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 via media. 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 Australia. 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 governResponsible 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 accordcolonial self- ing to the wishes of the Cabinet. "The advice government. of the Ministers is the act of the Crown." In works on colonial constitutions a good deal is always said about the advice of Ministers given to their Governors, but nothing about the Governor's advice to his Ministers; yet in matters of imperial interest-if in no others-such advice is given, and it is generally effective. In such matters a wide discretion is left to the Governor. Whilst he is expressly [C-7013], p. 38.

2 Nos. 126-128,

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 without 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.

2

But whilst a degree of freedom was theoretically reserved to the Governor for cases of emergency, it was actually the policy Growing of the white population that was eventually carried influence of out. In 1896 a law was passed which in effect the colonists. placed in the hands of the Ministers the power to grant or withhold the franchise in the case of the Indian residents,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 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 selfgoverning colonies of South Africa.

SECTION V.

THE ORANGE FREE STATE, 1886-1910.

The narrative relating to the course of events in the territory 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 immigration. 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

populated by white men. First, there were people who without 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 PotchefConditions stroom were not only the settlers to the north of before the the Vaal, but also, though in a somewhat vague establishment of British and unsettled manner, most of those who had rule. 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: (1) 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

Parl. Papers, S. Africa, C.O. 42, pp. 57-61. Cf. Theal., Hist. of S.A. 1795-1872 II. 481 ff., and Documents Nos. 153 and 154 below.

the country which was bordered by the Orange and the Vaal. There the town of Bloemfontein arose. A little to the northward was the town of Winburg, where a landdrost and heemraden 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 intervene 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 proclamation was issued in 1848 annexing to the Queen's dominions the territory lying between the Orange and the Vaal west of the Drakensbergen.1

Who was to

the new Colony?

The question arose, by what title did the Crown hold authority over the new Colony? The Attorney-General of the Cape took the view that the Orange River legislate for Sovereignty, as it came to be called, was "a colony by occupancy." This the High Commissioner 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, .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

1 No. 155.

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 therefore 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.

under the

British

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 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 employment 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.

Reasons for

In 1854 the Sovereignty was abandoned by Great Britain. Even to-day the reasons for this withdrawal are not quite plain. Probably many motives were at work. the abandon. Britain was drifting into war with Russia to supment of the port Turkey and defend her Asiatic possessions. sovereignty. 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 withdrawal there were serious troubles with the natives within 1 Parl. Papers, O.R. Sovereignty, 19th May 1851, P. 73. 2 No. 156.

No. 157.