The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• I: The Roman Empire and the British Empire In India
• II: The Extension of Roman and English Law Throughout the World
• III: Flexible and Rigid Constitutions 1
• Note to Essay Iii Constitutional and Other Governments
• IV: The Action of Centripetal and Centrifugal Forces On Political Constitutions 1
• V: Primitive Iceland
• VI: The United States Constitution As Seen In the Past
• VII: Two South African Constitutions 1
• VIII: The Constitution of the Commonwealth of Australia

VII

TWO SOUTH AFRICAN CONSTITUTIONS1

I.

The Conditions under which these Constitutions arose.

The old Greek saying, ‘Africa is always bringing something new2 ,’ finds an unexpected application in the fact that there exist in South Africa two Dutch republics possessing constitutions diverse in type from any of those which we find subsisting in other modern States. The system established by these two South African instruments resembles neither the English, or so-called ‘Cabinet,’ system of government,—which has been more or less imitated by the other free countries of Europe, and has been reproduced in the self-governing British colonies,—nor the American, or so-called ‘Presidential,’ system, as it exists in the United States and the several States of the American Union. And although it bears some resemblance to the constitution of the Swiss Confederation and to the constitutions of the cantons of Switzerland, this resemblance is not a close one, and is evidently not due to conscious imitation, but to a certain similarity of phenomena suggesting similar devices. The constitutions of these two Dutch republics are the product, the pure and original product, of African conditions, having drawn comparatively little from the experience of older countries, or from the models their schemes of government afford. Moreover, these South African constitutions grew up upon a perfectly virgin soil. There was no pre-existing political organization, such as the old feudal polities supplied in some countries of Europe, out of which these Republics could develop themselves. There were no charters or guilds or companies, such as those which gave their earliest form to the governments of several of the older American States. Nor was there any home pattern to be copied, as the British colonies have, by the aid of statutes of the Imperial Parliament, copied the constitution of the United Kingdom.

This is one of the most interesting features of these Constitutions. They are not specifically Dutch. Neither are they English. Nothing is more uncommon in history than an institution starting de novo, instead of being naturally evolved out of some earlier form. The simple farmers who drafted the documents which I propose to describe, knew little about the systems either of Europe or of America. Few possessed any historical, still fewer any legal, knowledge. Many were uneducated men, though with plenty of rough sense and mother wit. They would have liked to get on without any government, and were resolved to have as little as possible. Circumstances, however, compelled them to form some sort of organization; and in setting to work to form one, with little except their recollections of the local arrangements of Cape Colony to guide or to assist them, they came as near as any set of men ever have come to the situation which philosophers have so often imagined, but which has so rarely in fact occurred—that of free and independent persons uniting in an absolutely new social compact for mutual help and defence, and thereby creating a government whose authority has had, and can have had, no origin save in the consent of the governed.

A few preliminary words are needed to explain the circumstances under which the constitutions of the Orange Free State and of the South African Republic (commonly called the Transvaal) were drawn up.

As early as 1820 a certain number of farmers, mostly of Dutch origin, living in the north-eastern part of Cape Colony, were in the habit of driving their flocks and herds into the wilderness north of the Orange River, where they found good fresh pasture during and after the summer rains. About 1828 a few of these farmers established themselves permanently there, still of course remaining subjects of the British Crown, which had acquired Cape Colony first by conquest and then by purchase in 1806 and 1814. In 1835-6, however, a much greater number of farmers migrated from the colony; some in larger, some in smaller bodies. They had various grievances against the British Government, some dating back as far as 1815: and they desired to live by themselves in their own way, untroubled by the Governors whom it sent to rule the country1 . Between 1835 and 1838 a considerable number of these emigrants moved into the country beyond the Orange River, some remaining there, others pushing still further to the north-east into the hitherto unknown regions beyond the Vaal River, while a third body, perhaps the largest, moved down into what was then a thinly peopled Kafir land, and is now the British colony of Natal. This is not the place in which to relate the striking story of their battles with the Zulu king and of their struggle with the British Government for the possession of Natal. It is enough to say that this third body ultimately quitted Natal to join the other emigrants north of the mountains; and that, after many conflicts between those emigrants and the native tribes, and some serious difficulties with successive Governors of Cape Colony, the British Government finally, by a Convention signed at Sand River in 1852, recognized the independence of the settlers beyond the Vaal River, while, by a later Convention signed at Bloemfontein in 1854, it renounced the sovereignty it had claimed over the country between the Orange River and the Vaal River, leaving the inhabitants of both these territories free to settle their own future form of government for themselves.

These two Conventions are the legal and formal starting-points of the two republics in South Africa, and from them the history of those republics, as self-governing states, recognized in the community of nations by international law, takes its beginning. The emigrant farmers had, however, already been driven by the force of circumstances to establish some sort of government among themselves. As early as 1836 an assembly of one of the largest emigrant groups then dwelling in the Orange River Territory, elected seven persons to constitute a body with legislative and judicial power. In 1838 the Natal emigrants established a Volksraad (council of the people) which consisted of twenty-four members, elected annually, who met every three months and had the general direction of the affairs of the community, acting during the intervals between the meetings by a small committee called the Commissie Raad. All important measures were, however, submitted to a general meeting called the Publiek, in which every burgher was entitled to speak and vote. It was a primary assembly, like the Old English Folk Mot, or the Landesgemeinde of the older Swiss Cantons. A somewhat similar system prevailed among the farmers settled in the country beyond the Vaal River. They too had a Volksraad, or sometimes—for they were from time to time divided into separate and practically independent republican communities—several Volksraads; and each district or petty republic had a commandant-general. Their organization was really more military than civil, and the commandant-general with his Krygsraad (council of war), consisting of the commandants and field cornets within the district, formed the nearest approach to a regular executive. I have unfortunately been unable to obtain proper materials for the internal political history, if such a term can be used, of these communities before they proceeded to enact the constitutions to be presently described, and fear that such materials as do exist are very scanty. But, speaking broadly, it may be said that, in all the communities of the emigrant farmers, supreme power was deemed to be vested in an assembly of the whole male citizens, usually acting through a council of delegates, and that the permanent officials were generally a magistrate, called a landrost, in each village, a field cornet in each ward, and a commandant in each district. All these officials were chosen by the people1 . In these primitive arrangements consisted the materials out of which a constitutional government had to be built up.

From this point the history of the Orange River Territory, which by the Convention of 1854 was recognized as the Orange Free State, and that of the Transvaal Territory begin to diverge. In describing the constitutions of the republics, I take first that of the Orange Free State, because it dates from 1854, while the existing constitution of the Transvaal is four years younger, having been adopted in 1858. The former is also by far the simpler and shorter document.

When the British Government in 1854 voluntarily divested itself of its rights over the Orange River Territory, greatly against the will of some of its subjects there, the inhabitants of that Territory were estimated at 15,000 Europeans, most of them of Dutch, the rest of British origin. (The number of native Kafirs was much larger, but cannot now be estimated.) The great majority were farmers, pasturing their sheep and cattle on large farms, but five small villages already existed, one of which, Bloemfontein, has grown to be a town of 5,800 people, and is now the capital. The Volksraad, or assembly of delegates of the people, framed, and on April 10, 1854, enacted, a constitution for the new republic. This constitution was revised and amended in 1866, and again in 1879, but the main features of the original instrument remain. I proceed to deal with it as it now stands.

II.

Constitution of the Orange Free State.

This Constitution, which is in the Dutch language, and is called De Constitutie, is a terse and straightforward document of sixty-two articles, most of which are only a few lines in length1 . It begins by defining the qualifications for citizenship and the exercise of the suffrage (articles 1 to 4), and incidentally imposes the obligation of military service on all citizens between the ages of sixteen and sixty. Only whites can be citizens. Newcomers may obtain citizenship if they have resided one year in the state and have real property to the value of at least £150 sterling ($750), or if they have resided three successive years and have made a written promise of allegiance.

Articles 5 to 27 deal with the composition and functions of the Volksraad, or ruling assembly, which is declared to possess the supreme legislative authority. It consists of representatives (at present fifty-eight in number), one from each of the wards or Field Cornetcies, and one from the chief town or village of each of the (at present nineteen) districts. They are elected for four years, one-half retiring every two years. Twelve constitute a quorum. Every citizen is eligible who has not been convicted of crime by a jury or been declared a bankrupt or insolvent, who has attained the age of twenty-five years, and who possesses fixed (i.e. real) unmortgaged property of the value of £500 at least.

The Volksraad is to meet annually in May, and may be summoned to an extra session by its chairman, as also by the President (§ 34), or by the President and the Executive Council (§ 45).

The Volksraad has power to depose the President if insolvent or convicted of crime, and may also itself try him on a charge of treason, bribery, or other grave offence; but the whole Volksraad must be present or have been duly summoned, and a majority of three to one is required for conviction. The sentence shall in these cases extend only to deposition from office and disqualification for public service in future, a President so deposed being liable to further criminal proceedings before the regular courts.

The votes of members of the Volksraad shall be recorded on a demand by one-fifth of those present. The sittings are to be public, save where a special cause for a secret sitting exists.

The Volksraad shall make no law restricting the right of public meeting and petition.

It shall concern itself with the promotion of religion and education.

It shall promote and support the Dutch Reformed Church.

It may alter the constitution, but only by a majority of three-fifths of the votes in two consecutive annual sessions.

It has power to regulate the administration and finances, levy taxes, borrow money, and provide for the public defence.

Articles 28 to 41 deal with the choice and functions of the President of the state.

He is to be elected by the whole body of citizens, the Volksraad, however, recommending one or more persons to the citizens1 .

He is chosen for five years and is re-eligible.

He is the head of the executive, charged with the supervision and regulation of the administrative departments and public service generally, and is responsible to the Volksraad, his acts being subject to an appeal to that body. He is to report annually to the Volksraad, to assist its deliberations by his advice, but without the right of voting, and, if necessary, to propose bills. He makes appointments to public offices, and may fill vacancies that occur when the Volksraad is not sitting, but his appointments require its confirmation. (Such confirmation has been hardly ever, if ever, refused.) He may also suspend public functionaries, but dismissal appears to require the consent of the Volksraad.

Articles 42 to 46 deal with the Executive Council. It consists of five members, besides the State President, who is ex-officio chairman, with a deciding or overriding vote (bestissende stem). Of these five, one is the landrost (magistrate) of Bloemfontein, another the State Secretary, both these officials being appointed by the President and confirmed by the Volksraad; the remaining three are elected by the Volksraad. This Council advises the President, but does not control his action in matters which the Constitution entrusts to him, reports its proceedings annually to the Volksraad, and has the rights, in conjunction with the President, of pardoning offenders and of declaring martial law.

Regarding the judicial power only two provisions require mention. Article 48 declares this power to be exclusively exercisable by the courts of law established by law. Article 49 secures trial by jury in all criminal causes in the superior courts.

Local government and military organization, subjects intimately connected in Dutch South Africa, occupy articles 50 to 56 inclusive.

A field cornet is elected by the citizens of each ward, a field commandant by those of each district, in both cases from among themselves1 . In case of war, all the commandants and cornets taken together elect a Commandant-General, who thereupon receives his instructions from the President. Those who elected him may, with the consent of the President, dismiss him and choose another. Every field cornet and commandant must have landed property, the latter to the value of £200 at least.

Article 57 declares Roman Dutch law to be the common law of the state2 .

Articles 58 and 59 declare that the law shall be administered without respect of persons and that every resident shall be held bound to obey it, while articles 60, 61, and 62 guarantee the rights of property, of personal liberty, and of press freedom.

It will be convenient to defer general criticisms upon the frame of government established by this Constitution till we have examined that of the sister republic of the Transvaal, which agrees with it in many respects. But we may here briefly note, before passing further, a few remarkable features of the present instrument.

1. It is a Rigid constitution, i.e. one which cannot be changed in the same way and by the same authority as that whereby the ordinary law is changed, but which must be changed in some specially prescribed form—in this case, by a three-fourths majority of the Volksraad in two successive sessions3 .

2. The body of the people do not come in as a voting power, save for the election of the President and Commandant-General. All other powers, even that of amending the constitution, belong to the Volksraad.

3. There is only one legislative chamber.

4. The President has no veto on the acts of the legislature.

5. The President has the right of sitting in and addressing the legislature.

6. The President’s Council is not of his own choosing, but is given him by the legislature.

7. The heads of the executive departments sit neither in the Council nor in the legislature.

8. The legislature may apparently reverse any and every act of the President, save those (pardon of offences and declaration of martial law) specially given to him and the Executive Council.

American readers will have noted for themselves some few points in this Constitution which have been drawn from that of the United States. Others are said to have been suggested by the Constitution framed for the French Republic in 1848. Comparatively few controversies upon the construction of the Constitution have been debated with any warmth. One, which gave rise to a difference of opinion between the Volksraad and the Supreme Court of the state, arose upon the question whether the Volksraad has power to punish a citizen for contempt by committing him to prison for a long term, and to direct the State Attorney to prosecute him. The judges disapproved what they deemed an unconstitutional stretching of authority by the legislature. Using the opportunities of influencing public opinion which the delivery of charges to juries gave them, they ultimately so affected the mind of the people that the Volksraad tacitly retired from its position, leaving the question of right undetermined.

III.

Constitution of the South African Republic.

The South African Republic, or Transvaal State as it is popularly called, is ruled by a much longer, much less clear, and much less systematically arranged document than that established by its sister commonwealth1 . A considerable part of the contents of this constitution is indeed unfit, as too minute, for a fundamental instrument of government; and, whatever the intention of its framers may have been, it has not in fact been treated as a fundamental instrument. Whether it is really such, in strict contemplation of law, is a question often discussed in professional circles in Pretoria and Johannesburg. I shall summarize the more important of its provisions—they occupy two hundred and thirty-two articles—and endeavour therewith to present an outline of the frame of government which they establish.

The Grondwet (Ground-law) or Constitution was drafted by a committee of an assembly of delegates and approved by the assembly itself in February, 1858. It is in Dutch, but has been translated into English more than once.

Article 6 declares the territory of the republic open to every stranger who submits himself to the laws—a provision noteworthy in view of recent events—and declares all persons within the territory equally entitled to the protection of person and property.

Article 8 states, inter alia, that the people ‘permit the spread of the Gospel among the heathen, subject to prescribed provisions against the practice of fraud and deception’; a provision upon whose intention light is thrown by the suspicions felt by the Boers of the English missionaries.

Article 9 declares that ‘the people will not tolerate equality between coloured and white inhabitants either in church or in state1 .’

Article 10 forbids slavery or dealing in slaves.

Article 19 grants the liberty of the press.

Articles 20 to 23 formerly declared that the people would maintain the principles of the doctrine of the Dutch Reformed Church, as fixed by the Synod of Dort in 1618 and 1619, that the Dutch Reformed Church shall be the Church of the State, that no persons shall be elected to the Volksraad who are not members of that Church, that no ecclesiastical authority shall be acknowledged save that of the consistories of that Church, and that no Roman Catholic Churches, nor any Protestant Churches save those which teach the doctrine of the Heidelberg Catechism, shall be permitted within the republic. But these archaic provisions were in the revised Grondwet of 1889 reduced to a declaration that only members of a Protestant Church should be elected to the Volksraad2 .

After these general provisions we come to the frame of government. Legislation is committed to a Volksraad, ‘the highest authority of the state.’ It is to consist of at least twelve members (the number is at present twenty-four) who must be over thirty years of age and possess landed property. Each district returns an equal number of members. Residence within the district is not required of a candidate. The members were formerly elected for two years, and one-half retired annually. Their term was afterwards extended to four years. Every citizen who has reached the age of twenty-one enjoys the suffrage3 (persons of colour are of course incapable of voting or of being elected). The unworkable provision of the old Grondwet that ‘any matter discussed shall be decided by three-fourths of the votes’ was subsequently repealed.

Three months are to be given to the people for intimating to the Volksraad their opinion on any proposed law, ‘except laws which admit of no delay’ (§ 12), but laws may be discussed whether published three months before their introduction or introduced during the session of the Volksraad (§ 43). The sittings are to open and close with prayer, and are to be public, unless the chairman or the President of the Executive Council deems secrecy necessary.

If the high court of justice declares the President, or any member of the Executive Council, or the Commandant-General, unfit to fill his office, the Volksraad shall remove from office the person so declared unfit and shall provide for filling the vacant office.

The administration, as well as the proposal, of laws was by the old Grondwet given to an Executive Council (§ 13). The revised instrument vests it in the State President. The President is elected for five years by the citizens voting all over the country. He must have attained the age of thirty and be a member of a Protestant (formerly of the Dutch Reformed) Church (§ 56). He is the highest officer of the state, and appoints all officials. All public servants, except those who administer justice, are subordinate to him and under his supervision. In case of his death, dismissal, or inability to act, his functions devolve on the oldest member of the Executive Council till a new appointment is made. The Volksraad shall dismiss him on conviction of any serious offence. He is to propose laws to the Volksraad—‘whether emanating from himself or sent in to him by the people’—and support them in that body either personally or through a member of the Executive Council. He has, however, no right to vote in the Volksraad. He recommends to the Volksraad persons for appointment to public posts; and may suspend public servants, saving his responsibility to the Volksraad. He submits an estimate of revenue and expenditure, reports on his own action during the past year and on the condition of the republic, visits annually all towns and villages where any public office exists to give due opportunity to the inhabitants of stating their wishes.

The Executive Council consists of four official members besides the President, namely, the State Secretary, the Commandant-General, the Superintendent of Native Affairs, and the Keeper of Minutes (Notulenhouder), and of two other members. All except the Commandant-General are elected by the Volksraad; the Secretary for four years, the two other members for three years. The Commandant-General is elected by the burghers of the whole republic for ten years. All, including the President, are entitled to sit, but not to vote, in the Volksraad. The President and Council carry on correspondence with foreign powers, and may commute or remit a penal sentence. A sentence of death requires the unanimous confirmation of the Council. The President may, with the unanimous consent of the Council, proclaim war and publish a war ordinance summoning all persons to serve (§§ 23, 66, 84).

The provisions relating to the military organization (§§ 93-114) are interesting chiefly as indicating the highly militant character of the republic. Express provision is made not only for foreign war and for the maintenance of order at home, but also for the cases of native insurrection and of disaffection or civil war among the whites. The officers are all elected by the burghers, the Commandant-General by the whole body of burghers for ten years, the commandants in each district for five years, the field cornets and assistant field cornets in the wards for three years.

The judiciary (§§ 115-135) consists of landrosts (magistrates who also discharge administrative duties), heemraden (local councillors or assessors), and jurors. The provisions regarding the exercise of judicial power are minute and curious in their way, but have no great interest for constitutional purposes. Two landrosts are proposed to the people of the judicial district by the Executive Council, and the people vote between these two. Minute provisions regarding the oaths to be taken by these officials and by jurymen, and regarding the penalties they may inflict, fill the remaining articles. A guarantee for the independence of the courts is to be found in the general statement in article 15 that ‘the judicial power is vested in landrosts, heemraden, and jurors,’ and in the declaration (§ 57) that the judicial officers are ‘left altogether free and independent in the exercise of their judicial power.’ A High Court and a Circuit Court, not provided for in the old Grondwet, appear in that of 1889, and are appointed for life. The High Court consists of a chief justice and four puisne judges.

The old Grondwet also contained some curious details relating to civil administration (which was primarily entrusted to the judicial officers, supported by the commandants and field cornets), and the revenue of the State, which was intended to be drawn chiefly from fees and licences, the people having little disposition to be directly taxed. The farm tax was not to exceed forty dollars, and the poll-tax, payable by persons without or with only one farm, was fixed at five dollars annually. Five dollars was the payment allowed to each member of the Volksraad for each day’s attendance. Most of these provisions have disappeared from the instrument of 1889. The salary of the President of the Council, which had been fixed at 5,333 dollars, 2 schellings, and 4 stuivers, to be increased as the revenue increased, now amounts to £7,000 sterling ($35,000) per annum, besides allowances.

The most considerable change made since 1889 was the establishment, in 1890, of a chamber called the Second Volksraad, which is elected on a more liberal basis than the First Volksraad, persons who have resided in the country for two years, have taken an oath of allegiance and have complied with divers other requirements, being admissible as voters. This assembly, however, enjoys little real power, for its competency is confined to some specified matters, and to such others as the First Volksraad may refer to it; and its acts may be overruled by the First Raad, whereas the Second Raad has no power of passing upon the resolutions or laws enacted by the First Raad. The Second Volksraad is, therefore, not a second chamber in the ordinary sense of the term, such as the Senate in American States or the House of Lords in England, but an appendage to the old popular House. It was never intended to exercise much power, and was, in fact, nothing more than a concession, more apparent than real, to the demands of the Uitlanders, or recent immigrants excluded from citizenship.

A few general observations may be made on this Constitution before we proceed to examine its legal character and effect.

It was in its older form a crude, untechnical document, showing little trace on the part of those who drafted it either of legal skill or of a knowledge of other constitutions. The language was often vague, and many of the provisions went into details ill-fitted for a fundamental law.

Although enacted by and for a pure democracy, it was based on inequality—inequality of whites and blacks, inequality of religious creeds. Not only was the Dutch Reformed Church declared to be established and endowed by the State, but Roman Catholic churches were forbidden to exist, and no Roman Catholic nor Jew nor Protestant of any other than the Dutch Reformed Church was eligible to the presidency, or to membership of the legislature or executive council. In its improved shape (1889) some of these faults have been corrected, and in particular the religious restrictions were reduced to a requirement that the President, the Secretary of State, the Landrosts and the members of the Volksraad should belong to a Protestant Church. The door, however, remained barred against persons of colour.

It contained and still contains little in the nature of a Bill of Rights, partly perhaps from an oversight on the part of its draftsmen, but partly also owing to the assumption—which the early history of the republic amply verified—that the government would be a weak one, unable to encroach upon the rights of private citizens.

The first legal question which arises upon an examination of this Constitution relates to its stability and permanence. Is it a Rigid or a Flexible Constitution? That is to say, can it, like the constitution of the Orange Free State and that of the United States, be altered only in some specially prescribed fashion? Or may it be altered by the ordinary legislature in the ordinary way, like any other part of the law?

In favour of the former alternative, that the constitution is a Rigid one, appeal has been made not only to the name Grondwet (Ground-law), but, which is of more consequence, to some of its language. The general declarations of the power of the people, the form in which they entrust power to the legislature, to the Executive Council, and to the judiciary respectively (as well as to the military authority), look as if meant to constitute a triad of authorities, similar to that created by the constitutions of American States, no one of which authorities may trespass on the province of the others. Some things seem intended to be secured against any alteration by the legislature, e. g., article 9 declares that ‘the people will not allow of any equality between coloured and white inhabitants’; article 11 declares that ‘the people reserve to themselves the exclusive right of protecting and defending the independence and inviolability of Church and State, according to the laws.’

On the other hand, it is argued that the constitution must be deemed to be a Flexible one, because it did not in its original form, and does not now, contain any provision whereby it may be altered, otherwise than by the regular legislature of the country acting according to its ordinary legislative methods. One cannot suppose that no change was intended ever to be made in the Grondwet. That supposition would be absurd in view of the very minute provisions on some trivial subjects which it contains. No distinction is drawn, by the terms of the instrument, between these minutiae and the provisions of a more general and apparently permanent nature. Ergo, all must be alterable, and alterable by the only legislative authority, that is to say, the Volksraad. This view, moreover, is the view which the legislature has in fact taken, and in which the people have certainly acquiesced. Some changes have been made—such as the admission to the electoral franchise of persons not belonging to the Dutch Reformed Church, the creation of a new supreme court, and the establishment of a Second Volksraad—which are not consistent with the Grondwet, but whose validity has not been contested.

The difficulty which arises from the fact that, whereas the framers of the Grondwet appear to have desired to make parts of their work fundamental and unchangeable, they have nevertheless drawn no distinction between those parts and the rest, and have provided no specific security against the heedless change of the weightiest parts, may be explained by noting that they were not skilled jurists or politicians, alive to the delicacy of the task they had undertaken. They expected that the Volksraad would continue to be of the same mind as they were then, and would respect what they considered fundamental; they relied on the general opinion of the nation. They had, moreover, provided a method whereby the nation should always have an opportunity of expressing its opinion upon legislation, namely, the provision (§ 12) that the people should have a period of three months within which to ‘intimate to the Volksraad their views on any proposed law,’ it being assumed that the Volksraad would obey any such intimation, although no means is provided for securing that it will do so.

This provision has given rise to a curious question. It excepts ‘those laws which admit of no delay.’ Now the Volksraad has in fact neglected the general provision, and, instead of allowing the three months’ period, has frequently hastily passed enactments upon which the people have had no opportunity of expressing their opinion. Such enactments, which have in some instances purported to alter parts of the Grondwet itself, are called ‘resolutions’ (besluite) as opposed to laws; and when objection has been taken to this mode of legislation, these resolutions seem to have been usually justified on the ground of urgency, although in fact many of them, if important, could hardly be called urgent. They have been treated as equally binding with laws passed in accordance with the provisions of the Grondwet (for up to 1895 article 12 seems not to have been formally altered); and it is only recently that their validity has been seriously questioned in the courts. Those who support their validity argue that in passing such resolutions as laws, the Volksraad must be taken to have implicitly, but decisively, repealed the provision of article 12; or that, if this be not so, still the Volksraad is under article 12 the sole judge of urgency, and can legally treat things as urgent which are, in fact, not so; a view affirmed by the Chief Justice in a case (State v. Hess) which arose in 1895. They add that even apart from both these arguments the unbroken usage of the Volksraad during a number of years, tacitly approved by the people, must be deemed to have established the true construction of the Constitution, especially as according to Roman Dutch law, usage, whether affirmative or negative, can alter written enactments and could thus annul the directions of article 12. So it is written in the Digest of Justinian (I. 3. 32): ‘Inveterata consuetudo pro lege custoditur . . . nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? Quare rectissime etiam illud receptum est ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.’ To this, however, it is answered that the principle of obsolescence by contrary practice cannot fitly be applied where a statute is recent and express.

Until 1897, the High Court of the Transvaal had held that the resolutions as well as the laws passed by the Volksraad were fully valid, whether or no they had been submitted to the people for the period of three months, nor had the question of their being really urgent been raised. It had thus declared the Grondwet to be alterable by the Legislature, and so not a Rigid Constitution. In that year, however, in the case of Brown v. Leyds, the Court held, by a majority, that a law which had been passed without having been submitted to the people during the period prescribed by the Grondwet was unconstitutional and therefore void, thus appearing to assert (for the language of the judgement is not very clear) the view that the Grondwet was a Rigid Constitution, not alterable by the Legislature. This action was warmly resented by the Executive and Legislature: and the latter passed a resolution directing the President to require from every judge on pain of dismissal a declaration that he would in future recognize as valid every law passed by the Volksraad, and not again assert the so-called ‘testing power’ of inquiring whether a law conformed to the provisions of the Grondwet. The Chief Justice refused to make this declaration, and was accordingly dismissed, much to the regret of those who remembered his past services to the State.

On a review of the whole matter, apart from the political passion which has been brought into it, the true view would appear to be the following, though I state it with the diffidence becoming a stranger who is also imperfectly informed as to the constitutional history of the republic.

The Grondwet of the South African Republic, though possibly intended by its framers to be treated, in respect of its most important provisions, as a fundamental law not to be altered by the Volksraad in the exercise of its ordinary powers, is not really a Rigid constitution but a Flexible one. We have to look not so much at what the framers may have wished as at what the language employed actually conveys and imports; and the absence of any provision, such as that contained in the Constitution of the Orange Free State, for a special and peculiar method of change, is decisive upon this point. An American lawyer, accustomed to construe strictly documents which contain or modify powers, might be inclined to argue that the validity of laws (not dealing with matters which ‘admit of no delay’) which had been passed as mere resolutions, ignoring article 12, may have been doubtful until the Volksraad modified that article by legislation. But the Transvaal High Court had held that the question of urgency was a question for the discretion of the Volksraad; and it must be added that persons accustomed to other legal systems do not necessarily proceed upon American principles. The Swiss, for instance, make their legislature the interpreter of the Constitution for the purpose of determining the extent of legislative power1 . Allowing for this, and remembering that both the law courts and the whole people had until 1897 treated the Volksraad as an absolutely sovereign body, the action it took in asserting its sovereignty need excite no surprise. It was claiming nothing more than the powers actually enjoyed by the British Parliament. However, although the Volksraad was merely enforcing the rights which it reasonably (and I think correctly) conceived itself to possess, and could not have permitted the majority of the High Court to assert a power previously unknown, a wiser course would have been to amend the Constitution in some way which would have given to the judiciary a more assured position than that which had been secured to them by a confessedly crude and imperfect instrument. It was through the confused language of the Grondwet that the whole difficulty arose, and while formally declaring that the Grondwet was not—as it certainly was not—a Rigid Constitution, the Volksraad ought to have endeavoured to render it more suited to the needs of a society which had grown to be different from that for which it had been originally enacted.

IV.

Observations on the Character and Working of both Constitutions.

The principles of these Constitutions are highly democratic. They were intended so to be. Among the whites settled in these wide territories there prevailed a perfect social equality, a passionate love of independence, and a strong sense of personal dignity. They were as little influenced by political theories as it was possible for any civilized men in this century to be. Their wish for a government purely popular, and indeed for very little of any government at all, was due to their personal experience and to the conditions under which they found themselves in the wilderness; and one may doubt whether they would have established a regular government but for the dangers which threatened them from the warlike native tribes. Such sentiments as I have described would have disposed them, had they lived in a city, or in a small area like the cantons of Uri or Appenzell in Switzerland, to have kept legislation and the determination of all grave affairs in the hands of a general meeting of the citizens. But they lived scattered over a vast wilderness, with no means of communication save ox-wagons which travel only some twelve miles a day. In the Orange River Territory when it became a state there were probably less than three thousand citizens, though its area was nearly that of England. Hence primary assemblies were impossible, and power had to be entrusted to a representative body.

The predominance of the legislature is the most conspicuous feature of both these constitutions. The Transvaal Volksraad originally made all the appointments to the civil service, for the President had only the right of proposing, and even in the revised Grondwet of 1889 the Raad retains the right of approving or disapproving the President’s appointments. In both republics the Volksraad appoints a majority of the Executive Council which surrounds the President, to advise, but also to watch and check him. It has complete control of revenue and expenditure. It may change the constitution, though, in the Orange Free State, only by a prescribed majority. The President has no veto on its acts; nor is it, as in most modern free countries, divided into two chambers likely to differ from and embarrass one another. Its vote, which may, if it pleases, be a single vote, given under no restrictions but those of its own making, is decisive.

The comparative feebleness of the other branches of government corresponds to the overwhelming strength of the legislature. The authority of the judiciary received from the first a somewhat vague recognition, and its independence was at one time, in the South African Republic, seriously threatened by the executive and legislature, and saved only by the exertions of the bench and bar, which aroused public opinion on its behalf. The later controversy between the Volksraad and the Chief Justice has been already discussed. In the Free State the Court’s claim to be the proper and authoritative interpreter of the constitution, which would be clear upon English or American principles, was never formally admitted. And though the judges are in both republics appointed for life, their salaries are at the mercy of the legislature.

The executive head of the government has no doubt the advantage, as in an American State, of being directly chosen by the people, and not, as in France, by the legislature. But he has no veto on acts of the legislature, while his acts can be overruled by it, at least in the Orange Free State, for in the Transvaal this may be more doubtful. Its approval is required to any appointments he may suggest. He is hampered by an Executive Council which he has not himself selected, resembling in this respect an American State governor rather than the President of the Union. It may, in the Free State, try him and depose him if convicted. He has no military authority, such as that enjoyed by the British Crown and its ministers, or by the American President, for that belongs to the Commandant-General (though in the Orange Free State the Commandant ‘receives instructions’ from the President).

Against all these sources of weakness there are only two things to set. The President can speak in the Volksraad, and he is re-eligible any number of times.

The Executive Council, as already observed, seems intended to restrain the President, while purporting to aid and advise him. It may be compared to the Privy Council of mediaeval England, with the important difference that it is appointed, not by the executive, but partly by the legislature, partly by the people. As we shall see presently, it has proved to be an unimportant part of the machinery of government.

In all these points the two constitutions present a close likeness. They are also similar in the recognition which they originally gave, and have not wholly ceased to give, to a state church—an institution opposed to democratic ideas in America and in the British Colonies—as well as in their exclusion of persons of colour from every kind of political right. It would appear that upon this point there has never been any substantial difference of opinion in the two republics. Neither indeed is there much difference of opinion in the British parts of South Africa, for although the influence of English ideas has been so far felt that in Cape Colony persons of colour are permitted to vote, still the combination of a property qualification with an educational qualification greatly restricts their number. A republican form of government, therefore, does not necessarily appear to make for ‘human rights’ in the American sense of that term, any more than it did in the United States in 1788.

Speaking generally, these two Constitutions carry the principle of the omnipotence of the representative chamber to a maximum. This will be more clearly seen if we compare the system they create, first with the cabinet system of Britain and her self-governing colonies, and secondly with the presidential system of the United States.

The main differences between the South African scheme of government and the British may be briefly summarized.

The head of the executive is, in the South African republics, chosen directly by the people, whereas in Britain and her colonies the executive ministry is virtually chosen by the legislature1 , though nominally by the Crown or its local representative.

In these republics the executive cannot, as can ministers under the British system, be dismissed by a vote of the legislature, nor on the other hand has the executive the power of dissolving the legislature.

In these republics the nominal is also the real and acting executive head, whereas in the British system a responsible ministry is interposed between the nominal head and the legislature.

In all the above-mentioned points the South African system bears a close resemblance to the American.

In these republics the President’s Council need not consist of persons in agreement with his views of policy. It may even be hostile to him, as part of Warren Hastings’s council at Calcutta was in permanent opposition to that governor. Nor does the Executive Council consist, like the (normal) British cabinet and United States Federal cabinet, of the heads of the great administrative departments, though several officials sit in it.

On the other hand, the South African system agrees with the British in permitting the head of the working executive to speak in the legislature, a permission which has proved to be of the highest importance, and which in America is given by usage neither to the Federal President1 nor to a State governor.

The chief differences between the South African and the American system are the following:—

The President has, in the South African republics, far less independence than belongs in the United States to either a Federal President or to the Governor of a State. He has no veto on acts of the legislature, and less indirect power through the patronage at his disposal. Moreover, the one-chambered legislature is much stronger as against him than are the two-chambered legislatures of America, which may, and frequently do, differ in opinion, so that the President or Governor can play off one against the other. Further, as already observed, an American Federal President has a cabinet of advisers whom he has himself selected, and an American State governor has usually officials around him who, being elected by a party vote at the same election, are probably his political allies; whereas a South African President might possibly have an Executive Council of opponents forced on him by the Volksraad. And even in negotiations with foreign states, he cannot act apart from this Executive Council.

The distinctive note of both these South African Constitutions is the kind of relation they create between the Executive and the Legislature. These powers are not disjoined, as in the United States, because a South African President habitually addresses and may even lead the Volksraad. Neither are they united, as in Britain and her colonies, where the Executive is at the same time dependent on the legislature, and also the leader of the legislature, for the South African President is elected by the people for a fixed term, and cannot be displaced by the Volksraad. He combines the independence of an American President with the opportunities of influencing the legislature enjoyed by a British, or British colonial, Ministry. For nearly all practical purposes he is at the mercy of the legislature, because he has neither a veto, like the American President, nor a power of dissolution, like the British Ministry. The Volksraad could take all real power from him, should it be so minded. But he is strong by the possession of the two advantages just mentioned. He can persuade his Volksraad, which has not, by forming itself into organized parties, become inaccessible to persuasion. He can influence the opinion of his people, because he is their choice, and a single man in a high place fixes the attention and leads the minds of a people more than does an assembly.

It must, however, be remembered that the features—perhaps one may say the merits—which I have noted as shown in the working of the South African system, belong rather to small than to large communities. The Free State had in 1895 only some seventeen thousand voting citizens, the Transvaal not many more. Athens in the days of Themistocles had about thirty thousand. In large countries, with large Legislatures, whose size would engender political parties, things would work out differently. Furthermore, in a large State, the administrative departments would be numerous and their work heavy. The President could not discuss departmental affairs with the Raad, and could not easily be made personally responsible for all that his administrative officers did. And the less knowledge he had of affairs and of persons, the less influence he exerted over the Raad, the more would his Executive Council tend to check him. Its members would probably intrigue with the leaders of parties in the Volksraad, and make themselves a more important factor in the government than they have been while overshadowed by his personality.

Any one who, knowing little or nothing about the social conditions and the history of these two republics, should try to predict the working of their governments from a perusal of their constitutions, would expect to find them producing a supremacy, perhaps a tyranny, of the representative assembly; for few checks upon its power are to be found within the four corners of either instrument. He would be prepared to see party government develop itself in a pronounced form. Power would be concentrated in the party majority and its leaders. The Executive would become the humble instrument of their will. The courts of law, especially in the Transvaal with its Flexible constitution, would be unable to stem the tide of legislative violence. The President might perhaps attempt to resist by producing a deadlock over appointments; and he would have a certain moral advantage in being the direct choice of the people. But the one-chambered Legislature would in all probability prevail against him.

Is this what has in fact happened? Far from it. Party government, in the English and American sense, has not made its appearance. The Legislature has not become the predominant power, subjecting all others to itself. It has, in general, followed the lead of the Executive. The Courts of law, though (in the Transvaal) at one moment menaced, have administered justice with fairness and independence. But in order to describe what has happened, I must, in a very few sentences, deal separately with the Orange Free State and the South African Republic, for though their constitutions are similar and the origin of their respective populations nearly identical1 , their history has been very different.

The Orange Free State had, for many years prior to 1899, a comparatively tranquil and uneventful career. One native war inflicted some injury upon it, but the result of that war was to give it a strip of valuable territory. It had joined the British colonies in a South African Customs Union, had placed its railroads under the management of the Cape Government, had maintained friendly relations with the two British self-governing colonies, had extended the franchise to immigrants on easy terms, and was at all times recognized as absolutely independent by the British Government. Internally its development, if not rapid, was both steady and healthful. There was no poverty among the people, and hardly any wealth. No exciting questions arose to divide the citizens, and no political parties grew up. The Legislature, although too large, has been a sensible, business-like body, which wasted no more time than debate necessarily implies. From 1863 to 1888 it was guided by the counsels of President Brand, whom the people elected for five successive terms, and whose power of sitting in it and addressing it proved of the utmost value, for his judgement and patriotism inspired perfect confidence. His successor Mr. Reitz, who was obliged by ill-health to retire from office in 1895, enjoyed equal respect and almost equal influence, when he chose to exert it, with the Volksraad, and things went smoothly under him, as they promised to do under President Steyn, who was elected in 1896, for the latter also was believed—so I heard when visiting the Free State in 1895—to possess the qualities which had endeared his predecessors to the community. The Executive Council has not proved to be a very valuable part of the scheme of government; and some judicious observers thought the constitution ought to be amended by strengthening the position of the courts and introducing provisions for a popular vote on constitutional amendments, similar to those which exist in American States and in Switzerland. But, on the whole, the system of government worked smoothly, purely and efficiently; the Legislature was above suspicion, and the people were content with their institutions.

Very different had been the annals of the South African Republic. Soon after the Grondwet was adopted in 1858, a civil war broke out; and from that time onward factions and troubles of all kinds were seldom wanting. In 1877 the country, then threatened by native enemies, was annexed to the British dominions against the will of the people: in 1881 its autonomy was restored, subject to British suzerainty1 . Its government, however, continued to be pressed by financial and other difficulties, till the discovery of rich gold-fields in 1884-6, while suddenly increasing the revenue, drew in a stream of immigrants which has steadily continued to flow, and therewith raised that new crop of political troubles of which all the world has heard2 . The result has been that the Constitution has never had any period of comparative peace in which its working could be fairly tested. If it has not worked as smoothly as that of the Free State, this may be due not merely to inherent defects but to the strain which civil and foreign wars have placed upon it. The Legislature, however, has not played the leading part. President Burgers, who held office from 1872 till 1877, was, like President M. W. Pretorius before him, practically more powerful than the Volksraad; and since 1881 President Kruger, who has been thrice re-elected, has been the ruling force in the politics of the country. By his influence over the people, by his constant presence and speeches in the Volksraad, he threw its leaders entirely into the shade, and probably exerted more actual power than the chief magistrate of any other republic, though there was scarcely any other chief magistrate whose legal authority was confined within such narrow limits. So much may foreign troubles or economic and social facts, and so much do the qualities of individual men, affect and modify and prevail over the formal rules and constitutional machinery of government. The Legislature therefore has not had in the Transvaal that career of encroachment upon and triumph over the other authorities in the State which might have been predicted for it. Its turn might have come when external relations were tranquil and domestic controversies arose. When foreign affairs occupy men’s minds and call for rapid decision as well as for continuity of policy, the Legislature is apt to be, in all countries, dwarfed by the Executive.

Postscript.

Since the foregoing sketch of these remarkable experiments in the construction of Frames of Government was written (in 1896), both the Dutch republics have become involved in a deplorable war with England, which has lasted for many months, and still continues at the time of this writing. It has brought misery and desolation upon South Africa, and not least upon that singularly happy, prosperous, peaceful and well-governed community, the Orange Free State. While the flames are still raging, no one can conjecture in what form these two constitutions will emerge from the furnace, or whether indeed they will survive at all. In the midst of so terrible a catastrophe, a catastrophe unredeemed by any prospect of benefit to any of the combatants, and one whose results must be fateful in many ways for the future of South Africa, and possibly also of Britain, the destruction or transformation of constitutions seems but a small matter. But had these two republics been suffered to continue the normal course of their constitutional development, that development would have been full of interest. It might even have conveyed valuable instruction or suggested useful examples to other small commonwealths, for in the scheme of these Constitutions, and especially in that of the Free State, there are some merits not to be found either in the American or in the British system. These simple Free State farmers were wiser in their simplicity than some of the philosophers who have at divers times planned frames of government for nascent communities. But though Wisdom is justified of all her children, she cannot secure that her children shall survive the shock of arms.

[1 ]This Essay was composed early in 1896, and describes the Constitutions of the Orange Free State and South African Republic as they stood in December 1895, the month when the fatal invasion of the latter Republic by the police of the British S. Africa Company took place. I have left it, for obvious reasons, substantially unchanged, save that here and there I have corrected what seemed to be errors, have added one or two references to recent events, and have explained some constitutional points with more fullness. In its original form, the Essay appeared in the Forum in April 1896.

[2 ]Λέγεταί τις παροιμία ὅτι ἀεὶ ϕέρει Λιβύη τι καινόν. Arist. Hist. Anim. viii. 28.

[1 ]A concise account of these grievances and a sketch of the subsequent history of the emigrants may be found in Dr. Theal’s Story of South Africa (published by Messrs. Putnam), and in my Impressions of South Africa, chaps. xi and xii. See also Dr. Theal’s larger History of the Boers in South Africa.

[1 ]I am indebted for most of these facts regarding the early organization of the emigrants to Dr. G. M. Theal’s History of the Boers in South Africa, a book of considerable merit and interest, which, however, carries its narrative down only to 1854.

[1 ]My thanks are due to the distinguished Chief Justice of the Free State (Mr. Melius de Villiers) for much information kindly furnished to me regarding this Constitution.

[1 ]In practice, the recommendation of the majority of the Volksraad is looked upon as likely to ensure the election of the person so recommended.

[1 ]In the earlier days of Rome the army elected its subordinate officers.

[2 ]Roman Dutch law is the common law all over South Africa, even in the almost purely English colony of Natal (though of course not in Portuguese or German territory). It has been largely affected, especially in the British colonies, by recent legislation.

[3 ]As to Rigid Constitutions, see Essay III.

[1 ]I have to thank my friend Mr. J. G. Kotzé, late Chief Justice of the South African Republic, for information kindly supplied to me regarding certain points in this Constitution.

[1 ]The Boers are a genuinely religious people, and read their Bibles. But they have shown little regard to 1 Corinthians xii. 13; Galatians iii. 28; and Colossians iii. 11. The same may be said of the people of the Southern States of America; and is indeed also true of the less religious English both in South Africa and in the West Indies.

[2 ]I am informed that even this restriction was abolished subsequently to 1895.

[3 ]The suffrage was by subsequent enactments restricted as respects immigrants and the sons of immigrants; and in 1895 a person coming into the country could not obtain full electoral rights till after a period of twelve years. In July 1899, three months before the war which broke out in that year, the period was shortened to seven years owing to pressure by the British Government.

[1 ]See Essay III, p. 195.

[1 ]Using the expression which Bagehot has made familiar, though of course Parliament is far from determining the entire composition of a ministry, which may occasionally contain persons it would not have selected.

[1 ]Although there is nothing in the federal constitution to prevent a President from addressing either House of Congress.

[1 ]The British element is larger among the citizens of the Orange Free State than it is in the burgher population of the Transvaal.

[1 ]A further convention was made in 1884, whose articles, omitting all reference to ‘suzerainty’ conceded an independence qualified only in respect of the veto retained by Britain over treaties with foreign powers.

[2 ]When these immigrants from all parts of the world swarmed into the country, admission to the franchise was made more difficult, because the conservative section of the citizens naturally feared that the newcomers, many of whom did not intend to make the country their home, might, if they forthwith acquired voting power, soon secure a majority and overturn the existing system of the republic, including the official use of the Dutch language and the relations of Church and State. These non-burgher immigrants have been absurdly described as ‘helots.’ A closer parallel to them is to be found not in the semi-serfs of Sparta but in the class of resident aliens known at Athens as metics (μέτοικοι). But they were indeed far better off than that class, since they enjoyed full civic rights in all matters of private law, wanting only the right of sharing in the government.