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instrument. It was through the confused language of the Grondwet that the whole difficulty arose, and while formally declaring that the Grondwet was not-as it certainly was not-a Rigid Constitution, the Volksraad ought to have endeavoured to render it more suited to the needs of a society which had grown to be different from that for which it had been originally enacted.
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 The Transvaal Volksraad originally made all the appointments to the civil service, for the President had only the right of proposing, and even in the revised Grondwet of 1889 the Raad retains the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 legislature1, though nominally by the Crown or its local representative.
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 President2 nor to a State governor.
1 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.
* Although there is nothing in the federal constitution to prevent a President from addressing either House of Congress.