Volksraad cannot alter the Grondwet, then there is no legal or recognised machinery for doing so.

Owing to doubts, from time to time thrown out as to the validity of Volksraad Resolutions, a section (32) was introduced into Law No. 4, 1890 (which created the Second Volksraad), expressly providing that Volksraad resolutions should have the force of law, and should not be questioned. This law was properly published, as required by the Grondwet; and, after enactment, was published for a further period, so that memorials could be made against it; but in. Brown's case, Section 32 was held to be inoperative to give effect to Volksraad resolutions, on the ground that this provision conflicted with the Grondwet. The Court held that a Volksraad Resolution by the Grondwet could not have the force of law, because not in the form required, and there would be the further reason that there would, as a rule in the case of such resolutions, be no publication three months before passing.

What makes the decision in Brown's case still more untenable, is, that it is at variance with the previous decisions of the High Court. The same topics as discussed in Brown's case were the subject of a close and minute examination in McCorkindale's case, in 1884, and in Dom's case in 1887, and opposite conclusions were come to. Few lawyers will be able to bring themselves round to the view that, after 13 years of conformity to the doctrines laid down in the earlier case, there is sufficient justification shown in the later case for a complete constitutional reversal. It must further be noted that the constitutional doctrines in Brown's case were unnecessary for the decision, and are in reality obiter dicta, as the question at issue could have been disposed of on grounds adopted in the minority judgment. In the earlier cases, these same doctrines were directly involved in the issue, and had to be decided. The Volksraad Resolutions, in McCorkindale's case and in Dom's case, were, as far as one can judge, a direct interference with the Bench and denial of justice in a Court of law. Brown's case stands on quite a different footing. He never had a vested right to the claims, only to the licences. In the pegging, he might have been anticipated by any other pegger. The resolution of the Volksraad was to indemnify the Government in respect of an act (illegal, if you will) performed by the Government in good faith, and in the public interest, and is similar in all respects to bills of indemnity passed under similar conditions by other legislatures. A state of unrest prevailed, culminating later on

in the Jameson Raid, and riots were anticipated at the pegging off on the farms Witfontein and Luipaard's Vlei. Brown himself had engaged a posse of 500 men to peg for him. Other Other persons had done the same. There was not only just ground for apprehending disturbance, there was absolute certainty of conflict. The Volksraad Resolution is certainly less objectionable that the Bill of Indemnity passed by the Colonial Legislature, and applied in the case of Deane & Johnson vs. Field (1 Roscoe's Reports, p. 165).

It is hardly necessary to refer to the internal evidence afforded by the Grondwet of 1858, to show that it was never intended that it should be an immutable law. A variety of matters are treated which must necessarily be altered from day to day, and are even of a parochial nature. In consequence of the decision in Brown's case (in connection with the obiter dicta) it may safely be said that not a single institution in the land was legal. The Second Volksraad was swept into the limbo of vanities, and the High Court had no locus standi. Three-fourths of the Law Book were unconstitutional. All that could be discerned was the High Court, an illegal institution according to the judgment, floating serenely on the waters of the Deluge, and taking advantage of the general chaos to exert arbitrary power. The High Court not only refused to recognise Raads besluiten, but even laws were of no validity unless there had been three months publication, except in cases of urgency. In cases of urgency, the Court intimated to the Raad that the statement of urgency must be embodied in, and appear in the law.

The Government, in dealing with this unprecedented situation, did not consult the judges. Whether the judges if consulted could have pronounced a plan which would have inaugurated an epoch of legal certainty, is questionable. Art. 4 of Law No. 1 of 1897 is the only section which the judges had a right to resent. It gave the President the right to dismiss any judges who maintained the "testing right" and refused to recognise laws duly passed. The same end might have been attained without Art. 4, but the agony would only have been prolonged. The recalcitrant judges would have been brought to trial, and unless the trial were a farce and the tribunal perjured, would have been dismissed. As a matter of fact, the President exercised the power entrusted to him with singular patience and forbearance. Not the slightest anxiety was displayed to get rid of any of the judges. The famous compromise was agreed to, by which the three judges who held to the "testing right"

abandoned it. The Volksraad sat in the May following, and no memorials came from an outraged public. The people acquiesced in Law No. 1 of 1897. The Bench with a single exception acquiesced. The single exception declined to recognise laws duly enacted by the legislative body, and gave notice that he intended to exercise the " testing right." Whether this right were consistently or inconsistently exercised, the result would have been a lamentable exhibition. What would be done in any civilised country if a judge intimated that he did not deem himself bound by the decrees of the legislature? The judge would go, the laws would prevail.

ANNEX 10.

Law No. 1 of 1897.

(i.) Translation.

Testing Right of Judges.

Law No. 1 of 1897.

(Approved by Resolution of the First Volksraad, Art. 451, dated 26th February, 1897.)

CONSIDERING that from the foundation of this Republic the Resolutions of the Volksraad have been recognised and respected as Law, and that the Judicial Power possessed no competency to set aside the Laws and Resolutions passed by the Volksraad ;

Considering that such was the will of the people of the South African Republic as laid down in the Grondwet (Constitution) of 1858 and maintained in the compiled Grondwet of 1896, and in the Annexure No. 2 of that Grondwet, dated 19th September, 1859, which provides inter alia:

"2. Every Court shall respect all Volksraads' Resolutions as Law, and may make no observations or criticisms upon them, and whatever the Volksraad has decided or approved shall not be submitted to the pleasure of any Court of Law.

"3. When several Volksraad Resolutions have been taken on the same subject the latest Resolution shall be respected as Law by every Court of Law."

Considering that in the Grondwet of 1858, according to the oaths set forth therein, and prescribed respectively for the Members of the Volksraad and the Members of the Judiciary, the so-called testing right is not granted to the Judiciary, who are bound, according to the terms of their oath, to decide justly according to the laws of the land.

Considering also that the High Court of this State has repeatedly decided that Resolutions of the Volksraad have force of law and that the Judiciary has no right of testing whatsoever.

Considering that the Local Legislation of the Republic, for the reasons hereinbefore set forth, rests in great part on Volksraad Resolutions.

Considering that Law No. 4, 1890, after having been duly published, was not immediately put into operation by the Volksraad after discussion, but laid once more specially before the People, and the People have adopted that Law after it had been published three times in succession.

Considering that Art. 32 of that Law (which Article has now been taken over as Art. 80 in the Grondwet (Constitution) of 1896) has confirmed such condition as intended by the Grondwet (Constitution) of 1858 and declared correct by the High Court, and provides that the lawful force of Laws and Resolutions published by the President in the Staatscourant may not be questioned-thus also not by the Judiciary; while only the People shall have the right to pronounce against a Law or Resolution;

And further, considering that a short time ago a majority in the High Court, viz., two Judges, has decided that the previous judgments of the High Court on this point were wrong, and has laid down that Resolutions of the Volksraad have no force of law and that the High Court has the competency to refuse to apply a Law, if it holds that such Law is either in form or substance in conflict with the Grondwet (Constitution) of 1858.

Considering that by such decision the certainty of the administration of Justice in this State has been seriously prejudiced, because as has been said, the largest portion of our Legislation rests on Volksraad Resolutions, and various Laws and Resolutions were in terms intended to be alterations of the Grondwet (Constitution).

Considering that the First Volksraad cannot remain passive and allow the High Court to refuse to administer Justice in accordance with the Laws of the land, and it is its duty to protect the public agreeably to the will of the People.

Considering that Art. 86 of the Grondwet of 1896 with regard to the summoning of a Special Court is not applicable in this matter, and

Finally considering that this Law, although not published, in terms of Art. 12 of the Grondwet, three months beforehand, inasmuch as it can brook no delay.

It is hereby enacted and provided as follows:

Laws of

1. As long as the People has not clearly made it known Judiciary to the satisfaction of the First Volksraad that it wishes to must respect. alter the existing condition the existing and future laws Volksraad and Volksraad Resolutions shall be recognised and respected Resolutions. by the Judiciary in agreement with Art. 80 of the Grondwet