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 citizens[194].
-----
Footnote 194:
In practice, the recommendation of the majority of the Volksraad is
looked upon as likely to ensure the election of the person so
recommended.
-----
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
themselves[195]. 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.
-----
Footnote 195:
In the earlier days of Rome the army elected its subordinate officers.
-----
Article 57 declares Roman-Dutch law to be the common law of the
state[196].
-----
Footnote 196:
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.
-----
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 sessions[197].
-----
Footnote 197:
As to Rigid Constitutions, see Essay III.
-----
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
commonwealth[198]. 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.
-----
Footnote 198:
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.
-----
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 state[199].’
-----
Footnote 199:
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.
-----
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 Volksraad[200].
-----
Footnote 200:
I am informed that even this restriction was abolished subsequently to
1895.
-----
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 suffrage[201]
(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.
-----
Footnote 201:
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.
-----
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.