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decisively, repealed the provision of article 12; or that, if this be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 power[202].
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.
-----
Footnote 202:
See Essay III, p. 231.
-----
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 legislature[203], though
nominally by the Crown or its local representative.
-----
Footnote 203:
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.
-----
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 President[204] nor to a State governor.
-----
Footnote 204:
Although there is nothing in the federal constitution to prevent a
President from addressing either House of Congress.
-----
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 identical[205], their history has been very different.
-----
Footnote 205:
The British element is larger among the citizens of the Orange Free
State than it is in the burgher population of the Transvaal.
-----
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, businesslike 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.