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, two burghers were appointed to the The Council Council, but they were pensioners of the Governin 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. 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 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." The Charters 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 That instrument was superseded by of Justice, another Charter of Justice in 1834.7 Up to this 1827 and time the Governor had appointed and removed the 1834. 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 interference in the administration of justice between individuals would entirely cease. 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. 1834. As the Great Trek of 1836 led to the settlement of Natal and the two Republics the matter will be discussed under those headings. No. 55. Colonel John Bell to R. W. Hay, 7 June 1834. P.R.O., MS. in C.O. 48/159. ' No. 76. Rec. XXXII. 254 ff. 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 colonial 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 liberal of a liberal spirit which manifested itself during this policy in decade. With the growth of the free trade moveEngland. ment 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 selfrule, like Lord Durham and his circle, were the staunchest of imperialists. Rather, it was felt that the colonies were outgrowing the systems of the later eighteenth and the early nineteenth 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 inhabitants, 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 attempting 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. 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 unusually liberal 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 constitution far more liberal than that of any other colony except Canada-where the principle of responsible government had been introduced in 1846 and of a more thoroughly representative 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. с * Merivale, Lect. on Col., p. 636. 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 arrangement 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 from 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 consequently 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 extraction. 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 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 objectlesson, 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 accomplishment 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 30th of June 1854. What repre § 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 the Chief Justice in virtue of his office, the executive sentative power remained in the hands of a body of high government officials, the chief of whom occupied seats in either meant. 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 |