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MSS. Brit. Emp. S. 18 / C131-91
Dec 11 1875
My dear Mr Chesson,
The great event of the past week has been the reappearance of the Native Adm Bill out of the hands of the Select Committee. It is now before a Cee of the whole House, but will I expect be passed without any alteration as brought up by the Spe Cee, more expecially as the members are getting very tired, and are anxious to bring the session to a close as soon as possible. I send you a copy of the bill as now framed, and if you compare it with the Bill as introduced by Gov you will see a wonderful difference in it. I cannot understand Ld. C.’s sending us out such a wretched mockery of all our hopes and expectations as that Bill of his. I can only suppose that, with his multitude of cares, he had left the whole matter in Mr Shepstone’s hands, and did not understand the state of things here sufficiently to see how utterly unworthy of the occasion such legislature as that proposed by Mr S. would be. I suppose that Mr S., relying on the ten nominees as originally proposed, any or all of whom might have been government officers, or, in case the change of constitution was not effected peacefully with the consent of the House, knowing that Natal would be reduced to a Crown Colony and then any law might be passed at the will of the Gov, really did expect to have his Bill enacted, and therefore so worded it as to make himself the real centre and source of everything for the natives. The result, however, is that he has made Lord C. himself utterly suspected and distrusted, as saying one thing and doing another. A really good native bill (such as the present bill is, as modified by the Committee) would have immensely strengthened Ld. C’s position in the hearts of the colonists, notwithstanding all he has done (as they fancy) to their injury. But the bill as sent out has (I am persuaded) left a very unfavourable impression on the mind of the whole colony, as a most inept attempt at legislation, and showing that he had utterly failed to grasp the real needs and demands of the colony at the present moment. I should be obliged to assent to this, if I really believed that Lord C personally had a hand in drafting this bill. No doubt, he has assented to it, and perhaps under the circumstances, frightened as he was by the ridiculous alarms as to the danger of European and native disturbances which Sir B Pine propagated, and I fear Mr S supposed he could hardly have done otherwise. But I fully believe that from beginning to end the original bill was the composition of Mr Shepstone.
However this may be that bill is now a thing of the past. As I said in my last, the House by reading the bill a second time, merely enunciated their opinion that some bill of this kind was needed, without in any way committing themselves to details. And accordingly it has come out of Committee with all its main features essentially altered. I draw your attention to:
1. The additional clause in the title
2. The designation ‘Administrators of Native Law’, which is a decided improvement on ‘Magistrates for Native Affairs’
3. The last clause in paragraph 5, which has been added
4. In 6a, the insertion of ‘at the discretion of the Att. Gen, which leaves to him the decision in such cases, whereas in the original draft (if I mistake not) it was left to the discretion of the High Court, i.e. of Mr Shepstone, as in that draft contemplated.
5. The High C. is not now limited to passing sentence of ten years imprisonment, but only cannot pass a capital sentence (6c).
6. The High Court can only now remit to ‘one or more Admrs of Native Law’ cases of injury arising out of riots or faction fights, not all the excepted cases, as before (6c).
7. The new High Court to be a branch of the Supreme Court, which brings it at once into subjection to the rules of justice and fair play, which were so completely set aside in poor Langa’s case (7)
8. The Sec for Nat Affairs is no longer named as possibly the judge of the H.C. (7), and he is positively excluded by the terms constituting the native board in (10)
9. The assessors are no more to be nominated by the Gov, i.e. the SNA, but according to rules to be prescribed by the board (10b) and there is room therefore for such an arrangement as I have suggested, viz. that out of the roll of chiefs attached to each magistracy a certain number, taken in turn as from a jury list, shall be called to sit as assessors, and such an arrangement may be modified from time to time, as experience suggests to be best.
10. The nature of the cases to be brought before the High Court, which is very different from the schedule as given in the Bill.
11. The payment and rank assigned to the judge (8) which are just what they ought to be.
12. Appeals from the H.C. to be made to the Supreme Court, instead of to the ‘Governor in Council’, that is, to Mr Shepstone, and all appeals to be settled by the board (10c), not merely from ‘all decisions of the NHC sitting as a count of first instance’, which would have been identically the resusetation and legalization of that detestable high court, with the Gov in Council for Court of Appeal, which sat in the case of poor Langa, except only that the SNA, and not Sir B.P., would have presided in the court of first instance.
13. The provision in (9) for a court of appeal to be nominated by the Govr for the present necessity, till the Native Law is reduced to writing, is, of course, very right and proper, and he is not compelled to name the SNA as president of such a court.
14. Native Law to be reduced to writing in two years! (9) Hurrah! But who is going to do it?
15. The ‘board’ is splendid, and the list of its duties (10)
16. The provision for the publication of native law in (11) is also excellent.
17. Fines and fees not to go to ‘Native Purposes Fund’ (12).
18. ‘Found guilty’ introduced in (13).
These, I believe, are the chief modifications which have a present been introduced into the bill, and you will see that they are of the utmost importance, and dislodge the SNA altogether from the imperious position he was to hold under the original bill.
If any more alterations are made, I expect that I shall be able to inform you about them before I close this letter. But this bill is not to take effect till ‘Her Majesty’s confirmation thereof and assent thereto’ has been published in the Gov Gazette, so that it goes home for Ld Carnarvon’s consideration. I expect that he will be quite willing to accept it as it stands, and I think it embodies almost every suggestion of any consequence which I myself have ever made, including the identical board of seven which I expressly suggested to Ld Carnarvon. The change of name from ‘Magistrates for Native Affairs’ to ‘Admters of Native Law’ reduces the latter to their proper position as mere subordinate officials, and not magistrates, in short, officials who relieve the magistrates of some of their outlying labour among the natives. I rather wish that they had been made subject to the magistrate in some way, as they are most likely to be inferior men of colonial training, who will take upon themselves great airs. However, they are subject to the High Court and that to the Supreme Court; and with this, I suppose, we must be content. But the only point which I do wish to see altered is the appointment of one sole judge of the High Court. There ought to be two at all [events?], for several reasons.
1. There ought to be periodical circuits made by the High Court Judge to the different magistracies, (a) to bring some to the native mind the Queen’s authority, (b) to save the natives, parties, and witnesses, in any case, the tedious labour and expense of going up to Maritzburg for all appeals, which practically would prevent very many of such appeals being heard, and I hold that it is for better that they should occupy and amuse themselves with going to law, then have nothing to think of but beer-drinking and martial exercises, etc, (c) to bring the indunas under review and as the periodical arrival of a judge would do a great deal towards purging the magistrates’ courts of some very gross evils, arising from lying and dishonest indunas, e.g., …, and I may add another of these indunas, …, who is a thorough scoundrel, though not yet exposed. Now one judge cannot possibly do this work of visitation.
2. Two judges would strengthen and take counsel with each other, would do the work of codifying more effectively, would bring more life and energy into the whole work.
3. It is, I think, not at all probable, that Mr Shepstone will resign his present office, and take the judgeship, the income being the same in both cases. In that case, with Matshana’s case in my mind, I should be very sorry indeed to see the High Court represented only by Mr Shepstone.
It would of course be easy for Ld Carnarvon in returning the bill to recommend the modification of clause (7), so as to appoint two judges, with a view to their going on circuit to the different magistracies, and to authorize Sir H.B. to make it ‘law’ when such an alteration has been introduced. However, I at this moment learn that the mail which arrived an hour ago leaves again in an hour or two, and I have no time to add more. The bill I see has passed through the committee with what (if any) modifications I know not, and will be read a third time.
Very truly yours
Sunday, Dec 13 1875
I have now to communicate the fact that Mr S. has been too much for the House, and has managed to get the Bill vitally altered, and in fact to secure for himself a stronger position than ever in respect of the natives.
From my former letter you will learn that the Special Committee, after taking a month for consideration, brought up their amended Bill, which whatever defects it still had was an immense step in advance. That Bill, as Mr Barter said in presenting it as chairman, was the result of a ‘compromise.’ The Committee was most fairly constituted for Govt purposes, consisting, as you know, of three out of the five official members of the House (viz. the SNA, the Protector of Coolies, and the Attorney-General), of one thorough-going Gov. nominee (Manning)and of four electives (Barter, Akerman, Boshef, and Robinson), of whom, however, Barter was in the chair, so that on any critical vote the Gov was sure of 4 votes to 3. However, by virtue of ‘compromise’, they brough up a report in which they concurred unanimously. Mr S., of course, was a party to this ‘compromise’, but then he gets Sir H. Bulwer to send … the Bill with a message … certain changes; for, of course, Sir H.B. under such circumstances could only have acted by Mr S.’s advice, as he cannot possibly have made himself personally master of the native question, after so short a residence here, and having been so much occupied with other important matters, besides being (as people say) very slow in mastering all matters that come under his cognisance; though I have the most perfect confidence in his good intentions, and as far as I can judge at present, in his ability also. And in that message he recommended one most serious change in the Bill, which has unfortunately been adopted. I do not yet know how the voting went. But most probably the Governor’s wishes were supported by the 5 officials (though 3 were parties to the ‘compromise’) and the 7 nominees, and probably some of the electives, who were thoroughly tired with this long, laborious session in the hottest season of the year, and had been for a week or 10 days past anxious to close the work of the session and to get away to their homes (like MPs in August), and so must have been moreover taken quite by surprise by such a message and were probably, some of them, not sharp enough to see what the change in question really implied.
The modification in question is this. Instead of the appeal lying to ‘the Supreme Court and the Judge of the High Court’, as decided by the committee, it is now to be to the SNA, the Judge of the High Court, and the chief justice or one of the … judges. Now wee what this amounts to. The Judge of the High Court is to be ‘specially appointed by the Governor’, in other words, is to be appointed by the SNA, and will very probably be one of the Resident Magistrates such as Mr Bird or Mr Hawkins, whose voices on the Langa trial were merely echoes of that of the SNA. Lord Carnarvon has just sent out a despatch to say that he will not sanction a second… judge, though we have at this moment a Resident Magistrate acting as second … judge; and possibly he may be transferred to the High Court, unless the will of the colony, as expressed repeatedly by the Leg. Council and now expressed again in a series of resolutions, should prevail against Lord Carnarvon’s decision. But in any case a single … judge will not avail much against the SNA and the judge of the High Court, if the latter is one who has been already colonialised. And to me it appears plain that the High Court, as now to be constituted, will practically be the SNA, though the presence of a … judge may protect the proceedings from some of the outward and palpable monstrosities of the late trials. In other words we shall have the very man, who by his own mismanagement (as in Langa’s case) may have caused the outbreak, and against whom (practically) the offence will have been committed, sitting in appeal as chief judge, that he certainly will be on ‘all crimes and offences of a political character’, which cannot be brought under the colonial law, as the attorney general admitted was the case with poor Langalibalele! That is, we have the very same court constituted in effect for the decision, the final decision, of such cases as all England has condemned in the recent trials. Moreover, then the appeal lay to the Governor himself with his executive council, and with such a man as Sir H Bulwer that would have been (I am persuaded) a guarantee of justice and fair play. Now the decision is to be taken out of his hands, and placed in that of the SNA. Further, although the provision of Clause 9 in the Bill as brought up amended, that ‘such native law shall be reduced to writing and published within a period of two years from the passing of the law’ does not ensure the codification in question, yet the fact that the Supreme Court was made the Court of Appeal practically did so, as the judges would, of course, have insisted on such codification before they heard an appeal. Now the SNA and his judge of the High Court will not need such a written law, and a single … judge will hardly be likely to insist upon it. And instead of the proceedings under native law being carried on in a line which ultimately falls in with those under the ordinary colonial law and may gradually be made to do so altogether, there will be two separate systems, carried on side by side on parallel lines. And with what possible object? I cannot conceive any, except to maintain Mr Shepstone’s position with the natives; for surely there can be no well-grounded objection to the Supreme Court being the Court of Appeal. Whoever might be SNA, I should say that it is most undesirable that the ruler and lawgiver (as he will be till the native law is codified) should be also the judge, should be the chief judge or judge at all, in matters which may have sprung (as Langa’s case undoubtedly did) from faults of his own, and which therefore he may be tempted to adjudicate in such as way, as to shelter himself from the consequences of his own misdoings. But when I know that this has actually happened in Langa’s case, and when I have before me also the revelations of the Matshana Enquiry, and see how deeply the SNA is implicated in the dishonesty and falsehood of his brother, I utterly distrust him as chief judge, and practially the judge, in this Court of Appeal. Even the … judge must take from his mouth explanations on Native matters to a great extent. How for instance could he have believed that, when Mr S. asserted that the utterance of the cry ‘Uotshona!’ by Matshana’s men was a sign of insult, and in the Zulu country would be punished with death, the statement was absolutely without any real foundation in fact?
What now is to be done? Mr Akerman, I hear, is much distressed, and intends to move that at this … of the session, when some members are already gone home, and all are utterly worn out, it is not expedient to pass the Bill in the form it has now suddenly assumed. No doubt, it would be very wise, if this motion could be carried and the Bill sent home for Lord Carnarvon’s suggestions. But there is no hope, I fear, of this. The Bill will be passed, but the last clause (if retained as brought up) delays its taking effect till the receipt of Her Majesty’s confirmation and assent. It may be possible therefore to do something in England, if the matter be taken up at once and energetically by the friends of the cause.
Two courses are open, I think, which Lord C. might take, if so disposed, and either of which would meet the present difficulty.
1. He might send the Bill back, approving of it as a whole, but recommending that the ‘Supreme Court and the Judge of the High Court” should be substituted, as recommended by the Committee after long and careful deliberation, for the Court of Appeal now constituted; and he might also be persuaded to recommend, on the grounds mentioned in my former letter, the insertion of a clause empowering the Govt to appoint, if he thought proper, a second judge of the High Court. This last seems to me for the reasons I have stated very desirable. But it is not of the same vital importance as the first point.
2. If Lord C. will not do this then I do most sincerely hope that he will send out a good man from England, there is not a person in the colony fit for the office: everyone here is more or less ‘colonialized’. We sadly want an infusion of good, generous, just, English feeling. The income as at present provided, is that of a … judge, 800 pounds per annum: but the Leg. Council voted 1200 pounds for the Chief Justice and 1000 pounds for each of two … judges, and will perhaps in the end have its way in this, as certainly it seems to be a matter on which the feelings of the colonists ought to be consulted. However, at present the income would only bee 800 pounds. Could not a good man be found for this in England? If Mr Haliburton is still there, who is a conservative, and has some claims on the Colonial Office, and would gladly have taken a … judgeship in this colony when I was in England, he would (as far as I know him) be the very man for such a post. No doubt you know more about him than I do. He was to be found at the National Club, and, if still looking for employment at Lord Carnarvon’s hands, would I feel sure take gladly such a post as this. Of course, there would be no difficulty in his mastering native law sufficiently in a very short time. If it were codified, he could do it easily; and till it is codified, he would have to be guided by the SNA. But he is an independent and an able man, who would not long be in leading-strings. However, many other, I should hope, might be found in England as good as he: here it is perfectly helpless to find them. Has one person, for instance, (except the editor of the Colonist) come forward to say a word in support of my action in Langa’s case? Yet everyday only shows more clearly what an [iniquitous?] affair that was from beginning to end. And so, in the case of the Putini people, you will see what has been said in the House; but you will not see so plainly stated what I heard this day from Mr Windham, an intimate friend, indeed former house-pupil of mine, well known to Mr [Domuile?], a thorough conservative and government nominee, one of the few gentleman in the colony; he told me that Mr Shepstone told the House that the Putini people were strongly implicated in Langalibalele’s affair, and he was himself evidently affected by this statement in giving his vote (against the 3,000 pounds). Yet afterwards, as I said in my former letter, Mr S. found that he was going too far in opposition to Lord C’s decision, which no doubt he supported when in England, wishing to throw the whole blaming that affair on Sir B.P. and W. Macfarlane, I said that there was ‘a little complicity’ in these words, they allowed some fugitive women and cows for their children, possible a few cattle, to take refuge among them. And I distinctly remember Mr S. himself telling me at the time that there were very few of Langa’s cattle … captured in Putini’s tribe. I do hope that Lord C. will act resolutely about making restitution. The best thing he could do would be to turn this into a Crown Colony, and Mr Akerman himself has said so this day, though he would rather have responsible gov. Another member (Hartley …) has said the same, and it is my belief that the colony generally would rejoice if Lord C. would only take the bull bu the horns, and make us a Crown Colony for five years.
You will see among the cuttings Mr Barter’s resolutions about the bench of judges. I fancy that Lord C. must give way on this point, both as to number of judges and income. But could not a compromise be suggested, viz. making such a man as Mr Haliburton judge of the native high court, and also a … judge of the Supreme Court, but only to act on appeals. And, as he would have extra work on this last account, and on the other hand the present judges will have some extra work in appeals from the N.H.C., the incomes of the latter might be … (chief justice 1200 pounds, … judge 1000 pounds) as recommended by the House, and the judge of N.H.C. get also 1000 pounds? I can only throw out these suggestions, which I hope you may be able to turn to account.
But I will add that Lord C. has now an oppt. of showing his feelings towards me by, I mean, recommending Sir H.B. to nominate me as one of the Board of Seven constituted under this bill. There is no pay attached to the office, nothing but work, but such work as I should claim as my reward for past exertions, and I really think that such an appointment would do much to satisfy the native mind as to the future, and could not possible with any justice be an offence to the colonists, when I should be only one among seven. The board, as you will see, is to consist of chief justice, attorney general, SNA, judge of NHC, and 3 magistrates or JPs. Now a stroke of Sir H.B.’s pen can make me a JP, as D. callaway is and Archdeacon [Fearne?], and many another far inferior in local position. And supposing Sir H.B. were recommended to nominate the Bp. of Natal and Mr Barter (J.D.) and Mr Akerman (J.D.) who took so prominent a part in the work of framing the bill, I am convinced that white and black would be satisfied, though the SNA might not be. Can you not manage this through Mr Forster or some other MP having influence in Downing Street? If Lord C. is not accessible, is not Mr Herbert, through Dean Stanley or Prof Jowett? It is very curious that this is the identical board which I myself so strongly suggested to L.C. and left a paper with him on the subject. On my return to Natal I talked the matter over with Mr Ridley, before his death. But from that time to this, finding matters going so unfavorably under Sir G.W., I have dropped the subject, and it has now turned up, most unexpectedly to me, in this bill, either from the independent suggestion of some member of the committee, or possibly from some reminiscence of what Mr Ridley may have said on the subject. I see that this board may be made of the greatest use, not only in carrying out the duties committed to it in the bill, but in suggesting other matters for the Gov’s consideration, and in being consulting as a council of advice generally in native matters. For instance, the Board might suggest measures by which the natives might be encouraged and assisted in the purchase of land, for what Mr Shepstone says on this point (as you will see in the cuttings) is just as illusory as the statement that they can bring themselves, if they like, under English law. Of course they can but land, but under what conditions? How is it to be divided when a tribe has bought it? How is it to be …? Are natives living on their own lands to pay hut tax, and be … out on road parties, like other natives? And other like questions may be asked. (By the bye you will see that thought the council has not passed the ‘property tax bill’, which taxes the Europeans for the benefit of the railway, they have doubled the hut tax on the natives. It remains to be seen whether the marriage tax will be taken off, as no law has been passed for that, although by Sir G.W.’s silly publication beforehand of the Gov. intentions to double the hut tax and take off the marriage tax on April 1 of next year, the Gov. stands as much committed to this one as to the other. This doubling of the hut tax will draw from the natives about 28000 pounds more annually, and if the marriage bill is dropped, Gov will loss 14000 pounds, so that the whole additional taxation on the natives will be 14000 pounds. But will the marriage bill be dropped? Lord C. ought to know but my impression is that it cannot be dropped without a law, and I am not aware that any law has been passed.
I enclose a copy of my letter to Sir H.B. petitioning for John Zulu, to which no reply has yet been received (Dec 13).