Chapter 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.

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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.

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Articles 5 to 27 deal with the composition and functions of the 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].

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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.

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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.

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Footnote 195:

In the earlier days of Rome the army elected its subordinate officers.

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Article 57 declares Roman-Dutch law to be the common law of the state[196].

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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.

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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].

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Footnote 197:

As to Rigid Constitutions, see Essay III.

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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.