South African Constitutional History

D. H. Hulme

 

 

South African Constitutional History

 

Terminology

 

Monarchy:- a state which is ruled by a monarch (ie an absolute monarchy) or where a monarch is head of state without ruling or taking part in government - (ie a ‘constitutional’ monarchy). Whilst there have been rare exceptions, monarchs invariably are selected on the basis of heredity.

 

Dictatorship:- A ‘dictator’ was originally a Roman official appointed during the republican period (509 BC – 27 BC) to hold total power for a short period in times of  emergency. At the end of the republican period powerful generals such as Sulla and Julius Caesar abused this office as a pretext for holding total power over the state. Arguably, this was one of the causes or one of the symptoms of the destruction of the Roman Republic and its replacement with a thinly disguised military dictatorship under the Roman Emperors.  In modern times a ‘dictatorship’ has come to refer to a state governed by a dictator with absolute power unrestricted by a constitution or law (tyranny), although de facto dictatorships can be disguised with the external trappings of legality.

 

Oligarchy:- Government by a small group of people, eg apartheid South Africa or modern China.

 

Plutocracy – A society ruled by the wealthy, with a large disparity between rich and poor and where little social mobility exists. In essence, a plutocracy is an oligarchy of the wealthy.

 

Kleptocracy – A government or state characterised by corruption amongst those in power. (Derived from the word;- kleptomania – meaning a strong impulse to steal.)

 

Totalitarianism – ‘total’ or overwhelming control by the state, of public and private behaviour, including control of the press, etc. It is a characteristic usually found in extreme right and left wing governmental systems such as fascism and communism respectively.

 

Pluralism – The affirmation and acceptance of diversity. It is a principle which permits the peaceful coexistence of different interests, convictions and lifestyles, without enforced assimilation, requiring tolerance as a precondition. Political pluralism allows for periodic elections where the electorate have an opportunity to change the government. Tolerance for widely differing social and political views is usually a characteristic of liberal democracy.

 

Republic:- This term has its origins in the Latin phrase ‘Res Publica’ – the ‘things’ or interests of the public, as opposed to the ‘Res Regum’ – the things or interests of the king.  Essentially the term applies to any state which is not a monarchy, but is often associated with democratic principles including the rule of the people or elected representatives who possess the supreme power. Many dictatorships or other forms of government use the term in describing the state, however. The pre-empire Roman Republic was a de facto oligarchy ruled by its Senate with the addition of primitive representative machinery in the persons of the tribunes who represented the plebeians and had the power of veto in the Senate.

 

Democracy:- government of the people or elected representatives. – A political unit governed ultimately by all its members, usually characterised by a spirit of social equity.

 

(direct / representative) - Early democracies were small and could arrange for all the citizens to vote directly for the passing of a law. Modern forms of direct democracy include polls of the citizenry in the form of referendums or plebiscites on a single issue. Most modern democratic states are too large to allow for direct democracy, and the wishes of the people are entrusted to elected representatives in a legislative body.

 

(liberal / socialist) -  In ‘liberal’ democracies, the decision making power of representatives is limited both by the rule of law and the rights and freedoms of individuals, guaranteed in a constitution, with a consequential restraint on the exercising of the majority’s wishes. Marxists, anarchists and far left socialists argue that liberal democracy is part of the capitalist system and is not truly democratic.

 

‘Social liberals’ uphold personal liberties and a free market but believe that democracy can only be secured if the state intervenes with social services that provide social upliftment for the poor and disadvantaged in society. (Positive liberties)

 

‘Socialist democracy’ is an imprecise term in that it can be used to describe a wide range of political theories, from left of centre social liberalism on the one hand to far left communist ideology on the other, including for example, soviet democratic theory.  In its more left-wing manifestations, it is suspicious of opposition politics and capitalism whilst favouring market control, together with other aspects of communism referred to below. 

 

Fascism – A theory of government which is hard to define, in that it is easier to list what it opposes than what it espouses. It is opposed to communism, anarchism and liberalism and is characterised by populism, exultation of the state and nationalism. - "A political philosophy, movement, or regime … that exalts nation and often race above the individual and that stands for a centralised autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition." It is therefore totalitarian and usually militaristic, espousing social Darwinism in the form of the ‘survival of the fittest.’ A market economy is generally maintained, although state intervention often gives the economy more of a command, or mixed socialist flavour.

 

Communism – The advocacy of a classless society in which private ownership has been abolished and the means of production and subsistence belong to the community, generally represented by the state. This theory considers history in terms of a class struggle resulting in the eventual victory of the proletariat.[1]  Due to their centralist policies, communist states have been invariably totalitarian historically, characterised by varying degrees of compulsion and a loss of personal freedoms.

 

It is often difficult to discern any practical as opposed to ideological difference between the far left and far right, with the result that some communist and fascist states are virtually indistinguishable in their practices. The Third Reich and the Soviet Union had much in common. In fact in the current era, a number of nominally communist states, particularly those which have adopted capitalism such as China, display distinctly fascist traits.

 

Separation of Powers – A doctrine intended to uphold liberty and democratic principles, in that power is not retained in the hands of only one organ of governance. The doctrine requires that the powers of governance in a state must be split between three organs:- the executive powers to the executive or ‘government’, the legislative powers to a legislative body such as Parliament and the judicial powers to the courts.  In terms of this doctrine, no organ should intervene in the field of another organ, although the doctrine is seldom adhered to strictly in its pure form, France being one of the few countries which attempts to do so.  

 

 

The inherent vice of capitalism is the uneven division of blessings, while the inherent virtue of socialism is the equal division of misery.

 

                                                                                                Winston Spencer Churchill

 

 

1)      The precursors of the South African Constitution

 

Introduction

 

This series of lectures concentrates on the South African constitutional order, but reference will be made to many constitutional systems originating from many different countries. The constitutional systems of the United States and United Kingdom will be examined in more detail than that of other states, however, and comparison will be made between those two countries and the constitutional system that has pertained in South Africa at various times. 

 

There are several reasons for concentrating on these two systems:-

 

a)         The constitutional and political systems of the United Kingdom[2] and the United States of America have had a profound effect on constitutional thought in modern times. The reasons are: -

 

1)            These countries have each provided the original model for the two most common types of governmental structures prevailing in liberal democracies (and indeed, in many other societies that are neither democratic nor liberal), namely the ‘Parliamentary’ and the ‘Presidential’ systems.

 

2)            Most written constitutions owe some part of their form to that of the United States, which was the first of the written constitutions of the modern era and the oldest still in operation.[3]

 

3)            Many of the ideas on which the United States Constitution is based, if not its actual form, however, emanate from the constitutional institutions, customs and instruments of the United Kingdom, which was the first democratic state of the modern era, and possibly the first effective liberal representative democracy ever to exist.

 

4)            These two systems are the prime examples for the two methods by which constitutions come into being. Constitutions can evolve over a long period of time, each development occurring in order to deal with an immediate problem, seldom with any consideration of the long term implications or underlying principles. Alternatively, constitutions can be planned and come into being quite suddenly, once their terms have been agreed, based on specific constitutional principles.

 

5)            These two systems also provide the prime examples of the form a constitution may take, either written, unwritten or partially written.

 

6)            Finally, these systems provide the primary examples of constitutional supremacy and parliamentary or legislative supremacy.

 

b)         The decision to concentrate on the British and American systems is also to some extent based on practicalities, in that there is a lot of research material relating to these systems which is readily available.

 

c)         It is also useful to study these two systems in some detail, not only because of the global influence that they have exercised, but also because of the differences that exist between them. These differences serve to illustrate alternative approaches to the powers and structure of the legislature and executive, and the structure of the state with regard to national and regional government. The differences are all the more interesting because they exist in respect of two states that are both liberal democracies which aspire to similar political philosophies.

 

 

The United Kingdom

 

The United Kingdom’s system grew out of a long evolutionary process starting in the dark ages, punctuated by significant laws and innovations such as Magna Carta (or ‘Charta’). It culminated in the ‘Glorious revolution’ of 1688, the Declaration of Rights (or ‘Bill of Rights’) of 1689 and the Act of Settlement of 1701. It was a process of innovation characterised by constitutional and legal devices created on an ad hoc basis to deal with practical problems as and when they arose, rather than a carefully planned structure devised from overriding constitutional theories. By the beginning of the 18^th century, it had almost reached its final state, barring the relatively small legislative modifications that have occurred since, together with the great franchise extension of the 19^th and early 20^th centuries. In this form it served as the modal on which enlightenment theorists such as Voltaire and Montesquieu, who admired the relative religious and political tolerance of Britain in the early 18^th century, based their ideas. The political arrangements of the United Kingdom gave birth to the ‘Parliamentary System’ of governance.

 

 

 

The United States

 

The creation of the United States’ political system was far more rapid and was based more on theory and principle than that of the British had been. The United States’ Constitution is the oldest written[4] Constitution still in use internationally, and has become the model for most modern liberal democratic constitutions. The political arrangements of the United States gave birth to the ‘Presidential System’ of governance.

 

 

The Origins of Parliament

 

• The fall of the Western Roman Empire

 

Following a period of decline and invasion from Germanic Barbarian tribes, the Roman Empire in the West finally came to an end with the overthrow of the last western Roman emperor in 476 AD.[5]  The end of the western half of the Roman Empire is associated with a drastic decline in living standards throughout Western Europe, known as the ‘Dark ages’.  The fall of the Western Empire brought to an end the relative economic Roman ‘globalism’ of the Roman world and the economic system on which it was based, with the range of economic activity contracting to local environs.  With the decline of trade, the mass produced and inexpensive but well made goods which had been manufactured in ‘factories’ during the Roman period, disappeared, as did the production and use of money, at least in the small denominations required for everyday transactions by the lower orders of society.  Other aspects of civilisation such as education and literacy, as well as facilities such as plumbing and advanced building methods also declined or completely disappeared.  The new subsistence and barter economy could not support the same number of people as had the Roman economy, and the population also declined.  A subsistence economy could not support urban life and cities became deserted, or mere shells of their former selves.  The city of Rome itself, which had been the largest in the world with a population of 1200 000 people at the height of the Imperial period and still having a population of about 750 000 in 400 AD, declined precipitously to 35 000 by 500 AD.[6]

 

• The Feudal System

 

The loss of a moneyed economy meant that the ruling class could no longer pay for military protection in the manner of the erstwhile Roman state. From this time on in Western Europe, permanent ‘standing’ armies consisting of full-time, formally trained soldiers living in barracks, could not be supported and disappeared. The few existing full-time ‘warriors’ maintained by the ruling classes had to be supported directly from any surplus that could be extracted from agriculture, which itself was less efficient and produced less than in Roman times. Thus the subsistence economy and military need created a social order, which whilst varying at first from place to place in detail, eventually patterned itself almost everywhere in Western Europe along the lines developed in the Frankish state, namely the feudal system. This was an economic system designed to support military service, in the absence of the money required to pay for it.  

 

The feudal system was like a pyramid, with the king at the apex and the serfs at the base.  The majority of the people were serfs living in a condition of serfdom.  This meant that although they were not slaves (the church formally frowned on slavery, although various exemptions were found on an unofficial basis), serfs lived a distinctly ‘un-free’ existence, little different from slavery.  Each warrior was given a plot of land by his feudal lord in order to provide for the warrior’s arming and upkeep.  A number of serfs would be bound to this land and were not permitted to leave.   They were obliged to till the land for the warrior, or ‘knight’ as he came to be known, whilst subsisting by tilling a small plot allocated for their personal use. They provided for the warrior’s upkeep.  The peasants owed their ‘landlord’ the knight, ‘fealty’ as their feudal overlord. ‘Fealty’ means ‘loyalty’ to some degree, but also involves a contract of mutual protection and military service for fixed periods. The knight in turn owed fealty to his feudal overlord, a minor lord or ‘baronet’. The baronet owed fealty to his feudal overlord; a senior lord or aristocrat such as an earl, count or duke. Finally, the senior aristocrats owed fealty to the king.

 

Although the king in this pyramidal arrangement was an absolute monarch, with all the powers of governance under his control, the feudal system exerted some checks and balances on his power, in that the king did not receive the fealty of the lower orders directly, but through his senior lords. In other words, each level in the feudal pyramid owed its allegiance not to the king, but to the level immediately above it. This meant that if the king was oppressive, at least toward the lords, and failed to keep his side of the feudal obligation of mutual protection, they were legally entitled to revolt, and having the direct fealty of those lower than themselves in the feudal order and therefore possessing their own military power, could revolt very effectively. Thus it can be seen that the feudal system was inherently unstable and exerted centrifugal forces against the creation of a centralised unitary state. It usually made for weak governance at the centre, unless a monarch happened to have a strong personality.

 

• Feudal Military Service

 

From the military perspective, which after all, was the reason for the creation of the system in the first place, each feudal vassal owed his immediate feudal overlord in the ‘pyramid’, a fixed number of days of free military service each year. Allowance was also made for extra service in emergencies. The army which was created in this fashion was called the ‘feudal levy’.  This was not the most convenient method of acquiring military manpower resources for a ruler, however, and there were several disadvantages.

 

The first was the limit on the number of days of service, which could be reached at an awkward moment in the midst of a campaign, with much of the king’s army agitating for release. Another problem was the part-time nature of the service, which meant that notwithstanding the martial ethos of the age, agriculture tended to be the preoccupation of nearly all but the most senior feudal vassals. The result was that despite the laws to regulate this, the extent of training and quality of equipment in each contingent was far from uniform, as indeed was enthusiasm for military service.  The final difficulty, and already alluded to above, was the fact that each feudal vassal was owed direct fealty by those directly under him. Militarily and politically, this meant that each great lord could afford to show alarming independence, and each would demand to command his own contingent without regard to experience or ability and be extremely sensitive about questions of honour and status.

 

All in all, a feudal levy was unwieldy, unreliable and difficult to manage, unless in the hands of a strong personality.  It solved the problem of creating and supporting armies when there was no money to pay for these, but as we shall see, once trade and money had begun to re-enter the Western European economic system at a significant rate, monarchs sought better methods of creating and keeping armies.

 

• Feudal England

 

The Kingdom of England existed informally from the late 800’s AD, but it was created formally in 927 AD with the unification of all the pre-existing Anglo-Saxon kingdoms. Like most monarchs of the period, the Kings of England began by having all the powers of governance under their direct control; - legislative, executive and judicial. The King also had the assistance of a council consisting of the king’s personal advisers, who were selected by the King and met with him regularly.[7]

 

• Magna Carta - 1215

 

A fundamental change occurred in the 13^th century, however, leading to the development of the institution known as ‘Parliament.’ This change was initiated by the provisions of a document called Magna Carta.  In 1215, John I[8] faced a revolt by the majority of his senior barons.  The conflict ended with King John making certain concessions to his barons which were recorded in a document called Magna Carta.[9] 

 

This document is enormously important as it created several legal innovations and rights, especially with regard to due process and it also included an incipient movement towards the independence of the judiciary.[10] It was not a formal constitution, however, and the fact that it survived to be used after 1215 was largely due to chance events. Its drafters did not envisage the universal and constitutional nature of the use to which it was ultimately put, neither did they foresee its longevity. Magna Carta consisted of provisions which dealt with diverse subjects, the common factor being that all related in some fashion to the various abuses of John I, and this indeed was what Magna Carta was designed to cure. Nevertheless, the single most important aspect of Magna Carta was its overriding implication that the king was subject to the law.[11]  This idea was not novel, but it tended to be observed in the breach, and Magna Carta was unique in that it was directed squarely at the conduct of the monarch. 

 

Very few of the provisions of Magna Carta still remain enforceable directly, but most of the significant parts have entered the law and the British Constitution via other laws which re-enacted selected portions of Magna Carta. Legally correct used in this manner of not, it became the authority by which Parliament later challenged the power of the monarch. Significantly, in 1620 it made its way across the Atlantic to the new English colonies in the Americas in the hold of the Mayflower, where it had a profound effect on the development of American legal and political thought.

 

Magna Carta and the ‘Great Council’

 

Magna Carta's significance in the context of the present topic, however, was that it was responsible for the creation of Parliament. Interestingly, this is an aspect of Magna Carta seldom highlighted or even noticed by historians.

 

Ultimately, government of whatever nature always has needed to be sustained by the resources required to keep it running.  This is true even of societies that do not make use of money, where tribute in the form of goods, foodstuffs and services are offered by the public to be used or consumed directly by the ruling entity.  In societies which use money, government acquires the goods and services it needs in order to exist and operate from taxes, and this was true of England in 1215, where the government consisted of the monarch and his court.  Clauses 12 and 14 of Magna Carta provided that other than for paying ransoms, knighting his son or the wedding of his daughter, the King could not raise money by taxing the kingdom without the ‘consent of the realm.’ (‘Realm’ means ‘kingdom’.[12]  This consent was to be obtained by calling a council of all the major lords and churchmen.

 

The effect of Magna Carta, was therefore to expand the King’s council into a ‘Great Council’ by the addition of all the great lords and churchmen, whenever the king required extra finances, which were usually needed for military purposes. This was the origin of Parliament, as the ‘great’ council was distinct from the ‘privy’ council consisting only of the king’s personal advisers.

 

• Parliament

 

In 1265, a baron called Simon de Montfort was in revolt against Henry III. He called the Great Council, to his support. As fewer great nobles (or ‘aristocrats’) responded than he wished, he improved attendance by calling on members of the lower orders of nobility known as the ‘gentry’ to attend. As the gentry were too numerous to attend in their personal capacities, two were elected by their peers in each district to represent that community.

 

Although Simon de Montfort’s revolt was ultimately suppressed, this innovation survived. By the beginning of Edward I’s reign in 1272, the ‘great council’ had become known as Parliament and had divided into two houses.

 

The upper house, which became the House of Lords, consisted of the aristocracy; - the Lords temporal and spiritual; Earls, Barons and Bishops, and each attended in their personal capacities.

 

The lower house was occupied by the gentry; - the knights and ‘burgesses’. Two knights were elected to represent each rural district and two burghers (members of the mercantile or trading class of a medieval city - in this case wealthy merchants and city fathers) were elected to represent each town.[13] This lower house was known as the ‘Commons’ as its members represented geographical communities, as opposed to the nobility in the House of Lords, each of whom appeared in his own individual capacity.  Clearly it was not a democratic institution representing all orders of society as yet, and the gentry who sat in it would be regarded as the upper echelons of society in modern times.[14] It contained the seeds of representative democracy, however, based on the constituency system in that elections were held in each district and town to elect the knights and burghers who would represent each area in the House of Commons.[15]

Significantly, Simon de Montfort’s electoral arrangement carried the (unintended) implication that a power holder is responsible to an electorate, and therefore was a milestone in the creation of democracy in the post-antiquity era.[16]

 

• The growth in the role and power of Parliament

 

In an age when government provided virtually no social services, (any services relating to welfare or education where provided by the church) and built or maintained no infrastructure other than what the king needed for his own personal estates, the main reason for the king to need money was for the conduct of war. Warfare was costly. The king often needed to build expensive fortifications in the form of castles. More especially, the king needed money for food and armament supplies for troops, even when this only involved the feudal levy.

 

Given the unwieldiness and unreliability of the feudal levy, however, kings preferred to hire their own mercenaries. Mercenaries were often better trained, equipped and more enthusiastic than the feudal levy, especially when given the prospect of looting and booty.  Also, from the mid to late feudal period from the 12^th century onwards, trade and money were re-establishing themselves at an increasing rate. This meant that from now on there was a real prospect of being able to pay for the upkeep of mercenaries, at first to supplement feudal levies and later to replace them completely. As the feudal system developed, a fine came to be imposed on feudal vassals for failure to perform feudal duties when lawfully called upon to do so, called ‘scutage’. This developed into a tax which the king preferred to levy in lieu of service, and which he would then use to hire mercenaries. In England, however, the king’s ability to raise taxes had been curtailed by section 12 of Magna Carta.

 

Since Parliament needed to be consulted before money could be raised for warfare, and given that much of the medieval period in England was punctuated by war with the Welsh, Scots and French, Parliament was frequently called and grew in power.  It would not vote to provide money unless the king agreed to its demands.

 

The ‘Commons’ frequently suggested a bill to be enacted into law by the two houses sitting ‘in council’ with the king. The Commons also insisted on the privilege of free debate and claimed the right to be consulted on all matters of taxation. At the same time, the Lords used Parliament to demand the impeachment of certain favourites of the king considered to be unworthy, who were given positions of authority and became unpopular with everyone else.

 

This resulted in a paradox. The medieval kings on the continent became more powerful when they made war, whereas war made the King of England less powerful and more beholden to Parliament. The King’s power to legislate gradually diminished and by the 16^th century legislation could only lawfully be passed by Parliament. A practical separation of powers had come into being, with the King now performing the role of the executive only.

 

This period of growing parliamentary power was brought to an end, however, at the conclusion of a period of dynastic civil war known as the ‘Wars of the Roses,’ which led to the installation of the house of Tudor on the throne in 1485.

 

 

• The effect of religion

 

Before continuing with the story of Parliament and the development of the British Constitution, it is necessary to say something about the effect of religion. It is difficult for anyone living in the modern or even post-modern world, to fully comprehend the impact exercised by religion on all areas of life in earlier times. More particularly for this topic, it had a profound effect on political and economic issues. In fact it was almost impossible to separate religion from politics in those days, which is why religious toleration seldom occurred.

 

Christendom had been almost constantly at war with the Islamic world almost since Islam’s inception and the Arab invasion of the Eastern Roman Empire in 634 AD. Since the Protestant Reformation in the early 16^th century, however, Christendom frequently had been at war with itself, with religion as the main cause of dispute.

 

Prior to the 16^th century, Christians had either been Roman Catholic if they lived in Western and Central Europe, or Greek Orthodox if they lived in Eastern Europe, Russia or the Middle East, although small groups of alternative Christian denominations like the Coptics in Egypt and Ethiopia existed also. The Protestant Reformation, grew out of growing dissatisfaction with Catholicism, expressed by various nonconformist groups like the Lollards and Levellers in the 15^th century. Their attempts at reform or separation from Catholicism largely failed. In the 16^th Century from 1520 onward, however, Protestantism[17] took successful root. Wherever it was accepted it led to changes in theology and a disassociation rejection of the Pope in Rome as the leader of Christendom.

 

Protestantism tended to develop in the North of Europe, and became popular in both England and Scotland. In England, Henry VIII was to make England officially Protestant by ‘breaking with Rome’ over the Pope’s refusal to permit him to annul his marriage with Katherine of Aragon, a Spanish princess. Henry did not act completely unilaterally, however, and whether or not he had any genuine Protestant beliefs personally, he tapped into the popularity that Protestantism already enjoyed in England.

 

As indicated above, Protestant beliefs had been growing in one form or other before Martin Luther made his famous break with Rome. Protestantism’s popularity had much to do with the invention of the printing press in the mid-fifteenth century in Germany.[18] The invention of printing meant that books became quicker and cheaper to produce and could be owned and read by less affluent persons than hitherto had been the case. Prior to the mid-fifteenth century, the Christian scriptures had only been available in Latin or Greek. This changed almost simultaneously with the invention of printing, with the publication of the Bible in vernacular languages for the first time, such as German and English. This ensured that the scriptures were directly accessible to the public, without the agency of priests. 

 

The ‘Reformation’, as the growth of Protestantism was known, led to a division in Western Christendom, with the many northern European states becoming Protestant, and the southern states remaining Catholic with their allegiance to the Pope in Rome. The difference went beyond religion per se, however, and can be perceived in a different philosophical approach to all kinds of issues, from art and politics to economics. This led to political and military clashes between European states of different religious persuasions, with religion only becoming a less important factor from the mid-18^th century, when more tolerant thinking produced by the age of enlightenment began to take effect.

 

Therefore the question of religion, particularly that of the crown, became an issue of profound political importance in England as elsewhere, and played a fundamental role in the formation of the British Constitution.  From the reign of Elizabeth I in the latter half of the 16^th century, there was a new sense of ‘Englishness’ and nationalism in England for the first time. Part of the essence of being English was considered to be Protestantism. Therefore, as startling as this might be to the modern mind, by the time of Elizabeth I practicing Catholicism in England had become the same thing as being unpatriotic, if not treason. It is impossible to understand what followed, unless one appreciates this fact.

 

• The ‘Divine Right of Kings’

 

From the late 15^th century in Europe as a whole, the power of the nobility diminished as they lost the individual military followings and functions that they enjoyed during the earlier feudal period.[19] The nobility therefore ceased to be a check on the power of the monarchy as they had been during the feudal period.[20] The diminishment of the power of the nobility therefore placed greater power in the hands of the monarchy, and was an important factor leading to the development of the theory of the ‘divine right of kings.’[21] This theory held that the monarch was anointed and placed in power by God. Therefore disobedience of the king also amounted to disobedience of God.

 

England was unique in having the institution of Parliament with particular powers,[22] however, which with its control over major sources of finance was able to serve as a check on the power of the monarchy. As a result, England was never a fertile area for the propagation of theories involving the Divine Right of Kings, although, as will be seen, the resilience of the theory in England was to be tested in a long and bloody civil war.

 

 

• Tudor ‘Absolutism’ 1485 - 1603

 

Nonetheless, during the 16^th century Tudor period, Parliament appeared to become somewhat servile and largely consented to the wishes of the Tudor Monarchs. These monarchs were astute at upholding the appearance of parliamentary authority, even if due to Tudor manipulation, it seemed to have diminished in practice.  The Tudor success in ensuring the cooperation of Parliament was achieved partially by their acquisition of support from the gentry in the Commons, which they used against the power of the great Lords.  Fundamentally, however, the Tudors were obliged to work with Parliament, even though they were adept at having their way. Due to Tudor encouragement, in fact, the influence of the House of Commons during the Tudor period, grew at the expense of that of the House of Lords.

 

 

Parliament Seizes Power

 

• The House of Stuart

 

The Stuarts were a Scottish dynasty. The last Tudor monarch was Elizabeth I who died childless in 1602. Her cousin Mary Stuart, queen of Scots, had spent the latter portion of her life as Elisabeth’s prisoner.[23] Unlike Elizabeth, however, Mary had a child. He was James VI of Scotland, and had been King of Scotland since infancy. As he was both protestant and had a good claim to the succession, he was invited by significant factions in Parliament to become James I of England, and from this time the two kingdoms were ruled jointly, with formal union between the two countries being instituted about a hundred years later in 1707.

 

There were two problems which influenced Stuart relationships with English society and the English Parliament. The first was that they tended to believe in the divine right of kings. The second was religion.  The marriage of Charles I and his two sons to foreign Catholic princesses and sympathy for Catholicism, together with their support for narrow Anglicanism[24] also created conflict with English sentiments.

 

• Conflict with Parliament

 

Unlike the Tudors, the Stuarts were not subtle in dealing with Parliament, with the result was that much of the 17^th century was spent with tension between Parliament and the Crown. Twice, in 1642 and 1688, this tension led to crisis. The first crisis, which resulted in civil war, was complicated by religious differences within the predominantly Protestant British society, between Puritans and Anglicans together with Presbyterians. The basis of the conflict, however, was that the Stuarts believed in the divine right of kings and acted in accordance with this belief.

 

The divine right of kings had never gained much traction in England, because of the presence and power of Parliament. Therefore James I arrived from Scotland with ideas that did not fit comfortably in an English constitutional setting.[25]

 

The creation and development of Parliament since the 13^th century had created inroads into the power of the King. Parliament began as the ‘Great Council’ in 1215, with the power only to authorise the raising of taxes. However, during the course of the three hundred and fifty years between the creation of the House of Commons[26] and the arrival of the Stuart dynasty, Parliament and the House of Commons in particular, had steadily extended its area of authority to include the passing of all legislation. Any successful English king now needed to work in partnership with Parliament, something that by means fair or foul, the Tudors had been adept at doing.  

 

In fact the state of the English constitutional order now reflected an effective separation of powers, in that the king was no longer entitled to make laws by proclamation, neither was he able to sit in judgment in the courts.[27] The king’s role in governance had become in effect, solely that of the executive. 

 

James Stuart’s belief in the divine right of kings was bound to set him at odds with the English constitutional order. Nevertheless, although James lost two significant cases in which he sought a ‘declarator’ from the courts regarding the extent of his powers, he managed to avoid any permanently damaging clash with Parliament.[28] It is also worth noting that whatever James’ inclinations, he was obliged to follow the law. After James’ death in 1625 he was succeeded by his son Charles, who became Charles I.

 

 

• Petition of Right

 

King Charles I[29] had a particularly troubled relationship with Parliament, and was forced to agree to stop the abuses complained of in the ‘Petition of Right,’ – a document drafted at the behest of Parliament in 1628.[30] This petition complained that the king was acting in breach of Magna Carta, particularly with regard to:

 

a)    Forced loans;

b)    Failure to observe due process;

c)    Imprisonment without charge, and;

d)    Failure to obey writs of habeas corpus

e)    The forced billeting of troops.[31]

 

 

Charles Initially accepted the Petition of Right, but his belief that he was entitled to claim obedience as divine right together, led him to one of many about turns he was to make in his dealings with Parliament, which was to lead Parliament to treat him with distrust. Instead of the final full acceptance with which he had left Parliament, the King published his initial ambiguous response. Moreover, his officers continued to collect customs dues which Parliament had specifically withheld from him. When Parliament reconvened in 1629, it issued a ‘Remonstrance’ in which it proposed to declare anyone who collected customs duties which had not been approved by Parliament. The King adjourned the House, in order to prevent it from passing the Remonstrance.[32] He was not to call Parliament again for eleven years.

 

 

‘May it please your Majesty, I have neither eyes to see nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here.’

 

The reply of Speaker Lenthall to Charles I after Charles had entered the House with four hundred swordsmen, and had demanded the whereabouts of five of the members that he planned to arrest.

 

 

• The English Civil War and the ‘Commonwealth’

 

In 1642 the differences between the King and Parliament resulted in civil war, which ended with the final victory of Parliament in 1651.[33]  In 1648 the King was captured and executed,[34] and in 1653 Cromwell dissolved Parliament and took total power.[35] He refused to be called ‘king’ and adopted the title ‘Lord Protector.’  The state was now known as the ‘Commonwealth,’ which lasted until Cromwell’s death in 1658.  It is interesting to note how easily revolutions can get out of hand, and notwithstanding Cromwell’s introduction of constitutional reforms and religious freedoms in the latter part of his rule, which may eventually have resulted in a  democratic state, the essence of the ‘Commonwealth’ remained a military dictatorship.[36]  Cromwell’s government, particularly during the initial period when he relied on his ‘major-generals’ to administer the state, became extremely unpopular, as it imposed the most extreme practices of the Puritans (a conservative if not fundamentalist Protestant group) on the rest of the population, including the banning of Christmas![37] 

 

Cromwell made an abortive attempt to introduce a handpicked Parliament, the members selected for their piety, but this was unsuccessful. It must be said that Cromwell, bigoted, opinionated and self-righteous as he undoubted was, never had the instincts of a natural dictator and ruled with reluctance. As Simon Schama has said of him, ‘he wanted to serve God, not be God’.  In the end Cromwell was forced to hold proper elections and call a proper Parliament, whilst he continued to run the executive as Lord Protector. This title indicates his inclinations and what he perceived to be his role. He had no desire to become king. 

 

• The Restoration of the Monarchy – 1660

 

The restoration of the monarchy followed in 1660.[38]  Charles II was invited to return and reign, subject to those restrictions on the monarchy to which Charles I had agreed in 1641, namely the provisions of the Petition of Right and the closure of the Star Chamber.[39] Possessed of considerable personal charm and wit and benefitting from the unpopularity of Cromwell’s Commonwealth, Charles II was possibly the most popular of all the Stuart monarchs.[40] He was reasonably circumspect in his dealings with Parliament, although he too went through a period without calling Parliament and had undisclosed Catholic sympathies. He secretly plotted with the most powerful monarch in Europe and foremost leader of the Catholic states, Louis XIV of France, embarking on an unpopular war with the Netherlands as France’s ally.

 

 

• The Glorious revolution and the Bill of Rights

 

Charles II had no legitimate heir and was succeeded by his younger brother James, who became James II in 1685.  James was openly Catholic and had made attempts to revert to some of the powers previously held by the monarch before the concessions made to Parliament by Charles I. He was plotting to gain these ends with Louis IV of France, inter alia, by placing Catholic officers in the army. None of these factors endeared James to the British public and his attempt was met by a revolt fermented by significant elements of Parliament, which received wide support. James was therefore forced to flee into exile in 1688, the revolution being called ‘glorious’ as it was bloodless. The plotters within Parliament invited the ‘Stadholder’ of the Netherlands, William of Orange, who was married to Mary Stuart,[41] to invade England and become King of England and Great Britain. He became king on certain conditions, however, contained in the ‘Declaration of Rights’ subsequently ratified in the ‘Bill of Rights’ of 1689.

 

With respect to Parliament, the Bill of rights provided inter alia that a 'standing' [42] army was illegal and that any army could only be kept with the assent of Parliament.[43] A standing army was indispensable at the time as there was unrest in Scotland and James was ready to invade with French support. Moreover, the accession of William and Mary to the throne initiated an on-off, twenty year war with France, which only ended after 1713, following a string of French defeats largely at the hands of the Anglo-Dutch armies, commencing with the battle of Blenheim in 1704.  This meant that like it or not, Parliament had to be called annually in order to give its permission for the keeping of the army and to vote the necessary funds. The King’s reliance on Parliament for money meant that he had to give way to it on legislation. The old formula by which war made the kings of the rest of Europe powerful but weakened the King of England, made itself evident even more strongly than before.

 

Parliament never ceased to be called annually from that time onward. In fact the promulgation of the Bill of Rights introduced what has been referred to as ‘parliamentary monarchy’ to the British political system, as Parliament made inroads into what had previously been the domain of the Monarchy, namely the indirect appointment and running of the executive. This became known as ‘Cabinet Government’.[44]

 

The consolidation of the British Constitution and the introduction of ‘Parliamentary Monarchy’ – 1689 – 1714

 

Government had become extremely complex a long time previously, with many functions of state to be performed. It was therefore impossible for the King to run government alone. Accordingly he needed the assistance of ministers who were members of his privy council, such as the Lord Treasurer, the Lord Chancellor, the Secretary of State, etc. They were no longer merely advisors, but each ran a department of state. Until now, they had been selected and appointed by the King. At various times during the 17^th century and in the course of its struggle with the monarch, Parliament had made unsuccessful attempts to remove the power to appoint these ministers from the monarch.

 

• Development of the prime Westminster Convention and the beginning of the party system

 

From 1689, however, the King could no longer act without the support of Parliament and this support could only be obtained if his ministers had support in Parliament. This led to the growth of the party system, in that for the King to rule the country effectively, he would be obliged to select his ministers from the strongest faction or party grouping in Parliament. This led in turn to the main convention on which the Westminster system is based, namely that the King always asks the leader of the party with the majority of support in the House of Commons to be his first or ‘Prime’ Minister, and to form a government. It is the Prime Minister who selects the other ministers and forms a cabinet.

 

The King initially ran the government with the help of the cabinet, but lacked real power and fairly rapidly ceased to be part of cabinet meetings, actual governance being in the hands of the Prime Minister and Cabinet comprising the ministers of state. The first Prime Minister to run the executive without the monarch in attendance was Sir Robert Walpole during the reign of George I (1714-1727).[45]

 

• The ‘Bill signing’ convention

 

Another important convention that derives from this period is that the monarch never refuses to sign a bill passed by Parliament, which again is a practice begun in the early 1700’s.[46] The monarch’s ‘prerogative’ (or powers) is therefore quite small and largely ceremonial, and powers that the monarch legally possesses in theory, such as that of refusing to sign a bill, are not used in practice. This explains the importance of convention in British Constitutional Law, which is held together by the moral force of societal custom, rather than legal rules per se. A breach of an important convention such as those referred to above would therefore lead to a constitutional crisis that would probably lead to Parliament enacting the conventions into law.

 

By 1714, all the major elements of the British Constitution were in place, and any developments or changes would tend to be peripheral from then on.  For instance, the House of Lords, the 'weaker' house from early in Parliament's existence, would further diminish in influence.  The constitution remained a somewhat untidy collection of written instruments, ordinary legislation and unwritten conventions, however.[47]

 

The voting franchise, initially qualified on the basis of wealth and held by only forty percent of adult males in the early 18^th century would become universal adult male suffrage in the early 20^th century, extending to women in the 1920’s.[48]

 

The collection of liberties that that the British had obtained since Magna Carta, culminating in the Bill of Rights, slowly trickled down to the lower orders of the British public and ensured that Britain was able to avoid a social revolution such as the French Revolution of 1789, and the other European revolutions of the nineteenth and early twentieth centuries.[49]  

 

l  The British constitutional legacy

 

 

1.            The sovereignty of the power of the citizenry, represented by Parliament and its elected members;

 

2.            Government (executive) answerable to the people through Parliament (legislature);

 

3.            Parliamentary Sovereignty – with Parliament being the most important organ of governance, as opposed to a monarch or other form of executive;

 

4.            Britain was probably the first workable representative democracy;

 

5.            The beginnings of the separation of power;

 

6.            The concept of the rule of law as opposed to arbitrary government;

 

7.            A limit to the power of government (executive).

 

It was this system of government that the US constitutional draughtsmen adapted when they designed their system in the early 1780’s.

 

‘’No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’  – Section 39 – Magna Carta.

 

 

The United States of America

 

North America was colonised mainly by the Spanish, British, Dutch and French.  The initial English colonies were settled in the late 16^th century during the reign of Elizabeth I, but all failed, with most of the would-be colonists dead. 

 

·         Jamestown

 

In 1607, the first successful colony Jamestown in Virginia was established, although more than half the colonists died within a year. The trip across the Atlantic Ocean from Europe to the Americas was hazardous enough, but strange and different plants were found there, and colonists found that they were not always able successfully to plant the seeds they had brought with them, which often led to starvation.  Also, many of the colonists had an urban rather than rural background and had little skill at planting.

 

·         Companies and Charters

 

The success of Jamestown was due to better funding which allowed more frequent support from England, and the discovery of a cash crop which was easy to grow, namely tobacco. The better funding was caused by the utilisation of a new Dutch invention, the limited liability company, which allowed a number of investors to purchase shares, and only be liable for losses to the value of the shares they had purchased, whilst enjoying a pro-rata share in whatever profits were realised. Jamestown and several other American settlements were sponsored by the ‘Virginia Company’.

 

In order to obtain the protection of the Crown against foreign interference, individuals and companies wishing to establish colonies obtained royal warrants, known as ‘charters’ from the Crown. This meant that English colonisation of the Americas essentially was privatised under royal licence. The charters so issued set out inter alia, the rules by which the settlers would be governed, and therefore comprised rough forms of constitution in effect. They became the models on which the future constitutions of each colony were based.

 

For Jamestown, 1619 was a momentous year, which involved three important events:- 

 

a)    The arrival of a ship with ninety ‘young maidens’, basically ‘mail-order brides’ for the hitherto all male settlement;

b)    The first representative government was instituted - a governor, six councillors and two representatives from each plantation.

c)    Less positively, the colonists purchased twenty black slaves from a passing slave ship.

 

Slavery was America’s ‘original sin’ and had a profoundly negative effect on American history. Apart from the human misery engendered by this institution and the racism it implied, it was the underlying cause of a horrific civil war from 1861 to 1865, and its effects remain imbedded in American society to this day.

 

Another negative side of American colonisation was the fate of the indigenous Native American ‘Indians’. They were later to be treated extremely badly as they were forcibly moved off their traditional lands into reservations. However, far more devastating was their wide-spread contraction of diseases to which, unlike people from Europe, African and Asia, they had absolutely no resistance. Consequently they died of smallpox and bubonic plague on a massive scale.[50]

 

·         Representative Government

 

Representative government was not a novelty to the settlers, as they had experienced it in England. A qualified franchise applied in the American colonies, just as it had in England. The difference, however, was that the conditions for qualification tended to be set somewhat lower in the American colonies, than was the case in England, and so a somewhat higher proportion of the male population enjoyed the vote. In keeping with all other states having representative democracy, women were not to receive the vote until the 20^th century.

 

Many of the English colonists settled in America to avoid religious persecution which varied from time to time in England during the 17^th century, depending on the convictions of whoever was currently in power. This resulted in each English colony in America differing quite widely in character, from the Catholic 'Maryland' to Puritan 'Massachusetts’ or Quaker ‘Pennsylvania.’  

 

This also led to general tendency for the colonies to support religious tolerance, including provisions for this in their constitutions.  

 

‘..the inforceing (sic) of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence’.

 

Extract from the Toleration Act of Maryland, 1649.

 

In essence, settlers wishing to escape to the ‘New World’ did not want to repeat the mistakes of the ‘Old World’.

 

The desire for religious freedom together with population expansion led to massive emigration from Britain to the Americas throughout the 17^th century, some 80 000 persons in fact. This is a large number, bearing in mind that England’s total population was little more than two million at the time.

 

By 1700, there were thirteen English colonies strung along the Eastern seaboard of the North American continent. All of them had some form of representative government by that time, and all possessed written constitutions, developed from their original charters.

 

The French eventually lost their colonies in what is now Canada to the British in 1759 during the 'Seven Years War', which was possibly the first 'world' war as it saw fighting in places as distant as Europe, India and the Americas.  This war against the French had been extremely costly, and taxes were raised in the British colonies to off-set the expense and also the continuing expense of protecting the colonies.  Although an original source of discontent within the colonies, it is wrong to argue that the colonial rebellion which broke out in 1775 was as a direct result of the burden of various war tariff and trade taxes. By this time the taxes had been reduced to very little. The main cause for discontent was the fact that the colonists had no control of the process, whether the resulting taxes were high or low. The issue was about autonomy and lack of representation in the British Parliament; - ‘No taxation without representation.’

 

The British colonists in the thirteen original British North American colonies rebelled against the British government in 1775, signing a ‘Declaration of Independence’.[51] They thereafter fought a war of independence which they won with French assistance in 1783. For several years after the war, the newly independent former colonies operated as a loose confederation.  After several years of discussion, and in the realisation that they could not survive as thirteen independent states, the thirteen former colonies decided to form a unified state.  They produced a constitution by which the ‘United States of America’ would be regulated in 1787, with each of the thirteen states ratifying the Constitution between 1787 and 1790.

 

a)         Enlightenment Ideas

 

It should be noted that the Constitution of the United States was drafted near the end of the 18^th century ‘Age of Enlightenment.’ The American constitutional draughtsmen who met at the constitutional congress in 1787 were aware of enlightenment ideas, such as the social contract, separation of powers and the rights of man and were able to incorporate them into a written constitution.  Montesquieu and Locke were especially influential.  The classical education received by the convention delegates is also reflected in the inspiration they took from the Roman Republic reflected, for instance, in the name of the one of the two legislative houses in Congress, namely the Senate. 

 

b)        Separation of Powers

 

The drafters of the US Constitution were profoundly suspicious of government due to the perceived abuses that had occurred during the reign of George III. The drafters of the US Constitution therefore provided for greater separation between the legislature and cabinet (executive) in order to create low grade competition between these bodies and avoid such abuse in future.[52] 

 

c)         Checks and Balances

 

Furthermore, in some instances, instead of giving certain powers entirely to one of the organs of governance, the drafters divided these powers between different organs of state to prevent any single body having complete control over these particular functions.  This arrangement is referred to as 'checks and balances'.

 

An example is the power to appoint all Federal and the nine US Supreme Court judges (who remain in office until retirement once appointed, and cannot be removed except by impeachment. Judicial appointments and the nature of judges appointed are therefore the lasting legacies of any President who appoints a judge, as the judge generally remains in office long after the President has vacated his). All appointments have to be ratified by the US Senate, however. Given that senatorial elections and terms of office do not always coincide with presidential elections, the Senate may well be dominated by a party other than that of the President. This means that compromise needs to be reached.

 

Similar ‘check and balance’ situations exist with regard to the making and ratifying of international treaties, and with regard to the passing of legislation, the US Presidential ‘veto’ powers, of which more will be said later.

 

‘Checks and balances’ is a phrase often used to describe oversight or accountability measures in the South African context, sometimes by South African courts. For instance, there is a tendency to refer to the oversight powers that Parliament has over the Executive or the role of the Public Defender and Auditor General as a ‘check and balance’. However, this is usually a misnomer as no real system of checks and balances occurs in South Africa. Indeed, it is difficult to conceive of any South African situation where a power is shared between two bodies in a procedural fashion, such as occurs in the USA. (The sharing of areas of legislative authority in terms of Schedule 4 of the Constitution does not fit the description either.)

 

d)        Constitutional Supremacy

 

Unlike the British Constitution, the US Constitution was contained in a single document. What is more, the US Constitution was the supreme law to which all other laws, the courts, the branches of governance and states were subject.[53]  This meant that in the United States, the Constitution had sovereignty, in contrast to Britain where sovereignty was held by Parliament.   Although this function is not provided for in the Constitution directly, the US Supreme Court assumed the role of enforcing the Constitution, and so it became judicially enforceable in the courts, and legislation and official conduct could be measured against its provisions.

 

e)         Differences between the US and British Constitutions

 

The incorporation of the United States Constitution into a document that enjoyed legal supremacy in place of parliamentary sovereignty and the provision for a more definite separation of powers between the organs of state, resulted in significant differences between the American and British systems of government. As we have seen, the British Constitution is a conglomeration of a number of landmark laws including Magna Carta and the Bill of Rights as well as unwritten conventions. In theory, any of these laws or conventions can be amended or revoked at any time by Parliament.  The US Constitution, however, may only be amended by complex mechanisms.[54]  There are, however, a number of similarities and traditions shared by both countries. 

 

f)          Similarities between the US and British Constitutions

 

These similarities exist because although the delegates at the United States’ constitutional convention utilised modern ideas recently formulated during the period of the age of enlightenment, the colonists who had revolted from Britain had grown up under the English Common Law and British institutions. In any event, many of the Enlightenment ideas such as personal rights and the separation of powers were already present, within the existing British constitutional system. In fact Montesquieu's theories regarding the Separation of Powers had developed partly as a result of his (somewhat inaccurate) understanding of how the British system operated.[55] 

 

Although it is sometimes claimed that the colonists revolted against British law, this is a misconception. By and large they were in favour of English law and legal systems. They revolted because they perceived that liberties enjoyed in Britain were not being applied to them.[56] Their reason for revolt was ‘no taxation without representation.’ In essence they revolted because they believed that they were not being treated as Englishmen, which the majority of them claimed to be until the end of the revolution.[57]  The American ‘revolution’ therefore reflected in its main cause the same main cause as the English Civil War, namely taxation 'without consent', contrary both to Magna Carta and from the perspective of the American colonists, the Bill of Rights of 1689.  From the colonists’ perspective, the origin of the revolt was the enforcement of rights and liberties already possessed, rather than the creation of a new order, or new rights. This claim of rights, however, led to armed revolt when the colonists’ demands were not met.  The result was that the American ‘Revolution’ was a rebellion against a colonial power, rather than a social revolution, as was the case with the subsequent French and Russian Revolutions.

 

This meant that English common law continued to dominate in the courts whilst English usage and custom also remained in the political arena, if in a modified form. Thus, for instance, just as the Queen may not enter the House of Commons, so too the President of the United States may not enter Congress without the permission of the Speaker of the House of Representatives.

 

Certain elements of Magna Carta, the Petition of Right and the Bill of Rights of 1689 also found their way into the United States' Constitution, such as the provisions dealing with due process, habeas corpus and trial by jury.  The English Bill of Rights of 1689 served as direct inspiration for the US Bill of Rights, which was later added to the US Constitution by way of a series of amendments.  They share many of the same provisions, such as a prohibition against excessive bail and a prohibition against ‘cruel and unusual punishment.’

 

Nevertheless, there were considerable differences between the English constitutional system and the newly constructed American version as noted above.  A further difference is evident with regard to the structure and organisation of the state, in that the USA is organised on a federal basis whereas the UK is (largely) unitary.

 

g)        Two methods for creating constitutions

 

Finally, the manner in which these two systems developed illustrates the two main methods by which a constitution is created. In the case of Britain, no planning or constitutional theories were involved in the creation of the Constitution.  It slowly developed over a long period of time, each change or addition being adopted in order to deal with the exigencies of the moment.

 

In the case of the United States, the creation of the Constitution occurred within a short period of time. Furthermore, it was thoroughly discussed and planned, and made use of the various constitutional theories which had emerged during the 18^th century 'Age of Enlightenment'.

 

 

 

 

Constitutional History of South Africa

 

Readings:     Currie I and de Waal J The New Constitutional and Administrative Law Vol 1 Juta (2001) at 39 -71.

 

Note that this section of the notes is based largely on Currie and de Waal, simply summarising it at most junctures. Currie and de Waal should be consulted for more detail, the ‘crisis of the nineteen-fifties’ in particular.  

 

1)         Early History and the Union Constitution

 

• The Khoisan and early Bantu settlement

 

The area that was to become South Africa was originally populated by Khoisan groups; - hunter-gatherer San (‘Bushmen’) and pastoral Khoi (‘Hottentots’), until their displacement, absorption or elimination in different cases, by the Southern Bantu tribes who migrated from the north, probably beginning their migrations in West Africa.  The Southern Bantu largely comprised two groups, Nguni and Sotho speaking and crossed the Limpopo sometime during the first millennium AD.   The Sotho group first entered modern Botswana, then avoiding the arid Kalahari, spread southward and eastward through the central-eastern Highveld, with pioneering groups reaching what is now Limpopo province by 500 AD and halting just short of the Orange River by at least 1600. The Nguni tended to move down the eastern coastal low-land strip. Whilst the time period involved is uncertain, pioneering members of the Nguni group probably entered KwaZulu-Natal by about 300 AD, but the bulk are known to have reached the Umtata River by at least 1593 and the Fish River by the early 1700s.

 

It was at the Fish River in the early 1700’s that they first met Boer farmers moving eastwards from the Cape in search of grazing land.  However, there appears to have been relatively little contact between either the Nguni or Sotho and white settlers during the first century and a half of white settlement at the Cape, although white settlement had a profound and damaging effect on the Koisan living in the Western Cape.  The Khoisan were in the calamitous position of being squeezed between White and Southern Bantu groups.  They were either displaced and driven into the more arid regions, or absorbed into what became the Coloured population at the Cape.

 

• The Mfecane

 

In the early 1800s, the conflicts that arose from the creation of the Zulu state caused a cataclysm called the ‘Mfecane’ which was to be felt as far North as Central Africa. This event was instrumental in creating many of the modern African groupings in Southern Africa, including some that eventually became separate nation States, such as the present Lesotho. The campaigns of King Chaka were violent and huge bodies of people were forced to flee the Zulu onslaught.  The Ngoni and Shangana fled north into Mozambique, Malawi, Zambia and Tanzania. The Ngwane and Hlube fled onto the Highveld throwing the Sotho speaking tribes into confusion, whilst the Mfengu fled South-East into the present day Eastern Cape, and were assimilated into the Xhosa–speaking groups who occupied this area.  Meanwhile, Mzilikazi led a breakaway group of Zulu further north onto the Highveld, founding a kingdom, then later moving further north under pressure from the Boers and Zulus to form the Ndebele (Matabele) Kingdom in Zimbabwe.[58]

 

As each displaced group fled, leaving behind their crops and cattle, they would displace another group in their path. The devastation was enormous and whilst large numbers of people were ‘piled up’ into certain areas, other areas of land in what later became Natal and the Transvaal were left empty. It was generally into these spaces that the Boer trekkers of the Great Trek filtered in the 1830’s.[59]

 

• Dutch settlement at the Cape

 

In the meantime, the Dutch East India Company (DoC) had taken possession of the Cape in 1652. The spice trade with India and the ‘Spice’ islands of the East Indies was of extreme importance in Europe, as no spices were grown there. It must be remembered that voyages to India and the East Indies from Europe took many months and refrigeration had not yet been invented. The only foodstuffs that could be preserved long enough to last the voyage were salt beef and hard ship’s biscuit. The nearest modern equivalent would be biltong and rusks. It was impossible to preserve fresh meat, fruit or vegetables, which would only be available on board ship for the first week or so of the journey, before becoming rotten. The result was malnutrition and diseases such as scurvy for the crew and passengers of the ships engaged in the trade. However, the Cape was ideally situated as a halfway stop between Europe and the East Indies, where these commodities could be grown and supplied to the ships. A rest period and an extra week’s worth of fresh food loaded on board halfway through the journey helped to prevent diseases. The DoC therefore started a victualing station at the Cape to service Dutch ships on their voyage from Europe to East Asia, including the Dutch East Indies. Dutch settlers arrived to start farms in order to supply the ships.

 

It can be seen that the main preoccupation of the Dutch East India Company was the spice trade in the East Indies, and it had little interest in the Cape beyond its use in facilitating voyages to and from the East Indies. The Dutch and French Huguenot settlers who continued to arrive, however, came to see the Cape as their home and wandered deeper and deeper inland, becoming ‘trekboers’ in the process, and resenting any attempts at control on the part of the DoC.

 

• The British occupation of the Cape

 

In the 1790’s, during the French Revolutionary Wars, the Netherlands were invaded and occupied by Revolutionary France.  To prevent its occupation by the French, the British who were at war with France occupied the strategically important Cape in 1795.  Having signed a peace treaty with France, the British handed the Cape back to what had now become the Dutch ‘Batavian Republic’ in 1803.  Conflict with France was renewed in 1806 and the British reoccupied the Cape in order to prevent its use by Napoleon, who had by now become Emperor of France.  The Cape thereafter remained a British colony until 1910, with an influx of British settlers in 1820. 

 

Unlike, for instance, the French, the British tended in their empire to keep in place in local civil and cultural practices which did not interfere with their administration. This is seen in their approach to Roman Dutch Law and their eventual codification of African Customary Law in Natal. Roman Dutch Law remained the common law used at the Cape, but due to the unavailability of Judges trained in the continental inquisitorial system, an English system of courts and procedural law was introduced. In addition, the administration of the Cape by the British inevitably employed constitutional law which was English and little if anything of Dutch constitutional law remained.

 

The Cape was run very much like other British colonies with large European settler populations. There were three stages:-

 

1.            Executive Government – British appointed governor with an advisory council of settlers;

 

2.            Representative Government – British appointed governor with an elected legislature;

 

 

3.            Responsible government – Governor-General with an executive council needing the support of an elected legislature.

 

The last step was near autonomy in that the executive council headed by a Prime Minister ran the colony, requiring only the assent of the Governor General for legislation. The executive council was a cabinet in effect. The British government could also disallow legislation that the Governor-General had agreed to, within a year of signature. The Governor General or British government seldom interfered, however, unless the legislation ran against British interests and usually left internal matters to the colonial government. Accordingly, the Governor-General performed much the same role as the monarch in Britain, whose government he represented.

 

It can be seen that the Westminster System of parliamentary government largely was followed.

 

• The Great Trek and the Boer republics

 

Many Boers in the Cape were dissatisfied with British rule and in 1836 left the Cape for the interior as part of the ‘Great Trek.’  They tended to filter through the areas left empty by the Mfecane. After an ultimately successful clash with the Zulu, they established a republic in the more deserted areas of Natal south of Zululand, setting up their capital at Pietermaritzburg. Shortly thereafter, they clashed with the British who arrived in order to assert control. The Boers had no intention of remaining under British rule, however, and abandoned Natal, moving back north onto the Highveld escarpment again. Natal became a British colony and British settlers arrived in the 1840s and 1850s. In the 1860s the first Indians arrived. The majority of the original immigrants worked as indentured servants on the new sugar plantations.

 

The Boers eventually formed two republics on the Highveld, the Orange Free State and the South African Republic (Transvaal.)

 

The Boer Republics were run somewhat differently from the Cape.  They followed the United States model to some degree. They had written constitutions, stricter separation of powers, directly elected presidents, and the Free State had a justiciable bill of rights, although white males were the only beneficiaries.

 

These constitutions had no lasting influence and their use ended after the defeat of the Boers in the Anglo Boer war of 1899-1902. From 1902 until 1910, the two former Boer republics were controlled directly as colonies, albeit with limited self-government from 1906 in the Transvaal and from 1907 in the ‘Orange River Colony’.  The Cape and Natal had enjoyed Responsible Government since 1872 and 1893 respectively.

 

• The formation of the Union of South Africa and the National Convention

 

After the Boer War, Britain had control of most of Southern Africa and took steps to unify it into one country.  Agreement was reached among the British colonists and Boers at a National Convention which excluded black opinion, manifested in the form of a delegation.  The territories in which the Basutu, Swana and Swazi lived, however, avoided incorporation and remained British colonies.[60]

 

A racially exclusive constitution based on the Westminster model was agreed.

 

Cape politicians secured constitutionally entrenched protection for a non-racial qualified franchise where it already existed, (namely the former British colonies of the Cape and Natal). The other constitutionally entrenched provision allowed for Afrikaans and English to be the official languages.

 

 

2)         Basic Features of the Union Constitution

 

Westminster type Constitution:-

 

a)         Bi-cameral Parliament (Two houses)

 

                        House of Assembly – members elected by the electorate directly.

 

                       Senate – members nominated and elected by provincial legislatures and House of Assembly.

 

b)        Unitary State, - not federal, although the colonies were retained as provinces with their own legislatures. But no provincial ordinance could conflict with National Legislation, and needed the assent of the Union cabinet.

 

c)         Parliamentary Sovereignty – Parliament could make or unmake any law it choose with little constraint. – All other organs were subordinate. In most situations the constitution could be amended by simple majority.

 

But there were certain constraints.

 

External Constraints

 

The Union was a Dominion of Britain – not a sovereign independent state.

 

a)         All bills had to be sent to the Governor-General for assent before becoming law.

 

b)         The South African Parliament could not legislate in a manner repugnant to a law of Britain made applicable to SA.

 

In practice, the South African Parliament was never constrained by either of these limitations on its sovereignty, which disappeared in 1931 with the passing of the Statute of Westminster by the British Parliament, which gave virtual independence of action to the British 'Dominions.'[61]

 

Internal constraints

 

-       The entrenched provisions. – Certain constitutional provisions could only be amended by special procedure.

 

1. s35 – non-racial franchise in Cape and Natal;
2. s137- protected the equality of the official languages;
3. s152 – entrenched itself and the other sections -It required that a 2/3 majority of both houses sitting jointly was necessary to amend the entrenched provisions.

 

 

3)         The Construction of a Racially Divided State

 

a)            A Divided State

 

SA Act of 1909 brought together four colonies into a single Union of SA. In effect, however, it created a divided state.

 

On one hand the white minority had parliamentary democracy whilst on the other the majority of black South Africans were subjected to autocratic administrative rule. Black representatives who were excluded from the National Convention, had wanted the Cape Franchise to extend to the former Boer republics. This was refused on the grounds that it was not representative of African society. Black society was therefore to be treated as ‘traditional,’ with governance to be by chiefs in a feudal hierarchy headed by the Governor-General-in-Council.

 

b)           Two Forms of Governance

 

The origins of the divided state are in the South African Native Affairs Commission (Langden Commission) of 1903. It was set up in order to find a common native policy for all four colonies. It decided on territorial segregation of Black and White as a permanent feature of public life. ‘Native Reserves’ were to be created for exclusively African occupation governed by administrative control. These were to be situated in ‘ancestral lands’ and tenure was in the form of group ownership in terms of which the tribal chief administered the land in trust for the people. The sovereignty of the chiefs, however, was held to be transferred to the Crown, which had the duty to administer Blacks according to traditional forms of governance, ie tribalism and African Customary Law.

 

Whilst the system did indeed reflect aspects of African society as it then existed, and was not necessarily sinister in intent, it was:

 

a)            inherently paternalistic, and more especially removed the element of choice from Black society, given that the decision to create or perpetuate this system had been made for blacks by whites;

b)            The system was also convenient to white interests, and left whites in ultimate control of South Africa and its black population;

c)            A further effect was the freezing of black society and legal systems in time, without allowing for any development.

 

This dual treatment for black and white was adopted into the Union Constitution which provided for democratic government in respect of (most) white adult males, the control and administration of Native affairs being vested in the Governor-General-in-Council, or bureaucrats in an authoritarian system of tribal authority.

 

 

4)         The franchise and the racial construction of citizenship

 

Currie at page 52-7; Devenish para 98-102; 197; 241

 

The political franchise, otherwise known as ‘suffrage’, is the right to vote.  Franchises and citizenship are closely linked. In the first democracies such as Athens, the citizens comprised a relatively small part of the population, and were only the individuals who possessed the franchise.  The franchise was ‘qualified’ and was determined by wealth, more particularly the ability to afford the ‘hoplite’ panoply (armour).  The citizens were therefore restricted to those males who could defend the state militarily, either on land as members of the phalanx, or at sea as members of the fleet.  The franchise in Britain and almost every other country which employed representative democracy was also qualified at first, and in the case of Britain became universal in respect of males only in 1918. Women were not permitted to vote at all until 1918, when some who were land-owning acquired a qualified franchise. Universal adult franchise was only achieved in Britain in 1928.

 

i) Pre-Union Franchise

 

In South Africa, the franchise was also by no means universal.  Prior to the Boer War of 1899-1902, in the Transvaal and Orange Free State, there was universal white male franchise.  In the Cape and Natal, it was a qualified franchise for all adult males, without regard to race. (‘All civilised men.’)  This system gave the franchise to all who met literacy and property-owning standards. It meant that some white males who did not meet the standard, and the majority of the black population, were not permitted to vote.  In Natal the conditions for eligibility to vote, particularly the land-owning requirements, had the effect of excluding far more persons of colour, when compared with the number who enjoyed the vote in the Cape. (Only 6 Africans by 1907.) Communal ownership of land for the majority of black people ensured that few qualified for the franchise in Natal. In the Cape, far more Coloured people owned land in their own right and therefore enjoyed the franchise.

 

ii) Treaty of Vereeniging to Universal white franchise

 

In terms of the Treaty of Vereeniging which ended the Boer war of 1899-1902, the enfranchisement of people of colour was made dependent on the consent of the white inhabitants.  This resulted in the status quo being maintained in each province. On union in 1910, the four provinces each continued with the systems they had previously used.

 

The vote was extended to white women in 1930, and the following year to white men previously excluded by the property and educational qualification.

 

iii) The destruction of African voting rights

 

The Union had accepted racial division at its formation, and as voters in the two former British colonies with a more liberal bent became diluted by more conservative Free State and Transvaal voters, the first steps on the path to formal apartheid began. African voters were removed from the voter’s roll in 1936, by legislation passed in accordance with the entrenched procedures of s36.  This placed Africans with the right to vote on a separate roll, entitling them to vote for three white members in the House of Assembly.

 

A similar attempt was made with regard to Indian voters in 1945, but the Act was rejected by the Indian community and was abandoned by the National Party when it came to power in 1948. This was followed by ‘homeland’ legislation, the aim of which was to extend the franchise to Africans, but only in ‘homeland’ areas or ‘Bantustans.’ In terms of this legislation, blacks ceased to be citizens of South Africa, but were citizens of the various Bantustans instead. Eventually all people of colour who had qualified were removed from the voter’s roll.

 

iv)  Ascendancy of Parliamentary supremacy- The constitutional crisis of the 1950s.

 

Harris v Minister of the Interior 1952 (2) SA 428 (A)

Minister of the Interior v Harris 1952 (4) SA 769 (A)

Collins v Minister of the Interior 1957 (1) SA 552 (A)

 

In the mid nineteen-fifties, a ‘constitutional crisis’ arose in South Africa over the Coloured voters’ franchise. This is an extremely important period jurisprudentially and the saga is usefully summarised in Currie et al volume one at pages 46 to 50, and therefore will not be recounted here. In addition to Currie et al, students should read Harris v Minister of the Interior[62] which significantly in an era of Parliamentary sovereignty, ruled that Parliament had to act with procedural correctness constitutionally in order to pass a valid act, and Minister of the Interior v Harris,[63] where the Appellate Division struck down the ‘High Court of Parliament’ Act; a case with significance for the separation of powers.  The Collins case completed the cycle of cases spanning the constitutional crises.  

 

 

5)         Exclusion of judicial Review

 

In 1956 an amendment was passed to the Constitution that prevented a court from enquiring into or pronouncing upon the validity of any law passed by Parliament, other than those affecting the language clause.

 

In 1961, South Africa left the British Commonwealth and a new Republican constitution was passed. The office of Governor-General was abolished and the British Monarch ceased to be Head of State. She was replaced by a ‘State President’ whilst the Prime Minister continued as Head of Government, as had been the case in the Union Government.

 

Section 59 explicitly excluded the courts from substantive as opposed to procedural review of legislation and limited judicial review over Parliament to legislation relating to the official language clauses.   

 

In fact the Constitution did contain substantive criteria on which legislation could be judicially assessed, as it made reference to Parliament having power to ‘make laws for the peace, order and good government of the Republic.’  The courts chose not to challenge Parliamentary supremacy by inquiring into the substantive content of any legislation, after the Harris cases, however.

 

This gave Parliament free rein to ignore the principles of equality and human dignity inherent in South African common law, which made no distinction based on race.  (- ‘Debasement of SA’s legal system.’)

 

 

6)         Denationalisation and the ‘extension’ of the franchise

 

i)         Apartheid and Bantustan independence

 

After World War II, a combination of economic exhaustion on the part of the colonial powers and nationalism amongst the colonised led to a retreat from overseas empires and colonialism.  In an attempt to gain legitimacy for the racial division that by now had become outmoded internationally, to utilise, the SA government utilised some of the features of decolonisation by devising a scheme that was intended to rid them of the African problem, essentially by ‘exporting’ it. The overall plan was to negate the effect of the fact that whites were outnumbered by blacks[64], whilst giving the situation of blacks the appearance of legitimacy by affording them the normal rights of citizens, such as the franchise.

 

This scheme exploited tribalism, and was based on the notion that blacks were not South Africans, but were primarily members of separate tribes. The essential idea was to give each tribe ‘independence’ within its own homeland.  Therefore, as regards suffrage, the plan was to extend franchise rights to Africans, but only within the black homelands, which in time would become independent countries.  The hope was that each homeland would have its own nationalism and thus defuse the threat of unified Black Nationalism.  In the meantime, whites would become the majority within South Africa proper, with the blacks who remained there having only temporary visitor status, regulated by a system of work visas. The right to work in South Africa proper was proved by the possession of each black person so entitled of a ‘pass’, which had to be carried on his or her person at all times. 

 

The Promotion of Bantu Self-Government Act 1959, introduced the concept of separate development or ‘apartheid’.

 

Separate Development took two forms, ‘grand’ and ‘petty’ apartheid.

 

• ‘Grand’ Apartheid

 

Grand apartheid incorporated the plan described above. It involved extensive social engineering and constitutional ‘sleight of hand’, including:  

 

a)            Limited self-government and ultimately, sovereign independence for 10 ethnically-defined ‘homelands’;

 

b)            On acquisition of independence, those people associated with each territory would lose South African citizenship and acquire the nationality of a new state.

 

The ultimate aim was a South Africa in which there were no black South Africans, but only black guest workers. Few of these homelands had completely continuous boundaries and most consisted of a patchwork of separate territories, which comprised ‘islands’ of homeland separated by corridors of South African territory. Therefore, under the guise of independence, black South Africans would lose South African citizenship and become citizens of states that had little potential to become economically self-sustaining. Instead these states would continue to serve as sources of labour for South African industry and agriculture, whilst ensuring white dominance within 

 

By the time of the Interim Constitution in 1993, there were six self-governing territories and four ‘independent’ states within the territory of South Africa.

 

This policy of ‘Grand’ Apartheid was condemned internationally and rejected by the majority of black South Africans.  The nominally independent states received no recognition by any foreign power.

 

• ‘Petty’ Apartheid

 

The ‘petty’ apartheid which accompanied ‘grand’ apartheid involved a collection of discriminatory measures, such as a ban on mixed marriages, job reservation and housing, business and educational segregation. It also included a ban on racial mixing at places of entertainment and any hotel not designated as ‘international’. Particular areas and districts were defined in which specific races could live, have businesses, places of entertainment and education. Other races where not permitted to live or utilise the facilities within these areas. Segregation went as far as defining the racial use of specific park benches and buses.

 

 

ii)         The 1983 Tricameral Constitution

 

In the early 1980’s due to mounting international pressure, the South African government attempted to broaden the base of support for the apartheid status quo, without relinquishing power.  Political rights were extended to Coloured and Indian persons in terms of the Tricameral constitution of 1983. – A case of ‘divide and conquer.’ – But characterised as ‘power-sharing.’ Each race group had its own house in Parliament, voted for on a constituency basis, but control was effectively in the hands of the majority party in the white House of Assembly. 

 

The office of Prime Minister was abolished and an executive presidency was introduced with the State President becoming both Head of Government as well as Head of State.

 

In the event of a veto from one House for a ‘general affairs’ bill, it was referred to the President’s Council which had power to pass the bill.  The Office of the State President and President’s council were both voted for by the houses on a 4:2:1 basis, ensuring that the majority party in the white House of Assembly had final say.  This was more or less an accurate demographic division at the time, but worked conveniently in favour of the white population group.[65]

 

This constitutional development was rejected internationally and by the majority of people of colour within SA. Tensions resulted in an escalation of resistance and rebellion which led to repeated states of emergency from mid 1985 onwards.

 

This was the situation when the interim constitution was negotiated between 1990 and 1993.

 

 

7)         Negotiation of a legal Revolution

 

Currie I. and de Waal J. The New Constitutional and Administrative Law Vol 1 Juta (2001) at 57-71.

 

i)          Rights based initiatives

 

For some time the need for the recognition and enforcement of human rights had been recognised both in South Africa and abroad.  In the 1980’s several attempts at drafting bills of rights were initiated.  The ANC produced its ‘Constitutional Guidelines for a Democratic South Africa, which envisaged a judiciably enforceable bill of rights.  This was followed by a ‘Bill of Rights for a New South Africa’ in 1990, which was further amended in 1991 and 1992.

 

In South Africa itself, several legal academics and political parties had also called for a bill of rights to be part of any new legal order, despite the fact that this was not an immediate political possibility.  Some Bantustans such as the Ciskei and Bophuthatswana featured bills of rights in their constitutions, which were occasionally enforced from 1990 onwards.

 

In 1986 the SA government instructed the SA Law Commission to make recommendations regarding the protection of group rights and the possible extension of the existing protection of individual rights.  The Law Commission subsequently produced an ‘Interim Report on Group and Human Rights in 1991.

 

 

ii)         The events which led to the end of Apartheid.

 

PW Botha who was president of South Africa for most of the 1980’s had initially been seen as a reformer. He did remove certain aspects of ‘Petty’ Apartheid, but there were no signs of a shift in policy on ‘Grand’ Apartheid.  The extent to which the Tri-Cameral constitution ‘reformed’ or entrenched the status quo was debatable, but outside of the National Party, it was generally perceived to do the latter.  Nevertheless, enormous expectation of wide ranging reform was raised just before a seminal speech made By Botha in 1985.  The ‘Rubicon’ speech when delivered proved to be a great disappointment, however, given the expectation government spokesmen had created in advance of it.  It hardened foreign attitudes towards SA and foreign banks began to refuse to advance further credit to the SA government.  The currency began a free-fall and the economy began to slow into recession.  This created enormous pressure on the South African Government.

 

Pressure was also created by the African townships which had become increasingly ungovernable. The structure of Apartheid society and urban geography, however, meant that the townships could be isolated and ignored. The Apartheid state was too strong to overcome militarily. This meant that change could not be imposed on the government without considerably more social violence or disintegration.  Therefore, despite growing township violence and labour unrest, matters had reached something of a stalemate by the late 1980’s.

 

In 1989 PW Botha suffered a stroke, and stood down as leader of the National Party, but wished to continue as State President.  FW De Klerk took over as leader of the National Party which proceeded to oust PW Botha from the State Presidency, a role assumed thereafter by FW De Klerk.  He first fought an election on a mildly reformist ticket, then made a shocking announcement which broke the stalemate.  In his speech at the opening of Parliament in 1990, he announced his orders for the release of Nelson Mandela and the unbanning of the various liberation organisations.  Tentative discussions had already begun, and were arranged on a more formal basis from this time onwards.

 

 

Old Examination and test questions

 

• Question

 

With reference to Harris v Minister of the Interior 1952 (2) SA 428 (A) and Minister of the Interior v Harris 1952 (4) SA 769 (A), explain and discuss the following concepts or issues:-

 

a)            Entrenched provisions in constitutions and the Union Constitution in particular;

 

b)            The seeming paradox (contradiction) created by procedural restrictions within a system of parliamentary supremacy;

 

c)            The distinction between the role of Parliament and the role of the courts.

 

15 marks

 

·         Question

 

The constitutional and political systems used by the United States of America and the United Kingdom have served as models for numerous other countries.  Whilst there are many similarities between them, there are also a great many differences.  These differences are made the more interesting as both states are liberal democracies which aspire to similar political philosophies.  Explain the differences between these systems with reference to the manner in which each system developed historically.

 

                                                                                                15 marks

 

 

 

 

 

---

[1]           Note that the word ‘masses’ is Marxist jargon for the proletariat or lower working class in Marxist theory, whose only possession of significant value is their labour. It is not a synonym for the word ‘citizen’, and should not be used in this module unless in the context of a quote or between inverted commas when making specific reference to its Marxist usage.

 

[2] The title ‘United Kingdom’ has the following history: Queen Elizabeth I (Tudor) of England died in 1603 without any heirs. Her nephew James Stuart, King of Scots (James VI of Scotland) was invited to become James I of England.  Scotland and England (including Wales which had been formally unified with England since 1536) were ruled jointly from that time on. In 1707 England and Scotland were formally joined together as one state to become the ‘United Kingdom of Great Britain’ (‘great’ being a geographical description referring to the largest of the British Isles, rather than an expression grandeur or impressiveness.) When Ireland (parts of which had been ruled by England since feudal times) was incorporated into the state in the early 1800’s, the British state became the ‘United Kingdom of Great Britain and Ireland’ and with the independence of Southern Ireland (Eire) in 1921, it acquired its present title which is the ‘United Kingdom of Great Britain and Northern Ireland.’ The UK as a whole is sometimes incorrectly referred to as ‘England,’ an error calculated to anger any Scot or Welshman. 

 

[3] It was not the first written constitution, however. At the very beginning of the ‘modern’ era, there was some experimentation with a written constitution in England under Cromwell’s ‘Commonwealth,’ which was abrogated by the restoration of the monarchy in 1660, and even earlier written constitutions are known from places such as Medina in the early Islamic era.

 

[4] The British Constitution is older but is largely unwritten, comprising a somewhat untidy collection of documents, conventions, Acts of Parliament and elements of the English Common Law which together constitute the British Constitution. This constitution lacks the tidiness of a single written document, but due to the venerability of its various parts has considerable authority. This means that although the British Parliament could theoretically abrogate or amend any of it by means of a simple majority vote, it is extremely unlikely that any fundamental changes would ever be effected in this manner, or at least without overwhelming popular support. 

 

[5] The Eastern Roman Empire centred on the city of Constantinople was to continue in gradually declining form for nearly a thousand years, until the fall of Constantinople to the Ottoman Turks in 1453, after which the city became known as ‘Istanbul’, its current name today. Istanbul is a much renamed city and Constantinople was not its original name. Its original name was ‘Byzantium’ and for some reason, scholars writing in the nineteenth century began to refer to the surviving Eastern half of the Roman Empire as the ‘Byzantine’ Empire, a term the Eastern Romans would never have used for themselves. 

 

[6] Although Alexandria was a close competitor, no other city was to reach this population size again anywhere in the world until Baghdad reached 1000 000 in the 10^th century and after Baghdad’s decline following its destruction at the hands of the Mongols in 1285, London in 1800.

 

[7] What later became the monarch’s privy (or ‘private’) council was the curia regis, or ‘king’s court,’ comprising nobles and clergy selected by the king to assist him in the running of the realm.  This was created after the Norman conquest of England in 1066.  It replaced the Anglo-Saxon Witenagemot or ‘Witan.’ The Witan was a council of all the senior nobles who met to advise the king, and to choose his successor, as kingship was not automatically bestowed on the king’s eldest off-spring.  The Witan was a far more influential body than the Curia Regis as it was a far larger body and was not selected by the king, nor was it completely subject to his will.  To some extent, the Witan formed the modal for Parliament when it was developed in the 13^th century.

             

[8] His full titles were;- ‘John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou,’ which reveals something of the nature of kingship at that time, and the preoccupation of the English kings with their lands in France. The latter three territories were situated in France, and the King of France was technically the King of England’s feudal overlord in respect of those particular territories. In practice, the French territories ruled by the feudal Kings of England were a source of almost permanent conflict between the two states.

                 

[9] Magna Carta’s survival after its original adoption was, like so many other aspects of British constitutional history, just a matter of chance. Similar charters containing the undertaking of monarchs had been issued by English Kings before, but none had had ever survived for long. Indeed, in this case also, John was soon to renege on the promises he had made, but his death in 1216 left his infant son Henry III on the throne. With the majority of England’s barons once more in revolt and a French invasion narrowly thwarted, Henry’s guardians agreed to uphold Magna Carta in order to ensure a stable situation, which they otherwise would have found difficult to manage in the name of a vulnerable infant king. By the time Henry had grown, Magna Carta had become an accepted institution, which was to gain more and more credence and authority as time passed.

 

[10] Magna Carta is a somewhat untidy list of undertakings on the part of John I, to correct a variety of abuses of many kinds. The most famous tend to relate to ‘due process’ trial rights, but many other kinds of provisions designed to make things better for members of society were included. Some had long term effects and benefits which were neither obvious at the time, nor necessarily intended by those demanding them. One such provision related to the Court of Common Pleas.

 

By of way background, it should be noted that as with most medieval societies, much of the taxation was provided ‘in kind’ in the form of food stuffs, rather than in cash. Therefore the King’s court was almost constantly on the move, and went from place to place around the kingdom, literally eating its way through this form of taxation as it went. A further important background fact is that although the King could sit in judgment in any matter, (and John I preferred to do so in order to see if he could profit by any legal dispute over which he presided). However, with the legal innovations of John’s father Henry II, the royal courts which used the English ‘Common’ Law and rational means of fact finding, (unlike the local ‘baronial’ courts which still used various forms of ordeal), the royal courts were becoming a popular forum for the settling of legal disputes. This resulted in the load becoming too much for the monarch, who had already begun to employ judges to act on his behalf and in his stead. These judges formed part of the King’s Court and therefore followed him wherever he went. 

 

Section 17 of Magna Carta, however, required that from now on the Court of Common Pleas should remain in one place. The benefit for litigants was that now they were able to know where they could attend court, together with their witnesses. Previously, they would have had to set out in the hope that they could find wherever the court was temporarily situated, before the king moved off again with the judges in tow. Given that both travel and communication were difficult in this era, this was by no means an easy task. The unintended consequence of the court’s geographical stability, however, was the permanent physical separation of the judicial part of the King’s court from the King. This physical separation gradually led through custom and convention to de facto separation of powers between the court and the executive, with the king gradually hearing fewer and fewer matters personally, until the monarch’s involvement in the hearing of judicial cases ceased altogether. By 1607, when James I, the new Stuart monarch attempted to hear a case, the Court of Common Pleas could deliver the judgment in the case of Prohibitions Del Roy, in which it was ruled that the King may not give judgment in a court of Law.

 

[11] Most of the provisions dealt with abuses to the aristocracy and to the gentry, but its stipulations specifically applied to ‘all free men’ in the main, whilst some applied to ‘all men’. The distinction ended for the English with the collapse of feudalism in the fifteenth century.

 

[12]          ‘12.         No “scutage” (literarily ’shield tax’ - a payment of money in lieu of military service) or “aid” (a special tax) may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter.  For these purposes only a reasonable “aid” may be levied.   “Aids” from the city of London are to be treated similarly.

                ……………….

 

                   14.        To obtain the general consent of the realm for the assessment of an “aid’ – except in the three cases specified above – or a “scutage”, we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter.  To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place.  In all letters of summons, the cause of the summons will be stated.  When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared.’

 

-       Clauses 12 and 14 of Magna Carta 1215

[13] The introduction of elected representatives to the Commons from each district, (rather than a gathering of the nearest gentry available) was an innovation of Simon de Montfort’s Parliament of 1265.  Simon de Montfort was the Earl of Leicester and bother-in-law to King Henry III, John I’s son.  De Montfort led a successful rebellion against Henry III and imposed certain modifications to Parliament.  The most important innovation was the introduction of a second house, - which represented communities rather than individual persons of importance. De Montfort did this not because he was a great democrat, but as a practical measure to extend the ambit of his support. His rebellion did not enjoy the full support of all the nobility, so extending the membership of Parliament made it seem that his support was greater than it actually was, - merely because it ensured that more people were present.   A further innovation of De Montfort’s Parliament was to extend membership to towns for the first time. Towns were not part of the feudal landholding arrangement and therefore were not previously given any formal role or standing in any of the structures of governance.  This new ‘house of communities’ and its electoral arrangement survived de Montfort’s subsequent defeat and its situation was formally ratified in 1295 by the ‘Modal’ Parliament of Edward I.

 

[14] The ‘gentry’ were ‘gentlemen’ or ‘gently born’ lesser nobility entitled to a ‘coat of arms’ or heraldic badge which was connected to their family name. This badge would be displayed on a banner and on the surcoats of the ‘gentleman and his followers. The gentry consisted of the baronets, knights and squires, as opposed to the ‘Lords’ who comprised the aristocracy;- the dukes, earls, counts and barons.

 

[15] The franchise was ‘qualified’ in that it was restricted to all those who owned land freehold, which was capable of bringing in 40 shillings of rent a year.

                 

[16] As a result de Montfort is considered to be one of the founders of modern democracy and is honoured in the US House of Representatives where a relief of his face adorns one of the walls. De Montfort’s Parliament was also novel in that it was the first (but not the last) that was called without the monarch’s authority.

 

[17] By its very nature, Protestantism, - derived from the word ‘protest’ was never unified or monolithic in the manner of the Roman Catholic Church, and it included great differences in style and practice from the beginning, with occasional differences in theology also.

[18] Prior to the invention of printing, books had to be written and copied by scribes in free hand, a slow, expensive and potentially inaccurate process in comparison with printing. The Chinese first conceived of the idea of printing, but their system involved the creation of permanent blocks or forms for each page. The German idea, however, was more workable and involved the creation of movable type which could be assembled on a block for the creation of a page, and then dissembled and reused on other pages.

 

[19] Trade and the circulation of money largely collapsed in Western Europe after the fall of the Western Roman Empire.  The feudal system was introduced as a method of supporting a warrior class and military force in a society that had little money in circulation to pay for its upkeep.  However, as trade and the common circulation of money were gradually reintroduced into Western Europe, monarchs began to favour the payment of taxes in lieu of military service rendered by their feudal vassals personally. The monarchs found the hiring of professional mercenaries provided them with more reliable, not to mention more cooperative and compliant troops.  This factor together with the devastation of the terrible plague of the 1340’s;- the ‘black death,’ which resulted in a shortage of labour and peasants being able to bargain the basis of their working conditions, led to the breakdown of the feudal system.  The breakdown of the feudal system led to the demilitarisation of the gentry and nobility, who gradually ceased to maintain large bodies of armed retainers, leaving most of the military resources in the hands of the monarchy.  As the powers of the great lords reduced, their control of local government diminished also, with the central government under the king becoming more influential. These factors, together with the centralisation of government which had become more complex, led to the reduction of the power of the aristocracy.

             

[20] Roughly 900 AD to 1350 AD.

 

[21] Many pre-industrial societies including those of Europe envisaged some sort of divine intervention in the appointment of rulers, to a greater or lesser extent, but from late medieval times in Europe (approximately 1450 AD onwards) the theory of the ‘divine right of kings’ was used as a political weapon in the hands of the monarchy to justify absolutism. This reached its climax with the ‘Sun King,’ Louis XIV of France (1638-1715);- the epitome of an absolute monarch to whom the saying ‘L'État, c'est moi’ (‘I am the State’) is famously (and probably incorrectly) attributed. Notwithstanding the fact that Louis XIV was a Catholic king, the theory of the divine right of kings was given impetus by the Protestant Reformation, as certain reformers embraced the theory in order to use it as a counter to the power of the Catholic Church.

 

[22] Institutions in other states which appeared to have the same function as Parliament, at least at first glance, had no real equivalence in practice. A prime example is the French ‘Estates General’ (états généraux), which was formed in 1302 to support the King of France in a dispute with the Pope. This body was used by the French Kings to announce and explain policy, but unlike the English Parliament had no control over taxation, apart from a brief period early in its history. By the late 16^th century its lower order members were elected, (rather than appointed) to represent particular classes in each district, although senior nobility and clergy had direct membership.  The lack of any real power on the part of the Estates General is emphasised by the sporadic and infrequent nature of its meetings. It was not called between 1484 and 1560, a gap of  76 years, and then only intermittently until 1614, after which it was not called again until summoned by Louis XVI in 1789 on the eve of the French Revolution; a period of disuse lasting 175 years. 

 

An example of a ‘parliamentary’ body which did possess real power during this period, however, was the ‘States-General’ (Staten-Generaal) of the ‘Republic of the United Provinces,’ (1588-1795);- a political entity from which the modern Netherlands took shape. The Staten-Generaal should not be confused with a conventional elected legislative assembly, however. This ‘republican’ parliamentary body was really the unifying authority for the seven semi-independent constituent provinces, each of which was ruled by a prince. Each member province had a single vote in the deliberations of the Staten-Generaal, which conducted the common affairs of this loose confederation.

 

[23] Mary was Catholic, the daughter of Mary of Guise, a French aristocrat and James V of Scotland, and had been brought up in France. (Mary and Elizabeth make fairly regular appearances on screen and Hollywood invariably gives her a suitably nationalistic Scottish accent, whereas her accent was almost certainly French). Her reign as queen of Scots was turbulent and insecure, not least of all as Scotland, like England, had also become Protestant and Mary’s Catholicism was bitterly resented. Eventually she was forced to flee to England, which presented Elisabeth with a dilemma. England was militarily weak at this time. Accordingly, Elizabeth needed to keep on good terms with France, Spain and Scotland. Spain and France, the two major Catholic powers, were militarily the most powerful states in Europe and both wished to supplant Elizabeth with her cousin Mary. Indeed, several assassination attempts were made against Elisabeth, backed by Spain in particular. The guardians who governed Scotland in the name of Mary’s infant son James wished to capture and prosecute Mary for the murder of her late husband. Intentionally or not, Mary posed a significant threat to Elizabeth, particularly if Philip of Spain managed to make use of her. Not knowing what to do with her, Elisabeth kept her cousin under house arrest for many years. Whilst in confinement, Mary actively plotted against Elizabeth and after Mary was caught red-handed by Walsingham, Elizabeth’s intelligence chief, Elizabeth was persuaded to have Mary tried and executed. This precipitated an attempt by Spain to invade England in 1588; an attempt which failed when the famous Spanish Amada was defeated by a combination of weather and the English fleet, assisted by Dutch allies.

 

[24] ‘Anglicanism’ is the description given to the official Church of England, a protestant denomination which retains certain practices associated with Catholicism, such as administration by bishops, but is protestant in its theology and headed, particularly in those times, by the King of England rather than the Pope in Rome. It included quite a broad variation in styles of worship, however, and the Puritans were theoretically members, even though quite separate in practice. Other nonconformist groups such as the Quakers and Congregationalists, were not members and suffered far more penalties for non-conformism, than did the Puritans, who were also treated with suspicion by the official church. On the other hand, Catholics faced far more restrictions in Britain than any other Christian group (non-Christian beliefs were not permitted at all and all the English Jews had been driven out of England by Edward I in the 13^th century). Catholic belief was permitted in England, but not open Catholic worship, which was banned. Whilst Elizabeth I’s government had started out as fairly tolerant toward Catholics in the 1560’s, its attitudes had hardened over time in the face of the hostility of foreign Catholic powers, and several attempts by Catholics to assassinate Elizabeth. In 1606 at the beginning of James I’s reign, Guy Fawkes’ ‘Gun Powder Plot’ was an example of an abortive Catholic plot to blow up James I whilst he was in the House of Lords, in the process of opening Parliament.  This event is still celebrated with fireworks and burning effigies of Guy Fawkes each November 5^th, which is known as ‘Bonfire Night’ or ‘Guy Fawkes Night’, throughout much of the English-speaking world.  Guy Fawkes’ earlier career is an example of the divisive effect religion had on societies and politics at the time. Notwithstanding the fact that England had been at war with Spain since 1585, Fawkes joined many other English Catholics to fight for Spain against the newly independent Dutch republic, with which England was allied.

 

[25] ‘The House of Commons is a body without a head. The members give their opinions in a disorderly manner. At their meetings nothing is heard but cries, shouts, and confusion. I am surprised that my ancestors should ever have permitted such an institution to have come into existence. I am a stranger, and found it here when I arrived, so that I am obliged to put up with what I cannot get rid of.’ – James I in conversation with the Spanish ambassador.

 

[26] In 1265.

 

[27] As was made clear in the Judgments of Lord Coke in Prohibitions Del Roy 12 Co Rep 64, 77 ER 1342, [1607] EWHC KB J23 and Case of Proclamations 77 ER 1352, [1610] EWHC KB J22, (1611) 12 Co Rep 74 respectively.  

 

[28] Prohibitions Del Roy 12 Co Rep 64, 77 ER 1342, [1607] EWHC KB J23 and Case of Proclamations 77 ER 1352, [1610] EWHC KB J22, (1611) 12 Co Rep 74.

 

[29] King of England, Scotland and Ireland from 1625 – 1648.

 

[30] The King had intervened in the Thirty Years War on the side of protestant Denmark against Hapsburg Austrian Empire. His minister Buckingham prosecuted the war in an incompetent fashion, however, and wide-scale abuses occurred as much of the country was placed needlessly under martial law, with troops billeted on the public without compensation or proper control of the military. Parliament voted the king money to prosecute the war, but less than he wanted, and also removed customs revenue from him, which were customarily voted for him from the beginning of his reign. He continued to have his officers collect the customs duties, however, and forced loans from a number of his subjects.

 

[31] In more detail, it provided, inter alia, for:-

 

a)     No taxation without Parliament’s consent;

b)     No forced loans;

c)     No interference with property rights;

d)     The enforcement of Habeas Corpus;

e)     No arbitrary arrest;

f)      No imprisonment contrary to Magna Carta;

g)     No exemption of royal officials from applying due process;

h)     No forced billeting of troops, and;

i)      No imposition of martial law in times of peace.

 

[32] The doors of Parliament were shut, thus preventing the King’s official ‘Black Rod’, from entering, whilst two burly members held the Speaker in his seat to prevent him from leaving, until the terms of the Remonstrance had been recited in a defiant fashion.

 

[33] During an unsuccessful war against Spain, Charles I called Parliament to raise funds. Parliament used the opportunity to impeach Charles’ ministers for their mishandling of the war. Before the impeachments could proceed, Charles dissolved Parliament and ruled without calling it again for 11 years. He was able to keep the government running by use of the income he derived from his own substantial estates, and forcibly collecting trade tariffs. He was able to continue in this fashion provided he did not need any extra funds for war. He therefore followed a policy of peace with France and Spain. In 1641, however, Charles was forced to call Parliament in order to deal with a Scottish army of ‘Covenanters,’ which objecting to Charles’ support for Anglican religious practices in Scotland, had invaded England. The members of the House of Commons were in sympathy with the Scots, however, and used the presence of the Scottish army whose upkeep they agreed to pay for, in order to settle their score with the King.

 

At first they merely re-imposed the provisions of the Petition of Right, which after all, only enforced the law.

 

However, the feelings in Parliament radicalised and they proceeded to impeach Charles’ ministers, one or two of whom were executed on dubious grounds. They also introduced legislation limiting Charles powers or ‘prerogative,’ including the power to select his own ministers, and legislation that restricted his income from trade tariffs which in future would have to be voted by Parliament each year. This would have left Charles with less authority than any previous King, and from being a monarch with absolute freedom to act within the limited area of responsibility of the executive, (unlike the complete absolutism enjoyed by the Kings of France, for instance,) he would have become a completely ‘constitutional’ monarch. Parliament also dissolved the notorious court of the ‘Star Chamber,’ which had been used to prosecute the King’s political opponents. Charles initially acquiesced but eventually made the mistake of entering the Commons supported by four hundred swordsmen in order to arrest his five most prominent opponents in the House. He was the first King ever to enter the Commons where he briefly occupied the Speaker’s chair. On finding the five MP’s absent, (they had been forewarned) he left the chamber. As he left the bewildered MP’s regained their composure and began to shout ‘privilege.’ When the townspeople of London heard the commotion, and learnt what had occurred, they rose in support of Parliament and forced the King to flee to Oxford. Hostilities then began and only ended in 1651. The ‘English Civil War’ involved complex political and religious issues, the King’s prerogative being but one. It also involved shifting loyalties, and by its end many who had once supported Parliament, supported the King.

 

[34] By 1648 Parliament had won the first part of the war and the King was its prisoner, but it had lost control over its ‘New Modal Army.’ Unpaid and distrustful that Parliament would give up what it believed it had fought for, it refused to demobilise. Oliver Cromwell, one of its Commanders came to the fore and overcoming all military and political opposition, was by 1648, the effective ruler of England. Parliament, already bereft of its Royalist members, was purged of anyone likely to oppose the army including most Anglicans and Presbyterians. It was now known as the ‘rump’ Parliament as it consisted only of a small number of Puritan and Anabaptist members who for a short time ruled as an oligarchy, until later dismissed by Cromwell. The Puritans were an extremely conservative Protestant group, who frowned on frivolity. The parliamentary army was strongly influenced by Puritan beliefs, which appeared to have been vindicated on the battlefield. The King, whom nearly all the Parliamentary factions in this political mess had attempted to use as a figurehead, was perceived by the army to be a danger and was believed to be to blame for the enormous carnage and death caused by the war. Also, driven by his belief in his ‘divine right’ to rule and the justification for his actions this may bring, Charles had a habit of agreeing to things and then going back on his word. Therefore it was believed that he could not be trusted. After a trial conducted by a court appointed at the behest of Parliament, the King was executed for treason.

 

Whether or not this trial was a spurious ‘show trial’ is still argued to this day. The members of the court appear to have tried hard to lend the proceedings all possible aspects of legality, however, an endeavour in which Charles refused to cooperate, declining, inter alia, to plead, or recognise the court’s right to try him. This point was not without merit. The members of the court were very conscious of the fact that they were breaking new ground. In the age of the ‘divine right of kings’, the charge that Charles had committed treason against the ‘people and Parliament of England’ was shocking. This trial was unique in the same way that the post-World War Two Nuremburg trial was unique and innovative in the area of international criminal law. Trying the head of state for treason set a precedent that would next be taken up in France during 1789.

 

On this occasion, however, and quite unlike the 1789 French Revolution, all the parties involved were anxious that they should be fulfilling the will of God. The Puritans believed that God had vindicated their cause on the battlefield. Given that the King had lost they believed that he did not enjoy God’s support. The King on the other hand, believed that he was appointed by God and his actions therefore were sanctioned by the deity. There is evidence of a great deal of soul-searching on the part of the persons responsible for bringing the King to trial, which is quite lacking from the attitudes of the French revolutionaries of 1789.

 

[35] The Rump Parliament (or ‘long’ Parliament) showed no signs of having fresh elections and every sign of perpetuating itself. Exasperated by this and Parliament’s new war against the Dutch whom Cromwell viewed as good Protestants and therefore England’s natural allies, Cromwell entered the chamber with thirty musketeers and ejected the members.

 

[36] The British were left with a suspicion of armies which never left them.  For instance, the words of the famous 18^th century song ‘Rule Britannia, Britannia rules the waves, Britons, never, never, never shall be slaves’ sound jingoistic, as indeed they are. The words do not only refer to the elimination of external enemies, however, but also to the fact that with a powerful navy to guard against external enemies, there would be no need for a strong army, which might otherwise be an internal threat to liberty at home.

 

[37] Cromwell’s saving grace as a military dictator is that although he was both self-righteous and ruthless, he took power with obvious reluctance. He made several abortive attempts to make his government inclusive and restore proper parliamentary rule, but the problem was what to do about the executive.  In the absence of a monarch, how could the executive legitimately be appointed? This was a riddle which was finally solved in the ‘New World’ by the Americans, who had the benefit of the Enlightenment and the Roman Republic to guide them.

 

In Britain it was solved after 1789 by Parliament taking over this function through cabinet government linked to parliamentary dominance, whilst keeping the fiction of the King as head of government. Once parliamentary monarchy had stabilised, the king remained only as head of state.  

 

[38] On Cromwell’s death, Parliament was recalled by Cromwell’s son and then dismissed by the army, which Parliament had tried to curb. The army then recalled the old ‘Rump’ Parliament and two years of mainly political conflict followed, during which factions within the army tried to control the ‘Rump’ Parliament. Eventually a faction within the army sensing the strong royalist feelings in the population resulting from reaction to Cromwell’s dictatorship, agreed to new elections. These elections resulted in a Parliament willing to invite Charles II, son of the beheaded Charles I to return from exile in Holland, which he did. In essence, the problem was how to replace Cromwell, as the system had failed to make provision for the replacement or renewal of the executive in the absence of a monarch.

 

[39] The Petition of Right prohibited forced loans, arbitrary arrest, imprisonment contrary to Magna Carta, interference with property rights, the forced billeting of troops, the imposition of martial law in times of peace and the exemption of officials from applying due process. The demands Parliament made of Charles I in 1642, just before the outbreak of war had been far more radical, however, including the removal of the monarch’s right to appoint his own ministers.

 

[40] Charles II was known as the ‘Merry Monarch’, partly for his personal hedonism (he had many mistresses), partly because he revoked the restrictive practices of Cromwell’s Commonwealth. He permitted the theatres to reopen for the first time since the 1640’s and women to appear on stage in female roles for the first time in English history. (Prior to this time, female roles were played by young men as it was considered to be scandalous to have women acting on the stage.

 

[41] William was James’ nephew, whilst Mary was James’ daughter. At this time William was widely considered to be the champion of Protestantism and a bulwark against the predatory Louis XIV of France, which made him a popular choice for English Protestants. 

 

[42] Permanent or full time professional force as opposed to part-time militia or mobilised citizenry.

 

[43] This Act provided, inter alia, that the monarch should call Parliament frequently, could not interfere with Parliamentary elections, punish members of Parliament for anything said during debates, revoke or suspend laws passed by Parliament, levy taxes or raise a standing army without the consent of Parliament, prevent the right to petition, deny protestant subjects the right to bear arms, require the payment of excessive bail or inflict cruel and unusual punishments. The portions that relate directly to Parliament are set out hereunder:-

 

                ‘And thereupon the said lords spiritual and temporal and commons pursuant to their respective letters and elections being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends of aforesaid, do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties, declare:

 

                That the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late is illegal.

 

                That the levying money for or the use of the crown by pretence of prerogative without grant of parliament for a longer time or in other manner than the same is or shall be granted is illegal.

 

                That the raising or keeping a standing army within the kingdom in time of peace unless it be with consent of parliament is against law.

 

                That election of members of parliament ought to be free.

 

                That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament.

 

                And that for redress of all grievances and for the amending, strengthening and preserving of the laws parliaments ought to be held frequently.’

 

                Excerpts from the Declaration of Rights (Bill of Rights) of 1689, pertaining to Parliament.

 

[44] In essence, the problem of ‘replacing Cromwell’ referred to above, ie the democratic appointment of the executive, was met by effectively side-lining the monarch by removing the monarch’s role within the executive, and replacing the monarch with a cabinet reliant on support from Parliament. The monarch’s role was largely ceremonial form that time on, though nothing had altered legally. The Americans solved the problem of ‘replacing Cromwell’, by inventing the office of the President, who like the Roman Consuls was in effect an elected constitutional monarch, heading the executive for a limited period of time.

[45] ‘German George’ as George was known was a prince from Hanover, a small German state. (Germany did not exist as a single entity until 1870). He became King in 1714, on the death of Queen Anne, the last surviving Protestant Stuart. As the other children of James II were Catholic, George was selected because he had the best right to the English throne if the claims of all the other possible Catholic heirs (there were about fifty) were ignored. This complied with the Act of Settlement passed by Parliament in 1701, which provided that no Catholic could ever be crowned as monarch in Britain. This legislation is not just significant as an example of statutory religious intolerance, however. It also signalled something significantly new, namely that Parliament was now entitled to decide who was eligible to become monarch.

 

The withdrawal of the monarch from the executive and cabinet was not only caused by constitutional modifications arising from the Glorious Revolution, however. As so often in British constitutional history, chance events played more of a role than principled planning. George rarely attended cabinet meetings, which were held in his absence. It was once thought that George’s initial difficulty in speaking English, together with his continuing preoccupation with the running of Hanover, where he was an absolute monarch, were the causes of his absence from cabinet meetings. It now seems that this was more a question of personal choice, and that for all his stiffness in pubic, he was an able administrator. Whatever the reason, however, he had little choice in his ministers who required support in Parliament. The fact that they enjoyed direct support from Parliament, however, gave them more power than the ministers of any previous monarch.  The custom of the Monarch’s separation from cabinet had become too well established to disappear when George died and was succeeded by his son George II in 1727. Neither did George II feel himself able to dismiss any of his ministers, because of the support they enjoyed in Parliament. In the absence of the monarch, the cabinet meetings were headed by the King’s first minister, his ‘Prime’ minister. The first person effectively to fulfil this role as the de facto head of the executive, was Sir Robert Walpole, in whose time of office cabinet government became a reality. From then on, the Monarch only had the right to advise the cabinet through private meetings with the Prime Minister.

 

By convention, the Monarch does not vote and is dissociated from politics. For this reason, the monarch’s advice to the Prime Minister is confidential and is never revealed to the public, as the monarch cannot be seen to support views which are aligned with any particular political party.

 

[46] Queen Anne was the last monarch to refuse to sign a bill, which occurred in 1708.

 

[47] The written portions of the British Constitution include inter alia, the following documents:-

 

                1)  Magna Carta, the instrument by which Parliament was created;

 

                2) The Statute of Rhudllan of 1284 which annexed Wales to the English Crown and the Laws in Wales Acts of 1535-42, by which Wales adopted the common law of England and gained representation in the English Parliament.

 

                3)  The Petition of Rights of 1627 was signed by Charles I before Parliament would grant him any further funds. It provided inter alia for no taxation without Parliament’s consent and the enforcement of Habeas Corpus. It also prohibited forced loans, arbitrary arrest, imprisonment contrary to Magna Carta, interference with property rights, the forced billeting of troops, the imposition of martial law in times of peace and the exemption of officials from applying due process.

 

                4) The Habeas Corpus Act of 1679 was enacted to define and bolster the ancient writ which had already been in existence for at least 300 years. The motive for the passing of the Act was to pre-empt feared interference with the right by James II who was shortly to be crowned.

 

                5)  The Bill of Rights of 1689 (the second most important document after Magna Carta, the provisions of which have been dealt with in detail above); The validity of this instrument was confirmed by the Crown and Parliament Recognition Act of 1689, by which a properly constituted Parliament confirmed all the actions of the previous ‘convention’ Parliament that had invited William and Mary to take the Crown. The ‘convention’ parliament had not been called by the monarch, and there was accordingly some doubt about the legality of its actions

 

                6)  The Act of Toleration of 1689 which granted freedom of worship to those Protestants who were not members of the Church of England. Whilst religious toleration in the sense of freedom of worship and belief was permitted in England at least from the time of Cromwell in the case of Jews and James II with regard to Catholics, appointment to public office by Catholics and Jews was only permitted from the early 19^th century onwards.

 

                7)  The Act of Settlement of 1701 which provided that no Catholic might ever become ruler of England, and settled the monarchy on the house of Hanover, should Anne Stuart, the last protestant Stuart, die without an heir. It also provided for the independence of the judiciary by ensuring that Judges might keep their appointments ‘quamdiu se bene gesserint.’ From this point on the monarch would not be able to remove them from the bench or interfere with their salaries. They might only be removed from the bench for bad behaviour, and on the vote of a joint sitting of both Houses of Parliament. The Act also provided that no person directly employed by the monarch of earning a pension from the monarch might become a member of the House of Commons.

 

                8)  The Acts of Union of 1707 passed by English and Scottish Parliaments, which created a single realm out of the two countries, which in fact had been ruled by the same monarchs for the last 100 years. The Acts of Union dissolved both parliaments creating a unified parliament which was situated in London and operated in accordance with the rules and customs of the original English model. The Acts also created trade and monetary union between the two former states, which henceforward would be known as the Kingdom of Great Britain. Scottish law was still to be applied in Scotland and the Presbyterian Church to remain the official Church of Scotland.

 

This Act created the largest free trade area in the world at the time. In fact trade together with the payment of Scotland’s national debts by England was the inducement for Scotland to agree to political union with England. It was also used to induce Scotland to agree to ratify the Act of Settlement, which removed the remaining Catholic Stuarts from the succession to the throne and replaced them with the protestant house of Hanover. 

 

                9)  The ‘Triennial’ Acts of 1641, 1664 and 1694 together with the Septennial Act of 1716 provided for the frequent calling of Parliament and the holding of elections.

 

[48] It should be added, however, that this was not a linear process. British politics in the 18^th and early 19^th centuries were characterised by the existence of ‘rotten boroughs’; - voting constituencies which due to a poor system of delimitation had very few voters, many of whom could be bribed to vote for unscrupulous persons wishing to become members of Parliament. As a result, a far higher proportion of people enjoyed the franchise in the 17^th century than was the case in the 18^th and 19^th. 

 

[49] A story illustrative of this point is that on first entering London in 1602 after having been invited to become king, James I (formally James VI of Scotland) ordered the summary execution of a pickpocket who had just been caught. His English courtiers had to tactfully explain to him that this was not possible and that in England the thief would have to be tried and convicted by a court.

[50] For instance, there are reports of only two remaining male members of some tribes. This devastation, was caused initially through contraction of these diseases from Spanish explorers and French trappers. Although unintentional, it literally wiped out certain tribes such as the ‘Carib’, after whom the Caribbean Sea is named. Given the isolation of the Americas, it was probably inevitable that such a transfer of disease would occur, once outsiders made an eventual appearance. The European settlers in their turn contracted diseases such as syphilis, which had been unknown in Europe or Asia until then, but these diseases were not airborne, not as easily contracted and therefore not as widespread or devastating. 

 

[51] The sheer distance from England and the preoccupation of the English government with domestic and foreign affairs during the turbulent time of the English Civil War of 1642-1653, ensured that the American colonies de facto had always enjoyed a fair amount of autonomy. The British state had become more capable of extending its rule in the 18^th century, however and therefore exerting control, which was resented.  

 

A secondary issue is colonial frustration with Britain’s insistence that no settlement should occur in the American Indian territories west of the Appalachian Mountains, which were protected by treaty and the Royal Proclamation of 1763. This did not bother the majority of settled farmers, but did cause agitation amongst a vocal minority.

 

Also, it might be added that now fear of French invasion from Canada had been removed, the colonists no longer felt the need for protection from Britain; another inducement for them to go their own way.

 

Furthermore, it must be said that the situation was not entirely free of emotion and paranoia. Markets had shrunk in Europe following the Seven Years War, and the colonial farmers did not understand why they could no longer access credit from British traders in the manner to which they had become accustomed. This led to suspicion of British motives generally and dissatisfaction among some colonists who otherwise might have had no real objection to the taxes, which in any event had been largely revoked by 1775.

 

Discontent with the situation led to violent demonstrations in Boston Massachusetts on the pretext of the tea tax, the one remaining tax still imposed by Britain, more as a symbolic gesture than anything else. These demonstrations included the famous ‘Boston Tea-party’, which involved tea smugglers dressed unconvincingly as American Indians, climbing on board a ship carrying tea and dumping the tea in Boston harbour. What is not commonly known is that the tea tax had actually been reduced to the extent that it hurt the interests of the smugglers, hence their involvement in the ‘Tea Party’. The tea party was undoubtedly illegal and caused attitudes towards the colonists to harden in Britain. It elicited an insensitive if not disproportionate response from the British government. It ordered the closure of the port of Boston and amended Massachusetts’ Charter, by replacing the Massachusetts Legislature’s upper house with one appointed by the British Government, instead of being elected by the lower house. These were referred to in America as the ‘Intolerable Acts’. A subsequent exchange of fire between colonial militia and British troops at Lexington and Concord Massachusetts, brought the matter to a head.

 

The result of events in Boston was a radicalisation of the situation and sympathy for Massachusetts from the other twelve colonies, which previously had been less inclined to become involved. It seems that before the radicalisation of the situation, about one third of the colonists supported succession from Britain, one third did not and one third were undecided.

 

The colonies already exercised self-rule to the extent that equated to Representative Government; - a British appointed governor with an elected legislature. However, it seems that had the British government permitted them ‘Responsible Government’, (a Governor-General with an executive council needing the support of an elected legislature, headed by a Prime Minister) in other words, similar autonomy to that which was later afforded the British ‘Dominions’ in the 19^th and 20^th centuries, the American colonies would have remained within the British Empire.  As is was, many ‘Loyalists’ continued to support Britain and fought for the British forces during the War of Independence. Many of them moved north into Canada after Britain’s defeat, thus creating the English speaking population of Canada, which previously had been only French and American Indian.

[52]          ‘The American system is based on an avowedly pessimistic conception of human nature, assuming that people cannot be trusted with power. "If men were angels," Madison famously wrote, "no government would be necessary." The other model for democratic governance in Western history is based on the French Revolution. The French model places its faith in the goodness of human beings. Once the people are the source of power, it should be unlimited so that they can create a just society. The French revolution, as Lord Acton observed, is not about the limitation of sovereign power but the abrogation of all intermediate powers that get in its way. Most non-Western countries have embraced the French model -- not least because political elites like the prospect of empowering the state, since that means empowering themselves -- and most have descended into bouts of chaos, tyranny, or both. This should have come as no surprise. After all, since its revolution France itself has run through two monarchies, two empires, one proto-fascist dictatorship, and five republics.’   -  Fareed Zakaria -journalist, author, and television host specialising in international relations.

[53]          Article VI – ….‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’…..

[54] There are two methods for amendment provided for in article 5 of the Constitution, initiated by either Congress or the States respectively.  The latter method is by way of a national convention, to be held after request by two-thirds of the States. This method, however, has never been used. The first method involves a proposal for amendment to be passed by Congress by way of a two-thirds majority vote, and ratified by three quarters of the States thereafter.  All amendments to the US Constitution have been carried out by way of this method.

 

[55] Indeed, the British constitutional system involved a fairly strong separation of powers by the 17^th century. This was weakened in the 18^th century, however, by the development of cabinet government, with the executive dependant on support from Parliament.

 

[56] The ‘abuses of King George III’ listed in the Declaration of Independence are often ignored in favour of the wonderful section in the preamble which begins; - ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of Happiness’.

 

However, the abuses listed in the Declaration are intended to give the legal justification for the ending of British rule in the American colonies. They clearly are intended to reflect breaches of Magna Carta, The Petition of Right and the Bill of Rights of 1689.

 

Although the Declaration blames King George III for these perceived abuses, as they were carried out by the British Government in his name, King George had little actual control and British policy was under the direction of the Prime Minister, Lord North. Indeed, before Lord North had become Prime Minister, George had supported the removal of the hated Stamp Tax. As a constitutional monarch, however, the King did associate himself with North’s policy, which was that the colonies should all pay for their share of their own protection and the cost of the Seven Years War. This in itself was not unreasonable, but the lack of any choice in the matter is what angered the colonists.

 

On the whole, however, the colonists of the time and Americans of today appear to believe that George’s involvement was far more profound then it actually was, and he has been unfairly labelled as a tyrant. Rightly or wrongly, the Americans were therefore highly suspicious of the influence of the King in Parliament. They accordingly applied the separation of powers doctrine far more strictly than had been the case in Britain, and provided for a more definite separation of the executive from the legislature in their Constitution.

 

[57]          "That the Americans being descended from the same ancestors with the people of England, and owing fealty to the same Crown, are therefore equally with them, entitled to the common law of England formed by their common ancestors; and to all and singular the benefits, rights, liberties and claims specified in Magna Charta, in the petition of Rights, in the Bill of Rights, and in the Act of Settlement. They being no more than principally declaratory of the grounds of the fundamental laws of England." Extract from ‘American Claim of Rights,’   - a pamphlet written by William Drayton  - Chief Justice of South Carolina on the eve of the American revolution in 1774.

 

[58] Originally one of Chaka’s generals, Mzilikazi (1790-1868) had a falling out with Chaka in 1823 and fled Zululand together with his clan, the Khumalo.  This began an epic journey, which ended only in 1840 and 800 kms away, with the foundation of his capital, Bulawayo, in what is now Zimbabwe, and named after Chaka’s royal kraal in Zululand. 

[59] The causes for the Mfecane have been disputed by Julian Copping and Norman Etherington, although their views have not received general acceptance and remain controversial.   Those students who have an interest in reading further may wish to consult:  J.D. Omer-Cooper, The Zulu Aftermath: A Nineteenth-Century Revolution in Bantu Africa, Longmans, 1978: ISBN 058264531X, for the traditional view;  Norman Etherington, The Great Treks: The Transformation of Southern Africa, 1815-1854, Longman, 2001: ISBN 0582315670; and Carolyn Hamilton, The Mfecane Aftermath: Reconstructive Debates in Southern African History, Indiana University Press, 1995: ISBN 1868142523.

 

 

[60] These became the future Lesotho, Botswana and Swaziland, respectively.

 

[61] The ‘dominions’ included Australia, Canada, New Zealand, South Africa, Newfoundland and later, India, as opposed to the colonies of the British Empire which were ruled by Britain directly. Ireland was also a dominion for a short period after 1922. Dominion status was granted after a British colony had achieved and exercised internal self-rule (or ‘responsible government’) for a period.  Whilst the word ‘dominion’ usually has a much wider meaning grammatically, from the time of the Balfour Declaration of 1926, it came to have a special meaning when used in the context of the British Empire. In this context the dominions were ‘autonomous communities within the British Empire’. In other words, these former colonies were now considered to be the political equals of the United Kingdom. The Statute of Westminster of 1931 created the legal framework which confirmed their status as independent members of the British Commonwealth, as opposed to the colonies which were still ruled by Britain and officially constituted the British Empire. To illustrate the effect of the Statute of Westminster, the decision of the Dominions to follow Britain’s lead by declaring war on Germany in 1939 was entirely at the discretion of each Dominion. All did so, however, except for Ireland, thus illustrating the deep antipathy existing between Britain and Ireland in comparison with the other Dominions.

 

[62] 1952 (2) SA 428 (A).

 

[63] 1952 (4) SA 769 (A).

 

[64] In 1960, the population as divided by racial demographics was as follows:-

 

Black African - 68.3%; White - 19.3%; Coloured - 9.4%; Indian - 3.0%.

 

As at 2011, it was:-

Black African - 79.2%; Coloured - 8.92%; White - 8.86%; Indian - 2.49%.

 

(Incidentally, the 1904 percentages are little different from those of 1960, showing a slight increase in percentage for whites at 21.6%, with a slight decrease for each of the other groups. The actual numbers were fewer in each category at that stage, however, as the population has been steadily growing, with exponential growth in the last thirty years.)

 

For the 2011 statistics, all racial groups other than Black African have smaller percentages than before, although in the case of Coloureds and Indians, not radically so. The drop in the overall white percentage has been precipitous, however, and it is now less than half the comparative size it was in 1960, although actual numbers are higher. In fact the White group is now outnumbered slightly by the Coloured group, which was half its comparative size in 1960. The declining number of Whites as an overall proportion of the population is probably due to declining birth rates and extensive emigration, whilst apart from any other factors, the accelerated growth in the overall proportion of Black Africans is possibly due to immigration which occurred after the coming of democracy in 1994. In fact the overall birth rate for all groups is slowing, and despite the population more than doubling from 21,402,470 in 1970 to 51,770,560 in 2011, statistical projections do not show significant increase between now and 2040.

 

 

 

[65] See footnote 64.