Chapter 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 The Transvaal Volksraad originally made all the appointments to the civil service, for the President had only the right of proposing, and even in the revised Grondwet of 1889 the Raad retains the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.

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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.

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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.

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Footnote 204:

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

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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.

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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.

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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.

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 suzerainty[206]. 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 heard[207]. 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.

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Footnote 206:

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.

Footnote 207:

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.

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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.

VIII

THE CONSTITUTION OF THE
COMMONWEALTH OF AUSTRALIA