Chapter 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.

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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.

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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.

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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_.

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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.

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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.

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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.