erecting Municipal Boards, 15 Feb. 1856. . 311
164. Ordinance regulating the Qualification of Jurors, 13 Feb.
1857 . ….. 312
165. The Occupation Law, Ord. No. 2, 1866 . . -314
1 66. Ordinance for the Government of Molappo, 23 May 1866 . 320
167. Law relating to the People of Paulus Mopeli, 1 867 . -325
168. Law relating to the Higher Courts of Justice . . . 326
169. Law relating to the Lower Courts of Justice . . . 330
170. The Convention of Aliwal North, 12 Feb. 1869 . -336
171. Settlement of the Diamond Fields Dispute, 13 July 1876 . 342
172. Annexation of the Orange Free State, 24 May 1900 . . 344
173. The Vereeniging Peace Treaty, 31 May 1902 . , . 345
O.R. Colony : Administration of Justice, 1902-1910 . . 347
O.R. Colony : Municipal Government, 1902-1910 , . . 348
xiv Table of Contents
CHAPTER IV.
THE SOUTH AFRICAN REPUBLIC.
NO. TITLE AND DATE. PAGE
174. The Thirty-Three Articles, 9 April 1 844 . . . 349
175. Resolution of the Volksraad, 23 May 1849 . . . 357
176. Resolution of the Volksraad, Jan. 1851 . . . 357
177. The Sand River Convention, 16 Jan. 1852 . . . 357
178. Resolution of the Volksraad, 10 Aug. 1853 3^
179. Resolution of the Volksraad, 19 Sept. 1853 . . . 360
1 80. Resolution of the Volksraad, 21 Nov. 1853 .361
181. Resolution of the Volksraad, 1 8 June 1855 . . . 361
182. The Grondwet of the S.A. Republic, Feb. 1858, etc. . . 362
183. Instructions to the Field-Cornets, 17 Sept. 1858 . . 410
184. Addendum to the Grondwet, 19 Sept. 1859; No. i . . 416
185. Addendum to the Grondwet, 19 Sept. 1859; No. 2 . . 417
186. Resolution of the Volksraad, Sept. 1858 ; Art. 23c . . 418
187. Resolu tion of the Volksraad, Sept. 1858 ; Art. 23^ . . 419
1 88. Union of the S.A. Republic and the Lijdenburg Republic,
24 Nov. 1859 ……
189. Justices of the Peace, 22 July 1870 ….
190. Resolution of the Volksraad, 6 Nov. 1871
191. Instructions to the Treasurer-General, 27 Dec. 1871 .
192. Resolu tion of the Volksraad, 25 July 1872
193. The Franchise Law of 1 876 …..
194. The Military Service Law of 1 876 ….
195. Resolution of the Volksraad, 15 June 1876 .
196. Resolution of the Volksraad, 7 March 1 877 .
197. Government Notice, ii April 1877 ….
198. Annexation of the S.A. Republic, 12 April 1877
199. Proclamation, 12 April 1877 …..
200. Convention of Pretoria, 3 Aug. 1881 ….
201. Proclamation, 8 Aug. 1881
202. The District Councils Law of 1883 ….
203. Government Notice, i Oct. 1883 ….
204. The London Convention, 27 Feb. 1884
205. Form of Warrant of Arrest, 1884 ….
206. Resolu tion of the Volksraad, 17 Sept. 1884 .
207. Resolution of the Volksraad, 3 Oct. 1884
208. Resolution of the Volksraad, 3 Nov. 1884
209. Resolution of the Volksraad, 22 Oct. 1884
210. Resolution of the Volksraad, 29 June 1886 .
211. Resolution of the Volksraad, 7 July 1886
212. Resolution of the Volksraad, 9 May 1887
213. Resolution of the Volksraad, 21 July 1887
214. Representation of Public Diggings, ii Aug. 1887
215. The Dutch Language made Compulsory, 30 July 1888
216. Resolu tion of the Volksraad, 9 May 1888
217. Resolution of the Volksraad, 27 May 1 889
Table of Contents xv
NO. TITLE AND DATE. PAGE
2 1 8. The Grondwet, 19 Nov. 1889 . . . . .485
219. Law to establish Two Volksraads, 23 June 1890 . . 488
220. Modification of the 1882 Franchise Law, 23 June 1890 .. 495
221. Resolution of the Volksraad, ii Aug. 1890 . . . 498
222. Resolution of the First Volksraad, 31 July 1891 . . 499
223. Resolution of the First Volksraad, 26 Aug. 1892 . . 500
224. Law to explain and modify the 1891 Franchise Law, 20 Sept.
1893 …….. 500
225. Resolution of the First Volksraad, 23 Aug. 1894 . . 502
226. Resolution of the First Volksraad, 25 July 1895 . . 505
227. The Grondwet, 13 June 1896 ….. 505
228. Law regulating the Right to expel Foreigners, 8 Oct. 1896 . 505
229. Resolution of the First Volksraad, 17 Aug. 1896 . . 508
230. Resolution of the First Volksraad, 4 Sept. 1896 . . 508
231. The Legislature v. the Judicature, Law No. i, 1897 58
232. Resolution of the First Volksraad, 22 July 1897 . . 513
233. Resolution of the First Volksraad, 27 Aug. 1897 . -514
234. Annexation of the S.A. Republic, i Sept. 1900 ‘ .” . 514
The Transvaal : Administration of Justice, 1902-1910 . 515
The Transvaal : Municipal Government, 1902-1910 . .516
The Inter-Colonial Council, 1903 . . . .516
CHAPTER V.
THE UNION OF SOUTH AFRICA.
235. The South Africa Act, 1909 . . . . .517
APPENDIX A.
236. Charter of the British South Africa Company, 29 Oct. 1889 . 559
APPENDIX B.
237. Agreement between the British and German Governments
respecting Africa and Heligoland, i July 1890 . -567
APPENDIX C.
238. The Capitulation in German South-West Africa, 1915 . 570
INDEX . . . . . . . -573
SOME ABBREVIATIONS EMPLOYED.
1 . C. of G. Hope Statutes : STATUTES OF THE CAPE OF GOOD HOPE,
1652-1895. Edited by Hercules Tenant and Edgar Michael
Jackson. Cape Town, 1895.
2. Laws of the O.R.C. : STATUTE LAW OF THE ORANGE RIVER COLONY.
Edited by P. L. Lefebvre and Bedver B. L. Jackson. Bloem-
fontein, 1907.
3. Locale Wetten der Z.A. Rep. : LOCALE WETTEN EN VOLKSRAADS-
BESLUITEN DER ZUID – AFRIKAANSCHE REPUBLIEK, 1849-98.
By various compilers. Pretoria, 1887-99.
4. Ords. of Natal : ORDINANCES, PROCLAMATIONS, ETC., RELATING TO
NATAL, 1836-55. By W. J. D. Moodie. Natal, 1856.
5. O.V.S. Wetboek : WETBOEK VAN DEN ORANJEVRIJSTAAT, 1854-91.
Uitgegeven op gezag van den HEd Volksraad. Bloemfontein,
1892.
6. Prods., etc. : PROCLAMATIONS, ADVERTISEMENTS, AND OTHER
OFFICIAL NOTICES, PUBLISHED BY THE GOVERNMENT OF THE
CAPE OF GOOD HOPE FROM IOTH JANUARY 1806 TO 2ND MAY
1825. Cape of Good Hope, 1827.
7. P.R.O., C.O. : Public Record Office, London ; Colonial Office
Department. The papers for each Colony are divided into
sections like ” Original Correspondence,” ” Ordinances,”
” Government Gazettes,” etc., and the volumes in each section
are numbered. Thus 50/4 is the fourth volume of the Cape
section, ” Ordinances.”
8. Rec. : RECORDS OF THE CAPE COLONY, 1793-1827. 36 vols.
London, 1897-1905. By G. McC. Theal.
9. Statute Law of the Transvaal : STATUTE LAW OF THE TRANSVAAL,
1839-1910. Compiled and edited by Carl Jeppe and J. H.
Gey Van Pittius. Pretoria, 1910.
10. Statutes of Natal : STATUTES OF NATAL, 1845-99. Compiled and
edited by R. L. Hitchins and revised by G. W. Sweeney.
Pietermaritzburg, 1900.
11. Verg. van Besl. v. d. O.V.S. : VERZAMELING VAN BESLUITEN . . .
VAN DEN HEo. VOLKSRAAD VAN DEN ORANJEVRIJSTAAT (1854-66).
Gedrukt op Last van den Hoog Edelen Volksraad. Bloemfontein
(1867 ?).
xvi
INTRODUCTION.
SECTION I.
THE CAPE OF GOOD HOPE UNDER THE DUTCH,
1652-1795.
BRITAIN’S task in South Africa has probably been more
difficult than in any other part of her extensive and widely
scattered dominions. While her statesmen have had to cope
with native problems in India and to a lesser extent in
Australasia ; while they have been faced in Canada by the
delicate matter of governing an off-shoot of another highly
civilised and intelligent nation ; while in the West Indies
there was the task of eradicating slavery and adjusting govern-
mental institutions to the peculiar needs and weaknesses of a
mixed population of Europeans and natives she found in
the southern corner of Africa all these elements combined.
There were the Hottentots, who had been gradually taught
to lead a settled life and engage in remunerative work ; the
Bushmen, still untamed and, as the event proved, for ever
untamable by any of the artifices on which the white man
prides himself ; and the Kaffir, who in his southward and west-
ward march had begun to touch the vanguard of the colonists
as they moved towards the rising sun. Most serious of all,
there was the white population, with its own ideas and traditions,
its own ambitions and its own peculiar characteristics, formed
and hardened by close on a century and a half of contact with
the soil. The relation of the white men towards their slaves
and the various native or non-European races would be a
fruitful source of difficulty. To the formation of their national
character various factors had contributed. If one would
estimate and account for the value or success of the Constitu-
tion introduced in the nineteenth century it will be necessary
to know beforehand not only the governmental arrangements
that existed in 1795 when the Cape of Good Hope surrendered
to the arms of George in., but also to understand something
of the attitude towards the State of the people subdued.
b
xviii Introduction
THE CONSTITUTION OF THE CAPE OF GOOD HOPE TOWARDS
THE END OF THE RULE OF THE NETHERLANDS EAST INDIA
COMPANY.
At its establishment in 1652 the Cape settlement, consisting
entirely of servants of the Netherlands East India Company,
Rise of the was mana g e d exclusively by officials who followed
burgher the methods and the procedure that were univer-
dass. sa iiy adopted by the officers on board a fleet or
vessel sailing between Holland and the East. While they
acted both as a governing and a judicial body their proceed-
ings were marked by promptitude and finality. The original
intention was to have a half-way house to the East, where dis-
eased persons could recuperate and fresh supplies be obtained,
and it soon became obvious that this object could be best
attained if the agriculturists were given land and cattle to
farm on their own account. Thus there arose a class of men
distinct from the employees of the Company. They were
called free-men or burghers. Receiving land in 1657, some
leagues from the immediate vicinity of the Fort in Table
Valley, they shifted into the interior, becoming the outposts
of Western civilisation and Christianity, and making from its
southern extremity the first definite and fruitful move towards
the reclaiming of the Dark Continent, a move the end of which
is not yet in sight.
Very soon it became obvious that the interests of burghers
and employees were by no means identical, and as a recognition
of this fact the colonists were given representatives
Divergent r , . . , x j. j i A , i
interests of first in the courts of justice and later in other
burghers and bodies as they were created. This privilege was
granted the burghers by the rulers on their own
initiative, for, as far as is known for certain, there were as yet
no definite and clearly formulated demands on the part of
the people for a share in the government.
This is not the place for describing with any minuteness
the evolution of a political consciousness of the Cape burghers,
Growth of but it must be remarked that the process com-
poiiticai menced before the end of the seventeenth century
consciousness. an( j continued throughout the eighteenth with
ever-increasing force and continuity. As a rising reef of rock
near the seashore first shows above the surf a few isolated
peaks at considerable distances apart, which then become
closer and closer together till the entire chain emerges and
finally, perhaps, grows to a mountain range filling the whole
countryside, so there were from the earliest years of the
eighteenth century apparently unconnected risings among
the burghers, which at first merely took the form of prayers
The Cape of Good Hope under the Dutch xix
for the redress of grievances, later of demands for a share in
the government, and finally ended in the establishment of
independent republics in the interior of the Colony.
The power against which this movement was directed was
concentrated in the hands of a few officials. Subject to the
Governor^ directorate of the Company, which had received
powers, its first Charter in 1602, there was about the year
1790 at the head of the Cape Colony a Governor with very
extensive powers. He could convene the courts of justice,
approve all judgments, call up the militia for active service,
and direct the activities of all persons who exercised minor
executive and administrative functions throughout the country.
Yet this last statement should be qualified, for there was
associated with the Governor a Council which shared the task of
making laws and seeing to it that these were carried
into effect. The available records leave a consider-
able degree of doubt as to the question in how far the Governor
was bound to act in accordance with the opinions of the majority
of his Council. On one occasion at least instructions had been
issued from Holland permitting the Governor to set aside
the decision of a majority if he deemed such a step necessary ;
and as a general rule it was the Governor who was ultimately
responsible to the managing body of the Company, though
on a few notable occasions other officials were also called to
account for acts done by the government. Yet it is not
certain whether later governors were to be considered as
bound by all instructions issued to their predecessors. It is
even doubtful whether such later governors were always
aware of the existence of instructions issued in earlier years.
The directors in the Netherlands were often more concerned
about their trade and the safety of their cargoes than about
minute and definite points of law. They were traders first
and legislators afterwards. This, however, may be stated
with certainty, that the governors did act in opposition to
the decisions of their Council and that such action was upheld
by the directors. Yet this did not happen frequently, for
when the Governor was” a strong man he carried his Council
with him, while a weak ruler generally adopted the views of
his advisers. That there were not likely to be any grave
differences between Governor and Council will be realised
when it is stated that all the councillors were officials of the
Company, whose cause they were always apt to espouse
rather than that of the colonists whenever the interests of
rulers and ruled came into conflict ; for though no special
emoluments were attached to the office of councillor, it was
always filled, at the wish of the directorate, by salaried servants
appointed by that body and liable to dismissal by it.
xx Introduction
As a rule the high officials sitting in the Council of Govern-
ment were seven or eight in number. They were generally
men of fairly advanced age who had climbed step by step
every rung in the ladder of advancement, and consequently
were well acquainted with the policy and methods of their
employers. Naturally they seldom showed any inclination to
view matters sympathetically from the burghers’ standpoint,
especially when commercial privileges were asked for. This
had the effect of causing the inhabitants to make demands
for representation in the highest governing body, but they
were met by the directors with a flat refusal. The desire
for representation had grown out of concrete needs, the
absence of trading rights which the Company reserved to
itself, and grievances arising from the dependence of the
Supreme Court of Justice on the Government, and the power of
banishment held and exercised by the Governor. Can any
explanation be found of the fact that the successive generations
of colonists who remembered and handed down the experiences
of their ancestors were so slow in their advance ? Apart from
the universally experienced difficulty of upsetting or even
materially modifying an established order of things, however
bad and undesirable, the Cape colonists laboured under the
additional disadvantages of being too widely scattered to be
able to co-operate, of being totally debarred from the advan-
tages of a public press, of being very badly educated in history
and politics, of being in their ordinary walks of life very easy-
going and somewhat inclined to become indolent, and of having
the ever-present danger of attacks by the natives to provide
against. But the most direct if not the most potent cause
of their prolonged quietness was to be found in the popularity
of their lesser boards.
By 1795 the Colony had been divided into four districts :
Cape Town, Stellenbosch, Swellendam, and Graaff Reinet. The
District president of each of the district boards was ap-
Boards. pointed by Government and his salary was paid out
of the public treasury. He received his instructions from the
Governor and Council and was removable by them at pleasure.
He was, as the civil commissioner is to-day, the representative
of the central Government in his district. He bore the title
of landdrost and had an official residence in the town where
his board held its meetings. With him were associated six
men, called heemraden. When such a board of landdrost and
heemraden was first constituted it was the practice for the
Government to appoint all the members, but when subsequent
vacancies occurred, and regularly every two years, the board
sent to Cape Town, the seat of Government, a double list of
names from which the Council selected the necessary number
The Cape of Good Hope under the Dutch xxi
of heemraden to serve for the next two years. The heemraden
had to be burghers and they had to possess land and reside in
the district for which they were appointed. No servant of
the Company, except the landdrost, could sit on the district
board. Subject to the supervision and control of the Governor
and Council which exercised executive and legislative functions
the boards performed fiscal and municipal duties in their
respective districts, seeing to the upkeep of public buildings,
the making and repairing of streets and roads, and the letting
of corn-mills where these existed. Each board had its own
treasury out of which were defrayed the expenses arising from
local works. Certain taxes were collected and paid into the
district chests, but there were others which were gathered for
the colonial treasury. Landdrost and heemraden . were also
entrusted with the duty of instituting inquiries and sending
recommendations to the Government when application was
made by burghers for grants of waste land, and it was always
on such suggestions based on intimate acquaintance with local
customs and conditions that grants were made.
Apart from their administrative functions the boards also
met as courts of justice, possessing civil jurisdiction in cases
Local Courts mv l vm g I0 Rix-dollars or more. They were
s ‘ instructed to attempt to settle disputes among the
inhabitants. This was done by amicable intervention as far as
possible, and as courts of arbitration they rendered valuable
services in difficulties relating to boundaries, rights to pasture-
lands, running water, and matters of a similar nature. Their
decisions were subject to appeal to a higher court of justice.
They were not invested with any real jurisdiction in criminal
cases, but they held inquests, obtained information at first hand
with regard to crimes, and examined witnesses on oath. All
the evidence collected was then placed in the hands of the land-
drost, who acted as public prosecutor before the Court of Justice
at Cape Town.
Each district was subdivided into a number of wards in
each of which a burgher was appointed by the district board
Field cornets to SU PP^ ^ w ^ t ^ 1 i tems * information regarding the
assessment of taxes and matters of a like nature.
He had to preserve order in his ward and was instructed in
some cases to make arrests. At first he bore the title of veld-
wachter or veldwachtmeester , but about the year 1795 he came
to be called field-cornet. He was generally the most consider-
able farmer of his ward and a man of known integrity and
ability. He drew no salary, but was excused the payment of
certain dues. The office, like that of heemraad, was eagerly
sought after for the honour it conferred on the holder in the
estimation of his neighbours. As the old inhabitants of the
xxii Introduction
Colony, the Bushmen and the Hottentots, were often more or
less hostile towards the white inhabitants, the field-cornets were
empowered to call the burghers to arms in case of attack or
other great urgency and to defend the fanners as best they
could. As a further means of defence there was in each district
a burgher militia managed by a board of officers with the land-
drost as president. All burghers between the ages of sixteen
and sixty were liable to be called up for active service and they
exercised annually for a few days. The whole of these forces
stood under the direction of the commander-in-chief of the
Colony, but it was never possible to maintain strict discipline
among the farmers or to enforce obedience to calling-up orders.
Very similar to these arrangements was the constitution of
the board that did service for the capital, with these notable
Local ovem- exce ptions, firstly that in the Cape Town board
ment in the there sat an equal number of burghers and officials of
capital. th e Company, and secondly, that it had no judicial
functions to perform. These were relegated to a Court of Petty
Cases which consisted of six members, three burghers and three
officials. They decided disputes of a less amount than 100
Rix-dollars. The Court was also a Matrimonial Board for the
whole Colony, and its sessions had to be visited in person and
its consent procured by all persons intending to marry. In
both spheres of its duties it acted under the supervision of
the Supreme Court of Justice.
In its origin and up to the year 1786 the latter body had
consisted entirely of servants of the Company nominated by
The Court the Government, except that when a bargher was
of justice, concerned in a case three other burghers had always
been associated with the officials on the bench of judges. But
in that year, in response to demands carried “by delegates of
the burghers to the Netherlands, the Court was reorganised so
as to consist of twelve judges, half of whom were selected from
the burgher class and half from the officials. The burghers too
were made permanent members, sitting for the trial of all cases
whether a colonist was concerned or not. It was a novel
method of attempting to dissociate the judiciary as much as
possible from the executive and the legislature, and if this first
stride could be followed up by further progress on the part of
the people and everything pointed to the likelihood that the
process would be continued then the Cape Colony would soon
have had a somewhat unique judicial body.
The members were appointed for life, except that when
an official was removed from the Cape his post was filled by
another of his own class. When a burgher judge had to be
appointed a selection was made by the Government between
two candidates proposed by the burgher judges already serving.
The Cape of Good Hope under the Dutch xxiii
No salary was attached to the office of judge. The servants
of the Company had to be content with their ordinary emolu-
ments and the burghers, in order to remain entirely independent
of the Government, accepted no payment whatever. The
Court of Justice tried all civil cases lying beyond the juris-
dition of the local courts and all criminal cases arising in the
whole Colony. It also heard appeals from the decisions of the
lower courts, and its own judgments were in turn subject to
appeals to the High Court of Batavia ; for in several respects,
but particularly in matters of shipping and trade, the Cape of
Good Hope was subject to the direction of the Dutch East
Indian Government, which had its headquarters on the island
of Java. In theory the Cape settlement was an out-station of
the Indian administration, but its proximity to Europe left it
much more to the guidance of the board of directors in the
Netherlands than could be the case with any of the remote
East Indian settlements.
The secretary, or, as he would be called to-day, the registrar
of the Court of Justice, was entrusted with the arrangement
and direction of the affairs of insolvent debtors according to
instructions issued by the Court. After a sale of effects had
been ordered and carried out the secretary saw to the distribu-
tion of the proceeds among the creditors according to fixed
rules of preference. But by far the most important member of
the Court was the fiscal, who occupied the position of a public
prosecutor and sat on the bench of judges when civil cases
were being tried. For more than a century the fiscal had
held his office by direct appointment issued by the governing
body of the Company and quite independent of the Colonial
Government. His duty had been to see that the orders of the
directorate were carried out and he corresponded with them
immediately. In course of time, however, it was found that
he himself needed some controlling influence and in 1793 he
was placed under the direction of the Government ; but he
continued to be responsible for safeguarding the authority
and interests of the lords proprietors of the Colony. Besides
being a member of some of the minor administrative boards
the fiscal was also a leading member of the Council of Govern-
ment.
The administration of intestate property and of goods left
to persons not resident in the Colony was entrusted to a Board
The Board ^ Orphan-masters, which consisted of six members.
of Orphan- As was the case with most of the other bodies,
masters – half its members were officials and the others were
burghers. They determined the succession of heirs and
administered the property of minors, providing for the educa-
tion of their wards. The education of the young throughout
xxiv Introduction
the Colony was always on a precarious footing. In the
country districts the local boards had instructions to assist
in the matter, but the task really devolved on the ministers of
religion at the various centres and their kerkraden or pres-
byteries. Where any schools existed at all they were either
private undertakings or were supported by charity. At Cape
Town, however, there was a Board Qf Directors of Public
Schools consisting of a member of the Council of Government,
three clergymen, and two elders, who superintended the public
schools of the town and held inspections when they were
minded to do so. Funds were raised by subscription and the
various congregations assisted the work by contributing, but
the Government very seldom made direct grants for educational
purposes. It did, however, assist to pay the ministers who
were employees of the Company.
There assembled at Cape Town another Council which did
service for the whole country, but it is difficult to classify this
The Burgher body, f or it fulfilled no duties of a legislative or an
Council, executive or a judicial nature, though indirectly
it pertained of the nature of each of these functions. It may
be called an advisory body. From before the close of the
seventeenth century, two or three burgher representatives
sitting in the Court of Justice had repeatedly been consulted
by the Government on various matters affecting the colonists
as a class and their suggestions had generally been adopted.
This custom had become crystallised and extended. From
being a party whose advice could be asked when it was needed
the burgher judges had proceeded to submit burghers’ petitions
to the Governor and Council and presently they began to
claim it as a right that they should speak for the whole body
of burghers and that they should be heard. They had con-
tinued to be for so many years the channel for transmitting
the grievances of the inhabitants that when at a later date
the officials attempted to dispute the claim they had to submit
to established custom. During the eighteenth century the
burgher judges had begun to meet in private session and they
were then regarded as constituting a separate board known as
the Burgher Council. In 1793 the usage was formally recog-
nised as the law of the land, when it was ordered that if the
councillors wished to make representations to the Governor
one or two of them could do so verbally in the first instance.
If this did not produce the desired effect, they could address
themselves in writing to the Government, who were com-
manded to supply them with an extract of the proceedings
respecting the matter. If the members were not yet satisfied
they could communicate the circumstances ta the directors in
Holland. They were to deliver such a communication to the
The Cape of Good Hope under the Dutch xxv
Governor in a sealed packet, at the same time informing him
of the subjects to which it referred. He was bound to transmit
it to the directors with other public papers at the first oppor-
tunity. Thus there was no risk of the burghers’ complaints
being squashed by the governing body without redress and
before they could be laid before the supreme authorities in the
Netherlands. By 1795 the Burgher Council consisted of the
six burgher judges who sat in the Court of Justice.
The revenue was hopelessly inadequate to meet the ex-
penditure incurred by the Company. The taxes were always
remarkably low. This may be accounted for
troublesome- partly by the fact that the colonists were rather
ness of the p OO r in convertible wealth and partly because in
the matter of levying dues the Government con-
sistently followed the advice and deferred to the objections of
the burgher councillors. They were affording a temporary
respite to the people, but unfortunately people must reap
what their fathers have sown, and the unwillingness of the
Dutch section of South Africa’s white population to tax them-
selves to-day is very likely due to the effective representation
of their ancestors’ wishes before the Government in earlier
times. The Cape was of great value to the Netherlands
Company, but more for its importance as a strategic base and
a port of call than for any direct profits which it yielded. As
a settlement taken by itself it was a most unprofitable financial
venture, and a continual drain on the Company’s funds. It
was, moreover, a very troublesome Colony, inasmuch as it had
at an early date broken away from the ordinary rut of factories
and out-stations owing to the presence of a large body of free
settlers, who devoted themselves to pastoral and agricultural
pursuits rather than to trade and barter.
After the middle of the eighteenth century the people
made demands for governmental reform which became more
Difficulties of and more far-reaching and insistent. The great
the colonists. k u ik o f the affairs in which the colonists were
concerned was already being managed in the local courts and
boards by men of their own class, selected from their midst
and in sympathy with their wishes and requirements. It is
possible, therefore, that they would have remained content for
many years .more with the established order of things, but
there were mainly two circumstances which caused them to
move. The Netherlands Company was a body trading for
profit and it reserved to itself an almost exclusive right of
trade at the Cape. This was a very old grievance with the
inhabitants. The other source of trouble arose from the fact
that during the last quarter of the eighteenth century the
eastern border of the Colony began to be threatened by power-
xxvi Introduction
ful and hard-fighting Kaffir tribes. In earlier years conflicts
with the Hottentots, Bushmen, and bands of escaped slaves
could be concluded successfully by a commando called together
in a district or a ward without the Government’s interference.
But the Kaffirs were a new factor and far more difficult to
dispose of. Yet it was just at that time that the Company
was passing through its final period of decline. It did not
afford its subjects the protection of which they stood in need.
During the last quarter of the century, too, the people were
inspired first by the teachings of the American War of In-
AUemptsto dependence and then by the French Revolution,
win reforms. an( j they began to think and talk about the con-
stitution, about fundamental laws, and about the rights of man.
Their difficulties were discussed in the light of their experience
during previous years when they had found it impossible to
obtain any guarantee for the permanent redress of their
grievances. Arriving in Amsterdam, their delegates pleaded
with the directors of the Company and with the States General
for constitutional liberties. Some years were spent in discus-
sion and negotiation. The Company was hastening to its fall,
and the States General, realising that any weakening of the
authority and prestige of the Company, which was a huge
national concern in whose welfare the whole of the people was
directly concerned, would be fatal at that time when the
political situation in Europe was in a very disturbed state,
were unwilling to coerce the directors. Commissioners were
sent to the Cape, however, to try to allay the unrest, but the
improvements which they brought about did not meet the
chief needs of the burghers. Failing to obtain compliance
with their demands, which included equal representation with
the employees of the Company in the Council of Government
and a considerable curtailment of the powers of the fiscal,
the people rose in revolt. At Graaff Reinet and Swellendam
the landdrosts were expelled and miniature republics set up
in 1795. The Government was unable to reassert its authority.
Stellenbosch was on the point of rising and Cape Town was
expected to follow the example of the other centres. But
meanwhile war had broken out between France and Great
Britain, and the Netherlands had attached itself to the French
and expelled its stadtholder, the Prince of Orange. Having
fled to England, he sent with an English expedition intended
to capture the Cape an order * instructing the Government to
admit the British forces into the Colony. After some fighting
Cape Town capitulated 2 and the South African republic was
strangled at its birth.
1 Document No. 2. ‘No. 3.
The Cape of Good Hope, 1795-1854 xxvii
SECTION II.
THE CAPE OF GOOD HOPE UNDER THE BRITISH
CROWN, 1795-1910.
Taking as a basis of division the three forms of colonial man-
agement, Crown Colony Government, Representative Govern-
ment, and Responsible Government, the constitutional history
of the Cape Colony falls naturally into the following periods :
(1) 1795-1854.
(2) 1854-1872.
(3) 1872-1910.
i. THE CAPE OF GOOD HOPE, 1795-1854.
Up to the year 1824 the central government had no history
worth recording, except during the period 1803 to 1806 when,
The Governor under the Batavian Republic which received the
an absolute country by the Treaty of Amiens, the Governor was
ruler MI 1825. ass i s t e d by a Council of four, of whom at least
one had to be colonial born and no one could be a govern-
ment official. In 1806 when the country was conquered a
second time it reverted to the position that existed from 1795
till 1803. Every public act done derived its validity from
the sole and undivided and unadvised authority of the Governor.
He directed by proclamation, instructions, and commissions
literally every matter, from the manner of drawing water on
the Cape Town square to the quelling of rebellions on the
eastern frontier. All the powers of government, as well civil
as military, were vested in him by instructions issued in 1796
to the first civil Governor, 1 and he had the sole legislative
power in the country, giving his own reading of the old laws,
modifying them at pleasure, and enacting new ones. He
increased the amount of old taxes and levied fresh imposts.
He regulated the tenure of land by fixing or reducing the
amount of perpetual quit-rent. The governors exercised a
general control of the administration of justice, and with one or
more assistants, whose opinions had no binding effect on any
decision, the successive governors sat as courts of appeal to
try civil and criminal cases of a serious nature. 2 The
Governor appointed nearly all the officials except the very
highest, and he could remove any one of them except the
Lieutenant-Governor and the Secretary. He took away the
power of initiating measures and enterprises from the local
boards and made them the instruments of his own will, while
the policy was adopted of appointing to the post of landdrost
in the various centres military officers who had retired on half-
1 No. 7. 2 Nos. 65 and 66.
xxviii Introduction
pay, and who were but very slightly acquainted with the
language and customs of the people or with the laws which
they had to administer. In many notable instances these
extensive powers were employed to the distinct advantage of
good government. Arrears of oppressive taxes were remitted,
torture as a means of eliciting evidence or punishing crime was
abolished on a Governor’s recommendation, judges were sent
on circuit to try cases in all the districts, 1 judicial proceedings
were ordered to be held in public, 2 and criminal jurisdiction
was granted to the district courts, 3 thus obviating the
tedious necessity of referring trivial cases to Cape Town. It is
a curious fact that all these measures, which probably no one
will regard otherwise than as eminently wise and statesmanlike,
were adopted while the Governor was the supreme and sole
ruler, whereas subsequent legislation which was most seriously
complained of as short-sighted and oppressive was passed by
Councils which were established in 1825, and later with the
object of assisting the Governor and limiting his power.
A despotism is not necessarily bad for a country : at times
it is the only chance of salvation. But certainly the large
Attitude of body of British settlers who arrived in the Colony
Mitterrand m I ^ 20 ^^ subsequent years did not think so.
of thToutch For the rest of the century these men were to have
burghers. a bracing effect on the thorough but slow-moving
Dutch burghers. As soon as their immediate material
needs were satisfied they commenced to agitate for a share
in the government, for the freedom of the press, and for
the right to hold public meetings. The second of these
privileges they soon gained for the Bothers they had to
wait more than twenty years. Being for the greater part
men of intelligence and sterling merit, and having influential
friends in Great Britain to plead their cause in Parliament
and before the country, they were hopeful that a speedy
change in the form of government would be effected ; but the
imperial authorities knew that it would take some time before
they could establish a firm hold on the old inhabitants, and
therefore while engaged in establishing the English language,
English law, and British institutions they realised that it was
necessary to have in the Colony a government wholly respon-
sible to themselves. The Dutch inhabitants asked for elective
district government on more than one occasion. The essential
characteristics of their class were a strong localism and a
marked individualism developed on the veld in semi-inde-
pendent districts. They did not yet realise that under British
rule their cherished land did not lie along those paths, for they
were as yet quite unfamiliar with the British Constitution.
1 No. 67. No. 68. * No. 70.
The Cape of Good Hope, 1795-1854 xxix
They would have to make a complete break with their past
history, going in a direction opposite to the one along which
they had come. Instead of gaining liberties in separate areas,
and freedom from unnecessary interference on the part of the
British Government, they would have to realise that British
sovereignty was firmly established, and that it had become
necessary to look at the pivot and get the government into their
own hands. That was the great constitutional lesson which
the British settlers had to teach the Dutch burghers ; for the
latter, when they came under British rule, had fallen back
into their early groove of localism, out of which they had been
toiling laboriously during the eighteenth century. They were
hardly aware how nearly their halting footsteps had brought
them to the promised land of self-government in 1795. .
The teachers were able and determined, and the example
they set would have been plain if their pupils had been able
Difficulties in to read their newspapers or associate with them
the way of regularly ; but being unable to command the English
between the language, and residing at considerable distances
colonists, from the newcomers, the burghers can hardly be
blamed for failing to master the lesson rapidly. No nation
can unlearn all the lessons of its past history and acquire
a new set of political ideals within the space of ten years. And
there was the grave complication that the people were under
a foreign rule and that they were intensely conscious of the
fact. Nor did the Government give a distinct lead. It was
never clearly and authoritatively stated in a manner that
could be understood by the bulk of the inhabitants that there
was a real intention to grant them at some future period the
management of their own affairs. On the contrary, the Council
The council as set up in 1825 l denied all hope, for it consisted
of 1825. only of officials over whom the Governor had up to
that time exercised the most complete control, and who were
not in any way expected to represent the wishes of the people.
The members were to discuss and vote on measures proposed by
the Governor, but any member might request him in writing
to bring up for consideration any matter. It rested with him
to decide whether this would be expedient. He could act
without the concurrence of a majority of his Council, but he
was not authorised to act in important measures without a
previous communication with them. If after such communi-
cation he took upon himself to act in opposition to their opinions
he incurred a responsibility which it might be quite necessary
to take, but with regard to which he was then bound to satisfy
the Secretary of State for the Colonies. The Governor could
suspend any member on grave issues demanded by the public
1 No. 1 8.
xxx Introduction
interest, but here again the step had to be fully explained and
justified. 1 Here was a first step preliminary to the intro-
duction of representative government. No one yet thought
of self-government. That was to be first invented in Canada.
But the intention was to establish a legislative assembly as
soon as the older inhabitants should acquire a command of the
English language, and measures for the amelioration of the
slave population should place the slaves beyond the reach of
colonial legislative control. The burghers were not attached
to the institution of slavery. Before the close of the eighteenth
century, and during the early years of the nineteenth, they
had several times been on the point of stating in so many words
that the whole system was bad, and should be swept away.
This was one of the chief items of the policy of the Batavian
Government during the years 1803-6, but by 1830 it was the
earnest wish of the inhabitants of the Cape in all walks of life.
In June 1828 there was started the Cape of Good Hope
Philanthropic Society, 2 for aiding deserving slaves and slave
The Colon ‘s children to purchase their freedom. The aim was
attitude to- to manumit as many female slave chilren as possible
wards slavery, between the ages of 3 and 12, but without causing
grave pecuniary loss to their masters. The Governor was the
patron, and subscriptions were collected for accomplishing the
object of the society. The whole number of female slaves born
annually did not exceed 600. A number of slave children were
actually freed in this way at an average price of less than 20,
so that 12,000 per year would be needed to prevent the increase
of female slaves. Many owners of slaves were zealous sup-
porters of the society. If the funds could be regularly procured
not a single slave would be born after 30 years and very few
after 20. Slaves of a certain age became free by an old law of
the Colony. If in addition to the work done by the society the
Cape revenue could be charged with twenty or thirty thousand
pounds per annum towards this worthy object, every slave
would be liberated in less than ten years’ time without any
cost to the British taxpayer. Petitions and addresses asking
that such a scheme should be adopted were all futile, though
they were warmly supported by the Governor. And if the
further colonial programme embodied in resolutions passed
in various parts of the country which offered to declare every
slave free at birth 3 were also worked out, there would not have
been a slave to set free by the end of 1838 ; but the intentions
of the Colony were distrusted in political, missionary, and
philanthropic circles in England, so that the emancipation
was eventually effected by an Act of the Imperial Parliament.
1 Rec. XX. 5-6. a P.R.O., MSS and pamphlets in C.O. 48/131 and 48/141.
3 Theal, Prog. ofS.A. in the Cent., pp. 185-6.
The Cape of Good Hope, 1795-1854 xxxi
Another item of Batavian policy that was carried out by the
new Council was the consolidation and extension of Hottentot
liberties. 1
In 1827, when the old jurisdictions of the local boards were
about to be removed, 2 two burghers were appointed to the
The council Council, but they were pensioners of the Govern-
in 1827 ment and were not looked upon by the colonists
and 1834. as representing their interests. Six years later a
new constitution came into being. There was to be an Executive
Council of five officials of the Government and a Legislative
Council consisting of the same five officials, together with five,
six, or seven unofficial members selected by the Governor from
among the most considerable merchants and landowners of
the Colony. 3 The unofficial members could be dismissed by
the Crown within two years of their appointment, but if not so
dismissed they were to retain their membership during good
behaviour. The public were now allowed to attend the Council’s
meetings. Within eight months of the first meeting of the
new legislature the colonists began to draw up another of their
numerous petitions for representative government, but without
gaining any further concessions. The Legislative Council was
not in existence many years when the Great Trek 4 commenced.
It was not in any way responsible for that movement. On the
contrary, it did what lay in its power to check the emigration
by restoring to the people a fraction of their old local liberties, 5
while one of its members went out of his way to plead the cause
of the burghers as regards their district boards, which he stated
was also the cause of progress and wise government. 6
Meantime the old Court of Justice was abolished and by a
Royal Charter of 1827 a bench was created consisting of four
judges. That instrument was superseded by
The Charters J y, ~, /. T , . o TT ji
of justice, another Charter of Justice in 1834. 7 Up to this
1827 and time the Governor had appointed and removed the
judges at pleasure, but when the first Charter was
issued the judges held office during good behaviour, and it was
pointed out by the Secretary of State that the Governor’s inter-
ference in the administration of justice between individuals
would entirely cease. 8 It was thought that the immediate
substitution of English Law for the Roman-Dutch Law then in
existence would be too sudden a change and would give rise to
much confusion. The assimilation of the law of the Colony to
the law of England was therefore to be gradual. To carry out
1 No. 20. 2 Nos. 54 and 73. 3 Cape Town Gazette, Jan. 18.34.
4 As the Great Trek of 1836 led to the settlement of Natal and the two
Republics the matter will be discussed under those headings.
6 No. 55.
9 Colonel John Bell to R. W. Hay, 7 June 1834. P.R.O., MS. in C.O. 48/159.
7 No. 76. *Rec. XXXII. 2S4ff.
xxxii Introduction
this plan smoothly the judges were ordered to submit drafts
of laws to the Governor as occasion offered for amending the
existing civil and criminal code. In this way commenced a
process by which the best elements of the two systems of law
were gradually amalgamated. The establishment of trial by
jury in criminal cases was one of the features of the 1827
Charter. Under Dutch rule the institution had been quite
unknown, but its absence had been compensated for by the
presence as judges or magistrates of several members of the
burgher class in each of the courts of justice. It was in
terms of the Charter of Justice, too, that Resident Magistrates
were appointed to the various districts. 1
Between 1840 and 1850 the demands on the part of the
colonists for representative government became very insistent
Growth of a and they kept pace with the growth in Great Britain
li io^ai ^ a lib era l spirit which manifested itself during this
policy” decade. With the growth of the free trade move-
Engiand. me nt which came to a head in 1846 and 1849 and
of liberalism in general came a ready willingness to allow
the colonies to manage their own internal affairs. Not
that people were indifferent towards the colonial empire or
believed that in any case the fruit would drop from the tree
when ripe, for some of the most fervid advocates of colonial self-
rule, like Lord Durham and his circle, were the staunchest of
imperialists. Rather, it was felt that the colonies were out-
growing the systems of the later eighteenth and the early nine-
teenth century, and that the true way to maintain the interests
of the Empire intact was not as was believed for a long time
after the American Revolution by keeping the various sections
under paternal guardianship. With regard to the Cape Colony
imperial statesmen believed that this was particularly the case.
All that could be done to discourage the Dutch burghers from
joining their countrymen across the Orange and the Vaal should
be done ; and in 1849, when the Secretary of State sent a
number of convicts to the Cape against the wishes of the inhabit-
ants, the opposition which his scheme encountered came as a
revelation, the chief feature being the perfect co-operation of the
British and Dutch colonists in the stand they made. In attempt-
ing to carry out the policy of the British Government the
majority of the Cape Council completely lost the confidence
of the bulk of the inhabitants.
As soon as this became clear in England it was decided to
modify the resolution, already taken, to establish a bicameral
legislature with a nominated upper chamber, as requested
by the colonists in their petitions, and to erect instead an
elective upper house. Another reason given for the change
1 No. 73.
The Cape of Good Hope, 1795-1854 xxxiii
was that it was feared that some of the most eligible men
who could be elected to the lower house would be unwilling
Reasons for to serve if the upper consisted of nominees. 1
granting an After the convict agitation there was no longer
un ubefai V any room for a nominated body in the Colony.
constitution. Reference was also made to the British colonies
generally and to Canada in particular, and it was pointed
out that the nominee house had proved to be the weak
spot in all the constitutions where it existed. Thus, by the
decision of the home Government the Cape received a constitu-
tion 2 far more liberal than that of any other colony except
Canada where the principle of responsible government had
been introduced in 1846 3 and of a more thoroughly repre-
sentative type than that which the inhabitants had asked for.
Not for several years to come was any of the colonies of Natal
or the Australian settlements to win such liberal forms of
government, though at the middle of the century changes in
colonial constitutions were the order of the day.
An elective second -chamber was not the only remarkable
feature about the new constitution. The franchise was in
effect quite low : male persons of any colour who occupied
property to the value of 25, or drew a salary of 50 per annum
or of ’25 per annum with board and lodging, could vote. There
had been some difference between the British and the colonial
authorities on this point, the Cape Council having desired to
fix a property qualification ; but the Government in England
insisted on an occupancy qualification only, in the hope of
placing the more advanced section of the native population
in possession of the franchise. Something was certainly gained
in the direction desired, but the bulk of the coloured people was
hardly benefited at all.
Another difficulty was how to prevent the upper chamber,
the Legislative Council, from being a mere duplicate of the
lower. The old plan of having an upper house of nominees
to safeguard the interests of the Crown having been abandoned,
what function remained for this Council to perform ? As a
matter of fact, it probably was throughout its existence next
to useless ; but it was intended to represent the landed class
which constituted the bulk of the population, and to prevent
legislation arising from panic or any other temporary force
from being effected without deliberate consideration and
discussion. . Both houses were elected on the same franchise,
but while members of the Legislative Assembly were to possess
only the qualifications of an ordinary elector, those of the
second chamber were to have a high property qualification
1 Hansard, 3 S., vol. 118, pp. 725-6.
4 No. 29. 3 Merivale, Lect. on Col., p. 636.
C
xxxiv Introduction
and to have reached the age of thirty years. By further
provisions which had the same object in view, the forty-six
members of the Assembly were to be elected by twenty-two
constituencies, while those of the Council were chosen by only
two constituencies, the Eastern Districts and the Western
Districts, in which the electors could distribute their votes
exactly as they pleased. If wisely worked this last arrange-
ment could provide for the representation of minorities.
The division of the Colony into Eastern and Western
Provinces for electoral purposes was significant, for it arose
East v. West f rom a desire on the part of the eastern inhabitants
in the Colony, either to have a government of their own, or to
have the seat of government in the east. They were mainly
of British descent, and feared that if they were represented in a
legislature sitting at Cape Town they would be at the mercy
of the inhabitants of Dutch descent who were in the majority.
Besides, they were near the Kaffir tribes and had often had to
bear the brunt of a Kaffir invasion while troops were being
hurried from Cape Town over the six or seven hundred miles
of road to their assistance. If a government were situated
at Grahamstown it could direct the management of the eastern
border more satisfactorily. For these and other reasons the
majority of the people of the Eastern Districts had been
agitating for a division of the Colony, but ultimately the
decision of the matter lay with the imperial authorities, and
the people who had only lately united the two Canadas could
hardly be expected to retrace their steps in South Africa where
somewhat similar conditions prevailed. The firm attitude
they adopted probably no one regrets to-day. In 1850 the
interests of the Colony as a whole and those of Great Britain
were really identical, for the Eastern Province standing alone
could not have coped with the pressing troubles incidental to
the presence of powerful native tribes on its borders, and would
have had to rely on the assistance of the Government in
London. This would have meant the continued presence of
strong forces paid out of the imperial treasury and conse-
quently an extended period of paternal rule ; for, when once
separated from the rest of the Cape Colony, the Eastern
Districts would probably not have looked for aid to the Western
Province any more than they would have looked to New
Zealand or Jamaica. Moreover, in the Western Districts
was a minority of burghers of British descent, while in the
Eastern Districts there was a strong minority of Dutch extrac-
tion. It would have been a temptation difficult to resist for
the majorities in each half to ignore the interests of their
respective minorities, but as matters remained neither party
was so overwhelmingly powerful in the common Parliament
The Cape of Good Hope, 1854-72 xxxv
as to be able to neglect the interests of the other. On the
other hand, if the parties continued to stand on national lines
and emphasise national aims, they were none the less made
to see the necessity of co-operating, to acquire the frame of
mind which recognised that mutual respect and goodwill
were indispensable, and in course of time the lines of cleavage
were bound to become less and less pronounced. Had the
British Government not benefited by the Canadian object-
lesson, had they been swayed by the exigencies of the moment
instead of looking ahead, co-operation and union in South
Africa would undoubtedly have been more difficult of accom-
plishment than has been the case. As it was, they practically
placed the power to legislate for the country into the hands of
a majority of Dutch-speaking colonists, fully knowing that
they were doing so, and fully aware that this would be the
situation for many years to come. Indeed, no other course was
open, for numerically and economically the older inhabitants
were incomparably the stronger. Yet, not to deny the request of
the British settlers absolutely and irrevocably, they empowered
the Governor to call the new legislature at any place which
he might consider best, and permitted that body to make any
alterations that might seem desirable. The first meeting of
the first Parliament held on African soil came together in Cape
Town on the 3oth of June 1854.
2. THE CAPE OF GOOD HOPE, 1854-72.
Though the legislature was wholly elective except for the
presidency of the Legislative Council, which was occupied by
what repre *^ e ^ me ^ Justice in virtue of his office, the executive
senta-tnT power remained in the hands of a body of high
8 V meant ent omc i a ^ 8 ‘ * ne chief of whom occupied seats in either
house though without the right to vote. The
Colony had thus reached a stage similar to that at which England
stood during the early years of the eighteenth century, before
Sir Robert Walpole became the chief Minister. The legislature
was an elective and representative body, but the Ministers
were still appointed by and responsible to the Crown. But
in Great Britain there was an upper house which was for the
greater part non-elective and non-representative, so that in
this respect the colonial legislature was from the very start
ahead of the Mother of Parliaments. There was, too, another
point of importance. In 1775 Edmund Burke made it clear
to his electors at Bristol that in every question brought before
Parliament it was he as member who was to decide, and not
they as constituents. This principle, it has been said by a
xxxvi Introduction
distinguished author l who ought to know, is still the guiding
principle of most members in Great Britain to-day. At the
Cape this principle was denied from the very start. Members,
when elected, were instructed there is no other word to use
to act on broad issues in a certain way. Had they not signified
their intention to act in such a way they would not have been
elected ; and having signified such an intention, and having
been consequently elected, they were bound to adhere to their
undertakings or to resign their seats. If it were not so, de-
mocracy would not be anything real, and party government
would be an oligarchic rule. So many thousand men selected
one man to represent their views on certain matters and to
do his utmost to get those views enforced. If at any time
he found that he could not continue to support those views,
it was his duty to make place for some one who could, though
nowhere in the Empire has a law yet been passed compelling him
to do so. Occasionally a member would be sent to Parliament
on the understanding that he would act at his own discretion ;
then the case was different. And there were always numberless
matters on which a constituency could not, or at any rate did
not, make up its mind. In every such case the member
would act as seemed best to him. Of course the system
could not have been worked out with ease but for the advent
of railways and telegraphs ; but even as matters stood in
1854 the responsibility of members to their constituents,
which was admitted on all sides, was preparing the way for
party government with all its advantages and drawbacks.
The difficulties that stood in the way of making the executive
responsible to the legislature seem very trivial to-day.
Less than two months after the first session of Parliament
commenced, a motion was brought before the Legislative
Assembly stating that the experience of the session
The Colony , , /. , . P, , f .
desires showed that hitches in the free-and-easy action of
further -fa e legislature had occurred through the absence
power. ., , ,_.. . , , . P ,
of responsible Ministers. This opinion was to be
laid before the Secretary of State with the request that
he might be pleased to convey to the Colonial Government
the conditions on which responsible government could be
conceded to the Cape. 2 Early in the next year a motion
to this effect which also provided for the appointment of
a select committee to consider the question was carried
by 23 votes to 9. A month later a similar motion
came before the Council which declared ” That in the
opinion of this Council the principal officers of government
should be appointed by the Governor, from among the members
1 Sir Courtenay Ilbert, Parliament, pp. 159-60.
‘ C. ofG. Hope Votes and Proceedings (No. 1 32), p. 152.
The Cape of Good Hope, 1854-72 xxxvii
of both Houses, and that they should hold office only so long
as they possess the confidence and can ensure the co-operation
of the legislature.” l On the part of many men in Parliament
and in the country there was a strong desire to proceed to
the further step as soon as possible. Select committees
appointed by both houses recommended the change, but the
Government in London naturally wished to see first how
the new institution would work. Besides, there were other
pressing matters enough to consider. One of the first measures
adopted provided for the introduction of trial by jury in civil
cases. 2 The country had got over its early objection to the
jury system. Then came the creation of Divisional Councils
to manage the several districts much on the same lines as the
old boards of landdrost and heemraden had done, except that
the members of the councils were now made not only to be
representative of the people but actually elected by them. 3
There were certain issues before the country on which the
electors and the members of Parliament gradually ranged
Growth of themselves into two main parties. On the question
; political of the introduction of convicts the population had
parties. fo een a n but unanimous. There had been a small
section centring round the editor of the Grahamstown Journal
which supported the scheme, but it was not strong. On the
question of granting representative government there had
been a party, small but able and determined, which desired
to reject the scheme of an elected upper chamber, and some of
whose supporters had also favoured the introduction of con-
victs. These men had a paper too, the Cape Monitor, which
may be described as the government organ of those early days.
Directing its efforts towards the postponement of the repre-
sentative government plan had been a strong party which
voiced their opinions in the former of these journals. After
1854 this section continued its efforts to obtain either a division
of the Colony into two parts or the transference of the seat of
government to Grahamstown. They fought the first and the
second election mainly on this issue, and when the matter was
brought up for discussion in the Assembly it gave rise to some
of the most dramatic scenes witnessed in the Cape Houses. 4
But the majority of the people were opposed to separation,
and the plan was badly defeated in 1861. The desire to
separate was entertained mainly by the burghers of British
stock residing in the south-eastern parts of the Colony. It
was in the main the same people who opposed the grant of
responsible government for the same reasons as they had
1 Minute XL. of the C. of C. Hope Legist. Council, p. 3.
8 No. 79. 3 No. 57.
4 J. H. Hofmeyr, Het Leven van J. H. Hofmeyr, p. 104.
xxxviii Introduction
opposed the establishment of representative institutions,
though there were throughout the Colony men who wished
to see self-government postponed, but for different reasons.
It was feared by the conservative element in the country that
a leap taken too soon would fail to reach the mark, for, they
argued, the men who were to take responsibility for the per-
formance of ministerial functions had still to be trained. This
view was defended by one of the Dutch journals, De Volks-
vriend. On a third question the issue was not so clear, though
it was roughly the same leaders of public opinion who stood
for a united Colony, for responsible government, and for the
voluntary principle in the churches. By the last phrase they
indicated that State assistance to a few favoured denominations
like the Dutch Reformed Church and the Anglican Church
should cease. It may be argued that these issues were of
temporary interest only and could not have divided the
country permanently on party lines. That is true, but the
fact is that they were not so much issues in themselves as
manifestations of party feeling which had existed all along,
but which came definitely to the surface in connection with
discussions relating to the constitution. The attempts made
from the early years of the century to change the language of
the Dutch burghers had not been successful, the removal of
their old institutions had given them a grievance, and the
recent annexation of the Orange River Territory to the British
Empire had caused much ill-feeling towards the British Govern-
ment and towards their fellow-burghers who supported it. In
the country itself the chances of co-operation between the
British and Dutch colonists had been so few that national
divisions had not yet had a chance of being obliterated. What
was needed was some firm common ground on which they
could meet, and this had not yet shown itself, so that political
parties were also national parties. Yet it should be under-
stood that during the period of representative government
the parties were by no means well organised or even so clearly
defined as they afterwards became. One incident that helped
to keep English and Dutch apart was when in 1865 the Cape
legislature was made to annex Kaffraria in response to the
wishes of the eastern inhabitants after it had refused to do so. 1
The question of responsible government was intimately
connected with the questions of expansion and defence. Up
The question to about the year 1833 the burghers had been
of defence, largely responsible for the defence of their own
frontiers against the natives, but on philanthropic grounds
the commando system which was in vogue was objected to in
England, though in 1852 it was advocated for readoption in
1 Corresp. rel. tothe Annexation of Br. Kaff., presented loFeb. 1865. Cf. No. 32.
The Cape of Good Hope, 1872-1910 xxxix
the House of Commons. 1 Then imperial troops had been
employed to assist with the Kaffir wars. By 1850 the military
expenditure supplied from the imperial treasury was amounting
to about 3,000,000 per annum for all the colonies. This
sum amounted to less than 95. in the pound on British exports
to the colonies. This state of affairs had improved the chances
of colonial self-government, for it had forced colonial statesmen
in England to lay down the thesis that ” if these colonies were
governed as they ought to be governed, no troops ought to be
maintained in them at the expense of the United Kingdom,
except for strictly imperial purposes, and that the expenses
of all troops required for local purposes ought to be paid by
the colonies.” z Therefore the local government should be
given the direction of the officers who managed relations with
the frontier tribes. It had been adopted, then, as a standing
rule of the Empire that when responsible government is given
to a colony it must provide for its own internal order and for
its defence against savage peoples on its borders. 3 At the
Cape this caused some of the people to waver in their desire
to possess full self-government, but the real opposition to the
scheme came from the men from the East, who believed they
would see as a result of the withdrawal of paternal government
a neglect of their special interests. It became known in 1867
that the imperial authorities, desirous of establishing govern-
ment by responsible Ministers, intended to withdraw the
troops in any case. By that time it had become abundantly
obvious that the activities of the executive and the legislature
were bound to end in a deadlock, the former having repeatedly
spent much more money than had been authorised by the
latter. Finally, the Governor began to make proposals which,
if carried out, would place all control in the hands of the Exe-
cutive Council. Under these circumstances the party opposed
to responsible government lost ground, and after some difference
on the subject between the Legislative Council and the As-
sembly a Responsible Government Bill 4 was passed in 1872
and, after being reserved by the Governor, received the royal
sanction before the end of the year.
3. THE CAPE OF GOOD HOPE, 1872-1910.
During the responsible government period of the Cape of
Good Hope there is a good deal of parliamentary history, but
Political little constitutional history. The Colony was now
straining of two hundred and twenty years old, and two
the colonists. nun 61 re cl years before the grant of responsible
government the burghers had been given the direction of
1 Hansard, 3 S., vol. 120, p. 736. 2 Ibid. vol. 115, p. 1372.
8 Cf. [C.-328o], pp. 1-15. 4 No. 34.
xl Introduction
their everyday life in their local courts and boards. Though
that privilege had been gradually removed during the years
1806 to 1828, the arrival of the British settlers from 1820
onwards had caused them to cultivate an interest in the
activities of the central government which had been too
often lacking during the first quarter of the nineteenth century.
The justices of the peace 1 and the field-cornets throughout
the country had been passing through a period of apprentice-
ship in the art of government. The training and experience
gained in the municipal boards and the road boards 2 was also
valuable, whilst the civil commissioners and resident magis-
trates were a valuable class of public officials on whom the
Ministers were to rely in years to come for information on
matters of the most varied nature pertaining to their respective
districts. Perhaps there was no other class of civil servant
which contributed so much to the success of legislation or the
smooth working of the administration as these officials. The
experience which an important body of men had been gain-
ing in Parliament since 1854, an d the education which the
whole of the population had undergone during the election
contests and through the English and the Dutch press, pre-
pared for the smooth working of the new form of government.
After the Bill of 1872 had been adopted by both houses of
the legislature the Eastern Province party again moved for a
division of the Colony ; but as the local aspirations of Grahams-
town, Port Elizabeth, and King William’s Town could not be
accommodated, and as the midland districts included in the
Eastern Province were opposed to separation, the scheme
was eventually abandoned.
Indeed a movement in the opposite direction had set in.
Instead of the two constituencies into which the country had
Unification been divided for the election of members of the
of the colony U pper chamber, which had done so much to keep
and the re- ,^f r **’*.* – i j_
emergence of the separatist spirit active, it was proposed to form
the people, seven electoral divisions. The number of elective
members was now twenty-one, so three members could be given
to each constituency, and electors could be allowed to give all
their three votes to one candidate or to distribute them as they
pleased, thus extending to definite small areas the principle
of the representation of minorities within those areas. The
measure was adopted in 1874, 3 and constituted in a mild way
a victory of the farming community over the townspeople, while
it obviously made the Legislative Council more representative
of the Colony as a whole than it had been before. The members
now held their seats for seven years instead of ten, and con-
sequently were more under the control of the electorate than
l No. 72. “No. 56. “No. 35.
The HighlCommissionership xli
they had been before. Another measure that bore clear evidence
of the rising influence of the country people was the first Act
passed in 1882 which permitted the use of the Dutch language
m both houses of Parliament. 1 And this privilege was soon
extended to the courts of law. 2 During the last thirty years of
the century various native territories were annexed to the
Colony, thus adding a considerable number to the native
population. It was considered desirable, therefore, to require
a slight education test of all new applicants for registration as
voters, and at the same time other qualifications of electors
were also raised. 3 The next great constitutional step that
affected the Cape of Good Hope was the Union of the South
African colonies. A word must now be said about the High
Commissionership, an office which contributed a good deal
towards the achievement of that end.
SECTION III.
THE HIGH COMMISSIONERSHIP FOR SOUTH AFRICA.
On the loth day of October 1846 the Governor of the Cape
was appointed ” Her Majesty’s High Commissioner at the Cape
of Good Hope for certain purposes.” 4 In part this was intended
to give a more formal recognition to the authority which the
Governor had exercised till that time, in part it was laying
duties till then performed by the Lieutenant-Governor of the
Eastern Districts on the supreme authority at Cape Town ;
but it was also a measure intended to meet the growing com-
plexity of South African affairs.
Firstly, the Governor had from the commencement of British
rule managed the relations of the Colony with adjoining native
The needs to tribes subject to the direction and control of the
be met by Government in London. These powers were
the office. ex ercised by him alone till on the appointment
of a Lieutenant-Governor for the Eastern Districts in i836, 5
the second phase opened. The Governor’s authority began to
be shared in this respect by the new official. During the next
ten years treaties with natives were concluded by both men,
but the acts of the Lieutenant-Governor had to be ratified by
his superior. In 1845 the office in the east began to fall into
abeyance, though it survived in a tentative sort of way for a
few years longer. In the third place there had arisen other
European communities in Natal, in the Orange River territory
1 No. 38. z No. 86. 8 No. 48.
4 Par/. Papers, C. of G. Hope, Kaffir Tribes ; Feb. 1848, p. 5. 6 No. 25.
xlii Introduction
and across the Vaal, creating a diversity of problems which
seemed to call for a special delegation of powers by the imperial
authorities.
The commission of 1846 did not yet employ the phrase
” High Commissioner for South Africa,” but this was a
The functions mere detail. That official was appointed ” for the
of the High settling and adjustment of the affairs of the
commissioner, territories in Southern Africa adjacent or con-
tiguous to the eastern and north-eastern frontier” of the
Cape Colony, and he was to take measures to prevent attacks
of the native tribes inhabiting those territories and to
place them under some settled form of government. Sub-
sequent commissions conferred similar powers, though the
manner of exercising these was prescribed in greater detail as
time went on. In 1849, after assuming authority over the
Orange River Territory, the High Commissioner solicited and
obtained a commission appointing him Governor of the new
dependency. A similar procedure was adopted at the end of
the South African War with regard to the Orange River Colony
and the Transvaal. The High Commissioner came to hold
a multiplicity of offices. At various times he became the
supreme head of such territories as Griqualand West, Basuto-
land, Bechuanaland, Rhodesia, etc., receiving instructions as
to the functions he was to perform in each. 1 He was the repre-
sentative of the Crown in the sub-continent, the link uniting
all the varying conditions of the various peoples, the unifier of
policies, the Empire’s agent.
But he became all that only because he was as a rule the
Governor of the Cape Colony. Till about the year 1890 South
His success Africa’s mother-colony surpassed all the other
due to his territories put together in wealth and importance.
Govenwrof In extending her South African empire the
the cape, home country was wise enough to employ as a
stepping-stone the foothold she had won. The High Com-
missioner was Britain’s right hand, the Cape Colony was her
lever. Sometimes the Colony grumbled and occasionally she
maintained an attitude of passive opposition, but in the end,
with perhaps one or two exceptions, she always adopted the
desired course. From the outset the governorship and the
high commissionership were inextricably interwoven. The
High Commissioner employed the public seal of the Colony for
his formal official acts. His legal adviser was the Attorney-
General of the Cape Government, and when he proposed to take
an important step he consulted at first his Executive Council
in an informal manner, and after responsible government was
introduced, his Ministers. As most of the native territories
i See, e.g., Part. Papers, S.A., 130, 14 Ap. 1905.
The High Commissioner ship xliii
were made dependencies of the Cape of Good Hope any other
course would have been open to serious objections. We are for-
tunate enough to possess an authoritative statement on the
practice that came to govern the relations between the High Com-
missioner and the Cape Ministry. In 1888, in reply to a question
put in the Legislative Council, the Treasurer-General stated :
” It is not the duty of the Ministry of this Colony to advise the
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 understood 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
Ministry 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 Commissioner 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
upon 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.” l 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 any 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 like most other rules this one had excep-
tions, both before 1888 and thereafter.
SECTION IV.
NATAL, 1835-1910.
For the sake of clearness of treatment it is convenient to
divide the constitutional history of Natal into five well-
marked periods :
(1) I835-38- (3) 1844-56.
(2) 1838-44. (4) 1856-93-
(5) 1893-1910.
1 [C-S488], pp. 21-2.
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 hunting,
British trading with the natives of the neighbourhood, and
settlers in engaging in adventures of various kinds. They
Natal. were q u ite unconnected with the British Govern-
ment or with the Government of the Cape Colony. In that
year they first formed the semblance of a government 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 occupying waste land round the Bay,
and they desired to show some form of legal right to the tracts
on which they had settled. Under the authority of 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 approximate 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
community 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
country, 1 and presently they got involved in native disputes.
In the year 1838 an unwise attack was made by a large portion
of the British 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 2 visited Natal in 1843 he
found that only two farms had been regularly occupied for
any length of time. While Dingaan was destroying the white
inhabitants from the Bay, Natal was being entered by Euro-
peans from another quarter.
icy.Na.9i.
2 H. Cloete’s Report on Lands in Natal, addressed to Secretary John
Montagu, Cape Town, 3Oth May 1844. P.R.O., MS. in C.O. 48/247.
Natal, 1838-44 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
, kinds with different individuals. They arose
Causes of . , , …. i i j
the Great mainly from an unwillingness to be ruled over
T the k Cat>T ^7 a foreign power, from the absolutism of the
rule, the loss of their local governing bodies, the
refusal to grant them representative institutions, the many
harsh laws made for the better treatment of slaves, the absence
of adequate compensation when their slaves were set free, the
lack of protection against native attacks. Most important
of all the factors was the desire for independence, 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 the government of the Netherlands Company. The
chief circumstances leading up to the Great Trek which were
uppermost in men’s minds at various periods are indicated
in the documents, 1 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 burghers, 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
British policy emigrants could be prevented from leaving the
towards the Cape Colony, 2 and having been informed by the
emigrants. 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 of 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. 3
Secondly, they acknowledged the authority of some native
chief or other over tracts of territory in which the emigrants
1 Nos. 93, 100, 106, and 107. 2 No. 93. 3 Nos. 94 and 104.
xlvi Introduction
had settled or seemed about to settle. This was done either
explicitly by means of a formal treaty or by negotiations 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 gradually formed
themselves in the course of several years into 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 king for services rendered in I837, 1 this group of
Settlement emigrants became firmly established in the country
of the in the course of the next two years, deposing
iNataf- Dmgaan who acted treacherously and setting up
their con- another in his stead. A British force had lately
\ shtutton. b een 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 Volksraad, 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
* No. 95-
Natal, 1838-44 xlvii
the Port, and dated 27th March 1839, J 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
summarily 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
liberty 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 English 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 smallness 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 the answer the question in the negative. The emigrants
emigrants. were claimed as British subjects, and an Act
of the Imperial Parliament had referred to them as such. 2
Parliament could undoubtedly legislate ex-territorially for
British subjects, if they were British 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 ? The Republic 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 history 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
1 P.R.O., MS. in C.O, 48 /2oo. J No. 94.
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
Annexation 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 1843 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 2
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 year
Natal was annexed to the Cape Colony 3 and the infant
Republic ceased to exist.
3. NATAL, 1844-56.
Intimately connected with the problem whether or not
Natal was a Republic prior to the year 1844 is the further
Legislation question whether after its annexation it was to be
for Natal regarded as a Colony acquired by conquest or
by the crown. cess i on 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 community had actually been fighting to oppose
British occupation and when they had become convinced
of their inability to carry the struggle to a successful issue.
Natal then was acquired by conquest, and the instruments
1 No. 104. * No. 107. * No. 109.
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
Legislation the new district and could not apply any old
by the Cape laws or institutions to it without such specific
Council, enactment. This arrangement continued even
after provision was made in 1845 for a separate government
in Natal with a Lieutenant-Governor at its head. 1 Till 1847
the Governor and Council legislated for Natal, setting up
municipal boards, 2 field-cornets, justices of the peace, and
resident magistrates in imitation of the Cape models. A
district court 3 consisting of one judge appointed by the
Crown and holding office during good behaviour was also
erected, and the Roman-Dutch Law was established. 4
Naturally this arrangement, by which their country was
honoured with no worthier title than that of a District and
Desire of the was subject to a few individuals holding session at
Colony to a considerable distance, was not expected to satisfy
owniegis- the inhabitants, and it did not. Before submitting
Mure. to the new order of things the Dutch burghers
had 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 5
were issued providing for a separate legislative body for Natal
consisting of three or more members appointed by the Crown
and holding office during pleasure. General executive powers
were vested in the same body, but the Lieutenant-Governor
was instructed to act without the concurrence of his Council
whenever 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
Necessity for * ne g reat native problem. How could the Zulus
a local be governed ? Should they remain under the
legislature. au thority 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,
1 No. in. * No. 132. 3 No. 137. * No 136. 6 No. 113.
1 Introduction
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 tl ; new
Difficulties dependency that its officials should stand under
;; in the way its direct control, the inhabitants believed it to be
reprlSaiwe to their interest that they should share that
government, control. Of the European population those of
British blood were still the less numerous section, though by
immigration they were steadily increasing in proportion to
the other settlers, and at the middle of last century any 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 authorities 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 which 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 with the main-
tenance of her royal authority, as might be most acceptable
to the bulk of her subjects. 1 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 united qualifications of character, interest in the country,
and education, whom it would be expedient or proper to
elect or appoint a member of any Legislative Council, 2 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 immigrants were intro-
duced according to a scheme promoted by a certain Mr. Byrne, 3
that colossal benefactor of Natal going bankrupt over the
operation. The colonists were gaining valuable experience
in self-government in their village and district boards, and the
Governor recommended compliance with a second petition
1 Parl. Papers, Settlement of X atal, presented i4th Aug. 1850, p. 190,
a Ibid. p. 7. The petition is given on p. 2 of that work.
3 Ibid. Natal, presented 3oth July 1851, pp. 19 fi. and 58 fi.
Natal, 1856-93 li
praying for representative government in 1852. His advice
was adopted and Letters Patent establishing the principle of
representation 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, 1 while divisional or county councils were created. 2
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 3 preserved the power of native chiefs
to try according to native law cases arising between members
of their tribes, subject to the advice and control of European
officials 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 4 and to
introduce the institution of trial by jury in civil cases. 5
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 6
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 elective and
the others, who were high officials, were Crown nominees. In
practice these nominated members also constituted the Exe-
cutive Council, 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 the
system of responsible government for that Colony, carrying
the British political world by storm in a short space of time
through the cogency of his arguments and the sound common-
1 No. 133. 2 Ord. 3, 1854 ; P.R.O., C.O. 180/1.
8 No. 141. * No. 142. No. 143. ‘No. 113.
Hi Introduction
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 ^ a ^ system was introduced in the Legislative
for responsible Council, but was withdrawn without completed
government, 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 readily admitted
that the arrangement made in 1856 gave no guarantee that
imperial policy would be carried out 1 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 funds and the executive which had the
spending of it ; and if the colonists desired the change, what
caused the delay ? If the answer must be given in a single
sentence it must be stated that responsibility would bring
with it obligations which a young 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
… certainly follow 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 eventualities 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 burdens
which that institution would entail. The question was only
one of supplying 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
i Parl. Papers, [-3174], p. 8.
Natal, 1856-93 liii
expense involved. 1 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 which 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 diffi-
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 what 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 when demands for an improvement of the con-
stitution became peculiarly insistent the white population of
The native Natal consisted of about 30,000 souls, of whom less
problem, than yooo 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 2 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 population, unless some
1 [0-3280], p. 1 6 ff, No. 141.
liv Introduction
means could be devised for first securing those rights ; for if
the 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 United Kingdom would have to bear the cost and
responsibility 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 Kaffir war meant the spreading of distress and con-
fusion, peril to life and property, and the arrest of progress. 1
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.” 2
At first the representative members in the Legislative
Council did not claim 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. 3 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. 4 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 the 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 Kaffir population. 5 The Secretary of State, however, did
not consider this expedient would contain any security that
1 Parl. Papers [-3174], p. 4. 2 [-6487], p. 9.
3 [-3174], p. 10. [C-6487], p. 8. Ibid. p. 15.
Natal, 1856-93 Iv
adequate laws would be passed or sufficient money voted for
the benefit of the natives, 1 particularly as the second chamber
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 independent of the legislature might
be established and a sum of money should be reserved under
the absolute management of the Governor to be spent annu-
ally for the education and general advancement of the natives. 2
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. Responsible 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 legislation 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 responsible government. 3
The third difficulty 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 unreliable nature of the Kaffir as an
population, agricultural labourer a commencement was made
in the fifties with the introduction of coolies 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 indenture expired. In 1881 they numbered 25,000, thus
nearly equalling the European population. As yet there were
among them only some eight or nine 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 franchise 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. 4 It was feared that in course of time the Indian
vote might swamp the European vote. Another objection
was that if the Indians, who belonged to another country and
were only brought into the Colony as labourers, could by
residence and by a property qualification obtain the franchise,
1 [6-6487], p. 22. * Ibid. p. 24. Cf. p. 74.
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 Kaffirs 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 sanctioned in
1883 1 providing for the enfranchisement of unindentured
Indians possessing the necessary property or residence qualifica-
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.
Relations Under the 1856 Charter, and by Royal Commis-
b Governor* s ^ ons anc ^ Instructions issued since that date,
the Governor was commanded to consult 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
Council only the more important questions connected with
the administration of the government of the Colony and such
questions as the law demanded should be dealt with by the
Governor 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 in 1883 2
when he was called upon to settle a difference between the
Governor and a section of the Council. So far there was
little 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
question. From the early years of British rule in Natal the
Lieutenant-Governor had occupied the position and held the
title of Supreme Chief of the native tribes. 3 His authority
1 No. 124. * [C-3796], p. 36.
* Vide Preamble to Ord. 3-1849 (No. 141).
Natal, 1856-93 Ivii
was absolute in all matters political, while in, the administra-
tion of justice he acted through appointed deputies. Later
on his authority was formally recognised by statutory
enactments. 1 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 in the Governor in Council. 2 This was a
serious limitation of what is generally understood by respon-
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 all
British territories in South Africa were governed by the High
Commissioner, 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. 3 It was a recognition that
the future of Zululand would 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 all 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 tribes aforesaid,
and for preserving friendly relations with them. …” The
1 NOP. 146 and 149 (Annexure). *[C-7OI3], p. 41.
3 The commission is given in [C-3 1 74], p. 20.
Iviii Introduction
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, 1 and the
feeling 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 position This necessity arose from an incident that occurred
of Natal in in 1882. The Natal Legislature being anxious to
South Africa. O p en ra ilway communication 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 Commissioner 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. 2 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. 3 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 self-
government being introduced, the Secretary of State gave an
evasive reply. No doubt he felt that the question would
settle itself in course of time through experience far better
than if he were to lay down fixed rules of procedure. The
Ministers of the two Colonies, he thought, might correspond
on matters not requiring the intervention of the Governors. 4
Relations with the Republics would be conducted through
1 [C-3796], p. 64. Ibid. p. 41. Ibid. p. 80. * [-6487], p. 23.
Natal, 1893-1910 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,
he was emphatic. The granting of responsible government
would not give the Colony power to make treaties or enter into
alliances with outside States. 1
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 vice medice. Both parties
shifted their ground to a greater or less extent on various points
of difference, and even a cursory perusal of the instruments
which established responsible government in 1893 2 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
necessary 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 govern-
Responsibie ment in the British Empire is generally meant that
government, the Executive Council, consisting 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 inhabitants, are
supposed to be responsible to the Legislature for the advice they
give. The elected members of the Legislature 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
Limitations to with established constitutional usage, act accord-
coioniai self- ing to the wishes of the Cabinet. “The advice
government. Q f ^ Min i sters is the act o f th e CrOWtt.” 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
1 [C-70I3], p. 38. a Nos. 126-128,
be Introduction
enjoined by Royal Instructions to guide himself by the advice
of his Executive Council, a discretion is generally given 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 colony, 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 ^ ^ ne white population that was eventually carried
influence of out. In 1896 a law was passed which in effect
the colonists. p i ace( i m ^g hands of the Ministers the power to
grant or withhold the franchise in the case of the Indian re-
sidents, 1 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 2 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, 1836-1910.
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 Colony ; for all the emigrants came from
” on – the Cape 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. 129. * No. 130.
Orange Free State, 1836-1910 Ixi
populated by white men. First, there were people who with-
out discarding British authority moved across the 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
Griqualand West. The second movement took place in 1836
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 already been discussed in the portion
of this Introduction relating to Natal. The third movement
came from Natal, which supplied settlers to the Orange River
territory 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-
Condtiions stroom were not only the settlers to the north of
bef b h the the Vaal, but also, though in a somewhat vague
es of British* and unsettled manner, most of those who had
mie. 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, 1 who desired to remove the possibility that an
emigrant state should arise ; and (2) the Natal seaport was lost
to the emigrants through its occupation by the British. The
movement was 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. The
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
l Parl. Papers, S. Africa, C.O. 42, pp. 57-61. Cf. Theal., Hist, of S.A.
1 79S~ I ^7 2 II- 481 ft., and Documents Nos. 153 and I54below.
Ixii Introduction
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 Winburg, 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 British 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 the 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. 1
The question arose, by what title did the Crown hold
authority over the new Colony ? The Attorney-General of
who was to t* 16 ^P 6 to k the y i ew that the Orange River
legislate for Sovereignty, as it came to be called, was ” a
the new colony by occupancy.” This the High Com-
Colony ? . , J J , *, J .. , <,
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 one of those delicate series
of new combinations of circumstances with which the history
of South Africa teemed during the last century. A colony
planted by another colony, i.e. by practically unopposed
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 functions of an independent 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 chiefs” which was not the
case as regards the bulk of the territory concerned. He
*No. 155.
Orange Free State, 1836-1910 Ixiii
further affirmed 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. 1 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 facts 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, 2
Constitution but in the next year these were superseded by a
“British* proclamation of the High Commissioner which
Crown, gave the new Colony a constitution. 3 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 existing at the Cape. One of the chief
reasons why the people had left the old Colony had been the
absence of a satisfactory 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-day the reasons for this withdrawal are not quite
Reasons for P^ am – Probably many motives were at work.
the abandon- Britain was drifting into war with Russia to sup-
mentofthe p Or t Xurkey and defend her Asiatic possessions.
sovereignty. *. . . J … . . ,
And as her 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
1 Parl. Papers, O. R. Sovereignty, iQth May 1851, p. 73.
a No. 156. 3 No. 157.
Ixiv Introduction
the Sovereignty. British arms had met with reverses and
British prestige had not been vindicated. The imperial
authorities were unwilling to incur heavy expense in South
Africa, and unable to supply at short notice a large body of
troops. They probably preferred, too, to regain the goodwill
of the 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 undeveloped and the tracts that had
fallen under 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 in the Cape Legislative Council
with warmth and occasionally with bitterness. It was politic
to meet Cape views while a serious war was being waged in
Europe ; for after all the Cape Colony was throughout the
century the basis of British authprity in South Africa, and
more apparent vagaries in British policy in South Africa than
most people realise were due to a wish on the part of the im-
perial authorities to defer to Cape opinion. Whatever might
happen in other territories, it was of vital importance that
the old Colony should not be alienated. By so much as the
Government in London failed to carry the Cape Colony with
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 gave complete
independence to the people residing between the Orange and
Constitution tne Vaal. They were no longer connected with
I of the Free the State across the Vaal which had been recog-
state. n i s ed two years earlier. 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
The Orange Free State, 1836-1910 Ixv
when such a suggestion was 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 ” to
establish our settlement on the same principles of liberty as
those adopted by the United States of America, carrying into
effect, as far as practicable, our burgher laws.” 1 There was
to be a Republic 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. 2 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 Republic was the chairman, and measures
were decided upon by a majority of votes. Field-cornets and
field-commandants were elected by the burghers. The
constitution was drawn up and adopted in 1854, and before
the end of the year laws were passed to establish Dutch as
the official language, 3 and to define the duties of field-cornets. 4
The other salient 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 established. The close
connection and almost daily intercourse of the people of the
Free State with those of the Cape Colony had the 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. The
central government, of course, was something quite different.
Some documents are given to illustrate the manner in which
subject native tribes were governed. As in Natal, the
Government franchise was not given them, but they generally
of the natives, 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
1 Quoted by Theal, Hist, of S.A . 1795-1872. ii. 316.
2 No. 159. 3 No. 1 60. 4 No. 161,
Ixvi Introduction
plain on the point and they were not permitted to inflict
corporal punishments. The criminal laws of the State were
made to apply to the natives to their immense advantage and
to the exclusion of any chance of undue favouritism or hasty
revenge on the part of the chiefs. Two other principles were
established: 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 affirmed. 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, while they are
gradually being civilised and Christianised. As there has
been no familiarity between whites and blacks, the Kaffir 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
i stability of when conquered passed under British rule. Con-
; the consttiu- sideruig 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, 1 it
never went to war with its great neighbour. Its own diamond
mines at Jagersfontein did not attract a large and difficult
alien population as did Griqualand West and the Witwaters-
rand. No industries arose. The farming community was
spared the disadvantages of the commercial and materialistic
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 the bearer of ideas to the
other communities in the present century. The smoothness
of its career was reflected in 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
1 No. 171.
The South African Republic, 1836-1910 Ixvii
pursued the even tenor of its way till the end and hardly
found 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 on the 24th May 1900, under the name of the
6 R C rl a O ran e Ri yer Colony. 1 The officers who remained
colony its in the field subscribed to the Vereeniging Peace
constitution. Treaty two years later. 2 Military rule came to an
end by virtue of Royal Letters Patent dated 2nd August 1901,
which provided for the government of the Colony by a Governor
and by nominated Executive and Legislative Councils. These
came into operation 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 system known
as responsible government. 3 There were a Legislative Council
and a Legislative Assembly for which provisions similar to
those passed for the Transvaal were enacted.
SECTION VI.
THE SOUTH AFRICAN REPUBLIC, 1886-1910.
It has been pointed 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
personal their efforts towards securing the control of the
motives, central government, and that thereby they 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, carrying with them the ideals
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
useless and untruthful to say that national antipathies did
not act as an incentive towards the exodus of the thirties.
But surely when the 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 background. In the face
of threatening dangers the community united to clear for itself
The rise of habitable regions where marauding natives should
three not trespass. When they believed this to have
republics. ^ een accomplished, and after they obtained a re-
cognition of their independence, 4 the different localities that
1 No. 172. No. 173. s [Cd. 3526.] * No. 177.
Ixviii Introduction
had been settled by various parties at different times drew
away from each other, with the result that five years elapsed
before a satisfactory constitution could be established. And
even while that instrument was being adopted by a section
of the community 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 2 which
contained a series of compromises admirably illustrating how
impossible it was to overcome the feelings of local and personal
independence.
The constitution which was finally accepted by all the
burghers of the Transvaal territory was a lengthy document. 3
Theconstitu- With the Grondwet of the Orange Free State and
tion adopted, the demands for constitutional liberties made 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 South 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 a 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.
1 Nos. 1 79 and 180. * No. 188.
8 No. 182′.
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
The people of all authority. The people will have no equality
the source between blacks and whites. The people will have
of authority. no s i avei y_ j^e p e0 ple entrusts the task of legis-
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.
When 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
Flexibility bind themselves down to any rigid measures. It
of the was well for them that they did not, for they would
institution. g a – n ^ ti me by 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 1 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 of 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. Every Court was to observe all the
of the resolutions of the Volksraad as law, and no Court
was to express an opinion as to the validity of any
law. 2 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. 3 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 features
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
trouble.
1 See, e.g., No. 225.
a No. 185.
8 See No. 231.
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, $& no t select his executive, had no veto on legis-
lation, and could not dissolve the Volksraad. His patronage
to office, too, was subject to the approval of the legislative
body. The President’s influence was due to the stress and
danger to which the country was always exposed. The fact
that the holders of the office nearly without exception em-
bodied the passionate love of independence which throbbed
through the people and consistently acted up to it, explains
the confidence they placed in him and the large powers they
delegated to him.
The government of the country being entirely under the
influence of the burghers, the subject of local government was
Local not given so much attention as had previously been
government, bestowed on it. The Field-cornets became elective
ihe^eace ^ LC ^ S 1 instructed to maintain the peace in the
several wards of each district, to register the names
of electors, to hold inquests, to regulate the conduct of natives
in their vicinity and to perform important military duties in
time of war. In 1870 Justices of the Peace were appointed
for the better maintenance of the laws. 2 They were to be of
two classes, corresponding pretty closely to the Justices who
assisted in the government of England during the first and the
second half of the fourteenth century. The one class was
empowered to take evidence on oath, to make arrests on such
evidence, and to conduct preliminary examinations. They
had to hand over prisoners to the public prosecutor of their
district to be tried by the courts of law. They could further
bind over persons to keep the peace. The second class con-
sisted of men who, with the title of Resident Justices of the
Peace, were stationed in the smaller towns where there were
no landdrosts. These could hear and determine minor civil
and criminal cases. All these officials were an exception to
the elective principle, for they were appointed by the Presi-
dent of the Republic ; but, as was the case with other officials,
they had to take an oath to be faithful to the people of the
Republic. District Councils 3 and boards of town manage-
ment arose in course of time.
The division of the Republic into districts and field-
cornetcies had been accomplished with a view to purposes of
defence. These subdivisions were managed for some time by
the Executive Council with the assistance of landdrosts, field-
cornets, market-masters, and pound-masters. Minute pro-
visions were made in 1876 for men going on military service. 4
1 No. 18.3. 2 No. 189. 3 No. 202. 4 No. 194.
The South African Republic, 1836-1910 Ixxi
The President could call out a commando to defend the
country or quell internal risings, but unless the danger was
imminent he was required to summon the Executive Council
and take its advice. Most probably he was to decide in each
case whether the danger admitted of delay, but in any case
he had afterwards to justify his action to the Volksraad. All
male inhabitants, a few classes excepted, were liable to serve if
they were between the ages of sixteen and sixty.
Such in very broad outlines was the constitution when in
1877 the Republic was annexed to the British Empire. 1 The
Theannexa- annexation period was not marked by any con-
tton 0/1877. stitutional changes of permanent importance.
The government was a despotism}; but in 1881, when
the inhabitants rebelled after futile missions to England
and petitions for the restoration of independence, the Govern-
ment in London permitted the State to be re-established,
though under British suzerainty. 2 For three years the people
chafed under the control which such suzerainty implied, till
it was virtually withdrawn as a result of friendly negotiation,
while the right was reserved for the British Crown to control
the treaty-making power of the Transvaal. 3
In 1885 gold reefs of great richness were discovered in the
territory which up to that time had been devoted only to
n . pastoral and agricultural pursuits. The Dutch
Discovery , , . r i t. u JM
of gold and burghers were not the class of people who could readily
straTers * urn ^ e i r nan ds to gold-mining, so that the work
fell to strangers, many thousands of whom streamed
into the country. The industry grew with almost miraculous
rapidity. It brought much wealth to the country and to the
miners. The revenue went up by leaps and bounds. But it
also brought a new factor into Transvaal politics. The
immigrants began to agitate for political liberties. At first
the country turned a deaf ear. When the Government was
requested by its friends in the Cape Colony to arrange for the
representation of the newcomers in the Volksraad it replied
that the districts where the mines had arisen all had their
members. This was really evading the question, for those
representatives were being chosen by the old inhabitants,
while the immigrants did not possess the franchise. Round
the franchise question then the agitation centred.
When the constitution was adopted in 1858 the white
population was practically homogeneous, and as all the people
The had taken an equal share in opening up the country
franchise. a ii male white inhabitants over twenty-one years of
age could vote at all elections. Thereafter all such persons born
in the Republic became enfranchised in the ordinary course
1 Nos. 196 to 199. 2 Nos. 200 and 201. 3 No. 204.
Ixxii Introduction
of events on becoming of age. Immigrants became burghers
after one year’s residence. The latest Act that laid down this
rule was the Franchise Law of 1876. l Such immigrants were
further to be possessors of immovable property no particular
amount was demanded and they had to take an oath to be
true to the people and the Government of the Republic, to
obey its laws and to maintain its independence. This arrange-
ment was not regarded as unsatisfactory, as there were as yet
few people to complain; but now the annexation came, and
the direct result of this step was that in 1882 the franchise
was limited to those who had resided for five years. 2 Such
was the position when gold was discovered and the city of
Johannesburg began to shoot up on the Witwatersrand, a little
distance to the south of Pretoria.
A small concession was made to the mining industry in
1887 when it was laid down that public diggings could be
The con- erec ted into separate electoral divisions, thus re-
cesstons of moving the chance of swamping the mining vote
1887. ky fa e vo t es o f farmers in the surrounding wards.
But this was only patchwork, as the miners and their em-
ployers could only vote if and when they had been registered
as residents for five years. 3 It is obvious that the founders
of the Republic were afraid that if the rapidly increasing
number of immigrants were given the franchise they would
soon be able to subvert the existing republican form of govern-
ment and pass measures oppressive of the farming community,
the Dutch language, etc. They were very probably mis-
taken. But the real fear was that the immigrants in the
Republic would eventually unite with an outside power to
deprive the country of its independence.
A further step in the direction desired was taken, however,
in 1890. This was the greatest change that the Grondwet
underwent while the Transvaal preserved its
owe^sions ex j s t ence as a Republic. Two laws were passed
The new which must be read side by side. 1 Instead of the
tuhon. un i camera i legislature which had existed till now
two houses were erected, the First Volksraad and the Second
Volksraad. The members of the First Volksraad were to be
elected by persons who had already obtained the franchise
or were still to obtain it by virtue of having been born in the
country. Voters had to be sixteen years of age. Obviously
this body would be practically the same as the old Volks-
raad. The electors of the Second Volksraad were persons
who possessed the franchise for the First Volksraad and also
other white male inhabitants of sixteen years of age who
1 No. 193. ? Law No. 7 of 1882.
8 No. 214. 4 Nos. 2ipand 220.
The South African Republic, 1836-1910 Ixxiii
had resided for two years, who took an oath and paid 5.
Anyone who for ten years was an elector of the Second Volks-
raad could become an elector for the First. This second body
could legislate on matters relating to the mining industry,
roads, the postal service, patents, companies, bankruptcy,
civil and criminal procedure, and such other matters as the
First Volksraad might at a future date delegate to its care.
The First Volksraad could ” deal with ” any law passed by
the Second Volksraad. The language of the Act is so vague
that it could probably be regarded as within the competency
of the First Raad to approve or amend or reject a law passed
by the Second. If no change or rejection was made by the
First Volksraad, and if, further, the President decided to
publish such a law, then it was to take effect. No provision
was made in the event of an amendment by the First Volks-
raad whether the law was to be referred back to the Second
Volksraad or whether it was to take effect as amended. All
that can be said in favour of these arrangements is that
immigrants could get the right to vote after two years’ resid-
ence, and that the body which they were to assist in electing
could initiate legislation on some very important matters and
that the other house presumably could not.
In 1891 J and 1893 2 the differences between the two kinds
of franchise were further specified. Persons who possessed
TWO kinds the franchise in 1890 and those receiving it by right
t franchise. o f bi r th could vote for Field-cornets in their re-
spective wards, for Commandants and members of both Volks-
raads in their respective districts, and for a President and a
Commandant-General throughout the Republic. Those who
became burghers by naturalisation, on the other hand, could
only vote for Field-cornets, Commandants, and members of the
Second Volksraad. And it was now left to the Government
to decide in the end whether papers of naturalisation should be
granted to any applicant or should be withheld. To the strict-
ness of this law was added an unwonted rigidity, for it was laid
down that no extension of the franchise could be effected
unless the plan was published beforehand for one whole year.
Even then it could be adopted only if two-thirds of the old
electors agreed to it. The burghers of the Transvaal and
their friends held that further privileges could not be given
to the people of foreign birth because they were intriguing
with persons outside the Republic and aimed at the destruc-
tion of the country’s independence, while the other side main-
tained that the restlessness of the alien population was due to
the withholding of constitutional rights.
1 Law No. 13 of i8gi.
2 No. 224.
Ixxiv Introduction
Matters remained on this footing till, during the closing days
of 1895, the Transvaal was invaded by a force operating from
The raid of the western border which intended to join hands
^95-96 m/o ^th disaffected people in Johannesburg with the
the Republic , . .T * . 5, . ~
andtte object of overthrowing the Pretoria Govern-
resuits. ment. The effort failed. One of its results was
that a law was passed giving the Government power to expel
persons who were dangerous to the public peace. 1 Another
result was that a close alliance was formed between the Orange
Free State and the South African Republic. 8 No further ex-
tension of the franchise was made to the immigrants. Most
of them were British, and Great Britain having espoused their
cause a war broke out in 1899. On the ist September of
the following year the country was annexed to the British
dominions, receiving the name which had previously been in
general popular use, the Transvaal. 3
By a commission dated the 8th October 1900 the High Com-
missioner for South Africa was appointed to be Administrator
The Trans- of the Transvaal and of the Orange River Colony.
vaai becomes Military rule in the Transvaal came to an end on
a British . ~ ,1 -i, I-ITJ TA
Colony, its 2ist June 1902, the date on which Letters Patent
constitution. we re published, 4 providing for the establishment
of the office of Governor. Nominated Executive and Legis-
lative Councils, both consisting of the same persons, were also
created by this instrument which was dated 2nd August 1901.
It was revoked by fresh Letters Patent dated 23rd September
1902, which provided for the government of the Transvaal
on similar lines and also constituted the office of Lieutenant-
Governor.
But in the Peace Treaty it had been agreed that as soon as
possible representative institutions leading up to responsible
Responsible government should be introduced. As a step
government. m this direction it was intended to provide for
the constitution of a partially nominated and partially elected
Legislative Assembly, and Letters Patent to this effect, dated
I3st March 1905, were actually issued ; 6 but a general election
in the United Kingdom resulted in a change of Ministry, and
the outcome was that before an election could be held in the
Transvaal further Letters Patent were issued on the 6th
December 1906, conferring full responsible government on the
the Colony 6 and revoking the instruments of 23rd September
1902 and 3ist March 1905. This is an interesting example of
the way in which the Imperial Executive can sometimes em-
Eloy prerogative powers to overcome the opposition of the
igislature, for it was believed that the House of Lords was
1 No. 228. Law No. 1 6, 1898. 3 No. 234.
4 Trans. Govt. Gaz. Extraord. [Cd. 2400.] e [Cd. 3250-]
The Union of South Africa Ixxv
hostile to the grant oi responsible government at the time. The
Letters Patent were published in the Transvaal Government
Gazette on the I2th January 1907. There were two chambers,
a Legislative Council and a Legislative Assembly. The Council
consisted of fifteen members nominated in the first instance
by the Governor. Vacancies were to be rilled by the Governor
in Council. In the Legislative Assembly sat sixty-nine mem-
bers elected by white male British subjects possessing certain
qualifications. It was provided that in the event of disagree-
ment between the two chambers of the legislature, the Governor
could convene a joint session, when matters at issue would
be decided by an absolute majority of votes. The Transvaal
had but a brief period of responsible government, for three
years later she cast in her lot with the rest of South Africa in
the Union of 1910.
SECTION VII.
THE UNION OF SOUTH AFRICA.
A glance at the map of South Africa suggests that the
country is by nature suited to form a single political entity.
– , ~. To bring about a union or federation of the various
r-uriy ejJOTiS , , i -i i r
to establish parts in some way was the ideal of many men on
South H AMca *k e S P* an ^ ^ i m p er i a l statesmen in London.
‘ Numerous unionshad been conceivedon South African
soil and several had been put into effect. The earliest union
actually established in South Africa dates back to the year
1840. Three different groups of persons who were engaged
in evolving three separate governments formed what may be
correctly called a federation. The people at Winburg acquired
no legislative body, but fell under the control of a Raad to the
north of the Vaal, which in turn performed legislative and
executive functions under the auspices of a Volksraad which
met in Natal. The Drakensberg barrier made the close
association between Pietermaritzburg and the towns to the
west impossible, and it has greatly influenced the subsequent
history of those parts. Not many years passed before a second
union was attempted. When, after the middle of the century,
the Free State and the Transvaal arose as independent re-
publics a party grew up in each State which agitated for a
union of the two republics. In 1857 recourse was nearly
had to war, but the attempt failed, thus making the achieve-
ment more difficult than ever. Whilst the movement was
going on a suggestion for co-operation between the various
governments came from the Volksraad of the Orange Free
State. In 1854 it requested that the governments in South
Ixxvi Introduction
Africa of European stock should assist each other in unavoid-
able wars with the natives. 1 Nothing came of the proposal
at the time, but it is interesting to note that on subsequent
occasions when the subject of federation was discussed the
native question always figured very prominently. During
that decade there were several agreements of union between out-
lying communities to the north of the Vaal River. By far the
most remarkable of these was the union between the South
African Republic and the Republic of Lijdenburg in 1859*
As regards the British territories it will be remembered that
Natal was at one time united to the Cape Colony, but more as
an ordinary district than as a partner in a large governing
concern. Sir George Grey lost his office- as Governor for re-
commending a confederation scheme at a time when it was not
favoured by the Colonial Office. But the idea survived none
the less. Long before the Government in London adopted the
plan of federating the states and colonies it was discussed in
the Cape colonial press, the Dutch inhabitants taking the lead
in the matter. In 1875 came Lord Carnarvon’s famous dispatch
inviting the colonies and states to a conference to discuss the
possibility of a closer political union. 3 The Cape Colony
favoured the principle, the President of the Orange Free
State seemed likely to bring round his Republic, and Natal was
an enthusiastic supporter. The South African Republic op-
posed. It was brought under the British Crown in April 1877.
In the middle of May 1877 the Cape Ministry drew up a minute
which shows that they were lukewarm. 4 Before the end of the
same month the Volksraad of the Orange Free State in the
most courteous of terms declared itself completely opposed to
confederation. 5 The scheme was wrecked for the time being
and the permissive South Africa Act 6 passed by the Imperial
Parliament to provide for the union under the British Crown
of any two or more of the colonies or states could not be
carried into effect. In 1886 another attempt was made to
unite the Orange Free State and the South African Republic.
A resolution was brought before the Volksraad in each
country proposing to appoint commissions to negotiate with
regard to an ultimate union between the two Republics. 7
The Free State rejected the proposal on the ground that by
such a union its independence would be endangered by reason
of the British suzerainty under which the older Republic was
alleged to stand. The idea of union was a very familiar one
to South Africans when out of the mists of war the new century
1 Letter of the Secretary of the O.F.S. Govt. to Sir George Grey, i8th
Nov. 1854 ; MS. in P.R.O., C.O., 48 7361.
2 No. 188. 3 [C-i244], p. i. [6-1980], p. 14.
‘ Ibid. p. 1 8. 8 40 and 41 Viet. cap. 47. T No. 210.
The Union of South Africa Ixxvii
dawned on them. 1 Up to the time, with the exception of
individual men of non-indigenous stock like Sir George Grey,
Lord Carnarvon, and Cecil Rhodes, the movers towards the
unification of the white peoples were in the main of Dutch
extraction. They joined forces across the Drakensberg in the
early years, they amalgamated to the south of the Limpopo,
they tried to join hands across the Vaal, they worked for a
united Cape Colony from 1836 till 1854, an d m T ^7 2 they pre-
vented the splitting up of the Cape. There was very little
coercion in these notable achievements, and in no case was
the foundation laid in the blood of their fellow-countrymen.
During the early years of the twentieth century the situa-
tion was different to the one of 1875 in nearly every respect.
All the territories were British. The desirability of
between^arfy uniting was pointed out to the various colonies, but no
and later Act was passed at Westminster until each colony had
efforts. k een given the fullest possible freedom to accept or
rej ect the suggested union. The delegates sent to the Convention
at which the subject was discussed were not designated by the
Colonial Secretary, as had been the case in the Carnarvon plan,
but were appointed by the uninfluenced choice of the colonies
themselves. During the efforts to work out the earlier scheme
an unsympathetic Ministry at the Cape had been dismissed and
another substituted. In Natal a part of the constitutional
powers vested in the Legislative Council had been suspended,
and the body had been radically reconstituted by adding to it
eight nominee members and requiring that all laws imposing
taxation should be carried by not less than two-thirds of the
members present, the operation of these arrangements being
limited to five years. The Colony had further been promised
responsible government when and if they should federate
with other territories. Now, however, there was no curtail-
ment of colonial liberties or colonial independence of action.
On the contrary, as an admittedly necessary preliminary to
union the two newly conquered countries were given responsible
government. Then the colonies worked out a scheme among
themselves and all that was done in London was to sanction
and register their wishes.
From the point of view of the imperial authorities the
desirability of a union is obvious. Such union had already
Reasons why been achieved in the North American Colonies
imperial an( } j n Australia. Both these events were re-
statesmen , , , -, . ,
desired a garded by many as necessary steps towards the
union. federation of the Empire into a great Commonwealth
of British dominions. For purposes of defence, too, a single
1 Vide also the proposed Customs Union and the Postal Union of 1884,
Nos. 206 and 208.
Ixxviii Introduction
central government could act more energetically and effect-
ively than a number of comparatively weak communities.
Moreover, the unification of the colonies would be the surest
means to counteract any tendency to separate that might
remain in any of them. For the rest, people in England were
watching the development of South Africa with lively interest,
and the adoption of so desirable a measure was almost uni-
versally favoured.
While these considerations appealed to statesmen in Great
Britain and South Africa alike, there were, as might be ex-
pected, many reasons which had special weight in the
s^thA/rkans minds of the peoples most nearly concerned. The
desired to country is a land of idealists. The task of making
umte ‘ a strong and happy nation caught the imagination
of the young. The old were worn out with the strife of the
previous century. The eye was turned to the future. In a
young country with immense possibilities and opportunities
the imagination runs little danger of becoming narrow. There
is always fresh nourishment to feed it with. And the bulk of
the people had for centuries been looking beyond the horizon
with an overmastering desire to launch into the unknown.
They now saw to the northward huge unsettled tracts of land
which awaited occupation and development. The native
problem loomed large on all occasions when the subject of
union was mentioned. There was no danger that a serious
native war would have to be faced, but the numbers of the
coloured people were increasing very rapidly and they would
want to expand. Their old habits of life needing large areas
to grow their mealies and graze their cattle would have to be
modified. Many of them were being educated and the systems
of government would have to be readjusted. It was eminently
undesirable that there should be marked differences in the
manner of treating persons of the same blood and col our, per-
haps in adjoining areas. A consistent, large and enlightened
policy was needed and it could only be worked out by
employing the most capable men in the whole country
and backing them with the authority of some central
power.
There was considerable scope for assimilating the laws of the
various colonies in some respects. It might for instance be
regarded as a joke when you heard that your friend had crossed
a river for a few hours to get married in the Cape Colony because
he wished to evade the marriage law of the Orange River
Colony, but physiologists and eugenists would doubtless be
shocked by a contract which sanctioned consanguinity ; and
they would probably urge that backward colonies should not
be permitted to frustrate the good intentions of others that
The Union of South Africa Ixxix
were more advanced. The laws governing higher education
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 the 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 dis-
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 enforce it.
Some of the outstanding provisions of the South Africa
Act of 1909 l may be briefly noted. The legislatures of the
The con- ^ our c l n i es > the Cape, Natal, the Orange River
of Colony it was now renamed the Orange Free State
an< ^ *^ e 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 delegated 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 earlier 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
1 No. 235.
Ixxx Introduction
Act is concerned, means the King or his representative, 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 would 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 in the dominions to question
the doctrine. It is true that it has not been definitely or
successfully challenged up to the present perhaps because
it has not been definitely 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 countries, but
that was a temporary measure calculated to meet common
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 Government 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 itself before it could take
effect ; and the matter will doubtless settle itself in the
future if it is not complicated by tactless egotism on either
side.
The smooth working of the constitution depends very
largely on the ability and tact of the Prime Minister. Some-
Extensive body has said in days gone by that the Prime
e w prlme Minister o * tne United Kingdom has more real
Ministeand power than the Czar of Russia. In his own country
the Cabinet, and as regards internal affairs a colonial Prime
Minister’s authority is nearly as great. And throughout the
Empire the authority of Prime Ministers tends to increase.
Centralisation has gone a long way. It is obvious that under
the system of cabinet 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
unless some machinery were devised to give them the power
to annul as well as to sanction or reject. The Cabinet has
certain arbitrary powers which are exercised by issuing orders
The Union of South Africa Ixxxi
and, it sometimes publishes proclamations. It tends to
become 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-
tration of such territory. He will be advised by a commission
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 imperial representative. Prior to the date of Union in
the three younger colonies native affairs were much under the
influence of the 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 the old Free State Republic. Indeed it was a principle
which had been recognised as sound throughout South 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
The Union * ne various parts of the country, to what extent it
does not was a development of earlier constitutional arrange-
r any e$ real nients. Most of the great principles of demo-
comtitutionai cracy were retained : the elective principle in the
advance. var i ous governmental bodies, in a certain degree the
responsibility of the executive to the legislature and of the
legislature to the electorate, in a large measure the certainty
that in administering justice the judges would pronounce
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 liberties 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
Ixxxii Introduction
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. Political parties in
each colony were anxious to amalgamate with corresponding
parties in the others. Union would give a better chance to
consolidate and to expand, it promised to advance their
material prospects, and the people decided hi so far as they
were hi 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
Centraiisa. w h had the drafting of the Bill went to such
tion pushed extreme lengths in the process of centralisation,
very far. f or manv o f 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 purpose that they proceeded to counteract 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 by different forces that
operated in each of the countries. That is the only sense in
which 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
lies therein that at the time of the meeting of the 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 Provincial Legislatures
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 Council, 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
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 in the Union than in either of the other two great
Dominions.
Everything points to the likelihood that the native problem
will always be with political workers in South Africa. Pre-
The future judice of colour and race is very strong, but it is
of the natives. m some measure understandable if we remember
that Europeans have complicated the matter by employing
the natives on more than 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 would be
nearly tantamount to a form of slavery. The tendency is
to-day to reserve tracts of country for occupation by natives
wherever that is still possible. The whole history 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 the native reserves the people should not be given municipal
government on the same lines as those laid down for the white
population. The natives are backward, it is true, but they
will 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
altered.
As South Africa is by no means a sovereign state it is
almost impossible not to theorise at the present time with
South Africa’s re g ar d to the future of her constitutional position
future within within the Empire. The world is moving so
the Empire, j-apj^jy an( j 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
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 nationality, language,
economics, domestic politics, 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 all, 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 colonies 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
connection.
The student of history keeps wide awake to these dis-
cussions and he is chiefly interested in the academic
Thesugges- as P ec * f the disputations, for he sees before him
tion for im- constitutional history in the making. But he
penal federa- observes that in South Africa the agitation for
tion leads to . . ,
counter- imperial federation has had the result of raising a
suggestions. CO unter 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 in 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
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 alienated 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 the
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 delivered
in fulfilment 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.
Imperial conferences have laid down lines of policy with-
out reference to the peoples committed thereby. The delegates
have agreed to suggestions 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 that
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
them, 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 policy 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 liberties
can not be extended to the colonies until they have begun to
be enjoyed in the United Kingdom. Whatever the future
Ixxxvi Introduction
utility 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 effect.
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 proceeding, 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 peoples
the course to be favoured. There seems to be a great parting
of ways in the Empire, and any action taken will greatly
influence the world’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 by 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
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 unfold themselves, leaving it to his-
torians to present the narrative when the events have been
played off.
SELECT DOCUMENTS.
CHAPTER I.
THE CAPE OF GOOD HOPE.
SECTION A.
CENTRAL GOVERNMENT.
REQUEST FOR AN ORDER TO SURRENDER THE
CAPE.
No. 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
officers and Commanders of the Forts and Vessels of the Re-
public such orders as may distinctly 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
apparent, could not in any manner be brought forward with
so much advantage, as if Your Royal Highness would have
the goodness to charge yourself with it.
Your Royal Highness is too well acquainted with all the
bearing of this important point, to make it at all necessary
to dwell 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
Republic, 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 Forts, 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.
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-
suaded to adopt this Form.
Enclosure in above.
WHEREAS I W. Prince of Orange, Hereditary Stadtholder
of the States General of the United Provinces, and Heredi-
tary Governor of each Province, and Captain General and
Admiral of the Forces by Land and Sea belonging thereto,
have been compelled by the Entrance of a Foreign Armed
Force into the Territories of the same, to withdraw myself
therefrom, and to retire into the Dominions of the good
Friend and Ally of Their High Mightiness The King of Great
Britain, and whereas I am thereby illegally and unjustly
prevented from exercising in Person within the said Province
the Functions of the said High Offices and of all other Offices
and Powers with which I am legally and constitutionally
invested, I do by this Declaration, subscribed in due form
and in the presence of lawful Witnesses, notify to all Com-
manders and Governors, Civil and Military, of all Forts, Castles,
Garrisons, Ports, Settlements, Plantations and Colonies be-
longing to the States General and to all Admirals and Com-
manders of Ships of War belonging to the same, and do strictly
enjoyn them, that They forthwith deliver up Possession of
the said Forts, Castles, Garrisons, Ports, Settlements, Colonies
and Ships of War to the King of Great Britain or to such
Persons as He shall authorize to receive Them, in order that
They may be secured from falling into the possession of the
Enemy ; and under special Trust and Confidence solemnly
assured on the Part of His Britannick Majesty, that the same
shall be restored in full Sovereignty and Use to Their High
Mightinesses, as soon as ever it shall please God to restore to
my afflicted Country the Blessings of Independence and of
its ancient and established Form of Government.
Subscribed in the presence of
(L. S.)
Rec. I. 26.
ORDER TO ADMIT BRITISH FORCES INTO THE CAPE.
No. 2. Order from the PRINCE OF ORANGE to the GOVERNOR
OF THE CAPE OF GOOD HOPE.
KEW, jth February 1795.
To The Governor of the Cape of Good Hope.
We have thought it right to write to you by this oppor-
tunity, and to charge you to admit into the Fort under your
1795] CENTRAL GOVERNMENT 3
command such Troops as may be sent thither on the Part
of His Brit. Majesty, and to receive into Table and False Bays
and other Harbours and Places where Ships can remain with
Safety all Ships of War, Frigates or Armed Vessels that may
be sent from His said Brit. Majesty, and to look upon them
as Troops and Ships of a Power in Friendship and Alliance
with Their High Mightiness, and that come to prevent the
Colony from being invaded by the French.
(Signed) W. PR. OF ORANGE.
By Command of His Highness, In the Absence of the
Private Secretary.
(Signed) J. W. BOEJENK.
[Copy translated.] Rec. I. 28.
THE FIRST SURRENDER OF THE CAPE TO
THE BRITISH.
No. 3. Articles of Capitulation. RUSTENBURG, i6th Sept. 1795.
ART. i. The capitulation being signed the Castle and the
Town are to be surrendered to a detachment of His Britannick
Majesty’s Troops at n o’clock this day.
ART. 6. Everything that belongs to the Company shall
be handed over in strict honour without the withholding
of anything, after an inventory has been made ; but the
property of the Company’s servants … as well as that of
all the burghers and other inhabitants shall remain free and
intact, as shall also all that belongs to the churches, to the
orphans and to the public bodies.
ART. 7. The colonists shall retain all the privileges which
they now enjoy, including their present religion, without
any change.
ART. 9. No new imposts shall be introduced, but on account
of the decay of the Colony, the taxes shall be lessened as
much as possible.
ART. 13. Finally, no persons, whether they be servants of
the Company, sailors, soldiers, burghers, or any other, shall be
pressed into or engaged for the service of His great Britannick
Majesty, except it be of their own free will.
Rec. I. 127.
APPOINTMENT OF THE FIRST BRITISH
COMMANDANT. [30 Sept. 1795.]
No. 4. Appointment. By General ALURED CLARKE, Com-
mander-in-Chief of His Majesty’s Troops, and Vice- Admiral
4 CAPE OF GOOD HOPE [1795
Sir GEORGE KEITH ELPHINSTONE, Commander-in-Chief of
His Majesty’s Fleets and Ships of War in the Indian
Seas, etc.
WHEREAS His Majesty has been pleased to appoint us to
be Commanders-in-Chief of His Land and Sea Forces, employed
on an Expedition in the course of which the Colony of the
Cape of Good Hope has surrendered to His Majesty by a
Capitulation dated on the i6th Instant. And whereas His
Majesty among other Articles of Instruction with which he
has been pleased to charge us has directed that in the event of
the surrender of this Colony we should arrange and settle
such matters as may be necessary for the internal regulation
of the Affairs thereof. Now we, considering that it will materi-
ally tend to the purpose aforesaid as well as to the furtherance
of His Majesty’s Service, Do hereby appoint you to be Com-
mandant of the Town and Settlement of the Cape of Good
Hope, authorizing you to take upon you the Charge of all
Duties and of all manner of things both civil and military
appertaining to the duty of Commandant aforesaid.
To Major-General Craig.
Rec. I. 175.
OATH OF ALLEGIANCE REQUIRED OF
INHABITANTS. [7 Oct. 1795.]
No. 5. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir GEORGE KEITH ELPHINSTONE, K.B., and
Major-General CRAIG, etc. etc.
… It is hereby declared that all persons whatever con-
tinuing to reside in the Colony, and thereby to enjoy His
Majesty’s protection, although they may not have individually
or actually taken the oath hereby required, will nevertheless
be considered as having virtually acceded thereto, will be
looked upon as subjects, will as such enjoy every right and
privilege belonging to that quality, and will be liable to all
the pains and penalties attached to the crime of treason in
case of any act contrary to their allegiance as such.
And if there are any persons who preferring the government
of any other power, do not chuse to become subjects of great
Britain, all such are hereby required to notify such their in-
tentions, as they will be allowed a reasonable time to settle
their affairs, after which it will be expected that they do
withdraw from the Colony.
Rec. I. 178.
1796] CENTRAL GOVERNMENT 5
APPOINTMENT OF OFFICIALS. [10 Oct. 1795.]
No. 6. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir GEORGE KEITH ELPHINSTONE, K.B., and
Major-General CRAIG, etc. etc.
WHEREAS we have judged it expedient to appoint a
Collector-General, Collector of Land Revenue, and a Treasurer :
We hereby make known that
ist. Mr. J. I. Rhenius is to take upon himself the office of
Collector-General and Treasurer.
2nd. Mr. C. Brandt, Collector of the Duty of Imports and
Exports of Merchandise and Produce together with the duty
of the Cape Wine and Brandy, and of the tythes of Corn on
being brought to Town. Wherefore all persons desirous of
Importing or Exporting any Merchandise or produce are to
apply to the said Mr. Brandt, and the duty of the said Cape
Wine together with the tythes of the said Corn are to be paid
with ready Money to the Clerks who will be appointed for
that purpose at the Main Guard of the Imhorf Battery as has
been Customary.
3rd. Mr. J. P. Baumgard, Collector of the Revenue which
is yearly paid by the Farmers for permission to cultivate and
feed Cattle in the Lands of the Company and of the Revenues
proceeding from other Lands.
Rec. I. 184.
INSTRUCTIONS ISSUED TO THE GOVERNOR
OF THE CAPE COLONY. [30 Dec. 1796.]
No. 7. Instructions to Our Right Trusty and Right well-be-
loved Cousin and Counsellor GEORGE, EARL OF MACARTNEY,
K.B., Our Governor and Commander-in-Chief in and over
the Settlement of the Cape of Good Hope in South Africa
Given at Our Court at St. James the Thirtieth Day of
December, one thousand seven hundred and ninety-six,
in the Thirty-seventh year of Our Reign.
ist. With these Our Instructions, you will receive Our
Commission under Our Great Seal of Great Britain, con-
stituting you Our Governor and Commander-in-Chief in and
over the Settlement of the Cape of Good Hope in South Africa,
now in Our Possession. In the Execution therefore of Our
said Commission you are to take upon you the administration
of the Government of the said Settlement and to do and
execute all things belonging to your Command according to the
several powers and authorities of Our said Commission under
6 CAPE OF GOOD HOPE [1796
Our Great Seal of Great Britain, and of these Our Instructions
to you, and according to such further Powers, Instructions
and Authorities as you shall at any time hereafter receive
under Our signet and sign manual, or by Our Order in Our
Privy Council, or by Us through one of Our principal Secre-
taries of State.
2nd. [The Governor is to take at the Cape various oaths
prescribed by Acts of Parliament.]
3rd. [The Governor is to administer oaths or take de-
clarations from all persons appointed to places of trust or profit
in the Colony.]
4th. It is Our Royal Will and Pleasure, That for the present,
and until Our pleasure shall be further signified, the Temporary
Administration of Justice and Police in the Settlement, should,
as nearly as circumstances will permit, be exercised by you in
conformity to the Laws and Institutions that subsisted under
the antient Government of the said Settlement, subject to
such Directions as you shall now or hereafter receive from Us,
under Our signet or sign manual, or by Our Order in Our
Privy Council, or from Us through one of our principal Secre-
taries of State, and to such Deviations, in consequence of
sudden and unforeseen Emergencies, or to such Expedients
and useful alterations as may render a Departure there-
from either absolutely necessary and unavoidable, or evidently
beneficial and desirable, and which you are immediately to
represent to one of Our Principal Secretaries of State for Our
Information. But it is, nevertheless, Our especial Command
that all the powers of Government within the said Settle-
ment, as well Civil as Military, shall be vested solely in you Our
Governor, or in the person having the Government of the said
Settlement for the time being, and that such powers as were
heretofore exercised by any person or persons separately or in
conjunction with the Governor of the said Settlement, shall
belong solely to you Our Governor, or to the person having
the Government of the said Settlement for the time being ;
And it is Our Will and Pleasure, that all public Acts and
Judicial proceedings shall henceforth be done issued and per-
formed in the name of the Governor, and shall, previous to
then: being published and put in execution, be signed by the
Chief Secretary to the Government by the authority of the
Governor or the person having the Government of the said
Settlement for the time being.
5th. Whereas it has been represented to Us, That the
practice of proceeding by Torture against persons suspected
of Crimes, and of punishment after Conviction in many Capital
Cases, by breaking upon the wheel and other barbarous modes
of Execution, prevails in the said Settlement, It is Our Will
1796] CENTRAL GOVERNMENT 7
and Pleasure that you should wholly abolish these forms of
Trial and Punishment, and provide other more lenient and
equitable proceedings, which it is left to your Judgment and
Discretion to establish and enforce in the said Settlement.
6th. [The Governor is to report fully on the establishments
for the administration of justice and to recommend improve-
ments where necessary.]
7th. Whereas from the Statements that have been laidbefore
Us of the Financial System and Regulations established in the
said Settlement, it appears to Us, that they are, in a high
Degree, oppressive and vexatious, Our Will and pleasure there-
fore is, that you do make this Branch of the Publick administra-
tion one of the first objects of your attention, and that you
do, without delay, afford Our subjects at the said Settlement
such relief from the Fiscal oppressions under which they now
labour, as you shall judge expedient, and particularly by
abolishing monopolies, pre-emptions and exclusive privileges,
and prohibitions and Restraints, to the free exercise of their
Industry, either in Agriculture, Manufactures or other pur-
suits of interior Commerce, and establishing in lieu thereof
such reasonable Duties or Taxes as shall appear to you ex-
pedient. And as the public Revenue of the said Settlement has
been hitherto principally derived from these resources, or from
others apparently grievous and injurious to the Interests and
Prosperity of the said Settlement, We hereby require you to
consider and carefully investigate this subject, and transmit
a full and explicit Report thereon to one of Our principal
Secretaries of State for Our Information, specifying, under
distinct heads, the different Resources from which the Revenue
was derived under the former Government, distinguishing
those which shall have been abolished, and also the substitutes
which shall have been established, or may, in your opinion,
be established, and you will also transmit a Copy of this
Report to Our High Treasurer, or The Lords Commissioners of
Our Treasury for the time being, and also a Copy to the Com-
mittee of Our Privy Council for Trade and Plantations.
8th. Our Will and Pleasure is That the Revenue derived
from the Annual Quit Rent paid by the Persons holding Lands
granted to them by the Dutch Government shall continue to
be collected, but that all arrears due anterior to the Capture
of the Settlement by our Forces shall be remitted ; And We
hereby strictly require of you to take the necessary measures
for ensuring hereafter a due regularity in the payment of the
said Quit Rents, as the only means of preventing the Loss occa-
sioned to the Revenue by the accumulation of such arrears, and
if, in any case, the said Quit Rents should appear excessive
and disproportioned to the means and Faculties of the Land-
8 CAPE OF GOOD HOPE [1796
owners, We authorize you to grant such reductions as circum-
stances may appear to require.
gth. [The Governor is to send a full report on the paper
money, observing how far it may be replaced by specie.]
loth. [The Governor is to send an account of the rules
regulating the importation of slaves, the laws existing for
their protection, etc., with his opinion as to the expediency of
prohibiting such importation in future.]
nth. [The Governor and the Lieutenant-Governor are to
form a court of appeal in civil cases. Vide document No. 65.]
I2th. Our will and pleasure is, That all Orders, Regu-
lations, or Laws, made by You or Our Lieutenant-Governor
shall, when transmitted by You for Our Information, and for
the signification of our pleasure thereon, be fairly abstracted
in the margins, and accompanied with very full and particular
observations, upon each of them, that is to say Whether
the same is introductory to a new Order, Regulation or Law
then before in being, and you are also to transmit in the fullest
manner, the reasons and occasions for making such Orders,
Regulations or Laws.
I3th. You are to give Warrants under your hand for the
issuing of public monies for all Services, and We do parti-
cularly require you to take care that regular accounts of all
receipts and payments of public monies be duly kept, and that
copies thereof, attested by you, be transmitted every half-year,
or oftener if there should be occasion, to Our Commissioners
of Our Treasury or to Our High Treasurer for the time being,
and Duplicates thereof by the next conveyance ; in which
accounts shall be specified every particular sum raised or dis-
posed of, to the end that We may take such measures as We
may deem necessary for the Examination of the said accounts,
and that We may be satisfied of the right and due application
of the Revenues of the said Settlement, and with the probability
of the increase or diminution of them under every head and
article thereof.
I4th. You shall not remit any Fines or Forfeitures what-
soever, until, upon signifying unto the Commissioners of Our
Treasury, or Our High Treasurer for the time being, the nature
of the offence and the occasion of such Fines and Forfeitures,
with the particular sums or value thereof, (which you are to
do with all speed) you shall have received Our Directions
thereon ; but you may in the meantime suspend the payment
of the said Fines and Forfeitures.
I5th. And you are on every occasion to transmit to Us,
through one of Our Principal Secretaries of State, with all
convenient speed, a particular account of all new Establish-
ments of Jurisdictions, Courts, Offices, and Officers, Powers
1796] CENTRAL GOVERNMENT 9
and Authorities, Fees and Privileges granted and settled within
the said Settlement, as likewise an account of all the Expences
(if any) attending the Establishment of the said Courts and
Offices.
1 6th. [The Governor is to transmit a table of fees which
he considers should be received by the Courts of Justice.]
xyth. It is Our further Will and Pleasure, that all Com-
missions to be granted by you to any person or persons for
exercising any Office or Duty, relating to the administration
of Justice, or to the preservation of the public peace, or other
necessary offices, be granted during pleasure only.
i8th. [Justice must be administered impartially and
without delay.]
igth. You shall not suffer any Person to execute more
offices than one by Deputy.
2oth. [The Governor is to draw up and transmit a table
of custom-house dues which he may consider suitable for
adoption at the ports.]
2ist. You shall not by colour of any power or authority
hereby or otherwise granted or mentioned to be granted unto
you, take upon you to give, grant or dispose of any place or
office within the said Settlement which now is or shall be
granted under the Great Seal of this Kingdom, or to which
any person is or shall be appointed by Warrant under Our
Signet and Sign Manual, any further than you may, upon the
vacancy of any such office or place, or upon the suspension of
any such officer by you as aforesaid, put in any fit person to
officiate in the interval, till you shall have represented the
matter to Us, through one of Our Principal Secretaries of
State, which you are to do by the first opportunity, and till
the said office or place is disposed of by Us, Our Heirs or Suc-
cessors, under the Great Seal of this Kingdom, or until some
person shall be appointed thereunto, under Our Signet and
Sign Manual, or until Our further Directions be given therein.
22nd. [The Governor is to send a report on the Crown
lands in the Colony, their nature, products, wealth in minerals,
etc., and to recommend a manner of issuing grants of such
lands on reasonable terms.]
23rd. [The Governor is to report on the rivers and harbours,
observing how far any new fortifications would be necessary
at the landing-places.]
24th. [The Governor is to report in how far the erection of
fortifications in the interior is necessary for defence against
the natives, and how the goodwill of the natives may be won
and trade with them advanced.]
25th. Whereas the Establishment of proper regulations
in matters of Ecclesiastical concern is an object of very great
io CAPE OF GOOD HOPE [1796
Importance, it will be your indispensable Duty to take care
that no arrangement in regard thereto be made, but such as
may give full satisfaction to Our New Subjects, in every point
in which they have a right to any indulgence on that head,
and you are to permit liberty of Conscience, and the free
exercise of Religious Worship, to all persons who inhabit and
frequent the said Settlement, provided they be contented with
a quiet and peaceable Enjoyment of the same, without giving
offence or scandal to Government.
26th. [The Governor is to report his opinion as regards
steps that may be taken for erecting and maintaining schools.]
27th. And it is Our further Will and Pleasure, That no
person shall be allowed to keep a school in the said Settlement
without your Licence first had and obtained, in granting
which you are to pay the most particular attention to the
morals and proper qualifications of the persons applying for
the same.
28th. And it is Our Will and Pleasure, that you, or, in your
absence, Our Lieutenant-Governor, or the Person for the time
being having the Government of the said Settlement, have the
power of collating the Benefices, granting Licences for Mar-
riages and Probates of Wills, commonly called the office of
Ordinary, but it is our express Will and Pleasure, and you are
hereby directed and required not to grant Deputations for the
exercise of the said Powers, to any Person or Persons what-
soever in the said Settlement under your Government.
29th. [Annual returns must be transmitted showing the
number of inhabitants, the state of the trade, agriculture and
fisheries, and the number of ships employed at the settlement.]
3Oth. [The Governor is to act as Vice- Admiral of the settle-
ment.]
3ist. [His powers are restricted in the issuing of com-
missions to ships of war.]
32nd. [The Governor must proceed according to Acts of
Parliament in trying persons for piracy.]
33rd. [He must report on the institutions of the Colony
as they existed during the Dutch period.]
34th. [He must send returns of all ammunition and mili-
tary stores in the Colony.]
35th. You are hereby particularly authorized and
required, for the better security of the said Settlement,
and for the maintenance of good order within the same, to
raise such Troops therein, and to call out and embody such
Companies of Corps of Militia as you shall judge necessary
for that purpose, and fine or imprison such persons as refuse
to be enrolled and to serve. With the same view of maintain-
ing order and good Government, you are also authorized to
I797J CENTRAL GOVERNMENT It
disarm such of the Inhabitants of the said settlement as are
not Proprietors or are not employed in any Civil or Military
Capacity, or have not your Licence for keeping their Arms,
and to remove and send away from the said Settlement such
persons as you shall suspect of adhering to Our Enemies, and
all such other Persons the continuance of whose residence you
may have reason to imagine might be inconvenient or pre-
judicial to the peace, good order or Security of the said Settle-
ment.
36th. [Vessels carrying letters must be instructed to sink
such letters in case of imminent danger from enemy ships.]
37th. If any thing shall happen which may be of advantage
or security to the said Settlement, which is not herein, or by
your Commission, provided for, We do hereby allow unto you
to take order for the present therein, giving unto Us, through
one of our principal Secretaries of State, speedy notice thereof,
that you may receive Our ratification, if We shall approve the
same, provided always that you do not, by color of any power
or authority hereby given you, Commence or Declare War
without Our knowledge and particular Commands therein, ex-
cept it be for the purpose of preventing or repelling Hostilities
or unavoidable Emergencies.
38th. [The Governor is not to depart for Europe without
leave being first obtained.]
39th. [He must transmit an account of all his proceedings.]
4oth. [The Crown reserves full power to determine in future
anything with regard to the Colony, just as if the Governor’s
commission and these Instructions were never issued.]
Rec. II. 3.
FEES OF OFFICE.
No. 8. Letter from the WAR OFFICE to the EARL
OF MACARTNEY.
PARLIAMENT STREET, jth January 1797.
MY LORD, His Majesty having been pleased to deter-
mine that the Fees and Perquisites which may be received
by any Public Offices established, or to be established under
the Government of the Cape of Good Hope, should in no case
whatever belong to the Person or any of the Persons employed
in such Offices, by right of Office and without account ; but
that all such Fees and Perquisites should be appropriated to
the payment of the fixed appointments of the Persons em-
ployed in such Offices, as far as they will go for this purpose,
and it being His Majesty’s further Pleasure that in case of
their exceeding in any particular Office the expence of the
12 CAPE OF GOOD HOPE [1802
Establishment of that Office, the Surplus, whatever it may
be, shall be appropriated to discharge the Expences of such
other Offices as may be deficient in this respect, and in case
there should be any surplus in the whole, then that it should
be paid into the Treasury of the Settlement, and be applied
in aid of the other Branches of the Public Expences. I am
commanded to acquaint your Lordship with these Disposi-
tions, and beg leave to suggest as the best method of carrying^
them into execution that you should direct the whole amount
of all Fees and Perquisites above described to be collected
quarterly into one Fund, from which they might be appro-
priated and accounted for in the manner above mentioned.
Rec. II. 35.
No. 9. TREATY OF AMIENS.i [27 March 1802.]
Between His BRITANNIC MAJESTY on the one hand, and the
FRENCH REPUBLIC, His Catholic Majesty, and the BATA-
VIAN REPUBLIC on the other.
ART. III. His Britannick Majesty restores to the French
Republick, and her Allies ; namely, His Catholick Majesty
and the Batavian Republick, all the Possessions and Colonies
which belonged to them respectively, and which had been
occupied or conquered by the British Forces in the Course of
the War, with the Exception of the Island of Trinidad, and
the Dutch Possessions in the Island of Ceylon.
ART. VI. The Cape of Good Hope remains in full Sover-
eignty to the Batavian Republick, as it was before the War.
The Ships of every Description belonging to the other con-
tracting Parties shall have the Right to put in there, and to
purchase such Supplies as they may stand in need of as hereto-
fore, without paying any other Duties than those to which
the Ships of the Batavian Republick are subjected.
ART. XII. The Evacuations, Cessions, and Restitutions,
stipulated for by the present Treaty, except where otherwise
expressly provided for, shall take place in Europe within One
Month ; in the Continent and Seas of America, and of Africa,
within Three Months ; and in the Continent and Seas of Asia,
within Six Months after the Ratification of the present Defini-
tive Treaty.
ART. XIII. In all the Cases of Restitution agreed upon
by the present Treaty, the Fortifications shall be delivered up
in the State in which they have been at the Time of the Sig-
nature of the Preliminary Treaty; and all the Works which
1 Published by Authority. London, 1802.
1803] CENTRAL GOVERNMENT 13
shall have been constructed since the Occupation, shall remain
untouched. . . .
With respect to the Inhabitants of the Countries restored
or ceded, it is agreed that none of them shall be prosecuted,
disturbed or molested in their Persons or Properties under
any Pretext, on account of their Conduct or political Opinions,
or of their Attachment to any of the contracting Powers, nor
on any other Account, except that of Debts contracted to
Individuals, or on Account of Acts posterior to the present
Treaty.
ART. XIV. All Sequestrations imposed by any of the
Parties on the funded Property, Revenues, or Debts of what-
ever Description, belonging to any of the contracting Powers,
or to their Subjects or Citizens, shall be taken off immediately
after the Signature of this Definitive Treaty. The Decision
of all Claims brought forward by Individuals, the Subjects
or Citizens of any of the contracting Powers respectively,
against Individuals, Subjects or Citizens of any of the others,
for Rights, Debts, Property, or Effects whatsoever, which,
according to received Usages and the law of Nations ought
to revive at the Period of Peace, shall be heard and decided
before competent Tribunals ; and in all Cases prompt and
ample Justice shall be administered in the Countries where
the Claims are made.
* * *
Done at Amiens, the Twenty-seventh Day of March One
thousand eight hundred and two ; the Sixth Germinal, Year
Ten of the French Republick.
(L.S.) CORNWALLIS.
(L.S.) JOSEPH BONAPARTE.
(L.S.) J. NICOLAS DE AZARA.
(L.S.) R. J. SCHIMMELPENNINCK.
THE CAPE RESTORED TO THE DUTCH. [21 Feb. 1803.]
No. 10. Proclamation. By Lieutenant-General FRANCIS
DUNDAS.
WHEREAS by the 3rd Article of the Treaty of peace concluded
at Amiens on the 2yth March 1802 this Settlement is agreed
to be restored to the Batavian Republic, which restoration will
take place to-morrow, being Monday the 2ist of February
1803, These are to signify to all the Inhabitants of this Colony
of every description and to all others (not subjects of the United
Kingdom of Great Britain and Ireland) who have taken
the Oath of Allegiance to His Britannic Majesty that from
14 CAPE OF GOOD HOPE [1806
the day above mentioned they are absolved from the said Oath
and return under the subjection of the Batavian Government.
In order however to prevent confusion, the several Colleges
and all the Civil Servants of this Government charged with the
Police, administration of Justice, or of Finance, are at the
instance of His Excellency the Commissary-General required
for the present, and until further orders, to continue the func-
tions of their several offices, and all the Inhabitants are warned
to continue to obey the same.
Rec. V. 156.
SURRENDER OF CAPE TOWN TO THE BRITISH.
[10 Jan. 1806.]
No. 11. Articles of Capitulation proposed by the Lieut. -Colonel
HIERONIMUS CASIMIRUS VON PROPHALOW, Command-
ant of the Town, Castle, and circumjacent Fortifica-
tions of the Cape of Good Hope, to the Major-General in
the Service of His Britannic Majesty, Sir DAVID BAIRD,
K.C., Commander-in-Chief of His Majesty’s Forces, and
Commodore Sir HOME POPHAM, K.M., Commander-in-
Chief of His Britannic Majesty’s Naval Forces in Table
Bay.
ART. i. The Capitulation being signed, the Cape Town,
Castle, and circumjacent Fortifications shall be immediately
surrendered to the Troops of His Britannic Majesty, viz. the
Fortifications of the King’s Block-House, Craig’s Tower, and
all the Batteries within that circuit, and on the other side of
Camps Bay.
2. The Garrison shall, at the surrender, march out with
all the Honours of War, and shall then lay down their Arms
and become Prisoners of War ; but such Officers as are natives
of the Colony, or married with natives, or in possession of
sufficient Landed Property to become regularly and bona fide
domiciliated, shall be at liberty to continue here so long as they
behave themselves as becometh good Subjects and Citizens,
or proceed to Great Britain with regular Passports, and having
previously passed their Parole not to serve until regularly
exchanged.
3. All Officers, who according to the previous Article,
must go to Europe, shall be provided with passages at the
expense of His Britannic Majesty, and shall have leave to
realize their Property previous to their departure, and receive
the same Pay as they did in their own Service, till the day
of their embarkation.
4. The French Subjects, who, belonging to the stranded
1806] CENTRAL GOVERNMENT 15
Frigate VAtalante, and the stranded Privateer le Napoleon,
were casually here, and are comprehended in the Capitulation,
shall be treated on the same footing as the Garrison ; but they
must all be embarked for Europe, as well as every other French
Subject in the Colony.
5. The Inhabitants of the Town, who have borne Arms,
to be considered as belonging to the Town, and may immedi-
ately return to their former occupations. But the distinction
between the Burghers and other Inhabitants is to remain the
same, and subject to the same restrictions as under the Dutch
Laws.
6. All bona fide private Property, whether belonging to the
Civil or Military Servants of the Government, to the Burghers
and Inhabitants, to Churches, Orphans, and other Public
Institutions of that kind, shall remain free and untouched.
7. Public Property of every description, whether consisting
of Treasure, or Naval or Military Stores, Buildings, Estates
or Merchandise, belonging to the Batavian Republic or the
Government of France, shall be faithfully delivered up, and
proper Inventories given of them as soon as possible.
8. The Burghers and Inhabitants shall preserve all their
Rights and Privileges which they have enjoyed hitherto ;
Public Worship, as at present in use, shall also be maintained
without alteration.
9. The Paper Money actually in circulation shall continue
current as heretofore, until the pleasure of His Britannic
Majesty is known.
10. The Lands and Houses, the property of the Batavian
Republic, which must be delivered up in consequence of the
present Capitulation, shall remain as security for that part of
the Paper Money which is not already secured by Mortgages
upon the Estates of Individuals, by its having been lent to
them. This is, however, to be without prejudice to the free
use to be made of the said Lands and Houses for public
purposes.
11. Prisoners of War comprehended in the present Capitu-
lation shall not be pressed into His Britannic Majesty’s Service,
or engaged against their own free will and consent. With
respect to other Persons, they are provided for in Article the
5th of this Capitulation.
12. The Inhabitants of Cape Town shall be exempted
from having Troops quartered on them.
[Etc.]
Given … at Papendorp, near Fort Knokke.
Prods., etc., p. I.
i6
CAPE OF GOOD HOPE
[1807
No. 12. SECOND SURRENDER OF THE CAPE TO
THE BRITISH. [19 Jan. 1806.]
Articles of Capitulation proposed by Lieut. -General JANS-
SENS, Governor, and Commander-in-Chief of the Batavian
Forces at the Cape of Good Hope, to Brigadier-General
BERESFORD, duly authorised by Major-General Sir DAVID
BAIRD, K.C., and Commodore Sir HOME POPHAM, K.M.,
Commanding the Military and Naval Forces of His
Britannic Majesty.
ARTICLE i. As soon as this
Capitulation is signed the whole
of the Settlement of the Cape
of Good Hope, with all its De-
pendencies, and all the rights
and privileges held and exer-
cised by the Batavian Govern-
ment, will be considered as sur-
rendered by the Governor,
Lieut. – General Janssens, to
His Britannic Majesty.
ARTICLE 8. The inhabitants
of the Colony who are com-
prehended in this Capitula-
tion are to enjoy the same
rights and privileges as have
been granted to those in Cape
Town, according to the Cap-
itulation of the loth instant.
ARTICLE i. Agreed to.
ARTICLE 8. Agreed to with
the exception of not quartering
Troops, the Country not having
the same resources astheTown,
and this right having been
always an appendage to the
Batavian Government.
18 Jan. 1806.
Ratified and confirmed, 19 Jan. 1806.
Prod., etc., p. 8.
No. 13. THE FARMING OUT OF LICENSES.
[25 July 1807.]
Government Advertisement. Notice is hereby given, that
His Excellency the Governor and Commander-in-Chief has
been pleased to appoint a Committee, consisting of the follow-
ing gentlemen, with power to put up to Auction, and Farm out
to the highest Bidder, the Wine, Brandy, and Foreign Liquor
Licenses, for the ensuing Twelve Months, commencing from
the ist of September.
The Particulars of the Contract may be seen both at the
Colonial Secretary’s and Fiscal’s Offices.
Names of the Committee W. S. Van Ryneveld, Esq., His
1809] CENTRAL GOVERNMENT 17
Majesty’s Fiscal ; F. Dashwood, Esq., Receiver-General ;
C. Brand, Esq., Collector of Tythes ; J. P. Baumgardt, Esq.,
Receiver-General of Land Revenue.
The Auction will be at the Burgher Senate House, on
Friday the I4th of August next, at 9 o’clock in the Forenoon.
Castle of Good Hope, 25th July 1807.
By Command of His Excellency the Governor,
(Signed) A. BARNARD, Secretary.
Prods., etc., p. 62.
VAGRANCY AND CONTRACTS OF HIRE.
No. 14. Proclamation. By His Excellency Du PRE, EARL OF
CALEDON, etc. [i Nov. 1809.]
WHEREAS it appears that the provisions made from time to
time, for securing the fulfilling of Contracts of Hire between
the Inhabitants of this Colony and Hottentots, are not sufficient
for the intended purpose ; and, whereas for the benefit of this
Colony at large, it is necessary, that not only the Individuals
of the Hottentot Nation, in the same manner as the other
Inhabitants, should be subject to proper regularity in regard
to their places of abode and occupations, but also that they
should find an encouragement for preferring entering the
service of the Inhabitants to leading an indolent life, by which
they are rendered useless both for themselves and the com-
munity at large.
I therefore have thought proper to establish and ordain,
and by these Presents do establish and ordain :
1. That all and every Hottentot in the different Districts
of this Colony, in the same manner as all Inhabitants, shall
have a fixed Place of Abode in some one of the Districts, and
that an entry of the same shall be made in the Office of the
Fiscal, or the respective Landdrosts, and that they shall not be
allowed to change their place of abode from one District to
another, without a Certificate from the Fiscal, or Landdrost
of the District from which they remove ; which Certificate they
shall be bound to exhibit to the Fiscal, or Landdrost of the
District where they intend to settle, for the purpose of being
entered in their Office ; while every Hottentot neglecting this
order, shall be considered as a Vagabond, and be treated
accordingly.
2. That every Inhabitant who engages a Hottentot in his
service for the space of a month, or any longer period, shall be
bound with the same to make his appearance before the
Fiscal, or Landdrost, or the Field-Cornet of his District, and
18 CAPE OF GOOD HOPE [1812
there enter into, and sign in triplo, a proper written Contract,
containing
(a) The name of the Person who takes into service ;
(6) The name of the Person who enters into service ;
(c) The terms of the Contract ;
(d) The amount of the Wages ;
(e) The time of payment ; and
(f) Such further Conditions as the Persons contracting
shall agree upon.
Of which Contract, after having been duly signed in triplo,
each of the Parties shall be furnished with one counterpart,
and the third counterpart is to remain in the Office of the
Fiscal, Landdrost, or Field-Cornet ; while, for the sake of
facilitating the execution of this measure as much as possible,
the Fiscal and respective Landdrosts shall, upon applying for
the same, be furnished on the part of Government, gratis,
with the necessary printed Copies for their own Offices, and
those of the Field-Cornets under them.
This being neglected, no Contract of Hire against a Hotten-
tot shall stand good ; and in case where it is proved that the
Hottentot was ignorant of these present Regulations, upon the
existence of a Hire Contract being satisfactorily proved, the
engagement shall stand good in favour of the Hottentot, who
shall be entitled to all the advantages secured by this Pro-
clamation, to Hottentots entering into Contracts before the
Fiscal, Landdrost, or Field-Cornet. [Etc.]
Prods., etc., p. 119.
SALE OF CHRISTIAN SLAVES.
No. 15. Proclamation. By His Excellency Lieutenant-General
Sir JOHN FRANCIS CRADOCK, etc. [9 Oct. 1812.]
WHEREAS by a Resolution taken by the Governor in Council
at Batavia, dated the loth of April 1770, it is enacted and
prescribed, that Slaves who have been catechised and con-
firmed in the Christian Religion, shall not be sold : and
whereas by experience it has appeared, that a Law intended
for the promotion of Christianity and true Religion, has not
been attended with the desired, but rather the contrary, effect :
His Excellency hereby enacts and ordains, that the said
Clause of the Batavian Law of 1770 be repealed and of no
effect ; and it is hereby repealed and annulled, from the
date of this Proclamation.
And that no Person may plead ignorance hereof, this shall
be published and affixed as usual.
Prods., etc., p. 210.
1814] CENTRAL GOVERNMENT 19
CESSION OF THE CAPE TO GREAT BRITAIN.
No. 16. CONVENTION BETWEEN GREAT BRITAIN AND THE
UNITED NETHERLANDS. [13 Aug. 1814.]
In the Name of the Most Holy and Undivided Trinity,
The United Provinces of the Netherlands, under the favour
of Divine Providence, having been restored to their Inde-
pendence, and having been placed by the Loyalty of the
Dutch people and the achievements of the Allied Powers,
under the government of the Illustrious House of Orange :
And His Britannick Majesty being desirous of entering into
such arrangements with the Prince Sovereign of the United
Netherlands, concerning the Colonies of the said United
Netherlands, which have been conquered by His Majesty’s
arms during the late war, as may conduce to the prosperity
of the said State, and may afford a lasting testimony of His
Majesty’s friendship and attachment to the family of Orange
and to the Dutch nation : the said High Contracting Parties,
equally animated by those sentiments of cordial good will
and attachment to each other, have nominated for Their
Plenipotentiaries : namely, His Majesty the King of the
United Kingdom of Great Britain and Ireland, the Right
Honourable Robert. Stewart, Viscount Castlereagh, . . . ; and
His Royal Highness the Prince of Orange-Nassau, Prince
Sovereign of the United Netherlands, His Excellency Henry
Fagel, . . . : who, after having exchanged their full Powers,
found in good and due form, have agreed to the following
Articles :
ARTICLE I. His Britannic Majesty engages to restore to the
Prince Sovereign of the United Netherlands, within the term
which shall be hereafter fixed, the Colonies, Factories, and
Establishments which were possessed by Holland at the com-
mencement of the late war, viz. on the rst of January 1803,
in the Seas and on the Continents of America, Africa, and
Asia; with the exception of the Cape of Good Hope and the
settlements of Demerara, Essequibo, and Berbice, of which
possessions the High Contracting Parties reserve to Them-
selves the right to dispose by a Supplementary Convention
hereafter to be negociated according to Their mutual interests ;
and especially with reference to the provisions contained in
the 6th and gth Articles of the Treaty of Peace signed between
His Britannick Majesty and His Most Christian Majesty on
the 30th of May
1 ART. VI. ” Holland, placed under the Sovereignty of the House of
Orange, shall receive an increase of territory. The title and exercise of that
Sovereignty shall not in any case belong to a Prince wearing or destined to
20 CAPE OF GOOD HOPE [1814
ARTICLE II. His Britannick Majesty agrees to cede in
full Sovereignty the Island of Banca, in the Eastern Seas, to
the Prince Sovereign of the Netherlands, in exchange for the
Settlement of Cochin and its dependencies on the coast of
Malabar, which is to remain in full Sovereignty to His
Britannick Majesty.
ARTICLE III. The places and forts in the colonies and
settlements, which by virtue of the two preceding articles are
to be ceded and exchanged by the two High Contracting
Parties, shall be given up in the state in which they may be
at the moment of the signature of the present Convention.
ARTICLE IV. His Britannick Majesty guarantees to the
subjects of His Royal Highness the Prince Sovereign of the
United Netherlands, the same facilities, privileges, and pro-
tection, with respect to commerce and the security of their
property and persons within the limits of the British Sove-
reignty on the Continent of India, as are now or shall be granted
to the most favoured nations.
His Royal Highness the Prince Sovereign, on His part,
having nothing more at heart than the perpetual duration
of peace between the Crown of England and the United Nether-
lands, and wishing to do His utmost to avoid anything which
might affect Their mutual good understanding, engages not
to erect any fortifications in the Establishments which are to
be restored to Him within the limits of the British Sovereignty
upon the Continent of India, and only to place in those Estab-
lishments the number of troops necessary for the maintenance
of the Police.
ARTICLE V. Those Colonies, Factories, and Establish-
ments, which are to be ceded to His Royal Highness the
Sovereign Prince of the United Netherlands by His Britannick
Majesty, in the Seas or on the Continent of America, shall be
given up within three months, and those which are beyond
the Cape of Good Hope within the six months which follow
the ratification of the present Convention.
ARTICLE VI. The High Contracting Parties, desirous
to bury in entire oblivion the dissensions which have agitated
Europe, declare and promise, that no individual, of whatever
rank or condition he may be, in the countries restored and
ceded by the present Treaty, shall be prosecuted, disturbed,
or molested in his person or property, under any pretext
whatever, either on account of his conduct or political opinions,
wear a foreign Crown.” [The rest of the article refers to Germany, Switzer-
land, and Italy.]
ART. IX. ” His Majesty the King of Sweden and Norway, in virtue of the
Arrangements stipulated with the Allies, . . . consents that the Island of
Guadalope be restorea to His Most Christian Majesty, and gives up all rights
He may have acquired over that Island.”
1814] CENTRAL GOVERNMENT 21
his attachment either to any of the Contracting Parties, or
to any Government which has ceased to exist, or for any other
reason except for debts contracted towards individuals, or
acts posterior to the date of the present Treaty.
ARTICLE VII. The native inhabitants and aliens, of what-
ever nation or condition they may be, in those countries which
are to change Sovereigns, as well in virtue of the present
Convention as of subsequent arrangements to which it may
give rise, shall be allowed a period of six years, reckoning
from the exchange of the Ratifications, for the purpose of
disposing of their property, if they think fit, whether it be
acquired before or during the late war, and of retiring to what-
ever country they may choose.
ARTICLE VIII. The Prince Sovereign of the United Nether-
lands, anxious to co-operate, in the most effectual manner,
with His Majesty the King of the United Kingdom of Great
Britain and Ireland, so as to bring about the total abolition
of the trade in slaves on the coast of Africa, and having
spontaneously issued a Decree on the I5th of June, 1814,
wherein it is enjoined, that no ships or vessels whatever,
destined for the trade in slaves, be cleared out or equipped
in any of the harbours or places of His dominions, nor admitted
to the forts or possessions on the coast of Guinea, and that no
inhabitants of that country shall be sold or exposed as slaves,
does moreover hereby engage to prohibit all His subjects, in
the most effectual manner and by the most solemn laws, from
taking any share whatsoever in such human traffic.
ARTICLE IX. The present Convention shall be ratified,
and the ratifications shall be duly exchanged at London
within three weeks from the date hereof, or sooner if possible.
In witness whereof, we, the undersigned Plenipotentiaries,
in virtue of our respective full powers, have signed the present
Convention, and have affixed thereto the seals of our arms.
Done at London, this i3th day of August 1814.
(L.S.) CASTLEREAGH. (L.S.) H. FAGEL.
First Additional Article.
In order the better to provide for the Defence and In-
corporation of the Belgick Provinces with Holland, and also to
provide, in conformity to the Ninth Article of the Treaty of
Paris, a suitable compensation for the Rights ceded by His
Swedish Majesty under the said Article, which compensation
it is understood, in the event of the above Reunion, Holland
should be liable to furnish, in pursuance of the above stipula-
tions ; It is hereby agreed between the High Contracting
Parties, that His Britannick Majesty shall take upon Himself,
and engage to defray the following charges :
22 CAPE OF GOOD HOPE [1814
ist. The payment of One Million Sterling to Sweden in
satisfaction of the claims aforesaid, and in pursuance of a
Convention this day executed with His Swedish Majesty’s
Plenipotentiary to that effect, a Copy of which Convention
is annexed to these Additional Articles.
2dly. The advance of Two Millions Sterling, to be applied,
in concert with the Prince Sovereign of the Netherlands, and
in aid of an equal Sum to be furnished by Him towards aug-
menting and improving the defences of the Low Countries.
3dly. To bear, equally with Holland, such further charges
as may be agreed upon between the said High Contracting
Parties and Their Allies, towards the final and satisfactory
settlement of the Low Countries in union with Holland, and
under the Dominion of the House of Orange, not exceeding,
in the whole, the sum of Three Millions, to be defrayed by
Great Britain.
In consideration, and in satisfaction of the above engage-
ments, as taken by His Britannick Majesty, the Prince
Sovereign of the Netherlands agrees to cede in full Sovereignty
to His Britannick Majesty, the Cape of Good Hope, and the
Settlements of Demerary, Essequibo, and Berbice, upon the
condition nevertheless, that the subjects of the said Sovereign
Prince, being proprietors in the said Colonies or Settlements,
shall be at liberty (under such Regulations as may hereafter
be agreed upon in a Supplementary Convention) to carry on
trade between the said Settlements and the Territories in
Europe of the said Sovereign Prince.
It is also agreed between the Two High Contracting Parties,
that the ships of every kind belonging to Holland, shall have
permission to resort freely to the Cape of Good Hope for the
purposes of refreshment and repairs, without being liable to
other charges than such as British subjects are required to
pay.
Second Additional Article.
[The district of Bernagore, close to Calcutta, is ceded to the
King of England for an annual payment to the Prince of
Orange.]
Third Additional Article.
The present Additional Articles shall have the same force
and validity as if they were inserted word for word in the
Convention signed this day. They shall be ratified, and the
Ratifications shall be exchanged at the same time and place.
In witness whereof, we the undersigned Plenipotentiaries
have signed, and affixed to them the Seal of our Arms,
i822] CENTRAL GOVERNMENT 23
Done at London, this Thirteenth day of August, One
Thousand Eight Hundred and Fourteen.
(L.S.) CASTLEREAGH. (L.S.) H. FAGEL.
Parl. Papers, Convention, I3th Aug. 1814,
Presented to Parl., June 1815, p. 2.
THE ENGLISH LANGUAGE ESTABLISHED.
No. 17. Proclamation. By His Excellency General the Right
Hon. Lord CHARLES HENRY SOMERSET, etc. [5 July 1822.]
WHEREAS it has been deemed expedient, with a view to
the prosperity of this Settlement, that the Language of the
Parent Country should be more universally diffused, and that a
period should be how fixed, at which the English Language
shall be exclusively used in all Judicial and Official Acts,
Proceedings, and Business, within the same. The long and
familiar intercourse which has happily taken place between
the good Inhabitants of this Colony, and the very numerous
British-born Subjects who have established themselves, or
have been settled here, has already greatly facilitated a
measure which is likely still more closely to unite the loyal
Subjects of their common Sovereign. The system which I
had previously adopted, with a view to this exigence of em-
ploying British-born Subjects, conversant in both languages,
in the parochial duties of the Reformed Religion, as established
in this Colony, has likewise paved the way to the amelioration
now contemplated.
It has pleased His Majesty most graciously to approve
that measure, and to enable me to act more extensively upon
it, not only by having commanded Clergymen of the Estab-
lished Church of Scotland (whose religious tenets are precisely
similar to those of the Reformed Church of this Country),
who have received instruction in the Dutch Language, in
Holland, to be sent hither to be placed in the vacant Churches,
but by having authorised competent and respectable In-
structors being employed at public expense, at every principal
place throughout the Colony, for the purpose of facilitating
the acquirement of the English Language to all classes of
Society.
These Teachers having now arrived, the moment appears
favourable for giving full effect to His Majesty’s Commands ;
and I, therefore, hereby order and direct, by virtue of the
Power and Authority in me vested, that the English Language
be exclusively used in all Judicial Acts and Proceedings, either
in the Supreme or Inferior Courts of this Colony, from the 1st
day of January of the Year of our Lord, One Thousand Eight
24 CAPE OF GOOD HOPE [1825
Hundred and Twenty-seven ; and that all Official Acts and
Documents of the several Public Offices of this Government,
(the Documents and Records of the Courts of Justice excepted)
be drawn up and promulgated in the English Language, from
and after the ist day of January, One Thousand Eight Hundred
and Twenty-five ; and that all Documents prepared and issued
from the Office of the Chief Secretary to tnis Government, be
prepared in the English Language, from and after the ist
day of January next, in the Year of our Lord, One Thousand
Eight Hundred and Twenty- three ; from and after which
periods, respectively, the English Language shall, in such
Judicial and Official Acts and Proceedings, be exclusively
adopted.
[Etc.]
Prods., etc., p. 558.
THE FIRST COUNCIL APPOINTED. [2 May 1825.]
No. 18. Proclamation. By His Excellency the Right Hon.
General Lord CHARLES HENRY SOMERSET, etc.
WHEREAS His Majesty has been graciously pleased, by In-
structions issued under His Signet and Sign Manual, with the
Advice of His Privy Council, bearing date at Carlton House,
the Ninth Day of February, 1825, to order and direct that a
Council shall be established in this Colony, to advise and assist
in the Administration of the Government thereof : And
whereas His Majesty has signified His Pleasure that the said
Council shall be composed as follows, viz. :
President, His Excellency the Governor or the Officer
administering the Civil Government of the Colony for the time
being.
Members, The Chief Justice; the Colonial Secretary; the
Officer next in Command, for the time being, to the Com-
mander of the Forces ; Lieutenant-Colonel Bell ; Walter
Bentinck, Esq., Auditor-General ; J. W. Stoll, Esq., Receiver-
General.
I do hereby make known and publish the same for the
Information of all the Inhabitants of this Colony, and of all
others whom it may concern.
GOD SAVE THE KING.
C. T. Gazette, 7 May 1825.
[Annexure.]
The Members of Council, appointed by His Majesty, . . .
having been summoned to attend at Government House on
1825] CENTRAL GOVERNMENT 25
Wednesday last, were there severally sworn in, by His Excel-
lency the Governor, under a Royal Salute. His Majesty’s
Commissioners of Inquiry, and many other Persons of distinc-
tion, were present.
C. T. Gazette, Saturday, 7 May 1825.
THE PAPER CURRENCY. [6 June 1825.]
G. R.
(Signed) C. H. SOMERSET.
No. 2. 1
No. 19. Ordinance. Of His Excellency the GOVERNOR IN
COUNCIL, for making British Silver Money a Legal Tender
in Discharge of all Debts due to Individuals, and to Gov-
ernment, at the Rate of One Shilling and Six Pence for
each Paper Rix-Dollar.
WHEREAS His Majesty’s Government has determined to
establish the British Currency as the Circulating Medium of
all the Colonial Possessions of the Crown, and has further been
pleased to Order and Direct that the British Silver Money shall
be a Legal Tender in this Colony, in discharge of all Debts due
to Individuals and to the Public, at the Rate of One Shilling
and Six Pence for each Paper Rix-Dollar, and so in proportion
for any greater or less Sum,
His Excellency the Governor in Council is pleased to Enact
and Declare, that from and after the date of this Proclamation
or Ordinance, British Silver Money shall be a Legal Tender in
this Colony, in discharge of all Debts due to Individuals and to
the Public, at the Rate of One Shilling and Six Pence for each
Paper Rix-Dollar, and so in proportion for any greater or less
sum,
His Excellency in Council has in consequence issued the
necessary Instructions, that a Table or Scale shall be Printed
forthwith, specifying the relative value of the Paper Rix-Dollar,
and of all the lesser proportions thereof, with British Money,
in order to regulate the Payment of the Established Govern-
ment Duties, Fees, etc. until such time as New Schedules of
Duties, etc. shall be made out.
The Governor in Council is further pleased to Order and
Direct, that from and after the 3ist of December next, all
Heads of Departments in this Colony, and all other Civil
Servants therein, shall render their Accounts in British Money ;
and that all Contracts entered into, or Purchases effected by the
1 The Cape ordinances were numbered consecutively from 1825 till 1833.
In 1834 and subsequent years there is a separate numbering for each year.
26 CAPE OF GOOD HOPE [1828
Civil Departments, for the Public Service, after that Date,
shall also be made in British Money.
And that no Person may plead ignorance thereof, this will
be published and affixed in the usual manner.
GOD SAVE THE KING.
Given at the Cape of Good Hope, this 6th Day of June 1825.
By Command of His Excellency the Governor,
(Signed) R. PLASKET, Secretary to Government.
By Order of the Council,
(Signed) P. G. BRINK, Act. Clerk of the Council.
P.R.O., C.O. 50/1.
EXTENSION OF HOTTENTOT LIBERTIES.
[17 July 1828.]
No. 50.
No. 20. Ordinance. For Improving the Condition of Hotten-
tots and other free Persons of colour at the Cape of Good
Hope, and for Consolidating and Amending the Laws
affecting those Persons.
WHEREAS certain Laws relating to and affecting the Hotten-
tots and other free persons of colour, lawfully residing in this
Colony, require to be consolidated, amended, or repealed,
and certain obnoxious usages and customs, which are in-
jurious to those persons, require to be declared illegal and
discontinued : Be it therefore enacted, by His Honour the
Lieutenant-Governor in Council, That from and after the
passing of this Ordinance, the Proclamations of the i6th day
of July 1787, Qth day of May 1803, Is t day of November
1809, 23rd day of April 1812, gth day of July 1819, and
23rd day of May 1823, shall be, and the same are hereby
repealed : [Provided that nothing herein contained shall
affect any contract or indenture entered into in virtue of the
said proclamations.]
II. And whereas by usage and custom of this Colony,
Hottentots and other free persons of colour have been sub-
jected to certain restraints as to their residence, mode of
life, and employment, and to certain compulsory services
to which others of His Majesty’s Subjects are not liable :
Be it therefore enacted, that from and after the passing of this
Ordinance, no Hottentot or other free Person of colour, lawfully
residing in this Colony, shall be subject to any compulsory
service to which other of His Majesty’s Subjects therein are
not liable, nor to any hindrance, molestation, fine, imprison-
ment or punishment of any kind whatsoever, under the pretence
that such Person has been guilty of vagrancy or any other
offence, unless after trial in due course of Law ; any custom
or usage to the contrary in any wise notwithstanding.
1828] CENTRAL GOVERNMENT 27
.III. And whereas doubts have arisen as to the competency
of Hottentots and other free Persons of colour to purchase
or possess Land in this Colony : Be it therefore enacted,
[all transfers of land made to or by such Hottentot or other
free person of colour are legal ; and it is lawful for such persons
born in the Colony or granted. deeds of burgh ership to possess
land.]
IV. And whereas it is expedient to protect ignorant and
unwary Hottentots and other free Persons of colour as afore-
said from the effects of improvident Contracts for Service :
Be it therefore enacted, [that it shall not be legal for any
person to hire by written agreement any Hottentot or free
person of colour for a longer period than one calendar month
at a time, except as hereinafter provided.]
V. [If any person and a Hottentot or free person of colour
desire to enter into an agreement for a longer period, such
contract shall be made in writing in the presence of a Clerk
or a Justice of the Peace, the period of such contract not to
exceed 12 calendar months. Liquor or tobacco given to a
servant, not to be regarded as wages. At the expiration
of the period, no goods or cattle of a servant shall be detained
except by sentence of a competent court.]
VI. [All such contracts to be made in triplicate, one copy
to be given to each of the contracting parties, and one copy
to be filed by the officer of justice.]
VII. [Procedure in cases of dispute as to whether wages
have or have not been paid.]
VIII. [Contract with wife of Hottentot or free person of
colour, to be executed by her ; contract with children under 18,
to be executed by parents. Provided always, that nothing
therein contained shall give the employer of such parents
any claim on the services of the said children or of any other
children, beyond the period contracted for. No person shall
have a claim to the service of any children merely on the ground
that those children have been fed and clothed by such person
or have been born during the period of their parents’ service
with such person. Procedure if this rule is disobeyed.]
IX. [On the death of a Hottentot or free person of colour,
the contract with his wife and children shall become void
within one month after such death.]
X. [A contracting Hottentot or free person of colour may
keep his family on the premises of his employer without being
forced to yield the service of children not contracted for.]
XI. [Any Hottentot or free person of colour being above
the age of 18 may form a contract, as above directed.]
XII. [Any Hottentot or free person of colour may apprentice
his or her children for 7 years or until the children shall reach
28 CAPE OF GOOD HOPE [1828
the age of 18 in the case of males and 16 in the case of females.
Such indentures to be executed before an officer of justice, as
directed above.]
XIII. [If a Hottentot or free person shall desert or leave
behind by death his or her child, the employer shall forthwith
notify an officer of justice, who shall arrange for the apprentice-
ship of such child.]
XIV. [Procedure in apprenticing children.]
XV. [Children of Hottentots, prize negroes and negresses,
and other free persons of colour, to be indentured only with
their parents’ consent.]
XVI. [Apprentices indentured in virtue of previous pro-
clamations may be removed by a competent court from the
service of their employers, if they shall have been ill-treated,
and may be returned to their parents.]
XVII. [Certain provisions applied also to foreigners enter-
ing the Colony from beyond the frontier. Deaths of such
foreigners, and births of children in their families, to be notified
by their employer.]
XVIII. [Field-cornets to make to civil commissioners half-
yearly returns of births and deaths of Hottentots and free
persons of colour.]
XIX. [Disputes between masters or mistresses and their
servants to be tried by Resident Magistrates and in minor
matters by Justices of the Peace.]
XX. [In such disputes Justices are empowered to summon
before them any masters or mistresses concerned and any other
witnesses.]
XXI. [Penalties that may be inflicted on servants by
Resident Magistrates and Justices of the Peace in cases of ill
behaviour.]
XXII. [In cases of ill usage by a master or mistress the
servant may be discharged by a Magistrate or Justice and
an order made for payment of wages. Servants may further
recover damages for injury in any competent court.]
XXIII. [If wages are not paid as ordered, distress may be
levied on the master or mistress neglecting to pay.]
XXIV. [If the servant is poor, summons and process may
be issued free of charge. If a complaint by a servant against
his master or mistress turns out ” to be vexatious and untrue,”
then such servant may be punished by imprisonment with
hard labour not exceeding 14 days.]
XXV. [Fines levied for breach of this ordinance shall be
given, one-half to the informer and one-half to the Colonial
Treasury.]
P.R.O., C.O. 52/4 (C. ofG. H. Govt. Gazette,
25 July 1828).
1830] CENTRAL GOVERNMENT 29
ROMAN CATHOLIC RELIEF. [13 Jan. 1830.]
No. 68.
No. 21. Ordinance. Of His EXCELLENCY the GOVERNOR in
COUNCIL, For the Relief of His Majesty’s Roman Catholic
Subjects in this Colony.
WHEREAS an Act was passed in the loth year of His Present
Majesty’s Reign, intituled An Act for the Relief of His Majesty’s
Roman Catholic Subjects ; and whereas it is expedient, that
such Enactments and Provisions of the said Act as are or may
be applicable to this Colony, shall be extended thereto, so
altered and modified as to meet the circumstances of the case :
Be It Therefore Enacted . . . that after the commencement
of this Ordinance, it shall and may be lawful for any of His
Majesty’s Subjects professing the Roman Catholic Religion,
to hold, exercise, and enjoy all Civil and Military Offices and
Places of Trust or Profit, under His Majesty ; His Heirs or
Successors ; and to exercise any other Franchise or Civil Right,
upon taking and subscribing, at the times and in the manner
hereinafter mentioned, the following Oath, instead of the
Oaths of Allegiance, Supremacy, and Abjuration, and instead
of such other Oath or Oaths, as are or may be now by Law
required to be taken for the purpose aforesaid, by any of His
Majesty’s Subjects professing the Roman Catholic Religion :
“I, A. B., do sincerely promise and swear, that I will be
faithful and bear true Allegiance to His Majesty, King George
the Fourth and will defend Him to the utmost of my power
against all Conspiracies and Attempts whatever which shall
be made against his Person, Crown or Dignity ; and I will
do my utmost endeavour to disclose and make known to His
Majesty, His Heirs and Successors, all Treasons and traitorous
Conspiracies, which may be formed against Him or Them ;
And I do faithfully promise to maintain, support and defend,
to the utmost of my power, the Succession of the Crown,
which Succession, by an Act intituled An Act for the further
Limitation of the Crown and better securing the Rights and
Liberties of the Subject, is and stands limited to the Princess
Sophia, Electress of Hanover, and the Heirs of Her Body,
being Protestants ; hereby utterly renouncing and abjuring
any Obedience or Allegiance unto any other Persons, claiming
or pretending a Right to the Crown of the Realm of England :
And I do further declare, that it is not an Article of my Faith,
and that I do renounce, reject and abjure the opinion, that
Princes excommunicated or deprived by the Pope, or any other
Authority of the See of Rome, may be deposed or murdered
by their Subjects, or by any Person whatsoever : And I do
30 CAPE OF GOOD HOPE [1830
declare, that I do not believe that the Pope of Rome, or any
other Foreign Prince, Prelate, Person, State or Potentate,
hath or ought to have any Temporal or Civil Jurisdiction,
Power, Superiority or Pre-eminence, directly or indirectly,
within the Realm of England. I do swear, that I will defend,
to the utmost of my power, the Settlement of Property within
the Realm of England, as established by the Laws : And I
do hereby disclaim, disavow, and solemnly abjure any In-
tention to subvert the present Church Establishment, as settled
by Law within the Realm of England : And I do solemnly
swear, that I never will exercise any Privilege to which 1 am
or may become entitled, to disturb or weaken the Protestant
Religion, or Protestant Government in the United Kingdom,
or any of the Territories thereunto belonging ; And I do
solemnly, in the Presence of God, profess, testify, and declare,
that I do make this Declaration, and every part thereof, in
the plain and ordinary Sense of the Words of this Oath, without
any Evasion, Equivocation, or mental Reservation whatsoever.
So Help Me God. . . .”
VII. And it is further enacted, That if any Jesuit, or
Member of any such Religious Order, Community, or Society,
as aforesaid, shall, after the commencement of this Ordinance,
come into this Colony, he shall be deemed and taken to be
guilty of an Offence ; and being thereof lawfully convicted,
shall be sentenced and ordered to be banished from the Colony
for the term of his natural Life.
[Etc.] P.R.O., C.O. 50/1.
DEBATE IN THE HOUSE OF COMMONS.
[May 24, 1830.]
No. 22. PETITION FOR REPRESENTATIVE GOVERNMENT.
Lord Milton rose to present a Petition from British Settlers
and others resident at the Cape of Good Hope, praying for a
Representative Government. After calling the attention of
the House to the importance of the question which the Petition
raised, the respectability of the parties petitioning, and the
obligation there lay upon the Legislature to protect the in-
habitants of that colony from the effects of arbitrary power,
he proceeded to say, that he considered the arbitrary imposi-
tion of taxes as one of the most objectionable exertions of
arbitrary power. The Petition which he held in his hand was
from British Settlers, who desired to carry with them to the
colonies where they settled, the privileges which were the
boast of their native country ; and which they were accustomed
to enjoy before they left it. In order to convey to the House
1830] CENTRAL GOVERNMENT 31
a just view of the feelings of these colonists, he would call
attention to some of the sentiments expressed by the petitioners.
They expressed themselves deeply grateful for the benefits
already conferred upon them : for example, the Trial by
Jury, and other privileges enjoyed by Britons they thought
they should best show their just appreciation of those benefits
by seeking to attain the full blessings of the representative
system an object for which every class in that colony were
equally anxious. In these sentiments he fully concurred, the
more especially when he recollected how many British colonies
of less importance already enjoyed the benefits of a repre-
sentative system. When the inhabitants of the Cape of Good
Hope turned their attention to the other side of the Atlantic,
they perceived numerous colonies enjoying a representative
system perfect in all its parts; it was, therefore, exceedingly
natural that they should desire to possess that which others in
a similar situation had long enjoyed. He did not call upon the
House to institute any proceeding immediately for the purpose
of complying with the prayer of the petitioners ; but he
hoped that it would, at some time, and not very distant time,
take it into serious consideration ; and that when the time
came, whether soon or late, his Majesty’s Government would
do all in its power to prepare the inhabitants of that colony for
these privileges which they so earnestly desired to obtain,
and which it was as much for their advantage, as for that of
the mother country, should be conferred upon them. It was
indisputable that much misgovernment had prevailed at the
Cape ; whether that was owing altogether to the vices of our
own colonial system, or to the institutions of the Dutch, who
originally settled there, and their peculiar customs and usages,-
he would not undertake to say ; or whether those evils might
not arise from both causes, it was not for him to determine.
Of this, however, he was perfectly assured, that the only
cure was a representative government. There was one re-
flection, at all events, which naturally presented itself on an
occasion like the present, and it was of a very gratifying
character namely, that English settlers, wherever they went,
carried with them a love of English institutions.
Sir George Murray felt, that he should be wanting in respect
to the noble Lord, and in that due attention to the colonists
which he wished at all times to manifest towards them, if he
did not state a few of the considerations which rendered the
establishment of a representative system of government at
the Cape of Good Hope extremely inexpedient. The Petition,
the House would perceive, came from only a portion of the
Colony, and from that portion, too, in which slavery did not
exist and that made a material difference indeed there was
32 CAPE OF GOOD HOPE [1830
no country where slavery existed in which the expediency of
introducing a representative legislature might not most
seriously be doubted. The state of that colony, with reference
to population and civilization, ought also to be taken
into account. Its extent was nearly equal to that of the
United Kingdom about 600 miles long and 300 wide. The
colonists amounted to only 119,966 souls, of whom the slaves
amounted to 31,000, the free blacks to 35,000 and the whites
to 53,996. A population so scattered, and so circumstanced,
could but poorly exercise the privileges and powers of repre-
sentation. Again, the whites were divided into Dutch and
British, and if they had a Legislature, that body would be
divided into two parties and thus one of the most important
benefits of representation would be counteracted. Then the
House, he hoped, would not lose sight of the difficulty which
Parliament had always experienced in its attempts to ameliorate
the condition of the slaves wherever a colonial legislature
existed, and until something satisfactory could be done for
the slaves at the Cape of Good Hope, he should be unwilling
to see a representative government established there. Some-
thing had been said in disparagement of the successive govern-
ments at the Cape of Good Hope ; but he must take leave to
say, that the Hottentots would not have been put upon the
same footing with the colonists if the Cape had up to this
time remained in the hands of the Dutch. Another objection
to the introduction of the representative system was, that
were it once established, all the power would speedily centre
in the hands of those who resided in and near Cape Town, for
those who resided at a distance would never think public
affairs worth such a journey. Finally, he assured the House,
that if he could persuade himself that a representative govern-
ment would be at all likely to promote the true interests of
the settlers at the Cape, he should be amongst the first to
propose and recommend it; but he felt assured, that when
hon. Members weighed the reasons which he had urged, they
would see the expediency of not acceding to the prayer of the
present Petition.
Mr. Wilmot Horton admitted, that the colonists of the Cape
were not at the present moment prepared for representation,
but he looked forward to the time when they would be capable
of appreciating and exercising that privilege, and every other
to which those who were accustomed to live under the British
Constitution were accustomed. If the noble Lord were not
[now ?] to follow up the Petition by a motion to carry its prayer
into effect he should oppose it, but he should be most happy to
co-operate in the measures necessary to render the colonists
fit to enjoy the advantages which they sought.
1830] CENTRAL GOVERNMENT 33
Mr. Manyat said, that the statements in the Petition pre-
sented by the noble Lord from the Cape, were equally applic-
able to all the colonies under the care of the Crown ; a similar
vicious system of government existed in all of them ; and it
was not possible to remove the grievances complained of but
by granting the prayer of the Petition, and thus giving the
colonists some control over their taxation and expenditure.
These colonies were peculiarly situated. They had no inde-
pendent local legislatures of their own, nor were they repre-
sented in the Imperial Parliament ; but were under the im-
mediate patronage and control of the Crown, by whom the taxes
were levied and revenues appropriated. They presented,
indeed, a practical example of the effects of taxation without
representation. The colonists themselves had no control
whatever over their expenditure, and though the produce of the
taxes raised in the colony could not by law be appropriated to
any but colonial purposes, yet that wise provision was evaded
by the creation of new and useless offices, with high salaries
attached, the payment of which was charged upon the colonial
revenues. The revenues of the Crown colonies, he considered
himself justified in asserting, were ample to provide for every
necessary expense ; but insufficient to provide also for the
payment of extravagant salaries to governors, judges, and
custom-house officers, which absorbed the whole amount.
The current and necessary expenses had been, therefore, left to
be provided for by votes of that House ; and hence the com-
plaints, that these colonies did not pay their own expenses.
He contended that these colonies actually did pay their own
proper and necessary expenses ; but they could not pay in
addition those heavy salaries, unnecessarily charged upon
them. They were already taxed beyond all reasonable limits,
not for their own wants, but for the benefit of those who were
provided for at their expense. The colonial statements laid
before the Finance Committee afforded a striking comparison
of the relative taxation and expenditure of the two classes of
colonists, viz. : those having independent local legislatures,
and those under the paternal care of the Crown. Among the
latter class the colony of Trinidad figured as a solitary example
of an extravagant expenditure, sustained by enormous taxa-
tion. By the means of heavy imposts, levied exclusively upon
the planter, that colony had hitherto not only paid all its ex-
penses, but had saved from its surplus-revenue a sum of 6o,ooo/.
accumulated in the colonial treasury. The local authorities,
however, (by whom he meant the placemen and pensioners of
Trinidad, who are not planters, and did not personally feel the
weight of taxation), were then projecting the erection of un-
necessary public buildings and colonial palaces, which would
3
34 CAPE OF GOOD HOPE [1830
not only absorb this sum, but would entail for years to come a
continuance of the present burthens upon the colony. The
local authorities (who might be termed, to borrow an hon.
Baronet’s simile, the birds of prey who fed upon the vitals of
the colony) were, he was informed, by means of intrigue and
clamour, embarrassing and distracting the good intentions of
the new Governor, trusting thereby to throw its affairs into
such confusion as to oblige him to give up in despair the task
of cleansing that Augean stable. The subject, however, he had
reason to believe, was now under the consideration of the
Secretary of State for the Colonies, who (he was happy to take
this opportunity of stating) had, in every communication he
had had the honour to hold with him upon this most important
subject, evinced an earnest and anxious desire to investigate
and correct the abuses of our colonial system. The task was
Herculean, but he trusted, as there existed the desire, so the
means of reformation would not be wanting. He should state,
that during the short period in which the right hon. the member
for Liverpool held the seals of the Colonial office, a ray of light
beamed upon this unfortunate colony. The energetic measures
of reformation which he had time only to commence, and
which gave a promise of brighter days, ceased however with
his removal from office. That event was much regretted by
the colonists, who began to congratulate themselves in being
under the control of a Minister who was both willing and able
to carry his beneficial plans into effect. Should, however, the
just expectations of the colonists be disappointed, and another
season be suffered to elapse without any alleviation of their
sufferings, he should feel it his duty, early in the ensuing
Session, to bring their case under the consideration of the
House.
Mr. W. Smith expressed his regret that the right hon.
Secretary had not stated out of what materials a representative
Government could be formed.
Mr. Labouchere complained of a practice which had existed
for a long time in the Colonial Department, of sending out men
of broken fortunes to occupy situations in the colonies, by
which many serious evils arose to the colonies themselves.
He thought that if the names of all persons appointed to colonial
situations were inserted in the Gazette for some time before
they went out, the evil might be avoided, because a means would
thus be obtained of coming at a correct knowledge of the
character of the parties, and of their fitness for the appoint-
ments. He did not mention this as arising out of any appoint-
ments which had been made since the right hon. and gallant
officer came to the head of the Colonial Department, for, to do
him justice, he believed that since then no persons had been
1830] CENTRAL GOVERNMENT 35
sent out who were not properly qualified for the situations they
had to fill ; but the subject was one to which he thought it
necessary to call the right hon. and gallant officer’s attention.
Mr. Hume did not think, that the right hon. and gallant
officer had given very satisfactory reasons why the prayer of
the Petition presented by the noble Lord should not be com-
plied with. The complaint of the petitioners was, that British
subjects, who had been accustomed to live under the free
institutions of their own country, should, when they went out
to settle in a colony, be at once brought under the dominion of
arbitrary power. The nature of that government exposed it to
great abuses, and the result was, that wherever it existed the
improvement of the colony was greatly retarded. This had
been as strongly illustrated in the Cape of Good Hope as in any
colony he could name. The hon. and gallant officer had said,
that he did not think this colony would be fit for a representa-
tive system of government whilst slavery existed ; but he
begged to ask him, when did he expect that slavery would
cease there ? When would that portion of the inhabitants
be free ? When would they be fit for a representative govern-
ment ? The right hon. Gentleman had, he thought, removed
the period of freedom to an indefinite time. The right hon.
and gallant officer’s next objection was, he thought, as little
satisfactory as the other, namely, that of the distance to
which the population was scattered. Now in the Canadas it
was well known the inhabitants were scattered over a vast
extent of country, and that was not found to be a serious
objection to the establishment of a representative government.
When the Floridas were ceded to the United States, they were
at once incorporated into the national union, with a representa-
tive government, the distance at which many of the inhabit-
ants were scattered from one another being no obstacle,
because arrangements were easily made for meeting in the
most central part of the state. It was at present a just cause
of complaint, that England was taxed to pay for the expendi-
ture of colonies which would willingly support themselves, if
allowed to do so under a representative system ; but instead
of this, large sums were annually drawn from the pockets of
the people here to meet expenses which we ought not to be
called upon to pay. Give the colonies a representative system,
and they would willingly pay their own expenses ; though
they would not pay such large salaries to governors and other
officers as were now paid for them by the people of England.
What was the situation of this very colony of the Cape of Good
Hope ? It had been for years left under a tyrannical govern-
ment : he did not allude to any one individual in particular, but
the nature of the government was arbitrary, and it could not
36 CAPE OF GOOD HOPE [1830
be denied that it had been grossly abused. But what had
been the effect of the public opinion, to which the right hon.
and gallant officer had alluded ? Public opinion was, no doubt,
very powerful here, through the Press, which sent forth what
passed in that House to the world. Without such publicity, the
House would be a nuisance to the country. As it was, he did
not say it was of much benefit, but without the Press it would
be a nuisance a body which would have only to register the
acts of Government ; but even here, with all the advantages
of publicity, how far had that gone to remove the evils which
were complained of with respect to the Cape of Good Hope,
during so many years in which Lord Charles Somerset was
governor, and while Lord Bathurst was at the head of the
Colonial Department ? It was of little or no use in correcting
the evil. He must say, that a mere reliance upon the ex-
pression of public opinion would not be a sufficient guarantee
to the colonists against the evils of an arbitrary form of govern-
ment, or supply the check which a representative system would
have on the executive power. It was, he must also contend,
a libel upon Englishmen to say, that they were rendered, by a
difference of climate, unfit for a free constitution, or unworthy
of enjoying it. He must again express his regret at hearing
that there was to be no representative system in the colony
until slavery was removed, and the population so condensed
as that their representatives might come together without
much inconvenience, which was putting off freedom for
ever.
Dr. Lushington concurred in the general principle, that a
representative form of government would be the best for the
colonies, where circumstances permitted ; but at the same
time he fully agreed with the right hon. and gallant Secretary,
that that system could not at present be adopted for the Cape
of Good Hope without great danger to the best interests of
that colony. He admitted that the government should be for
the benefit of the many, and not for the few ; but he did not
think that that end would be obtained by a representative form
of government at the Cape. If he could believe that it would
have the effect of producing better regulations with respect
to slaves that it would improve the condition of the Hottentot
population he would’ most readily consent to it ; but until
he saw some disposition evinced by the colonies which had
representative governments to improve the condition of the
slaves, until he saw in them a disposition in the strong to
protect the weak, he should object to any extension of a
system, particularly where slave population existed, which
he had reason to believe would not produce those effects.
He thought therefore that it would be better to leave those
1830] CENTRAL GOVERNMENT 37
colonies which had not representative systems in the hands of
Government, which was responsible for the measures which it
adopted, rather than give them to those over whom we could
have no efficient control. He was glad of that opportunity
of expressing his gratitude to the right hon. and gallant officer
for the measures which he had adopted for improving the
condition of the Hottentot population. He had opportunities
of knowing the situation in which that race were at the Cape,
and also of knowing the effects which had been produced by
the measures to which he alluded, and how greatly they had
relieved that race from the gross oppression under which they
had so long suffered. He would not, at the present moment, go
into details upon the nature of that oppression, but were he to
describe the miserable condition in which the Hottentot popula-
tion were kept, he was sure the House could not hear it without
indignation and abhorrence. He would repeat, then, that as
long as he saw no measures adopted to put an end to slavery
as long as he saw an unwillingness in colonies with representa-
tive governments to improve the condition of their slave
population so long should he feel it his duty to oppose any
extension of the representative system in our colonies, and
the removal of the powers of government from the hands of
those who were responsible to Parliament for its exercise.
Sir G. Murray, in explanation, begged to say, that though
he had the good fortune of having had the opportunity of
carrying the measures for improving the condition of the
Hottentots, to which the hon. and learned Member had alluded,
into full operation, yet it would not be doing justice to others
if he did not state that those measures had been commenced
under the government of Lord Caledon, and were afterwards
acted upon to a considerable extent by General Bourke.
Mr. Robinson was decidedly of opinion, that free institutions
ought to be given the settlers at the Cape, and to all other
colonists, as soon as they were fit to receive them, and capable
of appreciating their value. He by no means understood
the noble Lord as recommending the immediate adoption of
a measure such as the petitioners prayed for all he urged
upon the consideration of the House was, the necessity of
speedily turning its attention to the subject, and taking such
preliminary steps as might forward the object in view. There
could be no doubt that flagrant abuses had existed in that
colon)’-, but they were not chargeable upon the present govern-
ment which was not to blame. There had existed a most
scandalous carelessness with respect to colonial functionaries.
Not long since a person was sent out as Chief-Justice of New-
foundland who contrived to swindle the people of that colony
out of a very large sum ; and an Attorney-General was sent
38 CAPE OF GOOD HOPE [1834
to the same place, who, though a person of better character,
was totally unfit for the office.
The Petition read.
Lord Milton, in moving that it be printed, said he was sorry
to learn that an improved system of government at the Cape
was to be postponed until slavery should be abolished.
Sir George Murray wished the House to analyse the com-
position of society at the Cape. The number of females was
55,000, males 64,000 ; from those deduct the Slaves, the Dutch,
the Hottentots, and the persons under age ; and the number
of British colonists capable of exercising the elective franchise
would be found exceedingly small.
Mr. Hume observed, that persons of Dutch descent, resident
at the Cape, were as much British subjects as any men could
be born in any colony.
Petition to be printed.
Hans. Part. Debates, N.S., vol. 24, p. 1005.
THE EMANCIPATION OF THE SLAVES.
3 & 4 W. iv. cap. 73.
No. 23. An Act for the Abolition of Slavery throughout the
British Colonies ; for promoting the Industry of the
manumitted Slaves ; and for compensating the Persons
hitherto entitled to the Services of such Slaves.
[On 28th August 1833 the bill for setting free the slaves in the
British dominions received the royal assent. Slavery was to cease
at a certain date, in the Cape Colony the ist of December 1834 was the
date fixed. Slaves over six years of age had to pass through a transi-
tion stage, a period of apprenticeship. The British Parliament voted
a sum of 20,000,000 to compensate the owners for the loss of their
slaves throughout the Empire. There were 39,021 slaves in the Colony
when the Act came into force, for which the owners were offered
^3,041,290, 6s. od. A number of special Justices of the Peace were
sent out from England and others were appointed in the country to
assist in carrying out the Act. Vide C. of G. Hope Ord., No. i of 1835.]
APPROPRIATION ORDINANCE FOR 1835. [3 Dec. 1834.]
No. 5, 1834.
No. 24. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL thereof.
For applying a Sum not exceeding 40,590, is. 8|d., to the
Contingent Services of the Year 1835.
WHEREAS the Contingent Expenditure required for the
Service of the Year 1835, is estimated to amount to the Sum
of 40,590, is. 8|d. : Be it therefore enacted by the Governor
1836] CENTRAL GOVERNMENT 39
of the Cape of Good Hope, with the advice and consent of
the Legislative Council thereof, that a Sum not exceeding
40,590, is. 8|d. be charged upon the Revenue for the Con-
tingent Services of the Year 1835, and applied in the manner
set forth in the Schedule hereunto annexed. [Schedule follows
here.]
P.R.O., C.O. 50/1.
THE EASTERN DISTRICTS GOVERNMENT.
[19 Feb. 1836.]
No. 25. Grant for the Erection of the Eastern Districts of the
Cape of Good Hope into a Distinct Government.
WILLIAM the Fourth by the Grace of God of the United
Kingdom of Great Britain and Ireland King, Defender
of the Faith, To all to whom these Presents shall come,
Greeting.
WHEREAS by Letters Patent under the Great Seal of Our
United Kingdom of Great Britain and Ireland, bearing date
at Westminster the twenty-third day of October in the fourth
year of Our Reign We did constitute and appoint Our trusty
and well-beloved Sir Benjamin D’Urban Knight Commander
of the Most Honourable Military Order of the Bath, Major-
General of Our Forces, to be Our Governor and Commander-in-
Chief in and over Our Settlement of the Cape of Good Hope in
South Africa with its Territories and Dependencies as also of
the Castle and all Forts and Garrisons erected or established
within the said Settlement, Territories and Dependencies for
and during Our Pleasure ;
And Whereas We have deemed it expedient that the Eastern
Districts of Our said Settlement of the Cape of Good Hope
should be erected for certain purposes into a distinct and
separate Government to be administered in manner herein-
after mentioned ;
Now therefore We do hereby declare Our Will to be and
by these Presents do constitute and appoint that the Districts
of Albany, Somerset, Uitenhage and Graaff Reynet within
the said Settlement shall henceforth constitute and become a
distinct and separate Government to be administered in Our
name and on Our behalf by a Lieutenant-Governor to be
by Us for that purpose appointed by Warrant under Our
Royal Sign Manual and Signet, to be countersigned by one of
Our Principal Secretaries of State and in the event of the death
or absence or incapacity of any such Lieutenant-Governor as
aforesaid then and in every such case Our Will and Pleasure
is that the said Office shall be administered provisionally
40 CAPE OF GOOD HOPE [1836
by some person to be for that purpose appointed by the
Governor and Commander-in-Chief or by the Officer for the
time being administering the Government of the said Settle-
ment of the Cape of Good Hope by a Commission to be for
that purpose issued under the Public Seal of the said Settle-
ment, which provisional appointment shall continue in force
until Our Pleasure shall be known and no longer ;
And We do hereby give and grant to such Lieutenant-
Governor for the time being, or to such person PS may be
provisionally appointed to administer the Government of the
said Districts of Albany, Somerset, Uitenhage and Graaff
Reynet as aforesaid, all such powers and authorities within
such Districts as by the said recited Letters Patent of the
twenty-third day of October in the fourth year of Our Reign
are granted to and vested in the said Sir Benjamin D’Urban
as Governor and Commander-in-Chief in and over the said
Settlement of the Cape of Good Hope; Subject nevertheless
to all such Rules and Regulations as shall be made and estab-
lished by such Instructions as hereinafter are mentioned
for the practicable and convenient exercise of such power and
authority ;
Provided, nevertheless, and We do hereby declare Our
Will and Pleasure to be that it shall be lawful for the said Sir
Benjamin D’Urban or for the Officer for the time being admin-
istering the Government of the said Settlement from time to
time as occasion shall require and as he shall be directed by
such Instructions as aforesaid to repair to the said Eastern
Districts and to assume the Government thereof in person ;
and during such his residence therein We do further declare Our
Pleasure to be that all and every the powers and authorities
in and by the said recited Letters Patent in him vested in and
over the said Eastern Districts shall revive, and that during
the same period or periods all and every the powers and
authorities by those Presents vested in such Lieutenant-
Governor shall be and are hereby suspended ;
Provided also, and We do further declare Our Will and
Pleasure to be that nothing herein contained shall extend
or be construed to extend to take away, abridge or alter all
or any of the powers and authorities in and by the said recited
Letters Patent given to the said Sir Benjamin D’Urban to
make, enact and ordain Laws and Ordinance for the Order,
Peace and good Government of Our said Settlement of the
Cape of Good Hope and its Dependencies with the advice and
consent of the Legislative Council thereof, but that he, the
said Sir Benjamin D’Urban or the Officer for the time being
administering the Government of the said Settlement, shall
have, hold, exercise and enjoy such power and authority as
1836] CENTRAL GOVERNMENT 41
aforesaid of making such Laws and Ordinances as aforesaid
with the advice and consent of the said Legislative Council
for any part of the said Settlement, the said districts of Albany,
Somerset, Uitenhage [and] Graaff Reynet included, as fully
and effectually as if these Presents had not been made ;
Provided also, and We hereby declare Our Will and Pleasure
to be that nothing herein contained shall extend or be con-
strued to extend to take away, alter or abridge the jurisdiction,
powers or authorities now by Law vested in the Supreme
Court of the Colony of the Cape of Good Hope or in the Judges
of the said Court or in the Courts of Circuit within the said
Settlement or in any other Courts or Court of Justice therein
or in the Judges of any such Courts or Court, but that all
such Jurisdictions, powers and authorities shall continue
to be exercised by such Courts and Judges respectively in
as full and ample a manner as if these Presents had not been
made.
And Our Will and Pleasure further is that in the execution
of the powers hereby vested in the said Lieutenant-Governor
for the time being or such person so provisionally appointed
as aforesaid, he do in all respects conform to and obey all
such Orders and instructions as shall for that purpose be
addressed to him by Us in Our Privy Council or under Our
Signet and Sign Manual or through one of Our Principal
Secretaries of State ;
And We do hereby revoke and annul so much and such
. parts of the said recited Letters Patent of the twenty- third day
of October in the Fourth year of Our reign as may in anywise
interfere with or prevent the execution of these Presents or
any part thereof ;
And We do hereby declare Our Will to be that for the pur-
poses and within the meaning of these Presents the District
of Beaufort shall not be considered as forming part of or as
comprized within the District of Graaff Reynet.
In Witness, etc. Witness, etc. the nineteenth day of Feb-
ruary [1836].
By Writ of Privy Seal.
P.R.O., Patent Roll, 6 W. iv. Part 12 (No. 16).
No. 26. PETITION FOR REPRESENTATIVE
GOVERNMENT.
[The following is one of several petitions of its kind sent to England
from time to time. The Governor recommended that the prayer should
be granted, but Lord Stanley in his reply, though not meeting the
petition by an irrevocable opposition, raised so many of the old
42 CAPE OF GOOD HOPE [1841
difficulties, adding one or two new ones of his own, that the matter
was dropped for a while.]
[Dispatched to England, 20 Dec. 1841.]
To the Queen s Most Excellent Majesty in Council.
THE HUMBLE PETITION OF THE INHABITANTS OF CAPE
TOWN AND ITS VICINITY.
Respectfully showeth, That the inhabitants of this colony,
being descended from the people of Holland, or British born
subjects who have more recently settled here since the Cape
became an integral portion of the British Empire, entertain
an hereditary sentiment of veneration for the free institutions
of the distinguished nations from which they sprang.
That the inhabitants of this colony are about 180,000 in
number ; that all of them are free and equal in the eye of
the law ; and that the whole of the landed proprietors and
capitalists reside on their estates or within the colony.
That the soil, climate and geographical position of this
colony are so favourable to agriculture and commerce, that
the unlimited extension of both may be confidently looked for,
under the industry of a people enjoying political liberty, and
permitted to direct the resources of the community in accord-
ance with the nature of the place, and the character and
habits of the population, which can only be understood and
appreciated by the people themselves.
That since the colony became a dependency of the British
Crown, the government of the Colony has been confided to the
hands of a single individual appointed by the Crown, who has
more recently been assisted, first by an Executive, and subse-
quently by an Executive and Legislative Council, all the
members of both being appointed by the Crown, all the mem-
bers of the first, and a majority of the members of the second,
also holding offices of trust and emolument under the Governor.
That this form of government appears to your Majesty’s
petitioners inadequate, under any administration, however
able and well disposed, to satisfy the social wants and desires
of the people, or to accommodate the requisite institutions of
society to the accumulating property, and increasing intelli-
gence and enterprise of the community.
That the inhabitants of this colony have long been deeply
impressed with this conviction, and are becoming every day
more uneasy, under a system of government in which they
have no share ; although all that they possess, or expect for
themselves or their posterity, is most materially affected by
its proceedings.
That at the present period, they think it unnecessary to
offer any arguments to your Majesty in favour of that form
of government of which your Majesty is the head, or to point
1845] CENTRAL GOVERNMENT 43
out the inevitable disadvantages under which a government
must labour which possesses no constitutional means of ascer-
taining public opinion, or to show that a people thus excluded
from all influence on the action of government, must advance
slowly, if at all, in the career of improvement. These facts
have been decided by the concurrent testimony of all ages.
They think it enough to represent to your Majesty, that in
numbers, wealth and intelligence, they consider this com-
munity fully prepared to take their place in the rank of free
countries, being assured that your Majesty only waited such
an assurance, before confiding to them their due weight in the
legislature of their own country.
Your Majesty’s petitioners therefore humbly pray, that
the government of this colony may as speedily as possible be
assimilated in principle and form to that of Great Britain, and
that it may be composed of a Governor appointed by the
Crown, an Executive Council also appointed by the Crown,
and a Legislative Assembly, composed of representatives freely
elected by the people.
And your Majesty’s petitioners will ever pray.
(Signed) H. WATSON.
J. B. EBDEN.
Aitd 614 others.
Par I. Papers, C.O. 400, p. 2.
NOMINATION OF MINISTERS OF RELIGION BY
THE CROWN, [i Dec. 1845.]
No. 16, 1845.
No. 27. Ordinance. Enacted by His Excellency the GOVERNOR
OF THE CAPE OF GOOD HOPE, with the advice and consent
of the LEGISLATIVE COUNCIL thereof.
To amend the Ordinance No. 7, 1843, entitled an ” Ordin-
ance for repealing the Church Regulations of the 25th July
1804, and enacting others in their room and stead.”
WHEREAS by the 5th section of the Ordinance No. 7, 1843,
entituled ” Ordinance for repealing the Church Regulations
of the 25th July 1804, an< i enacting others in their room and
stead,” it is provided that the governor of this colony for
the time being should have the right of filling up vacancies in
the office of minister in congregations belonging to the Dutch
Reformed Church in South Africa, of which congregations the
minister for the time being receives a salary from the colonial
government : and whereas it is expedient that the same right
should be vested in Her Most Gracious Majesty the Queen,
her heirs, and successors : Be it therefore enacted by the
governor of the Cape of Good Hope, with the advice and con-
44 CAPE OF GOOD HOPE [1848
sent of the Legislative Council thereof, that the 5th section
of the said ordinance shall be repealed, and the same is hereby
repealed accordingly.
2. And be it enacted, that in every case in which a vacancy
shall occur in the office of minister of any congregation belong-
ing to the said Dutch Reformed Church, of which congregation
the minister for the time being receives a salary from the
colonial government, her Majesty the Queen, her heirs, and suc-
cessors shall have and possess, and shall exercise, in whatever
manner she or they shall deem the best for the vacant con-
gregation, the sole and unrestricted right of filling up such
vacancy by the appointment of whatever individual she or
they may select from amongst the number of such ministers
as shall, by the rules and regulations of the said church
for the time being, be competent to be appointed to supply
vacancies in the ministry thereof. 1
3. And be it enacted, that this Ordinance shall commence
and take effect from and after the date of promulgation
thereof. P.R.O., C.O. 50/2.
PUBLIC MEETINGS. [12 Dec. 1848.]
No. 15, 1848.
No. 28. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the LEGIS-
LATIVE COUNCIL thereof. For amending the Law rela-
tive to Public Meetings.
WHEREAS by a Proclamation of His Excellency the then
Governor, Lord Charles Henry Somerset, bearing date the
24th of May 1822, the said Governor saw fit to declare and
enact that Public Meetings, convened without the sanction
and authority of the Governor for the time being, or when
such sanction or authority cannot be conveniently obtained
without the sanction and authority of the Chief Local Magis-
trate, for the discussion of Public Measures or Political Sub-
jects, were, and should be deemed to be, contrary to Law :
And whereas there is nothing in the state and condition of this
Colony which requires or justifies the continuance of a re-
straint, so inconvenient and invidious, upon the libertv of
speech and freedom of discussion which Her Majesty vouch-
safes to regard as the birth-right of Her Subjects : And whereas
it is expedient to remove the said restraint : Be it therefore
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council thereof, that
1 Act No. 5 of 1875 put an end to all government grants towards ministers’
salaries.
1852] CENTRAL GOVERNMENT 45
the Proclamation aforesaid of the 24th May 1822, and every
other law heretofore in force in this colony, whereby Public
Meetings for the discussion of Public Measures and Political
Subjects are declared or constituted illegal, unless held with
or under the previous sanction and authority of the Governor
of the Colony for the time being, or of some other Functionary
or Magistrate, shall be repealed, and the same are hereby
repealed accordingly.
2. And be it enacted, that this Ordinance shall commence
and take effect from and after the promulgation thereof.
GOD SAVE THE QUEEN.
P.R.O., C.O. 50/2.
No. 29. THE CAPE OF GOOD HOPE CONSTITUTION
ORDINANCE. [3 April 1852.]
[As amended and confirmed by Order in Council, dated n
March 1853. Declared to take effect from i July 1853.]
i. WHEREAS Her Majesty did by certain Letters Patent,
bearing date at Westminster, on the 23d day of May, in the
thirteenth year of her reign, amongst other things, declare
and ordain that there should be within the settlement of the
Cape of Good Hope a Parliament, to consist of the Governor,
a Legislative Council, and House of Assembly ; and did
declare, ordain, and appoint that the said Legislative Council
(subject to the exception herein-after contained) and the said
House of Assembly should consist and be constituted of such
persons as should be elected in such manner and form, and for
such terms and under such regulations, as should for that
purpose be prescribed in any Ordinance or Ordinances to be
for that purpose passed by the Governor of the said settlement,
with the advice and consent of the then present Legislative
Council thereof ; provided, nevertheless, that it should be
prescribed in and by such Ordinance or Ordinances that the
Chief Justice of the Colony of the Cape of Good Hope for the
time being should be, by virtue of his office, a member of the
said Legislative Council, and should preside over the same ;
provided also, that every such Ordinance should contain a
clause suspending the operation of the same until it should
have been confirmed by Her Majesty, with the advice of her
Privy Council ; and Her said Majesty did thereby declare her
will and pleasure that the said Governor, with the advice and
consent of the Legislative Council and House of Assembly
so to be constituted and elected in manner and form aforesaid,
should have authority to make laws for the peace, welfare,
and good government of the said settlement ; and that in
46 CAPE OF GOOD HOPE [1852
the said Ordinance or Ordinances for constituting the said
Legislative Council and House of Assembly, provisions should
be made for enabling and empowering the said Governor to
transmit to the said Legislative Council or House of Assembly,
for their consideration, the drafts of any laws which it might
appear to him desirable to introduce, and also any amendments
for the consideration of the said Legislative Council and House
of Assembly (if he should so think fit) in any bill presented to
him for Her said Majesty’s assent, and for prescribing the
manner in which such drafts of laws and amendments should
be dealt with by the said Legislative Council and House of
Assembly, and for determining the regulations under which
bills appropriating sums of money to the public service might
be introduced in such Assembly, amended, and finally enacted ;
and for empowering the said Governor, from time to time, in
the exercise of his discretion, to dissolve such Legislative
Council and House of Assembly together, or such House of
Assembly separately : And whereas Her said Majesty did
thereby reserve to herself full power and authority, by an
Order or Orders to be made by her in her Privy Council, to
alter or amend such Ordinance or Ordinances as should be so
passed as aforesaid, for the purpose of constituting and estab-
lishing the said Council and Assembly, and for such other
purposes as are therein-before specified : Be it therefore
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council thereof, that the
Legislative Council and House of Assembly for the said Colony
shall be severally constituted and composed as is herein-after
provided.
2. And be it enacted, That the said Legislative Council
shall consist of the Chief Justice for the time being of the said
Colony, and of fifteen elective members ; and the said Chief
Justice (when present) shall preside in the said Council :
Provided that it shall be at all times lawful for the said Chief
Justice (notwithstanding his so acting as President) to take
part in any debate or discussion which may arise in the Legis-
lative Council.
3. And be it enacted, That five members of the said Council
shall form a quorum for the despatch of business ; and all
questions arising in the said Council shall be decided by a
majority of votes of the members present other than the
presiding member ; but when the votes shall be equal the
presiding member shall have the casting vote.
4. And be it enacted, That of the fifteen elective members
of the said Council, eight shall be elected by the majority of
the votes taken, as herein-after mentioned, of the voters
in and for the following electoral divisions of the said Colony
1852] CENTRAL GOVERNMENT 47
collectively ; that is to say, the divisions of the Cape (exclusive
of the city of Cape Town), Stellenbosch, Caledon, Swellendam,
George, Beaufort, the Paarl, Worcester, Malmesbury, Clan-
william, and the city of Cape Town (including the muni-
cipality of Green Point), which divisions shall for the purposes
of this Ordinance constitute and are herein-after collectively
referred to as the western districts ; and the remaining seven
of the said members shall be elected by the majority of votes
so taken of the voters in and for the following electoral divisions
of the said Colony collectively ; that is to say, the divisions of
Albany (exclusive of the town of Graham’s Town), Uitenhage,
Port Elizabeth, Fort Beaufort, Victoria, Albert, Somerset,
Graaff-Reinet, Cradock, Colesberg, and the town of Graham’s
Town, which divisions shall for the purposes of this Ordinance
constitute and are herein-after collectively referred to as the
eastern districts.
5. 1 And be it enacted, That of the fifteen members first
elected of the said Council, eight, that is to say, four of those
elected for the western districts, and four of those elected for
the eastern districts respectively, shall vacate their seats at
the expiration of five years from the date of such first election,
and the members who shall so vacate their seats shall be those
of the members elected for the western districts and eastern
districts respectively who have been elected by fewest votes ;
and in case, by reason of any such members having been elected
by an equal number of votes, it be uncertain which of such
members should vacate his seat, the Governor shall cause such
question to be determined by lot among such members elected
by an equal number of votes, such lot to be drawn in the
presence of one of the Judges of the Supreme Courts, and of
such members or their agents authorized in writing (in case
such member or agents think fit to attend) ; and the remaining
seven members shall vacate their seats at the expiration of
ten years from the date of such first election ; and upon the
vacating of their seats by such eight members and such seven
members respectively, there shall be elected for the western
districts and eastern districts respectively, a number of members
of the said Council, equal to the number of members elected
for such districts respectively, whose seats have become
vacant, and the members to be so elected shall hold their
seats for ten years from the date of their election, so that all
the elective members of the said Council, save the aforesaid
eight members of the fifteen first elected, shall hold their seats
for the term of ten years, and so that there shall be an election
of eight members, and an election of seven members alternately,
1 Cf. the Parliamentary Representation Acts No. 19 of 1898 and 5 of 1904,
not printed in this volume,
48 CAPE OF GOOD HOPE [1852
at the end of every five years for ever : Provided that every
member vacating his seat under the provisions of this section
shall be eligible to be re-elected, and provided that nothing
herein contained shall prevent the Governor from at any time
dissolving the said Council, under the power herein-after in
that behalf contained.
6. And be it enacted, That the House of Assembly of the
Cape of Good Hope shall consist of forty-six members, elected
in the manner herein-after in that behalf provided, for a
term of five years from the date of election, and that twelve
members, exclusive of the member presiding in the said
Assembly, shall form a quorum for the despatch of business ;
and that all questions which shall arise in the said Assembly
shall be decided by a majority of votes of the members present,
other than the presiding member ; and that when the votes
shall be equal, the presiding member shall have the casting vote.
7. And be it enacted, That the divisions of the Cape
(exclusive of the city of Cape Town), Malmesbury, Stellenbosch,
the Paarl, Clanwilliam, Swellendam, Caledon, George, Uiten-
hage, Port Elizabeth, Albany (exclusive of the town of Graham’s
Town), Fort Beaufort, Victoria, Albert, Somerset, Graff-
Reinet, Cradock, Colesberg, Beaufort, and Worcester, and the
city of Cape Town, and the town of Graham’s Town, shall,
respectively, be electoral divisions within the meaning and
for the purposes of this Ordinance ; provided that for the
purposes of this Ordinance the division of the city of Cape Town
shall include the municipality of Green Point. . . .
8. And be it enacted, That every male person, not subject
to any of the legal incapacities herein-after mentioned, who
shall have occupied within any electoral division for the space
of twelve months next before the day on which any such
registration of voters as is herein-after mentioned shall com-
mence, any house, warehouse, shop, or other building, being
either separately or jointly, with any land within such electoral
division, occupied therewith, of the value of twenty-five l
pounds sterling ; or who shall have been, for the space of
twelve months aforesaid, really and bona fide in the receipt
of salary or wages at and after the rate of not less than fifty
pounds by the year ; or who having been in the receipt for
the space aforesaid, of salary or wages at and after the rate
of not less than twenty-five pounds by the year, shall, in
addition to such salary or wages, have been supplied with
board and lodging, 2 shall be entitled to be registered as a
voter, and to vote at elections of members of the said Council,
and of members of the said House of Assembly. . . .
1 Cf. Act No. 9 of 1892, Cl. 4, Sect, (a) below.
8 Cf. Act No. 9 of 1892, Cl. 4, Sect. (6) below.
1852] CENTRAL GOVERNMENT 49
9. [Certain joint occupiers entitled to be registered.]
10. And be it enacted, That no person shall be entitled
to be registered as a voter, or to vote at any election of members
of the Legislative Council or Assembly of the Cape of Good
Hope, unless he be of the full age of twenty-one years, and
either a natural born subject of Her Majesty the Queen, or a
subject of Her Majesty the Queen who, though not natural
born, was, before and on the eighteenth of January one
thousand eight hundred and six, a subject of the Batavian
Government, resident in this colony, and who, from thence
hitherto, has resided or maintained a domicile in the said
Colony, or unless, if of alien birth, and not such a subject as
last aforesaid, he shall have been naturalized by some Act of
the Parliament of Great Britain and Ireland, or of the Legis-
lature of the Cape of Good Hope, 1 or shall before the com-
mencement and taking effect of this Ordinance have obtained
a deed of burghership, and that no person shall be entitled to
be registered as a voter or to vote who is of unsound mind,
or who shall have been convicted of and sentenced for treason,
murder, rape, theft, fraud, perjury, or forgery, unless he shall
have received a free pardon.
11. [Register of voters in each electoral division to be
formed.]
12. [Lists of voters for the several field-cornetcies, how to
be framed.]
13-32. [Manner of making out voters’ lists.]
33. And be it enacted, That no person shall be qualified
to be elected a member of the said Council who would, under
and by virtue of any of the provisions of this Ordinance,
be incapacitated to be registered as a voter as herein provided,
or who shall be under the age of thirty years ; or who shall
not be the owner, for his own use and benefit, of immoveable
property situate within the districts of this Colony, western or
eastern, as the case may be, for which he shall be elected, of
the value of two thousand pounds of sterling money, over and
above all special conventional mortgages affecting the same;
or who shall not, being the owner of such property to such
value, but under mortgage, be at the same time possessed of
property moveable and immoveable within the said Colony to
the value of not less than four thousand pounds of sterling
money, over and above his just debts : Provided always, that
every married man shall, for the purpose of this and every
other section of the present Ordinance which regards the owner-
ship or occupation of property, be deemed and taken to own or
occupy (as the case may be) the whole of the property belonging
1 By Act No. 47 of 1905 all ex-burghers of the S. A. Republic and the O. F.
State were allowed to vote if they possessed the other necessary qualifications.
4
50 CAPE OF GOOD HOPE [1852
to his wife : Provided also, that no person holding any office of
profit under Her Majesty the Queen within the said Colony,
and no uncertificated insolvent, and no alien who shall have
been registered as a voter by virtue merely of having obtained
a deed of burghership, shall be eligible to be elected a member
of the said Council.
34-37. [Manner of nominating candidates for the Legis-
lative Council.]
38. And be it enacted, That all persons whose names shall
be inserted in the list of voters for any electoral division, but
no other persons, shall be entitled to vote in and for such
electoral division for members of the Legislative Council. . . .
39-45. [Manner of conducting the poll and publishing the
results in the case of the Legislative Council.]
46. And be it enacted, That for the purpose of constituting
the House of Assembly of the Cape of Good Hope it shall and
may be lawful for the voters in or for each of the twenty-two
electoral divisions herein-before mentioned, except the city of
Cape Town, to elect two qualified men, and no more, to be the
representatives of such electoral division, and for the voters
in or for the electoral division of Cape Town to elect four
qualified members, and that every voter in every electoral
division shall be entitled to give at each election as many
votes as there are members of Assembly to be elected at such
election : Provided always, that in no electoral division,
except Cape Town, shall any voter be capable of giving to any
one candidate more votes than one ; provided also, that
in the electoral division of Cape Town every voter shall be
entitled, at his discretion, to give at any such election one vote
to each of any number of the candidates, not exceeding the
whole number of members to be elected, or to distribute,
in such proportions as he shall think fit, the whole number
of votes which he is entitled to give among any lesser number
of candidates, or to give all his votes to one candidate. 1
47. And be it enacted, That any person (except as is next
herein-after excepted) who shall be qualified and entitled
to be registered as a voter in and for any electoral division
within the said Colony shall be qualified and entitled to be
elected a member of the Legislative Assembly for any electoral
division within the said Colony : Provided also, that no person
holding any office of profit under Her Majesty the Queen within
the said Colony, and no uncertificated insolvent, and no alien
who shall have been registered as a voter by virtue merely of
having obtained a deed of burghership, shall be eligible to be
elected a member of the said Legislative Assembly.
1 Cumulative voting in the Cape Town electoral division was abolished by
Act No. i6of 1893.
1852] CENTRAL GOVERNMENT 51
48. [Nomination of candidates for the Legislative
Assembly.]
49-59. [Time, place, and manner of voting for members
of the Assembly.]
60. And be it enacted, That so soon as every electoral
district in the Colony shall have either elected or failed in
electing its representatives in the House of Assembly, it shall
and may be lawful for the Governor of the Cape of Good Hope
to summon, by proclamation, the Legislative Council and the
House of Assembly of the Cape of Good Hope to meet at such
place within the said Colony, and at such time as the said
Governor shall think fit : Provided always, that the said Council
and Assembly shall be summoned to meet at some period not
later than twelve months next after the promulgation of this
Ordinance in the said colony.
61-62. [Oath or affirmation to be made by all members
of the two Chambers.]
63. And be it enacted, That the House of Assembly shall,
at its first meeting, and before proceeding to the despatch of
any other business, elect one member thereof to be and be
called the Speaker of such House. . . .
64. [Declaration of property qualification to be made by
each member of the Council.]
65-66. [Property qualification must be possessed during
the whole time that a member of Council retains his seat.]
67. [Grounds of disqualification may be brought by petition
before a committee of the Council.]
68. [Similar procedure with regard to alleged disqualifica-
tion of members of Assembly.]
69. And be it enacted, That it shall be lawful for any mem-
ber of the Legislative Council of the Cape of Good Hope, by
writing under his hand, addressed to the President of the
said Council, to resign his seat in the said Council, and upon
such resignation the seat of such member shall become
vacant.
70. And be it enacted, That it shall be lawful for any
member of the House of Assembly of the Cape of Good Hope,
by writing under his hand, addressed to the Speaker of the
said Assembly, to resign his seat in the said Assembly, and
upon such resignation the seat of such member shall become
vacant.
71. And be it enacted, That if any legislative councillor
of the Colony of the Cape of Good Hope, or any member of the
House of Assembly thereof, shall for one whole session of the
Parliament of the said Colony fail to give his attendance in the
House of Assembly to which he belongs, without the per-
mission of such house, or shall take any oath or make any
52 CAPE OF GOOD HOPE [1852
declaration of acknowledgment of allegiance, obedience, or
adherence to any foreign prince or power, or shall do, concur
in, or adopt any act whereby he may become a subject or
citizen of any foreign state or power, or if his estate shall be
sequestrated as insolvent, the seat of such councillor or member
of the Assembly shall thereby become vacant.
72. And be it enacted, That no member of the Legislative
Council shall be eligible for a seat in the House of Assembly ;
and that if any member of the House of Assembly shall be
elected a member of the Legislative Council, the former seat
of such member shall, ipso facto, become vacant.
73. [Election, how to take place on vacancies.]
74. And be it enacted, That it shall and may be lawful for
the Governor of the Cape of Good Hope, whenever he shall see
fit so to do, to prorogue, either by speech or proclamation
published in the Government Gazette, the Legislative Council
and the House of Assembly of the said colony, and also, either
by speech or by any such proclamation, to dissolve the said
Council and the said House of Assembly, or dissolve the said
House of Assembly without dissolving the said Council.
75. [Arrangements for a general election to be as described
above.]
76. [Provision for a biennial registration of voters.]
77. And be it enacted, That there shall be a session of the
Parliament of the Cape of Good Hope once at least in every
year, so that a period of twelve calendar months shall not
intervene between the last sitting of the said Parliament in
one session and its first sitting at next session.
78. [Standing rules and orders to be framed by each
Chamber for itself.]
79. And be it enacted, That it shall be lawful for the Colonial
Secretary, the Attorney-General, the Treasurer, and the
Auditor of the said Colony to sit and take part in any debate
or discussion which may arise in* either the Legislative Council
or the House of Assembly, subject nevertheless to any such
standing rules and orders as are herein-before mentioned ;
but that it shall not be lawful for them to vote on any proceed-
ing in either house.
80. And be it enacted, That it shall not be lawful for the
House of Assembly or the Legislative Council to pass, or for
the Governor to assent to, any bill appropriating to the public
service any sum of money from or out of Her Majesty’s revenue
within the said Colony, unless the said Governor, on Her
Majesty’s behalf, shall first have recommended to the House
of Assembly to make provision for the specific public service
towards which such money is to be appropriated ; and that
no part of Her Majesty’s revenue within the said Colony shall
1852] CENTRAL GOVERNMENT 53
be issued except under the authority given by the Governor
of the said Colony directed to the public treasurer thereof.
81. And be it enacted, That it shall and may be lawful for
the Governor of the Cape of Good Hope to transmit, by mes-
sage, to either the Legislative Council or the House of Assembly,
for their consideration, the drafts of any laws which it may
appear to him desirable to introduce, and all such drafts shall
be taken into consideration in such convenient manner as
shall in and by the rules and orders aforesaid be in that behalf
provided : Provided always, that the said Governor shall not
transmit to the Legislative Council the draft of any law which
ought, under and in virtue of the provisions of this Ordinance,
to originate in or be introduced into the House of Assembly.
82. And be it enacted, That whenever any bill which has
been passed by the Legislative Council and Assembly of the
Colony of the Cape of Good Hope shall be presented for Her
Majesty’s assent to the Governor of the said Colony, such
Governor shall declare, according to his discretion, but subject
nevertheless to the provisions contained in this Ordinance,
and to such instructions as may from time to time be given in
that behalf by Her Majesty, Her heirs and successors, that he
assents to such bill in Her Majesty’s name, or that he refuses
his assent to such bill, or that he reserves such bill for the
signification of Her Majesty’s pleasure thereon : Provided
always, that it shall and may be lawful for the Governor,
before declaring his pleasure in regard to any bill which shall
have been so presented to him, to make such amendments in
such bill as he shall think needful or expedient, and by message
to return such bill, with such amendments, to the Legislative
Council or the House of Assembly, as he shall think more fitting ;
and the consideration of such amendments by the said Council
and Assembly respectively shall take place in such convenient
manner as shall, in and by the rules and orders aforesaid, be in
that behalf provided.
83. And be it enacted, That whenever any bill which shall
have been presented for Her Majesty’s assent to the Governor
of the said Colony of the Cape of Good Hope shall, by such
Governor, have been assented to in Her Majesty’s name, such
Governor shall, by the first convenient opportunity, transmit
to one of Her Majesty’s Principal Secretaries of State an
authentic copy of the act so assented to ; and that it shall be
lawful, at any time within two years after such bill shall have
been received by such Secretary of State, for Her Majesty, by
Order in Council, to declare Her disallowance of such act, and
that such disallowance, together with a certificate under the
hand and seal of such Secretary of State, certifying the day on
which such bill was received as aforesaid, being signified by
54 CAPE OF GOOD HOPE [1852
such Governor to the Legislative Council and Assembly of the
Cape of Good Hope, by speech or message to the Legislative
Council and Assembly of the said Colony, or by proclamation,
shall make void and annul the same from and after the date
of such signification.
84. And be it enacted, That no bill which shall be reserved
for the signification of Her Majesty’s pleasure thereon shall
have any force or authority within the colony of the Cape of
Good Hope until the Governor of the said Colony shall signify,
either by speech or message to the Legislative Council or
Assembly of the said Colony, or by proclamation, that such
bill has been laid before Her Majesty in Council, and that Her
Majesty has been pleased to assent to the same ; and that an
entry shall be made in the journals of the said Legislative
Council of every such speech, message, or proclamation, and
a duplicate thereof, duly attested, shall be delivered to the
proper officer, to be kept amongst the records of the said
Colony ; and that no bill which shall be so reserved as afore-
said shall have any force or authority in the said Colony unless
Her Majesty’s assent thereto shall have been so signified as
aforesaid within the space of two years from the day on which
such bill shall have been presented for Her Majesty’s assent
to the Governor as aforesaid.
85. And be it enacted, That the Governor of the Cape of
Good Hope shall cause every act of the Parliament of the
Cape of Good Hope which he shall have assented to in Her
Majesty’s name to be printed in the Government Gazette, for
general information, and such publication by such Governor
of any act of the said Parliament shall be deemed to be in law
the promulgation of the same.
86. [Copies of acts of Parliament to be enrolled.]
87. [Certificates of disallowance of acts of Parliament to be
enrolled.]
88. And be it enacted, in regard to all bills relative to the
granting of supplies to Her Majesty, or the imposition of any
impost, rate, or pecuniary burden upon the inhabitants, and
which bills shall be of such a nature that if bills similar to
them should be proposed to the Imperial Parliament of Great
Britain and Ireland such bills would, by the law and custom
of Parliament, be required to originate in the House of Com-
mons, That all such bills shall originate in, or be by the Governor
of the Cape of Good Hope introduced into the House of
Assembly of the said Colony : Provided that the Legislative
Council of the said colony, and the Governor thereof, shall
respectively have full power and authority to make in all
such bills such amendments as the said Council and the said
Governor shall respectively regard as needful or expedient ;
1852] CENTRAL GOVERNMENT 55
and the said Council and the said Governor may respectively
return such bills, so amended, to the House of Assembly or
the Legislative Council.
89. And be it enacted, That all debates and discussions in
the Legislative Council and House of Assembly respectively
shall be conducted in the English language, and that all
journals, entries, minutes, and proceedings of the said Council
and Assembly be made and recorded in the same language.
90. And be it enacted, That each member of the Legis-
lative Council and each member of the House of Assembly
whose ordinary place of residence shall be situate at a greater
distance than ten miles from the place or places in which the
said Council and Assembly shall respectively assemble shall
be entitled to be paid from the public treasury of the said
Colony the sum of one pound sterling per day, for every day
during which such member shall be engaged in travelling to, and
returning from, and attending at, any session of Parliament
of the said Colony : Provided always, that such payment shall
in no case be made for more than fifty days in any one calendar
year ; and that every such member shall also be entitled to be
paid a further sum of one shilling for every mile which he shall
necessarily travel in coming to and returning from any such
session : Provided always, that no part of such sums shall
become payable to any member in any session until after
an act providing funds for the public service of the current
year shall have been passed by the said Council and Assembly,
and assented to by the Governor.
91. [Interpretation of terms, Natal not included in the
Cape Colony.]
92. And be it enacted, That this Ordinance shall commence
and take effect within the Colony of the Cape of Good Hope
from and after such date as Her Majesty shall, by the advice
of Her Privy Council, fix for that purpose.
Part. Papers, Copies of Two Cape Ords.,
presented June 14, 1853, p. 3.
No. 30. RESERVED CIVIL LIST ORDINANCE.
[Ord. No. 3 of 1852.!]
WHEREAS Her Majesty did, by certain Letters Patent,
bearing date at Westminster on the twenty-third day of May
in the thirteenth year of her reign, amongst other things,
declare and ordain that there should be within the settlement
1 Confirmed by Order in Council, 11 March 1853 ; repealed by Act No. 15
of 1896,
56 CAPE OF GOOD HOPE [1852
of the Cape of Good Hope a Parliament, to consist of the
Governor, a Legislative Council, and House of Assembly :
And whereas by an Ordinance intituled ” Ordinance enacted
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council thereof, for constituting
a Parliament for the said Colony,” provision has been made
for constituting a Legislative Council and House of Assembly
for the said Colony, and for denning the powers of the same :
And whereas it is expedient that provision should be made for
defraying certain expenses out of the revenue of the said
Colony :
1. Be it therefore enacted, by the Governor of the Cape of
Good Hope, with the advice and consent of the Legislative
Council thereof, That the said Governor shall be authorized
to pay out of the revenue of the said Colony all the costs,
charges, and expenses incident to the collection, management,
and receipt thereof : Provided always, that full and particular
accounts of all such disbursements shall from time to time be
laid before the Parliament of the said Colony.
2. And be it enacted, That, until the Parliament of the
said Colony shall otherwise direct, there shall be payable
every year to Her Majesty, Her heirs and successors, out of
the said revenue fund, the sum of one hundred and six thousand
and ninety pounds, for defraying the expenses of the several
services and purposes in the Schedules (marked A, B, C, and
D) annexed to this Ordinance ; the said sum to be issued by
the Treasurer of the said Colony, in discharge of such warrant
or warrants as shall be from time to time directed to him
under the hand and seal of the Governor.
3. And be it enacted, That in construing this Ordinance
the word ” Governor ” shall mean any officer for the time
being administering the government of the Cape of Good
Hope.
4. And be it enacted, That this Ordinance shall commence
and take effect within the Colony of the Cape of Good Hope
from and after such date as Her Majesty shall, by the advice
of Her Privy Council, fix for that purpose.
[SCHEDULES.
1854] CENTRAL GOVERNMENT 57
SCHEDULES REFERRED TO IN THE FOREGOING ORDINANCE.
/ s. d.
SCHEDULE A.
4
The Governor and Private Secretary . 5,300
The Lieutenant – Governor, Secretary,
Messenger, and House-rent . . 2,200
The Clerk of the Executive Council . 520
The Colonial Secretary and his department 5 , 500
The Treasurer-General do. . 1,890
The Auditor-General do. . 1,6150
s.
o
o
o
o
d.
o
o
o
o
o
The Registrar of Deeds do. . i
,000
o
o
The Surveyor-General do. . 2
,080
o
The Civil Engineer do. . 2
,250
o
o
The Post-Office department . . 2
.33
o
The Keeper of the Public Buildings
2 3S
o
o
The Agent-General in London .
2IO
o
o
The Secretary and Clerks of the Central
Road Board . . i
,140
o
o
The Supreme Court
7
.935
o
The High Sheriff
i
,250
o
o
The Attorney-General
i
,670
o
o
Divisional Courts
. 16
.335
o
o
Education establishments
4
,100
o
o
Medical departments
i
,895
o
,o
Police, Prison, and Gaols . i
.540
o
o
61,030 o o
SCHEDULE B.
Pensions ……. 15,000 o o
SCHEDULE C. 1
Public Worship …… 16,060 o o
SCHEDULE D.
Border department (Aborigines) . . . 14,000 o o
106.090 o o
Ibid. p. 21.
FREEDOM OF SPEECH IN PARLIAMENT.
I assent to this Bill in Her Majesty’s name.
(Signed) C. H. DARLING, Lt.-Governor,
19 September 1854.
No. i of 1854.
No. 31. An Act to Secure Freedom of Speech and Debates,
or Proceedings in Parliament, and to give summary Pro-
tection to Persons employed in the Publication of Parlia-
mentary Papers.
WHEREAS it is essential to the due and effectual exercise
and discharge of the functions and duties of Parliament, and
1 Repealed by Act No. 5 of 1875.
58 CAPE OF GOOD HOPE [1854
to the promotion of wise Legislation, that the Freedom of
Speech and Debates, or Proceedings in Parliament, should not
be impeached or questioned in any court or place out of Parlia-
ment, and that no obstructions or impediments should exist
to the Publication of such Reports, Papers, Votes, or Pro-
ceedings of either House of Parliament as such House of Parlia-
ment may deem fit or necessary to be published : And whereas
it is fit that such Freedom should be secured by Law, and that
all such obstructions or impediments, should any arise, may
be summarily removed : Be it therefore enacted by the
Governor, by and with the advice and consent of the Legis-
lative Council and the House of Assembly, that there shall
be Freedom of Speech and Debates, or Proceedings in Parlia-
ment, and that such Freedom of Speech and Debates, or Pro-
ceedings in Parliament, shall not be liable to be impeached
or questioned in any court or place out of Parliament.
II. And be it enacted, that it shall and may be lawful for
any person or persons who may be a defendant or defendants
in any civil or criminal proceeding, commenced or prosecuted
in any manner soever, for or in respect of the publication of
any Report, Paper, Votes, or Proceedings, by such person
or persons, by or under the authority of either House of Parlia-
ment, to bring before the court in which such proceeding shall
be commenced or prosecuted, or before any judge thereof
(should the proceedings be in the Supreme or any Circuit
Court), first giving twenty-four hours’ notice of his intention
so to do to the plaintiff or prosecutor in such proceeding, a
certificate under the hand of the President of the Legislative
Council for the time being, or of the Clerk of the Legislative
Council, or of the Speaker of the House of Assembly, or of the
Clerk of the same House, stating that the Report, Paper, Votes,
or Proceedings, as the case may be, in respect whereof such
civil or criminal proceeding shall have been commenced or
prosecuted, was or were published by such person or persons,
or by his or their servant or servants, by order or under the
authority of the Legislative Council, or the House of Assembly,
as the case may be, together with an affidavit verifying such
certificate ; and such court or judge shall thereupon immedi-
ately stay any such civil or criminal proceeding ; and the
same and every writ or process issued thereon shall be, and
the same shall be deemed and taken to be, finally put an end
to, determined, and superseded, by virtue of this Act.
III. Provided always and it is hereby expressly declared
and enacted, that nothing herein contained shall be deemed,
or taken, or held, or construed, directly or indirectly, by
implication or otherwise, to affect the rights and privileges of
Parliament, in any manner whatsoever,
1865] CENTRAL GOVERNMENT 59
IV. That in construing this Act, the word ” Governor ”
shall mean any Officer for the time being lawfully adminis-
tering the Government of this Colony.
Given at Government House, this Nineteenth September
1854-
By Command of His Honour the Lieut. -Governor,
(Signed) RAWSON W. RAWSON,
Colonial Secretary.
Certified correct as passed by the Certified correct as passed by the
Legislative Council. House of Assembly.
(Signed) JNO. WYLDE, (Signed) C. J. BRAND,
President. Speaker,
ist September 1854.
P.R.O., C.O. 50/3.
INCORPORATION OF BRITISH KAFFRARIA.
No. 3 of 1865. [10 Oct. 1865.]
No. 32. Act to make provision for the Incorporation of British
Kaffraria with the Colony of the Cape of Good Hope,
and to increase the number of the Members of both Houses
of Parliament of the said Colony.
[Kaffraria became a British Crown Colony in 1847, the govern-
ment offices being situated at King William’s Town.]
WHEREAS by the third section of the Imperial Act, 28th
of Her Majesty, chapter 5, the Parliament of the Cape of Good
Hope is empowered to make provision for the incorporation
of the territory of British Kaffraria with the Cape of Good
Hope, and it is enacted that when and as soon as the Governor
of the Cape of Good Hope, as Governor of British Kaffraria,
assents, in manner and form as in the said section is set forth,
to the provision so made, then, and from and after the date
of such assent, British Kaffraria shall become incorporated
with the Cape of Good Hope, on the terms of such provision,
for all purposes whatever, as if British Kaffraria had always
formed part of the Cape of Good Hope : And whereas it is
expedient tha 1 : such provision as aforesaid should be made,
and that the same should take effect when and as soon as the
Governor of British Kaffraria shall, by virtue of his powers
as such Governor, and by laws and ordinances by him made,
have divided British Kaffraria into two parts, to form, after
such incorporation as aforesaid, electoral divisions of the Cape
of Good Hope, each of which shall be entitled to send two
members to the House of Assembly of the Cape of Good Hope,
and shall have defined and named such electoral divisions,
60 CAPE OF GOOD HOPE [1865
and shall have effected a registration of voters entitled to
vote according to the qualification of voters fixed and estab-
lished by the fourth section of the Constitution Ordinance
of the Cape of Good Hope, and shall have declared the quali-
fication of persons capable of being elected to be, after such
incorporation as aforesaid, members of the House of Assembly
aforesaid, such qualification to be that described in the forty-
seventh section of the Constitution Ordinance aforesaid,
and shall have provided for the conduct of the election of such
members, in like manner, so far as may be, as if such election
were to take place under the provisions of the said Constitu-
tion Ordinance, and when and as soon as the said election
shall have been held : Be it enacted … as follows :
I. [Repugnant part of Constitution Ordinance, etc., re-
pealed.]
II. From and after the day upon which the Governor . . .
shall . . . publish the names of the members returned . . .
by each of the two electoral divisions of British Kaffraria,
then British Kaffraria shall become incorporated with the
Cape of Good Hope, for all purposes whatever, . . .
III. The four members aforesaid shall be added to the
number of the members of the House of Assembly of the Cape
of Good Hope. . . .
IV. The two electoral divisions aforesaid shall, from and
after such incorporation as aforesaid, become and remain
electoral divisions of the Cape of Good Hope, entitled to be
each represented by two members in the House of Assembly,
and shall, for the purpose of the election of members of the
Legislative Council … be comprised in and form part of
the Eastern Districts, within the meaning and for the pur-
poses of the Constitution Ordinance. . . .
VI. [Supreme Court of British Kaffraria abolished. Eastern
Districts Court substituted.]
XII. [Repugnant laws of British Kaffraria repealed.]
XIII. [Laws, duplicates of, or identical with, Cape laws,
repealed.]
XV. [British Kaffrarian insolvent law repealed and Cape
law substituted.]
XVI. [Revenues to be payable to the Cape Colony and to
be collected as in the Cape Colony by civil commissioners.
Customs-officers to collect as at the other Cape ports.]
XX. . . . And whereas it is expedient that the number
of the elective members of the Legislative Council of the Cape
of Good Hope should be increased to twenty-one, and that
the number of the members of the House of Assembly of the
said Colony should be increased to sixty-six, such number to
include the four members aforesaid to be returned by the two
1871] CENTRAL GOVERNMENT 61
electoral divisions . . . which . . . formed the territory of
British Kaffraria : Be it enacted as follows :
XXI. [Legislative Council to consist of twenty-one
members.]
XXII. Three of the six members required to complete the
number of twenty-one members shall be elected by the Western
Districts, and three by the Eastern Districts, of this Colony.
XXIV. For the purpose of electing the sixteen members
required, together with the four members in the second, third,
and fourth sections of this Act mentioned, to complete the
number of sixty-six members of the House of Assembly, the
following ten fiscal divisions shall be, and the same are hereby
constituted, respectively, electoral divisions, that is to say,
Aliwal North, Namaqualand, Oudtshoorn, Piketberg, Rivers-
dale, and Queenstown, whilst the fiscal divisions of Victoria
West and Fraserburg shall together constitute a seventh
electoral division, and the fiscal divisions of Hope Town and
Richmond shall together constitute an eighth electoral division.
XXV. Each of the said eight electoral divisions shall be
entitled … to elect two members of the House of Assembly.
[Etc.]
P.R.O., C.O. 50/4.
ANNEXATION OF BASUTOLAND. [n Aug. 1871.]
No. 12 of 1871.
No. 33. Act. For the Annexation to the Colony of the Cape
of Good Hope of the Territory inhabited by the Tribe of
People called Basutos. [Vide also No. 170.]
WHEREAS by a Proclamation dated the I2th day of March
1868, by His Excellency Sir Philip Wodehouse, . . . published
on the I3th day of March 1868, in the Government Gazette of
this Colony, it was declared that from and after the publication
thereof, the Tribe of the Basutos should be and should be
taken to be for all intents and purposes British subjects,
and the territory of the said tribe should be and should be
taken to be British Territory : And whereas the territory is
contiguous, on a considerable portion of its boundary, to the
boundary of this Colony, and it is for other reasons also desir-
able that the said territory should be annexed to this Colony,
so that this Colony in its present extent, together with the said
territory, may form one Colony : And whereas the said tribe
of the Basutos are not yet sufficiently advanced in civilization
and social progress to be admitted to the full enjoyment and
be subjected to the full responsibility granted and imposed
respectively by the ordinary laws of the Colony to and upon
62 CAPE OF GOOD HOPE [1871
the other citizens thereof, but it is expedient that for the time
being the said tribe and the territory thereof should be sub-
jected to special administration and legislation : Be it there-
fore enacted by the Governor of the Cape of Good Hope, with
the advice and consent of the Legislative Council and House
of Assembly thereof, as follows :
I. That from and after the publication by the Governor
of the Colony of a proclamation for bringing this Act into
operation the said territory, bounded as follows, that is to say :
From the junction of the Cornet Spruit with the Orange
River, along the centre of the former to the point nearest
to Olifants Been ; from that point by Olifants Been, to the
southern point of Langeberg ; along the top of Langeberg, to
its north-western extremity ; from thence to the eastern point
of Jammerberg; along the top of Jammerberg, to its north-
western extremity ; from thence by a prolongation of the same
to the Caledon River ; along the centre of the Caledon River
to its junction with the Klein Caledon ; along the centre of the
Klein Caledon, to the heads of the Orange River, at the Mount
Aux Sources ; thence westward along the Drakensberg, between
the watersheds of the Orange River and the St. John’s River,
to the source of the Tees, down the centre of that river to its
junction with the Orange River, and down the centre of the
latter river to its junction with the Cornet Spruit, shall be and
the same is hereby annexed to the Colony of the Cape of Good
Hope, so that the territory heretofore included in the Colony
of the Cape of Good Hope shall, for the future, together with
the said territory hereinbefore defined form the Colony of the
Cape of Good Hope, but the territory hereinbefore denned shall
nevertheless be and remain, for the time being, subject to the
laws, rules and regulations now in force therein for the Govern-
ment thereof, and shall not by virtue of such annexation as
hereinbefore is mentioned be or become subject to the general
law of this Colony.
II. [Power to frame, repeal, or amend laws for the annexed
territory is vested in the Governor. Cape laws to apply only
when specially extended to the said territory. All laws, etc.,
to be laid before Parliament, who may disallow them.]
III. [Cape courts to have jurisdiction in certain cases.]
IV. [Annexed territory to be called Basutoland.]
V. This Act may be cited as ” The Basutoland Annexa-
tion Act, 1871.”
P.R.O., C.O. 50/5.
1872] CENTRAL GOVERNMENT 63
RESPONSIBLE GOVERNMENT. [28 Nov. 1872.]
No. i of 1872.
I reserve this Bill for the Signification of Her Majesty’s pleasure.
HENRY BARKLY, Governor.
GOVERNMENT HOUSE,
CAPE TOWN, 18 June 1872.
No. 34. Act. To amend the Ordinance enacted on the 3rd
of April 1852, by the GOVERNOR OF THE COLONY OF THE
CAPE OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL thereof, intituled ” An Ordinance
for Constituting a Parliament for the said Colony.”
WHEREAS it is expedient, in order to the introduction of
the system of executive administration, commonly called
Responsible Government, to amend in certain respects the
Ordinance enacted on the third day of April, in the year 1852,
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council thereof, intituled ” An
Ordinance for Constituting a Parliament for the said Colony ” :
Be it enacted by the Governor of the Cape of Good Hope, with
the advice and consent of the Legislative Council and House of
Assembly thereof, as follows :
I. From and after the taking effect of this Act, there shall
be in this Colony a certain office to be called the office of
” Commissioner of Crown Lands and Public Works,” and a
certain other office to be called the office of ” Secretary for
Native Affairs.”
II. The persons to hold the said offices respectively shall
be appointed by Her Majesty the Queen, and shall hold office
during Her Majesty’s pleasure, and shall be charged with such
duties as Her Majesty shall from time to time assign to them.
III. The following persons holding offices of profit under
Her Majesty the Queen shall be eligible, if otherwise duly
qualified under the provisions of the Ordinance aforesaid,
to be elected as members of the Legislative Council or of the
House of Assembly, anything in the thirty-third and forty-
seventh Sections of the Ordinance aforesaid to the contrary
notwithstanding, that is to say, the Colonial Secretary, the
Treasurer of the Colony, the Attorney-General, the Commis-
sioner of Crown Lands and Public Works, and the Secretary for
Native Affairs : Provided, always, that it shall be lawful to
appoint to any such office as aforesaid any person being alrea dy
at the time of such appointment a member of the said Council
or of the said Assembly.
IV. It shall be lawful for any person holding any of the
offices in the third section of this Act mentioned, and being
likewise a member of either the Legislative Council or of the
64 CAPE OF GOOD HOPE [1874
House of Assembly, to sit and take part in any debate or dis-
cussion which may arise in the House whereof he does not
happen to be a member, subject, nevertheless, to any such
standing rules and orders, as are in the seventy-eighth section
of the Ordinance aforesaid mentioned ; but it shall not be
lawful for any such officer to vote on any proceeding in such
House whereof he shall not be a member.
V. From and after the taking effect of this Act, the seventy-
ninth section of the Ordinance aforesaid shall be, and the same
is hereby repealed.
VI. [Pensions of present Executive Officers secured, but
pensions to merge, or be reduced, on the reappointment of
pensioners to office.]
VII. [Salaries of officers mentioned in Section III.]
VIII. [These officers not entitled to pensions.]
IX. This Act shall commence and take effect when and so
soon as the Governor shall by proclamation 1 declare that Her
Majesty has been pleased to allow and confirm the same.
X. This Act may be cited for all purposes as ” The Con-
stitution Ordinance Amendment Act, 1872.”
P.R.O., C.O. 50/5.
AMENDMENT OF THE CONSTITUTION ORDINANCE.
No. 18 of 1874.
No. 35. Act. To amend the Constitution Ordinance and Act
No. 3 of 1865, and to repeal Act No. 6 of 1859. [Assented
to 31 July 1874.]
WHEREAS it is”expedient, in] order to secure to the electors
a more equal exercise of the franchise, to divide the Colony of
the Cape of Good Hope into seven electoral provinces, for the
purpose of electing the members of the Legislative Council,
and to alter in other respects, the constitution of the said
Council : And whereas it is necessary, for the purposes afore-
said, to amend the Constitution Ordinance and Act No. 3 of
1865, and to repeal Act No. 6 of 1859 : Be it enacted by the
Governor of the Cape of Good Hope, with the advice and con-
sent of the Legislative Council and House of Assembly thereof,
as follows :
I. [Sections 4 and 5 of the Constitution Ordinance, Act No. 6
of 1859,2 an d section 31 of Act No. 3 of 1865, repealed. The pres-
ent Council to be deemed to have been elected for five years.]
II. For the purpose of electing hereafter the twenty-one
elective members of the said Council, as provided for by the
1 Prod., 28 Nov. 1872.
2 Providing that when the number of candidates for the Legislative Council
did not exceed the number of vacancies no poll would be necessary.
1877] CENTRAL GOVERNMENT 65
twenty-first section of Act No. 3 of 1865, the Colony of the
Cape of Good Hope shall be divided into seven electoral pro-
vinces, and such provinces shall respectively consist of the
electoral divisions following, that is to say :
1 . The western electoral province shall consist of the electoral
divisions of Cape Town, Cape Division, Stellenbosch, and Paarl.
2. The north-western electoral province shall consist of
the electoral divisions of Worcester, Malmesbury, Piquetberg,
Namaqualand, and Clanwilliam.
3. The south-western electoral province shall consist of
the electoral divisions of Swellendam, Caledon, Riversdale,
Oudtshoorn, and George.
4. The midland electoral province shall consist of the
electoral divisions of Graaff-Reinet, Richmond, Beaufort West,
and Victoria West.
5. The south-eastern electoral province shall consist of
the electoral divisions of Port Elizabeth, Uitenhage, Grahams-
town, Albany, and Victoria East.
6. The north-eastern electoral province shall consist of the
electoral divisions of Somerset East, Fort Beaufort, Cradock,
Colesberg, and Albert.
7. The eastern electoral province shall consist of the
electoral divisions of King William’s Town, East London,
Queen’s Town, Aliwal North, and Wodehouse.
III. [Each electoral province to elect three members, who
shall vacate their seats every seven years.]
VIII. [Members of either house vacate their seats by
accepting offices of profit, except the offices of Colonial Secre-
tary, Treasurer, Attorney-General, Commissioner of Crown
Lands and Public Works, and Secretary for Native Affairs.]
X. This Act may be cited for all purposes as the ” Con-
stitution Ordinance Amendment Act, 1874.”
P.R.O., C.O. 50/5.
ANNEXATION OF TRANSKEIAN TERRITORIES.
[15 Aug. 1879.]
No. 38 of 1877. [Reserved by Governor.]
No. 36. Act. To provide for the Annexation to the Colony
of the Cape of Good Hope of the Country situated be-
tween the Bashee and the Kei, commonly known as Fingo-
land and the Idutywa Reserve, and the Country situated
between the Umtata and the Umzim-Kulu, commonly
known as Nomansland, and for the government of the said
Territories.
IV. This Act may be cited as the ” Transkeian Annexation
Act, 1877.” P.R.O., C.O. 50/6.
5
66 CAPE OF GOOD HOPE [1877-82
ANNEXATION OF GRIQUALAND WEST.
[Confirmed 15 Aug. 1879.]
Act No. 39 of 1877. [Reserved by Governor.]
No. 37. Act. To make provision for the Annexation to this
Colony of the Province of Griqualand West. 1
XXXIV. This Act may be cited as the ” Griqualand West
Annexation Act, 1877.” P.R.O., C.O. 50/6.
EQUAL LANGUAGE RIGHTS IN PARLIAMENT.
No. i of 1882.
No. 38. Act. To amend the Constitution Ordinance. [As-
sented to 25th May 1882.]
WHEREAS it is expedient to amend the Ordinance enacted
on the third day of April 1852, by the Governor of the Cape
of Good Hope, with the advice and consent of the Legislative
Council thereof intituled ” An Ordinance for Constituting a
Parliament for the said Colony ” : Be it enacted by the
Governor of the Cape of Good Hope, with the advice and con-
sent of the Legislative Council and House of Assembly thereof,
as follows :
I. So much of the Eighty-ninth Section of the said
Ordinance as is repugnant to or inconsistent with the provisions
of this Act shall be and the same is hereby repealed.
II. From and after the passing of this Act all debates and
discussions in the Legislative Council and House of Assembly
may be conducted either in English or Dutch, but in no other
language.
III. This Act may be cited as the ” Constitution Ordinance
Amendment Act, 1882.” P.R.O., C.O. 50/7.
REPRESENTATION OF KIMBERLEY IN
PARLIAMENT.
No. 13 of 1882.
No. 39. Act. To grant Increased Representation in the House
of Assembly to the Electoral Division of Kimberley.
[Assented to 2ist June 1882.]
WHEREAS it is desirable to amend Act No. 39 of 1877,
known as ” The Griqualand West Annexation Act, 1877,” by
1 See documents Nos. 84 and 171. The annexation was only effected on 1 5th
Oct. 1880 by Procl. in the Gazette, after this Act received the royal assent.
1883] CENTRAL GOVERNMENT 67
making provision for an increase in the number of the repre-
sentatives now returned to the House of Assembly for the
Electoral Division of Kimberley : Be it enacted by the
Governor of the Cape of Good Hope, by and with the advice
and consent of the Legislative Council and the House of
Assembly thereof, as follows :
I. So much of the fifth section of Act No. 39 of 1877,
known as ” The Griqualand Annexation Act, 1877,” as: may be
repugnant to or inconsistent with this Act, is hereby repealed.
II. At the next ensuing general election, and thereafter,
the Electoral Division of Kimberley shall be entitled to return
to the House of Assembly of the Cape of Good Hope four
members.
III. This Act may be cited as the ” Kimberley Increased
Representation Act, 1882.”
P.R.O., C.O. 50/7.
DISANNEXATION OF BASUTOLAND. [18 March 1884.]
No. 34 of 1883. [Reserved.]
No. 40. Act. For the Disannexation of Basutoland from the
Colony of the Cape of Good Hope.
WHEREAS it is desirable that Basutoland should cease
to form part of the Colony of the Cape of Good Hope ; and
whereas Her Majesty’s Imperial Government has expressed
its willingness to provide for the future Government of Basuto-
land upon certain conditions ; and whereas it is expedient
that due provision should be made for relieving this Colony
from all responsibility for or in connection with the Govern-
ment of Basutoland : Be it enacted by the Governor of the
Cape of Good Hope, with the advice and consent of the Legis-
lative Council and House of Assembly thereof, as follows :
I. The Act No. 12, 1871, intituled ” An Act for the Annexa-
tion to the Colony of the Cape of Good Hope of the Territory
inhabited by the tribe of people called the Basutos,” shall be
and the same is hereby repealed.
II. From and after the taking effect of this Act, there shall
be paid annually to Her Majesty’s High Commissioner, or
such other officer as Her Majesty may be pleased to appoint
in that behalf, as a contribution towards any deficiency that
may arise in the revenues of the Government of Basutoland,
out of the public revenue of this Colony, such sum, not exceed-
ing twenty thousand pounds, as may be hereafter from time
68 CAPE OF GOOD HOPE [1884-85
to time agreed upon by and between Her Majesty’s Imperial
Government and the Government of this Colony.
III. This Act shall come into operation when the Governor
shall by proclamation declare that Her Majesty has been
pleased to allow and confirm the same.
IV. The short title of this Act shall be the ” Basutoland
Disannexation Act, 1883.”
P.R.O., C.O. 50/7.
ANNEXATION OF WALFISH BAY.
[Promulgated 25 July 1885.]
No. 35 of 1884.
No. 41. Act. To provide for the Annexation to the Colony
of the Cape of Good Hope of the Port or Settlement of
Walfish Bay on the West Coast of Africa and of certain
Territory surrounding the same, and of certain British
Territories on the St. John’s River in South Africa.
[By Letters Patent dated I4th December 1878 the Governor
of the Cape Colony had been authorised to declare the port,
settlement, and territory of Walfish Bay annexed to the Cape
Colony.]
P.R.O., C.O. 50/7.
ANNEXATION OF TEMBULAND.
[A Bill to provide for the annexation of Tembuland was passed
in 1880 but was not confirmed.]
[Promulgated 14 July 1885.]
No. 3 of 1885.
No. 42. Act. To provide for the Annexation to the Colony of
the Cape of Good Hope, of the British Territories known
as Tembuland, Emigrant Tembuland, Gcalekaland and
Bomvanaland, and for the Government of the said
Territories.
[Letters Patent of 2 Oct. 1884, had authorised the annexation.]
1. [Governor may proclaim 1 date of annexation.]
2. [The laws at present in force in these territories may,
until otherwise provided by Parliament, be repealed and
modified and new laws may be made by the Governor in
Council. No Cape Acts to apply, unless expressly provided or
imless extended to any of these territories by the Governor
in Council.]
1 Procl. in the Gazette of i Sept. 1885, but dated 26 Aug.
i886] CENTRAL GOVERNMENT 69
3. [Eastern Districts Court to have jurisdiction over the
annexed territories.]
4. [Resident Magistrates to have jurisdiction in crimes and
offences not punishable by death.]
5. [Decisions may be reviewed by the Chief Magistrate of
the territory concerned.]
6. [Appeals in civil cases may be made to the Chief Magis-
trate, or to the Supreme Court, or to the Eastern Districts
Court.]
7. This Act may be cited as the ” Tembuland Annexation
Act, 1885.”
P.R.O., C.O. 50/7.
ANNEXATION OF THE XESIBE COUNTRY.
[25 Oct. 1886.]
No. 37 of 1886. [Reserved.]
No. 43. Act. To provide for the Annexation to the Colony
of the Country known as the Xesibe Country.
WHEREAS by Resolution passed in both branches of the
Legislature it has been declared to be expedient that the
country situated between the district of Kokstad in Griqualand
East and Pondoland East, known as the Xesibe Country, com-
prised in the district now called Mount Ayliff, should be
annexed to the Colony : And whereas it is the intention of
Her Majesty the Queen to issue her Royal Letters Patent to
authorise the Governor of the Cape of Good Hope, by a pro-
clamation under his hand and the public seal of this Colony, to
declare that from and after a day to be therein mentioned,
the said country should be annexed to, and form part of, this
Colony, and to determine and signify the limits of the said
country so annexed, in case the Legislature of the Colony
should have passed an Act providing that the said country
should become a part of this Colony : And whereas it is
expedient that such an Act should be passed : Be it, therefore,
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council and House of
Assembly thereof, as follows :
1. [Governor may proclaim the Xesibe Country to be
annexed to the Colony and form part of Griqualand East.]
2. This Act may be cited as the ” Xesibe Country Annexa-
tion Act, 1886.”
P.R.O., C.O. 50/7.
70 CAPE OF GOOD HOPE [1887
REPRESENTATION OF THE TRANSKEI.
[Promulgated gth August 1887.]
No. 30 of 1887.
No. 44. Act. To provide for the Representation in the Parlia-
ment of this Colony of persons in the Transkeian Territories.
[Preamble.]
1. [Meaning of ” Transkeian Territories ” : The Transkei
(including Gcalekaland) , Tembuland (including Emigrant
Tembuland and Bomvanaland), and Griqualand East (in-
cluding the Territory on the St. John’s River).]
2. [Transkeian Territories to be included in the Eastern
Electoral Province of the Cape Colony.]
3. Within the said Transkeian Territories there shall be two
Electoral Divisions of the Colony of the Cape of Good Hope,
and each of such divisions shall be entitled to return one
member to the House of Assembly of the Colony.
4. [One shall be called the Electoral Division of Tembuland,
and the other the Electoral Division of Griqualand East.]
5. [Election of representatives in the same manner,
mutatis mutandis, as other members of the Assembly.]
6. [Law of the Colony as to elections to apply.]
7. This Act shall take effect on the first day of September
1887, and may be cited as the ” Transkeian Territories Repre-
sentation Act, 1887.”
P.R.O., C.O. 50/7.
ANNEXATION OF RODE VALLEY, [i Nov. 1887.]
No. 45 of 1887. [Reserved.]
No. 45. Act. To provide for the Annexation to the Colony
of the Country known as the Rode Valley.
WHEREAS by resolution passed in both branches of the
Legislature, it has been declared to be expedient that the
country situated between the districts of Mount Ayliff and
Mount Frere, East Griqualand, and Eastern Pondoland,
commonly called the ” Rode Valley,” acquired by the Colonial
Government, by purchase from the Pondo Chief Umquikela,
should be annexed to the Colony : And whereas it is the
intention of Her Majesty the Queen to issue her Royal Letters
Patent to authorise the Governor of the Cape of Good Hope,
by a proclamation under his hand and the public seal of this
Colony, to declare that from and after a day to be therein
mentioned, the said country should be annexed to and form
part of this Colony, and to determine and signify the limits of
the said country so annexed, in case the Legislature of the
CENTRAL GOVERNMENT 71
Colony should have passed an Act providing that the said
country should become a part of this Colony : And whereas
it is expedient that such an Act should be passed : Be it,
therefore, enacted by the Governor of the Cape of Good Hope,
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
1. From and after such day as the Governor shall, pursuant
of the powers in that behalf contained in any Royal Letters
Patent which may be issued for that purpose, by proclamation
under his hand and the public seal of the Colony, fix in that
behalf, the country in the preamble to this Act mentioned,
or so much of the said country as shall be defined in or by any
such proclamation, and with the limits and name in any
such proclamation signified, shall be annexed to and become
a part of that portion of the Colony known as Griqualand
East, and be subject to the laws for the time being in force in
such portion of the Colony.
2. This Act may be cited as the ” Rode Valley Annexation
Act, 1887.”
P.R 0., C.O. 50/7.
THE AUDITING OF PUBLIC ACCOUNTS.
[21 August 1888.]
No. 32 of 1888.
No. 46. Act. To make further provision for the Audit of
the Public Accounts.
Be it enacted by the Parliament of the Cape of Good Hope,
in Parliament assembled, 1 as follows :
1. [Sections 18 and 19 of Act. No. 30 of 1875 and a portion
of the 35th section of Ordinance No. 105, repealed.]
2. [Accounts rendered by persons or public bodies of public
money received, administered, etc., and subject to audit, to
be certified as correct by persons rendering them. Punishment
for wilfully rendering a corrupt certificate.]
3. [Other accounts and returns to be rendered when re-
quired by the Controller and Auditor-General.]
4. [Certificate may be required of person examining
vouchers of public accounts that vouchers have been ex-
amined and are correct : such certificate, supported by internal
evidence of vouchers, may be admitted as satisfactory evi-
dence of payments vouched.]
1 The formula is noteworthy as a departure from the constitutional theory
that the Crown, or through it the Governor, is the fount and origin of all
legislation. Cf. Act. No. 15 of 1888 below. The Acts of 1880 reverted to
the old formula.
72 CAPE OF GOOD HOPE [1888
5. The Treasury shall be divided into at least two branches,
those of the Receiver-General and Paymaster-General.
6. The Assistant Treasurer shall be the Receiver-General
of revenue, and all Civil Commissioners and the Agent-General
of the Colony in England shall be Receivers of Revenue.
7. All accounts rendered by Receivers of revenue shall
be included in, and their aggregate shall be styled, the Ex-
chequer Account of the Colony.
8. The Assistant Treasurer shall also be the Paymaster-
General of the Colony.
9. All taxes, duties, and other revenues, and the proceeds
of all loans for the service of the general government, shall be
payable to, and levied by, such persons as the Governor may
direct, anything contained in Ordinance No. 43, bearing date
the 28th of February 1828, and Act No. 3 of 1876 to the con-
trary notwithstanding ; and, when not collected by, shall be
paid in to, a Receiver of revenue, in accordance with regula-
tions framed under the provisions of the sixth section of the
Audit Act, 1875, and, except in so far as may otherwise be
directed in such regulations, all such revenues and proceeds
of loans shall be carried without deduction to the credit of the
Exchequer Account of the Colony.
10. [Detailed examination of vouchers in auditing heads
of revenue referred to in the Schedule may be dispensed with
if accounts bear evidence of complete examination and proper
certificates ; but the collection and account of moneys must be
satisfactorily proved.]
1 1 . [Power of the Controller and Auditor-General not limited
by the I5th section of the Audit Act of 1875 or the loth section
of this Act.]
12. No money shall be issued out of the Exchequer Account
of the Colony, except :
(a) on requisition of Ministers, and of the Speaker of
the House of Assembly under section 17 of
Act 13, 1883, authorised and approved by the
Controller and Auditor-General, under the 7th
section of the ” Audit Act, 1875,” or
(6) in accordance with regulations framed under the
provisions of the ” Audit Act, 1875.”
13. [Assistant Treasurer or other officer substituted for
Treasurer-General for examination of wards’ books required
by 35th section of Ordinance No. 105. l ]
14. [Deduction from salary of officer of amount duly
surcharged against him ; such deduction not to exceed one-
quarter of salary due.]
16. [Short title : ” Audit Act Amendment Act, 1875.”]
1 Regulating the administration of the property of minors.
1889-92] CENTRAL GOVERNMENT 73
SCHEDULE.
Railway, Postal, Telegraph and Customs Revenue, Port
and Harbour Dues, Rent (exclusive of Land Rent and Tolls),
Fines, Forfeitures and Fees of Court (Judicial), Fees of Office,
Sales of Government Property, Reimbursements, Excise
Duty, and such other Heads of Revenue as Parliament may
by resolutions adopted by both Houses direct.
P.R.O., C.O. 50/7.
SALARY OF HIGH COMMISSIONER FOR SOUTH
AFRICA. [Promulgated lath August 1889.]
No. 38 of iSSg. 1
No. 47. Act. To provide for the Salary of Her Majesty’s
High Commissioner for South Africa. [Assented to I2th
August 1889.]
Be it enacted by the Governor of the Cape of Good Hope,
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
1. [High Commissioner to receive out of the public revenue
of the Colony the annual salary of 3000.]
2. [Short title : ” The High Commissioner’s Salary Act,
1889.”]
P.R.O., C.O. 50/7.
NARROWING THE PARLIAMENTARY FRANCHISE.
[Promulgated i6th August 1892.]
No. 9 of 1892. 2
No. 48. Act. To amend the Law with regard to the Qualifica-
tion of Voters for Members of Parliament, and to make
provision for taking Votes by Ballot at Parliamentary
Elections.
Be it enacted . . .
1. [Repeal of repugnant laws.]
2. [Interpretation of terms.]
3. [Sections 4, 5, 6, 7, 17, etc. not to apply to voters already
registered so long as they continue to reside in places in respect
of which they are registered.]
4. Subject to the provisions in the third section contained,
(a) The words ” twenty-five ” where they first occur
1 Repealed by Act No. 2 of 1902.
2 Cf. Act No. 2 of 1905, which prescribed when soldiers, seamen, and marines
could vote.
74 CAPE OF GOOD HOPE [1893
in the eighth section of the Constitution Ordi-
nance shall be expunged, and the words ” seventy-
five ” inserted in their stead.
(b) The words, ” or who having been in the receipt for
the space aforesaid of salary or wages at and after
the rate of not less than twenty-five pounds by
the year shall, in addition to such salary or wages,
have been supplied with board and lodging,”
where they occur in the said eighth section of
the said Ordinance, shall be expunged.
(c) The words ” twenty -five ” wherever they occur in
the ninth section of the said Ordinance, or in
the seventeenth section of the Act 14 of 1887,
or wherever they are used in any statute to
denote the value of property required to be
occupied in connection with the qualification
of a parliamentary voter, shall be expunged,
and the words ” seventy-five ” inserted in their
stead.
5. [Qualification of voters in Griqualand West to be the
same as in other parts of the Colony.]
6. [Subject to a few exceptions] no person shall, from and
after the taking effect of this Act, be entitled to be registered
as a parliamentary voter for any Electoral Division in this
Colony, unless such person is able to sign his name and to write
his address and occupation.
[Etc.]
85. This Act may be cited as the ” Franchise and Ballot
Act, 1892.”
P.R.O., C.O. 50/8.
MINISTERIAL OFFICES. [Promulgated 12 Sept. 1893.]
No. 14 of 1893.
No. 49. Act. To create the Office of a Minister of Agriculture,
to abolish the Office of Secretary for Native Affairs, and
to amend the designation of and provide for the assign-
ment of duties to certain Ministerial Officers.
Be it enacted by the Governor of the Cape of Good Hope,
by and with the advice and consent of the Legislative Council
and House of Assembly thereof, as follows :
1. From and after the taking effect of this Act there shall
be in this Colony a certain office, to be called the office of
” Secretary of Agriculture.”
2. The person to hold the said office shall be appointed by
Her Majesty the Queen, and shall hold office during Her
1893] CENTRAL GOVERNMENT 75
Majesty’s pleasure, and shall be charged with such duties
as Her Majesty shall from time to time assign to him.
3. The provisions of sections 3, 4, and 8 of the Act No. i of
1872 and of section 8 of the Act No. 18 of 1874 shall apply to
the said office and the Secretary for Agriculture as though
the said office and the said Secretary had been therein specifi-
cally mentioned and referred to.
4. The Secretary for Agriculture shall from the date of
his appointment receive salary at the same rate at which
those officers receive salary who are named in section 2 of the
Act No. 32 of 1879, which was revived under and by virtue of
the provisions of Act No. 28 of 1887, and he may be the Prime
Minister. 1
5. Notwithstanding anything to the contrary contained
in the Act No. i of 1872, the officers therein styled ” The
Treasurer of the Colony,” and ” The Commissioner of Crown
Lands and Public Works ” shall be respectively styled ” The
Treasurer ” and ” The Commissioner of Public Works.”
6. The Office of Secretary for Native Affairs constituted
under the Act No. i of 1872 shall be and is hereby abolished,
and the duties and functions hitherto assigned to and exercised
by the Secretary for Native Affairs shall, from and after the
taking effect of this Act, be discharged and performed by the
Prime Minister of this Colony for the time being, or by any
other Minister to whom the Governor may assign the same.
7. In the interpretation of any law the word ” Minister ”
shall mean that member of the Executive Council to whom
the administration of that law is assigned, unless there be any-
thing in the context inconsistent with or repugnant to such
interpretation : Provided that whenever by any law the exer-
cise of any power or the performance of any duty or function
is conferred or imposed on or assigned to any Minister therein
named, such power, duty, or function may legally be exercised
or performed by any other Minister to whom the Governor may
assign the exercise or performance of the same.
8. The Prime Minister shall, notwithstanding that save as
aforesaid he shall not hold one of the offices referred to in the
third section of the Act No. i of 1872, be deemed to be included
in the empowering provisions of the fourth section of that Act.
9. This Act shall take effect upon the promulgation thereof,
and may be cited as the ” Minister of Agriculture Act, 1893.”
P.R.O., C.O. 50/8.
1 It is believed that this is the first mention of the office of Prime Minister
in any law ot the British Empire.
76 CAPE OF GOOD HOPE [1894-95
ANNEXATION OF PONDOLAND. [25 Sept. 1894.]
No. 5 of 1894.
No. 60. Act. To provide for the Annexation of the Country
known as Pondoland. P.R.O., C.O. 50/8.
ANNEXATION OF BRITISH BECHUANALAND.
No. 41 of 1895. [n Nov. 1895.]
No. 51. Act. To make provision for the Annexation to this
Colony of the Territory of British Bechuanaland.
P.R.O., C.O. 50/8.
SECTION B.
LOCAL GOVERNMENT.
REPAIR OF ROADS. [21 March 1800.]
No. 52. Proclamation. By Sir GEORGE YONGE, Baronet, etc.
WHEREAS it appears evident upon Enquiry that the roads of
this Colony stand in need of considerable repairs, previous to
the ensuing Winter ; and as the Burgher Senate and the Land-
drosts in the different Districts are the persons under whose
immediate orders and directions such repairs are to be under-
taken. In order, therefore, that a work so essentially neces-
sary to the comfort and convenience of all ranks of Society
may be carried on in such a manner as to those entrusted with
the care and management of it may appear most likely to the
completion thereof ; I do by virtue of these presents declare
and make known to all the inhabitants of this Colony, That all
Regulations and directions coming from the Burgher Senate or
the Landdrosts and Heemraden in their Districts are to be
considered in this particular instance as the orders of Govern-
ment, and are consequently to be obeyed as such, and any
person or persons who, regardless of these my Commands, shall
neglect or hesitate to comply with the orders and directions they
may receive from those acting under my authority shall upon
their disobedience being proved pay a Fine of One Hundred
Rix-dollars to be appropriated towards the defraying of the
Expenses attending the before-mentioned Repairs.
[Etc.]
Rec. III. 82.
i8o6-28] LOCAL GOVERNMENT 77
REPAIR OF ROADS. [13 Sept. 1806.]
No. 53. Government Advertisement. Notice is hereby given, that
in consequence of the representations that have been made
to His Excellency the Lieutenant-General Commanding in
Chief, upon the bad state of the Roads in the Country Districts,
he has directed the several Landdrosts to be written to,
authorising them to appoint an Overseer of the Roads in each
District, who will be empowered to call upon the Inhabitants
to furnish a proportion of their Slaves (according to an accurate
list to be furnished by the Landdrost and Heernraden) for the
repair of the Roads.
Persons neglecting to furnish their Slaves when called upon,
will be liable to a penalty of Fifty Rix-dollars for each offence,
which sum is to be levied by Landdrost and Heemraden, and
applied to the Fund for the repairing of the Roads.
Prods., etc., p. 37.
THE COLLECTION OF THE REVENUE. [28 Feb. 1828.]
[Civil Commissioners succeeded to the administrative duties of Land-
drosts and Heemraden. In 1834 the offices of Civil Commissioner
and Resident Magistrate were united. Cf. document No. 73.]
No. 43.
No. 64. Ordinance. Of His Honour the LIEUTENANT-GOVERNOR
in Council, for empowering the Collector of Taxes in Cape
Town, and the Civil Commissioners of the Country Dis-
tricts, to collect the several Taxes and Duties now or
hereafter to be imposed, and payable within the Colony.
WHEREAS certain of the Taxes now payable in this Colony
have been heretofore collected and got in by the Landdrosts,
Landdrosts and Commissioned Heemraden, Deputy Land-
drosts, Deputy Landdrosts and Commissioned Heemraden,
Residents, and Residents and Commissioned Heemraden, of the
several Districts, Subdistricts, and Residencies, respectively ;
and certain others of the said Taxes have heretofore been
collected by and got in by the late Burgher Senate : And where-
as the Offices of Landdrost, Deputy Landdrost, and Resident,
have now ceased and determined, and the said Burgher Senate
has been abolished, whereby the Revenue can no longer be
collected as heretofore, and it is therefore necessary to make
some other Provision in that behalf : Be it therefore enacted,
by His Honour the Lieutenant-Governor in Council, that the
several Taxes and Duties heretofore payable to, and levied by,
the said Burgher Senate, shall, from and after the passing of
this Ordinance, be payable to, and levied by, the Collector of
Taxes in Cape Town ; . . . and the several Taxes and Duties
78 CAPE OF GOOD HOPE [1836
heretofore payable to, and levied by, the Landdrosts, Deputy
Landdrosts, and Residents, of the several Districts, Sub-
districts, and Residencies, and all Taxes hereafter to be im-
posed, shall, from the time aforesaid, be payable to, and levied
by, the said Collector and the Civil Commissioners respectively
within their respective Jurisdictions ; and the said Collector
and Civil Commissioners shall have full Right and Power to
collect all Taxes and Duties, and Arrears thereof, and to sue
for and recover the same by any Action or Suit to be brought
by them in any competent Court.
II. And be it further enacted, That the said Collector of
Taxes, and the said Civil Commissioners, shall take the follow-
ing Oath before the Chief Justice, or any of the Judges of the
Supreme Court, or any Resident Magistrate (who are hereby
empowered and required to administer the same), before they
act in pursuance of the provisions of this Ordinance :
I, A. B., do swear, that I will act truly, faithfully, im-
partially, and honestly, according to the best of
my skill and knowledge, in collecting the several
Taxes which I am empowered to do by an Ordi-
nance marked No. 43, bearing date the 28th day of
February 1828 ; and that I will act in all matters
and things which shall be brought before me in
collecting the said Taxes, without favor or affection.
So help me God !
GOD SAVE THE KING.
P.R.O., C.O. 50/1.
MUNICIPAL BOARDS CREATED. [15 Aug. 1836.]
No. 9, 1836.
No. 56. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the Advice and Consent of the
LEGISLATIVE COUNCIL thereof, for the creation of
Municipal Boards in the Towns and Villages of this
Colony, on which the Local Regulations of each shall be
founded.
WHEREAS it is expedient that due provision should be made
for the better regulation of certain matters and things of a
local nature within the several Districts, Towns and Villages
in this Colony, and that Municipal Boards should be consti-
tuted and established therein for that purpose : Be it there-
fore enacted, . . . that from and after the First day of October
next, it shall and may be lawful for any Resident Magistrate,
or Justice of the Peace, within the limits of his jurisdiction,
and he is hereby required, upon a requisition made to him in
1836] LOCAL GOVERNMENT 79
writing to that effect by any number of resident Householders,
not less than twenty-five, and severally paying taxes to an
amount exceeding six shillings sterling per annum, and resident
respectively within one mile of any one central place which
shall be specified in the said requisition, to call a meeting of
Householders paying such amount of Taxes as aforesaid, and
resident within the limits aforesaid, to determine whether
Municipal Regulations shall be adopted for the Town, Village
or Place intended to be erected into a Municipality.
II. And be it further enacted, That three weeks’ notice at
least of the time and place of holding such meeting shall be
given by the Resident Magistrate or Justice of the Peace,
calling the same, by a printed or written notice affixed to
some conspicuous place or places of public resort within the
limits aforesaid.
III. And be it further enacted, That the chairman who
shall preside at any meeting assembled as hereinbefore directed,
shall read, or cause to be read, the requisition whereupon the
meeting shall have been summoned, and shall require such
resident householders as aforesaid assembled thereat, to deter-
mine, by majority of votes, whether municipal regulations
shall, or shall not, be adopted and acted upon within the said
intended municipality.
IV. And be it further enacted, That if at any such meeting
it shall be determined by a majority of votes, that municipal
regulations shall be adopted, then and in such case any such
Resident Magistrate or Justice of the Peace as aforesaid to
whom such determination shall be notified by the chairman
of such meeting, shall forthwith call another meeting of such
resident householders as aforesaid, to be holden within seven
days thereafter, in order to elect and appoint a committee of
so many of such resident householders as aforesaid, as the said
meeting shall deem expedient, to frame and draw up municipal
regulations.
V. And be it further enacted, That the committee so to be
elected and appointed, shall be chosen by such resident house-
holders assembled at such meeting by majority of votes.
VI. And be it further enacted, That the committee so
chosen as aforesaid, shall forthwith proceed to frame and
draw up such municipal regulations as they may deem ex-
pedient, and shall submit the same, when prepared, to a
meeting of such resident householders as aforesaid, to be called
by the said committee upon seven days’ notice to be given in
manner aforesaid : Provided always, that such committee
shall submit such regulations to such meeting as aforesaid,
within one month from the date of their appointment, other-
wise the said committee shall be ipso facto dissolved, and a new
80 CAPE OF GOOD HOPE [1836
committee shall then and in every such case be chosen in
manner and for the purpose aforesaid, at a meeting to be called
by any such Resident Magistrate or Justice of the Peace as
aforesaid, to whom such dissolution of the committee shall
have been notified.
VII. And be it further enacted, That in such regulations
it shall be the duty of such committee to fix the limits of the
municipality, and to divide the municipality into wards,
if necessary, and to fix the number of commissioners and
wardmasters for the municipality or the several wards thereof,
and to make rules for the classification and valuation of the
immovable property therein, and to frame all other regula-
tions which shall be necessary, to enable the said com-
missioners to carry into effect the provisions of this Ordinance,
or such of them as the said committee shall think expedient
and necessary for the municipality.
VIII. [Magistrate or Justice of the Peace to be chairman
at the meeting of householders.]
IX. And be it further enacted, That at such meeting the
question shall be put by the chairman on each and every
clause contained in the regulations submitted by the com-
mittee, seriatim, and afterwards on the whole of the regula-
tions jointly ; and a majority of votes shall decide whether such
clause, or the whole of the regulations jointly, as the case may
be, shall or shall not be adopted.
X. And be it further enacted, That the regulations adopted
at such meeting shall forthwith be transmitted to the Governor
of the Colony for the time being, for the approval, amendment,
or disallowance thereof, of the said Governor, by and with the
advice of the Executive Council ; and in case such regulations
shall be approved, notice of such approval shall be given by
Proclamation to be made in that behalf ; and the said regula-
tions shall be published in the Government Gazette, and shall
thereupon become as legal, valid, and effectual, as if the same
had been inserted herein. . . .
XI. [Alteration of regulations from time to time.]
XII. And be it further enacted, That so soon as such
original regulations as aforesaid shall have appeared in the
Government Gazette, the resident magistrate of the district
shall, and he is hereby required, by a notice of not less than
ten days in manner hereinbefore provided, to call a meeting
of such resident householders as aforesaid, residing within the
limits of such municipality, to be holden for the election and
choice of so many commissioners as shall have been specified
in the said regulations to carry the same into effect ; and
the said commissioners for the municipality, or the wards
thereof respectively, shall be elected by a majority of votes
1843] LOCAL GOVERNMENT Si
of such resident householders as aforesaid present at such
meeting ; and any such resident magistrate or justice of the
peace shall preside as chairman at such meeting.
XIII. And be it further enacted, That any person residing
within the municipality, and being the proprietor of a house
situate within the same, and who shall pay annually a sum of
not less than one pound sterling in taxes shall be eligible to
be elected a commissioner * for the purposes of this Ordinance,
and shall be proposed at the same meeting by some person
duly qualified to vote thereat, and shall be seconded by some
other person in like manner qualified.
XI V. And be it further enacted, That every person who
shall be elected a commissioner in any municipality in manner
aforesaid, shall go out of office at the end of the third }’ear
from the said first election ; . . . provided always, that any
of such out-going commissioners shall be re-eligible, and may
be re-elected, and shall in such case continue to act and remain
in office, anything herein contained to the contrary notwith-
standing.
XV.-XLVIL [Officers of the Boards and details of muni-
cipal business.]
XLVIII. And be it further enacted, That every person,
who is the occupier of any dwelling-house, either as proprietor
or renter, of the yearly value or rent of not less than ten pounds
sterling, shall be, and be deemed and taken to be, a resident
householder within the meaning of this Ordinance : and that
at the several meetings of such resident householders 2 as
aforesaid, hereinbefore appointed or authorized to be hoi den,
every such householder who shall be personally present, shall
have and be entitled to one vote, and no more.
[Etc.]
P.R.O., C.O. 50/1.
CREATION OF ROAD BOARDS. [22 Nov. 1843.]
No. 8, 1843.
No. 56. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL thereof, for Improving the Public
Roads of the Colony.
… Be it … enacted by the Governor of the Cape of
1 Duties assigned to Commissioners : to call meetings for the purpose of
assessing taxes, appoint watchmen, provide fire-engines, erect lamp-posts,
lay pipes for the conveyance of water, build bridges and streets, establish
markets, enforce regulations relative to weights and measures, etc.
2 The text has ” shareholders,” obviously an error.
6
82 CAPE OF GOOD HOPE [1843
Good Hope, by and with the consent of the Legislative Council
thereof, that, from and after the promulgation of this Ordinance,
it shall and may be lawful for the Governor of this Colony to
nominate and appoint certain fit and proper Persons to form
a Central Board of Commissioners, to be styled ” The Central
Board of Commissioners of Public Roads.”
I. And be it enacted, that the said central board shall
consist of six persons, three of whom shall be persons holding
some office of profit under Her Majesty, and three of whom
shall be persons not holding any office of profit under Her
Majesty. . . .
II. And be it enacted, that the said governor shall by
. . . proclamation . . . nominate and appoint one of the
members of the said board to be the chairman thereof. . . .
III. And be it enacted, that it shall and may be lawful
for the said board, and it shall be the duty of the same so
far as the means from time to time at its disposal will permit,
to improve, and, as much as may be, bring into a fit and
proper state the main roads throughout the Colony. . . .
XXII. And be it enacted, that so soon as the valuation
of the whole of the immoveable property in any division
subject to assessment, shall have been completed … it
shall be lawful for the said board, and it is hereby empowered
… to assess and impose such a rate l as it shall deem neces-
sary and expedient, for effecting the objects of this Ordinance,
upon all such immoveable property in such division, whether
situated within or beyond the limits of any municipality, as
shall be valued at or above the value of fifty pounds sterling. . . .
XXIX. And whereas the branch roads of the Colony stand
much in need of reparation, and it is expedient to provide for
the gradual improvement of the same ; Be it enacted that
the civil commissioner of each division, or officer for the time
being acting as such, shall within one calendar month after
the valuation of the immoveable property in that particular
division shall have been by means of the central board effected,
in manner and form as hereinbefore mentioned, call, upon a
notice of not less than thirty-one days, to be published in the
Government Gazette, a meeting of all the owners of immoveable
property in such division, valued at fifty pounds or upwards,
to be held at some convenient time and place to be named in
such notice, for the purpose of electing four persons to form,
with such civil commissioner, or officer for the time being acting
as such, a board to be styled, ” The Board of Public Roads
for the Division of
1 At the expiration of every period of twelve months a new rate may be
levied. Not more than three, rates are to be levied in any division, and no
rate is to exceed id. in the pound on the value of property.
1855] LOCAL GOVERNMENT 83
XXXIV. And be it enacted, that the four members first
elected in each division . . . shall . . . remain in office for
the next ensuing three years. . . .
P.R.O., C.O. 50/1.
CREATION OF DIVISIONAL COUNCILS. [8 June 1855.]
No. 5, 1855.
No. 57. An Act. For Creating Divisional Councils in this
Colony. 1
WHEREAS it is expedient that Boards should be established
in the several divisions of this colony, for the better administra-
tion of their local affairs : And whereas it is expedient to
make provision, by this Act, for the better administration of
the functions now performed by the Divisional Road Boards,
the District School Commissions, and of the Court for the
better Regulation of Pounds and Prevention of Trespasses,
leaving it to Parliament, hereafter, from time to time, by
other Acts thereof, to bestow or impose such further powers,
functions, and duties upon such Boards as shall be provided
and prescribed : And whereas it is expedient that such Divi-
sional Boards should be called Divisional Councils, and that
all the members of every such Council, with the exception of
the Civil Commissioner, should be elected by the inhabitants :
Be it therefore enacted by the Governor of the Cape of Good
Hope, with the advice and consent of the Legislative Council
and the House of Assembly thereof, as follows :
I. The Ordinances No. 8, 1843, and No. 16, 1847, as far
as they are contrary to, and repugnant to or inconsistent
with, the provisions contained in this Act, are hereby re-
spectively repealed.
II. Every division of this colony shall be divided into six
subdivisions, to be called districts, and every such district
shall elect one person to be a member of the Divisional Council
of such division.
III. [Governor to define limits of districts in each division.]
IV. [Governor may alter limits of districts.]
V. All persons in any such district, registered as voters
under the ordinance for constituting a parliament for this
colony, and no other persons, shall be entitled to vote for
the members of the Divisional Council, to be elected by such
district.
VI. [Polls to be taken by field-cornets in their respective
wards.]
1 Cf. the Divisional Councils Acts No. 4 of 1865 and 40 of 1889, not printed
in this volume.
84 CAPE OF GOOD HOPE [1855
VII. No voter shall vote except in the field-cornetcy in
which such voter stands registered.
VIII. Every person registered as a voter, for any division,
under the ordinance aforesaid for constituting a parliament,
shall (except as hereafter excepted) be eligible to be elected,
by any district into which such division shall be subdivided
as aforesaid, to be the member for such district of the Divisional
Council of such division : Provided that no person holding
any office of profit under Her Majesty the Queen within this
colony, and no uncertificated insolvent, shall be eligible to be
elected.
IX. [When field-cornets are to take a poll.]
X. [Poll to be open from 8 a.m. to 5 p.m.]
XI .-XVI. [Manner of polling, counting of votes, etc.]
XVII. [Civil Commissioner to publish names oi persons
elected.]
XVIII. [And to call the first meeting.]
XIX. [And to preside at all meetings.]
XX. [Three members to form a quorum.]
XXI. [Who to preside if Civil Commissioner is absent.]
XXII. [Members to sit for three years and to be re-eligible.]
XXIII.-XXIV. [Procedure at subsequent elections.]
XXV. [No election to be deemed incomplete so long as
there are elected sufficient members to form a quorum.]
XXVI. [When a member vacates his seat.]
XXVII. [Manner of filling vacancies.]
XXVIII. [Civil Commissioner’s Clerk to act as secretary
of Divisional Council.]
XXIX. [In what terms Divisional Councils shall be referred
to.]
XXX. [Each Divisional Council to frame standing rules
and orders, which must be submitted to the Governor for his
approval.]
XXXI. The powers and functions now vested in the
Divisional Road Boards, by Ordinance 8, 1843, shall, from and
after the passing of this Act, cease and determine, and all such
powers and functions shall be vested in the Divisional Councils
by this Act created : Provided that, in regard to the division
of the Cape, the joint boards of commissioners and ward-
masters of the municipalities of Cape Town and Green Point,
voting together as one constituency, shall be entitled to elect
three persons, who shall, in regard to all matters connected
with the powers and functions in the said Ordinance men-
tioned, be entitled to sit, deliberate and vote with the mem-
bers of the Divisional Council of the Cape Division, precisely
as if ordinary members thereof : Provided that, as soon as
may be after the Civil Commissioner of the Cape Division
1858] LOCAL GOVERNMENT 85
shall have issued the notice in the gth section of this Act
mentioned, he shall, by a notice to be published in the
Government Gazette, appoint a day and hour and fix a place ior
taking the poll of the joint boards aforesaid, upon which day,
and at which place and hour, the said Civil Commissioner shall
attend to take the poll ; and such Civil Commissioner shall
cause the names of the three persons who shall be elected by a
majority of votes to be published in the Government Gazette ;
and provided that such notice as aforesaid shall be published
for not less than fourteen days before the day named for the
taking of the poll : Provided also that every member of such
joint boards shall have three votes, but shall not be entitled
to give more than one vote to one person : And provided
further, that the three persons so elected as aforesaid shall
receive due notice of all meetings of the Divisional Council of
the Cape Division, for the consideration of all matters relative
to the road administration vested, as aforesaid, in such Council,
according to such standing rules and orders in that behalf, as
shall be framed by the Divisional Council and approved of by
the Governor: And provided, lastly, that all liabilities, law-
fully existing, against any divisional road board shall survive
against the Divisional Council of the same division.
XXXII. The powers and functions now vested in the
several District School Commissions shall likewise so cease
and determine, and the Divisional Councils created by this
Act shall henceforth perform and exercise all functions re-
quired to be performed by such School Commissions in their
respective divisions.
XXXIII. The powers vested in the Civil Commissioners
and Justices of the Peace, under and by virtue of section 27,
Ordinance No. 16, of 1847, entitled an Ordinance for the Better
Regulation of Pounds and Prevention of Trespasses, shall cease
and determine, and be vested in and exercised by the said
Divisional Councils, from and after the promulgation of this
Act.
XXXIV. This Act shall commence and take effect from
and after the promulgation thereof.
P.R.O., C.O. 52/18 (C. ofG. Hope Govt. Gazette,
12 June 1855).
MANAGEMENT OF PUBLIC ROADS. [5 June 1858.]
No. 9 of 1858.
No. 58. An Act. To provide for the Management of the Public
Roads of the Colony.
WHEREAS it is expedient to make other and better pro-
vision for the maintenance and improvement of the Public
86 CAPE OF GOOD HOPE [1858
Roads of this Colony : Be it enacted by the Governor of the
Cape of Good Hope, with the advice and consent of the Legis-
lative Council and the House of Assembly thereof, as follows :
I. Except as hereinafter provided, Ordinance No. 8, 1843,
entitled ” An Ordinance for improving the Public Roads of
the Colony,” and Ordinance No. 12, 1844, amending the afore-
said Ordinance, and Ordinance No. 17, 1847, declaring the
meaning and construction of the 2ist section of the aforesaid
Ordinance, and Ordinance No. 7, 1848, amending and con-
tinuing certain provisions of the aforesaid Ordinance, shall be
repealed from and after the last day of December next.
II. From and after the first day of January next, the
several roads of the colony, which may by any Act of the
Legislature of this colony be declared to be a main road, shall
be under the charge of the general Government, as hereinafter
provided, whose duty it shall be to make, maintain, and
improve such main roads, so far as the funds placed at its
disposal by this or any future Act will enable it.
III. [Central Road Board dissolved, and its affairs to be
wound up by certain commissioners appointed by the Governor.]
VII. [Main roads to be under the control of the Governor,
and under the charge of the civil engineer, as chief com-
missioner, and 3 assistant commissioners.]
VIII. No new line of main road shall be commenced, nor
any deviation made from any existing line of main road, nor
any new work undertaken upon any existing main road, the
cost of which work shall be estimated to exceed two hundred
pounds (unless such new work shall be absolutely necessary,
to prevent the interruption of the communication on such road),
except with the previous sanction of Parliament ; and in like
manner, the charge of any line of main road shall not be
abandoned without such previous sanction.
XX. The several Divisional Councils constituted under
Act 5, of 1855, shall, with such funds as are by this or any other
Act placed at their disposal for such purpose, be charged with
the duty of superintending, making, improving, and preserving
all divisional or branch roads within their respective divisions.
XXVI. All persons owning immovable property within
any division, or any municipality within such division . . .
shall be liable to be rated on account of such property for the
maintenance of the public roads. . . .
XXIX. [Municipalities of Cape Town and Green Point
to be within the Cape division for purposes of this Act, and to
elect four members to the divisional council.]
LIV. Every Divisional Council shall cause an exact and
particular account to be kept, and to be made up and balanced
at the end of each year . . . and to furnish a copy of such
1858] LOCAL GOVERNMENT 87
account, together with all necessary vouchers, to the Governor,
in order that the same, after having been audited by the Auditor
of the Colony, may be laid before both Houses of Parliament.
[Etc.] P.R.O., C.O. 50/3.
EDUCATIONAL BOARDS. [5 June 1858.]
No. 14 of 1858.!
No. 59. An Act. For the Creation of Educational Boards in
the Field-Cornetcies, Villages, and Towns of this Colony
on which the Local Regulations of each shall be founded.
WHEREAS it is expedient that due provision should be made
for the establishment and maintenance of public schools in the
several field-cornetcies, villages, and towns in this colony, and
that educational boards should be constituted and established
therein for that purpose : Be it therefore enacted by the
Governor of the Colony of the Cape of Good Hope, by and with
the advice and consent of the Legislative Council and House
of Assembly thereof :
I. From and after the first day of July next it shall and
may be lawful for any field-cornet, resident magistrate, or
justice of the peace, within the limits of his jurisdiction, and he
is hereby required, upon a requisition made to him in writing
to that effect, by any number of resident householders not
less than fifteen in towns and villages, and not less than ten
in rural field-cornetcies, and resident respectively within the
limits of any such field-cornetcy, village, or town or any ward
or wards within the same, which shall be specified in the said
requisition, to call a meeting of householders resident within
the limit aforesaid, to determine whether educational regula-
tions shall be adopted for the field-cornetcy, village, town, or
place intended to be erected into an educational district.
IV. [Meeting to elect a committee to draw up educational
regulations.]
V. [Electors of members of Parliament to vote for members
of committee.]
VI. [Committee to draw up educational regulations.]
IX. [Regulations to be submitted to a subsequent meeting
of householders.]
X. The regulations adopted at such meeting shall forth-
with be transmitted by the chairman of such meeting to the
divisional council for the approval, amendment, or disallowance
1 Repealed by Act No. 13 of 1865, not printed in this volume. Other Educa-
tion Acts to be consulted are No. 24 of 1874, 30 of 1898, and particularly 35 of
1905. The ” University Incorporation Act,” No. 16 of 1873, is also of interest
in this connection.
88 CAPE OF GOOD HOPE [1882
thereof, of the said council. [If amended by the council the
regulations shall again be submitted to a meeting of house-
holders.]
XII. So soon as such original regulations as aforesaid shall
have appeared in the Government Gazette, the resident magistrate,
within the limits of whose jurisdiction the . . . school district
shall be included, … is hereby required, by a notice of
not less than fourteen days, … to call a meeting of such
resident householders . . . residing within the limits of such
school district, to be holden for the election … of so many
commissioners as shall have been specified in the said regula-
tions to carry the same into effect ; and the said commissioners
shall be elected by a majority of votes of such resident house-
holders as aforesaid present at such meeting ; and any such
resident magistrate, field-cornet, or justice of the peace shall
preside at such meeting.
XIII. Any person residing in the school district shall
be eligible to be elected a commissioner for the purposes of
this Act. . . .
XIV. [Commissioners to be elected triennially.]
XXIII. [No commissioner to receive salary, fee, or reward.]
XXXI. The said commissioners shall nominate and appoint
the schoolmaster ; fix the hours and periods when the school
shall be kept open for elementary instruction, the rate of fees,
if any, to be charged ; hear and decide on all complaints
or charges brought before them, regularly and in writing, by any
resident householder, against the said schoolmaster, relating
to his conduct in the school, or his moral character, and shall
be empowered to censure, suspend, or dismiss him, as the facts
proved before them may require.
XXXII. In each and every school established under this
Act provision shall be made for instruction in the following
branches, that is to say, reading, writing, arithmetic, and
the outlines of geography and history.
P.R.O., C.O. 50/3.
MUNICIPALITIES. [30 June 1882.]
No. 45 of 1882.
No. 60. Act. To Consolidate and Amend the Law relating
to Municipalities.
WHEREAS it is expedient to consolidate and amend- the
laws relating to municipalities, and to provide more effectually
for the government of municipalities : Be it therefore enacted
i882] LOCAL GOVERNMENT 89
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council and House of Assembly
thereof, as follows :
PRELIMINARY.
I. This Act shall apply to every municipality hereafter
constituted and to every existing municipality which shall
in the manner of this Act provided be brought under the
operation of this Act.
II. From and after the commencement of this Act the
several Laws mentioned in the First Schedule shall be and
the same are hereby repealed, except as to property vested,
acts and things done or commenced, rights, privileges, and
protection acquired, liabilities incurred, offences committed,
and proceedings taken, and except as in the fourth section
is excepted.
III. In case any municipality incorporated by any Ordi-
nance or Act of the Legislature shall, in pursuance of the pro-
visions of this Act, come under the operation of this Act, it
shall be lawful for the Governor, by proclamation, to repeal
any such Ordinance or Act incorporating such municipality,
but notwithstanding such repeal, the provisions of the several
sub-sections numbered (i) to (6) respectively of the next suc-
ceeding section shall apply.
IV. Notwithstanding the repeal of the laws hereby re-
pealed, the said several laws shall be and continue in force and
applicable to every municipality already established as if this
Act had not been passed until such municipality shall come
under the operation of this Act, and as often as any existing
municipality shall come under the operation of this Act, the
following provisions shall apply :
(1) All creditors of such municipality shall have the
rights and remedies as if this Act had not been
passed.
(2) All municipal regulations then in force in such
municipality shall (unless repugnant to the pro-
visions of this Act) continue in force until altered
or amended under this Act.
(3) The councillors or commissioners, as the case may
be, then in office shall continue in office until
the election and first meeting of councillors
under the provisions of this Act.
(4) All rates due or payable to or recoverable by such
municipality shall be vested in and recoverable
by the municipality, newly constituted under
this Act, and the valuation or assessment roll
in use at such time, shall continue to be used
go CAPE OF GOOD HOPE [1882
until a new one shall be completed under the
provisions of this Act.
(5) All works and undertakings authorised to be exe-
cuted, all rights, liabilities, and engagements
existing, and all actions, suits, and proceedings
pending by or against or in respect of such muni-
cipality, shall be vested in, attached to, and
be enforced, carried on and prosecuted by or
against the municipality newly constituted :
and no such action, suit, or proceeding shall
abate or be discontinued or prejudicially affected
by such constitution.
(6) All property, movable and immovable, and all
moneys of or vested in any such municipality,
shall be vested in and belong to the munici-
pality newly constituted.
THE CONSTITUTION OF MUNICIPALITIES.
V. The inhabitants of every city, town, or village for the
time being subject to the provisions of this Act shall, under
such name or designation as the Governor may by proclama-
tion declare, be a body corporate with perpetual succession
and a common seal, with power to alter and change the same
from time to time, and shall by such name be capable in law
of suing and being sued, of purchasing, holding, and alienating
land, and of doing and performing such other acts and things
as bodies corporate may by law do and perform subject to the
provisions of this Act.
VI. Every municipality subject to the provisions of this
Act shall be governed by a council composed of a mayor or
chairman, and councillors ; and all acts of the council shall be
deemed to be acts of the municipality.
VII. Whenever the number of councillors for any muni-
cipality is determined under the provisions of this Act, such
number shall be not less than six nor more than twenty-four,
and in case such municipality is divided into wards, the
number produced by the return of three councillors for each
ward.
VIII. Subject to the provisions of this Act, the Governor
may from time to time exercise all or any of the powers
following :
(1) Declare any city, town, or village to be a munici-
pality, constituted under the provisions of this
Act.
(2) Assign a name to such municipality.
(3) Describe the boundaries thereof.
1882] LOCAL GOVERNMENT 91
(4) Unite any two or more villages, which form one
continuous area, so as to form one municipality.
(5) Subdivide or re-subdivide any municipality into
any number of wards not exceeding eight.
(6) Alter the boundaries of or abolish the subdivisions
existing in any municipality.
(7) Determine and alter, within the limits of this Act,
the number of councillors assigned to any muni-
cipality.
(8) Alter and adjust the boundaries of adjoining muni-
cipalities and determine any questions arising out
of such alteration and adjustment.
(9) Sever any portion of a municipality from the muni-
cipality of which it forms a part, and constitute
the same a separate municipality, or annex the
same to any other municipality of which the
portion severed formed one continuous area ;
and from time to time make any apportionment
of property, rights and liabilities, and give any
directions as to matters and things, that may
be necessary to do justice between the munici-
palities concerned.
IX. [Powers may be exercised by the Governor after a
request made by petition.]
X. [Such petition to be signed by three-fourths of the com-
missioners of any existing municipality, or by twenty-five or
more registered voters where no municipality exists.]
XII. [Interested persons may present counter-petitions.]
XIV. [Resident magistrate and others to investigate the
matter of such petitions.]
MUNICIPAL COUNCIL.
XV. Every male person of full age liable to be rated in
respect of immovable property within the municipality of
the yearly value of not less than twenty pounds owned or
occupied by him … for a period not less than six months
next before such election, and in regard to which property
no municipal rate made three months or more before the date
of such election shall then be due and in arrear, shall be eligible
to be elected a councillor, and qualified to hold office as such,
but so long only as he shall continue to possess such quali-
fication.
XVI. [Certain men disqualified.]
XVII. No person holding any office or place of profit
under Government, or under or in the gift of the council of
any municipality, or concerned in, or participating in the
profit of, any contract with any municipality, or concerned
92 CAPE OF GOOD HOPE [1882
in or in the profit of any work to be done under the authority
of any such council, shall be capable of being or continuing
a councillor of such municipality. . . .
XXVIII. Every person of full age, not disqualified under
the provisions of this Act, who on the first day of June in any
year is the owner or occupier of any immovable property in
any municipality, and who shall have paid all sums if any
then payable by such person in respect of any rates made
three months or more before such day, shall be entitled to be
enrolled on the voters’ roll for such municipality according
to the following scale :
(1) If the property liable to be “rated be of the annual
value of, or exceeding, ten pounds, and less
than fifty pounds, he shall have one vote.
(2) If such value amount to fifty pounds and be less
than one hundred pounds, he shall have two
votes.
(3) And if such value amount to or exceed one hundred
pounds, he shall have three votes.
[And in case any municipality is subdivided, every voter shall
vote in only one ward.]
XL. A first election of councillors in any municipality
shall be held on such day within three months after the con-
stitution thereof, as the resident magistrate of the district
may appoint.
XLI. [All councillors to be elected at the first election.]
XLII. [There is to be an annual election.]
XLIII. At the annual election [though not at the first
election] one-third [only] of the whole number of councillors
shall be elected, and in case of a subdivided municipality
they shall be elected in equal numbers for every ward.
LXXIV. [The councillors shall elect one of their number
to be chairman of the council.]
LXXVL [He may be styled ” chairman ” or ” mayor ”
according as the council shall regulate.]
LXXVIII. [Chairman to be ex officio a justice of the peace.]
LXXXV. [Meetings of council to be public.]
BYE-LAWS OR REGULATIONS.
CIX. The council of any municipality may from time to
time make, alter, and revoke bye-laws or regulations for all
or any of the following purposes :
1882] LOCAL GOVERNMENT 93
(1) Regulating the proceedings of the council and the
duties of their officers and servants, and pre-
serving order at council meetings.
(2) For preventing and extinguishing fires and com-
pensating the owners of buildings removed to
prevent the spread of fire.
(3) For establishing and regulating public markets and
market dues and regulating public sales.
(4) For suppressing nuisances, houses of ill fame, and
gaming-houses.
(5) For restraining noisome and offensive trades, and
compelling residents to keep their premises free
from offensive or unwholesome matters.
(6) For regulating the supply and distribution of any
water under the control or management of the
council.
(7) For regulating sewerage or drainage.
(8) For regulating lighting with gas, electricity, or
otherwise.
(9) For preserving public decency.
(10) For preventing the spread of contagious or infectious
diseases, and for preserving the public health.
(n) For regulating and licensing boatmen, porters,
public carriers, carters, cabs, and vehicles plying
for hire.
(12) For regulating the killing of cattle and sale of
butchers’ meat, and the establishment and
locality of slaughter-houses.
(13) For regulating the removal of night soil, stable
litter, filth, and refuse from private premises,
and from all streets, roads, and public places.
(14) For preventing the dangerous use of gunpowder,
fireworks, or other combustibles, and for regulat-
ing the storage or removal of petroleum, gun-
powder, dynamite, or other explosive material.
(15) For imposing a tax upon the keeping of dogs.
(16) For preventing the pollution of any water which
the inhabitants have a right to use.
(17) For establishing and maintaining cemeteries.
(18) For planting and preserving trees and shrubs.
(19) For regulating the width, curbing, paving, gutter-
ing, gravelling, and cleansing of roads and
streets.
94 CAPE OF GOOD HOPE [1882
(20) For establishing, maintaining, and controlling any
ferry, pontoon, or bridge, and levying and
collecting tolls and dues thereon.
(21) For granting licenses or permits for the making
of bricks, or for digging or removing clay or
gravel, or for quarrying stone, or for cutting
firewood, brushwood, or grass upon municipal
lands, and to prescribe the fees (if any) to be
paid for the same.
(22) To establish and provide for the management of
pounds and appointment of poundmasters,
subject to the provisions hereinafter in this Act
contained.
(23) To provide for the management and protection of
all common pasture or other municipal lands,
and to fix the number and description of live
stock any inhabitant shall be allowed to keep
and depasture thereon or any part thereof. But
no such provision shall interfere with or derogate
from any existing rights which may be possessed
or enjoyed by any person over such common
pasture or other municipal lands either by virtue
of any valid title deed or of any lawfully con-
stituted servitude.
(24) To grant temporary grazing rights over the said
lands to carriers and others frequenting or
passing through the municipality or attending
the markets thereof, or to travellers, and to
charge such reasonable dues as hereinbefore
mentioned in consideration of the same.
(25) For establishing, maintaining, and regulating public
libraries, museums, botanical gardens, parks,
public baths, and wash-houses, and public
places of recreation.
(26) For regulating traffic and processions.
(27) Generally maintaining the good rule and govern-
ment of the municipality. . . .
MAKING OF RATES.
CXXV. The council of every municipality shall once at
least in every year, and may from time to time as they may
see fit, make and levy rates upon all rateable property within
the municipality. And such rates may be :
1882] LOCAL GOVERNMENT 95
(1) A landlords’ or owners’ rate assessed upon the
value of the rateable property.
(2) A tenants’ rate assessed upon the annual value of
such property.
Or either or both of such rates.
[These rates not to exceed 2d. in the and 8d. in the
respectively.]
POWERS AND DUTIES OF THE COUNCIL.
CLVI. The council shall have power and authority to do
all or any of the following things :
To make, construct, alter, keep clean and in repair the
roads, streets, dams, furrows, sewers, drains,
culverts, and bridges within the limits of the
municipality.
To excavate, construct, and lay down within the limits
of the municipality, water courses, water pipes,
conduits, sluices, dams, reservoirs, aqueducts,
wells, and other works for supplying the inhabi-
tants of the municipality with water, and to keep
the same in repair, or to grant leave to any person
or company of persons, to lay down pipes or to
execute any other like works.
To lease, or purchase any land, and to erect, lease or
purchase, maintain and keep in repair, any
building or buildings for any municipal require-
ment or purpose.
To lease, purchase, or erect and maintain such school
buildings and manage such schools as the council
shall, from time to time, think proper ; and to
enter into such guarantees in respect of such
schools as may be required by the Government,
in case any aid from the Government in support
of such schools should be required under any Act
which may now or hereafter be in force for this
purpose.
CLVI I. The council of any municipality may appoint and
employ such number of street-keepers, policemen, and special
constables as shall be required. . . .
CLXXII1. All penalties or other moneys payable in respect
of any offence against this Act, or any bye-law made there-
under, may be recovered before the Court of the “Resident
Magistrate of the district.
9 6
CAPE OF GOOD HOPE
[1882
FIRST SCHEDULE.
ENACTMENTS REPEALED.
Number and Year.
Title.
Extent of Repeal
“Ordinance No. 9,
1836.
Ordinance No. 2,
1844.
Ordinance No. 8,
1848.
Ordinance No. 5,
1852.
Act No. 15, 1860.
Act No. 13, 1864.
Ordinance for the Creation of
Municipal Boards in the Towns
and Villages of this Colony, on
which the Local Regulations of
each shall be founded.
Ordinance for amending the Or-
dinance No. 9, 1836, entitled
[as above.]
Ordinance for enlarging in certain
respects the powers of Municipal
Commissioners in regard to the
Common Pasture Lands of the
Municipality.
Ordinance to enable Municipal
Commissioners appointed under
Ordinance No. 9, 1836, to pur-
chase or hire immovable pro-
perty for municipal purposes.
For continuing the Ordinance No.
9, 1836, entitled [as above], as
also the Ordinance No. 2, 1844,
entitled [as above.]
To amend the Ordinance No. 9 of
1836, entitled [as above.]
So much as has
not been al-
ready repealed.
The whole.
The whole.
The whole.
The whole.
The whole.
* Yet Act No. 9 of 1885 was again passed to amend Ord. No. 9 of 1836 !
SECOND SCHEDULE. [Form of Nomination.]
P.R.O., C.O. 50/7.
SECTION C.
ADMINISTRATION OF JUSTICE.
THE COURT OF JUSTICE. [i Oct. 1795.]
No. 61. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir GEORGE ELPHINSTONE, and J. H. CRAIG, Esq.
WHEREAS, after having considered of the most proper
means of promoting, as much as possible, agreeable to the
paternal intention of His Britannick Majesty the prosperity
and welfare of the Inhabitants of this Colony,
We have conceived that the maintaining of an uncorrupted
Justice and consequently the establishment of a Court of
Justice by which not only the Laws for the maintenance of
Peace, and Good Order, might be strictly enforced, but also
the mutual differences of the Inhabitants might be judged
and adjusted, according to the Laws, would be best conducive
to the fulfilling of that salutary intention, as the due main-
tenance of Law and Justice is the best surety for the safety
and happiness of a regular Society. And believing that it
will be for the benefit of the Colony in general, and of each
individual in particular, that the administration of Justice
should be given again to, and consequently remain in, the hands
of those who till now have had the charge of that important
office, and who are therefore supposed to be acquainted with the
Laws and Customs of this country ; We have thought it
expedient to re-establish, as we by these presents re-establish,
the Court of Justice of this Country in the same manner as
the said Court has existed on the i6th September last, when
this Colony was surrendered to His Britannick Majesty, in
order to administer Justice, in the name of His said Majesty,
in the same manner as has been customary till now, and accord-
ing to the Laws, Statutes, and Ordinances which have been in
force in this Colony, which we command to be followed in their
full tenor and effect, as far as the same are not by us or in our
name, or in that of any Governor or Commander-in-Chief for
the time being, already altered or in future may be altered for
the general benefit. Wherefore we command and enjoin all
and every of the Inhabitants, to acknowledge, to respect, and to
obey, the said Court of Justice, in the said quality, as becomes
faithful subjects and good Citizens, on penalty in case of acting
contrary of being punished as disturbers of the publick peace
and good order according to the Laws. And the Several
Members of the said Court of Justice before it resumes its
administration will take the Oath of Counsellors of Justice
on Monday next the I2th Inst. in the morning at 10 o’clock in
the Castle. Whereof these presents are to give notice to all
and every one. Rec. I. 187.
7
9 8 CAPE OF GOOD HOPE [1795
LANDDROSTS’ COURTS. [15 Oct. 1795.]
No. 62. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir G. I. ELPHINSTONE, and Major-General CRAIG,
etc. etc.
WHEREAS the good order and Government upon which
depends the peace, prosperity, and happiness of the people,
require that the Magistrates and Officers of Justice should
continue in their present employments and administer Justice
in the name of His Britannick Majesty in the usual form and
according to the Laws, Customs, and Usages which existed in
the Colony previous to its Surrender, until the same be other-
wise provided for, these are therefore in His Majesty’s name
to authorize, appoint, and require you to continue to exercise
the office of Landdrost of the district of (Graffe Reynet) :
hereby investing you with all rights, powers, and authorities
heretofore to the said office belonging, until His Majesty’s
Pleasure signified to you by us, or by any Future Governor
or Commander-in-Chief of the Colony for the time being, be
known, and the Several Inhabitants of the said district, as well
as all others concerned, are hereby required and enjoined
to pay all due obedience to you in all Manner of things relating
to your said office as Landdrost, and we do further direct
that all other Magistrates and others heretofore enjoying
offices of Police in the said district of (Graffe Reynet) do con-
tinue to exercise their several Employments as usual, till other-
wise ordered, for which this shall be to you and to them a full
and sufficient warrant.
Rec. I. 199.
POLICE ARRANGEMENTS. [20 May 1797.]
No. 63. Proclamation. By His Excellency GEORGE,
EARL OF MACARTNEY, etc.
WHEREAS representations have been made to me that,
upon a report of the Bosjesmen or Wild Hottentots having
plundered the Inhabitants dwelling near the Hex River on the
side of the Bokkeveld in the district of Drakenstein, of a con-
siderable quantity of their Cattle, the Landdrost of Stellen-
bosch had ordered an armed party of the Inhabitants to
assemble, and under the command of a Veld Wachtmeester
to endeavour to recover the Cattle that had been taken away,
but that then and in frequent instances of late the greatest
Indifference and Neglect of these Commands had been shown,
to the Detriment of good Order and the evident inconvenience
and danger of the well-disposed and industrious Inhabitants.
17973 COURTS OF JUSTICE 99
I have therefore judged it expedient and necessary to
authorize the Landdrost and Magistrates of the several Dis-
tricts of this Colony, and do by these presents authorize and
empower the said Landdrosts and Magistrates, each within his
District, to order a party of the Inhabitants to arm, assemble,
and take the field against the Wild Bosjesmen at all times when
such an expedition shall appear requisite and proper. And I
do by these presents enjoin and command the Inhabitants so
called upon to pay due and immediate obedience to the Orders
of the Veld Wachtmeester, or other persons appointed by the
Landdrost or Magistrates to command the said party, and
vigilantly to assist in repelling or attacking the Wild Bosjes-
men, Runaway Slaves, or other Depredators of private property
and Disturbers of the public peace. And altho’ the Interest
of the persons called upon to act in defence of their property
against the savage and common Enemy should of itself suffi-
ciently excite them to pay ready and cheerful obedience to
commands issued for their own safety and welfare, still instances
to the contrary having happened, I have judged it expedient
and proper to give this public notice of the foregoing Authority
and Instructions given to the Landdrosts, and by these presents
to warn and command all and every one of the Inhabitants of
this Colony, when thus legally called upon, to pay immediate
and cheerful Obedience, as they shall answer to the contrary
by Fine or such other punishment as has been usual under the
former Government and the Nature of the Crime shall appear
to require.
Rec. II. 89.
COURTS OF JUSTICE. [24 July 1797.]
No. 64. Proclamation. By His Excellency GEORGE, EARL OF
MACARTNEY, etc.
The Administration of Justice being an object of the
highest concern to the welfare of the People, and consequently
engaging the particular care and attention of His Majesty’s
Government, It appears to me expedient to make certain
arrangements and regulations in the judicial Courts of this
Colony for the ease and benefit of its Inhabitants.
I observe from the records, that by the instruction of the
former Government, dated 3rd December 1783, the Court of
Justice was to consist of thirteen Persons, viz. : the President,
the Fiscal, and eleven ordinary Members, and that at the time
of the Capitulation, on the i6th September 1795, It then con-
sisted of the President, the Fiscal, and nine ordinary Members,
ioo CAPE OF GOOD HOPE [1797
besides two others, Mr. Henry de Wet and Mr. Peter Truter,
who tho’ on account of their affinity with the President and
the member Mr. Henry Andrew Truter, they had no judicial
Seats in the Court, yet attended and were employed on com-
missions of inspection, judicial enquiry, and information.
Nearly according to this form the Court of Justice was
re-established by the late Governor my Predecessor, and
appointed to discharge its usual functions.
In the same manner were continued the other Boards of
Judicature, that is to say, In the Cape Town the Court of
Commissioners authorized to determine questions not exceed-
ing ioo Rixdollars, and at Stellenbosch, Swellendam, and Graaf
Reinet those of the Landdrost and Heemraden, the two former
authorized to determine Suits not exceeding ioo Rixdollars,
and the latter on account of its exposed situation empowered
to determine Suits of 1000 Guilders.
Now considering that the Inhabitants of this Colony have
been long accustomed to the subsisting laws and jurisprudence,
and that no abuse of the same has come to my knowledge,
I think it proper to declare, and it is by these presents declared
and directed that the administration of the civil and criminal
Justice do continue on the ancient Ground, except where
it shall have already been altered and improved since the
surrender of this Colony, or shall hereafter be altered and
improved as occasion may require.
I have also judged it convenient for the public service to
lessen the number on the establishment of the Court of Justice
and to order that it henceforth do not exceed the following
numbers, viz. : The President, the Fiscal, and five ordinary
Members. The said seven Members therefore are to constitute
the full Court, and that the Members Mr. Henry de Wet and
Mr. Peter Truter do attend on commissions, as the ordinary
Members until such times as they shall be directed to take
their seats on the bench according to their seniority when
enabled by such vacancies as will remove the cause of their
present restriction.
And tho’ it be my wish and intention that in order to have
Justice amply administered the Court be complete when it is
to [pronounce Judgment, on which occasion all other business
should give way, it is nevertheless declared that any Judgment
or sentence pronounced by five persons of the Court shall be
lawful. But as on account of Commissions in the Country or
other indispensable absence of some of the Members it may
happen that the Court of Justice cannot well be filled to the
above-mentioned number of five persons, and that the case
for determination may admit of no delay, the Court of Justice
may then and for such occasion adopt or select for their
1797] COURTS OF JUSTICE 101
Assessor or Assessors one or two Members of the Burgher
Senate, as may be requisite to complete the proper number,
such assessor or assessors duly taking the Judge’s Oath.
And Whereas from the increase of Inhabitants and from
other circumstances of this settlement it would be useful and
beneficial to the same to make some alteration with regard to
the other Courts or Boards of Judicature within this Colony,
Be it therefore known, and it is hereby published and directed
that the Board of Commissioners for petty civil matters is
henceforth authorized and empowered to determine Suits
amounting to a sum not exceeding two hundred Rix dollars value,
and the several country Boards of Landdrost and Heemraden,
of Stellenbosch, of Drakenstein, and of Swellendam to deter-
mine Suits of one hundred and fifty Rixdollars value, and the
Board of Graaff Reinet to continue to determine Suits of 1000
Guilders as usual, and the execution of the sentences or Judg-
ments pronounced by all those Boards respectively is to
remain on the same footing as hitherto, and to be enforced
accordingly.
And Whereas it being His Majesty’s pleasure that a Court
of Civil Jurisdiction consisting of the Governor together with
the Lieutenant-Governor should be erected for the hearing
and determining appeals from the Courts of law within this
settlement, It is hereby declared that the said Court for hearing
and determining appeals is now open, and that all persons
are permitted and allowed to bring appeals and prosecute the
same before it, provided nevertheless that in all such appeals
the sum or value appealed for do exceed the sum of two
hundred pounds sterling or 1000 Rixdollars, and that security
be first given by the Appellant to answer such charges as shall
be awarded in case the first sentence be affirmed ; and if either
party shall not rest satisfied with the Judgment on appeal,
they may then further appeal to the King in Council, provided
the sum or value so appealed for to His Majesty do exceed
five hundred pounds sterling, or 2500 Rixdollars, and that such
appeal be made within fourteen Days after the sentence and
good security given by the Appellant that he will effectually
prosecute the same and answer the condemnation, as also
pay all costs and damages as shall be awarded.
In all matters of appeal the Appellant and Respondent
shall, twenty-one Days at least before the hearing, furnish the
Court of Appeals with briefs and statements of their case in
the English language and certified by the Secretary of the
Court appealed from that they are true briefs and contain
nothing different from what appeared in the proceedings before
the said Court.
Rec. II. 126.
102 CAPE OF GOOD HOPE [1807
COURT OF APPEAL IN CIVIL CASES. [29 May 1807.]
No. 65. Proclamation. By His Excellency Du PRE, EARL OF
CALEDON, etc.
WHEREAS His Majesty has been pleased to direct that a
Court of Civil Jurisdiction for hearing and determining Appeals
from the Courts of Law within this Settlement, should be
erected, and that the said Court should consist of the Governor
and Lieut. -Governor, and that in the event of the absence of
the Governor or Lieut. -Governor, the full power of hearing and
determining Appeals is vested in whichever shall be present :
It is hereby declared and made known that the said Court is
now open, and that all Persons are henceforth allowed and
permitted to bring forward and prosecute Appeals before it ;
provided nevertheless, that in all such Appeals the Sum or
Value appealed for do exceed the Sum or Value of 200 Sterling
(or 1000 Rds.) and that Security be first duly given by the
Appellant to answer such Charges as shall be awarded, in case
the first Sentence be affirmed ; and if either party shall not rest
satisfied with the Judgment on Appeal a further Appeal may
be made to the King in Council, provided the Sum or Value so
appealed for unto His Majesty do exceed 500 Sterling (or
2500 Rds.) and that such Appeal be made within fourteen
days after sentence, and good Security be given by the Appel-
lant that he will effectually prosecute the same and answer the
Condemnation, and also pay such Costs and Damages as shall
be awarded. In all matters of Appeal, the Appellant and
Respondent shall, twenty-one days at least before the hearing,
furnish the Courts of Appeals with Briefs and Statements of
their Case in the English Language, and certified by the
Secretary of the Court appealed from, that they are true Briefs
and contain nothing different from what appeared in the Pro-
ceedings before the said Court.
Prods., etc., p. 54.
COURT OF APPEAL IN CRIMINAL CASES.
[10 June 1808.]
No. 66. Proclamation. By His Excellency Du PRE, EARL OF
CALEDON, etc.
WHEREAS His Majesty has been pleased to direct that a
Court of Appeals for hearing and determining all Criminal
Cases whatever, which are appealable from any and every of
the Courts within this Settlement, be forthwith established ;
that the said Appellate Jurisdiction be vested in the Governor
i8n] COURTS OF JUSTICE 103
for the time being and such Assessor or Assessors as he may
from time to time be pleased to appoint ; and that the Sen-
tences pronounced by such Court be final, continuing to the
said Governor the right of Pardon and Respite as it now exists :
It is hereby declared and made known that the said Court is
now open, and that all Persons may henceforth bring and
prosecute Appeals in Criminal Cases in and before the said
Court, subject to such orders as may from time to time be made
by the said Court, and provided that every such appeal be
entered within five days from the date of pronouncing the
Sentence or Sentences thereby complained of : And it is further
declared and made known that the Sentences given and pro-
nounced by the said Court hereby established, will be final,
reserving however, and continuing to the said Governor, the
sole right of Pardon and of Respite as it now exists.
Prods., etc., p. 88.
CIRCUIT COURTS ESTABLISHED. [16 May 1811.]
No. 67. Proclamation. By His Excellency Du PRE,
EARL OF CALEDON, etc.
WHEREAS the cognizance and punishment of all Crimes and
Misdemeanours, and the adjudication of all Civil Suits, in
which considerable Property is at stake, must, according to the
existing regulations of this extensive Colony, take place at the
seat of Government ; and whereas the delay which is thus
occasioned in Criminal Cases weakens the impression that
punishment should produce, whilst in Civil Suits the expense
and inconvenience that attaches to those who reside in the
interior, frequently prevent the aggrieved from having recourse
to the only legal means of redress : Now, as the removal of
such inconveniences and obstructions, and the application of a
Process, by which Justice may be more speedily administered,
must be productive of the most beneficial result, not only as
inspiring the Good with an increased confidence in the super-
intending care of Government, but by intimidating the Wicked,
and thus preventing the frequency of Crimes, I have judged it
proper to order and direct, that a Commission from the Court
of Justice (to which for this purpose two Members shall be
added) shall once within each year, or oftener, repair to the most
distant Country Districts, and take cognizance of all Cases
concerning the Inhabitants of those Districts, the prosecution
of which has hitherto been carried on before the Court of
Justice ; and in order to ensure, as far as possible, the effect of
this measure, I have further judged proper to enact and order
the following Regulations, viz. :
104 CAPE OF GOOD HOPE [1811
1. From time to time, of which due notice shall be given,
a Commission of two or more Members from the Worshipful
the Court of Justice shall proceed through the Districts of
Swellendam, George, Uitenhage, Graaff-Reinet, and Tulbagh
in order successively in each of the same to administer Justice
with the same power and authority as is exercised by the full
Court in Cape Town, subject nevertheless to such alterations
and modifications as may hereafter be declared.
2. The following Cases shall be heard and determined by
this Commission :
(a) All Civil Cases occurring in the said Districts, which
do not belong in the first instance to the cogniz-
ance of the Court of Landdrost and Heemraden.
(b) All appealable Civil Cases belonging to the cog-
nizance of the Court of Landdrost and Heemraden
in the first instance, but which, after sentence
has been pronounced, may be appealed from to
the Commission, provided the appeal be prose-
cuted in the next succeeding Session of the Com-
mission in the District where the cause has been
adjudged.
(c) But if, on application to the Commission, it shall
appear that sufficient time has not elapsed since
the passing of sentence by the Court of Land-
drost and Heemraden, to enable the parties to
bring in their appeal, the Commission shall in
such case have the liberty of directing the same
to stand over for the ensuing Session.
(d) All Criminal Cases whatsover, with this exception
only, that, when after a full investigation, it
appears that the Crime committed is subject to
the punishment of Death, in such case the same
shall be reserved for the Full Court, and there,
at the suit of the competent Prosecutor, be
tried, and final sentence passed.
6. The Governor having fixed upon the time for holding
the Sessions, the same shall be notified by Publication of the
Court of Justice, which Publication shall be forthwith trans-
mitted to the respective Landdrosts, and by the Landdrosts
to the Heemraden, Field-Commandants, and Field-Cornets of
their Districts, to be by them made known to the Inhabitants
at large.
7. Upon such notification being received, the Field-Cornets
shall assemble from each family one Slave or Hottentot, and
explain to such Slave or Hottentot the general purpose for
which the Commission is about to assemble at the Drostdy.
[Etc.] Prods., etc., p. 153.
1816] COURTS OF JUSTICE 105
JUDICIAL PROCEEDINGS IN PUBLIC. [25 Sept. 1813.]
No. 68. Proclamation. By His Excellency Lieutenant-General
Sir JOHN FRANCIS CRADOCK, etc.
WHEREAS the Proceedings before the Worshipful the Court
of Justice, with open doors, have, by the 38th Article of their
Instructions, been confined to the Pleadings alone in the Full
Court ; and whereas it has appeared to me, to be of essential
utility, as well for the dignity of the Administration of Justice,
as towards imprinting on the minds of the Inhabitants of this
Colony the confidence ” that equal Justice is administered to
all in the most certain, most speedy, and least burthensome
manner ” ; that all Judicial Proceedings should be carried
on in open Court, the beneficial effects of which have been more
especially confirmed by the result of the publicity, observed
in the proceedings of the different Commissions of Circuit in
the Country Districts, agreeably to the Proclamation of the
i6th May 1811 : I have therefore judged proper to order and
direct, as I hereby order and direct accordingly, that from the
nth of November next, the day on which the present Vacation
ends, not only all the Pleadings, but also all other Proceedings,
as well before Commissioners as before the Full Court, shall
be carried on with open doors, in the presence and hearing of
every person who may think proper to attend.
[Etc.]
Prods., etc., p. 259.
THE CAPE TOWN COURT OF LANDDROST AND
HEEMRADEN. [5 April 1816.]
No. 69. Proclamation. By His Excellency General the Right
Hon. Lord CHARLES HENRY SOMERSET, etc.
WHEREAS by Proclamation of His Excellency the Earl of
M’Cartney, then Governor of this Colony, bearing date the
24th July 1797, amongst other matters belonging and apper-
taining to the Administration of Justice in this Colony, it was
declared, enacted, promulgated, and made known, that the
Board of Commissioners for Petty Civil Matters was thence-
forth authorised and empowered to try and determine all
Suits and Questions of Property, amounting to, or valued at,
a sum not exceeding Two Hundred Rix-dollars.
And whereas great advantage has been found to arise
from that summary mode of deciding such Questions, and
a further extent of their jurisdiction appears highly desirable
and useful, I therefore hereby declare, direct, and publish,
io6 CAPE OF GOOD HOPE [1817
that the authority of the said Board of Commissioners (now
the Board of Landdrost and Heemraden of the Cape District)
shall extend to all Sums and Questions of Property as afore-
said, not exceeding Three Hundred Rix-dollars, as fully as
it now does to Sums not exceeding Two Hundred Rix-dollars,
and to be enforced accordingly and in like manner, of which
the Worshipful the Court of Justice, the said Board of Com-
missioners (now Landdrost and Heemraden of the Cape District),
and all others, are hereby directed to take notice and conform
to.
GOD SAVE THE KING.
Prods., etc., p. 359.
CRIMINAL JURISDICTION GRANTED TO LOCAL
COURTS. [18 July 1817.]
No. 70. Proclamation. By His Excellency General the Right
Hon. Lord CHARLES HENRY SOMERSET, etc.
WHEREAS all Crimes, and even Misdemeanours, subject to
a more severe than domestic punishment, committed in the
remote Country Districts, can only be prosecuted once a year
before the Annual Commission of Circuit, whence essential
obstacles are thrown in the way of the prompt administration
of Justice, both in consequence of the long detention of the
accused, and of the unavoidable delay which occurs before
the respective cases can be tried by the competent Court :
I have therefore judged proper, in order to obviate these
inconveniences, as far as the nature of circumstances in this
Colony admit of, to authorise the several Boards of Landdrost
and Heemraden in the Country Districts (that of the Cape
District only excepted), and they are hereby authorised and
directed accordingly, to take cognizance of the Crimes of
Vagabondising, Cattle-stealing, and other Thefts, not accom-
panied by any circumstances of Murder, Violence by breaking
into Houses or other Inclosures, or other Aggravation ; as also
of all lesser Crimes and Misdemeanours, liable, by the existing
Laws, to a more severe than domestic punishment ; and after
all such cases shall have been duly tried, and the Prosecutor
R.O. shall have made his claim, and the accused his full defence,
to proceed to judgment, and pass Sentence, conformably to
the Laws and Usages here in observance.
[Etc.]
Prods., etc., p. 394.
1827] COURTS OF JUSTICE 107
EXCLUSIVE ADOPTION OF THE ENGLISH LANGUAGE
POSTPONED. [13 Dec. 1826.]
No. 27.
No. 71. Ordinance. Of His Honour the LIEUTENANT-
GOVERNOR IN COUNCIL, for postponing the exclusive
Adoption of the English Language in all the Courts of
Justice in this Colony.
WHEREAS it is expedient to postpone the period at which
the use of the English Language is to be exclusively adopted
in all the Courts of Justice in this Colony, until such Arrange-
ments shall be made as may facilitate the introduction of
this beneficial measure, and render its utility at once certain
and permanent ; and whereas many of these Arrangements
have, from unavoidable causes, been delayed, and are yet
wanting : Be it therefore enacted, That so much of the Pro-
clamation of the 5th day of July 1822, * as directs that the
English Language shall be used in all Judicial Acts and Pro-
ceedings of the several Courts of Justice in this Colony, from
and after the ist day of January 1827, shall be, and is hereby
repealed, and declared void, and of no effect ; and that it
shall and may be lawful to continue to use the Dutch Language
in the Proceedings of those Courts where it is now used ; any-
thing in the said Proclamation of the 5th day of July 1822,
to the contrary notwithstanding.
II. Provided always, and be it hereby enacted, That it
shall and may be lawful for the Governor of this Colony,
for the time being, by Proclamation to be made and pub-
lished at any time after the passing of this Ordinance, to direct
and order that the English Language be used in the Judicial
Acts and Proceedings of all or any of the Courts of Justice in
this Colony, at such subsequent period as to him shall seem fit.
GOD SAVE THE KING.
P.R.O., C.O. 50/1.
CREATION OF JUSTICES OF THE PEACE,
[n Dec. 1827.]
No. 32.
No. 72. Ordinance. Of His Honour the LIEUTENANT-
GOVERNOR IN COUNCIL, for creating Justices of the Peace
in this Colony.
WHEREAS it is expedient for the preservation of the
Public Peace, the security of Individuals, and the due execution
of the Laws, that Magistrates be appointed in the several
Districts of this Colony, with power to apprehend, commit to
1 Vide page 23.
io8 CAPE OF GOOD HOPE [1827
Prison, or hold to Bail, all Vagrants, Rioters, Robbers, or other
notorious Offenders, found within their several Jurisdictions,
in order that such Offenders may be brought to Trial, and with
Power to do all other such Matters and Things as the said
Magistrates may by Law be appointed to do : Be it therefore
enacted, and it is hereby enacted, That from and after the
passing of this Ordinance, it shall and may be lawful for the
Governor or Lieutenant-Governor for the time being, from
time to time, as occasion may require, to appoint Justices of
the Peace, under the Great Seal of the Colony of the Cape of
Good Hope, for Cape Town and the District thereof, and the
several Country Districts respectively, who shall take and
subscribe the Oath of Allegiance, and the Oath of Office, . . .
before the Chief Justice, or any Judge of the Supreme or
Circuit Courts, or before the Civil Commissioner, or any
Magistrate of the District for which such Justice is assigned
to act (who are hereby empowered and required to administer
the same), and the Clerks of the Peace respectively shall enter
in the Records of their respective Districts that the said Oaths
were duly administered and taken.
II. And be it further enacted, That from and after the
passing of this Ordinance, the Persons who shall be appointed
as aforesaid to act as Justices of the Peace, shall have power,
and are hereby required, to preserve the Public Peace, and
for that purpose to call to their aid and assistance all Field-
Cornets, Constables, and Peace Officers, Military Officers,
and others His Majesty’s Subjects, to quell all Riots, Brawls,
or other Disturbances, and to lodge all Rioters, Brawlers,
Vagrants, and Disturbers of the Peace, in any Prison within
their respective Jurisdictions, to be dealt with according to
Law ; and they are hereby authorised and required to inquire
of all Crimes and Offences committed, or alleged to be com-
mitted, within their respective Jurisdictions, and for that
purpose to summon and examine upon Oath all Witnesses,
touching such Crimes and Offences, and to apprehend and
cause to be apprehended, all Criminals and Offenders, and to
deal with them according to Law : And the said Justices of
the Peace are hereby authorised and required, upon informa-
tion or complaint, in writing, upon Oath, made to them, or
any of them, to cause to come before them all those who
have used any Threats towards any Person or Persons, whether
regarding their Bodies or the Firing of their Houses, and to
require of them sufficient Security for the Peace, or their good
behaviour towards His Majesty or His Subjects ; and if they
shall not give such Security, then to cause them to be safely
kept in Prison till they shall find such Security.
[Etc.] P.R.O., C.O. 50/1.
1827] COURTS OF JUSTICE 109
CREATION OF OFFICE OF RESIDENT MAGISTRATES.
[19 Dec. 1827.]
No. 33.
No. 73. Ordinance. Of His Honour the LIEUTENANT-GOVERNOR
IN COUNCIL, for creating Resident Magistrates and Clerks
of the Peace in certain Districts and Places in this Colony.
WHEREAS His Most Gracious Majesty’s Charter, for the
better and more effectual Administration of Justice in this
Colony, bearing date the 24th day of August last, authorizes
and empowers the Governor or Lieutenant-Governor, for the
time being, of this Colony with the advice of the Council of
Government, by any Laws and Ordinances to be from time to
time made for that purpose, to erect, constitute, and establish
Courts of Request, and other Courts having Jurisdiction in
Civil and Criminal Cases within this Colony ; provided, that
the Jurisdiction of such Civil Courts shall not be extended to
any Case wherein the Sum or Matter in dispute shall exceed
the amount or value of Forty Pounds, Sterling Money, or
wherein Title to any Lands or Tenements, or any Fee, Duty,
or Office, may be in question, or whereby Rights in future
may be bound ; and provided also that the Jurisdiction of
such Courts in Criminal Cases shall not be extended to any Case
wherein any Person may be accused of any Crime punishable
by Death, Transportation, or Banishment from the said Colony :
And whereas it is expedient that from and after the first day
of January 1828, the Courts of Landdrost and Heemraden,
and’of Landdrost and Commissioned Heemraden in the Sub-
districts of Clanwilliam and Beaufort, the Courts of the Resi-
dents at Simon’s Town, Port Elizabeth, and Port Frances, and
the Jurisdiction of the Special Heemraden at Tulbagh, Caledon,
and Cradock, should be abolished : And whereas it is necessary
that some other provision be made for the Administration of
Justice, and for the due Registration and Legalization of
Marriage in the said Districts, Subdistricts, Residencies, and
Places, in lieu of the said Courts and Jurisdictions … . Be it
therefore enacted by His Honour the Lieutenant-Governor in
Council, that from and after the said first day of January 1828,
the said several Courts and Jurisdictions shall be abolished,
cease, and determine ; and that it shall and may be lawful for
the Governor or Lieutenant-Governor, for the time being,
from time to time, as occasion may require, to appoint, under
the Great Seal of the Colony, one Magistrate, who shall be
called the Resident Magistrate, for each of the Districts of
Stellenbosch, Worcester, Swellendam, George, Uitenhage,
Albany, Somerset, Graaff-Reinet, and for each of the Sub-
districts of Beaufort and Clanwilliam, for the Residency of
no CAPE OF GOOD HOPE [1827
Simon’s Town, and for the Township of Port Elizabeth, and
to appoint one Clerk of the Peace for such Districts and
Places as in his discretion he may think fit.
II. And be it further enacted, That every Person who shall
be appointed Resident Magistrate, or Clerk of the Peace, as
aforesaid, shall take the Oath of Allegiance and the Oath of
Office. . . .
III. And be it further enacted, That the said Resident
Magistrates shall have jurisdiction in all Civil Cases within
the Districts and Places for which they are appointed re-
spectively, wherein the Sum or Matter in dispute shall not
exceed the amount or value of Ten Pounds Sterling, and
wherein the Title to any Lands or Tenements, or any Fee,
Duty, or Office, is not in question, and whereby Rights in
future cannot be bound.
IV. Provided always, and be it further enacted, That it
shall and may be lawful for any Party who shall think himself
aggrieved by the Judgment or Decree of any such Resident
Magistrate, to enter into sufficient security to prosecute an
Appeal therefrom before the next ensuing Circuit Court which
shall be held in the District wherein such Judgment or Decree
was given ; or if such Judgment or Decree be given in Simon’s
Town, then before the Supreme Court within twenty-one days :
Provided always, and it is further enacted, that no Appeal shall
be admitted wherein the Sum or Matter in dispute shall be
less than Forty Shillings Sterling.
V. And be it further enacted, That the said Resident
Magistrates shall have Jurisdiction, without Appeal, in all
cases of Crimes and Offences wherein any Person may be
accused of any Crime not punishable by Death, Transportation,
or Banishment from this Colony : Provided always, that it shall
not be lawful for any such Resident Magistrate to punish any
Offender in any higher or more severe manner than by Fine,
not exceeding the amount of Five Pounds Sterling, and Im-
prisonment, with or without hard labour, for a period not
exceeding One Month, or by Whipping privately in Prison ;
except as to such Crimes or Offences for the commission of
which any higher or more severe punishment, whether by Fine
or Imprisonment, is or shall be provided, and in which Juris-
diction is or shall be expressly given to the said Resident
Magistrates by any special Law or Ordinance.
VI. And be it further enacted, That every Resident Magis-
trate shall hold a Court, and inquire of all Causes or Actions,
whether Civil or Criminal, which shall be brought before him,
and of which Jurisdiction is hereby given to him, in the Court
Room of his District or Place, on two days of the week at least,
and oftener, as occasion may require.
1827] COURTS OF JUSTICE in
VII. And be it further enacted, That all Sentences, Decrees,
Judgments, Writs, Summonses, Notices, Rules, Orders, War-
rants, Commands, and other Proceedings of the said Resident
Magistrate’s Court, shall be made in the English Language;
and in all Criminal Cases, the Witnesses against and for any
accused Person or Persons, shall deliver their Evidence viva
voce and in open Court.
VIII. And be it further enacted, That the Clerks of the
Peace shall conduct all Public Prosecutions in all cases of
Crimes and Offences cognizable and tried by the Courts of
the said Resident Magistrates in their respective Districts ;
and it shall be lawful for the Attorney-General to appoint a
competent Peace Officer for the Residency of Simon’s Town,
and a like Officer for the Township of Port Elizabeth, who
shall act as Public Prosecutor, before the Resident Magistrates
for the said places respectively.
IX. And be it further enacted, That the said Clerks of
the Peace, for their several Districts respectively, shall also
conduct all Public Prosecutions, for Crimes and Offences which
may be tried at any Circuit Court, to be holden for their Dis-
tricts respectively, unless in such case or cases where the
Attorney-General shall think fit to appoint some other Person.
X. And whereas the abolition of the Courts of Landdrost
and Heemraden in the several Districts aforesaid, and of the
Jurisdiction of the Special Heemraden at Tulbagh, Caledon,
and Cradock, renders it necessary that some provision should
be made for the due Registration and Legalization of Marriages :
Be it therefore enacted, that from and after the said first day
of January 1828, the Resident Magistrate and the Clerk of the
Peace, for the several Districts and Places for which they are
assigned to act respectively, shall form the Matrimonial Court,
or Board, in such Districts and Places, and any Justice of the
Peace for the Districts of Worcester, Swellendam, and Somerset,
together with the Field-Cornet of the Place, shall form the
Matrimonial Court, or Board, at Tulbagh, Caledon, and Cradock,
respectively ; and all Registrations for Marriage shall be
made in the said Courts, and all Certificates of Registration
shall be granted by the said Clerks of the Peace, and Justice’s
Clerks, respectively, in like manner as such Registrations were
made, and such Certificates were granted, in the Courts hereby
to be abolished.
XL And be it further enacted, That every Matter and
Thing which was necessary to be done and performed for
the due Registration and Legalization of Marriage in the
Courts hereby to be abolished, shall be required to be done
and performed, and shall be of like force and effect in the
Courts hereby to be created,
H2 CAPE OF GOOD HOPE [1828
XII. And whereas by virtue of certain Proclamations and
Ordinances enacted in times past, certain Crimes and Offences
therein set forth, had been made cognizable by the said Courts
of Landdrost and Heemraden, and of Landdrost and Com-
missioned Heemraden, and by the Courts of Deputy Landdrost
and Heemraden, and Deputy Landdrost and Commissioned
Heemraden, and by the Courts of Residents at Simon’s Town,
Port Elizabeth, and Port Frances : Be it therefore enacted,
that from and after the first day of January 1828, all such
Crimes and Offences as are now by any special Law or Ordi-
nance cognizable respectively, by any of the Courts hereby
to be abolished, shall become cognizable by the Courts hereby
to be created : Provided always, that such Crimes and
Offences shall not be punishable by Death, Transportation,
or Banishment from the Colony.
SCHEDULE.
FORM OF THE OATH OF ALLEGIANCE.
/, A. B., do sincerely promise and swear, that I will be faith-
ful, and bear true Allegiance to His Majesty King George. So
help me God !
FORM OF THE OATH OF OFFICE.
I, A. B., do promise and swear, that I will faithfully and
diligently execute, to the utmost of my Abilities, the several
Duties of the Office of Resident Magistrate which has been con-
ferred upon me. So help me God !
GOD SAVE THE KING.
P.R.O., C.O. 50/1.
THE SHERIFF OF THE CAPE COLONY.
[5 Jan. 1828.]
No. 37.!
No. 74. Ordinance. Of His Honour the LIEUTENANT-GOVER-
NOR IN COUNCIL, for declaring and regulating the Duty
of the Sheriff of this Colony.
[Extract.]
And whereas it is by the . . . Charter [of Justice, dated
24th August 1827] ordered, directed, and appointed, that the
. . . Sheriff shall, by himself, or his sufficient Deputies to be
by him appointed and duly authorised under his Hand and
Seal, and for whom he shall be responsible during his con-
tinuance in such Office, execute all Sentences, Decrees, Judg-
ments, Writs, Summonses, Rules, Orders, Warrants, Commands,
1 Cf. Act No. 17 of 1886, below.
1828] COURTS OF JUSTICE 113
and Processes, of the Supreme Court, or of the Circuit Courts
of the said Colony, as therein is mentioned, and shall make a
Return of the same, together with the manner of the execution
thereof, to the Supreme Court of the Cape of Good Hope, or
to the . . . Circuit Courts, as the case may be ; and shall
receive and detain in Prison all such Persons as shall be com-
mitted to the custody of such Sheriff, by the said Supreme
Court and Circuit Courts, or by the Chief Justice, or any other
Judge of the said Courts : … Be it therefore enacted and
declared, by His Honour the Lieutenant-Governor in Council,
that the said Sheriff shall, immediately after his Appointment,
and after having taken the Oaths [prescribed], appoint and
depute sufficient Persons and Deputies, to act for him in the
execution of the Duties of his said Office, and shall, immedi-
ately after such Appointment, cause to be enrolled in the
Office of the Registrar of the Supreme Court, the Names and
Places of Abode of such his lawful Deputies, and which enrol-
ment shall specify the District within which they are re-
spectively to act for the said Sheriff ; . . .
P.R.O., C.O. 50/1.
QUALIFICATION OF JURORS. [4 Feb. 1828.]
No. 41.
No. 75. Ordinance. Of His Honour the LIEUTENANT-GOVER-
NOR IN COUNCIL, for determining the Qualification of
Persons liable to serve on Grand and Petit Juries, and
the mode of making out and returning Lists of the same.
… Be It Enacted, . . . That from and after the passing
of this Ordinance, every Man, except as hereinafter excepted, 1
between the Ages of Twenty-one Years and Sixty Years,
residing within the Colony and its Dependencies, who shall
have the possession of any Land situated within this Colony,
held on Perpetual Quitrent, or on Loan, and for which he is
liable to pay an annual Rent of not less than One Pound
Seventeen Shillings and Sixpence, Sterling ; or of Freehold
Land of the same annual value ; or who shall be liable to pay
in Cape Town and the District thereof, a sum of not less than
Twenty Shillings Sterling, and in any and every other part of
the Colony, a sum not less than Fifteen Shillings Sterling, for
or on account of Taxes already imposed, or hereafter to be
imposed by any Law or Ordinance, shall be qualified, and
shall be liable, to serve on Juries, in all Criminal Cases, in the
1 Judges, clergymen, attorneys, officers of any of the courts of law,
physicians, surgeons, apothecaries, and generally men holding offices under the
Government are excepted.
8
fi 4 CAPE OF GOOD HOPE [1832
Supreme and Circuit Courts ; such Cases being triable in the
District respectively in which every Man so qualified shall
reside.
P.R.O., C.O. 50/1.
No. 76. THE ROYAL CHARTER OF JUSTICE. 1
[4 May 1832.]
FOR THE BETTER AND MORE EFFECTUAL ADMINISTRATION OF
JUSTICE WITHIN THE COLONY OF THE CAPE OF GOOD
HOPE.
WILLIAM THE FOURTH, by the Grace of God, of the United
Kingdom of Great Britain and Ireland, King, Defender of
the Faith,
To All to Whom these Presents shall come,
GREETING :
WHEREAS it is expedient to make provision for the better
and more effectual Administration of Justice in Our Colony
of the Cape of Good Hope, and in the several Territories and
Settlements dependent thereupon, and for that purpose to
constitute within Our said Colony and its Dependencies
One Supreme Court of Justice, to be holden in the manner
and form hereinafter mentioned: Now KNOW YE, that
WE, of Our Special Grace, certain Knowledge, and mere
Motion, HAVE thought fit to grant, direct, order, and appoint,
and by these Presents Do accordingly for Us, Our Heirs and
Successors, grant, direct, order, and appoint, that there shall
be within Our said Colony of the Cape of Good Hope, a Court
which shall be called ” THE SUPREME COURT OF THE COLONY
OF THE CAPE OF GOOD HOPE.”
II. AND WE Do hereby create, erect, and constitute the
said Supreme Court to be a COURT OF RECORD.
III. AND WE Do further will, ordain, and appoint, that
the said Supreme Court of the Colony of the Cape of Good
Hope, shall consist of and be holden by and before one Chief
Justice and two Puisne Judges, and that the said Chief Justice
shall be called and known by the name and style of the Chief
Justice of the Colony of the Cape of Good Hope, and which
said Chief Justice and Puisne Judges shall be respectively
Barristers in England or Ireland, or Advocates admitted to
practice in Our Courts of Session in Scotland, or in the said
Supreme Court. And which said Chief Justice and Puisne
1 Issued at the Cape by Governor D’Urban’s Proclamation, dated 13 Feb.
1834. It should be compared with the 1827 Charter of Justice which it
superseded. There are but few important differences between the two
instruments.
1832] COURTS OF JUSTICE 115
Judges shall, from time to time, be nominated and appointed
to such their Offices by Us, Our Heirs and Successors, by Letters
Patent under the Public Seal of the said Colony, to be issued
in pursuance of any Warrants or Warrant to be from time to
time for that purpose granted by Us, Our Heirs, and Successors,
under Our or Their Sign Manual.
IV. [If a judge’s seat becomes vacant the Governor shall
make a temporary appointment.]
V. [Judges to hold office during good behaviour. On
proof of misconduct, Governor and Council may suspend any
one of the judges, but must report to the Secretary of State.]
VI. [The Crown reserves power to confirm or disallow
such suspension. Crown also reserves power, upon sufficient
proof of misconduct, to suspend any judge.]
VII. [Chief Justice to have precedence next after the
Governor, Lieutenant-Governor, and Commander-in-Chief.]
VIII. [Puisne Judges to rank next after the Chief Justice.]
IX. [Puisne Judges to take rank between themselves
according to priority of appointment.]
X. [Supreme Court to have and use a Seal.]
XI. [Seal to be kept by the Chief Justice.]
XII. [Each of the judges to receive a salary, beyond which
no fees or emoluments may be accepted.]
XIII. 1 [No judge to accept any other office or place of
profit in the Colony.]
XIV. [To the Supreme Court shall be attached the
office of Registrar or Prothonotary and Keeper of Records,
and the office of Master of the Supreme Court. Minor offices
to be created by Chief Justice.]
XV. [The Registrar and the Master to be appointed by
the Crown ; minor officers to be appointed by the Governor.]
XVI. [All officers, except the judges, to hold office during
the royal pleasure.]
XVII. -XVI II. [Admission of Barristers or Advocates.]
XIX.-XXIV. [Admission of Attorneys or Solicitors.]
XXV. [Governor shall annually in January appoint a
Sheriff, who shall take the oath of office and the oath of
allegiance.]
XXVI. [Sheriff to hold office for one year.]
XXVII. [Sheriff and his deputies appointed by him shall
execute all sentences, warrants, decrees, etc., of the Supreme
Court and of Circuit Courts ; and shall detain in prison persons
committed by the said Courts or by any of the judges.]
XXVIII. [Sheriff may be reappointed by the Governor.]
XXIX. [If the Sheriff or his near relative is involved in a
case, then the court shall appoint a substitute.]
1 Amended by Act No. 35 of 1904.
n6 CAPE OF GOOD HOPE [1832
XXX. AND WE Do hereby further ordain, direct, and
appoint, that the said Supreme Court . . . shall have Cogniz-
ance of all Pleas, and Jurisdiction in all Causes, whether Civil,
Criminal, or Mixed, arising within the said Colony, with Juris-
diction over Our Subjects, and all other Persons whomsoever
residing and being within the said Colony, in as full and ample
a manner and to all intents and purposes, as the Supreme
Court of Justice now existing within the said Colony now hath
or can lawfully exercise the same.
XXXI. [Supreme Court to judge according to laws now in
force or hereafter to be made.]
XXXII. AND WE Do FURTHER GIVE AND GRANT to the
said Supreme Court, full Power, Jurisdiction, and Authority,
to review the Proceedings of all Inferior Courts of Justice
within Our said Colony, and, if necessary, to set aside or correct
the same ; and in the exercise of such Jurisdiction, Powers, and
Authorities as aforesaid, Our Will and Pleasure is, that the
Pleadings and Proceedings of the said Supreme Court and the
Circuit Courts shall be carried on, and the Sentences, Decrees,
Judgments, and Orders thereof pronounced and declared, in
open Court, and not otherwise, and that the several Pleadings
and Proceedings of the said Court shall be in the English
Language ; and that in all Criminal Cases, the Witnesses
against and for any accused Person or Persons shall deliver
their Evidence viva voce, and in open Court.
XXXIII. [In civil cases, two judges to form a quorum.
If such two judges differ in a case, it shall be postponed till a
third judge shall be present, when the decision shall be accord-
ing to the opinion of the majority.]
XXXIV. [Criminal cases to be tried before one or more
of the judges and a jury of nine men, who shall concur in every
verdict. No person otherwise competent to serve on a jury
shall be disqualified by reason of his ignorance of the English
Language.]
XXXV. [Duties heretofore performed by the Orphan
Chamber, to be performed by the Master of the Supreme
Court. Orphan Chamber abolished.]
XXXVI. [Supreme Court to be held at Cape Town.]
XXXVII. [Governor to divide the Colony into convenient
districts for holding Circuit Courts.]
XXXVIII. [Circuit Courts to be held in each district by
one judge at least twice a year.]
XXXIX. [Circuit Courts to have the same jurisdiction and
authority as the Supreme Court. Criminal cases to be tried by
circuit judge and a jury of nine. No person to be disqualified
from serving on a jury merely by reason of his ignorance of
the English Language.]
1832] COURTS OF JUSTICE 117
XL. [If nine men do not appear to try criminal cases the
jury may consist of any number not less than six.]
XLI. [Civil suits to be tried by a judge unassisted by a
jury. In such suits, if the sum or matter in dispute shall
equal or exceed 100, all evidence shall be taken down in
writing. If an appeal is allowed, copies of documents shall be
made and duly certified.]
XLII. [In civil suits involving less than 100, appeals
may be allowed at the discretion of the circuit judge.]
XLII I. [In cases involving more than 100, appeals may
be made to the Supreme Court.]
XLIV. [Any Court before which a case may be pending
may transfer that case to another Court.]
XLV. [In criminal cases no sentence whereby a person
shall be condemned to death or transportation or banish-
ment from the Colony shall be carried out until the ex-
ecution of the sentence shall have been approved by the
Governor.]
XLVI. [Rules of Court to be framed by the Supreme Court
and to be, as far as the circumstances of the Colony will permit,
in accordance with the rules and forms in use in the Courts at
Westminster.]
XLVII. [Rules and laws governing the qualification and
attendance of jurors, to be framed by the Governor with the
advice of the Legislative Council, subject to the approval or
disallowance of the Crown.]
XLVIII. AND WHEREAS it may be expedient to establish
within our said Colony Courts of Request, and other Courts
having Jurisdiction in Civil Cases of small amount or value,
and in cases of Crimes or Offences not punishable by Death
or Transportation : Now WE Do hereby authorize and em-
power the Governor, for the time being, of Our said Colony,
with the advice of the Legislative Council of Government
thereof, by any Laws and Ordinances to be from time to time
made for that purpose, to erect, constitute, and establish all
such Courts of Request, and other Courts having Jurisdiction in
Civil and Criminal Cases, within Our said Colony : Provided
that the Jurisdiction of such Civil Courts shall not be extended
to any Case, wherein the Sum or Matter in dispute shall exceed
the amount or value of Forty Pounds Sterling Money : or
wherein the Title to any Lands or Tenements, or any Fee,
Duty, or Office may be in question ; or whereby Rights in
future may be bound : And provided also, that the Jurisdic-
tion of such Courts, in Criminal Cases, shall not be extended
to any Case wherein any Person may be accused of an}’ Crime
punishable by Death, Transportation, or Banishment from the
said Colony.
n8 CAPE OF GOOD HOPE [1832
XLIX. [Supreme Court to frame rules and order for Courts
of Request.]
L. [Appeals to the Crown in Council may be made from
final sentences, etc. of the Supreme Court, if a case involves an
amount exceeding 500 and if Supreme Court allows such
appeals.]
LI. [Crown in Council reserves the right to allow and hear
appeals upon petition made.]
LII. [Supreme Court shall execute all judgments in appeal
pronounced by the Crown in Council.]
LIII. [All Governors, commanders, magistrates, etc. are
charged to assist in the execution of all powers hereby granted.]
LIV. [Crown in Council reserves the power to repeal or
amend this Charter of Justice.
Letters Patent of 24 August 1827 revoked.]
LV. AND WE do further ordain and direct, that the Gover-
nor of Our said Colony of the Cape of Good Hope, upon the
arrival therein of these Presents, shall, by Proclamation,
notify to the Inhabitants of the said Colony, the time when
the Courts hereby established will be open ; and as soon as the
Judges of the said Supreme Court shall have assumed and
entered upon the exercise of their Jurisdiction therein, then,
and from thenceforth, the Supreme Court of the Colony of the
Cape of Good Hope and the Circuit Courts now established
within the same, and the Jurisdiction of the said Courts re-
spectively, shall be absolutely abolished, cease, and determine ;
and every Suit, Action, Complaint, Matter, or Thing, Civil or
Criminal, which shall be depending in such last-mentioned
Courts respectively, shall and may be proceeded upon in the
Supreme Court instituted under and by virtue of these Presents,
or in either of the said Circuit Courts, which shall and may
have Jurisdiction within the District or Place in the Colony
of the Cape of Good Hope, where such Action or Suit, or other
Matter, Civil or Criminal respectively, shall be conducted
in like manner, as if such Action or Suit, or other Matter,
Civil or Criminal, had been originally commenced in one or
other of the said Courts instituted under these Presents. And
all the Records, Muniments, and Proceedings whatsoever of
and belonging to the said Supreme Court and Circuit Courts
established by the said recited Letters Patent, shall from and
immediately after the opening of the said Courts respectively
instituted by these Presents, be delivered over and deposited
for safe custody in such of the said Courts respectively insti-
tuted under these Presents, as shall be found most convenient ;
and all Parties concerned shall and may have recourse to the
said Records and Proceedings, as to any other Records or Pro-
ceedings of the said Courts respectively.
1843] COURTS OF JUSTICE 119
LVI. AND WE Do hereby further declare and direct, that
during the absence from Our said Colony of the Cape of Good
Hope of the Governor thereof, or if there shall be no person
commissioned by Us, Our Heirs and Successors, to be the
Governor of Our said Colony, then, and in every such case,
all and every the Powers hereby granted to and vested in the
Governor for the time being of the said Colony, shall and may
be executed by and vested in the Lieutenant-Governor thereof,
or the Officer for the time being administering the Government
thereof.
In Witness whereof, We have caused these Our Letters to
be made Patent. Witness Ourself at Westminster, the Fourth
Day of May, in the Second Year of Our Reign.
By Writ of Privy Seal.
BATHURST.
P.R.O., C.O. 52/6 (C. ofG. Hope Govt. Gazette,
14 Feb. 1834).
ADMINISTRATION OF INSOLVENT ESTATES.
[24 Oct. 1843.]
No. 6, 1843.
No. 77. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the LEGIS-
LATIVE COUNCIL thereof, for Regulating the due Collection,
Administration, and Distribution of Insolvent Estates
within this Colony.
W T HEREAS the Law as contained in the Ordinance No. 64,
bearing date the 6th of August 1829, an ^ intituled ” An
Ordinance for regulating the due collection, administration,
and distribution of Insolvent Estates within this Colony,”
requires certain additions and alterations : And whereas it is
expedient, in order that the said additions and alterations may
most conveniently be made, that the said Ordinance No. 64
should be repealed, and a new Ordinance enacted in its stead :
And whereas it is also expedient, that all Insolvent Estates
within this Colony should be, hereafter, administered under one
uniform system of law, and, to that end, that the benefit or
relief of cession of goods and property, commonly called the
cessio bonorum, now available to insolvent debtors in this
Colony, should be abolished : Be it therefore enacted by the
Governor of the Cape of Good Hope, by and with the advice and
consent of the Legislative Council thereof, that from and after
the passing of this Ordinance, the Ordinance aforesaid No. 64,
and the Publication of the 4th September 1805, respecting
transfers, cessions, pledges, and other securities entered into
120 CAPE OF GOOD HOPE [1848
by debtors within twenty-eight days previous to their in-
solvency, and so much of Ordinance No. 5, 1842, intituled,
” an Ordinance to provide for the lodgment elsewhere than in
the Government Discount Bank of this Colony, of certain
Monies, now by law required to be lodged in the said Bank,”
as is, in substance, hereinafter set forth and re-enacted, and
all laws and customs heretofore in force within this Colony,
in so far as the same are repugnant to, or inconsistent with,
any of the provisions of this Ordinance, shall be, and the same
are hereby, respectively repealed. . . .
II. And be it enacted, that it shall and may be lawful for
the supreme court, or any circuit court, or for the chief justice
of this colony, or any other of the judges of the supreme court,
upon the petition, in writing, of any person, setting forth that
he is insolvent, and desirous of surrendering his estate for the
benefit of his creditors, to direct such person to appear before
him, to be examined touching his said insolvency, or to require
such other proof thereof, by affidavits of the said insolvent
and others, as to the said court or the said judge may seem
fit; …
V. And be it enacted, that it shall and may be lawful
for the supreme or any circuit court, or for the chief justice of
this colony, or any other of the judges of the supreme court,
upon petition made in writing against any person having
committed any act of insolvency, … to place the estate of
every such person or persons under sequestration, in the
hands of the master of the said court, until the same shall . . .
be adjudged to be sequestrated, or the said petition shall be
discharged.
[Etc.]
P.R.O., C.O. 50/1.
DUTIES OF FIELD-CORNETS. [4 July 1848.]
No. 9, 1848.
No. 78. Ordinance. Enacted by the GOVERNOR OF THE
COLONY OF THE CAPE OF GOOD HOPE, with the advice
and consent of the LEGISLATIVE COUNCIL thereof, for
regulating the Duties and Remuneration of Field-Cornets.
WHEREAS, owing to the various alterations made from
time to time, in the administration of the country districts of
this colony, the functions of field-cornets have been consider-
ably narrowed ; and it is now expedient to define or describe
their duties, and to substitute for the principle of a fixed
annual allowance, a remuneration proportioned to the services
performed ; Be it enacted by the Governor of the Cape of
1848] COURTS OF JUSTICE 121
Good Hope, with the advice and consent of the Legislative
Council thereof, that the ” Instructions of the Field-Cornets in
the several Country Districts,” published by the then Governor
and Council of this Colony on the 24th October 1805, shall be
repealed, except in so far as the same repeal any former
placards, ordinances, or customs, and the same are hereby
repealed accordingly. Provided always, that the field-cornets
and assistant field-cornets shall continue to be appointed as at
present.
2. And be it enacted, that from and after the commence-
ment and taking effect of this Ordinance, the several duties
belonging to the office of field-cornet shall be the following, that
is to say,
(a) He is, by virtue of his office, bound to apprehend
without warrant, every person whom he shall
have reasonable grounds to suspect of having
committed any murder, culpable homicide, rape,
robbery, or assault with intent to commit any of
those crimes, or assault in which a dangerous
wound is given, arson, housebreaking with
intent to commit a crime therein ; or theft
of any cattle, sheep, or goat ; or any other crimes
of equal guilt with any of those crimes. And
he may also take into custody every person whom
he shall see engaged in any affray, or whom he
shall find attempting to commit a crime, or
already manifesting an intention so to do.
(b) Whenever it shall be brought to his knowledge
that any person, within his ward, has died other
than a natural death, namely by violence or
accident, or his own act, or the act of God, the
field-cornet shall, with all speed, repair to inspect
the body, and hold an inquest thereon.
(c) The field-cornet will obtain and transmit to the
resident magistrate the fullest information re-
specting the circumstances of any such untimely
death, and communicate, at the same time, the
result of his own observations.
(d) In cases of assault in which any wound, supposed to
be dangerous, has been given, the field-cornet
will repair to and examine the injured party,
and apprise the resident magistrate of the case
and its circumstances. . . .
3. [Remuneration of Field-Cornets according to|the|time
spent in performing their duties.]
4. And be it enacted, that from henceforth, the field-
cornets shall be deemed and taken to be under the authority
122 CAPE OF GOOD HOPE [1854
of the resident magistrate of the district, as well as of the
civil commissioner of the division.
5. [This Ordinance not to affect former laws imposing
duties on Field-Cornets.]
6. [Ordinance to take effect from I Jan. 1849.]
P.R.O., C.O. 50/2.
TRIAL BY JURY IN CIVIL CASES, 1854.
I reserve this Bill for the signification of Her Majesty’s
pleasure.
(Signed) C. H. DARLING, Lt.-Governor.
26th Sept. 1854.
No. 7, 1854.1
No. 79. A BUI for Extending Trial by Jury to Civil Cases.
WHEREAS it is expedient that Trial by Jury in Civil Cases
should be introduced into this Colony : And whereas it is
fitting that Trial by Jury in Civil Cases should, in the first
instance, be limited to Civil Cases depending in the Supreme
Court : Be it enacted by the Governor of the Cape of Good
Hope, with the Advice and Consent of the Legislative Council
and House of Assembly thereof, as follows :
I. So much, if any, of the Letters Patent of His late
Majesty King William the Fourth, bearing date at Westminster,
the Fourth Day of May, in the second Year of his Reign, and
commonly called the ” Charter of Justice,” and so much, if
any, of any other Law or Ordinance heretofore existing in this
Colony, as shall be repugnant or inconsistent with any of the
Provisions of this Act, shall be repealed, and the same is
hereby repealed accordingly.
II. From and after the commencement of this Act, every
Question, or Matter of Fact, or of mixed Law and Fact, in
dispute between the Parties to any Civil Case depending in
the Supreme Court of this Colony shall, except as is herein-
after in the 4th Section provided, be tried by Jury.
HI. No Question which shall be a pure and unmixed
Question of Law shall be, at any time, or in any case, referred
or submitted to a Jury, but every such Question shall be
reserved for the determination of the Court.
IV. It shall be competent for the Attorney of either of the
Parties to any Civil Case depending in the Supreme Court,
at any time after the Pleadings in such Case shall have been
closed, to serve a Notice upon the Attorney of the opposite
Party, calling upon him to attend before a Judge of the Supreme
1 Superseded by Act No. 23 of 1891. Ci Nos. 142 and 164,
1854] COURTS OF JUSTICE 123
Court in Chamber, at some time, to be specified in such Notice,
there to settle the Issue or Issues to be tried by Jury : Pro-
vided that it shall be competent for the Parties to any such
Case, at any time, after Pleadings closed, and before the serving
by either of them of such Notice as aforesaid, to agree together,
in writing, signed by their respective Attorneys, that such
Case shall be tried without a Jury, and, thereupon, such Case
shall be proceeded with, and be tried in like manner precisely
as if this Act never had been passed : Provided, however,
that as often as any Facts in dispute in any Case shall be tried
by Jury, then all Facts in dispute in the same Case shall be
tried by Jury.
V. The Issue or Issues in any such Case as aforesaid, to
be tried by Jury, shall, as much as may be, be settled and
framed, so as to present separately and successively, and in
plain and precise Language, every Matter of Fact affirmed by
one Party in the Suit, and denied by the other : Provided that
no Issue shall be settled or framed in regard to any Matter
or Question not arising upon the Pleadings as pleaded, unless
both Parties shall consent thereto, in which Case the Pleadings
shall be thereupon amended in such Manner as to put in
Issue such Matter or Question.
VI. Whenever, in any Matter or Question which is, in
Law, a Matter or Question of Mixed Law and Fact, the Fact
shall, in contemplation of Law, be capable of being separated
from the Law with which it is mixed, and both Parties shall
desire the separation, in the Issues, of the Fact from the
Law ; such separation may, should the Judge see fit, be made
in such manner that the Fact alone shall be submitted to the
Jury, and the Law connected therewith shall be reserved for
the Court.
VII. As often as any Issue shall be settled or framed for
trial by Jury in any Case, in regard to which or the Matter
of which either Party shall claim that the other Party may
be condemned in Damages, then the Issues in such a Case
shall be so settled and framed as to authorize and require the
Jury, in case they shall find for the Party claiming such
Damages, to assess the said Damages.
VIII. Either Party to any such Case as aforesaid, who
shall, before the Judge in Chamber, have objected to the
form or substance of any Issue approved of by the said Judge,
or who shall, before such Judge, have desired the admission
of some Issue which the said Judge shall have refused to
admit, may, upon Notice to the opposite Party, move the
Supreme Court to review the Decision of the Judge in Chamber
regarding any such Issue ; and thereupon such Court shall
make such Order in the Matter, as Justice shall seem to
124 CAPE OF GOOD HOPE [1854
require : Provided that any Judge before whom, in Chamber,
the settlement of the Issues in any Case shall come, may, of
his own Motion, refer the settlement of such Issues, or of any
of them, to the Supreme Court, and thereupon such Court
shall, after hearing the Parties, settle the same.
IX. As soon as may be after the Issue or Issues in any such
Case as aforesaid shall have been settled and framed, the same
shall be fairly and correctly engrossed by the Attorney, who
shall have served the Notice, in the Fourth Section mentioned,
to attend before a Judge in Chamber, and such Attorney shall
carry the said Issue or Issues, so engrossed, to the Judge
before whom, in Chamber, the same shall have been settled,
and such Judge shall sign the Engrossment thereof, and
thereupon such Attorney shall lodge such Engrossment with
the Registrar of the Supreme Court : Provided that as often
as all or any of the Issues in any Case shall be finally deter-
mined, not by the Judge, but by the Court, then all the Issues
in such Case, after being engrossed as aforesaid, shall be signed
by the Registrar aforesaid, and not by any Judge.
X. [Certain days shall be set apart for Trials by Jury in
the Supreme Court.]
XI. All Trials by Jury in the Supreme Court shall be had
before the Chief Justice of the said Court, or before any other
of the Judges thereof, and a Jury of Nine Men.
XII. [Cases shall be set down for trial at least 14 days
before the day on which they are to be tried.]
XIII. [The Registrar of the Supreme Court shall give
notice to the Sheriff that a Jury will be required.]
XIV. [The Sheriff shall then summon 36 jurors of those
liable to serve in criminal cases.]
XV. [The manner of summoning jurors to try civil cases
shall be the same as for those summoned to try criminal cases.]
XVI. [Persons who do not appear after having been
summoned to serve as jurors, shall be liable to a fine not
exceeding 25.]
XVII. [If such fine remains unpaid, execution may be sued
out by the Attorney-General for the recovery thereof.]
XVIII. [Each of the Parties to a case may strike out from
the list of 36 jurors the names of 9 jurors. From the names
remaining, 9 jurors shall be selected by lot.]
XIX. [If more cases than one are set down for trial on
the same day, then the Parties to each case shall successively
have the right to strike out 9 names from the list of jurors.]
XXII. No Challenge to any Man, drawn as aforesaid, to
serve as a Juror, shall be allowed, except a Challenge for
Cause, and that the Causes for which any such Juror may be
challenged, and the manner and form of trying the existence
1856] COURTS OF JUSTICE 125
of any Cause of Challenge alleged against any such Juror,
shall be the same, in all respects, as would, by Law, be per-
mitted or prescribed in a Civil Case depending, and about
to be tried, in one of Her Majesty’s Courts of Record at
Westminster.
XXIII. [The presiding Judge shall administer an oath to
the Jury.]
XXIV. [When the Judge shall have summed up the
evidence in a case, the Jury may withdraw to consider their
Verdict.]
XXV. It shall not be competent for any Jury to deliver
their Verdict upon any one or more of the Issues left to them,
if more than one, unless they shall at the same time deliver
their Verdict on all the Issues so left to them.
XXVI. No fewer than Six Jurors of the Nine Jurors com-
posing the Jury must concur in every Verdict of such Jury,
and every Verdict in which not fewer than Six Jurors of the
Nine Jurors, composing the Jury, shall concur, shall be received
and regarded as the Verdict of such Jury : Provided that no
Verdict except one in which the whole of the Jurors composing
the Jury shall concur, shall be capable of being delivered or
received until after the Jury shall have been in deliberation
upon their Verdict for not less than One Hour.
XXVII. [The Judge may adjourn the Court from time to
time and the Jurors shall be bound to attend on the resumption
of the Court’s business after adjournment.]
XXVIII. [The Verdict of the Jury may be either a general
Verdict or a special Verdict.]
XL. [Appeals to Her Majesty in Her Privy Council allowed.]
XLIII. This Act shall commence and take effect from and
after the promulgation thereof. P.R.O. C.O.
RESIDENT MAGISTRATES. [4 June 1856.]
No. 20 of 1856.
No. 80. An Act. For amending and consolidating the Laws
relative to the Courts of Resident Magistrates.
WHEREAS it is expedient to amend and consolidate the
laws relative to the courts, jurisdiction, powers, and duties
of the resident magistrates within the colony : Be it therefore
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council and House of
Assembly thereof, as follows :
I. Courts of resident magistrates l shall be, and the same
1 The attainments required of magistrates as regards education and
experience, as also the qualifications demanded for other civil servants, are
set forth in Act No. 32 of 1895, not printed in this volume.
i 2 6 CAPE OF GOOD HOPE [1856
are hereby declared to be, erected, constituted, and established
for and within each of the following districts, that is to say,
Cape Town and the district thereof, Wynberg, Simon’s Town,
Malmesbury, Piketberg, Stellenbosch, the Paarl, Worcester,
Tulbagh, Clanwilliam, Swellendam, Riversdale, Caledon,
Beaufort, George, Aliwal, Uitenhage, Port Elizabeth, Albany,
Fort Beaufort, Bathurst, Stockenstrom, Somerset, Victoria,
Fort Peddie, Albert, Queenstown, Graaff-Reinet, Richmond,
Cradock, Colesberg, East London, Alexandria, Prince Albert.
Victoria (West), Bredasdorp, Calvinia, Middelburg, Aliwal
(North), Oudtshoorn, and Namaqualand ; and the said
courts shall be respectively holden by and before the resident
magistrates for the districts aforesaid.
IL IV. [Establishment of courts and the limits of magis-
tracies by proclamation.]
V. [Resident magistrates to be appointed by the Governor.]
VII. The courts of the resident magistrates aforesaid shall
be respectively courts of record, and the pleadings and pro-
ceedings of the said courts shall be carried on, and the sentences,
decrees, judgments, and orders thereof pronounced and
declared in open court, and not otherwise ; and the several
pleadings and proceedings of the said courts shall be in the
English language ; and in all criminal cases the witnesses
against and for any accused person or persons shall deliver
their evidence viva voce, and in open court.
VIII. Every resident magistrate of the colony shall have, in
all civil cases brought or instituted against any person residing
within the district for which such resident magistrate shall have
been appointed, the jurisdiction following, that is to say/
1. In all cases founded upon any bill of exchange,
promissory note, good-for, or other written
acknowledgment of debt, commonly called a
liquid document, in which the sum demanded
shall not exceed forty pounds sterling.
2. In all cases (except as hereinafter is excepted) in
which the debt or damages demanded shall not
exceed twenty l pounds sterling.
3. No such magistrate shall have jurisdiction in, or
cognizance of, any action or suit wherein the
title to any lands or tenements, or the title to
any fee, duty, or office is in question, or any
action or suit to try the validity of any will,
or other testamentary instrument, or any action
or suit whereby rights in future can be bound. . . .
IX.-XV. [Jurisdiction in matters of ejectment, recovery
of debts, attachment of goods, etc.]
1 Changed to ” fifty ” by Act No. 34 of 1909.
1864] COURTS OF JUSTICE 127
XVI. [A decree of civil imprisonment may be granted
where a debtor has not sufficient moveable property to meet
an award made to a plaintiff by the court.]
XVII.-XXXII. [Arrest, imprisonment, arrest of goods in
security for rent, etc.]
XXXIII. It shall and may be lawful for any person, being
a party to any civil suit or action depending in the court of
any resident magistrate within this colony, to appeal against
any final judgment, decree, or sentence of such court … to
the supreme court, or to the circuit court which shall next
be holden for the district of such resident magistrate. . . .
XLII. The resident magistrates of the colony shall, re-
spectively, have jurisdiction, without appeal or review, in all
cases of crimes and offences wherein any person may be
accused of any crime or offence not punishable by death,
transportation, or banishment from this colony. . . .
XLIII. It shall not be lawful for any court of resident
magistrate, in any case, to sentence or adjudge any female to
receive personal correction, or to hard labour on any road,
street, or public place.
XLIV. [Crimes commenced in one district and completed
in another are triable by the magistrate of either district.]
LVIII. [The Letters Patent commonly called the Charter
of Justice, as far as repugnant, is repealed, as also various
ordinances.]
LIX. [Rules, orders, and regulations for procedure before
the Courts of Resident Magistrate, dated 22nd March 1828,
are hereby repealed, and others are enacted.]
LX. [Interpretation clause.]
LXI. This Act shall commence and take effect from and
after the promulgation thereof.
P.R.O., C.O. 50/3.
THE EASTERN DISTRICTS COURT ESTABLISHED.
[26 July 1864.]
No. 21 of 1864.
No. 81. Act. For adding to the Number of Judges of the
Supreme Court, and for other purposes. 1
WHEREAS it has been found that the number of Judges of
which the Supreme Court, as at present constituted, is in-
sufficient to enable the said Judges to hold Courts in the
several districts of this Colony as frequently as the wants of
the inhabitants require : And whereas, in order to remedy
1 Cf. further Acts No. 35 of 1896, No. 35 of 1904, and No. 9 of 1905, not
printed in this volume.
128 CAPE OF GOOD HOPE [1864
these evils, and to afford, at the same time, to the inhabitants
of the Eastern Districts of this Colony the benefit of a local
Court, it is expedient to add to the number of the Judges of
the said Supreme Court, and to enable certain of the Judges
to form a separate Court, having jurisdiction over the said
Eastern Districts, but so, however, as not to interfere with
the jurisdiction of the said Supreme Court over every part
and portion of the entire Colony : Be it enacted … as
follows :
I. [Repugnant laws repealed.]
II. The Supreme Court aforesaid shall henceforth consist
of one chief justice and four puisne judges.
III. It shall be lawful for the Governor to appoint, pro-
visionally, until Her Majesty’s pleasure be known, the puisne
judge at present required to complete the number aforesaid
of four puisne judges.
IV. Such judge shall be appointed in manner and form
as by the fourth section of the Charter of Justice directed, in
regard to the appointment of fit and proper persons to supply
such vacancies in the office of judge, as are in the said section
mentioned.
VII. A court of justice is hereby established in and for
the several districts named in the Schedule to this Act, to
have and exercise such jurisdiction as is hereafter specified,
and such court shall be called ” the Court of the Eastern
Districts of the Cape of Good Hope.”
VIII. The said last-mentioned court shall consist of, and
be holden before, any two of the puisne judges of the Supreme
Court, whom the Governor shall from time to time assign for
the purpose.
IX. The Court of the Eastern Districts hereby created
shall have, throughout the districts within and for which it
is established, a jurisdiction concurrent with that of the
Supreme Court in and over all causes arising, and persons
residing and being, within the said districts.
XXIII. In the Court of the Eastern Districts, one judge
thereof shall be competent to execute all and every the powers,
authorities, and jurisdictions by this Act granted to or vested
in the said court. . . .
XXIV. [In case of difference of opinion on matters heard
by two judges, causes may be removed to the Supreme Court.]
XXV. [In civil suits appeal may be had to the Supreme
Court.]
XXXVI. [Attorney-General or Solicitor-General, if one is
appointed, shall prosecute. Attorney-General may appoint a
person to prosecute. Solicitor-General (when appointed) to
possess the powers conferred on Attorney-General in regard
1876] COURTS OF JUSTICE 129
to criminal cases. Solicitor-General to be appointed by the
Queen, but Governor may appoint provisionally.]
XXXVII. [Holding of usual circuit courts not prevented.]
XXXVIII. [Appeal from circuit courts to be direct to
Supreme Court ; but causes may be referred from Circuit to
Eastern District Court by consent of parties or by order of
presiding judge.]
XLIII. This Act may be cited for all purposes as ” The
Administration of Justice Act, 1864.
Schedule : Albany, Albert, Alexandria, Aliwal North,
Bathurst, Bedford, Colesberg, Cradock, Fort Beaufort, Graaff-
Reinet, Hopetown, Humansdorp, Middelburg, Murraysburg,
Peddie, Port Elizabeth, Queenstown, Richmond, Stocken-
strom, Somerset, Uitenhage, Victoria East.
P.R.O., C.O. 50/4.
SPECIAL JUSTICES OF THE PEACE.
No. 10 of 1876.
No. 82. Act. To improve the Administration of Justice in
places distant from a Seat of Magistracy. [Assented to
4th July 1876.]
WHEREAS it is expedient that facilities should be given for
the trial of certain offences committed at places distant from
the seat of a resident magistrate : Be it enacted by the Governor
of the Cape of Good Hope, with the advice and consent of
the Legislative Council and House of Assembly thereof, as
follows :
I. It shall be lawful for the Governor from time to time
to appoint any person whom he may think proper to act as
a special justice of the peace under this Act within such local
limits as may be fixed and determined by him, not being
within ten miles of the office of any resident magistrate.
II. Every such special justice of the peace shall have and
enjoy, and be at liberty to exercise, within the limits so fixed
and determined as aforesaid, over and in respect of any person
committing within such limits any of the offences following,
that is to say :
(A) Assault, where no dangerous wound is given and
no dangerous weapon is used.
(B) Thefts of any property not being a horse, mare,
gelding, colt, filly, mule, ass, bull, cow, ox, heifer,
calf, sheep, goat, or ostrich, and not exceeding
in value the sum of two pounds sterling.
(C) Attempt to commit either of the above offences, or
being accessory .to the commission thereof.
130 CAPE OF GOOD HOPE [1879
(D) Receiving stolen goods (not being anything ex-
cepted in clause B, and not exceeding in value
the sum of two pounds sterling), knowing them
to have been stolen.
(E) (F) (G) (H) [Contravention of any municipal
regulation, of certain police regulations, of pales
regulating the sale of spirituous liquors and of
laws relating to passes, contracts of service, etc.]
the same jurisdiction, power, and authority as if he were the
resident magistrate of the district in which the offence then
under investigation was committed, [but only minor punish-
ments may be inflicted by such special justice of the peace.]
IX. [Proceedings in cases summarily adjudicated to be
forwarded to Registrar of Supreme or Eastern Districts Court,
as the case may be, to be confirmed or altered or reversed.]
XIV. This Act may be cited for all purposes as ” The
Better Administration of Justice in Criminal Cases Act, 1876.”
P.R.O., C.O. 50/6.
THE HIGHER COURTS OF JUSTICE.
No. 5 of 1879.!
No. 83. Act. To increase the Efficiency of the Court of the
Eastern Districts, and to Improve the Administration of
Justice generally. [Assented to 8th September 1879.]
WHEREAS it has been found expedient to add to the number
of judges constituting the court of the eastern districts, and
to make provision for appeals from the said court and from
the circuit courts, and to establish a court of criminal appeal
for the Colony : Be it therefore enacted by the Governor of
the Cape of Good Hope, by and with the advice of the Legis-
lative Council and House of Assembly thereof, as follows :
I. [Repugnant statutes repealed.]
II. [Supreme Court to consist of chief justice and five
puisne judges.]
III. The court of the eastern districts shall consist of and
be holden by, and before, three of the puisne judges of the
supreme court, of whom one, to be called the judge president,
and who shall be nominated and appointed by the said Governor,
shall be a judge of the court of appeal hereinafter mentioned,
and the two others shall not be judges of the said court of
appeal. . . .
IV. Every judge who shall be assigned and appointed to
the office of judge president of the eastern districts court shall
1 Superseded by Act No. 35 of 1896.
1879] COURTS OF JUSTICE 131
be entitled to hold the said office so long as he shall continue
to be a judge of the supreme court.
V. [When a case is heard by two judges and they differ,
the case is to be suspended until three judges shall be present.]
VI. From and after the taking effect of this Act there shall
be in this Colony a court of appeal, to be called ” The Court
of Appeal of the Cape of Good Hope.” . . .
VII. The said court of appeal shall be a superior court of
record, and shall consist of the chief justice of the Cape of
Good Hope, the judge president of the eastern districts court,
and two other puisne judges of the supreme court, who shall
be thereto duly assigned and appointed by the Governor,
acting by and with the advice of the executive council.
VIII. Every judge who shall be appointed to the office of
judge of the court of appeal shall hold such office so long as
he shall continue to be a judge of the supreme court.
XI. It shall be lawful for any person being a party to any
civil suit in the eastern districts court, or in any circuit court,
to appeal to the said court of appeal against any judgment,
decree, or order of such eastern districts court or circuit
court ; . . .
XII. The forty-second and forty- third sections of the
charter of justice, and the twenty-third, twenty-fourth,
twenty-fifth, and twenty-sixth sections of Act No. 21 of 1864
are hereby repealed.
XVIII. [Judges of appeal court to frame rules for that
court.]
XX. An appeal to Her Majesty the Queen shall be allowed
by such court of appeal against any final judgment, decree,
or order thereof in any civil suit or action in which an appeal
is now allowed, and the fiftieth, fifty-first, and fifty-second
sections of the charter of justice shall apply, mutatis mutandis,
to every appeal from the said court of appeal, precisely as if
such court of appeal were the supreme court in the said charter
mentioned.
XXII. The judges of the said court of appeal, or any
three of them, shall likewise constitute a court of appeal in
criminal cases, and appeals shall be allowed to the said court
of appeal [in certain specified instances].
XXIX. This Act shall take effect when and so soon as
the Governor, with the advice of the Executive Council, shall,
by proclamation published in the Government Gazette, declare
that the same is in force.
XXX. This Act may be cited for all purposes as ” The
Administration of Justice Amendment Act, 1879.”
P.R.O., C.O. 50/6.
132 CAPE OF” GOOD HOPE [1880
ADMINISTRATION OF JUSTICE IN GRIQUALAND
WEST.
No. 12 of i860. 1
No. 84. Act. To amend in certain respects Act No. 39 of 1877
and Act No. 5 of 1879. [Assented to 29th July 1880.]
WHEREAS it was provided by Act No. 39 of 1877 that,
from and after the annexation of the province of Griqualand
West to the colony of the Cape of Good Hope, the supreme
court of the said colony shall consist of one chief justice and
five puisne judges, the recorder of Griqualand West being one
of them : and whereas it was further provided by the said
Act that appeals from the decisions of the high court of
Griqualand West, or of any circuit court within the said
province, shall be made in the first instance to the supreme
court of this colony, and that appeals from the land court
of Griqualand West may, by consent of parties, be removed
into the said supreme court : and whereas by the subsequent
Act No. 5 of 1879, it was provided that the supreme court
shall consist of one chief justice and five puisne judges, the
said recorder not being included among the said five judges :
and whereas by the said last-mentioned Act, a court of appeal
in criminal as well as in civil cases was established in respect
of decisions of the eastern districts court, and from the circuit
courts of this colony, and certain provisions were made in
respect of the mode of procedure to regulate such appeals :
and whereas it is expedient in view of the future annexation
of the said province to the said colony that the said first-
mentioned Act should be amended in such a manner as to
provide one and the same court of appeal for the united
colony, to render the mode of procedure in all appeals uniform,
and in other respects to make the provisions of the first-
mentioned Act consistent with Act No. 5 of 1879 : Be it
enacted by the Governor of the Cape of Good Hope, by and
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
I. So much of the Royal Letters Patent, commonly called
the ” Charter of Justice,” of the Act No. 39 of 1877, f tne
Act No. 5 of 1879, and of any other law in force in this colony
at the time of the taking effect of this Act, as shall be repugnant
to or inconsistent with the provisions of this Act, shall be,
and the same is hereby repealed.
II. From and after the annexation of the said province
to the said colony, the supreme court of the said colony shall
‘Repealed by Act No. 35 of 1896, which gave to the Eastern Districts
Court jurisdiction over all causes arising in Griqualand West.
1884] COURTS OF JUSTICE 133
consist of one chief justice and six puisne judges instead of
five as heretofore, the additional judge being the recorder for
the time being of Griqu aland West.
III. In lieu of any right of appeal which may, under and
by virtue of the loth and nth sections of the said Act No. 39
of 1877, exist at the time of such annexation as aforesaid to
the supreme court of this colony, such appeal shall be made,
in the first instance to the court of appeal of this colony instead
of the said supreme court, and all and singular the provisions
of the said Act No. 5 of 1879, contained in the sections
numbered eleven to twenty-nine inclusive, shall apply, mutatis
mutandis, to the said high court, precisely as if the said high
court had been therein mentioned instead of the eastern
districts court.
[Etc.] P.R.O., C.O. 50/6.
MARRIAGE LICENSES. [14 June 1882.]
No. 9 of 1882.
No. 85. Act. To regulate the Issue of Licenses for the Solemni-
zation of Marriages, and to Abolish Matrimonial Courts.
II. [Courts of Resident Magistrates substituted for Matri-
monial Courts.]
III. [Magistrates may grant marriage licenses.]
[Etc.]
P.R.O., C.O. 50/7.
THE DUTCH LANGUAGE IN THE COURTS OF LAW.
[Promulgated 25th July 1884.]
No. 21 of 1884.
No. 86. Act. To sanction the use of the Dutch Language
equally with the English in Courts of Justice.
WHEREAS it is expedient to afford facilities for the use of
the Dutch language equally with the English in courts of
justice and in legal proceedings : Be it therefore enacted by
the Governor of the Cape of Good Hope, with the advice and
consent of the Legislative Council and House of Assembly
thereof, as follows :
i. Notwithstanding anything contained in the Charter of
Justice or in the Act No. 20 of 1856, or in any other statutory
enactment having the force of law in the colony, the judges
of the superior courts of justice may, and resident magistrates,
special justices of the peace, and field-cornets shall, allow the
use of the Dutch language equally with the English language
I 3 4 CAPE OF GOOD HOPE [1885
at the hearing of any suits, cases, or enquiries, civil or criminal,
in their respective courts when requested so to do by any of
the parties to such suits or other proceedings ; and upon such
allowance it shall be lawful for either of the parties to such
suits, cases, or other proceedings, or their respective counsel,
attorneys, or agents to use either the English or Dutch language
in the conduct of their cases before such courts.
2. Whenever any divisional council shall by a majority of
its members, resolve at a meeting duly convened for that
purpose ; or whenever no fewer than one-third of the voters
registered for parliamentary elections in any division shall in
writing, by petition, apply to the Governor to order the issuing
of summonses, notices, and documents referred to in any
summons, in all suits brought in any of the courts within such
division, in the Dutch as well as in the English language, it
shall be lawful for the Governor in either of the cases before-
mentioned by proclamation in the Gazette to grant such order.
3. This Act may be cited as ” The Dutch Language Judicial
Use Act, 1884.”
P.P 0., C.O. 50/7.
THE LAW RELATING TO JURORS.
[Promulgated 7th August 1885.]
No. 17 of 1885.1
No. 87. Ad. To amend the Law relating to Jurors.
WHEREAS it is provided by the sixteenth section of Ordi-
nance No. 84, that no person shall be put on trial on any indict-
ment at any criminal session of the Supreme Court unless the
bill of such indictment shall first have been presented to a
Grand Jury, and shall have been returned by them a true bill :
and whereas this provision does not extend to criminal trials
other than those in the Supreme Court, and has been found in
practice to be inconvenient and unnecessary in the Supreme
Court : and whereas it is expedient to amend the law relating
to giving publicity to jurors’ lists: Be it enacted by the
Governor of the Cape of Good Hope, by and with the advice of
the Legislative Council and House of Assembly thereof, as
follows :
i. The sixteenth and seventeenth sections of the said
Ordinance No. 84 and all other laws or rules of court relating
to the attendance and service of grand juries at the criminal
sessions of the Supreme Court, are hereby repealed : Provided
that nothing herein contained shall be deemed to dispense
1 Cf. ” The Jury Act,” No. 22 of 1891 below, and Act No. 35 of 1904, not
printed.
i886] COURTS OF JUSTICE
with the necessity of lists of grand jurors being made out as
heretofore for the purpose of selecting juries in civil cases as
provided by Act No. 30 of 1874, or to alter the law which
renders grand jurors whose names appear in such list liable
to serve as petty jurors in the Supreme Court.
2. So much of the seventh section of the said Ordinance
as requires that a copy of the jurors’ list shall annually be
affixed to the principal door of every church, chapel, or other
place of public worship in a certain portion of such district,
shall be and is hereby repealed.
3. This Act may be cited as the ” Jurors’ Law Amendment
Act, 1885.”
P.R.O., C.O. 50/7.
APPEAL COURT AND SHERIFF’S DUTIES ACT.
[Promulgated 2gth June 1886.]
No. 17 of I886. 1
No. 88. Ad. To amend the Law relating to Appeals and
Duties of the Sheriff, and to make more convenient pro-
vision regarding Legal Process in certain Cases.
[Preamble.]
1. From and after the passing of this Act the Court of
Appeal shall cease to exist, and all and singular the powers,
duties, and authorities conferred upon the said Court of Appeal
by Act No. 5 of 1879, Act No. 40 of 1882, or any other Act of
Parliament, shall be vested in the Supreme Court of the Colony.
2. [Appeals to the Supreme Court to be heard before not
less than three Judges, one of whom shall be the Chief Justice
of the Colony.]
3. [Puisne Judges assigned to the Supreme Court to remain
so.]
4. In case any appeal shall be heard before the Supreme
Court against the unanimous judgment of the full Eastern
Districts Court or High Court of Griqualand, such judgment
shall be affirmed unless three or more of the Judges sitting in
appeal shall concur in reversing or varying the same.
5. It shall be lawful for the prosecutor or defendant in any
criminal suit, which shall be brought in appeal or review before
the Eastern Districts Court, High Court of Griqualand, or
any Circuit Court, from any inferior court, to appeal to the
Supreme Court against the judgment of the said Eastern
Districts Court, High Court of Griqualand, or Circuit Court,
as the case may be. . . .
1 Cf . Act No. 3 5 of 1 896, not printed.
136 CAPE OF GOOD HOPE [1888
6-12. [Provisions for the seizing and sale of property by
the Sheriff in execution of a decree of court.]
13. [Judges of Supreme Court may make rules and orders
for Courts of Resident Magistrates.]
14. The following shall be added as a proviso to the second
section of Act No. 21 of 1884 : ” Provided, however, that if
it shall appear to the officer issuing any such process as afore-
said, either from his personal knowledge or otherwise, that the
person upon whom the same is intended to be served is suffi-
ciently acquainted with the English language to understand
the purport of such process, or is not sufficiently acquainted
with the Dutch language to understand the purport of such
process if it be drawn in the Dutch language, then it shall not
be necessary to issue such process in the Dutch language as
well as the English language.”
15. This Act may be cited as the ” Appeal Court and
Sheriff’s Duties Act, 1886.”
P.R.O., C.O. 50/7.
THE DUTCH LANGUAGE JUDICIAL USE AMENDMENT
ACT.
[Promulgated iyth August 1888.]
No. 15 of 1888.
No. 89. Act. To amend ” The Dutch Language Judicial Use
Act, 1884.”
Be it enacted by the Parliament of the Cape of Good Hope,
in Parliament assembled, as follows :
i. In addition to the proviso set forth in the fourteenth
section of the Act No. 17 of 1886, there shall be added the
following proviso to the second section of Act No. 21 of 1884 :
” Provided, further, that if it shall appear to the officer issuing
any such process as aforesaid, either from his personal know-
ledge or otherwise, that the person upon whom the same is
intended to be served is sufficiently acquainted with the Dutch
language to understand the purport of such process if drawn
in that language, or is not sufficiently acquainted with the
English language to understand the purport of such process if
it shall be drawn in the English language, then it shall not be
necessary to issue such process in the English language, but
issue thereof in the Dutch language shall, for all legal purposes,
and notwithstanding anything to the contrary contained in
any law in force in this Colony, be good, valid, and effectual.”
2. This Act may be cited as ” The Dutch Language Judicial
Use Amendment Act, 1888.”
P.R.O., C.O. 50/7.
1891] COURTS OF JUSTICE 137
THE JURY ACT, 1891. [December i, 1891.]
No. 22 of 1891.
No. 90. Ad. To consolidate and amend the Law relating
to Juries.
Be it enacted by the Governor of the Cape of Good Hope,
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
1. The laws mentioned in the Schedule to this Act, and so
much of any other law as shall be repugnant to or inconsistent
with the provisions of this Act, are hereby repealed.
QUALIFICATION OF JURORS.
2. Every man residing within the Colony between the
ages of twenty-one years and sixty years who shall possess
the qualification in this Act provided, and not therein declared
disqualified or exempted, shall be qualified and liable to serve
as a juror.
3. Every man between the ages aforesaid who shall be the
owner or occupier of any immovable property of the value
of not less than three hundred pounds according to the valua-
tion roll of any Divisional Council or Municipality, or shall
be in the receipt of salary or wages amounting to not less
than one hundred and fifty pounds per annum, and who
shall not be disqualified or exempted by the terms of this
Act, shall be qualified and liable to serve as a juror on any
jury empanelled for any trial or enquiry within the jury district
in which such person shall reside.
4. When any such property shall be jointly occupied by
more persons than one, each of such joint occupiers, if other-
wise qualified or liable, shall be qualified and liable to serve
as a juror as aforesaid in case the value of such property,
when divided by the number of such joint occupiers, shall
give a sum not less than three hundred pounds for each such
occupier.
5. [When no valuation roll exists, the person making the
jury lists shall estimate the value of properties.]
SPECIAL JURORS.
6. Every man qualified and liable to serve as a juror shall
also be qualified and liable to serve as a ” special juror ” in
case he shall be
(i) The owner of landed property of the assessed value
of one thousand pounds ; or
(2 The occupier of such property as tenant of the
assessed value of one thousand five hundred
pounds ; or
138 CAPE OF GOOD HOPE [1891
(3) Although neither the owner nor occupier of landed
property of such assessed values as aforesaid, if
he shall be described in the jury lists as an archi-
tect, a civil engineer, a broker, manager of a
bank, manager or secretary of a fire or life
assurance company or society, or of any company
for the administration of estates, or be in the
receipt of salary amounting to five hundred
pounds per annum.
7. No person qualified as a ” special juror ” shall (unless
otherwise exempted) be on that account exempted from serving
on a petit jury.
DISQUALIFICATION OF JURORS.
8. The following persons shall not be qualified to serve
as jurors in any court or on any occasion :
(1) Any one who is not a natural-born or naturalized
subject of Her Mijesty ;
(2) Any one who has been convicted of and sentenced
for treason, murder, rape, theft, fraud, perjury,
forgery, fraudulent insolvency, or contraven-
tion of the diamond-trade laws, unless he shall
have received a free pardon.
(3) Any one who cannot read and write.
EXEMPTIONS.
9. The following persons shall be exempt from serving as
jurors, and their names shall not be inserted in any jury
list:
(i)-(6) [Those classes of men mentioned in Ord. 41
(4 Feb. 1828), footnote (No. 75).]
(7) All schoolmasters and school inspectors ;
(8) All masters of vessels and pilots ;
(9) All persons continuously employed in the working
of any railway or tramway ;
(10) All persons actually engaged as editors of, or
reporters for, newspapers.
JURY DISTRICTS.
10. Every area within a radius of thirty-six miles from
the court-house of the Resident Magistrates respectively of
Grahamstown, Kimberley, and every other town where a
circuit court is to be held, and within the judicial district in
which such town is situated, shall be deemed to be a ” jury
district.” And in regard to Cape Town, an area within a
radius of twenty miles from the court-house of the Resident
Magistrate of Cape Town, shall be deemed to be a ” jury
1891] COURTS OF JUSTICE 339
district ” although such area shall include portions of more
judicial districts than one.
11. [Any ” jury district ” of 36 mile sradius in which there
are not 54 qualified persons shall be extended to a radius of
48 miles.]
JURY LISTS.
12. The jury lists in use at the taking effect of this Act
shall continue in force and be used until new jury lists are
made and revised as in this Act is provided.
13. On or before the ist day of January in the next and
every succeeding year, the Resident Magistrates respectively
of every district which includes any such ” jury district ” as
aforesaid, shall, by written order, require the field-cornets or
any members of the police force who may be assigned for such
duty, to prepare in alphabetical order a true list or return of
all men residing within the limits mentioned in such order,
qualified and liable to serve as jurors or special jurors.
14. [Each such field-cornet or member of police shall make
out such list and deliver it to the Resident Magistrate not
later than the 20th January.]
15. [The persons making out the lists shall each year be
supplied with the previous year’s lists.]
16. For the purpose of preparing such lists the field-cornets
or other persons engaged in their preparation may put such
questions as they think proper, relating to the said lists, and
to the name and surname, place of abode, calling, business,
occupation, qualification, or age of any man residing in any
jury district.
17. [Every person making out the lists shall have access
to the valuation roll of any Divisional Council or Munici-
pality.]
18. [The Magistrate receiving the lists shall cause a true
list to be made out for his ” jury district ” and shall mark
the word ” special ” against the names of such persons as are
qualified to serve as special jurors.]
19. [A copy of the list shall be affixed to the door of the
court-house with a notice stating that a court will be held to
revise the list.]
20. [If there is no jury list for the year, the list of the
previous year shall be used.]
COURT OF REVISION OF JURY LISTS.
21. On the day and at the place appointed in the notice
aforesaid, the Resident Magistrate shall hold a court, con-
sisting of himself as president, and such members of the
Divisional Council (if any) as may attend, for revising the
140 CAPE OF GOOD HOPE [1891
jurors’ lists, but if after fifteen minutes of the time appointed
no member of the Divisional Council is in attendance -the
Resident Magistrate may act alone.
22. The decisions of the said court shall be by majority
of the votes of those attending, and if there be an equality of
votes, the Resident Magistrate presiding shall have a casting
vote in addition to his vote as a member of the court. When
no member of the Divisional Council attends, the decision of
the Resident Magistrate shall be the decision of the said court.
23. [Lists to be produced at court.]
24. [Court may strike out names on the list.]
25. [Court may correct errors in the lists.]
26. [After the lists are revised they shall be sent to the
Sheriff of the Colony.]
JURORS’ BOOKS.
27. [The Sheriff shall cause a Jurors’ Book to be kept for
each district in which shall be copied the names of jurors.]
SPECIAL JURY IN CRIMINAL CASES.
28. The Supreme Court, Court of the Eastern Districts, or
High Court of Griqualand, within the jurisdiction of such
courts respectively, may on application made on behalf of Her
Majesty, or by any private prosecutor entitled to prosecute,
or by or on behalf of any defendant or person committed for
trial for any indictable offence (whether the indictment or
information shall have been served upon the accused or not),
order that the trial of the accused named in such order shall
be by a special jury in such courts, respectively, or in any
Circuit Court.
29. Whenever a criminal case has been ordered to be tried
before a special jury, the Registrar of the Court granting such
order shall forward a notice to the Sheriff, or his deputy in the
district in which the trial is to be held, informing him thereof.
30. [The Sheriff or his deputy shall thereupon draw the
names of 27 special jurors.]
31. [The prosecutor or his agent and the defendant or his
attorney shall then be entitled to strike out four names each
from the list of 27.]
32. [If the parties do not appear, the Sheriff shall reduce
the list to 19.]
33. The persons whose names are not struck out shall be
summoned to attend for the trial.
SUMMONING JURORS.
34. [The Sheriff or his deputy shall summon the juries for
criminal sessions ten days before the trial and for civil cases
1891] COURTS OF JUSTICE 141
seven days before the trial. The number summoned shall not
exceed 27.]
35. [The mode of summoning juries.]
36. [The officer summoning jurors shall make a return to
the Registrars of the Courts stating the manner of serving such
summons.]
DRAWING NAMES OF JURORS FOR SERVICE.
37. [Mode of drawing names of jurors to be summoned
and directions to be observed.]
38. [Sheriff to give notice of drawing, which is to be done
publicly.]
MISCELLANEOUS PROVISIONS.
39. [Verdict not invalid by reason of disqualification of any
juror or error in jury lists.]
40. [Jurors to be sworn.]
41. [They need not be sworn for each trial.]
42. [The court may allow an affirmation to be made.]
43. [If nine qualified men do not attend, the court may
call upon other qualified men present in the court-house or in
the town.]
44. [Jury to be kept apart by themselves till the judge has
summed up, and if they then wish they can retire in charge of
an officer of court.]
45. [In case of death or grave bodily or mental infirmity
of a jury, the Court may coempanel another jury.]
PENALTIES.
46. [Penalty for corruptly influencing jurors.]
47. [Every person, who, after being duly summoned, does
not attend to serve shall be liable to such fine as the court may
think fit.]
48. [Any person making a false claim of exemption shall
be liable to pay a fine of not more than 50.]
49. [If the Sheriff or his deputy takes a reward for illegally
exempting any person, he shall be liable to a fine not exceeding
100.]
50. [Penalty on field-cornets and other officers. for various
acts.]
51. [Any person removing or defacing a jury list posted up
on the door of a court-house is liable to a fine not exceeding
5-]
52. [Penalty for refusing to answer any question allowed
by section 16 not to exceed 2.]
53- [The judge may remit fines imposed on a juror for
default.]
142
CAPE OF GOOD HOPE
54. [If a fine is not paid the Registrar shall issue a writ.]
55. This Act may be cited for all purposes as the ” Jury
Act, 1891.”
SCHEDULE.
LAWS REPEALED.
No. and Year.
Ord. No. 84, 1831 .
Ord. No. i, 1843 .
Act No. 7, 1 86 1
Act No. 2, 1876 .
Act No. 17, 1885 .
Ord. No. 14, 1876 .
The Rules of Court
numbered respec-
tively 43, 44, 45,
46,49,51,52,275,
350, 360.
Title of Law.
“- For altering and amending the Law relative to
the qualification of persons liable to serve on
Grand and Petit Juries, and to the mode of
making put and returning lists of the same.”
” For amending the Law relative to the qualifica-
tion of Jurors.”
An Act to amend the Law relating to Grand and
Petit Jurors.
An Act to amend the Law relating to the making
out of lists of Jurors.
Act to amend the Law relating to Jurors.
Ordinance to amend the Laws regulating the
qualifications of Jurors in the Province of
Griqualand West.
C. of G. Hope Statutes 1652-1905, p. 2876.
CHAPTER II.
NATAL.
SECTION A.
CENTRAL GOVERNMENT.
BRITISH RESIDENTS IN NATAL.
No. 91. Treaty between the BRITISH RESIDENTS at Port
Natal and DINGAAN, KING OF THE ZULUS. [6 May 1835.]
1. Dingaan, from this period, consents to waive all claim to
the persons and property of every individual now residing at
Port Natal, in consequence of their having deserted from him,
and accords them his full pardon. He still, however, regards
them as his subjects, liable to be sent for whenever he may
think proper.
2. The British residents at Port Natal, on their part,
engage for the future, never to receive or harbour any deserter
from the Zulu country, or any of its dependencies ; and to use
every endeavour to secure and return to the King every such
individual endeavouring to find an asylum among them.
3. Should a case arise in which this is found to be im-
practicable, immediate intelligence, stating the particulars of
the circumstance, is to be forwarded to Dingaan.
4. Any infringement of this treaty on either part invali-
dates the whole.
Done at Congella, this Sixth Day of May 1835, in presence
of
UMTHELLA\C/M/ Indunas and Head Coun-
TAMBOOZA] cillors of the Zulu nation.
Mr. GEORGE CYRUS, Interpreter.
Signed on behalf of the British Residents at Port Natal,
(Signed) ALLEN F. GARDINER.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 5.
THE GREAT TREK FROM THE CAPE COLONY.
No. 92. Manifesto of the EMIGRANT FARMERS.
[From the Grahamstown Journal of 2 Feb. 1837.]
A document has been handed to us, with a request to give
it publicity, purporting to be the causes of the emigration
M3
144 NATAL [1837
of the colonial farmers, of which the following is a literal
translation :
Numerous reports having been circulated throughout the
colony, evidently with the intention of exciting in the minds of
our countrymen of prejudice against those who have resolved
to emigrate from a colony where they have experienced, for so
many years past, a series of the most vexatious and severe
losses ; and, as we desire to stand high in the estimation of our
brethren, and are anxious that they and the world at large
should believe us incapable of severing that sacred tie which
binds a Christian to his native soil, without the most sufficient
reasons, we are induced to record the following summary of our
motives for taking so important a step, and also our intentions
respecting our proceedings towards the native tribes which
we may meet with beyond the boundary :
1. We despair of saving the colony from those evils which
threaten it by the turbulent and dishonest conduct of vagrants,
who are allowed to infest the country in every part ; nor do we
see any prospect of peace or happiness for our children in any
country thus distracted by internal commotions.
2. We complain of the severe losses which we have been
forced to sustain by the emancipation of our slaves, and the
vexatious laws which have been enacted respecting them.
3. We complain of the continual system of plunder which
we have ever endured from the Caffres and other coloured
classes, and particularly by the last invasion of the colony,
which has desolated the frontier districts and ruined most of
the inhabitants.
4. We complain of the unjustifiable odium which has been
cast upon us by interested and dishonest persons, under the
cloak of religion, whose testimony is believed in England, to the
exclusion of all evidence in our favour ; and we can foresee,
as the result of this prejudice, nothing but the total ruin of the
country.
5. We are resolved, wherever we go, that we will uphold
the just principles of liberty ; but, whilst we will take care
that no one shall be held in a state of slavery, it is our deter-
mination to maintain such regulations as may suppress crime,
and preserve proper relations between master and servant.
6. We solemnly declare that we quit this colony with a
desire to lead a more quiet life than we have heretofore done.
We will not molest any people, nor deprive them of the smallest
property; but, if attacked, we shall consider ourselves fully
justified in defending our persons and effects, to the utmost
of our ability, against every enemy.
7. We make known, that when we shall have framed a code
of laws for our future guidance, copies shall be forwarded to the
1836] CENTRAL GOVERNMENT 145
colony for general information ; but we take this opportunity
of stating, that it is our firm resolve to make provision for
the summary punishment of any traitors who may be found
amongst us.
8. We propose, in the course of our journey, and on arriving
at the country in which we shall permanently reside, to make
known to the native tribes our intentions, and our desire to
live in peace and friendly intercourse with them.
9. We quit this colony under the full assurance that the
English Government has nothing more to require of us, and will
allow us to govern ourselves without its interference in future.
10. We are now quitting the fruitful land of our birth, in
which we have suffered enormous losses and continual vexation,
and are entering a wild and dangerous territory ; but we go
with a firm reliance on an all-seeing, just, and merciful Being,
whom it will be our endeavour to fear and humbly to obey.
By authority of the farmers who have quitted the Colony,
(Signed) P. RETIEF.
Parl. Papers, C. of G. Hope (Return to
an address of the House of Commons,
dated 7 May 1838), 0.98, p. 5.
No. 93. ATTORNEY-GENERAL’S OPINION REGARDING
THE TREK.
[13 August 1836.]
When the circumstances of this colony are taken into
consideration, it would seem next to an impossibility to prevent
persons who are so inclined from passing out of this colony
by the land boundaries thereof, either by laws now in force,
and which I have recapitulated in my report of loth September
1834, upon the Governor’s memorandum of the 5th September
1834, relative to the emigration of certain of the inhabitants
beyond the borders of the colony, or by any other laws which
can be framed. The penalties provided by the existing
laws, or any others which might be imposed, can only be levied
so long as the offender can be found within the colony ; and
if the penalties were exacted, even in a solitary instance,
there can be little doubt the effect would only be to put intend-
ing emigrants on their guard, and to keep their intentions
secret until a favourable opportunity occurred of quitting
the colony, before their removal was known to the authorities.
The farmers alluded to in the civil commissioner’s letter do
not appear to leave the colony with the intention of ever
returning. The laws I have referred to, seem to regard persons
who pass beyond the boundary for some temporary purpose,
10
NATAL [1836
and who, during their sojourn out of the colony, still consider
themselves as colonists ; but the class of persons under con-
sideration evidently mean to seek their fortunes in another
land, and to consider themselves no longer British subjects,
so far as the colony of the Cape of Good Hope is concerned.
Would it therefore be prudent or just, even if it were possible,
to prevent persons discontented with their condition, to try
to better themselves, in whatever part of the world they
please ? The same sort of removal takes place every day
from Great Britain to the United States.
But it may be said that danger may arise to the colony
from acts and dealings of the farmers in question, in the
progress of removal, with the frontier tribes, and that the
Government is justified in preventing any such danger. Admit
that it is so, is there any effectual means of arresting persons
determined to run away, short of shooting them as they pass
the boundary line ? I apprehend not ; and if so, the remedy
is worse than the disease. The Government, therefore, if I
am correct in my conclusions, is and must ever remain without
the power of effectually preventing the evil, if evil it be, re-
ported by the civil commissioners.
(Signed) A. OLIPHANT.
Parl. Papers, C. of G. Hope (Return to
anaddress of the House of Commons,
dated 7 May 1838), 0.98, p. 5.
BRITISH AUTHORITY BEYOND CAPE BORDERS.
No. 94. AnActiorthe Prevention and Punishment of Offences
committed by His Majesty’s Subjects within certain
Territories adjacent to the Colony of the Cape of Good
Hope. [13 August 1836.]
[6 & 7 W. iv., cap. 57.]
WHEREAS the Inhabitants of the Territories adjacent to
the Colony of the Cape of Good Hope to the Southward of the
Twenty-fifth Degree of South Latitude being in an uncivilized
State, Offences against the Persons and Property of such
Inhabitants and others are frequently committed by His
Majesty’s Subjects within such Territories with Impunity ;
for Remedy thereof be it enacted by the King’s most Excellent
Majesty, by and with the Advice and Consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the Authority of the same, That the
Laws which are now or which shall hereafter be in force in the
Colony of the Cape of Good Hope for the punishment of crimes
therein committed shall be and the same are hereby extended
and declared applicable to all His Majesty’s Subjects within
1836] CENTRAL GOVERNMENT 147
any Territory adjacent to the said Colony and being to the
Southward of the Twenty-fifth Degree of South Latitude,
and that every Crime or Offence committed by any of His
Majesty’s Subjects within any such Territory in contravention
of any such Laws shall be cognizable in any such Courts, and
shall be inquired of, tried, and prosecuted, and on Conviction
punished, in such and the same Manner as if the same had
been committed within the said Colony.
II. And whereas it is necessary to prevent as far as may
be the Commission of Crimes by His Majesty’s Subjects within
such Territories as aforesaid, and to provide for the Arrest,
Commitment, and bringing to Punishment of any of His
Majesty’s Subjects by whom any such Crimes may be per-
petrated ; be it therefore enacted, That it shall be lawful for
the Governor of the said Colony to address to any One or more
of His Majesty’s Subjects being within or about to resort to
any such Territories as aforesaid One or more Commission or
Commissions, authorizing him or them to exercise within such
Territories the Office of a Magistrate for the Purpose of prevent-
ing the Perpetration therein by any of His Majesty’s Subjects
of any Crimes or Offences, and for the Purpose of arresting,
committing to Custody, and bringing to Trial before such
Courts as aforesaid any of His Majesty’s Subjects charged on
sufficient Evidence before him or them with the Commission
of any such Crimes or Offences within any such Territories ;
and it shall also be lawful to the Governor of the said Colony,
by any such Commission or Commissions as aforesaid, to define
with all practicable and convenient Precision the local Limits
within which the Jurisdiction of any such Magistrate or Magis-
trates shall be so exercised, and to which it shall so extend ;
and within the limits so to be defined as aforesaid every such
Magistrate shall have, exercise, and enjoy all such Powers and
Authorities over and in Reference to His Majesty’s Subjects
inhabiting or being within the same as shall by any such
Commission or Commissions be specially granted : Provided
always, that no such Powers or Authorities shall be so granted
by any such Commission or Commissions, save only such as
shall be necessary for accomplishing the Purposes aforesaid
with Promptitude and Effect.
III. And be it further enacted, That all such Commissions
as aforesaid shall be made to continue in force only during
His Majesty’s Pleasure ; and the Governor for the Time
being of the said Colony shall be and he is hereby bound and
required to transmit a Copy of every such Commission by the
earliest opportunity to His Majesty, through One of His
Majesty’s Principal Secretaries of State, for His Approbation
or Disallowance.
148 NATAL [1837
IV. And be it further enacted, That nothing herein or in
any such Commission or Commissions contained shall extend
or be construed to extend to invest His Majesty, His Heirs
or Successors, with any Claim or Title whatsoever to Dominion
or Sovereignty over any such Territories as aforesaid, or to
derogate from the rights of the Tribes or People inhabiting
such Territories, or of Chiefs or Rulers, to such Sovereignty or
Dominion.
V. And be it further enacted and declared, That for the
purposes of this Act any Person lawfully administering the
Government of the said Colony shall be deemed and taken
to be the Governor thereof.
P.R.O., bound in C.O. 48/224.
CESSION OF TERRITORY.
No. 95. Cession of Natal Territory to EMIGRANT FARMERS,
by DINGAAN, KING OF THE ZULUS.
UNKUGINSLOAVE, tfh February 1837.
Know all men by this :
That whereas Pieter Retief Gouvernor of the Dutch
Emigrant South Africans has retaken my Cattle which Sin-
konyella had stolen which Cattle he the said Retief now de-
livered unto me. I, Dingaan, King of the Soolas, do hereby
Certify and declare that I thought fit to resign unto him the
said Retief and his Countrymen the place called Port Natal,
together with all the Land annexed, That is to say from the
Togala to the Omsaboobo River, and from the Sea to the
North as far as the Land may be useful and in my Possession.
Which I did by this and give unto them for their everlasting
Property.
As Witness
(Signed) MVARA, G. Raad.
JULIANUS, Do.
MANONDU, Do.
(Signed) De merk (en) van (The mark (in) of
de KONING DINGAAN. KING DINGAAN.)
As Witness M. OOSTHUIZEN.
A. C. GREYLING.
B. J. LlEBERBERG.
Translation.
We certify that the foregoing is a true Copy of what was
found by us by the bones of the late Mr. Retief in Dingaan’ s
Country.
(Signed) A. W. PRETORIUS, Chief Officer.
(Signed) K. P. LANDMAN, Commandant.
1837] CENTRAL GOVERNMENT 149
I hereby certify that the above Document is a true Copy
of the original Grant made by Dingaan to the Emigrant
Farmers and found on the murdered Body of the late Pieter
Retief, in my presence by Swart Potgieter on or about the
23d day of Deer. 1838.
(Signed) E. D. WARD PARKER.
P.R.O., MS. copy in C.O. 48/200.
No. 96. CESSION OF NATAL TERRITORY TO THE
KING OF ENGLAND. [21 June 1837.]
DINGARN KING OF THE ZooLus to the KING OF ENGLAND.
I have always treated your White people well, I have given
them plenty of ground to hunt upon, but they have been
continually at variance, & dispute among themselves and
with my people & I now wish them to be called back to
their own country I have always taken great care of them,
have never killed one of them, nor have I ever had such in-
tention I wish Capt?. Gardiner & all the Missionaries to
remain, as I can talk pleasantly with them. I wish a Chief
to be sent to Port Natal to pursue peace & to see that my
people do not go down there, & to tell them that they are
not to remain there If this is done the White people who are
there now may all stop, but if this is not done I should wish
them to be removed Capt 1 ?. Gardiner is the Chief you have
sent to Port Natal, but he says that he has no power to send
my people back who desert from me I wish him to send them
back & I wish him to be the Chief there If my people
who desert to Port Natal are sent away & not permitted to
remain there, I shall be satisfied I do not ask for them to be
sent back, as Capt n Gardiner tells me it is contrary to the
custom of White Kings. This is what I ask All the ground
on which the White people live about Port Natal I give to
the King of England I give him the whole country between
the Umgani river & the territory occupied by Faku & Napai,
from the sea coast to the Quathlamba mountains with the
exception of a district on the Umgani belonging to me which
commences at the mountain called Issicalla Sinyoka.
DINGARN ) TT .
King of the Zoolus/ x Hls sl n ‘
Signed in the presence of the following chiefs this 2ist day
of June 1837 at Nobamba :
MANYOSI …. Induna . . his mark x
MAPEETI …. Do. . . Do. x
MANGUANGA . . . Do. . . Do. x
THOMAS VERITY . Interpreter . Do. x
P.R.O., Original MS. in C.O. 48/193.
150 NATAL [1837
BRITISH AUTHORITY.
No. 97. Protest against a Magistrate’s Authority. [July 1837.]
[On 2ist April 1837 Captain Allen Gardiner of the Royal Navy
was commissioned by Governor D’ Urban to proceed to Natal as a Magis-
trate possessing criminal jurisdiction under Act 6 & 7 Wm. iv. cap.
57. His office was to be exercised ” within the Territory extending
from the left Bank of the Umzimvoobo to the Northermost limit of the
Zulu Territory, and from the Sea Coast to the Quathlamba Mountains ;
including also the whole of the Zulu Country, and its Dependencies.”
He could not find there a single white man ready to assist him by
performing police duties, and the few Englishmen then at Port Natal
protested against his appointment.]
Protest of the INHABITANTS OF NATAL against the appoint-
ment of Captain A. GARDINER, R.N., as a Magistrate
over them for the following reasons :
1st. That the Country of Natal is not an acknowledged
part of the British Empire, but a free settlement.
2nd. That this said Country of Natal was granted to the
resident Inhabitants by Chaka the late King, and confirmed
to them by Dingarne, the present King of the Zoolas, and
stiled by them the Whiteman’s Country.
3rd. That the power so invested in Capt. Gardiner is
contrary to the principles of equity, inasmuch as it extends
to British Subjects only, not empowering the said Capt.
Gardiner to punish any act of aggression committed by the
Native population or by other Europeans upon the British
residents of Natal.
4th. That the said Capt. Gardiner is not empowered to
decide upon civil cases, which would have much more materially
benefited this settlement by the increased confidence it would
have given to mercantile and mechanical men to settle at
Natal.
5th. That the appointment of Capt. Gardiner to take
cognizance of criminal causes only, might open the door to
acts of tyranny and oppression inasmuch as he is obliged by
the tenor of his Commission to forward and transmit to the
nearest Magistrate in the Colony of the Cape of Good Hope,
the depositions taken before him of any alleged offence
committed, during which time the supposed offender must
remain in custody until a decision upon the report is made
in the Colony, and returned to Natal.
6th. That no mode of redress is pointed out in the event
of acts of oppression being committed by the said Captain
Gardiner or by his order upon the Inhabitants of this Free
Country, and ruin might be the result of the person so
oppressed.
7th. That the said Capt. Gardiner before his leaving this
1838] CENTRAL GOVERNMENT 151
Country for the avowed purpose of soliciting the British
Government to take possession of, and annex Natal to the
British Empire, has materially injured the interests of the
Inhabitants by advising the King of the Zoolahs to stop the
trade with his people, which fact has been communicated to
them by Dingarne.
That the Inhabitants in thus stating their reasons for thus
protesting against the appointment of Capt. Gardiner as a
Magistrate over them, are not actuated by factious motives,
but do so on the principle that this is not an acknowledged
part of the British Empire, nor has ever been officially taken
possession of by His Britannic Majesty, but is decidedly a free
Country.
Yet they ardently wish that his Majesty’s Government
would recognize it and appoint Magistrates not to hold out
threats and imprison only ; but to protect and encourage
them. Yet although protesting against (: being a free people 🙂
the authority attempted to be set over them in the Commission
of Captain Gardiner : yet they will cheerfully render obedience
to such competent authority, as may have the power as well
to protect as to punish.
(Signed) DANIEL CHAS. TOOLY, ALEXR. BIGGAR, ROBT.
BIGGAR, JOHN CANE, HENRY OGLE, JOHN
STUBBS, CHAS. BLANCKENBERG.
[Encl. in a Desp. of 26 July 1837.]
P.R.O., MS. copy in C.O. 48/193.
No. 98. THE OCCUPATION OF PORT NATAL BY A
BRITISH FORCE.
[4 Dec. 1838.]
[In 1838 Governor Napier sent a small body of troops under a certain
Major Charters to take temporary possession of Port Natal in order to
prevent the emigrant farmers from encroaching on native rights.
Major Charters also held a commission, dated 16 Nov. 1838, as a Magis-
trate under Act 6 & 7 Wm. iv. cap. 57. It was from his letters that
the news of the defence of the wagon camp of the emigrants on 16 Dec.
1838 reached Cape Town. The victory is commemorated annually as
Dingaan’s Day.]
Pursuant to the Orders of His Excellency Sir George Napier,
K.C.B., Governor and Commander-in-Chief of the Colony of
the Cape of Good Hope, I hereby take Military Possession,
in the name and on behalf of Her Britannic Majesty Queen
Victoria, of the Port of Natal and adjacent territory the
boundaries of which territory are now to be described.
A curved line following the . . . l of the bay, every point
1 One word is indistinct in the MS.
152 NATAL [1839
of which shall be two English statute Miles distant from the
High Water mark of the said Bay or Harbour, will define
the boundary of the Military occupation, and I hereby declare
the whole of the territory thus defined to be under Martial
Law, according to the English Articles of war, without pre-
judice however to any of the aboriginal tribes who may at
this date be inhabitants of the territory above described ;
which aboriginal tribes shall not only be suffered to pursue
their quiet occupations, but be directly protected in their
persons and properties, in so far as it shall be in the power
of the Military force at Natal to protect them.
It is clearly to be understood that there is nothing in this
declaration, which shall be in any way construed into an
intention of Her Majesty’s Government to colonize, or keep
permanent possession of this Country, unless it be Her Majesty’s
pleasure so to order.
Be it Known therefore that this military occupation has
taken place in consequence of the orders of His Excellency
the Governor of the Cape of Good Hope, for the purposes set
forth in his Proclamation of the I4th November 1838.
I also make known that it has been the pleasure of His
Excellency the Governor of the Colony of the Cape of Good
Hope for the better protection of the native Tribes to invest
me with a Magisterial authority under the Act of Parliament
of His late Majesty, King William the Fourth, entitled an
Act for the Prevention and Punishment of Offences committed
by His Majesty’s Subjects, within certain Territories, adjacent
to the Colony of the Cape of Good Hope, 13 August 1836.
The above declaration shall bear date from the day Her
Majesty’s troops landed at Port Natal, viz., the 4th of December
1838. ”
(Signed) SAMUEL CHARTERS, Major Commg.
A True Copy.
(Signed) T. SHEPSTONE.
P.R.O., MS. in C.O. 48/199.
THE REPUBLIC IN NATAL.
No. 99. Early Legislation in Natal.
PIETER MAURITZ BURG,
zqth July 1839.
Be it known that at a Meeting of the Council of the people
held on the 27th, 28th, and 29th Instant it was resolved and
determined that :
ist. That after publication hereof all young Men of 15
Years of Age, who shall cause themselves to be enrolled for
1839] CENTRAL GOVERNMENT 153
Militia Services, shall on application be considered to have a
claim to the grant of a Place.
2nd. As soon as a Powder Magazine shall have been
erected, any of the Proprietors of such Powder deposited there-
in, shall be permitted to have three Pounds of that Powder,
and no more, in his house, on pain of Rds. 100.
3rd. Country Field-Cornets will be directed to tax any
damage committed to lands, and a Tariff will be prepared
accordingly.
4th. That at Port Natal, and Under Umlass shall be ap-
pointed Mr. P. J. Joubert as Provisional Landdrost, and Messrs.
Fk. Johs. de Jager, H. Bredenberg, Dirk van Rooyen, and Wm.
Cowie, as his Heemraden.
5th. All unregistered Erven at Pieter Mauritzburg will be
considered to be resumed after the I5th July next, and will be
granted to other Applicants.
6th. No Zoolu shall be allowed to remain among the Bush-
men Kafirs ; if any Zoolu shall be found to sojourn among them,
such Kafirs may be punished with death for so detaining them.
yth. All Licenses except for the Sale of Wine and Brandy
have been fixed at Rds. 40, to be issued Quarterly. Those for
Wine and Brandy, by Retail, at Rds. 150 per Annum shall be
paid, by Wholesale, Rds. 50 per Year.
8th. No Tambotie Timber shall, until further orders, be
allowed to be felled in the neighbourhood of Port Natal ;
that already felled may be carried away upon obtaining a
Licence from the provisional Landdrost, or some person
authorized by him for which Licence shall be paid Rds. 2
for each load. Those persons transgressing this regulation
shall be liable to a fine of Rds. 25.
gth. Sickness preventing business to be carried on properly
at this moment, this shall be considered sufficient for the
present ; when an opportunity offers the necessary notifica-
tions, appointments, and instructions will be sent.
A Summons shall be sent to Ogle to appear here before the
Magistrate.
(Signed) JAS. JOHS. BURGER, Member of the
Council of the People.
P.R.O., MS. copy of translation in C.O. 48/201.
No. 100. MEMORIAL OF THE EMIGRANTS AT PORT
NATAL TO THE CAPE GOVERNOR. [1839.]
[The following memorial was forwarded to the editor of the Cape
Town newspaper, the Zuid Afnkaan, for publication, while it was also
presented to the Governor of the Cape Colony. It bears no date, but
154 NATAL [1839
internal evidence shows that it was very probably drawn up in March
or April 1839.]
To His Excellency Major-General Sir G. NAPIER.
SIR, When we compare the several verbal communica-
tions, as well as the public journals, with your Excellency’s
open invitation by Proclamation, dated Graham’s Town, 2ist
May last; to return to the Colony, we fear that your Excellency,
prejudiced against us by a party, who have incessantly perse-
cuted us with enmity, will not grant us the right of being
judged by a calm consideration, guided by your own personal
principles ; and wishing as much as is in our power to provide
herein, we have this day convened our Representative Assembly
(Volksraad), and, on the proposal of the President, have
resolved to adopt such measures as may be considered neces-
sary for the prevention of any misunderstanding, rupture, and
further alienation.
It is therefore on the full conviction of your Excellency’s
concern for our fate that weventure tobring to your Excellency’s
notice, that our emigration has taken place openly under the
eye of Government ; while even some of us, taking leave of the
Governor, and others of the Lieutenant-Governor, have parted
with their best wishes. We have consequently not emigrated
in secret ; but after the Commandos against the invading
Caffers had been gloriously accomplished, and they had been
compelled to make peace, after our taxes had been paid,
and after having had the public assurance of the Lieutenant-
Governor that there existed no law against a voluntary emi-
gration, which is so much encouraged in other countries, and
to which we have not been actuated or compelled by decep-
tion, nor by bad nor foolish prejudices, as by your Excellency’s
said Proclamation it appears to be supposed. The emigration
did not also take place (as some of our enemies presume)
on account of the emancipation of the slaves ; on the contrary,
a long and sad experience has sufficiently convinced us of the
injury, loss, and dearness of slave labor ; so that neither
slavery nor slave trade will ever be permitted amongst us ;
and should Mr. Gideon Joubert do justice to truth, his report
on the emancipation of the apprentices will show not only
our readiness in complying with the wishes of Government,
but will also state, that precautions have been taken by us,
for those who did not choose to leave their masters, to put them
in the way, should they choose it, to return to the Colony.
When we consider your Excellency’s invitation to return to
the Colony, and the general protection proffered to us, we feel
ourselves obliged not only gratefully to acknowledge your
Excellency’s good will towards us, but we are even confident,
that if our fate depended entirely from the decision and
1839] CENTRAL GOVERNMENT 155
sentiment, as well as of your Excellency’s own principles and
liberal ideas of what is just and what is unjust, our case would
soon be decided ; but as long as the best will is fettered to a
chimerical philanthropy, so generally raging in Europe, we fear
it will be difficult for your Excellency to do anything in our
favor.
The reasons of our emigration are different : some of a
personal nature ; others arose from public causes. Amongst
the first, which are numerous, we will just record one ; namely,
the illegal arrest, without cause, of Mrs. Uys, during the
absence of her husband, who was on the Commando against
the Caffers. Those of a public nature principally consist of
the disgusting Ordinance No. 19, which is so degrading for
us, and the several laws afterwards published, whereby our
slaves have been spoiled, and we ourselves ruined. The
emigration was also greatly influenced by the vagabondizing
of the Hottentots and free blacks, to whom this and also other
offensive acts of drunkenness, cursing, swearing, and pro-
fanation of the Sabbath, was allowed with connivance and
impunity ; add to which the hard treatment which many of
us have undergone after the last Caffer war ; plundered without
any cause, robbed, and our dwellings destroyed by fire ; yea,
even our own cattle, which had been retaken, publicly sold,
numbers having died in the Pounds through neglect, and the
amounts appropriated to purposes contrary to law and equity,
without our receiving any remuneration or indemnification
for our stolen cattle, burned houses, massacred relations, nor
for the enormous expences which we personally incurred for
saddles, horses, equipments, and everything of that nature ;
and finally, a more general dejection was occasioned by the
new regulations and Caffer treaties of the Lieutenant-Governor,
whereby all privileges and protection is secured to the one
side, while we were contemptuously placed on the background,
without any prospect of being able to recover the injuries
which we have suffered, and exposed to daily ravages and
cattle thefts. For all these reasons, and seeing before us our
fast-approaching ruin and total destruction, we resolved to
emigrate, with extreme anxiety, but with a heart fully trusting
in the goodness and protection of the Lord.
Proceeding at different times in small divisions, we had
resolved to direct our steps towards Port Natal, that country
being described by some amongst us, who had visited it, as
very fertile and salubrious ; and though we then had not yet
enacted any laws amongst us, we have followed up the gener-
ally approved principle, to treat the Caffers, through whose
country we passed, and other tribes, with kindness and
generosity, and strictly and inviolably to respect their right
156 NATAL [1839
of property and independence, whereby we have passed
several tribes without being obstructed, and in amity, until in
the month of June 1836 we were attacked in a traitorous
manner by the chief Maselikatse, while we were then still at
a distance of about 40 hours on horseback from his territory,
and whereby several families were barbarously butcherecl,
and deprived of all their cattle, etc., which forced us to com-
mence hostilities against said chief, and to endeavour to retake
the cattle which they had stolen from us ; for which purpose
we went out against him at two different times, and have for
the greatest part obtained our views. This chief having after-
wards been expelled, Mr. Piet Retief, approaching the bound-
aries of the Zoolas. made proposals to the chief Dingaan for
the purchase of a piece of ground on the southern part of the
River Togola (which land was almost uninhabited) ; but after
all arrangements were brought to a point of agreement on the
most amicable and best terms, he was most barbarously
murdered, together with 60 of his companions, children, and
friends ; which was followed up a few days after by the massacre
of 370 others, who, under the idea of peace and friendship,
unguarded also, became the victims of his love for murder,
and were deprived of almost all their cattle. But as your
Excellency is already fully acquainted not only with the
particulars of the case, but also of that of our hero and friend,
Piet Uys, we will, without further thinking of this melancholy
history, proceed to acquaint your Excellency with the con-
tinuation of the emigration, of which three small divisions
have arrived at Port Natal at different times, after a long and
tedious journey of more than two years. One part has
established itself at the head of the Bay, at the place called
” Congela,” another part at the River ” Umgenie,” and the third
division also near to the Bay, at the River ” Omlaas ” ; while
three other and stronger divisions form a line to the River
Togola, at a distance of an interval of from 10 to 20 hours on
horseback nearer to Dingaan’s residence.
We trust your Excellency will not only pardon this circum-
scription, but will perceive thereby that we act openly, and
do not intend to conceal anything ; on the contrary, we shall
continue to place everything under the eye of the world, in
order thereby to give an opportunity to every one truly and
fairly to judge of our conduct.
On our arrival in the vicinity of the Bay, we found the
surrounding maize plantations totally destroyed by the
Zoolas, and the so-called tame Caffers, residing there, deprived
of all their cattle, whereby want soon became perceptible
amongst them, of which thousands no doubt would have
become the victims, if the arrival of the Emigrants, whom they
1839] CENTRAL GOVERNMENT 157
assisted in herding their cattle, etc., had not rescued them from
general famine, some of them having already died from want
of food. While now, their new harvest, consisting of maize
plantations, which can hardly be overlooked (for the extension
of which they were encouraged by us), holds out to them a
good and abundant prospect, under the blessing of God, by
whom alone the destructive hand of the tyrant ” Dingaan ”
can only be repelled.
One of our first measures on our arrival here, was, to give
notice to the chief ” Faku ” of our arrival, through the missionary
Jenkins (to whom, in respect of several other instances, we
were under great feeling of gratitude), and to make a proposition
to him, ” Faku,” of peace and amity, the favourable result of
which your Excellency will learn from the reply of the said
Mr. Jenkins (handed by us to Mr. Joubert).
We shall always feel happy in cherishing friendship and
peace with all the tribes with whom we may meet, and could
we be fortunate enough to enjoy the same with that country
where we have left more than one dearly beloved connection,
we would, burying in oblivion the past sufferings, consider the
result fortunate, and for which purpose, no sacrifice on our
side will be considered too great.
As to the so-called tame Caffers here, already mentioned
we find, that with the exception of their natural propensity for
thieving, which is particularly limited to eatables, as well as
old iron, beads, and other trifles, we have no particular reason
for being dissatisfied with them ; on the contrary, their
conduct shows a certain degree of attachment to their master,
to whom they however bind themselves but for a short time.
The women generally are more industrious, and better fit for
the cultivation of the land, which is also performed by them
and their children.
As we fear to trespass too much on the patience of your
Excellency, we shall conclude, trusting that this open and
candid statement may not have diminished your Excellency’s
good inclination towards us, but on the contrary, that giving
satisfactory proofs of our peaceable intentions and views, we
may thereby have increased your Excellency’s concern in our
fate. On our part, we can assure your Excellency, that the
universal sentiment amongst us, is that of high respect and
affection for your Excellency’s person, as well as for the
Government ; and that nothing will be more pleasing to us
than the receipt of equitable proposals from the hands of your
Excellency concerning a privileged trade with the Colony.
And we declare also, that all further measures proposed by
your Excellency, having in view peace and amity, will be
gratefully accepted by us ; but at the same time if even here
158 NATAL [1840
we are to be persecuted and disturbed by undeserved hatred
and persecution, we shall be under the necessity, (having im-
measurable fields before us,) of seeking elsewhere for that rest
and peace which is refused us in such an ungenerous and
iniquitous manner.
We have the honor to be with the highest respect,
SIR,
Your Excellency’s most obedient, humble Servants.
P.R.O., the Zuid Afrikaan for 7 June 1839,
bound in C.O. 48/205.
EMIGRANTS’ DEMAND FOR INDEPENDENCE.
[On 24th Dec. 1839, the British force at Port Natal, no of all ranks,
sailed for Cape Town. Five days previously the commandant, Captain
Jervis, had written to the emigrants then stationed near the Bay, at
Congella Camp, and informed them of the intended evacuation. He
wished them happiness and success in their new surroundings, but
again pointed out that they could not throw off their allegiance or cease
to be regarded as subjects of the Queen of England. 1 Then in June
1840 Lord John Russell sent a despatch to Cape Town instructing the
Governor to reoccupy Port Natal if such a step seemed desirable and
possible. Napier replied 2 that a large body of troops would be needed
for the enterprise, and that he could not spare those troops at the time
in view of the restless state of the frontier burghers, whom the Kaffirs
had again begun to plunder. He earnestly requested leave to com-
municate with the emigrants, to ascertain their grievances, and to
attempt to settle matters peaceably, believing, as he said, that this
would be by far the easiest and ultimately the wisest course to pursue.
Civil war would lead to increased ill-will towards the British Govern-
ment and a fresh migration into the interior.]
No. 101. Request of Emigrants in Natal to be Recognised a
Free and Independent People.
PIETER MAURITZ BURG, PORT NATAL,
^th September 1840.
[vTo His Excellency the GOVERNOR OF THE CAPE OF GOOD
HOPE, etc. etc. etc.
YOUR EXCELLENCY, By the blessing of God we have
perfectly succeeded in establishing, with our numerously
surrounding savage enemies, not only an advantageous, but,
for the so long oppressed people, a lasting peace, which presents
us with the cheering prospect of permanent prosperity. This
prospect, though, is somewhat darkened by the conviction
that between us and our always beloved Mother Country there
does not exist that friendly sympathy in our welfare which we
would fain wish to see strongly and lastingly established.
1 P.R.O., MSS. in C.O. 48/207.
2 29 Sept. 1840 ; MS. in C.O. 48/208.
CENTRAL GOVERNMENT 159
This general wish has frequently on former occasions been
under the consideration of the Volks Raad (Council of the
People), and has presently, to the exclusion of all other matters,
been more particularly under their discussion which has
originated the following resolutions, namely :
To submit respectfully to Your Excellency, as the honoured
Representative of Her Majesty the Queen of England, that
it may graciously please Her Majesty to acknowledge and
declare us a free and independent people (a right so dearly
purchased with our blood), and to concede to us all those
privileges which constitute the boast and greatness of the
Nation which has the happiness to live under her noble Govern-
ment ; and, to attain that object, the ” Council of the People ”
have resolved that (should Your Excellency desire it) Two
Commissioners shall be sent from hence to the Colony of the
Cape of Good Hope as our representatives, at such time and
to such place as Your Excellency shall appoint, both which
Commissioners shall be properly and fully empowered to
concert such friendly arrangements as may be considered
most compatible with the honour of Her Majesty and best for
our permanent good.
If, for the more speedy arrangement of this matter, Your
Excellency should prefer a negotiation to take place in writing,
the ” Council of the People ” will fully concur in it.
We have the honour to subscribe ourselves, with the greatest
respect,
In the name and on behalf of the ” Council of the People,”
(Signed) L. BADENHORST, President of the Council.
J. J. BURGER, Secretary.
MS. copy of translation in C.O. 48/208.
No. 102. ARTICLES OF AGREEMENT AND ALLIANCE
PROPOSED.
PETER MARITZ BURG, NATAL,
i^th January 1841.
To His Excellency Major-General Sir GEORGE NAPIER, K.C.B.,
Governor and Commander-in-Chief, etc. etc. etc. of
the Colony of the Cape of Good Hope.
RIGHT HONORABLE SIR,
[After making some preliminary remarks, the letter pro-
ceeds :] We are willing and desirous of entering into a per-
petual Alliance with the Government of Her Majesty the
Queen of England on the following principles :
ist. That the Honored Government of Her Majesty the
Queen of England would be pleased to acknowledge and
160 NATAL [1841
declare our Settlement here as a free and independent State
under the name of ” The Republic of Port Natal and adjoin-
ing Countries ” the boundaries whereof can be hereafter
defined.
2nd. That Her Majesty’s Government declare itself willing
to treat with the said Republic in the relation of an Ally.
3rd. That the said Republic reciprocally declares itself to
stand in the closest alliance with the British Government.
4th. That Her Majesty’s Government shall be at liberty,
in case of any hostile undertaking against this Republic by
sea, by any other Power whatever to interpose itself either in a
friendly manner or to repel the same by force.
5th. That in case of War between the British Government
and any other Power this Republic shall be viewed as Neutral,
and all private commercial Vessels lying at anchor in the
ports of the Republic shall be left unmolested.
6th. That the British Government shall have the right
to place here an Ambassador or Representative Agent.
yth. That the trade of British Merchandize shall not be
made subject to higher imposts than those of other people or
Nations, but the same as far as practicable shall be regulated
according to the Duties on British Goods as levied in its own
Colonies, with the exception of Wines, Strong Liquors, and
other Articles prejudicial to this Republic the unnecessary
import of which it would be advisable to restrain by higher
duties. In consideration of which all articles of trade of this
Republic should be received in all British Possessions and not
be subject to higher duties than those of British Settlements.
8th. That this Republic promises never to make any Hostile
movement against any of the Natives or Inland tribes who
may reside between the Boundaries of the said Republic and
that of the Colony of the Cape of Good Hope without first
giving Notice thereof to the Representative of that Govern-
ment here or to the Governor for the time being of the Colony
aforesaid, as also the cause which may have given rise thereto
with exception however of such occasions wherein it will be
our Duty to take immediate steps against the Enemy either
in opposing or repelling their inroads or contemplated attacks
upon us, or upon any of the Natives on our Frontier and in
Alliance with us, or in case of Robbery to pursue immediately
the Robbers and overtake them, and in all such other cases
wherein delay or neglect would be dangerous and prejudicial
to us.
gth. That we further bind ourselves not to extend our
Boundary Line farther, to the detriment or disadvantage of
any of the surrounding Tribes, nor to make any hostile move-
ment upon them unless such tribe by any preceding hostile
1841] CENTRAL GOVERNMENT 161
attack shall have given us occasion thereto, so that we for the
maintenance of our Rights or for the security of our property
shall be compelled to take up Arms against such tribe.
loth. That the Republic promises to give every encourage-
ment for the spreading of the Gospel amongst and for the
civilization of the Heathen Tribes which surround us, or are
residing under our Government.
nth. That this Republic promises not to give any aid or
assistance in any manner to the declared or public Enemies
of the British Government in any hostile undertaking against
the same, nor to permit such known Enemies’ Vessels to enter
our ports, or to provision them, but on the contrary of war
with the Colony by Kafirs or other tribes residing between us
and the Colony, should the Governor of the Colony be desirous
either by Sea to Land, or over Land to march an armed force
thro’ our Territory, to assist the same with Provisions, means
of Transport, etc., and further as far as possible to accomodate
them.
12th. That this Republic undertake and bind themselves
never to enter into any Slave trade, or to encourage, or to
assist the same, or to permit any Vessel or Craft of that Trade
to enter our ports or to furnish them with any refreshment.
I3th. That the British Subjects residing in this Republic
shall be equally protected in their persons and property, and
shall not be subject to higher Taxes or Duties than the Burghers
of this Republic are.
We take the liberty to add further that as Your Ex-
cellency will perceive by the foregoing that we are very
desirous to be always on the best and friendly terms with the
British Government, and if possible to live in Peace with the
surrounding Nations, and only wishing to protect and to
govern ourselves in our lawfully acquired Territory, without
detriment either to your Government, or the Nations sur-
rounding us if they are willing to live in Peace with us. Your
Excellency will have no objection to recommend our applica-
tion to Her Majesty’s Government, and we can assure Your
Excellency that we on our side will forget all we have suffered,
and by our future conduct shew that we are as worthy to be
received as Allies, as we before shewed as dutiful and obedient
Subjects, and notwithstanding the continual wrong imputa-
tions, ungrounded and completely destitute of truth, which
from certain channels have been cast upon us and repeatedly
forced upon Her Majesty’s Government in England, we do not
hesitate to say, that we hope to convince the World that so far
from tending to serve as a destroyer or corrupter of the Heathen
Nations in this Region, we are in the hands of God the means
of preventing Robbery, Murder, and Violence, and even tend to
ii
162 NATAL [1841
the greater Security of the Cape Colony, and to the further-
ance of Christian Civilization amongst many thousands “who
up to this time have been in a state of benighted darkness;
and which many of the Heathen Tribes who are living under
our protection and others with whom we have concluded
peace will readily acknowledge.
We have the Honour to remain with the Highest respect
Your Excellency’s Most Obedient and Humble
Servants,
(Signed) K. P. LANDMAN, President; C. v. BUCHNER,
L. BADENHORST, L. F. MEYER, J. J. UYS,
J. P. MOOLMAN, A. W. J. PRETORIUS,
JACS. JOHS. BURGER, G. J. SCHEEPERS,
J. C. KLOPPER, J. C. POTGIETER, R. J.
v. RENSBURG, G. R. VAN ROOYEN.
[Napier was awaiting instructions from England as to the
course to be adopted with regard to Natal, and therefore did not
reply to this request.]
P.R.O., MS. copy of translation in C.O. 48/211.
No. 103. BURGHERSHIP LAW AND THE POSSESSION
OF FIXED PROPERTY.
Approved and resolved at a Meeting of the Council of the
People at Pietermaritzburg, on the I4th day of the month
of April, in the year of our Lord, 1841.
WHEREAS it has been deemed necessary, and the Council
has been repeatedly urged therto by the Burghers, to provide
and enact, by a fixed Law or Regulation, on the subject of
the Right of Burghership, as well as the right of possessing
Lands or fixed Property, and the granting of the necessary
Title Deeds : So it is, that the Council, after mature con-
sideration, have determined, ordained, and enacted :
1. That all the South African Dutch Emigrants, at present
residing within the limits of this Republic, or who may still
come to reside therein before the 1st of January next, and
who shall be allowed to take the Oath of Burghership, and
all Strangers already residing within the Limits of this Republic,
and have been already sworn in, as Burghers, together with
their children, when they shall grow up and come to maturity,
shall be, and are considered to be, real Burghers of this Country
and Republic.
2. That all Dutch South Africans, born in the Colony of
the Cape of Good Hope, and who may come to reside within
this Country, after the 3ist December next, and desire to
become Burghers of this Country and Republic, shall make
1841] CENTRAL GOVERNMENT 163
application for that purpose by Petition to the Council of the
People ; and on being admitted to that privilege, shall, on
becoming a proprietor of fixed property, receive, at the transfer,
a certificate that he is entitled to possess fixed property, for
which Certificate he shall pay 12 Rixdollars.
3. That all Strangers or Foreigners who may come here
after this date, after they shall have resided within the limits
of this Country for the space of twelve successive months, and
on obtaining a Certificate from the Landdrost of the District,
or the Field-Cornet and two respectable Inhabitants of the
Ward in which they resided, that they have conducted them-
selves peaceably, submissive, honest, faithful, and sober, may
be accepted and sworn in as Burghers of this Country by the
Council, or the Officer for the time being thereto authorized
by the Council, on payment of a sum of Rds. 50, or such sum
as shall hereafter be fixed by the Council.
4. That no person else but a Burgher of this Republic,
shall be possessor of Lands, Houses, or fixed property.
5. Any person leaving the Country for the space of twelve
months, or more, without special permission of the Council,
shall no longer be considered a Burgher; and having fixed
property here, the same shall be publicly sold for his or her
account.
6. Every Burgher (male or female) shall be obliged to
pay annually into the Public Treasury, for the right of pos-
session of fixed property, and for the protection of the Laws
of such Property, a sum of Twelve Rixdollars, and no more,
for each place, in extent 1000 morgen or above ; but not ex-
ceeding 3000 morgen ; for a place of less extent than 1000
morgen, (on the Council approving thereof,) a smaller amount
shall be payable ; but being more than 3000, and under 4000,
a proportionate advance shall be made ; and if above 4000
morgen, shall be considered as two places.
7. The Council may draw up and issue Title Deeds, and
appoint a Commission to subscribe the same.
8. All special Servitudes on Lands shall be specified in
the Title Deeds ; but all Lands shall be subject to the follow-
ing general Servitude, although the same be not specified in
the Title Deed.
9. [Roads running across any land are to remain open for
traffic, for driving sheep, goats, and cattle, and for outspans.]
10. When any place or land may be required for public
use, the owner shall be obliged to sell the same, but not for less
than its full value in the manner of arbitration, to be fixe^l by
impartial Landowners sworn in for that purpose.
11. [Gold and silver mines and large forests shall be re-
served for the benefit of the public, unless the Legislature shall
164 NATAL [1841
grant the same to the owner of the property concerned by
annual licence. Punishments for setting fire to the veld or to
a forest.]
12. No confiscation or forfeiture of any Land for the
benefit of Government shall ever take place for any mis-
demeanour or trespass of the Law whatsoever ; but, whenever
any person shall be convicted by a Jury of twelve of his fellow-
citizens, of the crime of treason, or armed insurrection against
the lawful Authorities, and shall in consequence thereof be
condemned to transportation from the Country, he shall be
considered as having forfeited his right of burghership, and
his Landed Property shall then be sold by legal authority, for
the benefit of himself, his Creditors, or Heirs.
13. All Title Deeds, issued for any place in freehold, shall
be considered as being granted by authority of this Law, and
subject to the conditions and stipulations herein contained,
until other provision shall be made in that respect by the
Council of the People or the Legislative Council.
14. In this Law or Regulation none the least alteration,
addition, or deduction shall be made (except only in such
Articles as to which authority is granted) without the consent
of at least two-thirds of the number of all the chosen Members
of the Volks Raad, or Legislative Council, and after discussion
in two succeeding Meetings.
Duly subscribed by the Volks Raad
A true Copy.
J. BODENSTEIN, Secretary of the Council.
P.R.O., MS. in C.O. 48/235.
BRITISH AUTHORITY OVER EMIGRANTS.
No. 104. Proclamation. By His Excellency Major-General Sir
GEORGE THOMAS NAPIER, K.C.B. [etc.]. [2 Dec. 1841.]
[In August 1841 Lord John Russell instructed Napier to re-occupy
Port Natal. The proclamation given here was issued and a body of
troops was sent. Fighting resulted between the troops and the Re-
publicans, and till 1843 matters were in a very unsettled state.]
WHEREAS certain persons, being Subjects, and chiefly
natural-born Subjects, of Her Majesty, have heretofore at
various times emigrated from this Colony, and have taken
possession of Port Natal and certain Territories adjacent or
appertaining thereto :
And whereas I have lately received a Letter, addressed to
me, dated Pieter Mauritzburg, the nth October 1841, signed
by T- Prinsloo, as President, and Jacs. Johannes Burger, as
Secretary, of the Council of Emigrant Farmers, now residing
at Port Natal, and in the Territory adjacent thereto, in which
1841] CENTRAL GOVERNMENT 165
they inform me, in the name and by the desire of the said
Council, as they allege, that they claim to be, and to be recog-
nized as, an Independent State or People, and declare that they
are Dutch South Africans by birth, and have ceased to be
British Subjects, and refuse to be recognized or treated as such ;
and whereas I have been informed that the said Council, at
a Meeting held on the 2nd of August 1841, and subsequent
days, passed a Resolution, by which they resolve, that all
Kafirs inhabiting Port Natal and the Territory thereunto
appertaining, as well as those Kafirs who were established at
Port Natal long previous to its occupation by the Emigrant
Farmers, as others the Subjects of Chiefs at peace with Her
Majesty, and living at peace with all Her Majesty’s Subjects,
shall be removed, without their consent, from Port Natal
and the Territory thereunto appertaining into the Country
lying between the Mouth of the Umtafoena and that of the
Umzimvoobo, which Country forms part of the Territories
belonging to Faku, a Chief at peace with Her Majesty, without
having obtained the consent of the said Faku, from which
most unjust and illegal proceeding there is reason to apprehend
that warfare and bloodshed will be occasioned ; and whereas
I am desirous to prevent any of Her Majesty’s Subjects from
being through ignorance misled fcy the evil disposed and
mischievous or misguided Persons who have written or
authorized the writing and forwarding to me of the said Letter,
dated the nth of October 1841, and am determined to prevent,
to the utmost of my power, the possibility of the occurrence of
warfare and bloodshed within any of the said Territories :
I have therefore deemed it expedient and necessary to
declare, as I do hereby proclaim and declare, that the said
Emigrants have no right or claim to be recognized as an In-
dependent State or People ; that Her Majesty will not re-
cognize them as such, and will not permit or suffer any portion
of her Subjects to form themselves into an Independent State
or People within any of the said Territories ; and that, in
obedience to the Orders of my Sovereign, I shall resume the
Military Occupation of the same, by sending thither, without
delay, a Detachment of Her Majesty’s Forces. And I hereby
warn all British-born Subjects, and particularly those who,
after the Eighteenth Day of January 1806, have been born
within this Colony, of Parents who, at the time of their birth,
by reason of their permanent residence in this Colony, or other-
wise, owed Allegiance to, and were Subjects of, the British
Crown, that they cannot, by their removal from this Colony
to any other place whatsoever, divest themselves of the
allegiance which they owe, by reason of their birth, to the
British Crown, or of the character of British Subjects, and not-
166 NATAL [1842
withstanding any such removal, must and will still be con-
sidered, and are liable to be treated as, British Subjects :
and I hereby warn all British Subjects, whether by birth or
otherwise, against the consequences of in any wise resisting
or opposing Her Majesty’s Forces, or the due exercise of Her
Majesty’s rightful authority, and that they and all others who
shall engage in any seditious practices, or shew any disaffection
to Her Majesty, will forfeit all claim, as well for their Families
as themselves, to any favourable consideration of their claims
to any Lands now possessed by them, in any settlement or
arrangement which Her Majesty may deem it right and fitting
to make touching and concerning the same.
And I further warn all Persons, not being British Subjects,
and not acting under the commission or authority of some
established and recognized State or Potentate, who shall
within any of the Territories hereinbefore mentioned, be in
Arms for the purpose of attacking or forcibly resisting or op-
posing Her Majesty’s Forces, or of attacking the Subjects of
any Native Chief at peace with, or under the protection of,
Her Majesty, that they will thereby contravene the Law of
Nations, place themselves out of the protection of the Law,
and render themselves liable to be dealt with as the interests
of the Crown may require and circumstances may render
advisable.
GOD SAVE THE QUEEN.
P.R.O., C.O. 48/214.
QUALIFICATION OF VOLKSRAAD MEMBERS.
No. 105. Resolution of the Volksraad, Feb. 1842.
21. It appears to the Council that at a public meeting
held on the 3rd Instant a resolution was proposed and unani-
mously adopted that this Council be requested to order that
in future every member of Council shall declare upon Solemn
Oath that he has never since his residence in this country either
by word, deed, or writing intimated a wish or proposed to any
Official Authority or private person beyond the limits of our
jurisdiction, that any Foreign or other Power should take pos-
session or assume the Government of this Country or destroy
the independence of this Republic : and that he shall further
swear never to do so directly or indirectly except in the meeting
of Council only in a public manner.
* * *
A free translation.
(Signed) W. TENNANT.
P.R.O., C.O. 48/223.
1842] CENTRAL GOVERNMENT 167
No. 106. EMIGRANT GRIEVANCES.
To His Excellency Major-General Sir G. T. NAPIER, Governor
and Commander-in-Chief of the Colony of the Cape of
Good Hope.
PIETER MARITZ BURGH, NATAL,
21 February 1842.
SIR, We the undersigned, President and Members of the
Volksraad, assembled in our Council at this place, have deemed
it proper to inform Your Excellency that we have received a
certain Proclamation issued by Your Excellency dated the 2nd
December 1841, in which it is declared, that Your Excellency
has thought proper in pursuance of instructions received by
you to take military possession of our place, that we are British
Subjects and cannot be recognized by Her Majesty the Queen
of England as an independent people, etc. etc.
Since then the friendly negotiations which we have com-
menced with Your Excellency and the proposals which we have
made with the view of concluding a permanent peace and
alliance with the British Government if only left to the Govern-
ment of ourselves (a privilege which has not even been refused
to the Griquas living upon the borders of your Colony though
that people are nothing more than Emigrants from the Colony
like ourselves) are now made use of as a reason for entailing
the most fearful consequences upon us, we have, for the purpose
of well ascertaining the feeling of our fellow- Emigrants, caused
the said Proclamation to be distributed amongst them, and
invited them to discuss the subject freely by means of a Public
Meeting, and to acquaint us with the result, and we can now
inform Your Excellency that it is the general feeling of our
fellow-Emigrants, and that they have requested us to declare,
as we hereby do, that we consider your said Proclamation as
most [unjust towards us, and calculated, if carried into effect,
to occasion the very thing which it is stated to be its principal
object to prevent, namely, wars and bloodshed; and as it may
probably be the last communication of this nature which
we may have an opportunity to make to Your Excellency, we
deem it further necessary to enter upon the subject more
in detail. We wish to be understood beforehand that it is not
our object to give offence, or offer reproach, or to give cause for
any hostile acts, since it is our sincere wish and desire to pre-
serve peace with all men, and that nothing will induce us to
take up weapons to shed man’s blood except the firm conviction
alone that we cannot avoid it, or when the protection of our
property (obtained hardly and dearly as we conceive) or of
our own existence required it, or when we see that force and not
Justice is exercised towards us. We know that there lives a
168 NATAL [1842
God who governs Heaven and Earth and that He is mighty
and willing to protect the wronged, though weak, against the
Oppressors, and we trust in Him and the Justice of our cause,
and should it be His will that total destruction be brought
upon us, our wives and children and all that we possess, we
shall be resigned and acknowledge that we have deserved it
at His hands, but not from man. We know the power of Great
Britain and it is nowise our purpose to dare that power, but
we cannot at the same time permit that force in place of Justice
should triumph over us without exerting all our endeavors
to oppose such force. We do not accuse the British Govern-
ment to be so disposed, but experience has taught us that
mistaken and groundless instructions (as is now again appar-
ently the case with us) emanating from a far distant Country
have but too often originated measures which were unjust
and oppressive. We deny also most positively that we are
animated by a feeling of hatred against the English Nation,
every person on earth is naturally more partial to his own
than to any other Nation, but as Christians we have learned
to love all men ; and, although we South African Boers have
often been regarded by Englishmen with arrogance and con-
tempt, let the many Englishmen (among whom we include
the Scotch also) with whom we have been personally acquainted
in our native Country, and amongst whom we have also had
Ministers whom we treated with every respect, bear witness !
let the Officers and Soldiers with whom we have served in arms
bear witness ! let our late Governor, Judges, and local Authori-
ties, bear witness ! and let the respectable Englishmen them-
selves who at present live here in security amongst us, and have
intercourse with us, bear witness, whether any such feeling of
hatred against the English is fostered in our bosoms ! At the
same time we will not deny that the laws enacted and pro-
mulgated in the Colony by the English Government from time
to time respecting us, were the only cause for which we left
our Country and kindred and betook ourselves as it were to the
wilds of the desert to be free of the rule of that Government.
To instance some cases, who was it that forced upon us
the increasing evils of Slavery, that secured to us a right
of property in it ? Was it not the same Government who
afterwards deprived us of it, and that in a manner which
gave us not the least voice as to the best and most fitting
means of effecting it ? Who was it that promised us full com-
pensation for our Slaves ? Was it not the same Government
that put us off with a third of the real value of our property,
and then left us a prey to boot to avaricious and money-
seeking dealers who have been enriched at the expense of our
purses ? Who was it that employed us without remuneration
1842] CENTRAL GOVERNMENT 169
and at our own expense in the defence of the borders of the
Colony against the enemy and the hostile or predatory Kaffirs ?
Was it not the same Government that afterwards denied us all
claim to compensation, erroneously stating as a reason that by
our plundering of the Kaffirs we had justly drawn down their
vengeance upon us ? that deprived us of the best Governor
we ever had because, like a conscientious man, he defended
the wronged Cape Colonists and sought their real security
and protection by the punishment of their destructive enemies ?
that afterwards sent us speculative politicians, bound hand and
foot, whose border policy constantly exposed us to be robbed
and menaced by the Kaffirs with impunity, and that too at a
heavy expense to the Country to be paid out of the purse of
the ruined Boer ? That same Government that laid the Country
open for wandering vagabonds who lead a wild and idle life and
live upon the flocks and other property of the already suffi-
ciently oppressed Boer, by which the Boer was deprived of
laborers, or, in case he had any, of all necessary authority
over them, (and under which the Colonists still suffer), lost all
heart, saw his repeated remonstrances and petitions un-
answered or unnoticed, and had the darkest prospects. All
these evils we ascribe to this single cause, the want, namely,
of a representative Government which was refused us by the
Executive Government of that very Nation who consider
that privilege as one of the most sacred of their Civil rights,
and for which every true Briton would lay down his life.
And what did we do under all this oppression ? Did we
take up Arms, demanding our rights, as was recently done in
Canada ? No, we gave the coat also to him who had taken
the mantle from us : We parted with our fixed property at
a ridiculous price : We openly told the Government that we
should leave our Country and their jurisdiction. It was per-
mitted us, at least not prohibited, we were even surprised to
hear a most reasonable and just declaration made by the
Lieutenant-Governor that it is an indisputable right that a
person who is dissatisfied with the ru^e of his Government is
free to leave it. Immediately after our departure we declared
our independence ; we established a Government of our own,
prosecuted wars that came upon us unexpectedly and made
peace, took possession of uninhabited tracts of country which
we acquired by friendly treaties with the Heathen tribes as
well as which we had to purchase with our blood and treasure.
Meanwhile what did the Colonial Government during the
course of these events ? did it inform us that we could not
alienate our allegiance as Subjects wherever we might be, or
did it offer us any assistance when we were in need and ex-
pected momentarily to be destroyed by the savage and blood-
170 NATAL [1842
thirsty heathens, when more than Six hundred of our number
had already been most treacherously murdered innocent, or
did it remain an indifferent Spectator of the misery of its
pretended Subjects whilst total destruction threatened them ?
But, what is worse, were not their Murderers supported and
assisted, when they (the Emigrants) appeared to have any
chance of obtaining a victory, by prohibiting the export to
them of all arms and ammunition, and even by threats of
taking Military possession, as also by confiscation of their own
weapons and ammunition, and this indeed under the pretence
of preventing from a feeling of philanthropy further bloodshed
when no fear existed for the shedding of Christian blood, but
when vengeance was about to be wreaked upon those whose
hands were still stained with it ? further, by prohibiting traffic,
in consequence of which many of the Emigrants died during
the visitation of the infectious disease of the measles from
want of necessaries or food proper or requisite at such a time ?
And has not the same Government already treated us as
foreigners even with respect to our trade by sea, and how is it
possible that, with all such reasons on our side, Your Excellency
can expect us to consider ourselves as transgressors or rebels
against our lawful Government ? We declare we cannot se
how the British Government under the aforesaid circumstances
can, with any the least shadow of reason or justice, claim us
as Subjects, unless it be from other political motives, or
jealousy, that excuses are sought with some show of justice
again to place the despised and neglected Emigrants under
the yoke. We strongly doubt, in case we had emigrated into
the interior of Africa or to Delagoa Bay, whether we should
there also have been molested ; yet we still cherish the hope,
that, when the present Government of Her Majesty the Queen
of England and the British Nation shall have been made fully
and truly acquainted with the whole state of our case, other
means will be found to arrange matters with mutual satisfaction
than by the Sword, or by blood ; and we beseech Your Excel-
lency therefore to take the subject into further consideration
and to adopt no measures by which we shall be driven to steps,
which, however much against our wish, or painful they may be
to us, may yet be unavoidable for our lives and our security,
and which may devolve a responsibility upon Your Excellency
which sooner or later it may be difficult to account for.
With respect to the reason assigned in your Proclamation
for which military possession is to be taken, our resolutions,
namely, of the 2nd August 1841, respecting the Kafirs here, we
wish merely to observe that, as usually happens, Your Excel-
lency’s informant is either ignorant himself of the real state
of the case, or has purposely concealed it from you, and we
1842] CENTRAL GOVERNMENT 171
are able to convince every true philanthropist that our views
in making arrangements respecting the removal of the Kafirs
(the old inhabitants as well as the later Settlers) both by the
resolutions already referred to, as well as another since adopted
upon the same subject, are furnished in a true love of humanity,
in as much as we have thereby sought to obviate or to prevent
the probability of hostility and bloodshed, which would
otherwise inevitably result if we permitted Zoolahs and other
Natives to leave their former abodes and settle themselves
in thousands amongst us, as is at present the case, first to be
protected by us against their enemies, and, when they shall
have strengthened themselves, to be placed in the best oppor-
tunity possible to root us out solely to obtain possession of our
cattle ; or, their design being detected, they would compel us
to attack and expel them without delay. Our measures are
thus framed to provide in time, as far as practicable, against
the probability of such occurrences, and not to allow the evil
to encrease too much or first to become irremediable and
then show a disposition to be active. It would be too diffuse
to notice here all we have to say upon this head ; we proceed
therefore to point out that if Faku already had a claim to the
tract of land mentioned in Your Excellency’s Proclamation he
alone is to blame if we made use of that land ; in the first
place we have proof that in the year 1834 ne na< ^ already
declared that he had no claim to the land, and as far as we
have been able to ascertain never occupied the same except
with some small Kraals of Spies. Besides, we caused the
Contract entered into by the late Mr. Retief with Dingaan
to be published as well as our Proclamation in which the
Omzimvoobo was appointed as our boundary. Furthermore
we entered into a friendly understanding with Faku himself
and obtained from and gave him an assurance of peace, and
even of protection, so that there was nothing to prevent him
from protesting against our disposal of any portion of his
territory, in addition to which he freely acknowledged that
the land lawfully belonged to Chaka and afterwards to Dingaan
as far as the Omzimvoobo, and that he acknowledged our
claim thereto to be founded in justice, by the Contract herein
before mentioned and by the victory gained by us over that
Nation. He went further and said that Chaka and Dingaan
had taken the country even to beyond the Umzimvoobo, and
that he considered himself and his people to be there by our
permission. May we not then ask where there is a Colony or
conquered possession of Great Britain, or any other Power to
which a stronger claim or right can be asserted ? We are con-
vinced that there is not, yet if Faku can prove that neither
Chaka nor Dingaan ever had a claim to the land in question
172 NATAL [1842
and that that waste and uninhabited tract of country has
always been in his possession, who will convince us that not-
withstanding this we insisted upon taking possession of it, as
upon that ground to give a show of reason to the taking
Military possession of our harbour and territory ?
We will acknowledge also that, as regards ourselves, we
cannot possibly understand the right of Subjects by birth or
otherwise as set forth by Your Excellency in your Proclamation.
But setting aside this question, we are bound to declare our
conviction that we cannot be secure or exist in this Country
should we place ourselves again under the jurisdiction of a
Colonial Government as before ; the Country, which Your
Excellency already prematurely disposes of, threatening to
take the same from us and our children would then have no
value for us. What prospects have we of enjoying better
protection than the Border Colonists enjoy, and on account
of which many of us were obliged to leave that land? what
prospects have we of enjoying even that protection, since Your
Excellency’s treatment of us gives us more than reason to
suspect that your anxiety and care exist for the uncivilized
people alone, and that it will create no great concern should
we with our wives and children and servants be led by them
like sheep to the slaughter ? yes ! that the philanthropists of
the day will find false accusations enough to make the world
believe that we richly deserved it and that it is our own
fault !
Fate therefore seems to drive us to one of two alternatives,
namely, to bend ourselves like yoke-bearing beasts to carry
willingly the burden which may be imposed on us, till finding
the same too heavy, we commence emigrating anew as before
and leave everything we have in the world behind us here ;
or, in defence of our rights, our possessions, yes, of our existence
itself, to shoulder our Guns and to combat with our Oppressors
and by our fall or failure to end our earthly troubles. W T e
leave it to Your Excellency’s own judgment, and to the judg-
ment of every sincere Englishman, which is the preferable
alternative. Let it be no longer thought that we seek to
mislead, or that we are ourselves misled. Experience has
taught us all some dear lessons, and whatever our political
differences may be respecting our Civil administration Your
Excellency will find out that there exists but little difference
respecting this one point. And when we shall all have been
subjugated at the expenditure of much blood and money, the
flame will merely have been suppressed and smothered to
burst forth with greater fury upon the day of retribution. It
is in Your Excellency’s power to prevent these evils, and if
indeed it be really Your Excellency’s object to prevent further
1842] CENTRAL GOVERNMENT 173
bloodshed Your Excellency will easily find reasons to counter-
mand Your Excellency’s purposed Military Expedition, and
to have recourse to other means that might be attended with a
more humane and happy result.
It has occasioned us feelings of great regret that from the
commencement of our emigration we should constantly have
heard how we were unjustly held up to the World as a bar-
barous people who were impatient of civilized laws and Church
discipline and sought to live in a state of licentiousness, each
as his inclination prompted : Yet we have more than once
shamed our Accusers although we are inexperienced Boers
who in their native land never took part in the public affairs
of their Country, yet we have succeeded in establishing a
form of Government which is daily gaining the public con-
fidence more and more. Divine worship has also been
regularly established, and the cultivation of the Country and
building are daily increasing. We have already erected a
respectable Chapel for holding divine service, and the instruc-
tion of youth is upon a good footing. The surrounding
warlike Zoolahs have been checked in their constant hostile
attacks, so that from a fear for us they very seldom and only
stealthily take up arms against us. Two missionaries under
our protection are already labouring amongst them, and we
have the best prospects that the civilization of that people
will be sooner promoted than that of the Kaffirs on the
Colonial frontiers. And all this has been accomplished whilst
we are only beginning to get out of our difficulties. Your
Excellency may therefore well suppose how painful it will be
to us to see all our hopes and expectations frustrated at once.
One single wrong or impolitic experiment would occasion us
irremediable injuries. Already are officious Agents busied
in inciting the Kaffirs against us, to their or our own mis-
fortune, and in impressing upon them that we are their
oppressors, but that the English are their protectors, and that
if they adhere to the English they would get our Cattle as
a reward. Your Excellency has probably not given your
sanction to it, yet it is done ; and can the civilized world
ever blame us, if, under such circumstances and under such
inhuman persecution, we do and risk everything for the pre-
servation of our lives, and, if obliged to retreat before superior
force and seek security farther inland where we may be more
concentrated and combat our enemy with greater advantage,
can reproach be cast upon us should we seek indemnification
from our old debtors the Kaffirs for the losses which we have
suffered in the Colony, and since our departure, as well as
for our farms, dwellings, and other property which we shall
have been obliged to leave behind us here a prey to devasta-
174 NATAL [1843
tion ? We pray that the Almighty may prevent this, and that
it may please Him to grant us a better issue !
Finally, for ourselves as well as at the urgent request of
our fellow-Emigrants, we must protest most strongly against
the taking possession of any part of this Country, as threatened
in Your Excellency’s Proclamation of the 2nd December afore-
said, and declare that from henceforth we hold ourselves
blameless before God and our consciences and before the
World, for the evil consequences of such a step.
We have the honour, with the highest respect, to subscribe
ourselves, Sir,
Your Excellency’s obed. Servants, the President and
Members of the Council of the People,
(Signed) J. PRINSLOO, President ; H. S. LOMBARD,
A. G. SPIES, J. C. KLOPPERS, J. H. BRUWER,
P. M. BESTER, JAN DU PLESSIS, L. BADEN-
HORST, W. J. PRETORIUS, L. S. BOTMA,
M. H. MARAIS, C. J. VAN HEERDEN, S. W.
VAN DER MERWE, M. G. STABLER, C. P.
BOTMA, G. H. OTTO, J. BODENSTEIN,
K. P. LANDMAN; J. J. BURGER, Member
and Secretary.
P.R.O., MS. copy in C.O. 48/223.
No. 107. DEMANDS FOR CONSTITUTIONAL LIBERTIES.
[Made by the Volksraad of Natal in anticipation of their submission
to British rule, 4th Sept. 1843. Addressed to Commissioner H. Cloete, 1
who had arrived in Natal as Her Majesty’s Commissioner with in-
structions to come to a provisional agreement with the Republicans.
After making sundry remarks and stating that they were prepared to
submit to the Queen’s sovereignty, they proceed :]
6th. We take the liberty urgently to request that you will
recommend to Her Majesty’s Government, that Natal may be
considered as a separate Colony, as we deem it of the utmost
importance that the Governor should correspond direct with
the Home Government, and consequently also act more on
his own responsibility ; and as we likewise believe that the
remoteness from Cape Town, and the distance between this
Colony and the Cape, will prevent the Governor of that place
from acting otherwise than on information obtained from the
highest authority here, which cannot be attended with any
utility, but rather to shackle the hands of the Governor here,
and at the same time remove much of his own responsibility.
Nevertheless we think that the public funds of this Colony, for
1 The author of the Great Boer Trek (Cape Town, 1856, and London, 1899)
1843] CENTRAL GOVERNMENT 175
a considerable time, will not be sufficient to give a Governor,
under whatever denomination, a large salary. We are also of
opinion, that that functionary should of necessity be a person
well versed in the Laws by which we are to be governed, if
he is to preside in the Court of Appeals, as we have proposed
in the sequel ; and also acquainted with our language, customs,
etc. in order that every inhabitant, even the most humble,
may, if requisite, have the more freedom to represent his
interest in person.
7th. With reference to the point of Legislation for the
Colony, we beg to submit to the favourable consideration of
Her Majesty’s Government, the following propositions, as,
according to our ideas, the most suited to establish universal
satisfaction and confidence among the inhabitants, and thus
the more readily ensure, whenever such should be required,
their willing co-operation with the Government, namely :
That there shall be a Legislative Council, consisting at
least of twelve persons, chosen by popular election, which
election shall take place every two years, six members to
form a quorum ; which number of twelve might be always
augmented with the increase of the population.
That the qualification of a Member of Council shall be a
residence of at least twelve months previous, and in the posses-
sion of a good reputation, and of property, in houses and
lands of the value of at least 500.
That the following causes shall incapacitate any person
from being nominated as a Member of Council : To lead a
bad and dissolute life, such as drunkenness, and the like;
deafness, blindness, or similar bodily infirmities ; an Atheist ;
one unable to read and write the English and Dutch Languages.
That the Members shall be chosen by the Inhabitants of
every District and Village, according to the amount of the
population of each place ; That no one shall be entitled to
vote at the election, unless he be a proprietor of houses or
lands, of the value of not less than 150 ; having been an
inhabitant of the Colony for at least six months, and able to
read and write either the English or Dutch Language.
That all Laws, without exception, shall be framed or
passed by the Legislative Council, and on being approved
by the Governor, have immediate effect ; and that no taxes
shall be imposed on the inhabitants without a legislative
enactment.
That the Governor, or some person in his behalf, shall be
entitled to a seat in the Legislative Council, in order to
propose, or recommend, such Laws, etc. as also negotiations
with the Natives bordering on the Colony, as he shall deem
expedient for the benefit and security of the Country,
176 NATAL [1843
That the Council shall be at liberty to ask any information
that the Governor may be able to afford.
8. Proceeding to make some propositions respecting the
judicial and other local institutions here, we deem it necessary
to premise, that, in doing so, we have not only had in view
the merits of these institutions themselves, but likewise the
least expensive mode of carrying them out, and to render
them the most acceptable for the present population ; it
being left to the Council, from time to time, and according
to circumstances, to make or recommend any further and
necessary alterations in respect thereof.
We deem it desirable that the judicial functions should
be administered by local officers, namely, the Landdrost or
Magistrate of the District, who shall likewise fill the Situation
of Civil Government Agent or Commissioner, as in the Cape
Colony, with or without the assistance of District Justices of
the Peace, or Special Heemraden, and a Jury, according to
the degree of jurisdiction, as well in criminal as in civil cases ;
the Landdrost alone may have jurisdiction without appeal,
in criminal cases to a fine of i, IDS. ; or imprisonment, with
or without irons, or spare diet, for a period not exceeding
14 days ; and in civil cases, to an amount not exceeding
i, IDS. That the Landdrost, with two special Heemraden,
or Justices of the Peace, shall have jurisdiction without appeal,
in all criminal cases not exceeding a fine of 5 ; or imprison-
ment, with or without hard labour, spare diet, or irons, for a
period not exceeding one month ; or a flogging of not more
than 25 lashes ; and in civil cases, to a value not exceeding
5. That in all criminal cases, in which the person shall be
subject to a severer punishment, or in all civil cases in which
the case in issue exceeds the sum of 5, appeal may be lodged
to a higher Court.
That the Landdrosts, with two special Heemraden, or
Justices of the Peace, shall hold a monthly Court, and decide
by majority of votes ; the Landdrost, or one or more of the
Heemraden, shall however be at liberty himself to allow
appeal in unappealable cases, when they may differ, or when
they themselves have some doubt about any legal question, etc.
That there shall be a. superior and circuit Court once in
every six months in each district, composed of the Landdrosts,
of two or more adjoining Districts, and two or more of the
Special Heemraden of such District, who shall have jurisdic-
tion, without appeal, in all criminal cases in which the prisoner
may have been previously guilty adjudged to a fine exceeding
10, or imprisonment with or without hard labour, for a longer
period than six months, or to a whipping, in public or private,
of more than 75 lashes ; or to transportation out of the Colony,
1843] CENTRAL GOVERNMENT 177
or to confiscation of property, or to capital punishment ; in
all which cases a verdict of guilty must be returned by a Jury
of at least nine persons. All sentences of transportation out
of the country, or imprisonment exceeding two years, or
where a capital punishment is awarded, shall not be put into
execution than after the Fiat of the Governor being obtained.
It shall, however, be competent for two of the Members of the
Court (exclusive of the Jury), in the event of difference, or
any doubt, to refer Sentences of less magnitude to the approval
of the Governor.
That the Governor shall have the right to remit or mitigate
all sentences in criminal cases.
That the said Court in civil cases, without a Jury, shall
have jurisdiction, without appeal, wherein the value in dispute
may amount to from 10 to 20 ; and with appeal, in all
questions of greater amount.
That on the nomination of the Inhabitants of each District,
who are eligible to serve on a Jury, and on the further
recommendation of the Legislative Council, every two years,
eight persons eligible to be chosen as Members of Council,
shall be proposed to the Governor, of whom four shall be
appointed as Special Heemraden, or Justices of the Peace,
for that District for the said period; who shall during the
continuance of their office, be exempted from all other public
duties, and receive for their attendance in Court an allowance
of ten shillings each, per day, besides travelling expenses;
and they will likewise have the power of Justices of the Peace,
as in the Cape Colony.
That the Governor, or Commander-in-Chief , of the Colony,
with two or more Members of the Executive Council, shall
constitute a Court of Appeal, which Court shall have a Session
once in three months.
That all Regulations for the various Courts shall be pre-
pared by the Legislative Council, and submitted for the sanction
of the Governor.
That, except in cases where local laws shall be provided,
the common laws, both criminal and civil, shall be followed
as they are observed in the Cape Colony.
That the Dutch Language shall be used in all Courts of
Law, except where the majority of the inhabitants of the
District shall speak English.
9. That the Landdrost of each District shall be nominated
by the Inhabitants who are entitled to choose a Councillor,
and on the further recommendation of the Legislative Council
be appointed by the Governor, to serve during good behaviour ;
that the Governor, however, may refuse to make such appoint-
ment, on the ground of incapacity or other unfitness of the
12
178 NATAL [1843
person recommended ; and that in such case another elec-
tion shall take place; no one being eligible for that office
who is not entitled to serve as a Member of Council.
That all other officers (inferior) shall be appointed by the
Governor, the preference being given to persons born in the
Colony, and possessing the necessary qualifications.
10. That to every town or village, at the request of the
inhabitants, municipalities shall be granted ; and that the
Lands now granted to Villages for grazing, etc. shall not be
disposed of in any other manner than to the improvement
of the Village, either in waterworks, roads, or the like.
11. With regard to Public Worship, we wish to submit
for yourrecommendation.thateverydenominationof Christians
shall be acknowledged by Government and protected against
all violence, persecution, or disturbance ; That the Congrega-
tions of every Church shall be at liberty to elect and appoint
their own Ministers and other Church Officers, agreeably to
their own Church Laws and Regulations, without any
meddling or interference on the part of Government ; and
that the public revenue shall not be burdened with any ex-
penses for the support of any Church Establishment what-
soever ; but that the Congregations shall themselves provide
therein. That, however, no Idolatry, profane or other blas-
phemous sects shall be tolerated, which may tend to the
corruption of morality, or disturbance of the public peace.
That with respect to the Schools, the Legislature shall
make provisions, as in all other legal matters.
12. With respect to our possessions in Lands, we cannot
proceed to propose any particulars for your recommendation,
without at the same time intimating to you, that this is a
subject, in respect of which a general and lively interest is felt,
and of the final result whereof, we dare not conceal it to be
our firm ideas, that from that will decidedly depend the perfect
satisfaction or dissatisfaction, both here and elsewhere, as far
as this Colony is inhabited, a subject which may cause
unwished-for consequences if the decision of Her Majesty’s
Government in that respect should be hard and pressing, or
unjust, according to the views of the parties concerned. Yet,
on this point we must assure you, that we, relying on the
spirit of the declaration made by Her Majesty, cherish a
perfect confidence that Her Majesty’s Government will be
anxious and willing to take our interests into most favorable
consideration. We perceive from the nth Art. of the Pro-
clamation of His Excellency the Governor, hereinbefore
alluded to, that, as Her Majesty’s Commissioner, you are only
empowered to assure to the possessors the tenure of such
Lands alone which shall have been bona fide occupied for the
1843] CENTRAL GOVERNMENT 179
space of twelve months, next preceding your arrival at this
place ; and without any definition as to the probable extent
of ground which shall be considered to be a place [i.e. a farm].
From the manifold applications which have already been
made to you on this point, we hold ourselves assured, that you
will have considered, both in equity and justice, and even on
the principle of public good, and the advancement of the
prosperity of this infant Colony, you cannot well refuse, (in
consideration of the particular circumstances herein set forth,
and whatsoever else has appeared to you,) to endeavour to
move Her Majesty’s Government, further to extend the rights
of Owners to their places, as has been allowed you by the
Proclamation.
They are not only the possessors of occupied Lands who
consider themselves as having a just claim thereto, but also
those who have obtained their Land under the same authority,
who have done and suffered for the Land, and were only
prevented from occupying their Land, while the hitherto
existing insecurity compelled them either to reside for the
present in the villages or small encampments, or to remain for
mutual protection on the places of the one or other of their
fellow-citizens, until an opportunity should offer that they
could without imminent danger to their lives proceed to their
places to cultivate and build on their own ground. When
therefore all those shall not be entitled to the grants of Land
alike with those who were fortunate enough to be able to
occupy theirs, the majority of the people will be deprived of
Land, and through damages and losses suffered, being reduced
to poverty, and consequently unable to purchase from Govern-
ment, it would not be too much to expect that the utmost
dissatisfaction would arise, and that those persons could be
moved to continue in a Country, and therein co-operate for
the common welfare, or in bearing the burdens, if they were
to be deprived of all participating interest, or to have the
prospect of procuring a resting-place for themselves and their
children. We are persuaded that in this case, the number of
the present inhabitants on this side of the Draakberg will
decrease by at least 50 p. Ct. The consequences which will
result therefrom we will not even venture to sketch ; and
although we doubt not but Her Majesty possesses the means
of ultimately establishing order and submission, we know this
for certain, that it will for a considerable time retard the safety
and prosperity of this Colony, and that the measures to be
adopted by Government would be attended with more expense
than all the Lands we now claim are worth.
[Further remarks to prove the right of those to whom
titles to land have been issued by the Volksraad.]
i8o NATAL [1843
13. A free Trade, which we would wish Her Majesty’s
Government to grant to this Country, with all Nations, even
as to the most favoured of the British Colonies.
The trade with the Zoolahs and other Border Nations, we
deem necessary to be at first most strongly forbidden, until
the necessary laws can be framed in that respect ; and under
such regulations, that the trade in arms and ammunition may
be prevented and prohibited.
14. That no Colonial Paper Money shall be introduced,
but only English Sterling Money.
15. That no Burghers of the Land, or their Children, shall
be pressed or forced into the Military Service ; we consider a
request which Her Majesty’s Government will readily concede.
16. With respect to the limits of this Colony, to the North,
we beg you to recommend, to fix the same to the so-called
Drakensberg ; (from where all running water takes a course to
the sea, South and South-eastward,) until the willingness of
the Inhabitants of the very extensive parts to the North of
the said Drakensberg shall have been ascertained, to participate
in the privileges already granted, or hereafter to be granted
to this Colony, by Her Majesty ; which measure we deem will
be the least expensive, and will bring about a speedier settle-
ment of all matters, hasten the population of the Country on
this side of the Mountain, and make the management so much
easier.
17. [The immigration of those only who are able to support
themselves on arriving should be allowed.]
18. [Renewed professions of sincerity in submitting to
British rule.]
Apologising for the liberty we have taken herein, we have
the honour, with great respect, to be, SIR,
Your most obedient humble Servants,
President and Members of the Council,
J. S. MARITZ, 5. Prest. ; G. J. NAUDE, A. J. VISAGIE,
L. J. MEYER, H. S. VAN DEN BERG, B. POORTMAN,
G. C. VlLJOEN, E. F. POTGIETER, G. A. R. OTTO,
P. G. HUMAN, C. P. BOTMA, P. H. ZIETSMAN,
J. A. KRIEL, S. A. CILLIERS, M. J. POTGIETER,
P. R. NEL, C. A. BOTHMA, W. A. VAN AARDT.
J. BODENSTEIN, Secretary of Council.
P.R.O., MS. copy of translation in C.O. 48/235.
BRITISH AUTHORITY CONSOLIDATED. [5 Oct. 1843.]
No. 108. Treaty between HENRY CLOETE, Esq., Her Majesty’s
Commissioner for Natal, and PANDA, King of the Zulus.
ART. i. There shall be henceforward and for ever peace
1843] CENTRAL GOVERNMENT 181
and friendship between the undersigned King Panda and his
subjects, and Her Majesty Queen Victoria and all Her Majesty’s
subjects.
2. It is hereby agreed between the undersigned that
the respective boundaries between the territory of Natal and
the Zoolah nation, shall be denned at the sea-line, by the
mouth of the River Tugela, and from thence upwards until the
junction of that stream with the River Umsinyaatee (or Buffels
River), from thence upwards by the said River Umsinyaatee
(or Buffels River), or such other boundary line along or near
its banks, as may, at any time hereafter, be fixed upon by the
undersigned, Her Majesty’s Commissioner for the territory
af Natal, or such other Commissioner as Her Majesty may
appoint, and by any two Indunas or Commissioners, whom
the undersigned Panda, King of the Zoolah nation, may
appoint for that purpose, and from thence northward to the
foot of the Quathlamba (or Draaksberg) mountains.
3. The undersigned Panda, King of the Zoolah nation,
hereby agrees and binds himself to direct Koedoe, the captain
of certain kraals placed by the late King Dingaan on the right
bank of Tugela, and all such other captains or Chiefs of kraals
as may be found to come within the boundaries of the territory
of Natal, hereby fixed and determined, to be removed from their
respective stations.
The undersigned, Her Majesty’s Commissioner, for, and
on behalf of, Her Majesty, hereby agreeing and consenting to
allow them to remain until their crops shall have been
reaped and then to take with them all their effects and lawful
property.
Thus done, and agreed upon, and confirmed, by the signa-
ture and marks of the undersigned, King Panda, and the
undersigned, Her Majesty’s Commissioner, at the chief town
of Elapeen, on this the 5th day of October 1843, in the presence
of the undermentioned witnesses.
(Signed) This is the mark of the King x
PANDA, made by himself.
This is the mark of the Induna
x UMVUNHLAAN, made by
him.
This is the mark of the Induna
x UMKONDANI, made by him.
(Signed) H. CLOETE, L.L.,
Her Majesty’s High (sic) Commissioner.
Witnesses
(Signed) D. C. TOOKEY.
C. J. BUISSINE.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 56,
182 NATAL [1844
No. 109. ANNEXATION OF NATAL TO THE CAPE
COLONY.
[Letters Patent, dated 31 May 1844.]
VICTORIA, by the Grace of God, of the United Kingdom
of Great Britain and Ireland, Queen, Defender of
the Faith, to all to whom these presents shall
come, Greeting :
WHEREAS by letters patent under the Great Seal of Our
United Kingdom of Great Britain and Ireland, bearing date
at Westminster, the Nineteenth Day of December, One
Thousand Eight Hundred and Forty-three, in the Seventh
Year of Our Reign, We did constitute and appoint Our
Trusty and Well-beloved Sir Peregrine Maitland, Knight,
Commander of the Most Honourable Military Order of the
Bath, Lieutenant-General of Our Forces, to be Our Governor
and Commander-in-Chief, in and over Our Settlement, at the
Cape of Good Hope, in South Africa, with its Territories and
Dependencies, as also of the Castle, and all Forts and Garrisons
erected, or established, or which should be erected or estab-
lished, within the said Settlement, Territories and Dependencies.
And Whereas, since the date of the said recited letters
patent, it hath seemed good to us to annex to the said Settle-
ment of the Cape of Good Hope, the Territories occupied by
Our Subjects throughout the District of Natal, in South
Africa ; Now know Ye, that We of Our especial Grace, certain
knowledge and mere motion, have annexed and do hereby
annex the said District of Natal to Our said Settlement of
the Cape of Good Hope, as a part and portion thereof.
PROVIDED, nevertheless, and We do hereby declare Our
pleasure to be that no law, custom or usage now in force within
our said Settlement of the Cape of Good Hope, shall by force
and virtue hereof extend to and become in force within the
said District of Natal, and that no Court or Magistrate of or
within Our said Settlement of the Cape of Good Hope shall by
force or virtue hereof acquire, hold or exercise any jurisdiction
within the said Colony of Natal, but that it shall be competent
to and for the Legislature of Our said Settlement of the Cape
of Good Hope, to make, ordain and establish all such laws and
ordinances as to them shall seem meet, for the peace, order
and good government of the said District of Natal, whether in
conformity or not in conformity with the laws and ordinances
in force within the other parts of Our said Settlement of the
Cape of Good Hope, any letters patent, charters, orders in
council, local ordinances, or other law or usage to the contrary
notwithstanding. Provided always, that all laws and ordi-
nances so to be made as aforesaid for the peace, order and good
1845] CENTRAL GOVERNMENT 183
government of the District of Natal, shall be so made in such
and the same manner, and with, under and subject to all such
and the same conditions, restrictions and reservations as are
or shall be in force within Our said Settlement, in respect to the
making of laws and ordinances for the peace, order and good
government of other parts thereof. And we do hereby reserve
to ourselves full power and authority to revoke or alter these
presents, as to us shall seem meet. In witness whereof, we
have caused these Our Letters to be made Patent.
Witness Ourself at Westminster, this Thirty-first Day of
May, in the Seventh Year of Our Reign.
By Writ of Privy Seal,
EDMUNDS.
P.R.O., C.O. 52/11 (C. ofG. Hope
Govt. Gazette, 22 Aug. 1845.)
MAINTENANCE OF BRITISH AUTHORITY OVER ALL
EMIGRANTS. [21 Aug. 1845.]
No. 110. Proclamation. By His Excellency Lieut. -General
Sir PEREGRINE MAITLAND, Knight Commander [etc.].
WHEREAS in and by a Proclamation bearing equal date with
these presents, I have referred to certain Letters Patent
of Her Majesty the Queen, annexing the District of Natal to
the Settlement of the Cape of Good Hope, as a part or portion
thereof ; and have also declared and made known the limits
which, for the time being, Her Majesty has been pleased to
assign to the said District ; and whereas there is reason to
apprehend that ignorant persons may mistake, and that evil-
minded persons may misrepresent, the true nature and effect
of the said Proclamation, and may treat and consider, or affect
to treat and consider, the same as a tacit renunciation of the
Royal Authority of Her said Majesty over such of Her Subjects
as may remove to or reside in Territories beyond the limits
of the said Districts : and whereas any such impression upon
the part of any of Her Majesty’s Subjects, would be wholly
irrational and unfounded, and productive of the most dangerous
consequences to all who should presume to act upon it :
Now, THEREFORE, I Do HEREBY PROCLAIM, DECLARE, and
MAKE KNOWN, for the warning and information of all whom
it may concern, that Her Majesty the Queen, by graciously
establishing in the District of Natal a settled form of Govern-
ment, is not to be understood as in the least renouncing Her
rightful and sovereign authority over any of Her Subjects
residing or being beyond the limits of the said District ; that
while such of Her Subjects as shall peaceably reside within the
184 NATAL . [1845
said limits, shall enjoy a degree of protection which cannot be
afforded to others resident beyond the same, the latter, if
guilty of crimes or offences, will be equally amenable to justice,
and exposed to punishment ; that the Acts of Parliament
made and passed in the reign of His late Majesty King William
the Fourth, for the prevention and punishment of Offences
committed by British Subjects within Territories adjacent
‘to the Cape of Good Hope, will still remain in full force and
operation, in regard to all such Subjects as last aforesaid ;
and that the establishment in the Natal District of an efficient
Government and administration of Justice, instead of counten-
ancing any idea that Her Majesty has abandoned her avowed
determination not to permit any of Her Subjects, wherever
resident, to affect independence, or act without control, will
powerfully tend, in connexion with other arrangements lately
entered into, and now in progress of completion, to repress any
tendency to violence or injustice amongst any of Her Subjects
sojourning beyond Her Majesty’s Dominions, and secure the
peace and good order of every portion of South Africa, in
which such Subjects may have settled.
GOD SAVE THE QUEEN.
P.R.O., C.O. 52/11 (C. ofG. Hope
Gout. Gazette, 22 Aug. 1845.)
NATAL A SEPARATE COLONY.
[Letters Patent, dated 30 April 1845.]
No. 111. Grant. Erecting the District of NATAL into a Separate
Government.
VICTORIA, by the Grace of God, of the United King-
dom of Great Britain and Ireland, Queen, Defender
of the Faith, to all to whom these presents shall
come, Greeting :
[Letters Patent appointing Sir Peregrine Maitland Governor
of the Cape Colony, and Letters Patent annexing Natal to the
Cape Colony, recited.]
. . . whereas We have deemed it expedient that the . . .
district of Natal should be erected for certain purposes into a
distinct and separate government to be administered in manner
hereinafter mentioned : Now, therefore, We do hereby declare
Our will to be and by these presents do constitute and appoint
that the said district of Natal shall henceforth be constituted
and become a distinct and separate Government to be ad-
ministered in Our name and on Our behalf by a Lieutenant-
Governor, to be by Us for that purpose appointed by warrant
under our Royal Sign Manual and Signet to be countersigned
1845] CENTRAL GOVERNMENT 185
by one of Our principal Secretaries of State, and in the event
of the death, or absence, or incapacity of any such Lieutenant-
Governor, or in the event of there being no person in the said
district commissioned by Us to be Lieutenant-Governor as
aforesaid, then and in every such case Our will and pleasure
is that the said office shall be administered provisionally by
some person to be for that purpose appointed by the Governor
and Commander-in-Chief, or by the officer for the time being
administering the government of the said settlement of the
Cape of Good Hope, by a Commission to be for that purpose
issued under the public seal of the said settlement, which
provisional appointment shall continue in force until Our
pleasure shall be known and no longer : and We do hereby
give and grant to such Lieutenant-Governor for the time being,
or to such person as may be provisionally appointed to ad-
minister the government of the said district of Natal as afore-
said, all such powers and authorities within such district as
by the said recited Letters Patent of the igth day of December,
in the seventh year of Our reign, are granted to and vested in the
said Sir Peregrine Maitland as Governor and Commander-in-
Chief in and over the said settlement of the Cape of Good
Hope ; subject, nevertheless, to all such restrictions and
limitations as are set forth in the said recited Letters Patent
of the 3ist day of May 1844, … as well as to all such rules
and regulations as shall be made and established by such in-
structions as hereinafter are mentioned for the practicable and
convenient exercise of such power and authority : Provided,
nevertheless, and We hereby declare Our will and pleasure to
be that it shall be lawful for the said Sir Peregrine Maitland,
or for the officer for the time being administering the govern-
ment of the said settlement from time to time, as occasion shall
require, and as he shall be directed by such instructions as
aforesaid to repair to the said district of Natal and to assume
the government thereof in person and during such his residence
therein, We do further declare Our pleasure to be that all and
every the powers and authorities in and by the said recited
Letters Patent in him vested in and over the said district
of Natal shall revive, and that, during the same period or
periods all and every the powers and authorities by these
presents vested in such Lieutenant-Governor shall be and are
hereby suspended : Provided also, and We do further declare
Our will and pleasure to be that nothing herein contained shall
extend or be construed to extend to take away, abridge, or
alter all or any of the powers and authorities in and by the
said recited Letters Patent given to the Legislature of Our said
settlement of the Cape of Good Hope, to make, ordain, and
establish all such laws and ordinances as to them shall seem
i86 NATAL [1847
meet for the peace, order, and good government of the said
district of Natal ; but that the said Legislature shall have,
hold, exercise, and enjoy such power and authority as afore-
said of making such laws and ordinances as aforesaid for the
said district as fully and effectually as if these presents had not
been made : and Our will and pleasure further is, that in the
execution of the powers hereby vested in the said Lieutenant –
Governor for the time being, or such person so provisionally
appointed as aforesaid, he do in all respects conform to and
obey all such orders and instructions as shall for that purpose
be addressed to him by Us in Our Privy Council or under
Our Signet and Sign Manual, or through one of Our principal
Secretaries of State ; and We do hereby reserve to ourselves
full power and authority to revoke or alter these presents as
to Us shall seem meet. In witness, etc. Witness, etc. the 30th
day of April.
By writ of Privy Seal.
1 certify the foregoing to be a true and authentic copy.
JOSEPH BURTT, Assistant Keeper of the
Public Records.
2 July 1868.
[Patent Roll 8 Victoria Part 27 (No. 6).]
Parl. Papers, Natal, 22 July 1868,
No. 454, p. 21.
LEGISLATIVE COUNCIL ESTABLISHED.
[Letters Patent, dated 2 March 1847.]
No. 112. Grant. Establishing a Legislative power in the
District of NATAL.
VICTORIA, by the Grace of God, of the United King-
dom of Great Britain and Ireland, Queen, De-
fender of the Faith, to all to whom these presents
shall come, Greeting :
[Letters Patent of 3ist May 1844, and of 3oth April 1845,
recited.]
. . . whereas We did by both the aforesaid Letters Patent
reserve to Ourselves full power and authority, to revoke and
alter the same as to Us should seem meet. Now know you that
We have revoked and determined, and do by these presents
revoke and determine so much, and such part only, and no
more of both the said recited Letters Patent of the 3ist day of
May 1844, and of the 3oth day of April 1845, as empowers
and authorises the Legislature of the Cape of Good Hope to
make, ordain, and establish laws and ordinances for the peace,
order, and good government of the said district of Natal.
1847] CENTRAL GOVERNMENT 187
And We do hereby further grant, ordain, and declare, that
the officer, for the time being, administering the government
of the said district of Natal, and such three, or more other
persons as shall, from time to time, be by Us for that purpose
named, or designated by any instruction or instructions, or
warrant or warrants, to be by Us for that purpose issued under
Our Sign Manual and Signet, and with the advice of Our
Privy Council shall constitute, and be a Legislative Council
for the said district of Natal, and shall hold their places therein
during Our pleasure. And We do by these presents further
grant, ordain, and declare, that the said Legislative Council
shall have full power and authority to make, constitute, and
ordain all such laws and ordinances, as may be required for the
peace, order, and good government of the said district of Natal.
Provided nevertheless, and We do hereby reserve to Ourselves
full power and authority, from time to time, as We shall see
occasion to disallow any such laws or ordinances. And We do
declare that any such law or ordinance shall cease to be of
any force or authority within the said district of Natal imme-
diately upon, and after the publication therein by the officer
administering the government thereof, of a Proclamation
notifying the receipt by him of any such order of disallowance
which Proclamation every such officer is hereby required to issue
with the least practicable delay after the receipt by him of
any such order. And We do hereby further ordain, direct, and
appoint that in the enactment of any such laws and ordinances
as aforesaid, the officer, for the time being, administering the
Government of the said district, shall conform to, and observe
all such orders as We shall see fit to make for his guidance
therein, by any instructions to be by Us from time to time
issued under Our Sign Manual and Signet with the advice of
Our Privy Council. And We do hereby reserve to Ourselves,
Our heirs and successors, full power and authority, from time
to time, as We shall see occasion to revoke, alter, and amend
these presents, or any part thereof. In witness, etc. Witness
etc. the 2nd day of March.
By writ of Privy Seal.
1 certify the foregoing to be a true and authentic copy.
JOSEPH BURTT, Assistant Keeper of the
Public Records.
2 July 1868.
[Patent Roll 10 Victoria Part 25 (No. 3).]
ParL Papers, Natal, 22 July 1868,
No. 454, p. 22,
i88 NATAL [1856
CHARTER OF NATAL.
[Letters Patent, dated 15 July 1856.]
No. 113. Erecting the District of NATAL into a Separate Colony
and Providing for the Government thereof.
VICTORIA, by the Grace of God, of the United Kingdom
of Great Britain and Ireland, Queen, Defender
of the Faith, to all to whom these presents shall
come, Greeting :
WHEREAS We are desirous of making provision for the
more effectual Government of the Territories occupied by Our
Subjects throughout the District of Natal in South Africa.
[Letters Patent of 3ist May 1844, of 3oth April 1845, and
of 2nd March 1847, recited.]
And whereas by certain other . . . Letters Patent bearing
date at Westminster the fifteenth day of January, one thousand
eight hundred and fifty . . . We did declare Our will and
pleasure that if at the time of the death, absence or incapacity
of Our Lieutenant-Governor of Our said District of Natal
there should be no person within Our said District commis-
sioned to be such Lieutenant-Governor, then and in every such
case the Senior Officer for the time being in command of Our
Troops in Our said District should take upon himself the
administration of the Office of Lieutenant-Governor of Our
said District until some person should have been provisionally
appointed by Our Governor of Our Colony of the Cape of
Good Hope or by the officer for the time being administering
the Government of Our said Colony, to administer the afore-
said Office of Lieutenant-Governor of Our said District of
Natal,
And whereas in all the above recited Letters Patent We
did reserve to Ourselves power to revoke the same,
[i] Now Know Ye That We have revoked and determined
and do by these presents revoke and determine the aforesaid
several recited Letters Patent and all and every the clauses,
articles and things therein contained except as hereinafter
provided, so far only excepted, and no further, that the Legis-
lative Council of Our said District of Natal as constituted by
Our said recited Letters Patent of the second day of March,
one thousand eight hundred and forty-seven, in the tenth
year of Our Reign shall continue to hold, exercise and execute
all and every the authorities, powers and functions given and
granted by Us to the said Council by Our said Letters Patent,
until the return of the first Writs for the election of the members
of the future Legislative Council as constituted under and by
virtue of these presents, and no longer.
1856] CENTRAL GOVERNMENT 189
And further Know Ye That We of Our especial grace,
certain knowledge and mere motion have thought fit to erect
and do hereby erect the said District of Natal into a separate
Colony, and the same is hereby erected into a separate Colony
accordingly, to be called the Colony of Natal.
[2] And We do hereby declare and appoint that the Govern-
ment of Our said Colony shall be administered by a Governor
duly commissioned by Us, or in the event of his death, in-
capacity or absence from Our said Colony, or if no Governor
shall have been commissioned by Us, by a Lieutenant-Governor
[or other person duly appointed].
[s] And We do hereby grant, appoint and ordain that all the
powers, directions and authorities hereby given and granted
to Our Governor lor the time being of Our said Colony of
Natal shall be and the same are hereby given and granted
to Our Lieutenant-Governor for the time being of Our said
Colony or other person for the time being administering the
Government of Our said Colony until Our further pleasure
shall be signified thereon.
[4] And We do hereby authorize and empower Our Governor
of Natal to keep and use the Public Seal appointed for the
sealing of all things whatsoever that shall pass the seal of
Our said Colony.
[5] And whereas it is expedient that there shall be an Execu-
tive Council to advise and assist Our Governor of Natal, We do
by these Our Letters Patent authorize and empower Our said
Governor to summon as an Executive Council such persons
as shall from time to time be named or designated by Us in
any instructions under Our Sign Manual and Signet addressed
to him in that behalf.
[e] And whereas it is expedient to alter the constitution of
the Legislative Council of the said Colony, We do hereby grant,
appoint and ordain as follows : We do hereby authorize and
empower Our said Governor of Natal with the advice and
consent of the Legislative Council thereof to make all such
laws as may be necessary for the peace, order and good govern-
ment of the said Colony, provided that the same be not re-
pugnant to the Laws of England.
[7] The Legislative Council of Natal shall consist of sixteen
members, of whom twelve shall be elective and four non-
elective.
[s] The non-elective members shall consist of such Public
Officers within the said Colony or of such other persons within
the same as shall from time to time be named or designated
for that purpose by Us by any instruction or instructions or
warrant or warrants to be by Us for that purpose issued
under Our Sign Manual and Signet with the advice of Our
NATAL [1856
Privy Council which said Councillors shall hold their places in
the said Council at Our pleasure.
[9] It shall be lawful for Our said Governor upon the death,
resignation, incapacity or absence from the said Colony of
any such non-elective members of the Legislative Council to
appoint a substitute who shall act provisionally in the place
of such member until other provision shall be made by Us.
[10] The elective members shall be chosen by the electors
of the following eight electoral districts, that is to say :
1. Two for the County of Klip River.
2. One for the County of Weenen.
3. One for the County of Umvoti.
4 . Two for the County of Pietermaritzburg.
5. One for the County of Durban.
6. One for the County of Victoria.
7. Two for the Borough of Pietermaritzburg.
8. Two for the Borough of Durban.
[n] Every man, except as hereinafter excepted, above the age
of twenty-one years, who possesses any immovable property
of the value of Fifty pounds or who rents any such property
of the yearly value of Ten pounds within any electoral district
and who is duly registered in manner hereinafter mentioned,
shall be entitled to vote at the election of a member for such
district. When any such property as aforesaid is occupied by
more persons than one as proprietors or renters, each of such
occupants being duly registered shall be entitled to vote in
respect of such property, provided the value, or as the case
may be, the rent thereof, be such as would entitle each of
such joint occupants to a vote if equally divided among them.
[12] Aliens, not having been naturalized by some Act of the
Imperial Parliament, or of the Legislature of Natal, and
persons who shall have been convicted of any treason, felony,
or infamous offence, and shall not have received a free pardon,
shall not be qualified to vote at any such election.
[13] No person shall be capable of being elected a member of
the Legislative Council unless he shall be a duly qualified and
registered elector for some electoral district in the Colony,
nor unless he shall have been invited to become a candidate
for such election, by at least ten electors of the County or
Borough which it is proposed he shall represent ; nor unless
such requisition shall have been transmitted to the Resident
Magistrate of the County or Borough with a notification of the
said Candidate’s acceptance thereof, at least fourteen days
before such election is appointed to take place.
[14] If, in any electoral district, any person shall sign requisi-
tions to more than one Candidate for each vacancy in the
1856] CENTRAL GOVERNMENT 191
Legislative Council, in respect to which he is entitled to a vote,
his signature shall be expunged from all requisitions which he
shall have so signed.
[15] The Resident Magistrate shall, at least seven days before
the day appointed for the commencement of the Poll, cause
the said requisitions to be published for the information of
the Electors.
[ie] Our said Governor shall by proclamation in the Government
Gazette fix the time and place or places for holding the Sessions
of the Legislative Council provided that the said Legislative
Council shall be convoked within six months after Our said
Governor shall have received these presents and once at least
in every subsequent year.
[17] Our said Governor may b}-‘ proclamation prorogue or
dissolve the Legislative Council when he shall think fit ; and
in the absence of such dissolution the elected members of the
Legislative Council shall hold their seats for four years from
the day of the returning of the first Writs for the election of
members to the said Council, and no longer.
[is] If any member of the Legislative Council shall by writing
under his hand addressed to Our said Governor resign his
seat in the said Council or shall without the permission of Our
said Governor first obtained, fail during a whole Session to
give his attendance in the said Council or shall take any oath
or make any declaration or acknowledgment of allegiance,
obedience, or adherence to any foreign State or Power, or
shall do . . – 1 in or adopt any act whereby he may become
the Subject or Citizen of any such State or Power or shall
become a Bankrupt or an Insolvent Debtor or a Public De-
faulter or be attainted of treason or be convicted of felony
or any infamous crime or shall for the period of one month
remain a party to any contract with the Government, or if
any elective member shall accept any offer of emolument from
the Government his seat in the said Council shall thereupon
become vacant.
[19] Whenever it shall be established to the satisfaction of Our
said Governor that the seat of any elected member of the
Legislative Council has become vacant Our said Governor
shall forthwith issue a Writ for the election of a new member
to serve in the place so vacated during the remainder of the
term of the continuance of such Council, but if any question
shall arise respecting the fact of such vacancy it shall be
referred by Our said Governor to the said Council and shall
be heard and determined by them.
[20] No member of the Legislative Council shall vote or sit
therein until he shall have taken and subscribed the following
1 One word of the MS. is indistinct.
ig2 NATAL [1856
Oath before Our said Governor or some person authorized by
him to administer such Oath :
“I, A. B., do sincerely promise and swear that I will be
faithful and bear true allegiance to Her Majesty, So help me
God.”
But every person authorized by Law to make a solemn
affirmation or declaration instead of taking an Oath may
make such affirmation or declaration in lieu of the said Oath.
[21. Legislative Council to elect a Speaker subject to the
Governor’s confirmation.]
[22. Speaker to preside at meetings of Legislative Council.]
[23. Quorum of Legislative Council to be six.]
[24. Questions to be decided by majority of members present.
When votes are equal, Speaker shall have a casting vote.]
[25. Council to frame its rules and orders subject to the
Governor’s confirmation.]
[26] The Legislative Council shall not pass nor shall Our said
Governor assent to any Bill appropriating any part of the
Public Revenue for any purpose which shall not first have
been recommended to the Council by Our said Governor during
the Session in which such Bill was proposed, and no part of
the said Revenue shall be issued except in pursuance of a
Warrant under the hand of Our said Governor directed to the
Public Treasurer of the Colony.
[27. Civil List reserved. Treasurer of the Colony to account
for all revenues to the Lords Commissioners of the Treasury
of the United Kingd6m.]
[28. Governor may transmit drafts of Bills for the Legislative
Council’s consideration.]
[29] Whenever any Bill has been passed by the Legislative
Council it shall be presented to Our said Governor, who may
either return the same by message for the reconsideration of
the Council with such amendments as he may think fitting, or
may assent to the same subject to such instructions as he may
receive from Us in regard to such Bills, or may declare that he
refuses his assent to the same or that he reserves the same for
the signification of Our pleasure thereon.
[30. Laws assented to by the Governor may be disallowed
by the Crown within two years. From the date of publication
of such disallowance within the Colony such law shall be
considered null and void.]
[31] The Field-Cornet in every ward shall . . . make a true
list … of all men, who shall be … qualified to vote . . .
for members of the Legislative Council. . . .
[32] The Field-Cornet shall forthwith transmit such list to
the Resident Magistrate of the County, or Electoral District,
in which such ward is situated.
1856] CENTRAL GOVERNMENT 193
[33] When the Resident Magistrate has received such lists
from the Field-Cornet, he shall forthwith cause them to be
published, and to every list so published he shall subjoin a
notice that all objections thereto will be heard and determined
by him, at such time, or times, as Our said Governor may,
by proclamation, fix for that purpose.
[34] The Resident Magistrate, after hearing such objections,
shall strike out of the lists all names which shall have been
improperly inserted, and insert all names which shall have
been improperly omitted therein. . . .
[35] A copy of the list of voters in every ward . . . shall be
transmitted … to the Field-Cornet of such ward. . . .
[ 3 e] This list shall be called ” The Voters’ Roll ” of the
ward, and shall be brought into use on such day as may be
fixed by Our said Governor by Proclamation for that pur-
pose, and shall continue to be used for one year then next
ensuing.
[37] Any person may inspect or take a copy of such roll
gratuitously.
[38] The Field-Cornet in every ward shall, in like manner, on
the ist of July in every succeeding year, make a similar list of
all men who shall be at such time qualified to vote for members
of the Legislative Council, and the same proceedings shall be
had and taken in respect thereof, as are hereinbefore specified,
respecting the first election, and he shall give notice, as herein-
before mentioned, that objections will be heard and determined
at some time to be fixed before the twenty-first day of August
then next ensuing, and the voters’ roll shall be brought into use
as hereinbefore mentioned, on the first day of September in
every year.
[39-49. Manner of taking the poll. Precautions against false
impersonation at polling stations. Resident Magistrates to
publish the result of elections in their respective areas.]
[50. In case of an equality of votes the decision is to be
by lot.]
[51] It shall be lawful for Our said Governor by any Law to
be enacted by him with the advice of the Legislative Council
to be constituted under and by virtue of these presents to
repeal, alter or amend all or any of the provisions made by or in
virtue of these presents and to substitute other provisions in
lieu thereof, provided that no such Law shall abridge the
power hereinbefore reserved to Our said Governor of reserving
any Bill passed by the Legislative Council for the significance
of Our pleasure thereon or the power reserved to Us of dis-
allowing any Law ; and provided also that every Law shall
be reserved by Our said Governor for the significance of Our
pleasure which shall diminish the Salary of any Officer holding
13
I 9 4 NATAL [1865
Office or by which any alteration shall be made in any of the
following particulars, namely :
The respective numbers of the Elective and Non-
elective Members of the Legislative Council,
The qualifications of the said Elective Members
and of their Electors,
The Salaries annexed by the Reserved Civil List to
the Officers, Governor, Judge and Secretary for
Native Affairs, or the annual payment of Five
thousand pounds for Native purposes.
[52. Governor may, within six months of the date hereof, vary
by proclamation any of the provisions herein contained relating
to the registration of voters, to returning officers, to the issuing
of writs for elections, and to the manner of taking the poll.]
[53. Colony may be divided into counties, wards, and town-
ships.]
[54. Governor in Council may make grants of Crown lands.]
[55] AndWedo hereby authorize and empower our said Gover-
nor to constitute and appoint Judges and in cases requisite Com-
missioners of Oyer and Terminer, Justices of the Peace, and
other necessary Officers and Ministers in Our said Colony for
the due and impartial administration of Justice and for putting
the Laws into execution and to administer or cause to be ad-
ministered unto them such Oath or Oaths as are usually given
for the due execution and performance of then- offices. . . .
[56. Governor may suspend from office any official ap-
pointed by the Crown, till the Queen’s pleasure be known.]
[57. Governor may pardon any offender convicted of any
crime either freely or conditionally. He may remit certain
fines and penalties.]
[58] And We do reserve to Ourselves full power and authority
to amend, alter or revoke these Our Letters Patent as to Us shall
seem meet. In witness, etc. Witness, etc. the fifteenth day of
July.
[Schedules follow here.]
By Her Majesty’s Command.
P.R.O., Patent Roll, 20 Victoria, Part I., No. (6).
NATIVE FRANCHISE. [24 Aug. 1865 ]
No. n, 1865.
No. 114. Law. Disqualifying certain Natives from exercising
Electoral Franchise. 1
WHEREAS the numerous Natives residing in this Colony
are, by the 28th article of Her Majesty’s Instructions, given at
Cf. Native Administration Laws of 1875, I 8 7 8 a d 1887.
i86s] CENTRAL GOVERNMENT 195
Buckingham Palace on the 8th day of March 1848, under the
Royal Sign Manual and Signet, placed under special control,
and made subject to their own laws, customs and usages,
and are consequently only partially brought under the opera-
tion of the general Laws of the Colony. And whereas, by Her
Majesty’s Letters Patent given at Westminster the Fifteenth
day of July, in the Twentieth Year of Her Majesty’s Reign,
erecting Natal into a separate Colony, and amongst other
provisions therein contained constituting an Elective Legis-
lative Council for the said Colony, it is by the said Letters
Patent declared and ordained that every man above the age
of twenty-one years, save and except certain persons dis-
qualified by the provisions of the said Letters Patent, who
possesses any immovable property to the value of 50, or who
rents any such property of the yearly value of 10, and who
is duly registered, shall be entitled to vote at the election of
a member for the said Legislative Council : And whereas it
is contemplated to grant to the said Natives documentary titles
to certain lands within the said Colony by which many of
the said Natives would become possessed of the property
qualification required to exercise the electoral franchise under
the said Letters Patent ; and whereas it is deemed to be inxe-
pedient that the said Natives should, … so long as they continue
subject to the special provisions of the aforesaid 28th article
of Her Majesty’s Instructions, exercise the said privilege :
And whereas by Law No. n of 1864, entituled : ” For relieving
certain persons from the operation of Native Law,” provision
is made whereby such natives as [shall become fairly civilised]
shall be enabled … to take out certain letters of exemption by
which they become exempted from the operation of Native
Laws, Customs and Usages, and in their persons and property
become subject to the general laws of the Colony : And whereas
for the before cited reasons it is expedient by Law to exclude
such of the Native population as shall continue subject to
Native Law from claiming the electoral franchise, and to define
which of the said Natives so exempted shall be entitled to claim
the rights and privileges granted by the said Royal Letters
Patent, and in these respects to alter or amend the provisions
of the said Royal Letters Patent :
Be It Therefore Enacted by the Lieut enant-Governor of the
Colony of Natal, by and with the consent of the Legislative
Council thereof, as follows :
i. Every male native resident in this Colony or having
the necessary property qualification therein, whether subject
to the operation of the native laws, customs and usages in
force in this Colony or exempted therefrom save as in this law
is provided, shall be disqualified from becoming a duly regis-
196 NATAL [1865
tered elector, and shall not be entitled to vote at the election
of a member of the Legislative Council for any electoral district
of the Colony of Natal.
2. Any male native inhabitant of this Colony who shall
show to the satisfaction of the Lieutenant-Governor that he
has been resident in this Colony for a period of twelve years
or that he has been occasionally resident therein equivalent
to a twelve years’ residence and who shall possess the requisite
property qualification and shall have been exempted from the
operation of native law for a period of seven years, and who
shall produce to the Lieutenant-Governor a certificate signed
by three duly qualified electors of European origin as near as
may be to the form in Schedule A hereunto appended and
endorsed by a Justice of the Peace or Resident Magistrate
of the district in which such native resides, a statement to the
effect that the Justice or Resident Magistrate endorsing said
certificate has no reason to doubt the truth of said certificate
and that the persons signing it are credible persons, shall be
entitled to petition the Lieutenant-Governor of Natal for a
certificate to entitle him to be registered as a duly qualified
elector for that electoral division in the Colony in which such
native may possess the requisite property qualification.
3. The Lieutenant-Governor may direct that the applica-
tion of any such native be published in the Government Gazette
and call upon any person having objection to any such native
becoming a duly qualified elector to submit such objection in
writing to the Secretary for Native Affairs for the consideration
of the Lieutenant-Governor.
4. The Lieutenant-Governor may make such rules and
orders in and about the publication of any such application
and receiving, and entertaining, and deciding upon, any objec-
tion thereto, as may to him seem necessary.
5. The Lieutenant-Governor may, at his discretion, grant
or refuse to any native applying in manner aforesaid for
such certificate, entitling him to be registered as a duly quali-
fied elector, provided always no such certificate shall be
granted unless it shall have been published in manner de-
scribed in Clause 3, at least three months previous to the
granting thereof.
6. Every male native who shall have been exempted from
the operation of native law, customs and usages, for a period
of seven years, and who shall have obtained a certificate from
the Lieutenant-Governor entitling such native to be registered
as an elector, and who shall be possessed of the immovable
property qualification required by any law in force for the
time being in that behalf, shall be entitled to be duly regis-
tered as an elector, and when registered shall be entitled to
1869] CENTRAL GOVERNMENT 197
vote at the election of a Member of the Legislative Council
for such District in which he may possess such property.
7. Every male native to whom such certificate shall have
been granted by the Lieutenant-Governor shall so long as he
may possess the requisite property qualification and who shall
not be convicted of treason or of any infamous crime, or of
any crime which, if committed in England, would be felony,
shall, subject to the provisions of Her Majesty’s Letters Patent
given at Westminster the fifteenth day of July, in the twentieth
year of Her Majesty’s reign, or any law in force for the time
being in that behalf, be entitled to vote at the election of a
member of the Legislative Council for the district in which he
may possess such property qualification.
8. This law shall come into force and take effect on and
after the publication by proclamation of the Lieutenant-
Governor in the Government Gazette of Her Majesty’s assent to
the same.
[Schedule.]
P.R.O., C.O. 180/3
ECCLESIASTICAL GRANTS. [22 Sept. 1869.]
No. 7, 1869.
No. 115. Law. To abolish Ecclesiastical Grants from the Public
Revenue within the Colony of Natal
WHEREAS the Legislative Council of this Colony did, on
the 4th day of July 1866, pass the following resolution, viz. :
” That it is the opinion of this House that all
Annual Grants of Money now made by Government
to Ecclesiastical Bodies, or all forms of State Aid to
Religion, should cease.”
And whereas it is expedient to give permanent legal force
to aforesaid resolution, and that perfect religious equality
should be secured within the Colony, and for that purpose
that the payment of all Ecclesiastical Grants from the Public
should cease and determine.
Be It Therefore Enacted by the Lieutenant-Governor of
Natal, by and with the advice and consent of the Legislative
Council thereof, as follows :
1. That from and after the passing of this law, no further
annual grant of money shall be made by the Government to
any person holding any ecclesiastical appointment, nor shall
any kind of State aid be given to any ecclesiastical body or
person as such, in any form or manner whatsoever, either in
land or otherwise.
2. [Present annual grants shall lapse on determination of
i 9 8 NATAL [1873
recipients’ office, except in such cases as may now be waiting
the decision of Government.]
3. [Law to take effect from the date of promulgation.]
P.R.O., C.O. 180/4.
ELECTORAL DIVISIONS. [12 July 1873.]
No. i, 1873.
No. 116. Law. To readjust the Electoral Divisions of the
Colony of Natal.
WHEREAS by the Royal Charter of Natal, bearing date the
I5th day of July 1856, it is provided in the 5ist section thereof,
that ” it shall be lawful for the Lieutenant-Governor, with the
advice of the Legislative Council, to be constituted under and
by virtue of these presents, to repeal, alter, or amend all or any
of the provisions made by or in virtue of these presents, and
to substitute other provisions in lieu thereof, under certain
reservations, among others that every Law altering ” The
respective numbers of elective and non-elective members of
the Legislative Council ” shall be reserved for the signification
of Her Majesty’s pleasure with respect thereto :
And whereas it is advisable to alter the respective numbers
of the elective and non-elective members of the Legislative
Council :
Be it therefore enacted by the Lieutenant-Governor, with
the advice and consent of the Legislative Council :
1. That Clause 7 of the said Charter shall be, and is hereby
repealed, and in lieu thereof shall be substituted as Clause 7
the words following : That the Legislative Council of Natal
shall consist of twenty members, of whom fifteen shall be
elective, and five non-elective.
2. Clause 10 of the said Charter is hereby repealed, and
in lieu thereof it is hereby enacted : That the elective
members shall be chosen by the electors of the following ten
electoral districts, that is to say :
1. Two for the County of Klip River exclusive of
the Division of Newcastle.
2. One for the Division of Newcastle.
3. One for the County of Weenen.
4. One for the County of Umvoti.
5. Two for the County of Pietermaritzburg.
6. One for the County of Durban.
7. One for the Counties of Alexandra and Alfred.
8. Two for the County of Victoria.
9. Two for the Borough of Pietermaritzburg.
10. Two for the Borough of Durban.
1875] CENTRAL GOVERNMENT 199
The threej^additional elective members, namely, one
member for the Division of Newcastle, one member for the
County of Victoria, and one member for the Counties of
Alexandra and Alfred, shall, within four months after the
promulgation of this Law, be elected in the manner provided
by the Charter for filling vacancies of elective seats, until such
time as under a general election, the returns shall be made as
elsewhere provided in the Charter. The fifth non-elective
member of the said Council shall be from time to time named
or designated in terms of the 8th section of the said Charter.
3. [First elections in new electoral districts provided for.]
4. [Law to take effect from the date of promulgation.]
P.R.O. C.0. 180/4.
CONSTITUTION AMENDMENT LAW, 1875.
[23 Sept. 1875.]
No. 3, 1875.
No. 117. Law. To increase the number of Members in the
Legislative Council of Natal.
[Preamble.]
Be It … Enacted by the Administrator of the Govern-
ment of Natal, with the advice and consent of the Legislative
Council thereof, as follows :
i. The Law No. i, 1873, shall be and the same is hereby
amended by substituting twenty-eight, instead of twenty, as
the total number of members of the Legislative Council of
Natal, and by substituting thirteen, instead of five, as the
number of non-elective members of the Legislative Council of
Natal, and the Lieutenant-Governor shall be and he is hereby
empowered from time to time to nominate and appoint accord-
ingly a further number of persons not exceeding eight to be
members of the said Legislative Council : Provided that such
further number of persons, not exceeding eight, to be nomi-
nated and appointed as non-elective members of the said Legis-
lative Council, shall be selected from persons who have been
on the Voters’ Roll for two years, and are possessed of immov-
able property of the value of One Thousand Pounds sterling, free
of all encumbrances, and shall be subject in all respects to
the i8th and igth Clauses of the Royal Charter of 1856, as
if they were elective members : Provided further, that such
requisite qualifications shall not apply to the five nominated
members holding offices of profit under the Crown : Provided
also, that the seats of the non-elective members in the said
Council shall terminate by death or resignation, or by dis-
200 NATAL [1875
solution of the Legislative Council in the same manner as
seats of elective members thereof : And provided also that
upon the dissolution of the now existing Legislative Council,
the Lieu tenant-Governor shall be and he is hereby empowered
to nominate and appoint persons to fill the entire thirteen non-
elective seats in the Legislative Council, any former Law or
Charter or nomination or appointment notwithstanding.
2. That all laws imposing taxation on the European popu-
lation shall require not less than two-thirds of the members
present to carry the affirmative.
3. That the Legislative Council shall not be competent
to proceed to the despatch of any business unless ten members
be present.
4. That this Law shall be in force for a period of five years
from and after the promulgation thereof in the Government
Gazette.
5. That four members be nominated from the Borough
of Durban, the Counties of Durban, Victoria, Alexandra,
and Alfred ; and four from the Borough of Pietermaritz-
burg, and the Counties of Pietermaritzburg, Umvoti, Weenen,
and Klip River.
6. Save so far as in conflict with this Law, all former Laws
and Charters now in existence shall be deemed to be in force
notwithstanding the passing thereof.
7. This Law shall commence and take effect from and after
the date of promulgation in the Natal Government Gazette
of Her Majesty’s assent thereto, and may be cited for all
purposes as the ” Natal Constitution Amendment Law, 1875.”
P.R.O., C.O. 180/4.
NATAL GOVERNMENT RAILWAYS.
No. 4, 1875.
No. 118. Law. To empower the Lieutenant-Governor to
make, maintain, equip, and work certain Railways in the
Colony of Natal, and to confirm a provisional Contract
entered into for the construction of the same.
P.R.O., C.O. 180/4.
No. 5, 1875.
No. 119. Law. To raise a Loan for the Construction and
Equipment of certain Railways in the Colony of Natal.
P.R.O., C.O. 180/4.
1883] CENTRAL GOVERNMENT 201
No. 6, 1875.
No. 120. Law. To provide for the taking over by the Colonial
Government of the Lines of Railway between the Point
and the Town of Durban, and between the Town of
Durban and the River Umgeni.
P.R.O., C.O. 180/4.
No. 3, 1877.
No. 121. Law. To provide for the Management and Working
of the Natal Government Railways.
P.R.O., C.O. 180/5.
No. 2, 1878.
No. 122. Law. For fixing the Fares and Rates chargeable for
the conveyance of passengers and goods by the Natal
Government Railways.
P.R.O., C.O. 180/5.
CONSTITUTION AMENDMENT LAW, 1883.
[9 March 1883.]
No. i, 1883.
No. 123. Law. To Amend the Constitution of Natal.
[First part of the Preamble is identical with that of Law
No. i of 1873.]
And Whereas by Law No. i, 1873, Section i, it is provided
and enacted that the Legislative Council of Natal shall consist
of twenty members, of whom fifteen shall be elective and five
non-elective :
And Whereas it is expedient to increase the number of
members of the Legislative Council ; and for such purposes
to amend the said Charter and the said recited Law :
Be It Therefore Enacted by the Governor of Natal, with
the advice and consent of the Legislative Council thereof, as
follows :
1. [Short title : ” Constitution Amendment Law of 1882.”]
2. [Former laws and charters to remain in force, save so
far as in conflict herewith.]
3. The Law No. i, 1873, shall be and the same is hereby
amended by substituting thirty instead of twenty as the total
number of members of the Legislative Council of Natal, of
whom twenty-three shall be elective and seven shall be non-
elective.
202 NATAL [1883
4. Clause 2 of Law i of 1873 (except in so far as it repeals
Clause 10 of the said Charter) is hereby repealed.
5. The twenty-three elective members shall be chosen by
the electors of the following ten electoral districts :
ELECTORAL DISTRICTS.
Number of
Members.
1. County of Klip River (exclusive of the
Division of New Castle) . . 2
2. Division of New Castle . . .2
3. County of Weenen . . .2
4. County of Umvoti . . .2
5. County of Pietermaritzburg . . 3
6. County of Durban . . .2
7. Counties of Alexandra and Alfred . i
8. County of Victoria . . .3
9. Borough of Pietermaritzburg . . 3
10. Borough of Durban . . .3
Total . 23
6. [Additional elective members, how to be elected.]
7. So soon as the additional elective members to serve in
the present Council shall have been returned, the Governor
shall be and he is hereby empowered to nominate and appoint
two non-elective members, in addition to those who are already
members of the Council, to have seats therein. The two
additional members shall hold their office during the Royal
pleasure ; they shall not be members of the Public Service of
the Colony ; they shall have been on the voters’ roll for at
least two years immediately prior to their appointment ; and
they shall possess immovable property, situate within the
Colony of Natal, of the value of 1000, after deducting all
mortgages and encumbrances ; and such two members shall
be subject to the provisions of the i8th and igth Clauses of
the Charter.
8. [Ten members to be a quorum.]
9. Clause 42 of the Charter shall be and is hereby amended
by substituting the word ” more ” for the word ” two.”
10. [Electors to vote in their own wards.]
11. [Governor may appoint any number of polling-places
in any one ward.]
12. [When there are no more candidates than the number
of persons to be elected, they shall be declared duly elected
without recourse to a poll.]
13. [To take effect from the date of promulgation of Her
Majesty’s assent.] P.R.O., C.O. 180/6.
1883] CENTRAL GOVERNMENT 203
FRANCHISE AMENDMENT LAW, 1883. [29 March 1883.]
No. 2, 1883.
No. 124. Law. To amend the Franchise.
[Preamble.]
1. [Short title : ” Franchise Amendment Law of 1882.”]
2. [Save so far as in conflict, former Laws and Charters
remain in force.]
3. Every male inhabitant, of three years’ residence in the
Colony of Natal, whose income, inclusive of allowances, is equal
to 8 per month, or 96 per annum, who may be disqualified
as an elector under the Charter of Natal on the sole ground
of his not possessing the property or rental qualification re-
quired by the eleventh clause of said Charter, may cause him-
self to be enrolled by the Field-Cornet of his Borough or Ward
on the list of men qualified to vote for members of the Legis-
lative Council.
4. [Electors qualified under the Law, to claim franchise
before field-cornets.]
5. [Field-cornets to make up voters’ lists.]
6. No person belonging to a class which is placed by special
legislation under the jurisdiction of special courts, or is subject
to special laws and tribunals, shall be entitled to be placed
on the Voters’ List, or to vote at the election of any member
of the Legislative Council : Provided that any such person
may be exempted from the operation of this clause by letters
of exemption granted to such person by the Governor of the
Colony : Provided, further, however, that no such letters of
exemption shall be granted except upon an application, both
written in English or Dutch and signed in European characters
by the applicant in the presence of a Resident Magistrate, a
Justice of the Peace, or other person appointed for this purpose
by the Governor, showing to the satisfaction of the Governor
that the applicant is a British subject, or a naturalised alien,
that he has resided in the Colony for three years and in the
same Borough or Ward for six months out of the seven months
preceding the date of application, and that he has not been
convicted of any treason, felony, or infamous offence, or that,
if convicted, he has received a free pardon : Provided that
such applicant shall have the qualification required by the
Charter of Natal, or by the 3rd Section of this Law, and shall,
if a Native, have been exempted from the operation of Native
Law. If any person shall in such application make any wil-
fully false statement, such person shall forfeit One Hundred
Pounds, and be for ever disqualified as an elector of Natal.
7. [This Law to be construed with the Charter of Natal.]
204 NATAL [1889
8. [To take effect from the date of promulgation of Her
Majesty’s assent.]
[Schedule.] P.R.O., C.O. 180/6.
CONSTITUTION AMENDMENT LAW, 1889.
[25 June 1889.]
No. 5, 1889.
No. 125. Law. To amend Law No. i of 1883, being the
Constitution Amendment Law, 1882.
WHEREAS it is desirable to make provision for separate
representation by Elective Members in the Legislative Council
of the Counties of Alexandra and Alfred, and in consequence
to increase the number of Elective Members :
Be it therefore enacted … as follows :
1. [Save so far as in conflict, former laws and charters
remain in force.]
2. [Electoral District of Alexandra and Alfred shall cease
to return a member.]
3. [Counties of Alexandra and Alfred to have separate
representation.]
4. [Boundaries of Alexandra and Alfred Counties.]
5. [Alexandra County to return one member.]
6. [Alfred County to return one member.]
7-8. [Present Voters’ Lists for respective counties to remain
in force till i Sept. 1889.]
9. [Previous laws and charters relating to election purposes
to apply.]
10. [After Her Majesty’s allowance shall be obtained, the
Governor shall notify a date for this law to take effect.]
P.R.O., C.O. 180/8.
RESPONSIBLE GOVERNMENT. [3 July 1893.]
No. 14, 1893.
No. 126. Law. Enacted by the GOVERNOR OF NATAL, with
the advice and consent of the LEGISLATIVE COUNCIL
thereof, to provide for the Establishment of Responsible
Government in Natal.
WHEREAS it is expedient to provide for the establishment
of Responsible Government in Natal :
Be it therefore enacted by the Governor of Natal, with
the advice and consent of the Legislative Council thereof, as
follows :
i. This Act may be cited as the ” Constitution Act of 1893.”
1893] CENTRAL GOVERNMENT 205
2. This Act shall commence and take effect at such date
as may be fixed by a Proclamation signed by the Governor
of Natal declaring that the Royal assent has been given thereto.
3. There shall be in place of the Legislative Council now
subsisting, a Legislative Council and a Legislative Assembly
as hereby constituted.
[Present Council to act until first writs for election of
Assembly are issued.]
4. [Existing Charters and Laws, as far as not repugnant to
this Law, to continue in force. 1 ]
5. It shall be lawful for Her Majesty and Her Successors,
by and with the advice and consent of the Legislative Council
and Legislative Assembly, as hereby constituted, to make
all Laws required for the peace, order and good government
of the Colony of Natal.
6. [Governor may assent, or refuse assent to Bills, or
reserve them.]
7. If at any time within two years after the Governor has
assented to any Bill in Her Majesty’s name, it shall be notified
to him through one of Her Majesty’s Principal Secretaries of
State that Her Majesty in Council has been pleased to dis-
allow the Act so assented to, the Governor shall forthwith
signify such disallowance by Message to the Legislative Council
and Legislative Assembly, or by Proclamation in the Govern-
ment Gazette, and from and after the date of such Message or
Proclamation, the said Act shall become null and void.
8. Within three months after the commencement of this
Act, and thereafter from time to time as may be necessary,
the Governor may designate such offices as he thinks fit, not
being more than six in number, to be political offices for the
purposes of this Act. Appointments to such offices shall be
made by the Governor, in the name of Her Majesty, and such
offices shall be held at Her Majesty’s pleasure, and be liable
to be vacated on political grounds.
The holders of such offices are in this Act styled Ministers,
and a Minister shall not vacate his seat in the Legislative
Council or Legislative Assembly by reason of his appointment
to or retention of any such office.
9. Every Minister shall be, or shall within four months
from the date of his appointment become, a Member of the
Legislative Council or of the Legislative Assembly, but not
more than two Ministers may be Members of the Legislative
Council.
10. Each Minister being a Member of either House shall
1 Act No. i of 1893 provided that the non-conflicting provisions of the
Natal Charter of 1856 as amended by subsequent laws were to be construed
with Law No. 14 of 1893.
206 NATAL [1893
have a right to sit and speak in both Houses, but shall vote
only in the House of which he is a Member.
11. The words ” Governor in Council ” in this Act, or any
other Act or Law appearing, shall mean the Governor acting
with the advice of the Executive Council.
12. [Session of both Houses at least once a year.]
13. [Governor to fix place and time of sessions. He may
prorogue both Houses from time to time and may dissolve the
Assembly when he thinks fit.]
14. The Legislative Council shall consist of eleven Members,
who shall be summoned in the case of the first Council by the
Governor, and thereafter from time to time by the Governor
in Council in the name of Her Majesty by instruments under
the Public Seal of the Colony.
15. No person shall be so summoned unless he shall be
of the age of 30 years or upwards, nor unless he shall have
resided in the Colony for 10 years, nor unless he shall be
the registered proprietor of immovable property within the
Colony of the value of Five Hundred Pounds in nett value
after deduction of the amount of all registered mortgages.
16. [Members of Council to sit for 10 years : but five
members of the first Council, to be decided on by lot, shall
retire after the first 5 years.]
17. [Members vacating their seats by lapse of time may
again be summoned.]
18. [Members of the Council may vacate their seats by
resignation.]
19. Members of the Legislative Council shall be summoned
from the following Districts, that is to say : Five from within
the Counties of Durban, Victoria, Alexandra, and Alfred ;
three from within the Counties of Pietermaritzburg and
Umvoti, and three from within the Counties of Weenen and
Klip River : Provided that not more than two Members shall
be chosen from within any one County.
20. [The Governor may appoint one Member to be Presi-
dent of the Council and may remove the President.]
21. [Quorum of the Council to be five.]
22. The Legislative Assembly shall consist of thirty-seven
Members, who shall be chosen by the Electors of the following
Electoral Districts :
Pietermaritzburg City . . . . 4
Pietermaritzburg County
Umgeni Division . . . .2
Lion’s River Division . . .2
Ixopo Division . . . .2
Durban Borough * . . . .4
Durban County . . . .3
1893] CENTRAL GOVERNMENT 207
Victoria County . . : V .4
Umvoti County . .-‘. . . .3
Weenen County , “, . .3
Klip River County
Klip River Division . . .3
Newcastle Division . . .3
Alexandra County . . . .2
Alfred County . . . .2
23. [Governor to issue writs for the election of Members of
the Assembly, such members to possess the same qualifications
as Members of the present Council.]
24. [Application of existing Laws for purposes of Election.]
25. Every Legislative Assembly shall continue for four
years from the day of the return of the writs for the election
of the same, and no longer : Subject, nevertheless, to be sooner
prorogued or dissolved by the Governor.
26. [Governor may transmit Bills to the Legislature.]
27. [Members’ oath of allegiance.]
28. [Legislative Assembly to elect a Speaker.]
29. [Speaker to preside.]
30. [Quorum of Assembly to be twelve.]
31. [All questions to be decided by majority of votes.]
32-
33-
34-
“Acts of a Member which may cause him to forfeit his seat.]
Contract with Government causes a member to retire.]
Vacancies to be filled forthwith.]
35. [Member of Assembly may resign his seat.]
36. [Writs for filling vacancies in Assembly to be issued by
the Speaker.]
37. [Writs during recess.]
38. [Members declared disqualified shall not sit, on penalty
of forfeiting 100.]
39. [Each house to adopt rules and orders for itself.]
40. [Salaries of officers of the Legislature.]
41. The Law No. I of 1870 l shall henceforth be construed
as if the word ” Assembly ” appears therein whenever the
word ” Council ” is used, except in the enacting clause. [Docu-
ments to be laid before the Houses.]
42. [Privileges of Members not to exceed those of Members
of the House of Commons.]
43. The commissions of the present Judges of the Supreme
Court, and Native High Court, and of all future Judges thereof
shall be, continue and remain in full force during their good
behaviour.
44. It shall be lawful, nevertheless, for Her Majesty to
remove any such Judge, upon the Address of both Houses of
the Legislature of the Colony.
1 Entitled, ” For the support of the office of Speaker . . .”
208 NATAL [1893
45. [Salaries of Judges.]
46. All taxes, imports, rates, and duties, and all territorial,
casual, and other revenues of the Crown (including royalties)
from whatever source arising within the Colony, over which
the Legislature has power of appropriation, shall form one
Consolidated Revenue Fund to be appropriated to the Public
Service of the Colony in the manner and subject to the charges
hereinafter mentioned.
47. The Consolidated Revenue Fund shall be permanently
charged with all the costs, charges, and expenses incident to
the collection, management, and receipt thereof; such cost,
charges, and expenses being subject nevertheless to be re-
viewed and audited in such manner as may from time to
time be directed by any Act of the Legislature.
48. All Bills for appropriating any part of the Consolidated
Revenue Fund or for imposing, altering, or repealing any rate,
tax, duty, or impost, shall originate in the Legislative Assembly.
49. The Legislative Council may either accept or reject
any money Bills passed by the Legislative Assembly, but
may not alter it.
50. It shall not be lawful for the Legislative Assembly to
adopt or pass any vote, resolution, or Bill for the appropriation
of any part of the Consolidated Revenue Fund, or of any rate,
tax, duty or impost to any purpose which has not been first
recommended to the said Assembly by Message of the Governor
during the Session in which such vote, resolution, or Bill is
proposed.
51. No part of the Consolidated Revenue Fund shall be
issued except in pursuance of warrants under the hand of the
Governor directed to the Treasurer.
52. There shall be payable to Her Majesty, in every year,
out of the Consolidated Revenue Fund, sums not exceeding
in the whole 21,700 sterling (Twenty-one Thousand Seven
Hundred Pounds), for defraying the expenses of the services
and purposes set forth in Schedules l A and B to this Act,
and the said several sums shall be issued by the Treasurer in
discharge of such warrants as shall from time to time be
directed to him under the hand of the Governor.
53. [Appointment to public offices to be by Governor in
Council.]
54. [Removal of Civil Servants to be by Governor in
Council.]
55. [Pensions to be granted to present official Members of
Council if they retire on political grounds. But such members
accepting any other appointment under the Crown shall forfeit
such pension in whole or in part.] P.R.O., C.O. 180/9.
1 Schedules not printed in this volume.
1893] CENTRAL GOVERNMENT 209
OFFICE OF GOVERNOR CONSTITUTED. [20 July 1893.]
No. 127. Letters Patent passed under the Great Seal of the
United Kingdom.
VICTORIA, by the Grace of God of the United King-
dom of Great Britain and Ireland, Queen, De-
fender of the Faith, Empress of India : To all
to whom these Presents shall come, Greeting:
WHEREAS by Our Letters Patent under the Great Seal of
Our United Kingdom of Great Britain and Ireland bearing date
the Fifteenth day of July 1856, We did erect the District of
Natal into a separate Colony to be called the Colony of Natal :
And Whereas by the said Letters Patent and by certain
other several Letters Patent under the said Great Seal bearing
date respectively the Twenty-second day of December 1869,
the Twenty-second day of May 1872, and the Twenty-seventh
day of October 1890, We did make provision for the Govern-
ment of Our said Colony :
And Whereas an alteration in the Constitution of Our said
Colony has been effected by a law of the Colony styled the
” Constitution Act of 1893 ” :
Now We do by these presents revoke Our said recited
Letters Patent, but without prejudice to anything lawfully
done thereunder, reserving nevertheless to Ourselves, Our
heirs and successors, full power to disallow any Law passed
by the Legislature of Our said Colony, and to signify such
disallowance through one of Our Principal Secretaries of State
at any time within two years after an authentic copy of such
laws shall have been received by Us or by one of Our Principal
Secretaries of State. And We do further hereby declare Our
will and pleasure as follows :
II. There shall be a Governor and Commander-in-Chief
in and over Our Colony of Natal (hereinafter called the Colony),
and appointments to the said office shall be made by Com-
mission under Our Sign Manual and Signet.
III. We do hereby authorise, empower, and command Our
said Governor and Commander-in-Chief (hereinafter called the
Governor) to do and execute all things that belong to his said
office, and to exercise the powers and authorities vested in him
by the said Constitution Act of 1893, or by any other Act
adding to, amending, or substituted for the same, and by
these Our Letters Patent, or by any other Our Letters Patent
adding to, amending, or substituted for the same, and by such
Commission as may be issued to him under Our Sign Manual
and Signet; and according to such Instructions as may from
time to time be given to him under Our Sign Manual and
14
210 NATAL [1893
Signet, or by Our Order in Our Privy Council, or by Us through
one of Our Principal Secretaries of State, and to such Laws
as are now or shall hereafter be in force in the Colony.
IV. Every person appointed to fill the office of Governor
shall, with all due solemnity, before entering on any of the
duties of his office, cause the Commission appointing him to be
Governor to be read and published at the seat of Government,
in the presence of the Chief Justice or some other Judge of the
Supreme Court of the Colony and of the Members of the
Executive Council thereof ; which being done, he shall then
and there take before them the Oath of Allegiance in the form
provided by an Act passed in the Session holden in the Thirty-
first and Thirty-second years of Our Reign, intituled ” An Act
to amend the Law relating to Promissory Oaths ” ; and like-
wise the usual Oath for the due execution of the office of
Governor, and for the due and impartial administration of
justice ; which Oaths the said Chief Justice or Judge is hereby
required to administer.
V. The Governor shall keep and use the Public Seal of the
Colony for sealing all things whatsoever that shall pass the
Public Seal.
VI. There shall be an Executive Council for the Colony,
and the said Council shall consist of such persons as may at
any time be Members thereof in accordance with any Law of
the Colony, and of such other persons as the Governor shall,
from time to time, in Our name and on Our behalf, but subject
to any Law, as aforesaid, appoint under the Public Seal of
the Colony to be Members of Our said Executive Council.
VII. The Governor, in Our name and on Our behalf, may
make and execute under the said Public Seal, grants and dis-
positions of lands within the Colony, subject to the Laws in
force for the time being for regulating the sale or disposal of
Crown lands.
VIII. The Governor may constitute and appoint, in Our
name and on Our behalf, all such Judges, Commissioners,
Justices of the Peace, and other necessary Officers and Ministers
in the Colony, as may be lawfully constituted or appointed by
Us.
IX. When any crime has been committed within the Colony,
or for which the offender may be tried therein, the Governor
may, as he shall see occasion, in Our name and on Our behalf,
grant a pardon to any accomplice in such crime who shall give
such information as shall lead to the conviction of the principal
offender, or of any one of such offenders, if more than one ;
and further, may grant to any offender convicted in any Court,
or before any Judge or other Magistrate within the Colony,
a pardon either free or subject to lawful conditions, or any
1893] CENTRAL GOVERNMENT
remission of the sentence passed on such offender, or any respite
of the execution of such sentence for such period as the Gover-
nor thinks fit, and further may remit any fines, penalties, or
forfeitures due or accrued to Us. Provided always that the
Governor shall in no case, except where the offence has been
of a political nature, unaccompanied by any other grave crime,
make it a condition of any pardon or remission of sentence that
the offender shall absent himself or be removed from the
Colony.
X. The Governor may, so far as We Ourselves lawfully
may, upon sufficient cause to him appearing, remove from his
office, or suspend from the exercise of the same, any person
holding any office or place within the Colony under or by virtue
of any Commission or Warrant or other instrument granted,
or which may be granted by Us or in Our name or under Our
authority.
XI. The Governor may exercise all powers lawfully belong-
ing to Us in respect of the summoning, proroguing, or dissolv-
ing any Legislative Body, which now is or hereafter may be
established within the Colony, and in respect of the appoint-
ment of members thereto.
XII. [If the office of Governor becomes vacant the duties
shall be carried out by a Lieutenant-Governor or other officer
appointed by the Crown.]
XIII. [If the Governor is absent from the Colony for
any period not exceeding one month, he shall none the less
continue to fill the office of Governor.]
XIV. [During such temporary absence the Governor may
appoint a Deputy to act for him.]
XV. [All officers, ministers, and other inhabitants shall
be aiding and assisting the Governor.]
XVI. [The term ” Governor ” shall include every person
for the time being administering the government of the
Colony.]
XVII. [Power is reserved to revoke, alter, and amend these
Letters Patent.]
XVIII. And We do direct and enjoin that these Our Letters
Patent shall be read and proclaimed at such place or places
within the Colony as the Governor shall think fit.
In witness whereof We have caused these Our Letters to
be made Patent. Witness Ourself at Westminster, the
Twentieth day of July, in the Fifty-seventh year of Our Reign.
By Warrant under the Queen’s Sign Manual.
MUIR MACKENZIE.
Statutes of Natal, ” Parliament,” p. 33.
212 NATAL [1893
GOVERNOR’S INSTRUCTIONS.
No. 128. To Our Governor and Commander-in-Chief in and
over Our Colony of Natal, or to Our Lieutenant-Governor
or other Officer for the time being administering the
Government of Our said Colony.
Given at Our Court at St. James’s, this Twentieth day
of July 1893, in the Fifty-seventh year of Our Reign.
WHEREAS by certain Letters Patent bearing even date
herewith We have constituted, ordered, and declared that
there shall be a Governor and Commander-in-Chief (therein
and hereinafter called the Governor) in and over Our Colony
of Natal (therein and hereinafter called the Colony) :
And Whereas We have thereby authorised, empowered,
and commanded the Governor to do and execute all things
that belong to his said office, and to exercise the powers and
authorities vested in him by a Law of the Colony styled the
“Constitution Act, 1893,” or by any other Act adding to, amend-
ing, or substituted for the same, and by Our said Letters
Patent, or by any other Our Letters Patent adding to, amend-
ing, or substituted for the same, and by such commission as
may be issued to him under Our Sign Manual and Signet,
and according to such instructions as may from time to time
be given to him under Our Sign Manual and Signet, or by Our
Order in Our Privy Council, or by Us through one of Our
Principal Secretaries of State, and to such Laws as are now
or shall hereafter be in force in the Colony ‘
And Whereas We did issue certain Instructions under
Our Sign Manual and Signet, bearing date the Sixteenth day
of February 1882, and certain Additional Instructions bearing
date respectively the Sixth day of June 1885 and the Sixth
day of December 1889 ; Now know you that We do hereby
revoke the aforesaid Instructions and Additional Instructions
and We do by these Our Instructions under Our Sign Manual
and Signet direct and enjoin and declare Our Will and Pleasure
as follows :
I. In these Our Instructions, unless inconsistent with the
context, the term ” Governor ” shall include every person for
the time being administering the Government of the Colony.
II. The Governor may, whenever he thinks fit, require
any person in the public service to take the Oath of Allegiance,
together with such other Oath or Oaths as may from time to
tune be prescribed by any Law in force in the Colony. The
Governor is to administer such Oaths or cause them to be
administered by some Public Officer of the Colony.
III. The Governor shall forthwith communicate these Our
Instructions to the Executive Council, and likewise all such
1893] CENTRAL GOVERNMENT 213
others, from time to time, as he shall find convenient for Our
service to impart to them.
IV. The Executive Council shall not proceed to the despatch
of business unless duly summoned by authority of the Governor,
nor unless two Members at least (exclusive of himself or of
the Member presiding) be present and assisting throughout
the whole of the meetings at which any such business shall be
despatched.
V. The Governor shall attend and preside at the meetings
of the Executive Council, unless prevented by some necessary
or reasonable cause, and in his absence such Member as may
be appointed by him in that behalf, or in the absence of such
Member the senior Member of the Executive Council actually
present shall preside ; the seniority of the Members of the said
Council being regulated according to the order of their respec-
tive appointments as Members thereof.
VI. Before exercising the powers of Supreme Chief, other
than those by Law vested in the Governor in Council, the
Governor shall acquaint his Ministers with the action which he
proposes to take, and so far as may be possible shall arrange
with them as to the course of action to be taken. The ultimate
decision must, however, in every case rest with the Governor.
VII. In the execution of all other powers and authorities
vested in him the Governor shall be guided by the advice of
the Executive Council, but if in any case he shall see sufficient
cause to dissent from the opinion of the said Council, he may
act in the exercise of his said powers and authorities in
opposition to the opinion of the Council, reporting the matter
to Us without delay, with the reasons for his so acting.
In any such case it shall be competent to any Member of
the said Council to require that there be recorded upon the
Minutes of the Council the grounds of any advice or opinion
that he may give upon the question.
VIII. The Governor shall not, except in the cases here-
under mentioned, assent in Our name to any Bill of any of the
following classes :
1. Any Bill for the divorce of persons joined together in
holy matrimony.
2. Any Bill whereby any grant of land or money, or other
donation or gratuity, may be made to himself.
3. Any Bill affecting the currency of the Colony.
4. Any Bill imposing differential duties.
5. Any Bill the provisions of which shall appear incon-
sistent with obligations imposed upon Us by Treaty.
6. Any Bill interfering with the discipline or control of
Our forces in the Colony by land or sea.
7. Any Bill of an extraordinary nature and importance,
214 NATAL [1893
whereby Our prerogative, or the rights and property of Our
subjects not residing in the Colony, or the trade and shipping
of the United Kingdom and its dependencies may be prejudiced.
8. Any Bill whereby persons not of European birth or
descent may be subjected or made liable to any disabilities or
restrictions to which persons of European birth or descent are
not also subjected or made liable.
9. Any Bill containing provisions to which Our assent has
been once refused, or which have been disallowed by Us ;
Unless he shall have previously obtained Our Instructions
upon such Bill through one of Our Principal Secretaries of
State, or unless such Bill shall contain a clause suspending the
operation of such Bill until the signification in the Colony of
Our pleasure thereupon, or unless the Governor shall have
satisfied himself that an urgent necessity exists requiring that
such Bill be brought into immediate operation, in which case
he is authorised to assent in Our name to such Bill, unless
the same shall be repugnant to the law of England, or incon-
sistent with any obligations imposed upon Us by Treaty.
But he is to transmit to Us by the earliest opportunity the
Bill so assented to, together with his reasons for assenting
thereto.
IX. Whenever any offender shall have been condemned
to suffer death by the sentence of any Court, the Governor
shall consult the Executive Council upon the case of such
offender, submitting to the Council any report that may have
been made by the Judge who tried the case ; and, whenever
it appears advisable to do so, taking measures to invite the
attendance of such Judge at the Council. The Governor
shall not pardon or reprieve any such offender unless it shall
appear to him expedient so to do, upon receiving the advice
of the Executive Council thereon ; but in all such cases he is
to decide either to extend or to withhold a pardon or reprieve,
according to his own deliberate judgment, whether the
Members of the Executive Council concur therein or other-
wise ; entering nevertheless on the Minutes of the Executive
Council, a Minute of his reasons at length in case he should
decide any such question in opposition to the judgment of the
majority of the Members thereof.
X. All commissions granted by the Governor to any
persons to be Judges, Justices of the Peace, or other officers
shall, unless otherwise provided by Law, be granted during
pleasure only.
XI. The Governor, except in the execution of any Letters
Patent or of any Commission under Our Sign Manual and
Signet, shall not upon any pretence whatever quit the Colony
without having first obtained leave from Us for so doing under
1896] CENTRAL GOVERNMENT 215
Our Sign Manual and Signet, or through one of Our Principal
Secretaries of State, unless for the purpose of visiting the
Governor of Our Colony of the Cape of Good Hope, or of
visiting some neighbouring State for periods not exceeding
one month at any one time, nor exceeding in the aggregate one
month for every year’s service in the Colony.
Statutes of Natal, ” Parliament,” p. 36.
FRANCHISE AMENDMENT ACT, 1896. [23 May 1896.]
No. 8, 1896.
No. 129. Act. To amend the Law relating to the Franchise.
WHEREAS it is expedient to amend the Law relating to
the Franchise :
Be It Therefore Enacted by the Queen’s Most Excellent
Majesty, by and with the advice and consent of the Legislative
Council and Legislative Assembly of Natal, as follows :
1. Act No. 25, 1894, shall be and the same is hereby re-
pealed.
2. Save those who come under the operation of Section 3
of this Act, no persons shall be qualified to have their names
inserted in any List of Electors, or in any Voters’ Roll, or
to vote as Electors within the meaning of Section 22 of the
Constitution Act of 1893, or of any Law relating to the election
of members of the Legislative Assembly, who (not being of
European origin) are Natives or descendants in the male line
of Natives of countries which have not hitherto possessed
elective representative institutions founded on the Parlia-
mentary Franchise, unless they shall first obtain an order from
the Governor in Council exempting them from the operation
of this Act.
3. The provisions of Section 2 of this Act shall not apply
to persons of the class mentioned in that section whose names
are rightly contained in any Voters’ Roll in force at the date of
the promulgation of this Act, and who are otherwise com-
petent and qualified as electors.
Statutes of Natal, ” Parliament,” p. 43.
No. 130. ANNEXATION OF ZULULAND. [29 Dec. 1897.]
[Cetewayo, King of the Zulus, who succeeded Panda in 1872,
kept a powerful army which was regarded as threatening to the safety
of Natal. The Governor’s demands for redress for certain acts of
provocation were not complied with, and war broke out in 1879. Soon
the greater part of Zululand became British territory, and by an arrange-
ment made in 1887 it was administered by the Governor of Natal with
216 NATAL [1897
the assistance of six magistrates in various districts supported by strong
bodies of police. This statute provided for its incorporation with the
Colony.]
ACT No. 37, 1897.
” To provide for the Annexation to the Colony of Natal of
the Territory of Zululand.”
BE IT ENACTED by the Queen’s Most Excellent Majesty,
by and with the advice and consent of the Legislative Council
and Legislative Assembly of Natal, as follows :
1. This Act may be known as ” The Zululand Annexation
Act, 1897.”
2. This Act shall not take effect unless and until the
Governor shall notify by Proclamation that it is Her Majesty’s
pleasure not to disallow the same, and thereafter it shall come
into operation upon such day as the Governor shall notify by
the same or any other Proclamation.
3. From and after the taking effect of this Act, the Territory
of Zululand shall become annexed to and shall thenceforth be
a portion of the Colony of Natal, and shall be known as the
Province of Zululand.
4. Laws for the peace, order, and good government of the
Province of Zululand may be made by Her Majesty with the
advice and consent of the Parliament of Natal, as provided
in the Constitution Act of 1893 of the Colony of Natal : Pro-
vided that save so far as is otherwise provided by this Act,
and until other and further provision shall have been made
by Parliament, the laws in force in the Territory of Zululand
immediately before the taking effect of this Act shall apply
to and be in force in the Province of Zululand.
5. All persons living in Zululand who, if in the Colony of
Natal, would enjoy franchise rights, are hereby declared to be
entitled thereto, but the exercise of such rights shall be post-
poned until the necessary provision shall have been made in
that behalf by Parliament : Provided that a Bill for such
purpose shall be submitted by the Governor to Parliament at
its next ordinary Session.
6. The Governor in Council shall have full power and
authority by Proclamation to apply to the Province of Zulu-
land any of the laws of Natal relative to :
Police,
Gaols,
Customs and Excise,
Audit,
The Post and Telegraph Service,
The Registry of Deeds,
and to repeal any existing law of Zululand relative thereto.
7. The Governor in Council may from time to time, until
1906] CENTRAL GOVERNMENT 217
the 30th June 1898, by Proclamation, make any alteration
in or addition to the Laws of Zululand, not being inconsistent
with the tenor of this Act.
8. [The Governor in Council may reconstitute the public
departments of Zululand. Pensions and rights of officers of
Zululand Government secured.]
9. [How public officers may be referred to.]
10. The powers and authority of the Crown Prosecutor of
Zululand shall be exercised subject to the authority of the
Attorney-General of Natal.
11. The Supreme Court of Natal shall not exercise juris-
diction within the Province of Zululand, or over the Courts
thereof, otherwise than in accordance with any Act or Acts
that may hereafter be passed. 1
12. [Compensation for loss of office in Zululand.]
13. All obligations, undertakings, and liabilities of the
Government of Zululand subsisting at the date when this
Act shall come into force, shall thenceforth be transferred
to, become binding upon, and be discharged by, the Govern-
ment of Natal.
14. [Engagements with Native Chiefs to be observed.]
15. [Restrictions on the sale of intoxicating liquors.]
16. [Salaries of officials in Zululand and other expenses
to be paid out of the Consolidated Revenue Fund of Natal.]
17. [Income and re venue to be payable to Natal Government.]
18. [Restrictions on alienation of Crown Lands.]
19. [Rights of certain persons practising in Natal secured.]
20. [No charge to be made for passes of natives moving
from Zululand to Natal, and vice versa.]
21. [Lands set apart for missionary, religious, or educational
purposes.]
22. [Governor’s salary raised from 4000 to 5000.]
23. [Pension to Sir Marshall Clarke in respect of services
in Zululand.] Statutes of Natal, ” Zululand,” p. 2.
No. 131. Act. To amend the Law relating to the Franchise.
[12 July 1906.]
No. 14, 1906.
[By Act No. i, 1903, certain territories forming part of the Transvaal
were annexed to Natal, viz. : The District of Vrijheid, the District of
Utrecht, and a portion of the District of Wakkerstroom. These were
called the -‘ Northern Districts ” of Natal.]
BE IT ENACTED by the King’s Most Excellent Majesty,
by and with the advice and consent of the Legislative Council
and Legislative Assembly of Natal, as follows :
1 Act No. 46 of 1898 extended the Supreme Court’s jurisdiction to Zululand,
218 NATAL [1847
1. Any person who at the date of the annexation of the
territories known as the Northern Districts of Natal, was
enrolled upon the latest list of burghers of the late South
African Republic, and entitled to vote for members of the
First Volksraad thereof, and who continues to reside in any
part of the Northern Districts, and who would otherwise be
disqualified as an elector under the Charter of Natal on the
sole ground of his not possessing the qualifications required
by the nth clause of the said Charter or by any Law or Act
amending the same, shall be entitled to be registered as a voter
in the electoral district of the Northern Territories in which
he resides at the time when the Voters Roll for such District
shall be prepared, notwithstanding that such person may
not possess the qualifications necessary to entitle him to be
registered as a voter in terms of the law.
If any such person shall hereafter become registered as a
voter in virtue of the nth clause of the said Charter, or of any
amendments thereof, the special franchise conferred upon
him by this Act shall cease.
2. This Act shall be construed together with the Royal
Letters Patent of I5th July 1856, known as the Charter of
Natal.
Acts of the Parl. of the Colony of Natal (1906), p. 50.
SECTION B.
LOCAL GOVERNMENT.
CREATION OF MUNICIPAL BOARDS. [30 March 1847.]
No. 5, 1847.
No. 132. Ordinance. Enacted by His Excellency the Right
Hon’ble the GOVERNOR OF THE CAPE OF GOOD HOPE,
with the advice and consent of the LEGISLATIVE COUNCIL,
for the creation of Municipal Boards in the Towns and
Villages of the District of Natal. 1
1-9. [Meetings of householders may be held to elect a
Committee which shall draw up municipal regulations for any
locality.]
10. [How to proceed in regard to regulations approved of
by such meeting.]
11. [How to proceed in case the Lieutenant-Governor of
1 This Ordinance may be compared with the Municipal Ordinance passed
for the Cape Colony in 1836 (p. 78). Both instruments were enacted by the
same body, hence their close similarity. Cf. No. 163.
1847] LOCAL GOVERNMENT 219
Natal shall disallow any regulations or in case householders
shall not adopt regulations amended by such Lieutenant-
Go vernor.]
12. [Mode in which regulations may be amended.]
13. [Meeting to choose Commissioners of a municipality,
how to be called.]
14. And be it enacted, that any person being the proprietor
of landed property situated within the municipality, of the
value of not less than 200, shall be eligible to be elected a
commissioner for the purposes of this ordinance.
15. [Commissioners, how to be put in nomination.]
16. [They hold office for three years, but may be re-elected.]
17-19. [Subsequent elections.]
20. [Meetings of Commissioners, when to be held.]
21. [Special meetings.]
22-25. [Appointment of treasurer and other officers.]
26. [Commissioners to have no salary or reward.]
27. [Commissioners, how to sue and be sued.]
28. [Proceedings of Commissioners to be entered in a book.]
29. [Books of accounts to be kept.]
30. [Accounts to be made up till 3ist December in every
year and to be open for public inspection.]
31. [Commissioners to call meetings for assessing rates.]
32-34. [Rates, how to be collected.]
35. [Commissioners to appoint watchmen, etc.]
36. [Watchmen, etc. to be vested with all powers and
privileges of constables.]
37-44. [Commissioners to provide fire-engines, lamp-posts,
water-pipes ; erect bridges ; repair streets ; establish markets ;
regulate pasture-lands ; assize weights and measures ; etc.]
45-
46.
47-
48.
[Penalty for wilfully injuring municipal property.]
[Commissioners to abate nuisances.]
They may enter into contracts.]
They may purchase and hire property.]
49. [Property vested in the municipality.]
50. [Property vested in Commissioners.]
51. [Offences against this Ordinance to be prosecuted in a
resident magistrate’s court.]
52. And be it enacted, that every person who is the occupier
of any house, warehouse, counting-house, shop, or office, either
as proprietor or renter, of the yearly value or rent of not less
than five pounds sterling, shall be, and be deemed and taken
to be, a resident householder within the meaning of this
ordinance, and that at the several meetings of such resident
householders as aforesaid, hereinbefore appointed and author-
220 NATAL [1854
ised to be holden, every such resident householder who shall
be personally present, shall have and be entitled to one vote
and no more ; provided always, that no female shall be
deemed to be a resident householder within the meaning of
this Ordinance, or be competent to vote at any meeting, or to
be elected to any office, and if any question shall arise at any
meeting as to the qualification of any individual to be deemed
such resident householder as aforesaid, the chairman of such
meeting shall inquire into, and summarily determine the
same, and his decision shall, for the purpose of such meeting,
but no further, be final and conclusive.
53. [Joint occupiers entitled to be considered resident
householders.]
54. [Chairman at a meeting of householders to be elected
by them.]
55. [Ordinance not to impair private rights.]
56. [Expenses of this Ordinance to be paid out of money
raised by Commissioners under its provisions.]
57. [Interpretation Clause.]
58. And be it enacted, that this Ordinance shall commence
and take effect from and after such date as shall be ap-
pointed for the commencement thereof, by any Proclamation
to be by the Lieutenant-Governor aforesaid for that purpose
issued, and posted upon, or affixed to, some public place in
Pietermaritzburg.
GOD SAVE THE QCTEEN.
P.R.O., C.O. 50/2.
MUNICIPAL CORPORATIONS. [21 April 1854.]
No. i, 1854.
No. 133. Ordinance. For establishing Municipal Corporations
within the District of Natal.
WHEREAS an Ordinance, No. 5, 1847, was passed by the
Governor of the Cape of Good Hope, with the advice and con-
sent of the Legislative Council thereof, entituled ” An Ordi-
nance for the creation of Municipal Boards in the Towns and
Villages of the District of Natal ” : And whereas great doubts
have arisen as to the legal validity of the said Ordinance, and
whereas it is necessary to remove such doubts, and at the same
time to provide for the better regulation of the Towns and
Villages of the District.
Be It Therefore Enacted by the Lieutenant-Governor of
Natal, with the advice and consent of the Legislative Council
thereof, as follows :
1854] LOCAL GOVERNMENT 221
I. REPEAL OF FORMER LAWS.
1. The said Ordinance No. 5, 1847, sna ^ be, and the same is
hereby repealed, provided that all acts and deeds lawfully
done under and by virtue of the said Ordinance shall be, and
the same are hereby confirmed.
II. CREATION AND CONSTITUTION OF MUNICIPAL
CORPORATIONS.
2. Every Township within the District, having a population
of 1000 souls, shall be a Borough within the meaning of this
Ordinance, and shall be governed by a Council to be elected
in manner hereinafter mentioned.
3. In every Borough there shall be a body corporate,
which shall take and bear the name of Mayor, Councillors,
and Burgesses of such Borough, and by that name shall have
perpetual succession, and shall have a common Seal, and shall
by the Council thereof do all acts, and have and enjoy all the
rights and privileges which bodies corporate as such may do
and have, according to the law of the Kingdom of England.
4. The Council shall consist of a Mayor and seven Coun-
cillors.
5. Whenever the population of any township shall amount
to 1000 souls as aforesaid, the Lieutenant-Governor shall by
proclamation declare the same to be a Borough within the
meaning of this Ordinance, and define the boundaries thereof,
and shall, immediately after the first election .of the Council
of the said Borough, by grant under his hand and the Public
Seal, grant and convey, to the body corporate thereof, such
lands, situate within and near the town, as to him shall seem
just and proper.
III. DIVISION OF BOROUGHS INTO WARDS.
6. Every Borough shall be divided into four wards.
7. Before the first election of a Mayor or Councillors for
any Borough, under this Ordinance, the Lieutenant-Governor
shall, by Proclamation, divide the said Borough into wards,
and declare the names and boundaries thereof.
8. After the first election as aforesaid, the Council shall
from time to time, if they shall think fit, alter the names and
boundaries of such wards.
9. Two Councillors shall be elected for each ward, in manner
hereinafter mentioned.
10. Provided that the Lieutenant-Governor may, if the
increase of population of any Borough shall render such arrange-
ment necessary, by Proclamation declare that the number of
wards of such Borough shall be six instead of four, and the
222 NATAL [1854
Council shall consist of a Mayor and eleven Councillors, instead
of a Mayor and seven Councillors, but so that two Councillors
shall still be elected for each ward.
IV. QUALIFICATION OF ELECTORS.
11. Every male inhabitant of a Borough, except as here-
inafter excepted, of the age of 21 years, being duly enrolled
in manner hereinafter mentioned, who possesses any immove-
able property of the value of 25, or who shall have rented
for a continuous period of six months prior to the first day of
June, in this and every year, any such property of the yearly
value of 5 within any ward, shall be qualified to vote at the
election of Councillors for such ward.
12. [Joint occupiers of property entitled to vote.]
13. The following persons shall not be qualified to vote
at any such elections :
1. Aliens who have not been naturalized by Act of
the Imperial Parliament, or by deed of Burgher-
ship.
2. [Persons convicted of an infamous crime.]
V. MODE OF ENROLMENT.
14. [Resident magistrate to make out a Burgess Roll of
men entitled to vote in each ward of a Borough.]
15. [Burgess Roll to be made annually.]
16. [Publication of Burgess Roll and objections to the
same.]
17. [Correction of the Roll by a resident magistrate.]
18. [Roll to be used for one year.]
19. [Copy of Roll procurable.]
VI. QUALIFICATION OF COUNCILLORS.
20. No person shall be qualified to be elected a councillor
for any Borough who is not enrolled, or entitled to be enrolled,
as Burgess of the Borough under this Ordinance, and who is not
possessed in his own right, or right of his wife, of immoveable
property within the Borough, of the value of 100, over and
above all mortgages affecting the same.
21.
22.
23-
Candidates to be invited by requisition of voters.]
“No voter to sign more than one requisition.]
Names of candidates and persons signing requisition
to be published.]
VII. MANNER OF POLLING. l
24-41. [Time and manner of voting, appointment of
scrutineers, publication of election results, etc.]
1 Voting by ballot was arranged for by Act No. 13 of 1893.
1854] LOCAL GOVERNMENT 223
VIII. CORPORATE OFFICERS.
42. On the Saturday following the day of every general
election in every year, the Councillors shall elect from among
themselves, by a majority of votes, the Mayor of the Borough,
who shall hold office until the election of his successor.
43. [Mayor to be ex ojficio Justice of the Peace.]
44-46. [Vacancy in mayoralty, how to be filled.]
47. [Members of Legislative Council, office-holders of
government, and members of army and navy to be exempt
from serving as Councillors.]
48. [Office of Mayor, how forfeited.]
49. [Councillors not to enter into contracts.]
IX. POWERS OF THE COUNCIL.
50. The Council shall have power and authority to do the
following acts : [To make roads, streets, bridges, and water-
works ; prevent destruction by fire ; abate nuisances ; estab-
lish markets ; assize weights and measures ; regulate slaughter-
houses ; register carts and wagons ; make rules for the use of
common pasture lands, and establish and regulate pounds.]
51. [Council to frame bye-laws.]
52. [Council to raise funds for public works by sale or
mortgage of land.]
53. [Council may lease corporation lands for periods not
exceeding fifty years.]
54. [Similarly council may lease mines.]
55. [Lands not to be sub-let.]
X. MEETINGS OF COUNCIL.
56. [Majority of council to decide questions.]
57. [Ordinary meetings to be held once a month.]
58. [Special meeting may be called for a specified object.]
59. [Meetings to be open to the public.]
60. [Mayor, if present, to preside. In his absence, council
to elect a chairman.]
61.
62.
63-
Terson presiding to have a casting vote.]
^Minutes to be kept.]
^Minutes to be open to inspection.]
XI. APPOINTMENT OF COMMITTEES AND PUBLIC OFFICERS.
64. [Council may appoint committees out of their own
number for special purposes.]
65. [Council to appoint Town Clerk, Treasurer, etc. and fix
their salaries.]
66. One-half ofkhe cost of maintaining the Police Force for
the Borough shall be paid out of the funds belonging thereto,
224 NATAL [1861
and the other half of such cost shall be paid out of the Public
Treasury of the District.
67. [For this purpose the Council shall receive the amounts
arising from certain licenses.]
68. The said Police Force shall be under the control and
management of a Board, to be called the Borough Police
Board, which shall consist of the Resident Magistrate, the
Mayor, and one of the Councillors, elected by the Council.
69. The said Board shall, with the consent of the Lieutenant-
Governor, have power to appoint and remove constables, and
to make regulations touching their number, pay, allowances,
and duties ; and such constables shall have all such powers,
and be subject to all such liabilities as Constables may by law
have or be liable to, and shall obey all lawful directions touch-
ing the execution of their office, which they may from time to
time receive from the Resident Magistrate, or other Magis-
trates, or Justices of the Peace having jurisdiction within the
Borough.
XII. REGULATIONS REGARDING ASSESSMENTS, TOLLS, AND
DUES. [70-84.]
XIII. RIGHTS RESERVED BY THE GOVERNMENT WITHIN
THE BOROUGH.
85. [Wharves, arsenals, and other public buildings to be
considered as not forming part of any Borough.]
XIV. MISCELLANEOUS PROVISIONS.
86. [Manner of publishing notices, accounts, etc.]
87. [Penalties to be recovered before resident magistrates.]
88. [No person to be deemed an incompetent witness by
reason of his being liable to contribute to any Borough rate.]
89. [Council liable to be proceeded against.]
90. [Ordinance to take effect from the date of publication.]
[Schedules.] P.R.O., C.O. 180/1.
MUNICIPAL CORPORATIONS. [16 Aug. 1861.]
No. 21, 1861.
No. 134. Law. For improving and consolidating the Laws in
regard to Municipal Corporations. 1
[Ordinance No. i, 1854, is repealed, but substantially re-enacted by
this law, except that provision is made for the payment of mayors, the
property and occupancy qualification of electors is doubled, the property
qualification of councillors is trebled, and Councils are authorised to
1 Cf . also Law No. 19, 1872, ” To repeal and re-enact with amendments
the Laws in regard to Municipal Corporations,” not printed in full in this
volume.
I86i] LOCAL GOVERNMENT 225
issue trade licenses and employ the fees paid for the use of their re-
spective boroughs. Novel principles are contained in the following
sections :]
77. The Mayor shall hold a Court in every borough, which
Court shall be a Court of Record, and shall be designated the
” Borough Court.” Provided always, that the Mayor shall
not hold such Court until the Lieutenant-Governor shall, by
proclamation, declare that the power of holding such Court
may be applied to any borough now existing, or hereafter to
be created ; and provided, that no such proclamation shall be
issued, unless on application of the Council, founded on resolu-
tion carried by three-fourths of a full Council.
78. [In absence of mayor, Council to elect a Councillor to
hold the Borough Court.]
79. The Mayor and the said Borough Court shall, within the
limits of the borough, have all the powers, authorities, and
jurisdiction, civil and criminal, as are, by any Law or Ordinance
now in force, vested in, or possessed by any Resident Magis-
trate, or in or by the Court of such Resident Magistrate, as the
case may be : Provided that the said Mayor shall have no
power, authority, or jurisdiction in respect of any Laws in regard
to the sale, purchase, dealing, or possession of fire-arms, gun-
powder, or other munitions of war ; and provided, that the
Mayor of Durban shall not be competent to exercise the juris-
diction conferred on the Resident Magistrate of Durban by
Ordinance No. 8, 1852, entitled, ” Ordinance to extend the
jurisdiction of the Resident Magistrate of the Division or County
of Durban in Civil Cases.”
80. All Laws or Ordinances now in force, or hereafter to be
in force, except as aforesaid, and all rules now applicable to the
Resident Magistrate, or to the Courts of the Resident Magis-
trate, shall be applicable within every borough, to the Mayor,
or to the Borough Court hereby established.
81. The officers of the said Borough Court shall be appointed
by the Mayor and a majority of the Councillors of every
borough, and shall be paid out of the funds of every such
borough.
82. [The fees and charges taken shall be paid into the
Borough Funds.]
83. On the proclamation of any Borough Court under this
Law, the Resident Magistrate and the Resident Magistrate’s
Court shall cease to exercise any power, authority, or juris-
diction within the borough, in respect of any cause or action
arising within the limits of the borough.
84. [Jurisdiction of Resident Magistrate of Durban under
previous ordinances not repealed by this Law.]
85. Nothing in this Law contained shall be construed to
226 NATAL [1872
prevent the Resident Magistrate from holding the Court of
the Resident Magistrate, and from exercising the powers by
law vested in him as such Resident Magistrate for the County
or Division, in the borough town, or at any other place within
the borough.
86. [Borough Court to have no jurisdiction over the county
gaol.]
87. Every borough may establish, erect, construct, and
maintain a lock-up house, for the temporary detention of
persons arrested, and may appoint such officers as to the
Mayor and a majority of the Council of such borough, may
appear fit and necessary for the proper management and
government thereof.
P.R.O., C.O. 180/2.
MUNICIPAL CORPORATIONS.
No. 19, 1872.
No. 135. Law to repeal and re-enact with Amendments the
Laws in regard to Municipal Corporations. [20 Dec. 1872.]
[The provisions relating to the Borough Courts mentioned in Law
No. 21, 1 86 1, are omitted ; but the following clause is of special in-
terest :]
74. The Council may make such bye-laws as they shall
deem meet for the ordering of their proceedings, not being
inconsistent with the provisions of this Law, for conducting
the elections of Mayor, Councillors, and Auditors, in any cases
which may not be sufficiently provided for by this Law, and
for determining the duties of any officers, servants, and others
appointed by the Council ; and all such bye-laws as to them
shall seem meet for the more effectual exercise of the powers,
permissions, regulations, and authorities hereby given, and
for the good rule and government of the borough, and from
time to time may alter, amend, vary, or annul such bye-laws ;
and may make such regulations, and determine such punish-
ments and fines as they may consider requisite for the preven-
tion and suppression of offences, and for the better enforce-
ment of the said several bye-laws, and for the recovery of the
costs of prosecution in cases of contravention of bye-laws ;
and may give power to the police or other proper officers
summarily to arrest persons contravening such bye-laws, or
the provisions of the Vagrancy Law, No. 15, 1869, where
applicable to boroughs, and lodge them in the station-house of
the borough until they can be brought up for trial, and may
give power to the officer in charge of such station-house to take
bail in certain cases for the appearance of such persons, and
for the summary trial and conviction of offenders : Provided,
1845] COURTS OF JUSTICE 227
that no such punishment shall exceed imprisonment with or
without hard labour, and with or without spare diet, for a
period of three months, of a fine of Ten pounds sterling, or
imprisonment as aforesaid, in default of payment of any
such fine and costs : Provided, that the bye-laws in force at
the time of the passing of this Law shall, until repealed by the
Council, be and continue in force as bye-laws under this Law :
And provided always, that the superintendent of police of any
borough, or other person appointed by the Council, shall and
may at his own instance, and without obtaining permission
or certificate from the Attorney-General, prosecute in the
Resident Magistrate’s Court in the borough, for all contraven-
tions of such bye-laws and of the said Law, No. 15, 1869,
and of the Law or Ordinances in clause seventy-one mentioned,
provided such contraventions be committed in the borough.
* * *
Ordinances, . . . of Natal, ii. 941.
SECTION C.
ADMINISTRATION OF JUSTICE.
ESTABLISHMENT OF THE ROMAN-DUTCH LAW.
No. 12, 1845.
No. 136. Ordinance. Enacted by His Excellency the GOVER-
NOR OF THE CAPE OF GOOD HOPE, with the advice and
consent of the LEGISLATIVE COUNCIL thereof, for estab-
lishing the Roman-Dutch Law in and for the District
of Natal. [27 Aug. 1845.]
WHEREAS it has pleased Her Majesty the Queen, by certain
Letters Patent, bearing date 3ist day of May, in the Seventh
Year of Her Reign, to annex to this Settlement of the Cape
of Good Hope, as a part or portion thereof, the District of
Natal in South Africa : And whereas by the said Letters Patent,
it is amongst other things provided, that no law, custom, or
usage in force within this Settlement should, by virtue merely
of the said Letters Patent, extend to, or become in force, within
the said District of Natal ; but that it should be competent
for the Legislature of this Settlement, subject to the limitations,
conditions, and provisions in the said Letters Patent mentioned
or referred to, to make, ordain, and establish all such Laws and
Ordinances as to them should seem meet for the peace, order,
and good government of the said District of Natal. . . .
228 NATAL [1845
And whereas it is expedient, without awaiting the legislative
establishment within the said District, of the Court or Courts
for the administration of Justice, which is, or are, now about
to be created, to make provision for the establishment of such
Laws as are immediately and indispensably required for the
preservation, in the meantime, of peace and good order, and
the repression of violence, injury, and injustice amongst all
Persons resident in the said District : Be it therefore enacted
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council thereof, that the system,
code, or body of law commonly called the Roman-Dutch
Law, as the same has been and is accepted, and administered
by the legal tribunals of the Colony of the Cape of Good Hope,
shall be, and the same is hereby, established as the law, for
the time being, of the District of Natal, (as the said District
shall, from time to time, be limited and defined by or on behalf
of Her Majesty the Queen,) and of Her Majesty’s Subjects,
and all others residing and being within the said District :
Provided, however, that nothing herein contained shall be
deemed, or taken, to establish within the said District, any
Law or Ordinance heretofore at any time made or passed in
this Colony, by or through the Local Government or Legis-
lature thereof, or to give any existing Court or Magistrate of
the said Colony, any authority or jurisdiction over or in regard
to the said District, or to prevent the said system, code, or body
of law from being hereafter added to, or altered, in regard to
the said District, by any competent authority.
And be it enacted, that it shall and may be lawful for the
Governor aforesaid to address to any one or more of Her
Majesty’s Subjects residing within the said District one or more
commission or commissions, authorizing him or them to
exercise within such District the office of a Magistrate, for the
purpose of preventing the perpetration therein of any crimes
and offences punishable by law, and for the purpose of arrest-
ing and committing to custody for trial before the certain
court or courts now about to be established within the said
District, any person or persons charged, on sufficient evidence,
with the commission of any crimes or offences within the said
District, which shall have been committed after the date of
the publication of this Ordinance in the Government Gazette,
as hereinafter mentioned : Provided always that every such
commission shall be revocable at pleasure ; and provided also,
that any person committed for trial by any such Magistrate
who shall not be brought to trial within six months from the
date of his commitment, shall, at the expiration of such term
of six months, be discharged from custody, upon entering
into his own recognizance, conditioned in such sum as shall
1845] COURTS OF JUSTICE 229
appear just and reasonable, to appear before any such court
or courts as aforesaid, when duly summoned so to do, there to
answer to any such charge as may be preferred against him.
And be it enacted, that this Ordinance shall commence and
take effect from and after the date of the promulgation thereof,
by publication thereof in the Government Gazette.
GOD SAVE THE QUEEN.
Given at the Cape of Good Hope this Twenty-seventh day
of August 1845.
By Command of His Excellency the Governor,
(Signed) JOHN MONTAGU,
Secretary to Government.
By Order of the Legislative Council,
(Signed) K. B. HAMILTON,
Clerk of the Legislative Council.
P.R.O., C.O. 50/2.
DISTRICT COURT. [16 Oct. 1845.]
No. 14, 1845.!
No. 137. Ordinance. For erecting a District Court in and for
the District of Natal.
WHEREAS in order to the due administration of justice in
the district of Natal, it is expedient that a district court of
justice should be therein erected ; Be it therefore enacted by
the Governor of the Cape of Good Hope with the advice and
consent of the Legislative Council thereof, that there shall be
erected, created and constituted, within the said district of
Natal, a certain court to be called and known as ” the District
Court of Natal.”
2. [To be a court of record.]
3. And be it enacted, that the said court shall consist of,
and be holden by and before, one judge, to be called and
known by the style and title of the Recorder 2 of the District
of Natal, and which said recorder shall, from time to time,
be nominated and appointed by Her Majesty the Queen, her
heirs and successors, in such manner and form as her said
Majesty shall deem most fitting, and which said recorder shall
be a barrister in England or Ireland, or an advocate of the
court of session in Scotland or … of the supreme court of
the colony of the Cape of Good Hope.
4. [Until such Recorder appointed by the Queen shall
arrive in Natal, the Governor shall nominate some fit person
to act as Recorder.]
1 Repealed by Law No. 10 of 1857, below.
2 By Ord. No. 18 of 1856 he was to be designated Attorney-General.
230 NATAL [1845
5. [Recorder to take oaths taken by the chief justice of
the Cape.]
16. [Lieutenant-Governor of Natal may appoint temporarily
to the office if it should fall vacant.]
7. [Recorder to hold his office during good behaviour.
Upon proof of misconduct the Lieutenant-Governor of Natal
may, with the advice of his executive council, suspend the
Recorder ; but report of such suspension is to be made forth-
with to the Governor of the Cape for transmission to Her
Majesty.]
8. [Full power is reserved to Her Majesty to confirm or
disallow such suspension ; as well as full power, upon sufficient
proof of misconduct, to remove the Recorder.]
9. [Rank and precedence of Recorder.]
10. [District Court to have a seal.]
11. [Seal to be kept by Recorder.]
12-13. [Salary of Recorder.]
14. [Officers corresponding to sheriff, registrar and master
of Cape Supreme Court, to be appointed by the Queen. Other
officers to be appointed by the Lieutenant-Governor of Natal.
All officers to hold office during the Queen’s pleasure.]
I 5~ I 9- [Admission of advocates and attorneys.]
20. [District Court to have the same jurisdiction as the
Cape Supreme Court.]
21. [District Court to judge according to laws now in force
in Natal or hereafter to be made for Natal by Parliament, by
the Privy Council or by the Legislative Council of the Cape.]
22. [Proceedings to be in open court and in the English
language. In criminal cases witnesses shall deliver their
evidence viva voce and in open court.]
23. [Criminal cases to be tried before the Recorder and
a jury of nine. No juror to be disqualified merely by reason
of his ignorance of the English language.]
24. [The chief seat of the District Court is to be Pieter-
maritzburg.]
25-26. [Recorder shall hold his court at least twice a
year in such other divisions as the Lieutenant-Governor shall
proclaim.]
27. [No sentence of the District Court involving death,
transportation or banishment shall be carried out until
approved of by the Lieutenant-Governor.]
28. And be it enacted, that it shall and may be lawful for
the district court aforesaid, in any criminal case pending in
or before the said court, after a verdict of guilty shall have
been recorded, to abstain, should the said court see cause,
from then passing sentence upon the person convicted, and to
order and direct that such case be removed from the said
1846] COURTS OF JUSTICE 231
district court to the supreme court of the Colony of the Cape
of Good Hope, for the decision, or determination, of any points
or questions of law arising in such case ; and upon such re-
moval being certified, . . . the said last-mentioned court shall
proceed to adjudge, decide or determine the said points or
questions, and shall then remit the case with its judgment,
decision or determination to the said circuit [district ?] court,
which said court shall conform to, and give effect to, the same ;
[provided that it shall not be necessary for the person con-
victed to be present in the supreme court ; meantime the
district court shall commit to prison the person convicted or
release him on bail].
29. [Rules of court to be framed by the District Court.]
30. [In all civil suits appeals may be made to the Supreme
Court of the Cape.]
3 I ~33- [Regulation of such appeals.]
34. [A case coming before the Supreme Court or the
District Court may be removed by the court concerned to the
other court.]
35. [The District Court shall see to the execution of judg-
ments, decrees, etc. pronounced by the Supreme Court and
Circuit Courts.]
36. [Certified records of cases to be supplied by one court
to the others if required.]
37. [Lieutenant-Governor of Natal to notify where and when
the District Court shall be held.]
38. [Interpretation of terms.]
39. [Ordinance to take effect from date of promulgation.]
P.R.O., C.O. 52/11 (C. of G. Hope Govt. Gaz.,
17 Oct. 1845).
FIELD-CORNETS AND CONSTABLES. [7 Jan. 1846.]
No. 5, 1846.
No. 138. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the LEGIS-
LATIVE COUNCIL thereof, for creating Field-Cornets and
Constables in and for the District of Natal.
WHEREAS it is expedient that the Lieutenant-Governor of
the district of Natal should be authorised and empowered to
appoint field-cornets and constables to act in the said district :
Be it, therefore, enacted, by the Governor of the Cape of Good
Hope, with the advice and consent of the Legislative Council
thereof, that the said Lieutenant-Governor shall have, possess
and exercise, in regard to the district of Natal, all and singular
the like powers and authorities for appointing field-cornets
and policemen, and for fixing the limits of field-cornetcies,
232 NATAL [1846
and of the bailiwicks of constables and policemen, as the
Governor aforesaid has and possesses in regard to those parts
of this colony other than the said district ; And every field-
cornet, constable and policeman so appointed as aforesaid
shall be, within his ward or bailiwick, as the case may be, an
officer of the law proper for the execution of criminal warrants,
within the meaning of Ordinance No. 18, 1845, and shall, more-
over, have and enjoy the powers and authorities, and perform
the same or similar duties as those by law belonging to field-
cornets, constables and policemen respectively, in those parts
of this colony other than the district aforesaid.
2. And be it enacted, that it shall and may be lawful for
the Lieutenant-Governor aforesaid, by any writing under his
hand, to authorise any magistrate, justice of the peace or
other person within the district of Natal, to appoint constables
and policemen respectively, in such numbers and under such
conditions and regulations as the said Lieutenant-Governor
shall, from time to time, fix and prescribe, and every con-
stable or policeman so appointed shall have and possess the
same powers and authorities as a constable or policeman
appointed directly by the said Lieutenant-Governor.
3. And be it enacted, that this Ordinance shall commence
and take effect from and after such date as shall be fixed and
appointed for the commencement thereof, by any proclama-
tion to be by the Lieutenant-Governor of the said district for
that purpose issued and posted upon, or affixed to, any public
place in Pietermauritzburg, in the said district.
GOD SAVE THE QUEEN.
P.R.O., C.O. 50/2.
JUSTICES OF THE PEACE. [7 Jan. 1846.]
No. 6, 1846.
No. 139. Ordinance. Enacted by His Excellency the
GOVERNOR OF THE CAPE OF GOOD HOPE, with the advice
and consent of the LEGISLATIVE COUNCIL thereof, for
creating Justices of the Peace within the District of Natal.
WHEREAS it is expedient that Justices of the Peace should
be appointed for the district of Natal, having the like powers
and authorities as Justices of the Peace in other parts of this
Colony : Be it therefore enacted by the Governor of the Cape
of Good Hope, with the advice and consent of the Legislative
Council thereof, that it shall and may be lawful for the
Lieutenant-Governor of the district of Natal to appoint, by
commissions under his hand and seal, Justices of the Peace
for the said district, and to assign to every such Justice of the
1846] COURTS OF JUSTICE 233
Peace as the bounds or limits within which he shall be em-
powered to act, either the whole of the said district, or such
a portion or division of the same as he, the said Lieutenant-
Governor, shall deem fitting and shall define.
2. [Justices to take oaths of allegiance and office.]
3. And be it enacted, that all and singular the clauses and
provisions contained in the 2nd and remaining sections of the
Ordinance No. 32, of 1827, entituled ” Ordinance for creating
Justices of the Peace in this Colony,” shall, except as herein-
after in this section excepted, be deemed and taken to apply
to the jurisdiction, powers, rights, and privileges of Justices of
the Peace appointed under and by virtue of this Ordinance,
and that as fully as if the said sections were herein again set
forth, and word for word repeated. Provided, however, that
when the clerk of the peace is mentioned and referred to in
the 3rd section of the said Ordinance, the Crown Prosecutor
of Natal shall be deemed and taken to be meant and intended.
4. [Justices to act as magistrates in criminal cases.]
5. [Ordinance to take effect from such date as shall be
fixed by the Lieutenant-Governor by Proclamation.]
P.R.O., C.O. 50/2.
RESIDENT MAGISTRATES. [24 April 1846.]
No. 16, 1846.
No. 140. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL, for creating Resident Magistrates
within the District of Natal.
WHEREAS it is expedient to provide for the more effectual
administration of justice within the district of Natal, and for
that purpose to create and establish certain inferior courts
within the same : Be it, therefore, enacted by the Governor
of the Colony of the Cape of Good Hope, with the advice and
consent of the Legislative Council thereof, that it shall and
may be lawful for the Lieutenant-Governor of the district of
Natal, from time to time, as occasion may require, to appoint
one magistrate, who shall be called ” The Resident Magistrate,”
for each and every division into which the said district of
Natal shall be divided, for the purposes of this Ordinance as
hereinafter mentioned.
2-3. [Declaration of divisions. Magistrates to take an
oath.]
4. And be it enacted, that every such Resident Magistrate
shall have juiisdiclion in all civil cases within the division
for which he shall have been appointed, wherein the sum or
234 NATAL [1846
matter in dispute shall not exceed the amount or value of 15,
and wherein the title to any lands or tenements, or any fee,
duty, or office, is not in question, or whereby rights in future
cannot be bound.
5. And be it enacted, that the said Resident Magistrate
shall have jurisdiction without appeal, in all cases of crimes
and offences wherein any person may be accused of any crime
or offence not punishable by death, banishment, or transporta-
tion : Provided, always, that it shall not be lawful for any
Resident Magistrate to punish any offender in any higher or
more severe manner than by fine not exceeding 10, and
imprisonment, with or without hard labour, for a period not
exceeding three months, and by whipping privately in prison
not exceeding 25 lashes ; except as to such crimes or offences
for the commission of which any higher or more severe punish-
ment, whether by fine or imprisonment, or both, shall be
provided, and in which jurisdiction shall be expressly given
by any special law or ordinance.
6. And be it enacted, that such Resident Magistrates shall
have jurisdiction in all cases of fines or penalties not exceeding
40, which have been, or shall be, imposed on persons for
offences by any ordinance which at any time hereafter shall
be in force in the said district of Natal, for the recovery of
which no provision repugnant to, or inconsistent with, the
provisions contained in this and the three next succeeding
sections of this Ordinance shall be expressly made in such
law or ordinance. . . .
7-9. [Proceedings in event of non-payment of fines.]
10. [Magistrates under this Ordinance to be Magistrates
within the meaning of Ordinance 18, 1845.]
11. [In what divisions offences may be tried.]
12. [Offences upon persons or property in or upon vehicles
or vessels, triable in any division through which they may
have passed.]
13. [Courts to be held on two days a week, or oftener.]
14. [To be courts of record.]
15. And be it enacted, that it shall and may be lawful for
any party conceiving himself aggrieved by any judgment or
decision of any Resident Magistrate, (save and except such
judgments or decisions as may have been made under and by
virtue of the 5th section of this Ordinance,) to appeal against
such judgment or decision to the district court of Natal ; or
otherwise, to bring the same under the review of the said
court.
16. [Public prosecutions to be conducted by the Crown
Prosecutor or other person appointed for that purpose.]
17. [Private parties may conduct their own cases.]
1849] COURTS OF JUSTICE 235
18. [But the Crown Prosecutor may take up, stay, and con-
duct further proceedings if necessary.]
19. [Magistrate may stop further proceedings in important
cases and refer them to the district court.]
20. [All sentences, documents, etc. to be in English.
Evidence to be viva voce, and in open court.]
21. [Lieutenant-Governor of Natal may separate civil
from criminal jurisdictions, and make other arrangements in
that respect.]
22. [Lieutenant-Governor, with the advice of the recorder
of Natal, may frame rules for courts.]
23. [Explanation of terms.]
24. [Ordinance to commence on proclamation by Lieutenant-
Governor.]
P.R.O., C.O. 50/2.
ADMINISTRATION OF JUSTICE AMONG NATIVES.
No. 3, 1849. (Signed) M. WEST. [23 June 1849.]
No. 141. Ordinance. 1 For repealing so much of Ordinance
No. 12, 1845, as is inconsistent with a Proclamation
issued by the Lieutenant-Governor of the District of
Natal, on the 2ist day of June 1849, and with the pro-
visions of this Ordinance ; and for providing for the better
Administration of Justice among the Natives.
WHEREAS, on the 2ist day of June 1849, the Lieutenant-
Governor issued the following Proclamation, to wit :
PROCLAMATION.
Whereas Her Most Gracious Majesty the Queen was
pleased by Instructions addressed to the Officer for the time
being administering the Government of the District of Natal,
dated at Buckingham Palace, on the Eighth day of March,
Eighteen Hundred and Forty-eight, under the Royal Sign
Manual and Signet, and with the advice of the Privy Council,
amongst other things to direct :
” Twenty-Eighth. And whereas the said District of Natal
is inhabited by numerous Tribes, Natives of the said District,
or of the Countries thereunto adjacent, whose ignorance and
habits unfit them for the duties of civilized life, and it is
necessary to place them under special control, until having
been duly capacitated to understand such duties, they may
reasonably be required to render ready obedience to the Laws
in force in the said District ; We do hereby declare it to be
Our Will and Pleasure, that you make known by Proclamation
1 Repealed by Law No. 26, 1875 (p. 247).
236 NATAL [1849
to Our loving Subjects, and all other persons residing in the
said District, that in assuming the Sovereignty thereof, We
have not interfered with or abrogated, any Law, Custom, or
Usage prevailing among the Inhabitants previously to the
assertion of Sovereignty over the said District, except so far
as the same may be repugnant to the general principles of
humanity recognized throughout the whole Civilized World,
and that We have not interfered with, or abrogated the power
which the Laws, Customs, and Usages of the Inhabitants vested
in the said Chiefs, or in any other persons in authority among
them, but that in all transactions between themselves, and in
all Crimes committed by any of them, against the Persons
or Property of any of them, the said Natives are (subject to
the Conditions already stated) to administer justice towards
each other as they had been used to do in former times.
Provided nevertheless, and We do hereby reserve to Our-
selves full power and authority as We from time to time shall
see occasion, to amend the Laws of the said Natives, and to
provide for the better administration of Justice among them,
as may be found practicable.”
Now, Therefore, I, the Lieutenant-Governor, administering
the Government of the District of Natal, do hereby so proclaim
Her Majesty’s royal will and pleasure accordingly.
GOD SAVE THE QUEEN.
Given under my hand, and the Public Seal of the District,
at Pietermaritzburg, this Twenty-first day of June 1849.
(Signed) M. WEST.
By Command of His Honour the Lieutenant-Governor,
(Signed) D. MOODIE, Secretary to Government.
And whereas, in order to give effect to Her Majesty’s
said instruction, it is necessary that the Ordinance No. 12,
1845, entitled . . . and all other laws and ordinances, in so
far as the same are at variance with, or repugnant to, Her
Majesty’s said instruction, should be repealed :
And whereas justice has been hitherto administered among
the said natives, with advantage to themselves, and to the
public peace and tranquillity of the District, by the chiefs, and
others in authority among them under the special controul,
direction, and revision, however, of an Officer hitherto de-
nominated the Diplomatic Agent, acting under the authority
and instructions of the Lieutenant-Governor, whom the several
native chiefs and tribes have hitherto regarded as their Supreme
Chief, and to whom they have voluntarily yielded the same
respect and obedience which they have been accustomed to
yield to Supreme Chiefs of their own race ; and it is expedient,
in pursuance of the power reserved by Her Majesty, to amend
1849] COURTS OF JUSTICE 237
the native laws, and provide for the better administration of
justice among them, that this salutary controul should be
continued :
1. Be it therefore enacted, that from and after the date
of the promulgation of this Ordinance, the said Ordinance,
No. 12, 1845, and all other laws and ordinances, in so far only
as the same are at variance with, or repugnant to, Her Majesty’s
said instruction, and to any of the provisions of this Ordinance,
shall be, and the same are hereby, repealed accordingly.
2. And be it enacted, that it shall and may be lawful
for the Lieutenant-Governor to appoint any fit and proper
person or persons, with authority to controul, revise, and direct
the administration of justice, according to the native law
throughout this District, or in such parts of the same as to him
may seem fit ; Provided, however, that all such fines and
forfeitures as, according to native law or usage, would accrue
to the Supreme Chief, or to such person or persons as afore-
said, shall be paid into the treasury of the District.
3. And be it enacted that there shall be an appeal to the
Lieutenant-Governor, acting with the advice of the Executive
Council of this District, for the time being, in all cases whatso-
ever, between natives, and which have been tried according
to native law, and that the decision of the said Lieutenant-
Governor, so acting as aforesaid, shall be final.
4. And be it enacted, that the Lieutenant-Governor of this
District shall hold and enjoy, over all the chiefs and natives
in this District, all the power and authority which, according
to the laws, customs, and usages of the natives, are held and
enjoyed by any supreme or paramount native chief, with
full power to appoint and remove the subordinate chiefs, or
other authorities among them.
5. And be it enacted, that all crimes heretofore com-
mitted, or which may hereafter be committed, by any of the
said natives, against the persons or property of any of them,
as well as all transactions between themselves, shall be cogniz-
able according to the native law, under the provisions of this
Ordinance, and not otherwise ; and that all acts, matters, and
things, and all decisions or judgments, heretofore done or
performed, or pronounced or executed, by any of the said chiefs,
or other persons in authority among them, or by any officer
acting under the authority of the British Government, in
pursuance of native law, usage, or custom, shall be, and the
same are hereby, ratified and confirmed subject only to the
revision, and final decision, of the Lieutenant-Governor, so
acting in appeal as aforesaid.
6. And be it enacted, that all officers, chiefs, and persons
as aforesaid, who shall so have acted as last aforesaid, prior
238 NATAL [1852
to the passing of this Ordinance, shall be, and they are hereby,
jointly and severally, indemnified, freed, and discharged,
from and against all actions, suits, prosecutions, and penalties
whatsoever, under the Colonial or Roman-Dutch Law, for or
on account, or in respect, of all or any acts, matters, and things
whatsoever, done, ordered, directed, or authorized by them, so
acting in pursuance of native law, custom, or usage.
7. And be it enacted, that all crimes, which may be deemed
repugnant to the general principles of humanity, recognized
throughout the whole civilized world, which have heretofore
been, or may hereafter be, committed by any of the said
natives, against the persons or property of any of them, shall
be only subject to prosecution in the Colonial Courts, at the
instance of the Crown Prosecutor, and not otherwise.
8. And be it enacted, that this Ordinance shall take effect
from and after the date of the promulgation thereof.
P.R.O., C.O. 180/1, and Ords., Prods., etc.,
of Natal, 1836 to 1855, p. 279.
TRIAL BY JURY. CONSTITUTION AND FORMATION
OF JURIES. [18 May 1852.]
No. 6, 1852.
No. 142. Ordinance. To amend and consolidate the Law
relative to the constitution and formation of Juries.
WHEREAS for the better and more effective administra-
tion of Justice within the District, it is expedient to amend
and consolidate the law relating to the constitution of Juries :
Be it therefore enacted by the Lieutenant-Governor of Natal,
with the advice and consent of the Legislative Council thereof,
as follows :
I. CONSTITUTION OF JURIES.
1. Every man, except as hereinafter excepted, between the
ages of 21 and 60 years, who shall possess any immovable
property of the value of 50,* or who shall rent any such pro-
perty of the yearly value of 10 l within the District, or who
shall be the son of such person, shall be qualified and liable to
serve as a juror therein.
2. The following persons shall be exempt from serving as
jurors :
ist. Members of the Executive and Legislative
Councils.
2nd. Persons holding office in the civil service of the
Government of the District.
1 These sums were changed to ^100 and ^24 respectively by Law No. 10,
1871, not printed.
1852] COURTS OF JUSTICE 239
3rd. The Officers of any Courts of Law ; all Advo-
cates and Attorneys of the same ; and all
Gaolers and Keepers of Houses of Correction.
4th. Clergymen, Priests, and Ministers of Religion.
5th. Physicians, Surgeons, and Apothecaries in actual
practice.
6th. Officers of Her Majesty’s Army and Navy on full
pay.
7th. Masters of Vessels actually employed, and
licensed Pilots.
3. No man who has been convicted of treason or any other
infamous crime, unless he shall have received a free pardon,
shall be qualified to serve on any jury.
II. FORMATION OF JURY LIST.
4-8. [How a jury list is to be framed for each division or
county.]
III. MODE OF SUMMONING JURIES.
9-15. [Sheriff or his deputy shall summon 27 jurors at
least 8 days before the court commences to sit.]
16. [Every man failing, without reasonable excuse, to
attend, is liable to a fine of 10.]
IV. FORMATION OF JURIES.
17-22. [Necessary number of jurors to be chosen by lot.]
V. THE CHALLENGING OF JURORS.
23. All challenges must be made as the name of each juror
is called and before he is sworn.
24. In criminal cases the prosecutor or the prisoner may
challenge three jurors without assigning any cause, and may
challenge any number of jurors for any of the following causes,
upon proof thereof to the satisfaction of the Court that is
to say :
ist. Want of qualification.
2nd. Consanguinity or affinity within the fourth
degree.
3rd. Favour to the prisoner or to the person entitled
to prosecute, if the Public Prosecutor does
not prosecute.
25. In civil l cases no peremptory challenge shall be allowed,
but either of the parties, or his advocate, may challenge any
number of jurors for any of the following causes, upon proof
thereof as aforesaid that is to say :
ist. For either of the two first causes mentioned in
the 24th section of this Ordinance.
1 See the next document.
240 NATAL [1852
2nd. For having directly or indirectly an interest in
the result of the case.
3rd. For being related by consanguinity or affinity,
within the fourth degree, to any person who
has an interest in the result of the case.
4th. For having previously expressed an opinion as
to the merits of the case.
26. In case there shall be reason to believe that any person,
not liable to challenge for any of the foregoing causes, is never-
theless for any reason likely to be biassed in favour of either of
the parties to the case, the Court shall, upon the motion of
either party, or his advocate, cause the names of three perscns
to be drawn from the names remaining in the ballot-box, who
shall be called triers, and shall try the impartiality of the juror
objected to, without appeal.
27. Provided that such triers shall be liable to challenge
in the same manner as jurors.
VI. MISCELLANEOUS PROVISIONS.
28. [After being charged with a case, jury to be kept
apart.]
29. [If they cannot reach a decision, the court to charge a
new jury.]
30. [Formulae for delivering verdict in criminal and civil
cases.]
31. In criminal cases the jury may acquit the prisoner of
part of the charge against him, and find him guilty of the
remainder.
32. In all cases the jury may return a special verdict, find-
ing the facts of the case and referring the law to the Court.
VII. PROVISIONAL JURY LIST.
33. [List for criminal cases to serve temporarily also for
civil cases.]
VIII. REPEAL OF FORMER LAWS.
34. The Ordinance No. 17, 1845, entituled, ” An Ordinance
for determining the Qualification of Jurors in the District of
Natal ” ; and so much of the Ordinance No. 32, 1846, en-
tituled ” An Ordinance for amending the Law regarding certain
Rules of Court,” as relates to Juries, shall be, and the same
are hereby repealed.
35. [Ordinance to take effect from the date of promulgation.]^
P.R.O., C.O. 180/1.
1852] COURTS OF JUSTICE 241
TRIAL BY JURY IN CIVIL CASES. [18 May 1852.]
No. 7, 1852. x
No. 143. Ordinance. To introduce the institution of Trial by
Jury in Civil Cases.
WHEREAS it is necessary to introduce Trial by Jury in
Civil Cases under certain circumstances :
Be it therefore enacted by the Lien tenant-Governor of
Natal, with the advice and consent of the Legislative Council
thereof, as follows :
1. Whenever an issue of fact, except in the cases here-
inafter mentioned, shall have been joined in the District
Court or any Circuit Court, or in the Court of the Resident
Magistrate of Durban, in any civil action or cause, wherein
the sum or matter of dispute shall exceed the amount or value
of 15, the same may, upon the application of either of the
parties, his attorney or advocate in such case, be tried by a
jury in manner hereinafter mentioned.
2. No trial by jury shall be had in the following cases :
ist. Where the Plaintiff claims a provisional judgment
in virtue of any written acknowledgment of a
debt, signed by the Defendant or on his behalf.
2nd. Where a matter of record, as a judgment, or the
like, is pleaded in any Action, and the opposite
pleads that there is no such record existing.
3. Such application shall be made in writing to the Registrar
or Clerk of the Court as the case may be, seven clear days before
the day appointed for the hearing of the cause.
4. Every party making such application as aforesaid shall
at the same time pay to the Registrar or Clerk of the Court
the sum of Thirty Shillings for payment of the jury, and such
sum shall be costs in the cause.
5. [Notice of application to be given to the opposite party.]
6. [Court to be assured of such notice having been given.]
7. The jury in civil cases shall consist of seven men, whose
verdict shall be unanimous.
8. The Court shall set aside the verdict or decision of the
jury and grant a new trial upon any of the following grounds :
ist. Where the jury or any of them have received a
bribe.
2nd. Where the jury or any of them have conversed
otherwise than openly in the presence of the
Court, with any party to the cause, or the
agent, attorney, or advocate of such party,
on the subject of the trial, after having been
sworn.
1 Compare with the Cape Jury Act of 1854 (p. 122).
16
242 NATAL [1857
3rd. Where the verdict was manifestly against the
evidence, the law, or the legal instructions of
the Court.
4th. Where the Court has misdirected the jury upon
any point of law or fact ; provided objection
shall have been taken to the direction of the
Court, as to any specific point or points,
during the trial.
5th. Where the debt or damages found by the jury
are greatly too much or too little when com-
pared with the evidence.
6th. Where either of the parties has been taken by
surprise at the trial by the production of
evidence which he had no reason whatever to
anticipate.
9. The Court shall in all cases refuse to grant a new trial
except in cases in which it shall be fully satisfied that sub-
stantial justice has not been done.
10. [A party wishing to apply for a new trial shall give
notice.]
11. [Application to be made in open court.]
12. [New trial may be granted on terms imposed by court.]
13. [Court to prevent any party from addressing the jury
on points not relevant or that cannot be proved by evidence.]
14. [Jurors to receive 2s. a day for serving.]
15. All matters relating to trial by jury of civil cases not
herein expressly provided for shall be determined as nearly as
practicable according to the law and usage of England.
16. [Governor may extend provisions hereof to any court
in Natal.]
17. [Ordinance to take effect from date of promulgation.]
P.R.O., C.O. 180/1.
SUPREME AND CIRCUIT COURTS. [10 July 1857.]
No. 10, 1857.
No. 144. Law. Enacted by the Lieutenant-Go vernor of Natal,
with the advice and consent of the Legislative Council
thereof, for the better Administration of Justice within
the Colony of Natal.
WHEREAS it is expedient to make provision for the better
and more effectual administration of justice within this Colony,
and for that purpose to repeal certain laws now in force ; and
to constitute a Supreme Court of Justice, and also Circuit
Courts, to be holden in manner and form hereinafter mentioned.
Be it therefore enacted, by the Governor of Natal, by and
1857] COURTS OF JUSTICE 243
with the advice of the Legislative Council thereof, as follows,
viz. :
1. The Ordinance No. 14, 1845, entituled, ” An Ordinance
for erecting a District Court in and for the District of Natal,”
shall be, and the same is hereby, repealed.
2. [Former sentences, rules, etc. not affected.]
3. [Actions, etc. pending may be proceeded with.]
4. There shall be within this Colony a Court which shall be
called ” the Supreme Court of the Colony of Natal.”
5. The said Supreme Court shall be a Court of Record.
6. The said Supreme Court shall consist of one Chief Justice
and two Puisne Judges.
7. The said Supreme Court shall at all times be holden at
Pietermaritzburg, in the Colony of Natal.
8. The said Chief Justice and Puisne Judges shall be re-
spectively barristers in England or Ireland, or advocates of
the Court of Session in Scotland, or of the Supreme Court
of the Cape Colony, or advocates of the District Court hereto-
fore existing, or of the Supreme Court hereby created.
9. [Provisional appointment of Judges by Governor.]
10. The said Chief Justice and Puisne Judges shall respec-
tively hold office during good behaviour.
U-I2. [Salaries of Judges.]
13-14. [Court to have a seal to be kept by Chief Justice.]
15. [Officers of the Court ; Registrar and Master.]
16-19. [Wh to be admitted as advocates and attorneys.]
CIRCUIT COURTS.
20. To facilitate the holding of courts the Governor may,
by proclamation, divide the Colony into as many districts as to
him may seem fit ; and further may, from time to time, as
occasion may require, alter or amend such division.
21. Courts, to be called Circuit Courts, shall be held in
each of the districts into which the said Colony may be so
divided.
22. Each of the said Circuit Courts shall be held by and
before one of the Judges of the said Supreme Court, at such
times, and at such places, within each of the said districts, as
the Governor shall, from time to time, direct and appoint.
23. Each of the said Circuit Courts shall be a Court of
Record.
24. [Clerk of Resident Magistrate to act as Registrar of
visiting Circuit Court.]
JURISDICTION.
25. The Supreme Court of the Colony of Natal shall have
cognizance of all pleas, and jurisdiction in all causes, whether
244 NATAL [1857
civil, criminal, or mixed, arising within the said Colony, with
jurisdiction over all Her Majesty’s subjects, and all other
persons whomsoever, residing and being within the said
Colony, in as full and ample a manner, and to all intents and
purposes, as the District Court of Natal, at present existing
within the Colony, now hath.
26. Each Circuit Court shall, within the District in which
it may be holden, have and exercise all such and the same
jurisdiction, powers, and authorities, as is hereinbefore vested
in the said Supreme Court.
27. The said Supreme Court and every Circuit Court
within the district in which such latter Court may be holden,
shall have full power, authority, and jurisdiction, to review
the proceedings of all inferior Courts of Justice, and to exercise
full supervision and control over all Magistrates, and, if
necessary, to set aside or correct their proceedings.
LAWS.
28. The Supreme Court of the Colony of Natal and every
Circuit Court shall apply, judge, and determine upon, and
according to, the laws which now are, or shall hereafter be,
in force within this Colony.
29. [Proceedings to be in open Court and in English.]
30. [Two Judges to form a quorum in civil cases tried with-
out a jury.]
31. [If two Judges differ, the case shall be brought before
three Judges.]
32. [Civil cases tried by a jury, to be held before one Judge.]
33. All civil suits depending in any of the said Circuit
Courts, shall be tried and decided by the Judge of such Court
alone, except when the plaintiff or defendant has, under the
said Ordinance No. 7, 1852, applied to have such trial by a jury.
34. [Criminal cases to be tried before one Judge and a jury
of nine.]
35. [A Court in which a case is pending may remove it to
any other Court.]
36. [Manner of removing cases.]
37. [Civil suits shall be deemed to be pending when summons
shall have been served.]
38. [Criminal suits shall be pending when the indictment
has been lodged.]
APPEAL.
39. [Appeals to the Privy Council to be according to laws
which allow appeals from any other Colonial Court.]
40. [Appeal from Circuit to Supreme Court in civil cases
exceeding 20 tried without a jury.]
1857] COURTS OF JUSTICE 245
41. [Supreme Court to hear such appeal without receiving
fresh evidence.]
42. [Notice of appeal to be given.]
43. [Execution to be stayed when notice of appeal is given.]
44. [Case considered abandoned if appeal is not prosecuted
within six weeks.]
45. [Appeal in cases under the value of 20 may be allowed
in certain cases.]
46. [In civil cases exceeding 20, evidence to be taken down
by Registrar.]
47. [Copies of documents produced in such case shall be
sent to Supreme Court.]
48. The said Supreme Court of Natal shall, in all cases of
appeal from its judgment or decree in civil cases, heard and
determined without a jury, conform to and execute such
judgment or order in the premises as shall be made or given by
Her Majesty in Her Privy Council.
49. It shall not be competent for either party to any civil
suit tried and determined by a jury before the said Supreme
Court or any Circuit Court, to appeal from the verdict given
by such jury, which verdict shall be conclusive, unless set aside
as hereinafter provided.
NEW TRIAL.
50. In all civil cases tried in the said Supreme Court, or
any Circuit Court, by a jury, under the provisions of the said
Ordinance No. 7, 1852, either party wishing to set aside the
verdict of such jury, may apply for a new trial to the Supreme
Court, under and subject to the provisions of the said Ordinance.
51. The said Supreme Court shall, in granting or refusing
such new trial, conform to the provisions of the said Ordinance
No. 7, 1852.
RECORDS OF CIRCUIT COURTS.
5 2 -55 [Records to be removed to Supreme Court and
filed.]
56. [Supreme Court to carry out sentences of the late Dis-
trict Court.]
57. [Records of District Court to be handed over to Supreme
Court.]
58. [Sheriff of Natal to be appointed by Governor.]
59. [Duties of Sheriff.]
60. [Supreme Court to make rules.]
61. [Definition of terms.]
62. [Pietermaritzburg may be included in a circuit dis-
trict.]
246 NATAL [1867
63. [Persons admitted to practise in Supreme Court may
also practise in Circuit Courts.]
64. [Who may conduct cases in Circuit Courts.]
65. [As to process sued out against the Sheriff.]
66. This Law shall take effect at such date as shall by the
Governor be fixed by Proclamation.
[Schedule of Judges’ Salaries.]
P.R.O., C.O. 180/1.
PETTY DEBTS RECOVERY LAW, 1867. [4 Oct. 1867.]
No. 14, 1867.
No. 145. Law. To facilitate the recovery of small Debts and
Demands within the Colony of Natal.
WHEREAS it is expedient to facilitate the recovery of
small debts and other demands within the Colony of Natal,
and for such purpose to empower the Resident Magistrates
thereof to order and decree the incarceration of defaulting
debtors in certain cases, and to make special provisions in
relation to the same :
Be It Therefore Enacted by the Lieutenant-Governor of
Natal, with the advice and consent of the Legislative Council
thereof, as follows :
1. [Resident magistrates may order payment of civil
debts by instalments. Security for payment to be given,
unless waived by plaintiff.]
2. [Execution may be ordered for part or whole of unpaid
sum only on default in payment of any instalment.]
3. [Defendant may be summoned and examined respecting
his estate and effects, the circumstances under which the debt
was contracted, etc. ; and as to disposals he may make of
property.]
4. If the party so summoned shall not attend as required
by such summons, or shall not prove sufficient cause for not
attending, or shall, if attending, refuse to be sworn or to disclose
any of the things aforesaid, or if he shall not make answer
touching the same to the satisfaction of such Resident Magis-
trate, or it shall appear to such Resident Magistrate, either
by examination of the party, or by any other evidence, that
such party, if a defendant, in incurring the debt or liability
which is the subject of the action in which judgment has been
obtained, has obtained credit from the plaintiff under false
pretences, or by means of fraud or breach of trust, or has
wilfully contracted such debt or liability without having had
at the same time a reasonable expectation of being able to pay
or discharge the same, or if he shall have made, or caused to be
1875] COURTS OF JUSTICE 247
made, any gift, delivery, or transfer of any property, or shall
have charged, removed, or concealed the same with intent
to defraud such creditor, or any of his creditors, it shall be
lawful for such Resident Magistrate, if he shall think fit, to
order that any such party may be committed to the common
gaol of the county, district, or place in which the party so
summoned is resident, for any period not exceeding forty
days.
5. [Imprisonment not to operate as a satisfaction of the
debt, or prevent execution against property.]
6. [Messenger of Court may attach all movable property,
” excepting the wearing apparel and bedding of such person
or his family, and the tools and implements of his trade, to the
value of five pounds,” money, securities for money, etc., except
goods bona fide sold by, or to, or hired to, defendant.]
7. [Magistrate may authorize seizure of movable property
and securities for money transferred to debtor’s wife, children,
etc.]
8. [Messenger to hold securities for money. Plaintiff may
sue on them.]
9. [Judgments obtained in any Resident Magistrate’s
Court and not at once executed shall remain effectual for
five years.]
10. [Process of execution, and warrants of commitment,
may be carried into effect in any county, if endorsed by the
clerk of the magistrate’s court there.]
11. [Lieutenant-Governor to make regulations for purposes
of this law, as to persons who may act as agents, and their fees.]
12. [Persons punishable under this law may be punished
under other laws if liable thereto, but no person shall be
punished twice for the same offence.]
13. [Law to take effect after promulgation.]
P.R.O., C.O. 180/4.
NATIVE ADMINISTRATION LAW, 1875. [17 Dec. 1875.]
No. 26, 1875.
No. 146. Law. To make better provision for the Administra-
tion of Justice among the Native Population of Natal,
and for the gradual assimilation of Native Law to the
Laws of the Colony.
[Preamble.]
Be It … Enacted by the Lieutenant-Governor of the
Colony, with the advice and consent of the Legislative Council
thereof, as follows :
I. The Ordinance No. 3, 1849, entituled, ” Ordinance for
248 NATAL [1875
repealing so much of the Ordinance No. 12, 1845, as is incon-
sistent with a Proclamation issued by the Lieutenant-Governor
of the District of Natal, on the 2ist day of June 1849, and with
the provisions of this Ordinance ; and for providing for the
better administration of justice among the natives,” shall be
and the same is hereby repealed, save only and except so
far as regards all offences against and all penalties and for-
feitures incurred under said Ordinance, and all proceedings
taken or commenced before this Law shall come into operation
under or in execution of the said Ordinance, all which offences
may be prosecuted and all which penalties and forfeitures
may be enforced, and all which proceedings shall be as valid
to all intents and purposes, and may be continued, executed,
and enforced in the same manner as if this Law had not been
passed ; and save also and except so far as regards all ap-
pointments, rules, regulations, and orders made under the
said Ordinance, which, until revoked, altered, or amended,
and save so far as they are not in conflict with any of the
provisions of this Law, shall continue in force and shall be
deemed to be rules, regulations, and orders under this Law :
Provided, however, that nothing herein contained shall
interfere with the authority now exercised by Chiefs or Head-
men in any district or districts in which no appointments
have been made under the powers conferred by this Law,
or until such appointments shall have been made.
2. It shall be lawful for the Lieutenant-Governor for the
time being to appoint persons of European descent, who shall
be called Administrators of Native Law, as also Native Chiefs
or other Native Officers, to preside and exercise authority over
and to administer justice among Natives living under Native
Law, within such districts as may be hereafter determined,
and the Lieutenant-Governor shall have power summarily to
remove such Native Chiefs or other Native Officers, so ap-
pointed, and to appoint others in their stead.
3. Every Administrator of Native Law, or Native Chief, or
other Native Officer so appointed, shall have power to try
and decide all civil disputes between native and native in the
tribe or community placed under his charge, and within such
limits as may from time to time be prescribed by the Lieu-
tenant-Governor, except upon such cases as are hereinafter
excepted, or may from time to time be excepted in manner
hereinafter provided : Provided, however, that in all cases
decided by any Native Chief or other Native Officer, a new
trial may be had in conformity with such rules of procedure
as may be framed under the provisions of the loth Section of
this Law, before the Administrator of Native Law appointed
over the district in which such Native Chief or other Native
1875] COURTS OF JUSTICE 249
Officer resides, and that every such Native Chief or other
Native Officer shall within ten days after the decision of any
such civil case, communicate to the Administrator of Native
Law having jurisdiction, the names of the plaintiff and de-
fendant, the cause of the action, the decision arrived at, and
the grounds of such decision ; and each such officer is hereby
required to record the same.
4. In all such civil cases there shall be an appeal to the
Native High Court in this Law specified.
5. All matters and disputes in the nature of civil cases
between Natives living under Native Law shall be tried under
the provisions of this Law and not otherwise, and according
to Native Laws, customs, and usages for the time being pre-
vailing, so far as the same shall not be of a nature to work
some manifest injustice, or be repugnant to the settled prin-
ciples and policy of natural equity ; except that all civil cases
arising out of transactions in trade, or out of the ownership
of or succession to land, shall be adjudicated upon according
to the principles laid down by the ordinary Colonial Law in
such cases ; l Provided always, that in the district or districts
referred to in the proviso to Section i of this Law, all matters
and things required to be done and observed by an Adminis-
trator of Native Law appointed under this Law, may, and shall
be done and observed by an Administrator of Native Law
appointed under Ordinance 3, 1849, until appointments under
this Law shall have been made therein.
6. Subject to the exceptions in this Law specified, all
crimes and offences committed by Natives shall be tried before
the ordinary Courts of Law in this Colony in the same manner
as if they had been committed by persons of European descent :
Provided, however, that the following classes of crime shall be
excepted :
(a) All crimes and offences of a political character, which
shall be tried at the discretion of the Attorney-General, either
before the Supreme Court of the Colony or the Native High
Court : Provided that the Native High Court shall not have
the power of passing sentence of capital punishment.
(b) All homicides, assaults, or other injury to the person
or property of any Native caused by or arising out of riots by
Natives or faction fights between Natives, or in which any
tribe or section of a tribe or community of Natives may have
taken part, and which in the judgment of the Attorney-General
may be more conveniently tried according to the provisions of
Native Law.
(c) All crimes or offences with respect to which it has been
or may hereafter be enacted by any Law that they shall be
1 Amended by Act 44, 1887, below.
250 NATAL [1875
tried by Native Law or before any special Court. And all
crimes and offences so excepted, except those for the trial of
which special provision has been made, shall be tried by the
Native High Court in this Law specified : Provided, always,
that it shall be lawful for the Native High Court to remit
the trial of any such assault or injury aforesaid to one or more
Administrators of Native Law, and such Administrators of
Native Law may thereupon try the case subject to an appeal to
the Native High Court, whose decision shall in such case be final.
7. There shall be constituted a Court, to be termed the
Native High Court, and such High Court shall be presided over
by a Judge specially appointed by the Lieutenant-Go vernor,
and such Judge shall sit as sole Judge, or may be assisted, as
occasion may require, by Administrators of Native Law, or
Native Chiefs, or other Native Officers, as assessors, in manner
hereafter to be provided ; and such Court shall hear and try
all appeal cases from the Courts of the Administrators of Native
Law, all civil cases that may be brought before it under the
provisions of this Law, and all criminal cases, the trial of which
is in this Law specially reserved to such High Court.
8. [Judge to hold office during good behaviour.]
9. All appeals from the Native High Court shall be to a
Court of Appeal, which shall be held to be, and shall be a
branch of the Supreme Court of the Colony, and shall consist
of the Chief Justice or one of the Puisne Judges of the said
Supreme Court, the Secretary for Native Affairs for the time
being, and the Judge of the Native High Court established
under this Law ; and the Court so constituted shall hear and
determine all appeals that shall be brought before it under
the provisions of this Law.
lo. 1 The Lieutenant-Governor shall appoint a Board, con-
sisting of the Chief Justice of the Colony for the time being,
the Attorney-General, the Secretary for Native Affairs, the
Judge of the Native High Court, and any other three persons
being Magistrates or Justices of the Peace, of whom five shall
form a quorum, and such Board shall from time to time frame
rules for procedure and conduct of its own business, and for
the procedure and conduct of business in the Court of Appeal,
in the Native High Court, in the Courts of the Administrators
of Native Law, and in other Courts constituted under this
Law, and fix fines, fees, costs, charges, and pavment of wit-
nesses’ expenses, and shall also frame rules for the appoint-
ment and functions of assessors ; and shall further determine
what class of cases shall be tried in the first instance by the
several Courts, and in what cases appeals shall be allowed
from the judgment of any of the courts of the Administrators
1 Repealed by Act 44, 1887, below.
1876] COURTS OF JUSTICE 251
of Native Law, and from the Native High Court, and shall,
within a period of two years from the date of the proclamation
of this Law, reduce to writing the Native Law as at present
administered in this Colony ; and shall from time to time,
as occasion may require, propose the alteration, amendment,
or repeal of any of the provisions of the aforesaid Native
Law, and also the establishment of new provisions therein,
and the alteration, amendment, or repeal, from time to time,
of any such new provisions ; and all new provisions so pro-
posed, as well as all alterations or amendments aforesaid,
shall, by direction of the Lieutenant-Governor, be submitted
to the Legislative Council of the Colony for the approval and
sanction thereof by the said Council, to be expressed by
Resolution, and all such alterations, amendments, or new
provisions so approved and sanctioned, shall, when confirmed
by the Lieutenant-Governor and published by proclamation
in the Government Gazette, have the same force and effect as
if they had been inserted in this Law, subject always, however,
to disallowance by Her Majesty, signified through one of Her
Majesty’s Principal Secretaries of State.
11. [Proclamation of Native Law to take place when
reduced to writing.]
12. [Fines, etc. under this Law payable to Treasury.]
13. J [Governor endowed with authority of a Paramount
Chief. He may dismiss lesser Chiefs for certain political
offences.]
14. [In case of homicide, assault, or injury from native riot
or faction fight, proof of taking part in same shall be sufficient,
unless it be satisfactorily proved that accused was not guilty.]
15. l [Governor may fine a tribe or community which
combines to suppress evidence.]
16. [Short title : ” The Native Administration Law, 1875.”]
17. [To take effect from date of publication of Her Majesty’s
confirmation.] P.R.O., C.O. 180/4.
TRANSFER OF CAUSES, [n Nov. 1876.]
No. 13, 1876.
No. 147. Law. To provide for the hearing of all causes now
pending before any Court or judicial authority established
under the provisions of Ordinance No. 3, of 1849, by
transferring the hearing or further hearing of such causes
to the Native High Court established under the Native
Adminstration Law, 1875.
WHEREAS under the provisions of Ordinance 3 of 1849,
entituled [etc.], provision was made for the hearing of appeals
1 Repealed by Act 44, 1887, below.
252 NATAL [1878
in all cases whatsoever, between Natives, which had been
tried according to Native Law :
And Whereas it is desirable to facilitate the hearing of
all civil causes, matters, and proceedings so brought in appeal,
and now pending before any Court or other judicial authority
established under the provisions of the above recited Ordinance,
or otherwise, by transferring the hearing of such cases so
pending to the Native High Court, constituted under ” The
Native Administration Law, 1875,” and for such purpose to
confer certain additional powers on the said Native High
Court :
It Is Therefore Enacted, by the Lieutenant-Governor of
the Colony of Natal, by and with the advice and consent of
the Legislative Council thereof, as follows :
1. [Transfer to Native High Court of jurisdiction in appeal
cases brought under Ordinance 3, 1849, an d pending at time
of coming into force of Native Administration Law, 1875.]
2. [All such appeal cases referred for hearing to Native
High Court.]
3. [In cases already fully heard judgment may be given
by Court of Appeal constituted under Ordinance 3, 1849.]
4. [Unfinished cases to be concluded before Native High
Court.]
5. [This Law to be construed with Law 26, 1875.]
6. [To take effect after promulgation.]
P.R.O., C.O. 180/5.
NATIVE ADMINISTRATION LAW, 1878. [9 Sept. 1878.]
No. 21, 1878.
No. 148. Law. To confer upon Administrators of Native
Law, appointed under Law No. 26 of 1875, certain In-
creased Jurisdiction within their respective Districts.
[Preamble : It is desirable to confer on Administrators
of Native Law certain powers now exercised by Resident
Magistrates.]
i. Administrators of Native Law, appointed under pro-
visions of Law No. 26 of 1875, on whom the Lieutenant-
Governor shall see fit to confer the power, shall have and
exercise summary jurisdiction in the following matters and
things over Natives only, residing or being within their re-
spective divisions ; that is to say, in all minor cases of crimes
and offences wherein any person may be accused of any such
minor crime or offence : Provided always that it shall not
be lawful for any Administrator of ; Native Law to punish
any offender in any higher or more “severe manner than by
1887] COURTS OF JUSTICE 253
fine not exceeding 10, and imprisonment, with or without
hard labour, for a period not exceeding three months, except
as to such crimes or offences for the commission of which any
higher or more severe punishment, whether by fine or im-
prisonment, or both, shall be provided, and in which juris-
diction shall be expressly given by any special law ; and such
Administrators shall exercise the powers conferred upon
Justices of the Peace under and by virtue of the provisions
of Ordinance No. 6 of 1846, entituled ” Ordinance for creating
Justices of the Peace within the District of Natal.”
2. [Law to commence from date of publication.]
P.R.O., C.O. 180/5.
NATIVE ADMINISTRATION LAW, 1887.
[18 Sept. 1887.]
No. 44, 1887.
No. 149. Law. To amend the Native Administration Law,
1875.
[Preamble.]
1. [Repeal of sections 10, 13, and 15 of Law 26, 1875.]
2. [Amendment of 5th section of Law 26, 1875. In
intestacy of unexempted Natives succession to land shall be
in accordance with the Native Code.]
3. [Return of criminal cases tried by Administrators of
Native Law to be furnished to Secretary for Native Affairs,
who may alter, amend, vary, or quash any judgment.]
4. [Constitution of Board, 1 which must frame rules of pro-
cedure for Court of Appeal, Native High Court, and Courts of
Administrators of Native Law and for other courts constituted
under Law 26, 1875.]
5. [Board to have power to propose alteration or repeal of
any provisions of Native Law. Board’s proposals to be sub-
mitted to the Governor in Council, who may adopt or reject
or remit to Board for further consideration such proposals.
Proposals, when approved of, to be laid before the Legislative
Council within fourteen days after approval or after commence-
ment of session. Legislative Council may, within four weeks, by
address, object to any of the proposals ; and as far as objected
to they shall be void. Any alteration suggested in the address
may be adopted or rejected by the Governor in Council. If
no address be presented, or if the alterations be adopted, the
Governor’s sanction may, with the advice of the Executive
Council, be proclaimed.
Such new provisions so sanctioned and proclaimed in the
1 The Attorney-General, the Secretary for Native Affairs, the Judge of the
Native High Court, and two Magistrates or Justices of the Peace.
254 NATAL [1887
Government Gazette shall have effect as if inserted in this Law,
but subject to disallowance by Her Majesty.]
6. [If there be reason to. believe that there is a combination
among any tribe or community of natives to suppress evidence
of a homicide, assault, or other injury to person or property by
natives, or to conceal the perpetrator, or by passive resistance
to encourage a repetition, the Governor may enforce a fine
upon such tribe or community.]
7. [Authority of Governor as Paramount Chief. Dis-
missal or removal of a Chief found guilty of a political offence
dangerous to the public peace.]
8. [No judgment to be given against a native upon a
liquid document of debt unless it be executed with certain
formalities in the presence of a Resident Magistrate or Justice
of the Peace.]
9. [Laws Nos. 26, 1875, 21, 1878, and this Law to be read
together as one law.]
10. [To take effect on a day to be appointed by the Governor
after Her Majesty’s assent shall have been published.]
P.R.O., C.0. 180/7.
Annexure.
[Extract from Code of Native Law, passed by the Board appointed
by the Governor, under the provisions of Law No. 44 of 1887. Cf . No. 151.]
THE SUPREME CHIEF.
32. The Supreme Chief for the time being exercises in and
over all Natives in the Colony of Natal all political power and
authority, subject to the provisions of Section 7 of Law 44
of 1887.
33. The Supreme Chief appoints all Chiefs to preside over
tribes, or sections of tribes ; and also divides existing tribes
into two or more parts, or amalgamates tribes or parts of tribes
into one tribe, as necessity or the good government of the
Natives may, in his opinion, require.
34. The Supreme Chief in Council may remove any Chief
found guilty of any political offence, or for incompetency or
other just cause, from his position as such Chief, and may also
order his removal with his family and property, to another
part of the Colony.
35. The Supreme Chief has absolute power to call upon
Chiefs, District Headmen, and all other Natives, to supply
armed men or levies for the defence of the Colony, and for
the suppression of disorder and rebellion within its borders,
and may call upon such chiefs, District Headmen, and all
other Natives to personally render such military and other
service.
36. The Supreme Chief has power to call upon all Natives
COURTS OF JUSTICE 255
to supply labour for public works, or for the general needs of
the Colony. This call or command may be transmitted by
any person authorised so to do, and each native so called upon
is bound to obey such call, and render such service in person,
unless lawfully released from such duty.
37. The Supreme Chief, acting in conjunction with the
Natal Native Trust, 1 may, when deemed expedient in the
general public good, remove any tribe or tribes, or portion
thereof, or any native, from any part of the Colony or Location,
to any other part of the Colony or Location, upon such terms
and conditions and arrangements as he may determine.
38. The orders and directions of the Supreme Chief, or of
the Supreme Chief in Council, may be carried into execution
by the Secretary for Native Affairs, or by the Administrators
of Native Law, or by other officers authorised for the purpose,
and in respect of all such acts the various officers so employed
shall be regarded as the deputies or representatives of the
Supreme Chief, or of the Supreme Chief in Council, as the case
may be.
39. The Supreme Chief, in the exercise of the political
powers which attach to his office, has authority to punish by
fine or imprisonment, or by both, for disobedience of his orders
or for disregard of his authority.
40. The Supreme Chief is not subject to the Supreme Court,
or to any other court of Law in the Colony of Natal, for, or by
reason of, any order or proclamation, or of any other act or
matter whatsoever, committed, ordered, permitted, or done
either personally or in council.
41. The Supreme Chief is, by virtue of his office, Upper
Guardian of all orphans and minors in law.
42. The Supreme Chief has power to regulate and fix
from time to time the least number of houses which shall
compose a kraal. He may, in his discretion, permit of excep-
tions to any such general rule in special cases.
ParL Papers [C. 7013], p. 15.
RESIDENT MAGISTRATES. [14 Aug. 1889.]
No. 22, 1889.2
No. 150. Law. For the Establishment and Regulation of
Inferior Courts of Justice.
WHEREAS it is expedient to amend and consolidate the
1 A body consisting in practice of the Governor and the Executive Council,
to whom was entrusted the care of native rights as regards the land occupied
by them.
2 Cf. further Act. No. 22 of 1896, ” To amend and consolidate the Laws
regulating Magistrate’s Courts ” not printed in this volume. For ” Borough
Courts” vide documents Nos. 134 and 135.
256 NATAL
Laws relating to the Courts, jurisdiction, powers, duties, and
divisions of Resident Magistrates :
Be It Therefore Enacted by the Administrator of the
Government of Natal, with the advice and consent of the
Legislative Council thereof, as follows :
1. [Ordinances and Laws enumerated in the Schedule
repealed.]
2. [Interpretation of Terms.]
3-5. [Creation of Divisions, each with one Central Court
and minor or Branch Courts as may be needed. Magistrates
to be appointed by the Governor.]
6. [Clerk and Messenger of Court to be appointed by
Governor ; Deputy Messenger by Magistrate.]
CRIMINAL JURISDICTION.
7. The Magistrates shall have jurisdiction in all cases of
crimes and offences committed within their Divisions, with
the exception of High Treason, Murder, Culpable Homicide,
Rape, and Assault with intent to commit Murder or Rape,
or Assault in which a wound or injury is inflicted which has
caused serious bodily harm, Arson, Housebreaking with or
without intent to commit any crime, Theft of Stock, and any
other crime for the trial of which special Courts have been or
shall hereafter be appointed : [Provided that jurisdiction of
Magistrate shall extend in certain cases to two miles beyond
the boundary of his division.]
8. [Offences are triable in any Division through which the
person committing such offences may have passed.]
POWER OF MAGISTRATES AS TO PUNISHMENT.
9. It shall not be lawful for the Magistrates (except in
cases where greater jurisdiction may be conferred by special
Laws) to sentence or adjudge any person convicted of any
crime or offence before their Courts to any higher sentence
or punishment than the following, that is to say : To pay a
fine of Twenty Pounds, to be imprisoned with or without
hard labour for a period of six months, to receive privately
in prison a whipping of twenty lashes, or the like
number of strokes with a cane or rod. In the discretion
of a magistrate imprisonment and whipping may be
joined and form part of the same sentence, or any one of
the said classes of punishment may be awarded alone ; or
imprisonment may be awarded in conjunction with a fine as
an alternative punishment, or by way of default in the pay-
ment of any fine. Where any convicted person has been
committed to prison, or has been detained in custody merely
for the non-payment of a fine imposed upon him, payment of
1889] COURTS OF JUSTICE 257
the same during any part of his imprisonment shall entitle
such person to immediate release from custody.
10. [Females not to be whipped.]
11-20. [Procedure in Criminal Cases : Sentences of a fine
of 10 or imprisonment for 3 months, or a whipping of 15 lashes,
to be submitted to a Judge of the Supreme Court to be by
him approved, varied, or set aside.]
CIVIL JURISDICTION.
21. The Magistrates shall not have jurisdiction or cog-
nizance of any action or proceedings wherein the title to
immovable property or to any duty or office is in question and
sought to be determined, or of any actions or proceedings to
try the validity of any will or other testamentary instrument,
or of any action whereby rights in future can be bound ;
[provided that Magistrates may enquire into the validity of
marriages in certain cases.]
22. [Jurisdiction of Magistrate of Durban to extend to
cases involving 500.]
23. All Magistrates (Durban excepted) shall have juris-
diction in civil cases (save as between Natives not exempted
from Native Law, other than such cases as are hereinafter
provided in Section 44 of this Law, and save also as in the
2ist Section is mentioned) brought or instituted against any
person, firm, company, board, society, or corporation resid-
ing or being or carrying on business within their respective
Divisions, that is to say :
(a) Up to one hundred pounds, where the claim or debt
is defined by and is founded upon any bond,
bill of exchange, promissory note, good-for,
I.O.U., or other liquid document of debt, pro-
vided that no action shall be brought to recover
the principal sum due under any bond, the
security for which consists in whole or in part
of immovable property.
(b) Up to fifty pounds where the claim is for damages,
or where the claim or debt is illiquid in its
character and is due upon contract, or for goods
sold and delivered, or as balance of account or
otherwise.
24-43. [Procedure in Civil Cases.]
POWERS OF MAGISTRATES IN RELATION TO THE CUSTODY
OF CHILDREN AND OF UNMARRIED NATIVE WOMEN.
44. [Magistrate shall enquire into complaints made by
parents or guardians relative to children and unmarried
native women employed as domestic servants or otherwise
258 NATAL [1889
and not being permitted to return to their parents. Such
complaints to be determined in Magistrate’s Court.]
45. [Messenger or Constable may enforce orders to appear.]
APPEALS.
46. [In criminal cases all sentences are subject to appeal
to Supreme or to Circuit Court.]
47. [In civil cases sentences are subject to appeal to
Supreme or to Circuit Court. No appeal allowed if case
involves less amount than 5 exclusive of costs.]
48-50. [Procedure in appeal cases.]
ASSISTANT MAGISTRATES.
51. [Governor may appoint Assistant Magistrates.]
CONSTABLES.
52. [European Constables to be appointed by Governor
and vested with the usual powers.]
53. [Natives and Indians may be appointed by Magistrate
to act as Constables.]
CONTEMPT OF COURT.
54. [Contempt denned and penalty prescribed.]
LISTS OF CRIMINAL TRIALS.
55. [Monthly returns of criminal cases to be transmitted
to the Attorney-General.]
OATHS.
56. [Oaths to be taken by Magistrates and Assistant
Magistrates.]
GENERAL PROVISIONS.
57-60. [Proceedings to be viva voce, in English, and in
open court. Actions against Magistrates and their officers
to come before Supreme or Circuit Court. Advocates and
Attorneys of the Supreme Court may practise in Magistrate’s
Courts.]
61. [Framing of rules.]
62. [Law to take effect after ist January 1890.]
SCHEDULE.
[Ordinances and Laws repealed.}
Ordinance No. 16, 1846, entituled ” Ordinance for creating Resident
Magistrates within the District of Natal.”
Ordinance No. i, 1849, entituled ” Ordinance for authorising the
taking of certain Fees by the Registrar of the District Court of Natal.”
Ordinance No. 5, 1852, entituled ” Ordinance for enabling the
1891] COURTS OF JUSTICE 259
Resident Magistrate to grant process for the Arrest of Persons about
to leave the District, and the Attachment of Property about to be
removed therefrom.”
Ordinance No. 8, 1852, entituled ” Ordinance to extend the juris-
diction of the Resident Magistrate of the Division or County of Durban,
in Civil Cases.”
Ordinance No. 12, 1852, entituled ” Ordinance for enabling the
Lieutenant-Governor to appoint Assistant Resident Magistrates within
the District of Natal.”
Law No. 6, 1859, entituled “Law to provide for the holding of
Branch Courts by the Resident Magistrate.”
Law No. 14, 1867, entituled ” Law to facilitate the Recovery of
Small Debts and Demands within the Colony of Natal.”
Law No. 6, 1868, entituled ” Law to amend the Law No. 14, 1867,
entituled [as above].”
Law No. 10, 1868, entituled ” Law to extend jurisdiction of Resident
Magistrates of the Colony in Civil Cases.”
Law No. 9, 1869, entituled ” Law to amend Law No. 14, 1867,
entituled [as above].”
P.R.O., CO. 180/8.
NATIVE LAW.
No. 19, 1891.
No. 151. Law. To legalise the Code of Native Law laid before
the Legislative Council according to the provisions of
Law No. 44, 1887.
[Analysis of Code.]
1-31. [Explanation of terms.]
32-42. [Functions of the Supreme Chief. Vide Annexure, p. 254.]
43. The Secretary for Native Affairs … is the principal executive
officer of the Supreme Chief.
44. [He shall receive petitions from natives and redress grievances.]
45. [He shall, in cases of disputed chieftainship or friction between
tribes, institute inquiries for the information of the Supreme Chief.]
46. The Chief in charge of a tribe … is a minor deputy of the
Supreme Chief and a Judicial Officer . . . during the pleasure of the
Supreme Chief. . . .
47-58. [Authority of Chiefs under the Supreme Chief.]
59-65. [Authority of District Headmen responsible to the Chiefs.]
66-78 [Authority of Kraal Headmen as constables.]
78-89. [Land tenure.]
90-298. [Customary native law codified or modified, with details
of its administration.]
P.R.O., C.O. 180/8, and Statutes of Natal,
“Native Law,” p. 12.
CHAPTER III.
THE ORANGE FREE STATE.
No. 152. EMIGRANTS NORTH OF THE ORANGE RIVER :
PETITION TO COMMISSIONER CLOETE IN NATAL.
RIET RivER, 1 28th Sept. 1843.
SIR, We, the undersigned Emigrants, address ourselves
to you by petition in the name of our fellow-inhabitants of this
Colony.
We are convinced in our own minds of the liberal arrange-
ments evinced towards us by Her Majesty the Queen. We
are fully inclined and ready to act according to the tenor
thereof, and to submit ourselves to H.M.’s authority, on the
conditions issued by H.M.’s Secretary of State, Lord Stanley,
on the I3th December 1842.
With due deference we wish to call your attention to the
following considerations .
The Land which we now occupy as Emigrants, and on
which a number of Griquas and Bastards reside, extends from
the Bank of the Orange River, Northward to Modder River,
at least 20 hours on horse-back, and in its length full 30 hours
on horse-back. This piece of Land, we can assure you, was
solely inhabited by Bushmen. We doubt not but you are
aware that already in former times the Colonists have applied
for this ground to the Bushmen Captains, and that those
Bushmen Captains have agreed with them and exchanged
(or bartered) a large part of the said ground for a considerable
number of sheep and cattle. Several of those Colonists are
now here as Emigrants. As the land is watered, and the
Bushmen do not know how to cultivate it, we were desirous
to obtain quiet residences for us and our families. After this
arrangement, Dr. Philip has established a Bushman School
here, close to the Orange River for the protection of which a
small number of Griquas or Bastards was located. Where-
upon one after another encroached, and the Bushmen disap-
1 In the present territory of the O.F.S., to the south-west of Bloemfontein.
This letter represented the views of the section of trans-Orange settlers who
wished to come under British rule on certain conditions.
60
1846] THE GRIQUA STATE 261
peared. Wliile they then called themselves proprietors of the
land, and subsequently suffered much from severe seasons and
scarcity of water, we were obliged to leave the land, and
could not penetrate farther into the Country. And in order
to prevent dispute, and not to get into unpleasantness with
Government, we were obliged to hire the same ground (how-
ever vacant) from them at a high price ; aye, even to an amount
of more than 78,000 Rix-dollars ; and must frequently suffer
gross depredations and insults. We rejoice in the favourable
decision of Her Majesty that you have been appointed by Her
Majesty and invested with power and authority to ward off
and remove all disturbances. We firmly trust to your aid
and support in these our circumstances, under which we
have laboured for successive years. We would remind you
that it is not our intention (or desire) to drive the colored
people, either Griquas or Bastards, from their possessions or
dwellings. Oh no ! We grudge them not the means of support ;
but it is our wish that measures should be adopted to give us
also rights, so that we may in future enjoy a peaceable and
Christian life, and be enabled to erect a building on this ground,
which we may call a Church or House of God, for the instruc-
tion of the adult, and rearing of the young, so that we may
cherish the hope that our offspring be not devoted to the
desert.
Awaiting your reply, we conclude with a fervent prayer
that the Almighty Disposer of the Universe may bless your
Mission, and crown the same with the influence of His Spirit
and grace.
We have, etc. etc.
(Signed) M. H. OBERHOLZER ; G. J. OBERHOLZER ;
P. J. Louw ; L. A. J. v. D. HEEVER ;
W. D. JACOBS ; D. J. VAN DER MERWE ;
and 277 others.
The Honble HENRY CLOETE, Esqr., H.M. Commr.
A true Copy.
(Signed) H. CLOETE.
P.R.O., MS. in C.O. 48/246.
RECOGNITION OF THE GRIQUA STATE.
[19 Feb. 1846.]
No. 153. Treaty between Sir PEREGRINE MAITLAND and ADAM
KOK, Chief of the Philippolis Griquas.
The Governor aforesaid and the said Captain Adam Kok,
for the purpose of settling the relations between the subjects
of Her Majesty resident in the territory and the said Captain,
in such a manner as to preserve therein peace and order, by
262 ORANGE FREE STATE [1846
protecting the quiet and well-disposed, and controlling the
turbulent and ill-affected, have consented and agreed to the
following articles, which they hereby respectively ratify and
confirm :
ARTICLE i. The absolute dominion of Captain Adam Kok
over all the land hitherto received and regarded as belonging
to him, or to his people, is hereby unreservedly recognised by
the Governor, on the part of Her Majesty the Queen.
2. Without prejudice to this recognised right, Captain
Adam Kok engages to make hereby a division of his territory
into two portions : one division to consist of land in regard to
any part of which it shall not hereafter be competent for Captain
Adam Kok, or any of his people, to grant leases, or make sales,
or give any right of occupation to any British subject, or
generally, to any person of European birth or extraction ; and
the other division to consist of land which may be let on lease
to British subjects, and all others indifferently ; all leases to
British subjects, however, to be made in the manner and
under the conditions hereinafter referred to.
3. Persons who are by the last preceding article prohibited
from hiring or purchasing lands in the first or reserved division
of the Griqua territory, may, with the express permission of
the Colonial Government, but not otherwise, and then only
for the purpose of religious teaching, or that of trade or business,
receive leases of houses and buildings, or of building-erven,
situated in the said division.
4. Captain Adam Kok binds himself, for the purpose of
this treaty, to recognise as British subjects all persons of
British or Colonial birth or extraction, whether born within
the British dominions or not.
5. That portion or division of the Griqua territory to be
ultimately reserved for the Griqua nation, and in regard to
which the certain persons hereinbefore described shall not
(except as before is excepted) be allowed to purchase or obtain
leases of, or acquire any lands whatever shall be limited as
follows, that is to say : From David’s Grave, at the confluence
of the Riet and Modder Rivers ; thence along the Riet River
to where Krom Elbow Spruit falls into the said Riet River ;
thence [along] Krom Elbow Spruit to where Van Zyl’s Spruit
falls into it ; thence up Van Zyl’s Spruit to its source, from
between the Pram Bergen ; thence along a direct line to be
drawn from the neck of Pram Bergen at the source of Van
Zyl’s Spruit to Braay Paal, which line, running generally east,
holds the summit of a ridge extending from the said neck to
within about a mile from Braay Paal ; thence from Braay
Paal, the boundary between Captain Adam Kok and the land
occupied by the Chief Le Pui, to the junction of that boundary
1846] THE GRIQUA STATE 263
with Bosjes Spruit ; thence along Bosjes Spruit to where the
same falls into the Orange River; thence along the said
Orange River as far as Ramah ; and thence in a direct line
to David’s Grave aforesaid.
6. The portion or division of the Griqua territory which
may as aforesaid be leased to British subjects, and all others
indifferently, shall consist of so much of the hitherto recog-
nised Griqua territory as is not comprised within the limits in
the last preceding article set forth.
7. From and out of the last-mentioned division of territory,
the lands heretofore enjoyed by the Korannas, under the
Chief Goliat, and by the missionary station at Bethany, shall
be considered as excepted, which lands shall be preserved
inviolate for the said Chief and station.
8. It shall be the duty of the officer styled British Resident
amongst the native tribes to the north-east of the Colony, as
lately appointed by the said Governor, to exercise constant
vigilance in regard to the state and condition of the Griqua
territory, so as to secure the tranquillity thereof, to represent
Her Majesty’s Government upon the spot, to enforce order
amongst all British subjects resident in any part of the Griqua
territory, to prevent or punish all crimes or injuries meditated
or committed by any such subjects, and generally to inquire
into, and determine, all disputes which may arise between
emigrants and Griquas, so as thereby to maintain peace, and
remove all occasion of mutual apprehension and distrust.
9. In order as much as possible to co-operate with the
Colonial Government in carrying out such measures as shall
be necessary for the preservation of law and order amongst
British subjects and all others resident in the territory of
Captain Adam Kok, the following articles and provisions are
consented to and agreed upon :
10. The British Resident shall at all times be invested by
the Governor with a commission under the Act of Parliament,
5 & 6 William the 4th, cap. 57, entitled ” An Act for the
prevention and punishment of offences committed by Her
Majesty’s subjects within certain territories adjacent to the
Colony of the Cape of Good Hope,” empowering such Resident
to arrest and send into the Colony for trial any British subjects
who shall, within the Griqua territory, be guilty of any crime
or offence contrary to the provisions of the said Act.
n. Besides possessing the powers belonging to and invested
in a magistrate under the said Act, the contracting parties
to this treaty do hereby, both and each of them, constitute
and appoint the British Resident for the time being to be a
tribunal, exercising and to exercise, over the subjects of Her
Britannic Majesty residing and being within the Griqua
264 ORANGE FREE STATE [1846
territory, the certain summary criminal and civil jurisdiction
hereinafter denned ; it being expressly consented, agreed,
and declared, that whatever shall be adjudged, done, or
transacted by the said Resident, within the scope and limits
of the powers hereby conferred upon him, shall be as valid
and effectual, to all intents and purposes, as if the same had
been adjudged, done, or transacted by the said Captain Adam
Kok.
12. The British Resident shall have, in regard to crimes
and offences committed by British subjects in any part of the
Griqua territory, the like jurisdiction in all respects as a
Resident Magistrate of the Colony has under, and by virtue
of, the Ordinance No. 33 of 1827 in regard to crimes and
offences committed within the district or place for which
such Resident Magistrate shall have been appointed.
13. The’ British Resident may, in the exercise of the
summary jurisdiction in the last preceding section mentioned,
sentence any offender, when convicted, to be punished by
fine not exceeding io/., or by imprisonment, with or without
hard labour, for any period not exceeding six months, or by
such fine and such imprisonment together, as to such Resident
shall seem meet.
14. All fines imposed by the said British Resident shall,
in case of non-payment, be levied by distress and sale of the
offender’s property, and upon recovery, shall be applied in
manner and form as the quitrents hereinafter mentioned.
15. The British Resident shall, in regard to the manner of
summoning or arresting any person charged with any crime
or offence which shall appear to come within his summary
jurisdiction, and to the summoning and compelling the attend-
ance of witnesses, and the manner of proceeding in the hearing
of the case, and the place at which any sentence of imprison-
ment shall be carried into effect, and generally, in regard to the
exercise of his said jurisdiction, act according to, and carefully
observe, all such rules and regulations as shall be provided for,
or prescribed to, him by the Governor of the Cape of Good
Hope, which rules and orders the said Captain Adam Kok
engages to ratify, confirm, and establish as law within his
territory.
16. The contracting parties respectively hereby grant to
the British Resident full power and authority to appoint a
messenger for his court, a gaoler, and such constables or other
officers as may be necessary for the due execution of the judicial
functions hereby conferred upon him.
17. Captain Adam Kok engages to co-operate with the
British Resident whenever so requested by him, and to give
to the said Resident every support in his power in the discharge
1846] THE GRIQUA STATE 265
of the duties belonging to the office of such Resident. And
should it so happen that part or the whole of a spot of ground
which the British Resident may hereafter select for the purpose
of erecting a residence shall fall within the territory of Captain
Adam Kok, the said Captain hereby binds himself to allow
possession to be taken and kept of such ground for the above-
mentioned purpose, as long as it shall be required for the same.
18. Any act or proceeding injurious to person or property
which would be a crime or offence if committed by a British
subject against a Griqua, shall be deemed to be a crime or
offence when committed by a Griqua against a British subject,
and Captain Adam Kok hereby engages to have any Griqua
so offending tried and punished.
19. Captain Adam Kok engages, upon complaint made to
him, to cause any Griqua accused upon reasonable grounds
of having committed any such crime or offence, to be secured
for trial, and the British Resident is hereby authorised to
require Captain Adam Kok to fulfil this stipulation.
20. The British Resident shall be entitled to attend and be
present at the trial by Captain Adam Kok, or such other
person as may by him be deputed for the purpose, of any
Griqua accused of any crime or offence committed against
any British subject ; but the said Resident will not interfere
with the proceedings at such trial, otherwise than by offering
such suggestions touching the right and proper conduct of the
same as may seem to him to be fit and useful.
21. Whenever any Griqua shall be convicted of any such
crime or offence as aforesaid, such punishment shall be awarded
as Captain Adam Kok, after consultation with the British
Resident (should he be at or near the spot), shall deem to be
just and proper under the circumstances of the case.
22. All questions or disputes of a civil nature in which
any Griqua shall bring a claim or demand against any British
subject resident in the Griqua territory, shall be heard and
determined by the British Resident, according to right and
justice ; and the contracting parties respectively hereby
authorise and empower the said Resident so to do, and to
enforce any decision by which he shall adjudge any British
subject to pay or deliver over to any Griqua, any money or
other thing, by distress and sale of the property of the person
making default.
23. The British Resident shall, in regard to the manner of
summoning any British subject to answer any such claim or
demand, and to the summoning and compelling the attendance
of witnesses, and to the manner of proceeding in the hearing of
the case, to the mode of carrying his judgments into execution,
and generally, in regard to the exercise of the civil jurisdiction
266 ORANGE FREE STATE [1846
hereby conferred upon him, act according to, and carefully
observe, all such rules and regulations as shall be provided for,
or prescribed to, him by the Governor aforesaid, which rules
and regulations the said Captain Adam Kok engages to ratify,
confirm, and establish as law within his territory.
24. All questions and disputes of a civil nature, in which
any British subject shall bring any claim or demand against
any Griqua, shall be heard and determined by Captain Adam
Kok, according to right and justice, who engages to obtain
redress for any British subject injured.
25. It is understood and agreed that all questions relating
to the title to land, or to its occupation, whether raised by
Griqua subjects against British subjects, or by British subjects
against Griqua subjects, shall abide the determination of the
British Resident. But in all such cases, Captain Adam Kok,
or any person by him deputed, may be present and assist at
the investigation of any such case.
26. Any British subject having any such claim or demand
as aforesaid, may either repair in the first instance to Captain
Adam Kok, or to the British Resident, and the latter shall be
entitled, should he see cause so to do, to desire from Captain
Adam Kok a trial of the case, and to be present at such trial,
but not, however, to interfere thereat, beyond the mode herein-
before provided in regard to criminal cases.
27. Captain Adam Kok shall cause the British Resident to
be informed of the time and place of hearing any case, criminal
or civil, in which any British subject shall be the complainant,
and any Griqua the party complained against, and in like
manner, the British Resident shall cause Captain Adam Kok
to be informed of the time and place of hearing any case in
which any Griqua shall be the complainant, and any British
subject the party complained against ; in order that Captain
Adam Kok, or any other person by him deputed, may be
present and assisting at the trial.
28. For the purpose of this treaty, it is consented and
agreed by the contracting parties, that the term Griqua shall
comprehend and embrace any person who is, by birth or
residence, under the authority of Captain Adam Kok.
29. The British Resident aforesaid shall be charged with
the duty of settling, in conjunction with the parties interested,
the conditions and duration (not exceeding forty years) of all
intended leases to be granted to British subjects, of any lands
situated in the territory in Article No. 6, and shall also be bound
to preserve a counterpart of every such lease, and to transmit
without delay, both to the Colonial Government and the
Chief of the Griquas, an abstract, showing the particulars of the
same. But no such lease shall be capable of being assigned
1846] THE GRIQUA STATE 267
nor shall the land leased be capable of being sub-let without
the consent of the said Resident.
30. Upon every such last-mentioned lease shall be reserved
a certain annual quitrent, which quitrent shall be payable to
the British Resident, who shall be furnished by Captain Adam
Kok with all necessary powers for recovering the same.
31. One-half the amount of all such quitrents shall annually
be handed over to Captain Adam Kok, who, as often as by
Griqua law or custom any of his subjects shall, as being the
owner of any of the lands out of which any part of such quitrent
shall have arisen, be entitled to receive any proportion of the
amount so handed over, shall satisfy the demand of his said
subjects according to their rights.
32. The remaining half of the said quitrents shall be retained
by the British Resident, and be accounted for by him to the
Colonial Government, and shall be applied to defray, as far
as it will go, the expense of his establishment, together with
that of a certain protective force which it is intended to form
and place under his control, for the suppression of violence and
crime, and maintenance of his just authority.
33. In regard to British subjects now holding lands in any
part of the Griqua territory, such of them as shall not be found
by the Colonial Government to have forfeited, by some act
or acts of conspicuous criminality, either with respect to the
Griqua nation or to the royal authority of Her Majesty the
Queen (of the nature of which acts the Governor will judge),
all claim to favourable consideration shall, under the conditions
in the next, succeeding article mentioned, be permitted peace-
ably to occupy their respective holdings.
34. The conditions of such occupation as is in the last
preceding article referred to are as follows :
ist. That the claimant or the parties under whom he
derives his rights shall have originally acquired
title by a just and bonafide contract.
2ndly. That the claimant shall have already satisfied,
or be prepared to satisfy, the full consideration
stipulated for in such contract.
3rdly. That the claimant shall profess true allegiance
to Her Majesty the Queen ; and
4thly. That the claimant shall undertake to pay to the
British Resident a certain annual assessment
as hereinafter mentioned.
35. The holdings to be subject to the said assessment shall
be classified in three classes, according to certain rules of
valuation to be in that behalf prescribed by the Colonial
Government for the British Resident ; and the assessment in
268 ORANGE FREE STATE [1846
regard to the said three classes shall respectively be 3/., 2l.,
and i/. per annum.
36. The amount of such assessment shall annually be
divided in like manner, precisely as is, by the 3ist and 32nd
articles, provided in regard to the quitrents therein mentioned.
37. Upon the expiration, from time to time, of existing
leases of lands lying within the limits in article No. 5 mentioned
and set forth, it shall not be competent for Captain Adam Kok,
or any of his subjects, again to lease the said land to any
British subject, or generally to any person of European birth or
extraction ; but such land, like all others within the said limits,
shall be thenceforth reserved for the exclusive use and occupa-
tion of the Griqua people.
38. Inasmuch as the alienation of the absolute dominion of
landed property by Griqua subjects is in direct opposition to
the well-known laws and customs of the Griqua people, the
cases, if any, in which British subjects shall have purchased,
or shall purport to have purchased, the absolute dominion of
any landed property in any part of the Griqua territory, shall
be deemed to be cases of a hiring of such property for a term of
forty years from the commencement of the occupation ; and
any leases or agreements of that nature heretofore made,
which purport to be made for a longer term than forty, years,
shall be deemed to have been originally made for that term,
and no longer.
39. Captain Adam Kok upon his part engages, as often as
he shall be so required by the British Resident, to arm, and
place under the direction of that officer, such a number of his
subjects, not exceeding 300 men, as shall be demanded by the
requisition of such officer ; which force shall remain at the
disposal, and act under the orders, of the said officer, so long
as he shall deem necessary, for the purpose of assisting to
preserve peace, and repress violence and outrage, either in
the territory of Captain Adam Kok or in the territory of any
neighbouring tribe or nation, which tribe or nation shall itself
be bound by treaty to furnish in the same manner, and accord-
ing to its strength, a contingent force of the same character.
40. The Colonial Government, besides organising such a
force under the command of the British Resident as shall be
considered necessary, will hold itself at all times prepared,
should an exigency arise, to march troops for the purpose of
crushing any attempt upon the part of any portion of Her
Majesty’s subjects to contravene by violence any of these
regulations, or resist the due authority of law, and of protecting
the Griqua people while acting justly and inoffensively in the
full enjoyment of their rights, their privileges, and their lands.
This done at the Government House, in Cape Town, this
1848] THE BASUTO STATE 269
Fifth Day of February, in the Year of Our Lord One Thousand
Eight Hundred and Forty-six.
(Signed) P. MAITLAND. (L.S.)
Signed and sealed in our presence :
(Signed) JOHN MONTAGU, Secretary to Government.
HARRY RIVERS, Treasurer-General.
W. PORTER, Attorney-General.
W. FIELD, Collector of EM. Customs.
This done at Philippolis, this Nineteenth Day of February,
in the Year of Our Lord One Thousand Eight Hundred and
Forty-six.
(Signed) ADAM KOK, Kapitein. (A.K.)
Signed and sealed in our presence :
(Signed) HENDRIK HENDRIKZE, Secretarius.
W. Y. THOMSON, Missionary. J. C. WRIGHT, [and others.]
Parl. Papers, S. Africa, C.O. (42), p. 86.
PREPARATIONS FOR ANNEXING TERRITORY.
No. 154. Agreement between Governor Sir H. G. SMITH, Bart.,
and the Basuto Chief MOSHESH. [27 Jan. 1848.]
His Excellency the High Commissioner and the great
Chief Moshesh having met this day, pursuant to appointment,
for the purpose of discussing the matter of the territory occupied
by British emigrants, part of the possessions of the great Chief
aforesaid, as well as for the purpose of considering the affairs
of Southern Africa, north of the Great Orange River, generally ;
the great Chief fully concurred in the proposition of his Excel-
lency, that peace, harmony, and tranquillity could neither be
established nor maintained without the existence of some great
and paramount authority. For the purpose therefore of
effecting this object, and at the same time of maintaining
inviolate the hereditary rights of the Chiefs, and of effectually
restraining the Boers within the limits, and upon the locations
they now possess, and that magistrates might be appointed,
and surveyors employed to ensure the same, his Excellency
proposed the Proclamation of the Sovereignty of the Queen of
England throughout all the territories over which Her Majesty’s
subjects have spread themselves, partly by purchase, partly
on toleration, and frequently without either. Of the ex-
pediency of this great measure in which the Chiefs previously
conferred with, viz., Maroka, Adam Kok, and various other
minor Chiefs, had fully concurred the Chief Moshesh most
fully approved, and strongly expressed himself that such
paramount authority was absolutely necessary for the purpose
270 ORANGE FREE STATE [1848
of maintaining, in strict alliance with Her Majesty of England,
that harmony and unanimity which it had been his wish to
preserve, and his desire to effect. His Excellency then adverted
to the treaty entered into with Sir Peregrine Maitland in 1845,
and the receipt of a part of the quitrents as therein established ;
upon which the Chief immediately said, he had not met the
High Commissioner on any pecuniary point, which he begged
to waive entirely ; but that as he had ever been a strong
and staunch friend to such of Her Majesty’s subjects as had
emigrated and desired to locate upon such territories ; so all
he hoped was, that the measure of policy the High Commis-
sioner proposed to adopt, to ensure harmony and tranquillity
between Her Majesty’s and his own subjects would be carried
out. Upon this, in the name of Her Majesty, his Excellency
highly complimented and thanked the great Chief Moshesh,
stating that he was unable to express himself as to which he
admired most, his feelings as a man, or his magnanimity as a
Chief. The High Commissioner then proposed that in honour
of this day’s cemented alliance, he may be permitted, in the
name of Her Majesty, to forward annually from Cape Town,
such articles of British manufacture as he hoped would be
acceptable to the Chief.
And thus ended the conference as mutually satisfactory to
the high contracting parties, as it is hoped its results may be
permanent and satisfactory.
Given under our hands this Twenty-seventh Day of
January 1848.
(Signed) H. G. SMITH.
his
MOSHESH, x
WINBURG, 2jth January 1848. mark.
Witnesses :
(Signed) JOHN GARVOCK.
C. CASALIS.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 91.
ESTABLISHMENT OF THE QUEEN’S SOVEREIGNTY
OVER THE TERRITORY BETWEEN THE ORANGE
AND THE VAAL RIVERS. [3 Feb. 1848.]
No. 155. Proclamation. By His Excellency Lieut.-General
Sir HENRY GEORGE WAKELYN SMITH, Baronet [etc.],
Administrator of the Government of the Settlement of
the Cape of Good Hope [etc.], and Her Majesty’s High
Commissioner [etc.].
WHEREAS, as Her Majesty’s High Commissioner for the
1848] BRITISH SOVEREIGNTY 271
settlement and adjustment of the boundaries, and an amicable
and clear understanding of the affairs and the relationship with
the chiefs, tribes, and people of the countries adjacent to the
colony of the Cape of Good Hope, I have placed upon a per-
manent foundation the preservation of peace, harmony, mutual
confidence, and the attainment of civilization on the eastern
boundary, and have personally visited the countries upon the
north and north-eastern boundary of the colony, on the line
leading to Her Majesty’s settlement of Natal, annexed to the
colony of the Cape of Good Hope, for the purpose of obtaining
information from all the various parties concerned, upon
matters so involving the interests, not only of the native chiefs
of the countries into which many of Her Majesty’s legal subjects
have established themselves, but also of those subjects them-
selves ; and have personally conferred with the leading chiefs
of the neighbouring tribes, and with many of the meritorious
and devout missionaries, as well as with the influential and
thinking men of Her Majesty’s subjects located as aforesaid ;
and have received several addresses very numerously signed
by the inhabitants, between the Orange, the Modder, and
Riet rivers, as well as from those around Bloem Fontein, and
from the Caledon river, and also those from the neighbourhood,
and at Wenburg.
Now, therefore, by virtue of the several powers and authori-
ties in me vested, and subject to Her royal confirmation, I
do hereby proclaim, declare, and make known, the sovereignty
of Her Majesty the Queen of England over the territories north
of the Great Orange river, including the countries of Moshesh,
Moroko, Molitsani, Sinkonyala, Adam Kok, Gert Taaybosch,
and other minor chiefs, so far north as to the Vaal river, and east
to the Drakensberg, or Quathlamba mountains ; with no desire
or inclination whatever on the part of Her Majesty to extend
or increase her dominions, or to deprive the chiefs and their
people of the hereditary rights acknowledged and recognized
by all civilized nations of the world, as appertaining to the
Nomadic races of the earth ; but on the contrary, with the sole
view of establishing an amicable relationship with these chiefs,
of upholding them in their hereditary rights, and protecting
them from any future aggression, or location of Her Majesty’s
subjects, as well as of providing for their rule, and the mainten-
ance of good order, and obedience to Her Majesty’s laws and
commands on the part of those of the Queen’s subjects, who,
having abandoned the land of their fathers, have located
themselves within the territories aforesaid : and I hereby
proclaim, that all the chiefs of the territories aforesaid are under
the sovereignty of Her Majesty, as the paramount and exclusive
authority in all international disputes as to territory, or in any
272 ORANGE FREE STATE [1848
case whatever tending to interrupt the general peace and
harmony of South Africa : but that their authority over their
own tribes shall be maintained, as well as their own laws,
according to their customs and usages.
And I hereby proclaim that all Her Majesty’s subjects
within the territories aforesaid, shall be governed by the laws,
ordinances, and proclamations framed, and to be framed,
for Her Majesty’s colony of the Cape of Good Hope, and that
they shall henceforth be in full possession of the rights of citizens
of the said colony, and that municipalities, corporations, and
other privileges shall be granted to them, as their increase and
improvement require.
And I do hereby proclaim that Her Majesty’s Government
assumes the responsibility to the chiefs, as regards their just
indemnification for all lands now occupied by these Her Majesty’s
subjects, upon the latter paying an annual quitrent, according
to a schedule which shall be established by a Commission
appointed for the purpose, and upon the condition that every
able-bodied man turns out in the defence of Her Majesty, and
her allies, either with arms, or as special constables, as may be
required by the British Resident and Magistrate.
The appropriation of these quitrents shall be : Firstly,
for the fair and honest remuneration and indemnification of
the native chiefs, in lieu of any and all contracts or leases entered
into by Her Majesty’s subjects, so that no breach of faith shall
exist, in the faith of an agreement entered into by Her Majesty’s
High Commissioner with the great chiefs Moshesh, Moroko,
Sinkonyala, Adam Kok, and others. Secondly, for the defraying
their own expenses of their own government, viz., the British
Resident at Bloem Fontein, Magistrates, etc., as shall hereafter
be appointed, with Sheriff’s officers, constables, etc., and Field-
Commandants and Field-Cornets, etc., as the full organization
of a government may require, and for bearing the expense of
sending into Colesberg all criminal cases which must be tried
before the judges.
And I do hereby proclaim and declare, that every trader or
other individual trafficking, or engaged in commerce, within
the territories aforesaid, shall pay an annual license of 50,
in the like manner as the traders in British Kaffraria ; these
licenses to be obtained from any Commissioner within or with-
out the colony, who are hereby authorized to grant the same ;
and all sums which thus accnie, and whatever surplus remains
of the sums collected as quitrents, after the payment of the
indemnification to the native chiefs for the lands, and the
expense of the government aforesaid, shall be vested in a fund,
under the control of a Commission, composed of members of the
Dutch Reformed Church, appointed by Her Majesty’s High
1848] BRITISH SOVEREIGNTY 273
Commissioner, for the erection of churches on such spots as may
be selected and sanctioned, and for the provision of ministers,
and hereafter for the erection of schools and for their mainten-
ance, for the improvement of roads, etc., all for the exclusive
benefit of the population north of the Orange river. And
whatever sums may be subscribed for the erection of any church
or churches as Her Majesty’s High Commissioner, I pledge
myself to advance on loan an equal sum.
And I hereby proclaim all the missionary stations within
the territories aforesaid, to be under the special protection of
Her Majesty the Queen of England.
And I hereby proclaim and declare, that this sovereignty
and paramount authority is for the sole protection and pre-
servation of the just and hereditary rights of all the native
chiefs as aforesaid, and for the rule and government of Her
Majesty’s subjects, their interests and welfare. That no benefit
whatever accrues, or is desired by Her Majesty, beyond the
satisfaction Her Majesty the Queen will ever feel in the main-
tenance of a just peace, and the improvement of the condition
of her people, and in their advancement in the blessings of
Christianity, civilization, and those habits of industry and
honesty which will elevate and civilize the barbarian, and
support and uphold the Christian community, and thus will
that peace be established which Her Majesty desires to effect,
and has the power and determination to maintain.
GOD SAVE THE QUEEN.
‘ Given under my hand, and the seal of the Colony of the
Cape of Good Hope, on the Great Tugela river, this 3rd day of
February 1848.
(Signed) H. G. SMITH.
By order of His Excellency, Her Majesty’s High Com-
missioner.
(Signed) RICHARD SOUTHEY,
Secretary to High Commissioner.
Part. Papers, C. of G. Hope, presented July 1848, p. 63.
PROVISIONAL GOVERNMENT IN THE ORANGE
RIVER SOVEREIGNTY.
No. 156. Extract of Proclamation by Sir HENRY G. W. SMITH.
[8 March 1848].
* * *
The British resident, Major Warden, in the absence of the
High Commissioner, is paramount, and is the President-in-
Chief of all Boards or Commissions, which may be formed
for all and whatever purposes.
18
274 ORANGE FREE STATE [ l8 4 8
The post of Major Warden, as British resident and magis-
trate, will be Bloem Fontein. A civil commissioner and
resident magistrate, combined in one person, will be stationed
at Wenberg, and one in the most eligible and populous neigh-
bourhood of the Caledon river. These civil commissioners
and magistrates will have a clerk and two constables attached
to each, to issue and serve summonses, and to conduct
criminals to Colesberg. No person of colour is ever to be
employed in conveying summonses, or in the execution of any
point of law, nor are any of the military at present stationed
at Bloem Fontein to be employed in matters of a civil nature.
The civil commissioners and magistrates will collect the
quitrents of their respective districts, receive the amounts to
be derived from licenses to traders, fines, and monies, which
may arise as the revenue of Her Majesty’s subjects beyond the
Orange river ; and will transmit to the High Commissioner
quarterly accounts of such receipts, and the disposal thereof,
for publication in the English and Dutch languages, that all
may be acquainted with the state of the funds.
The magistrates will keep a daily record of their proceed-
ings, cases, and decisions, and every three months a summary
of the whole will be transmitted by the British resident and
other magistrates direct to the High Commissioner, who will
submit them to the chief justice, or one of the puisne judges,
for examination and comment, in order to ensure a correct and
uniform administration of justice.
* * *
A Land Commission will be formed, consisting of the British
resident, as President-in-Chief ; the civil commissioner and
magistrate of the district in which the board is held, who
will preside in the absence of the British resident ; two land
surveyors ; and one burgher of the district elected by the
people, as members ; and the clerk to the magistrate of the
district, in which the Commission are employed, will act as
clerk to the Land Commission.
The first duty of this Commission is to divide the territory
under the sovereignty of Her Majesty, between the Great
Orange and Vaal rivers, into three districts ; the first to be
designated that of Bloem Fontein, the second that of the
Caledon river, the third that of Wenburg.
Each of these districts to be divided into field-commandant-
ships and field-cornetcies, the selection of persons for these
duties to be made by the majority of the people over whom
they are to exercise authority.
The Commission will then register each farm, take the
census of the population, record the size of the farm, and,
according to the value of the land, fix the amount of quit-
1849] BRITISH SOVEREIGNTY 275
rent from 2 to 8 per annum, which are to be regarded as the
minimum and maximum rates.
* * *
Part. Papers, C. of G. Hope, presented
July 1848, p. 65.
No. 157. REGULATIONS FOR THE GOVERNMENT OF
THE ORANGE RIVER SOVEREIGNTY.
[Some of the farmers residing in the northern half of the Sovereignty
asked and obtained assistance from the Emigrants to the north of the
Vaal. They expelled the British officials from the territory, but their
commando was defeated by a British force, marching from the Cape,
at Boomplaats on 29th August 1848. Most of the men then fled across
the Vaal, and the officials were reinstated.]
PROCLAMATION by His Excellency Lieut. -General Sir HENRY
GEORGE WAKELYN SMITH, etc. etc. [14 March 1849.]
WHEREAS by my Proclamation bearing date the 3rd of
February 1848, I did, amongst other things, proclaim and
make known the sovereignty of Her Majesty the Queen of
England over certain territories north of the Great Orange
River : And whereas it has become necessary to make pro-
vision for the better regulation of the said territories : Now,
therefore, I do hereby proclaim, declare, and make known,
that the series of Regulations hereto annexed shall, from and
after the 3ist day of March 1849, be of force within the said
territories, and that from thenceforth anything in my Pro-
clamations of the 3rd of February 1848 and the 8th of March
1848 respectively ; and anything in any other former Pro-
clamation, repugnant to, or inconsistent with, any of the
said Regulations, shall be revoked, and the same is hereby
revoked accordingly.
GOD SAVE THE QUEEN.
Given under my hand and seal of the settlement of the Cape
of Good Hope, at Cape Town, this I4th day of March 1849.
(Signed) H. G. SMITH.
By command of His Excellency the High Commissioner,
(Signed) RICHARD SOUTHEY,
Secretary to the High Commissioner.
REGULATIONS FOR THE FUTURE GOVERNMENT OF THE
SOVEREIGNTY BEYOND THE ORANGE RIVER.
Name, Extent, and Mode of Government.
I. The territory between the Orange River, the Vaal
River, and the Draakberg Mountains, over which Her Majesty’s
Sovereignty is proclaimed, shall be designated the ” Orange
River Sovereignty.”
276 ORANGE FREE STATE [1849
2. It is divided into four magistracies or districts, over
which Major Warden, the British Resident, is the paramount
authority, under his Excellency the High Commissioner :
(1) The district of Griqua Land, of which Bloem Fontein
and ” the Queen’s Fort ” is the seat of magis-
tracy, and to which Charles Urquhart Stuart,
Esq., is the appointed magistrate.
(2) The district of Winburg, of which the town of
Winburg is the seat of magistracy, and of which
Mr. Biddulph is the magistrate.
(3) The district of Vaal River, of which the new town
of Vreeddorp is the seat of magistracy, and Mr.
Paul Bester the magistrate.
(4) The district of Caledon River, of which Smithfield
is the seat of magistracy, and Mr. Vowe the
magistrate.
3. The Orange River Sovereignty will be governed by Her
Majesty’s High Commissioner, aided by a local Council, to
consist of the British Resident-in-Chief, the four other magis-
trates, and eight councillors, two for each district, to be nomi-
nated by his Excellency, from and out of the landowners of
such district holding their lands on quitrent.
4. The mode of calling together, adjourning, or dissolving
the Council will be regulated by the High Commissioner,
and hereafter announced.
5. Every unofficial councillor shall serve for a term of three
years, unless the Council shall be sooner dissolved, or on his
own resignation or incapacity.
6. The British Resident will be the President of the Council,
which will meet with open doors, once a year, at Bloem
Fontein, and oftener, if summoned by order of the High Com-
missioner, for the consideration of such matters as may be
suggested by his Excellency the High Commissioner, or pro-
posed by the President, or any member, having for their object
the benefit of all classes of people within the sovereignty.
7. The authority of the Council as to the framing of laws
shall extend over all persons within the Orange River Sov-
ereignty, not belonging to the tribe or people of any native
chief or captain within the sovereignty, in regard to acts done,
or matters arising, anywhere within the sovereignty, and over
all persons whomsoever, in regard to acts done or matters
arising within any of those parts of the said sovereignty not
belonging to any native chief or people. But in order that
the reasonable and rightful authority of the native chiefs over
their own people should be upheld, the Council will not be
competent to entertain any project by which the exclusive
1849] BRITISH SOVEREIGNTY 277
jurisdiction of any chief over his own people, in regard to crimes
or claims arising within such chief’s land, and charged or made
against any of this people, should be taken away or abridged,
but, on the contrary, such exclusive jurisdiction, and the
maintenance, in regard to the determination of such crimes
or claims, of all native laws and usages not repugnant to
decency, humanity, or natural religion, is hereby guaranteed.
8. Every unofficial member of Council, who may desire
it, will receive ten shillings a day during the sitting of Council,
as well as ten shillings for every forty miles he shall have to
travel to and from the place of meeting.
9. All measures resolved by a majority of votes in the
Council will be submitted through the President to his Ex-
cellency the High Commissioner, for his consideration and
sanction : but no legislative measure shall have the force of
law until the sanction of his Excellency the High Commis-
sioner shall be signified by a notice in the Government Gazette
of the Colony of the Cape of Good Hope. The High Commis-
sioner may, in such notice, fix whatever time he thinks proper
for the bringing into operation of any such measure ; and if no
other time be fixed, then the measure shall come into operation
at the expiration of thirty-one clear days next after the day on
which such notice shall be first published.
10. The High Commissioner will cause a correct statement
of the receipts and expenditure of all public moneys raised
within the sovereignty for the past year, to be laid before the
Council at every annual meeting, as well as an estimate of the
probable revenue and expenditure for the year next ensuing.
It shall be competent for the Council to make to the High
Commissioner any representations upon the subject which
the members shall think desirable or likely to improve the
administration of the district. The British Resident shall be
the Treasurer- General of the sovereignty.
11. Considering the nature of the country and the pursuits
of the inhabitants, it is intended that the Council should
combine with its other functions those of an Agricultural
Society, and mature and propose to the High Commissioner
plans for the advancement of agriculture, for promoting the
planting of trees, for the construction of dams, many of
which have been already completed in Griqua Land, with
great labour, and consequent advantage to the proprietors.
In fine, it is meant that the people, acting through this Council,
should devise measures calculated to advance their interests,
civil, social, and religious, and minor obstacles shall not be
suffered either to prevent or impede the accomplishment of
any good object which they shall recommend.
278 ORANGE FREE STATE [1849
Laws and Courts of Justice.
12. Subject to future alteration by the High Commissioner,
with the advice and consent of the Council, all persons within
the Orange River district, not belonging to the tribe or people
of any native chief within such district, shall be subject to the
provisions of the Roman-Dutch law, as received and adminis-
tered in the Courts of the Cape Colony ; but no local ordinance
or enactment of the Cape Colony shall be in force in the Orange
River district, unless expressly re-enacted for such district.
And persons, although belonging to native tribes and chiefs,
shall be subject to the same law in regard to acts done or
matters arising within those parts of the district not belonging
to any native chief or people.
13. Every native chief and people shall be governed and
regulated by their own laws and usages, in regard to all crimes
committed by and questions arising between any of such
people, within the peculiar territory allotted to such chief and
people, so long as such laws and usages are repugnant neither
to decency, humanity, nor natural religion, and people
belonging to one native chief, committing crimes or contract-
ing obligations in the territory belonging to any other native
chief, shall be dealt with according to the native usage hereto-
fore in force in such cases, subject always to the right of inter-
ference by the British Resident, in order to prevent irregularity
or injustice.
14. Each of the four magistrates already mentioned shall
hold a Court, and shall possess jurisdiction in all civil cases,
in which the defendants, being resident within the magistracy
of such magistrate, shall be persons subject, under the I2th
of these Regulations, in regard to the determination of such
case, to the provisions of the Roman-Dutch law, and in which
the sum or matter in dispute shall not exceed the value of
500 rds.
15. Every such magistrate’s court shall possess jurisdiction
in all cases of crimes and offences, wherein any person, subject
under the I2th of these Regulations to the Roman-Dutch law,
as contradistinguished to native law, in regard to such crime
or offence, shall be accused of any crime or offence committed
within the magistracy of such magistrate ; but no such magis-
trate shall punish any offender in any higher or more severe
manner than by a fine not exceeding 300 rds., and imprison-
ment with or without hard labour, for not more than four
months ; and such magistrate may, either with imprisonment
or without, adjudge the offender to receive corporal punish-
ment in any number of lashes not exceeding twenty-five.
16. The magistrates aforesaid, in the exercise of their
1849] BRITISH SOVEREIGNTY 279
jurisdiction both civil and criminal, shall conform themselves
to the rules for the time being in force in regard to the courts
of resident magistrate of the Cape Colony, with such alterations
and adaptations as the High Commissioner shall sanction and
approve.
17. For the trial of any person subject under these regula-
tions to the Roman-Dutch law, in regard to such crime or
offence, who shall be accused of any crime or offence committed
within the Orange River sovereignty, which from its nature
or circumstances shall be of too aggravated a character to be
dealt with under the summary jurisdiction of the magistrate,
a court, to consist of not less than three out of the four magis-
trates, shall be holden at such times and places and before
such magistrates as the British Resident shall appoint ; and
such court shall be competent to adjudge any such punishment
as may lawfully be adjudged by a Circuit Court of the Colony
of the Cape of Good Hope, subject, nevertheless, to the two
following restrictions : first, that in regard to any person who
shall, as a British subject, be liable, under the Act 6 & 7
Will, iv., chap. 57, to be tried by the courts of the said colony,
for the crime of which he is accused, such court shall not be
competent to punish such person in any higher or more severe
manner than by fine not exceeding 1000 rds., and imprisonment
with or without hard labour, for a period not exceeding two
years ; but such court may, either with or without imprison-
ment, adjudge the offender to receive corporal punishment
in any number of lashes not exceeding 50 ; and secondly,
subject to the restriction, that in every case in which the
accused person shall be one of the people of any native chief
within the said district, charged with having committed a
crime in a part of the said district not belonging to any native
chief or people, the chief to whom such accused person shall
belong shall have due notice of the time and place of trial,
and shall be invited to be present at the same, or to send some-
one to represent him thereat ; and such chief or other person
shall have liberty to put such questions and make such remarks
as he may think necessary to the right of determination of
the case. Such court as aforesaid may consist, when the
British Resident shall so appoint, of the whole four magis-
trates, and unanimity shall be necessary in every verdict of
guilty, and in the degree of every punishment awarded.
18. Every such court as in the last preceding section men-
tioned shall possess jurisdiction in all civil cases in which the
defendants, being persons resident within the Orange River
sovereignty, shall be subject under the I2th of these Regula-
tions, to the Roman- Dutch law.
19. Every such last-mentioned court shall, in the exercise
280 ORANGE FREE STATE [1849
of its jurisdiction, conform, as much as may be, to the practice
of the magistrates’ courts, unless in so far as the High Commis-
sioner may otherwise provide.
20. Every magistrate within whose district any crime
shall be committed by any person subject as to such crime to
the Roman-Dutch law, as contradistinguished from native law,
may issue his warrant for apprehending the offender or supposed
offender, which warrant shall be executable in any part of the
Orange River sovereignty not belonging to any native chief,
and also in the lands of any such chief who shall so direct.
But such chief, should he prefer it, may himself arrest and
deliver up the alleged offender to be dealt with according to law.
21. The High Commissioner will appoint justices of the
peace, and field-cornets, and the several magistrates will,
subject to his Excellency’s approval, appoint constables, and
every justice of the peace, field-cornet, and constable shall
possess and exercise, within those parts of the sovereignty
not belonging to any native chief or people, all powers, auth-
orities, and duties, belonging to the like office in the colony of
the Cape.
22. Officers of the law, and private persons, respectively,
may arrest without warrant in the Orange River sovereignty,
persons accused of crimes committed within the sovereignty,
and triable by the Roman-Dutch law, which persons might
lawfully have been arrested by the same or similar parties
within the colony of the Cape, if accused of crimes committed
therein.
23. [Records of all cases tried must be submitted to the
High Commissioner. Sentences may not be carried out with-
out his approval if they involve imprisonment exceeding
six months, fines exceeding 150 rds., punishment with any
number of lashes exceeding 50, 1 etc.]
24. The duties of public prosecutor, when necessary to be
performed, shall be discharged by such officer or person as the
High Commissioner shall direct.
25. Whenever any person shall be accused of any crime
or offence of too grave a nature to be tried either by the magis-
trate under his summary jurisdiction, or by the court of com-
bined magistrates already described, and such person shall,
as a British subject, be liable under the Act 6 & 7 Will, iv.,
chap. 57, to be tried by the courts of the Cape Colony ; such
accused person shall be sent into the colony to be dealt with
according to law.
26. As often as any crime shall be committed in any
territory within the said sovereignty belonging to any native
1 This seems to be the intention of a long and muddled clause which does
not keep account with the provisions of preceding clauses.
1854] BLOEMFONTEIN CONVENTION 281
chief or people, by any person belonging to any native chief
within the said sovereignty, the nearest magistrate, upon
being applied to for that purpose by any person injured by the
crime, and not being one of the people of the same chief who
shall, by native law or usage, have jurisdiction over the accused
party, shall make, if necessary, such representations to such
chief as shall tend to secure or further the ends of justice.
27. When any doubt or question shall arise as to the
court to which any accused person should be sent for trial,
the matter shall be decided by the British Resident.
Tenure of Land.
28. To avoid occasions of contention, prevent unjust
encroachments in any quarter and preserve the just rights of
all, the lands of which the continued and exclusive use shall be
secured to the several- native chiefs and people within the Orange
River sovereignty, are to be carefully ascertained and defined.
29. The lands within the Orange River sovereignty belong-
ing to any native chief and people, are to be protected for
the use of such chief and people, and shall be regulated by
the laws and usages of such chief and people in regard to all
rights of occupation or inheritance, and all questions touching
the same shall, as heretofore, be determined by the tribunals
of such chief and people.
30. All lands within the Orange River sovereignty, not
allotted to any native chief or people, shall be held of Her
Majesty the Queen, by grant, on such moderate quitrents
as may be fixed ; such grants to be in the name of the High
Commissioner, acting on Her Majesty’s behalf, and to be
signed, under his Excellency’s order, by the British Resident.
31. The amount of such quit-rents, together with every
sort and description of revenue raised within the sovereignty,
shall be applied exclusively for the benefit of the same.
32-34. [About licenses.]
35-36. [About churches and schools.]
37-38. [About the post and roads.]
[The foregoing Regulations are subject to alteration from
time to time.]
(Signed) H. G. SMITH.
Parl. Papers, C. of G. Hope, presented 19 May 1851, p. 3.
No. 158. THE BLOEMFONTEIN CONVENTION.
[23 Feb. 1854.]
[The defence of the country was a costly undertaking, especially
as its white inhabitants were almost continually being plundered by
the people of the powerful Basuto king, Moshesh. Towards the end of
282 ORANGE FREE STATE [1854
1852 an attempt was made to chastise that chieftain, but little was
effected. The half-formed resolution of the British Government
to abandon the Sovereignty was then definitely adopted ; but the
condition of the country was at a very low ebb, many of the efficient
fighting men among the white inhabitants had proceeded across the
Vaal, and under the circumstances the majority of the inhabitants
were strongly desirous of retaining British protection, though they
asked for a liberal form of government. The British Commissioner
had some difficulty in persuading representatives of the people elected
for the purpose to take over the government ; but on 3oth January
1854 a royal proclamation was issued, renouncing all dominion over
the Territory, and a little later the agreement given here was arrived at.]
Articles of Convention entered into between Sir GEORGE
RUSSEL CLERK, . . . Her Majesty’s Special Commissioner
for settling and adjusting the affairs of the Orange River
Territory, on the one part, and the under-mentioned
representatives, delegated by the inhabitants of the said
Territory :
For the District of Bloemfontein. GEORGE FREDERIK
LINDE, [and 3 others] ;
For the District of Smithfield. JOSIAS PHILIP HOFF-
MAN, [and 4 others] ;
For Sannah’s Poort. GERT PETRUS VISSER, Justice
of the Peace, [and 5 others] ;
For the District of Winburg. FREDRIK PETER
SCHNEHAGE, [and 5 others] ;
For the District of Harrismith. PAUL MICHIEL
BESTER, Justice of the Peace, [and 5 others] ;
on the other part.
ARTICLE i. Her Majesty’s Special Commissioner, in