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VII

TWO

SOUTH AFRICAN CONSTITUTIONS:

I. THE CONDITIONS UNDER WHICH THESE CON

STITUTIONS AROSE.

The old Greek saying, “Africa is always bringing something new?,' 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 resem

1 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.

Λέγεται τις παροιμία ότι αει φέρει Λιβύη τι καινόν. Αrist. Ηist. Aκοι, viii. 28.

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blance 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.

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

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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 occurredthat 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?.

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 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.

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 selfgoverning states, recognized in the community of nations by international law, takes its beginning. The emigrant farmers had, however, already been driven

(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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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

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