SMUTS THE UNIVERSAL MAN
If you stand in Parliament Square, you will instantly observe that of the 10 statues there, three are not of Englishmen. Abraham Lincoln is one. The other two are both South African - Nelson Mandela and Jan Smuts.
The former’s fame is rooted in contemporary literature following the demise of apartheid in the last decade of the twentieth century. But who in England today remembers Jan Smuts? Shortly before his 80th birthday on 24 May 1950 (only weeks before he died) Smuts remarked: ‘I belong to antiquity.’ As Professor Antony Lentin, in his recent study of Smuts[262], said, that remark felt true in more senses than one. Smuts was a universal man (‘such as might have stepped out of the pages of Plutarch’s Lives’); he had touched life at many points. He was a fine soldier who fought against the British in the two Boer wars at the end of the nineteenth century, and for the British in the First World War; he was also an adroit politician in his homeland, twice becoming Prime Minister of South Africa; he was one of the British delegates at the Paris Peace Conference in 1919, and a prominent member of Lloyd George’s Imperial War Cabinet; and he was an international statesman, directly involved in the formation of both the League of Nations and the United Nations. But nowadays, who appreciates that Jan Smuts was also a scholar, jurist, scientist, philosopher (he read Spinoza during lulls in the Paris Peace Conference of 1919), and the author of the classic work on holism?[263] ‘Even the great’, the South African writer Alan Paton wrote, ‘thought he was great’.The overriding problem that faced South Africa in the first half of the twentieth century was race. The failure to devise an enduring
Jan Christiaan Smuts: Middle Templar Extraordinary 301 solution ensured that the problem persisted through the second half of that century.
Any proper understanding of Jan Smuts’ approach to the political and human rights of the non-white population has to be contrasted with the position which faced Nelson Mandela in the latter years of the century. Smuts side-stepped the problem of the native population, while Mandela, in different circumstances, confronted it and was not distracted by other political issues. RW Johnson concludes in his South Africa's Brave New World,[264] Smuts ‘failed to concentrate sufficiently on the home front’. (That may be an exaggeration, but if related to the post- Second World War era, Smuts’ primary interests were decidedly international. Prior to that his focus was on an independent South Africa, loyal to the Crown, a member of the British Commonwealth.) By way of comparison, Nelson Mandela in his inspiring leadership of the African National Congress focused starkly on the home front. Jan Smuts began his task, after the Boer War, of forging a nation out of the four colonial territories (two Boer Republics annexed as Crown colonies, and two British colonies) in promoting the constitutional framework for the Union of South Africa in 1910 and the welding of the disparate groups, which ended with his political defeat in 1948.Smuts undoubtedly began his political life as a white supremacist. South Africa was to be a white man’s country. But would it remain so, a half-century later? Might the establishment of an independent judiciary buttress the political status quo, or could it fashion a legal development that modified the inherent inequality between the races - a question rarely posed by commentators? Would the supremacy of whiteness ultimately yield to the ethical imperatives of human rights for all races? But I anticipate my theme. First, some biographical details of Jan Smuts, the lawyer.
To start with, he was a Middle Templar, admitted in 1892.[265] He had been an undergraduate at Stellenbosch, gaining a double first in the mixed literature and science degree.
He was later a student at Christ’s College, Cambridge, where he took both parts of the Law Tripos simultaneously (an achievement then without precedent) and headed the list of candidates with a double first, winning prizes in jurisprudence and Roman law. The legal historian FW Maitland described Jan Smuts as the most brilliant law student whom he hadtaught and supervised: little wonder that Smuts was offered a fellowship by his college, which he turned down in favour of returning to South Africa. He was never called to the English Bar, although before returning to practise in Johannesburg and later in Pretoria, he was a pupil at 1 Paper Buildings in the chambers of John Roskill, the father of Master Eustace Roskill. In the recent publication, History of The Middle Temple,7 Master Stockdale retells a delightful tale. In December 1903 the Finance Committee of the Inn received a letter from the surety of a South African student member of the Inn who had been on active service in the Boer War, actually on the enemy side. The surety paid the arrears of duty amounting to £6, adding in his covering letter that he had reason to believe the member had no intention of being called to the Bar, or indeed of recognising the Inn. The surety had misjudged the student, for in June 1904 the student sent £6 to the Inn. He was duly informed that the arrears had already been paid and that his name would be restored to the list of members on payment of the current year’s duty of £1, which was immediately paid. In 1906 the student came to London to speak to the Junior Minister for the Colonies to plead for the incoming Liberal Government to grant autonomy to the two Boer republics within the British Empire; that Minister was Winston Churchill, who was sympathetic but sceptical. The student was Jan Smuts. In 1917, by then a general in the British Army (and having conquered the German colonies in what are now Namibia and Tanzania), Smuts was made an honorary Bencher on the nomination of Master Treasurer.8 He was made Chancellor of Cambridge University in June 1948, and his portrait hangs beside Milton’s at Christ’s College.
UNIFICATION OF SOUTH AFRICA
Jan Smuts made a major and influential contribution to the drafting of South Africa’s constitution. In 1908 he took the first steps towards realising his ambition to combine the English-speaking provinces of
7 R Havery (ed), History of The Middle Temple (Oxford, Hart Publishing, 2011).
8 Upon being invited up to the Bench, Smuts wrote to Lord Parmoor, the Treasurer of the Inn: ‘May I thank you and the Benchers of my old Inn for the great honour they have done me? Of the many marks of distinction and regard which I have received there is none that I value more highly than that of being elected an honorary Bencher of the Middle Temple.’ Smuts was called to the Bench at a dinner on 14 June 1917. Announcement of the intention to call Smuts to the Bench was made on 26 April 1917 by Master Treasurer, ‘and the Lord Chancellor will second’. (In fact, in the absence of the Lord Chancellor at a Parliament on 3 May 1917, the Lord Chief Justice seconded the proposal.) Cape Colony and Natal with the Afrikaans-speaking Transvaal and Orange Free State in a Dominion of South Africa aspiring to free itself from Imperial tutelage. He called a national convention of the four colonies. At Pretoria Smuts moved a resolution which was unanimously adopted. Smuts’ legal expertise and political skill were instantly put into play. Smuts himself made the most active contribution to the formation of the union, producing a variety of draft proposals for consideration by 33 delegates to the Constitution. The proposals were duly processed through the four Parliaments and were approved by the Liberal Government of Sir Henry Campbell-Bannerman, whom Smuts had met in 1906, and ultimately by Parliament at Westminster. It was Campbell-Bannerman who acceded readily to Smuts’ pleas. Might it not have been better for the indigenous population had Britain insisted on retaining Imperial rule, or even insisting on a US-style constitution protecting human rights?
What was to be the form of the constitution and the structure of the court system? Smuts’ inclination was strongly conditioned by his legal training in the British tradition of Cambridge University where he had imbibed the historical, evolutionary interpretation of the British constitution, with the creation of an untrammelled legislature (call it parliamentary sovereignty, if you will) rather than a legislature subject to constitutional limitations in the mould of the US Constitution, with its power of judicial review by its Supreme Court.
Smuts was not initially averse to a federal structure, but by 1907 had become convinced that a unitary constitution was preferable. On 23 June 1908 he told the Transvaal Legislative Assembly in clear form his reasons:The federal system is not only undesirable because it involves even more expense and means more machinery superimposed on the people of South Africa, which is already groaning under all this administration, but to my mind the great difficulty with federation is this, that it assumes that a number of independent parties come together into a compact, into an agreement, which is binding for the future... Is that the sort of Constitution we want for South Africa, a country in its infancy? Do we want a Constitution which will lead to civil wars as the American Constitution led to? No, we prefer to follow a different type - that of the British Constitution.
There is no recorded indication that between the two World Wars Smuts changed his stance over the South African constitution. The international distractions from domestic politics were ever-present. In 1917 Smuts was in London as a member of Lloyd George’s Imperial War Cabinet, and in 1919 as a member of the British delegation at the Peace Conference at Versailles. Twenty years later Smuts was actively engaged in the Allies’ conduct of the war in Europe and North Africa.