Tocqueville ascribes to them. They assuredly do not enjoy it now, but in
municipalities there is a growing tendency to concentrate power,
especially the appointing power, in the hands of one or a few officers
in order that the people may have some one person on whom responsibility
can be fixed. Such power is sometimes very wide, but it cannot be called
arbitrary. A few minor offices are unsalaried; the salaries of the
greater ones have been raised, particularly in the older States.
The methods of administration, especially of Federal administration,
have been much improved, but are still behind those of the most advanced
European countries, one or two departments excepted.
Government is far from economical. The war of the Rebellion was
conducted in the most lavish way: the high protective tariff raises a
vast revenue, and direct local taxation takes more from the citizen than
in most European countries. An enormous sum is spent upon pensions to
persons who purport to have served in the Northern armies during the
Civil War[186].
-----
Footnote 186:
In 1892 the expenditure on this head was $155,000,000: in 1901 it was
estimated at $142,000,000.
-----
Congress does not pass many public statutes, nor do they greatly alter
ordinary law within the sphere open to federal legislation. Many
legislative experiments are tried in the newer States, but the ordinary
private law is in no such condition of mutability as Tocqueville
describes. The law of England suffered more changes between 1868 and
1885 than either the common or statute law of the older States of the
Union.
The respect for the rights of others, for the regular course of legal
process, for the civil magistrate, remains strong; nor have the rich
(although of late years more threatened) seriously begun to apprehend
any attacks on them, otherwise than as stockholders in great railway and
other corporations.
The tyranny of the majority is not a serious evil in the America of
to-day, though people still sometimes profess alarm at it. It cannot act
through a State legislature so much as it may have done in Tocqueville’s
days, for the wings of these bodies have been effectively clipped by the
newer State constitutions. Faint are the traces which remain of that
intolerance of heterodoxy in politics, religion or social views whereon
he dilates[187]. Politicians on the stump still flatter the crowd, but
many home truths are told to it nevertheless in other ways and places,
and the man who ventures to tell them need no longer fear social
proscription (at least in time of peace) in the Northern or Western
States, perhaps not even in the Southern.
-----
Footnote 187:
Competent American observers in Tocqueville’s own time thought he
greatly exaggerated this danger. See a letter from Jared Sparks
printed in Professor Herbert B. Adams’ interesting monograph _Jared
Sparks and Alexis de Tocqueville_, in Johns Hopkins University
Studies, 1898.
-----
The Republic came scatheless out of a terrible civil war, and although
the laurels of the general who concluded that war twice secured for him
the Presidency, they did not make his influence dangerous to freedom.
There is indeed no great capital, but there are cities greater than most
European capitals, and the Republic has not been imperilled by their
growth. The influence of the clergy on public affairs has declined:
whether or no that of religion has also been weakened it is more
difficult to say. But all Americans are still agreed that religion gains
by its entire detachment from the State.
The negro problem remains, but it has passed into a new and for the
moment less threatening phase. Neither Tocqueville nor any one else then
living could have foreseen that manumission would come as a war measure,
and be followed by the grant of political rights. It is no impeachment
of his judgement that he omitted to contemplate a state of things in
which the blacks have been made politically the equals of the whites,
while inferior in most other respects, and destined, apparently, to
remain wholly separate from them. He was right in perceiving that fusion
was not possible, and that liberation would not solve the problem,
because it would not make the liberated fit for citizenship. Fit—that is
to say, as fit as a considerable part of the white population—they will
probably in the long run become, but even then the social problem will
remain. His remark that the repulsion between the races in the South
would probably be greater under freedom than under slavery has so far
been strikingly verified by the result.
All the forces that made for the maintenance of the Federal Union are
now stronger than they were then, while the chief force that opposed it,
viz. the difference of character and habits between North and South,
largely produced by the existence of slavery, tends to vanish. Nor does
the growth of the Union make the retention of its parts in one body more
difficult. On the contrary, the United States is a smaller country now
when it stretches from the Bay of Fundy to the Gulf of California, with
its seventy-six millions of people, than it was then with its thirteen
millions, just as the civilized world was larger in the time of
Herodotus than it is now, for it took twice as many months to travel
from Persepolis or the Caspian Sea to the Pillars of Hercules as it does
now to circumnavigate the globe, one was obliged to use a greater number
of languages, and the journey was incomparably more dangerous. Before
steamboats plied on rivers, and trains ran on railways, three or four
weeks at least were consumed in reaching Missouri from Maine. Now one
goes in six days of easy travelling right across the continent.
Nor has the increased number of States bred more dissensions. The
forty-five States of to-day are not as Tocqueville assumes, and this is
the error which vitiates his reasonings, forty-five nations. The
differences in their size and wealth have become greater, but they work
more harmoniously together than ever heretofore, because neither the
lines which divide parties nor the substantial issues which affect men’s
minds coincide with State boundaries. The Western States are now, so far
as population goes, the dominant section of the Union, and become daily
more so. But their interests link them more closely than ever to the
North Atlantic States, through which their products pass to Europe, and
the notion once entertained of moving the capital from Washington to the
Mississippi valley has been quietly dropped.
VIII. CONCLUDING SUMMARY.
Before bidding farewell to our philosopher, let us summarize his
conclusions.
He sees in the United States by far the most successful and durable form
of democratic government that has yet appeared in the world.
Its merits are the unequalled measure of freedom, freedom of action, but
not of thought, which it secures to the ordinary citizen, the material
and social benefits it confers on him, the stimulus it gives to all his
practical faculties.
These benefits are likely to be permanent, for they rest upon the
assured permanence of
Social equality;
Local self-government;
Republican institutions;
Widely diffused education.
It is true that these benefits would not have been attained so quickly
nor in such ample measure but for the extraordinary natural advantages
of the New World. Nevertheless, these natural advantages are but
subsidiary causes. The character of the people, trained to freedom by
experience and by religion, is the chief cause, their institutions the
second, their material conditions only the third; for what have the
Spaniards made of like conditions in Central and South America[188]?
-----
Footnote 188:
The conditions of most parts of the tropical regions of South and
Central America are in reality quite different from those of the
American Union taken as a whole.
-----
Nevertheless, the horizon is not free from clouds.
What are these clouds?
Besides slavery and the existence of a vast negro population they are—
The conceit and ignorance of the masses, perpetually flattered by their
leaders, and therefore slow to correct their faults.
The withdrawal from politics of the rich, and inferior tone of ‘the
governors,’ _i.e._ the politicians.
The tyranny of the majority, which enslaves not only the legislatures,
but individual thought and speech, checking literary progress, and
preventing the emergence of great men.
The concentration of power in the legislatures (Federal and State),
which weakens the Executive, and makes all laws unstable.
The probable dissolution of the Federal Union, either by the secession
of recalcitrant States or by the slow decline of Federal authority.
There is therefore warning for France in the example of America. But
there is also encouragement—and the encouragement is greater than the
warning.
Of the clouds which Tocqueville saw, one rose till it covered the whole
sky, broke in a thunderstorm, and disappeared. Others have silently
melted into the blue. Some still hang on the horizon, darkening parts of
the landscape.
Let us cast one glance back at the course which events have actually
taken as compared with that which Hamilton first, and Tocqueville
afterwards, expected.
The Republic fared far otherwise than as Hamilton and his friends either
hoped or feared. In this there is nothing to impeach their wisdom. They
saw the dangers of their own time, and like wise and patriotic men
provided the best remedies which existing conditions permitted. Some
dangers they overcame so completely, particularly the financial
misdoings of State legislatures, that these have now passed out of
memory. They could not foresee what the power of money would become,
because there was then little money in the country. They could not
foresee the astonishing development of party machinery, because it is a
perfectly new thing in the history of the world: and human imagination
never does more, at any rate in the field of politics and sociology,
than body forth things a little bigger than, or in some other wise a
little varying from, what they have been before. It cannot create
something out of nothing. Least of all could they divine what the
results would be of the coexistence of the money power and the party
machine. Nor did even Tocqueville, writing half a century later, when
wealth had already appeared and the party machine was in places
beginning to work, perceive what both had in store.
How would Tocqueville amend his criticisms were he surveying the
phenomena of to-day?
He would add to his praise of the United States that its people
re-established their government on firm foundations after a frightful
civil war, that their army went back to its peaceful occupations, that
they paid off their debt, that they have continued to secure a free
field for an unparalleled industrial development and to maintain a
hitherto unattained standard of comfort, that the level of knowledge and
intellectual culture has risen enormously. He would admit that he had
overrated the dangers to be feared from a tyrannical majority and had
underrated the strength of the Union. But he would stand aghast, as
indeed all the best citizens in the United States do now, at the
mismanagement and corruption of city governments. He would perceive that
the party organizations have now become the controlling force in the
country, more important than the Legislature or the Executive. He would
recognize the evils incident to the habit of regarding public office as
a means of private advantage to its holder and the bestowal of it as a
reward for party services. And he would, while gladly owning that the
older forms of faction had ceased to be alarming, note a new development
which the spirit of faction has taken in the tendency to look at and
deal with both legislation and foreign affairs from the point of view of
party advantage. Want of foresight or insight in those who direct the
affairs of a mighty nation is at all times a misfortune: but when
foresight and insight are set aside for the sake of some transitory
party gain, the results may be even more serious.
This, however, is a tendency inherent in all schemes of government by
party. It is familiar and formidable in European countries also.
VII
TWO SOUTH AFRICAN CONSTITUTIONS[189]
I. THE CONDITIONS UNDER WHICH THESE CONSTITUTIONS AROSE.
The old Greek saying, ‘Africa is always bringing something new[190],’
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 of 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.
-----
Footnote 189:
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.
Footnote 190:
Λέγεταί τις παροιμία ὅτι ἀεὶ φέρει Λιβύη τι καινόν. Arist. _Hist.
Anim._ viii. 28.
-----
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
country[191]. 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.
-----
Footnote 191:
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_.
-----
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 people[192]. In these
primitive arrangements consisted the materials out of which a
constitutional government had to be built up.
-----
Footnote 192:
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.
-----
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 length[193]. 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.
-----
Footnote 193:
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.
-----