John William Akerman to Frederick Chesson, 18 December 1875
Archive location: Bodleian Libraries, MSS. Brit. Emp. s. 18 / C123 – 69
Author(s): Darren Reid
Recipient(s): Frederick Chesson
Sent from: Natal
Date: 18 December 1875
December 18 1875
F.W. Chesson Esq
Knowing the interest taken by your Society in the questions affecting native races I have ventured to claim your attention to the progress of the ‘Native Bill’ for Natal intended as it is slated to commence the work so long delayed and officially opposed of native progress and improvement. By this mail I send you by book past printed copies of the above Bill in three stages. First as sent down to the L. Council by the government. Second as re-cast by a select committee after passing a second reading. Thirdly as it emerged from a Committee of the whole house and become passed at third reading. I shall esteem it a favour if you will bring the principles of the first session measure especially to the notice of your influential parliamentary directors, so that they may prevail on the Secretary of State to remit it back to the colony for restoration to the form in which it was brought up by the select committee. This committee was a large and influential one, consisting of … Shepstone, Col Lloyd, Manning, Robinson, … Boshoff (late president of the F. State), C Barter – Attorney General – and J.W. Akerman. You will know from my last communication that I opposed the second reading. From my printed speech you will have gathered my reasons for so doing. I took pretty much the view of your Society as published that the original Bill did no more than make the Secy for native affairs both lawgiver, lawmaker and judge; and retained that most objectionable mixing up of the political with the judicial elements so condemned in the Langalibalele case. It did even more than this. It constituted and independent legislature, quite repugnant to Clause 6 of the Royal Charter, with respect to native law while it was quite silent on the question of the publication of this ‘lex non scripta’.
Now the select committee quite change the character of the Bill. For the courts presided over by native chiefs, it enjoined that as they are unlettered their courts shall become courts of records by communicating their proceedings to the magistrate above them within ten days, which proceedings the magistrate being a man of education shall records (clause 3). The next affect is to the magistrate from the course of the native. From there to the native high court which shall be a branch of the supreme court (clause 7). And the final court of appeal was to consist of judges of the supreme court aided by the judge of the high court, the majority being judges of education and legal training. The native law, uncertainty and general ignorance of which has wrought so much evil and injustice for 30 years of British rule, was to be reduced to writing and published within two years and from time to time thereafter might be amended and changed by a [Board?] subject to the approval of the legislature instead of the governor only. We were assured in select committee that the Secy for native affairs would not take the judgeship of the native high courts, and thus we were enabled to make the Bill homogenous and constitutional from first to last, the only unusual deviation being the intervention of the Board the object of which I will now explain. You will perceive that this Board is to exercise a sort of inferior legislative capacity and this only. That is consists of seven persons (clause 10) of whom the Secy for native affairs was but one. That its members comprised the highest legal [functionaries?] of the colony and therefore we have a guarantee that those offensive customs and usages of the natives which keep them in bondage to heathenism by being brought … before so high an authority would wither a reasonable … be discouraged by law. Another advantage of the description of primary legislation was that not public free discussion could take place without native observation or disquietude. To meet a difficulty that might arise on asking the supreme court to act as a final appeal for the administration of an oral law, we permitted the governor to appoint temporarily his own court until the native law should be published (clause 9). No doubt that 6 or 8 months is quite ample for this although we have extended it to a possible two years. You will thus see that we provided a practical and useful measure strictly preserving judicial consistency throughout. The house generally was prepared to accept the result of our labours extending over 58 hours of application; a result acquiesced in in Select Committee by Mr Shepstone and the other government members of it. To my great grief however when the Bill got into Committee of the whole house, as it appears to me and most thoughtful colonists, that very portion of it which was to be at once the check and educator as well as the completion of a structure suitable to the end in view (see title of Bill as amended) has been expunged at the instigation of Mr Shepstone; and at the culminating point of successful progress the political element has been thrust back again upon the judicial …. The native high court will be no longer a bench of the supreme court, and the supreme court no longer the court of appeal. But instead of this (see clause of Bill as passed) such court of appeal is to consist of one judge, Secy for native affairs and judge of native high court. I need hardly point out that the judge of the supreme court will avoid sitting if possible in such association and that practically the Secy for native affairs with his probable nominee and … the judge of the native court will thus rule the whole native judicial system as now, though strictly a political officer. You of course know that native law as now administered recognises the governor as supreme chief and judge. In practice however the Sec for native affairs as his deputy has acted as judge and we have all felt how lamentably the system has failed in the past. Now however under another name, but as truly the system is ratified and confirmed by statute law. A moment’s reflection will show you how this vital and disastrous change destroys the intention of our amended Bill. The educated judicial mind provided for on the Board which in the appeal court as supreme court would have come in contact with native law, enabling it to see in what direction reform should take place, is by this new arrangement excluded from such contact and rendered inoperative. In fact we have at the last moment by doing this violence to the Bill imitated the man who having build a well appointed mansion removed from it the only roof suitable for its protection. It is this part of the Bill we wish the Secy of State to direct to be changed back again. I believe that had the house known of such an intention on the part of the government members it would not have succeeded. Being satisfied with the Bill of the select committee members were absent from the committee of the of the whole house so that these retrograde changes which were proposed without notice inflicting on the house what I deem a breach of faith were carried. Yet even with nominees and absence of electives, the government had only a lame majority of one. I must leave the matter in your hands. If the Secy of state really desires to exclude judicial questions from political jurisprudence he will do what I wish. If through non-acquaintance with the subject he declines then the consequences must rest upon the right shoulders. I may tell you that other amendments of an excellent nature were proposed by Mr Boshoff in select committee but being lost do not appear in the Bill. These were to the effect that marriages of natives by missionaries or marriage officers should emancipate such from native law. That cattle paid for women should not hereafter be recoverable in the courts. That no second or polygamous marriage in the future should be held as legal …. All these indispensable changes if you wish to elevate the natives I cordially supported but of course was opposed by the Secy for native affairs. In conclusion I would add how degraded many of us felt as being called on to legalise this ‘native law’ even though it is for the purpose of initiating reform. The whole … on which it rests may be described as two-fold. Chieftainship with its concomitant tribal association, and woman-purchase under the name of marriage. All this we have had to legalise in order to being that improvement so many years officially neglected. When in London I pointed out to you that the natives would never be elevated so long as ‘the conservation of heathendom ministered to official emolument or importance.’ This I respect. And by enacting that all ‘civil cases before natives shall be decided by native law’ I fear we relegate to fossilized barbarism thousands and thousands of natives quite prepared at once through long commercial contact with colonists to emerge from tribalism, become loyal and individual land holders and be governed by the ordinary colonial law. But we are helpless in this matter. We are ordered by Britain to place the chain of bondage on the necks of these natives, whether willing or not to become colonists. Finally I am of opinion that the general operation of the measure proposed will in no way whatever break down in practice the power of chieftainship whatever theoretically the salutary intention of the authorities at home may be. It has been heretofore as much in the power of our local authorities to do this as it was for Chaka or Dingaan; but there has I fear been no desire. Can this law inspire a desire? Never, in the breast of the prejudiced or unwilling.
Apologising for troubling you with so long a communication.
I reopen my letter to explain that a very heavy legislative session leaves no time to revise this letter; yet I [hurt?] it so sufficiently explicit to bring this important material question before your Society.
Further, I wish to add on the whole question believing how little of it the Secy of state really understands, that is judging from the Bill his lordship transmitted, that if the Secretary for native affairs is made by law to be a judge of the appeal court and retrain his present office as well; then the British government will have less power over the system than at present although the contrary is believed. As such judge now the Secy for native affairs is but the deputy of the governor as supreme chief. The governor is directly responsible to the Queen and mal-administration subject him as in the case of Sir B Pine to recall. But under this arrangement all this responsibility ceases, so that unless the extreme measure is resorted to of dismissing from office the Secy for native affairs, he can, as a judge by law, defy every one. As the Bill now stands the Secy for native affairs is both Executive officer, has a seat in the L Council … office, sits on the native law revising board, controls all the magistrates and high court, and will be the supreme judge independent of the government. I ask is it safe expedient or proper that one person should have all this power, especially in giving decisions on Political questions?