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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 people1. In these primitive arrangements consisted the materials out of which a constitutional government had to be built up.
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
1 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.
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.
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'. 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.
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
1 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.
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 twentyfive 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 citizens1.
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
In practice, the recommendation of the majority of the Volksraad is looked upon as likely to ensure the election of the person so recommended.
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 themselves1. 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.
Article 57 declares Roman-Dutch law to be the common law of the state 2.
Articles 58 and 59 declare that the law shall be
1 In the earlier days of Rome the army elected its subordinate officers. 2 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.